I wanted to post briefly in response to local lefty blogger and criminal defense attorney Mike Plaisted's suggestion that my comments on the Pask case were too gentle on my "wing-nut friends." Part of the answer, of course, is that I am not into bashing people here. If I am not going to go postal on people who I think are mostly wrong, why would I do that with people that I think are mostly right?
But more fundamentally, I think that Mike (who I believe to be an intelligent fellow and a very good writer} and fellow lawyer blogger Illusory Tenant mistate some of the criticism of Judge Van Akkeren that I have heard. I have not listened to Belling's discussion of the case, but I have heard some of the discussion on Charlie Sykes' show. It was not always exactly what I would expect in a law school classroom (why should it be?), but the discussion did not take place without regard to the requirements of the law. Sykes and his callers were well aware of the statutory requirement that a child be enticed into a building or secluded place and tried to address that requirement. Some local conservative bloggers were sufficiently cognizant of that issue that they went out and videotaped the area in question. I can't say that I agree with everything that they have said and some of it was overwrought, but I am not going to dismiss public discussion of a difficult case as ignorant.
Without getting the precise context in which this happened, I am not prepared to say that the judge was wrong. But having seen video of the area, I think it is far from obvious that there was no secluded place into which Plask may have been leading the child.
And if it wasn't obvious, then the verdict ought to stand.
Jeff Wagner suggests that the statute be amended to eliminate the "destination" requirement. He advocates redefining child enticement to consist of 1)enticing a child with 2)intent to assault that child. He argues that it may be hard to prove the requisite intent where the defendant was not luring a child into an area in which an assault might conceivably happen, but that, if the requisite intent is found, it ought not to matter where the assault was intended to occur.
I wonder if any jurisdictions have so defined it. The civil libertarian in me is skeptical. "Enticing" is such a minimal element. Couldn't it be satisfied by someone asking a kid to "come here"? Jeff's proposal seems to be a bit too close to criminalizing intent. (Call it the Aqualung law.) That makes me a little hinky because we want people convicted for what they do and not who they are (or seem to be). Wagner is not proposing the latter, but I worry that is what it might become in practice. Although intent would presumably have to be proven by the defendant's conduct in the incident at issue (and not by his prior record), there is normally not going to be the type of blatant commentary as was allegedly made by Pask here and you worry about basing intent on extraneous matters. Having a location requirement does not, as Jeff points out, address that directly but maybe it does narrow jury discretion in a way that reduces the risk of bad convictions.