GLT » Police in gay chat rooms

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Police in gay chat rooms

Published Thursday, 18-Mar-2004 in issue 847

BEYOND THE BRIEFS

by Robert DeKoven

Gay men report receiving messages in on-line “adult” chat rooms from minors, who often want to talk about gay sex and coming out.

I always advise people, despite their good intentions, that the minor may not be a minor, but may be police or cyber-vigilantes looking to track pedophiles. Because the nature of adult chat rooms often is sexual, it’s relatively easy, as you will see, to charge an adult with distributing “harmful matter” to a minor even when nothing more is exchanged other than “words.”

Even what may seem perfectly innocent could be considered words “harmful to a minor” and could result in an arrest and a prosecution.

A recent case sheds some light on police practices in regard to monitoring activity in gay chat rooms.

The case began in December of 1999, when current San Diego Police Chief William Landsdowne was the police chief in San Jose.

The “Child Exploitation Detail” of the “Sexual Assault Investigative Unit” of the San Jose police department has several police officers who go into Internet chat rooms seeking out individuals who sexualize with children.

Officer Mark Clough had heard that “child predators” could be found in an America Online (AOL) chat room called “BarelylegalM4oldrM.” And Clough had arrested a man using that chat room before.

San Jose police officers knew that “gay men gathered” in this chat room and often engaged in conversations that were sexual in nature.

According to the court, the conversations in this chat room often involved discussions of “penis sizes”, sexual acts and “threesomes” and the trading of photographs.

Officer Clough created an AOL profile, indicating that he was a 13-year-old boy named “Scotty.” His screen name was “scotty0585.”

Soon after Officer Clough (“Scotty”) logged into the “Barely Legal” chat room, he received an instant message from the defendant in this case, Martin James Jensen, whose profile indicated that he was a 38-year-old theater manager.

Jensen asked Scotty if he had a self-pic, and Scotty said he would send his in return for Jensen’s. So Jensen sent two pics, one of which was Jensen naked with an erect penis.

Even what may seem perfectly innocent could be considered words “harmful to a minor” and could result in an arrest and a prosecution.

Clough (Scotty) then asked Jensen if he had messed with a 13-year-old boy. Jensen said he had. The conversation ended after that, with Jensen putting Scotty on his “buddy list.”

After the talk, Clough served a search warrant on AOL and discovered Jensen’s true identity. He also discovered that Jensen had prior convictions involving sexual offenses with minors.

More talks took place between Jensen and Scotty, where Jensen indicated that he wanted to have sex with Scotty and he described in detail what he would do, but he never set a time and place for such a meeting.

Instead, the talks centered on fantasies Jensen had about having sex with Scotty.

Unlike other cases of this kind, where the pedophile actually arranges to meet the child/minor, Jensen never would. So Officer Clough couldn’t charge Jensen with attempted sexual molestation of a minor.

Instead, police charged Jensen with 10 counts of attempting to distribute harmful matter to a minor over the Internet, and one count of possession of child pornography.

The major issue in this case had to do with the crime of distributing harmful matter to a minor. The California statute requires not only that the person distribute harmful material to a minor, but it must also be done with intent to seduce the minor.

Jensen contended that he did not have any intent to seduce Scotty because he never planned to meet him. His claim was that he merely wanted to persuade Scotty to masturbate alone rather than trying to persuade him to engage in sexual activity in partnership with him.

The Attorney General argued that the term “seduce” encompasses encouraging one to “masturbate” alone.

The appellate court disagreed, noting that the common definition of “seducing” requires that the perpetrator intend to entice one to engage in a sexual act involving physical contact between the two. Simply trying to entice a male minor to “masturbate” alone does not satisfy the “seducing” element, said the court.

This case should have received much more media attention because it shows how difficult it is to stop true pedophiles from merely chatting with minors.

But it is helpful for gay and lesbian adults who counsel to GLBT youth on-line. In the past, safe sex counselors have had to worry about discussing sex with minors for fear of having police charge them with a crime.

Rob DeKoven is a professor at California Western School of Law in San Diego.