Can a person be convicted of attempting to rape a child who doesn't exist? Yes, the state Supreme Court ruled today. If the suspect intended to have sex with an underage person and convincingly demonstrated that intent, he can be prosecuted even if the child was a fictitious person - such as an adult cop posing as a kid. That's what happened in the case of Mitel Patel, 26, who got caught up in an Internet sting.
The detective chatted with Patel over the AOL instant messaging service.
In his initial message, Mr. Patel wrote "HELLO . . . U LIKE OLDER GUYS?" Kimberley then asked "how old r u." Mr. Patel indicated that he was 26 years old. In response, Kimberley stated "wow im 13 but look and act older." Mr. Patel replied "RIGHT ON" and asked for her picture. Thereafter, Mr. Patel shifted the focus of the conversation to sexual topics, including various forms of sexual intercourse. Immediately after Kimberley described herself, Mr. Patel asked "U EVER HAD SEX?" When she responded affirmatively, Mr. Patel wrote "I WANNA GET ME SOME"...When she expressed concern about becoming pregnant, Mr. Patel volunteered to bring five flavored condoms with him.
Following several sexually explicit conversations, Patel agreed to meet the girl/cop at her apartment for sex. When Patel knocked on the door, he was swiftly arrested by police. There was no girl to attempt to rape, but that's what Patel was convicted of - attempted 2nd-degree rape - in 2004.
He appealed, arguing that in order to convict a defendant for attempted rape of a child, the state "must always prove there was an actual underage victim."
That's not necessary, the high court decided today in an opinion written by Justice Tom Chambers. Patel's intentions were clear and, most importantly, he "took a substantial step toward" committing rape, or attempting it, by going to the fictitious girl's apartment, Chambers said. That appears to be the legislature's intent in passing the laws in question, and the court's position, he noted, "further[s] the legislature's intent with regard to the child rape and criminal attempt statutes."
Two justices, Barbara Madsen and Richard Sanders, concurred but wrote separate opinions questioning some aspects of the ruling, which reinterpreted several statutes. Wrote Sanders: "As the saying goes, 'if it ain't broke, don't fix it.' The statutes here are not broken, and the lead opinion has neither the authority nor the justification to 'fix' them."