D.C. Circuit Reverses Conviction in Attempted Child Sexual Abuse Case

Last month the D.C. Circuit reversed a conviction for attempting to persuade a minor to engage in unlawful sexual conduct. See 18 U.S.C. § 2422(b).  As is common in these kinds of cases – no child was actually involved.  Instead, an undercover officer engaged in online conversations with the defendant through a chatroom.  After the officer claimed to have access to a 12-year-old girl and a three-year-old boy, the defendant asked the officer to arrange for a sexual encounter.  On appeal, the Court found that the district court erred when it instructed the jury that it could find the defendant guilty if it found beyond a reasonable doubt that he had persuaded someone else to arrange for unlawful sexual conduct.  While the defendant need not be the one who directly attempts to persuade a minor – he must at minimum cause someone else to attempt to persuade one – not simply to arrange for an encounter.  The district court’s instruction did not do this.  The district court’s second error was to exclude the testimony of Dr. Fred Berlin -- a board certified psychiatrist and founder of the Sexual Behaviors Consultation Unit at the Johns Hopkins University Hospital.  Dr. Berlin would have testified on “the difference between a desire actually to engage in sexual activity with a minor and mere fantasy and role playing,” (2) on his diagnosis that the defendant did not suffer from a psychiatric condition that made him want to have sexual contact with children, and (3) on the relationship between viewing child pornography and sexual interest in children.  This evidentiary ruling is a major win for the defense.  I have worked with Dr. Berlin on a number of cases.  He is a powerful witness because he has the unique ability to explain sexual disorders involving attraction to children in ways that make them less frightening and more understandable – and even to evoke compassion for the people who suffer from them.  While I have used Dr. Berlin at sentencing, this case shows that he and experts like him can also be useful at trial.  United States v. Hite, 2014 WL 5343626 (D.C.Cir. Oct 21, 2014).