Electronic enticement law challenged as unconstitutional, vague

A law that prohibits sexual predators from going after children online is being challenged as unconstitutional.

The electronic enticement law makes it illegal for adults to communicate online with anyone under 18 years old and then meet with them with the “intent” of committing a felony, such as a sexual act.

Defense attorney Victor Bakke argued in front of the Hawaii Supreme Court Thursday that the law is too vague, because how do you prove “intent”?

According to a criminal law professor, the law as it is written is too vague. But is it’s vague enough to make it unconstitutional? Probably not.

The Electronic Enticement Statute took effect in 2002, and the Attorney General’s office says there have been 42 cases prosecuted statewide.

It has three elements: electronic communication, such as online chatting, with a minor; agreeing to meet with the minor with the intent to commit a felony; and then meeting at an agreed location with the minor.

The penalty is a mandatory prison term with a maximum of 10 years.

“Right now, it just says if you talk to a minor and meet them, you’re in trouble, but the new law should say if you talk to a minor and you do so trying to encourage them to engage in sexual activity, then they make the arrest based on that,” said Bakke.

“With intent you have to go inside a person’s mind. Is that true?” KHON2 asked.

“In this case, we have transcripts of the defendant chatting online with two undercover officers and that would establish intent,” said Deputy Solicitor General Marissa Luning.

Luning says intent can be also be proven by the defendant talking about committing the crime either online or even verbally with other people.

University of Hawaii law school professor Ken Lawson says Bakke’s argument has merit. “It could have been written better,” he said.

Lawson says it’s kind of like an anti-speeding law without including the speed limit. “If we had a law that says speeding is against the law, you would not know how fast or how slow you have to go in order not to be speeding.”

But he says the law is written that way in many states around the country because it helps protect innocent victims, such as the children.

Bakke does have a client awaiting trial for electronic enticement.

The Hawaii Supreme Court did not make a decision. It could take months before that is made.

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