Supreme Court considers whether Internet chat alone can be a crime

Can the state convict someone of enticing a minor over the Internet based on their words alone?

That issue was the subject of lively debate among justices of the Utah Supreme Court on Wednesday.

At issue is whether or not Utah's Internet Enticement statute is unconstitutional by saying a person engaged in sexual speech over the Internet need only believe they are chatting with a minor in order to be convicted.

"All you're doing is criminalizing speech," said attorney Ann Taliaferro. "There has to be something more."

In the U.S. justice system a person is considered innocent until the state can prove their guilt. Even if a suspect outright confesses to a crime, the state must show independent evidence that they either committed the crime or intended to commit a crime. Taliaferro said in her client's case, he was convicted based solely on an Internet chat he claims was purely sexual fantasy.

James Gallegos, of Clearfield, was charged and convicted by a jury of enticing a 13-year-old girl over the Internet. He was sentenced to serve a year in jail. In actuality, the 13-year-old was an adult agent with the Utah Attorney General's Internet Crimes Against Children task force.

According to court documents, Gallegos chatted with the agent on two occasions in 2006. During those chats, Gallegos expressed that the girl was possibly too young but then went on to suggest how he would like to sexually touch her. Ultimately, the agent and Gallegos arranged a meeting outside a school in Sandy. While Gallegos did drive by the meeting spot, officers said he sped off. After tracking his license plate number, Gallegos turned himself in.

Gallegos claims he had never believed the person he was chatting with was a minor. At some point, Gallegos said he was convinced the person was a gay man posing as a girl because in the past he had arranged meetings with supposed females only to meet a man. The reason he showed up at the meeting site, was out of curiosity about this person.

In an attempt to have the charge thrown out, 3rd District Judge Stephen Henroid ruled that it didn't matter that Gallegos showed up at the meeting site and that the crime was completed over the Internet.

During oral arguments Wednesday, justices differed as to whether Gallegos' conversation could convict him.

"He definitely did more than just chat," said Chief Justice Christine Durham. "He set up a meeting and showed up at the scene."

The statute states a person must believe that the person they are chatting with is a minor. Justice Matthew Durrant said he wondered if the case depended on whether or not Gallegos believed this was a minor.

"If a person tells you they're a minor you'd better log off," Durham said.