Internet luring: Is chat line sex with a child illegal?

Michell Rayal Levigne, a 50-year-old Edmonton man, was acquitted last year of child luring after he had a series of sexually charged Internet conversations with someone who claimed to be a 13-year-old boy. The so-called 13-year-old boy was in fact a police detective whose job is to lure adults into committing the crime of Internet luring.

The luring on the part of the 50-year-old, took place in a public chat room somewhere in Edmonton, Alberta. Levigne asked his chat partner (the so-called 13-year-old) to send him a picture of himself, including one of his penis. Levigne also asked for a meeting and requested he bring a young friend. He eventually arranged to meet his chat partner at an Edmonton mall. Soon after, Levigne was arrested by the police.

There is no doubt in my mind that Levigne was a man who would be sexually aroused at looking at the photo of a 13-year-old boy’s penis and was hoping to have sex with the boy and a friend of the boy if one was brought to the meeting place. His actions and his intent were definitely illegal. Asking the boy to show him a picture of his penis is enticing the boy to participate in child pornography. Asking the boy to meet him, in itself isn’t necessarily a criminal offence if he has a legitimate purpose in mind but if his purpose of the meeting was to participate in sex with the boy and his friend, then that is definitely a criminal offence.

Unfortunately many people commit illegal acts but through some technicality in the law, sometimes the charges against them are dismissed.

An important legal question that faces the courts is whether Internet chat room users are legally responsible for ensuring those they engage in sexual conversations with, aren't children.

During the 2006 conversations, Levigne heard his chat partner talk about being in Grade 7 and having to get off the computer because his mother was coming home.

Levigne maintained during his trial that he didn't believe he was conversing with a teenager since the chat room was supposed to be moderated for adults only. I find that very hard to believe.

A Court of Queen's Bench justice agreed with the defence’s argument that chat room users aren't expected to check the ages of their conversational partners. The Crown (prosecutor) is now appealing Levigne's acquittal on a charge of child luring.

Crown prosecutor, James Robb told the appeal court this week that the law clearly states a person must take ‘reasonable steps’ to ascertain the age of someone participating in such communications with an adult.

The prosecutor said Levigne should not be let off the hook because he thought he might have been talking to an adult posing as a child. Mr. Robb added, “If such a general defence is accepted, it would undermine a law meant to protect children of online exploitation.” He asked the appeal court to set aside the acquittal and substitute a conviction.

Defence lawyer Kirk Mac-Donald noted that his client had seen other people removed from the chat room because they did not meet age requirements. He said his client assumed the site was being moderated and his chat partner was an adult playing the role of a child. Mr. MacDonald also said his client had been misled during previous online conversations about the personal characteristics of people he had met on the Internet.

He argued that the trial judge had not made any mistakes in the context of all the evidence. He said, "That statute says reasonable steps, not ‘all reasonable’ steps."
The appeal court judges reserved their decision.

I will let my readers know what the court’s decision is when I learn of it. It will be posted in this essay.

I believe that Levigne will be convicted. Let me give you my reasons by referring to two similar cases.

In case one, the central issue at trial was whether the appellant (person appealing the lower court’s decision) believed that he was communicating with an adult rather than a child under the age of 14 and whether he had taken reasonable steps to ascertain the age of the person.

The appellant testified at his trial that he believed from the start that ‘mandy13’ was likely an adult male and that he considered their conversations to be a role-playing game where the object was to keep the game going as long as possible. The appellant denied having any sexual interest in young girls.

He explained that he was familiar with sexually explicit chat rooms and role-playing games and that there were a number of features of his conversations with ‘mandy13’ that led him to believe that she was in fact an adult. Among these were:

When he first conversed with ‘mandy13’ he could see that she was simultaneously logged in to a child pornography site, a fact that in his experience, it indicated that she was likely an adult;

Mandy13 demonstrated a sophisticated familiarity with chat rooms unlikely to be possessed by a child who professed to be new to them;

Various answers and information she gave to him regarding matters such as clothing size, experiences at school, and her brother’s age, indicated to him that he was likely engaged in a conversation with an adult;

A picture she sent him purporting to be of her was in an outdated format indicating that it had been taken several years ago.

The appellant eventually arranged to meet ‘mandy13’ for a sexual encounter after he spoke by telephone to a female police officer posing as ‘mandy13’. The appellant testified that the officer’s voice sounded abnormally high, like someone on helium, and that the voice was not believable as that of a 13 year old. The conversation led him to believe that he may have been dealing with an adult female.

After a six day trial, the trial judge convicted the appellant. The trial judge found that in the first conversation, the appellant had asked ‘mandy13’ when she would be 14 and then proceeded immediately to explicit sexual talk before ‘mandy13’ replied. The judge concluded that on a ‘plain and literal reading of the first chat’, the appellant had suggested to a 13 year old girl that she masturbate and provided her with explicit instructions on how to do so. Obviously, an adult female wouldn’t need instructions on how to masturbate. The trial judge found that the appellant’s evidence that he believed he was dealing with an adult defied logic and common sense and that he had not taken reasonable steps to ascertain the age of the person he was dealing with before he invited her to masturbate.

By virtue of 172.1(4), a belief that the person is 14 years or older must be supported by ‘reasonable’ steps to ascertain the person’s age. The trial judge made a finding that even if the appellant believed ‘mandy13’ to be 14 years or older, he had failed to take reasonable steps to ascertain her age on the first conversation.

As I said earlier in this piece, based on the foregoing, I am convinced that in the appeal being heard in Edmonton, Michell Rayal Levigne will be convicted again.

ADDITIONAL INFORMATION (July 2010) The matter was heard by the Alberta Court of Appeal and it dismissed his appeal. The Supreme Court of Canada then heard his appeal and it also dismissed his appeal. Both courts stated that the so-called girl stated that she was 13-years-old and that should have been enough for Levigne to break of the contact with her---something he refused to do.