The Minnesota Court of Appeals published a decision today regarding what now qualifies as a “substantial step” towards the commission of third-degree criminal sexual conduct in In State v. Wilkie, Mr. Wilkie was convicted of attempted third-degree criminal sexual conduct violation of Minn. Stat. §§ 609.17, subd. 1, .344, subd. 1(b) (2016). The factual background of the case is as follows:
Mr. Wilkie was communicating with a “decoy” profile on Grindr, a social media platform for gay and bisexual men. The “decoy” profile was operated as part of a sting operation. Mr. Wilkie initiated the conversation, asked for pictures including nude photographs, sent erotic photographs, and talked about sexual intercourse. During the course of conversation, the decoy profile told Mr. Wilkie he was fourteen years old. Mr. Wilkie continued the conversation and arranged a meeting with the decoy, providing his cell phone number. Mr. Wilkie expressed concern about getting caught, stating he didn’t want to get in trouble and asking the decoy if it was a trap. Mr. Wilkie and the decoy spoke over the phone and eventually Mr. Wilkie obtained a home address for the decoy. Mr. Wilkie arrived at the address and knocked on the door. Mr. Wilkie was then immediately arrested by the police who answered the door.
Mr. Wilkie opted for a bench trial – a trial where the judge is the fact-finder (instead of a jury of peers) – and was convicted. He appealed and the Minnesota Court of Appeals affirmed the lower court’s decision – Mr. Wilkie’s conviction remained. In doing so, the Court of Appeals established detailed case law that can now be used as precedent in future, similar cases. The Court of Appeals ruled that his conduct in this case was enough to constitute an attempted Third Degree Criminal Sexual Conduct. The Court specified: “[a] person takes a substantial step toward committing third-degree criminal sexual conduct by arranging via social media to meet a juvenile to engage in sexual penetration, verifying that the juvenile has sexual experience and wants to engage in the act, sending explicit photographs to the juvenile suggestive of the act, negotiating to meet in the juvenile’s unoccupied family home to engage in the act, obtaining directions to the home, following the juvenile’s directions to approach the home, and knocking on the front door.” This broadens the ability of the State of Minnesota to charge and convict persons of attempted crime where previously physical contact, words delivered in person, or an attack were necessary to establish the “substantial step” required to prove an attempted crime.
The Court of Appeals based its decision on the emergence and prevalence of social media, “[the advent of social media has abbreviated of eliminated some of the courtship rituals in our society, including how people initiate sexual relationships and arrange for sexual encounters. Actions that historically demonstrated a substantial step toward commission of a sex crime, such as preliminary physical contact, may no longer apply when social media is used to initiate the sexual encounter.”