November 11, 2010 in City

Ruling upholds online sex sting

Police posing as minors valid victims, court says
By The Spokesman-Review
 

The Washington Supreme Court, in a three-way opinion, has upheld the conviction of a man who tried to have sex with a 13-year-old girl he’d met online who really was a Spokane police detective.

All justices agreed with the ruling that upheld the attempted second-degree child rape conviction against Mitel H. Patel, rejecting the man’s claim that the case should be thrown out because there was no actual underage victim. Two sets of judges that agreed with the overall ruling but disagreed with the majority opinion submitted separate concurring opinions.

“It’s really helpful to have some degree of clarification,” said Deputy Spokane County Prosecutor Ed Hay, who supervises the sex offender unit. “It’s great to have some clarity and certainly will help investigators feel comfortable being proactive in their investigations.”

The Patel case started in 2004 when Detective Jerry Keller, who has since retired, posed online as a 13-year-old girl named Kimberly. Patel, who was 26 at the time, began chatting with the girl and within five hours was knocking on a door in north Spokane where he expected to find her, according to court records.

“In the chat (Patel) advised me that he wanted to meet me and he wanted to bring over five flavored condoms so I would not get pregnant,” Keller wrote in court records.

Patel arrived at the apartment, where a female detective opened the door. Patel asked the detective if she was the girl with whom he had been chatting. The detective said yes and Patel was taken into custody.

Upon arrest, officers found five flavored condoms in his pocket and directions to the apartment that Keller had given him during the online chat. Patel admitted to police that he was chatting with a girl who indicated she was 13 and that he wanted to have sex with her.

Patel was convicted but appealed and asked the Washington Supreme Court to overrule his case and a previous case, also based on a similar sting operation by Keller in Spokane, on the grounds that to convict someone of attempted rape of a child, the state “must always prove there was an actual underage victim.”

“We take this … opportunity to clarify … and hold that a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police,” Justice Tom Chambers wrote.

Justices Debra Stephens, James Johnson and Gerry Alexander concurred.

But Justice Barbara Madsen, with agreement from Justice Charles W. Johnson, wrote a separate opinion. In it, Madsen agreed with the premise that Patel could be convicted of attempted rape of a child even though the “child” is fictional.

“However, I write separately because the lead opinion says that ‘a defendant who attempts to have sex with a person he believes is underage but is actually an adult may not be convicted … because the victim actually existed and factual impossibility is not a concern.’ This is internally inconsistent and, indeed, undermined the rationale that supports the lead opinion,” Madsen wrote.

Along that same argument, Justice Richard Sanders wrote that his colleagues had plenty of legal justification for upholding the Patel case without bringing in another case in which a man met online someone he thought was a 25-year-old woman. They chatted online about having sex; he arrived and immediately left after discovering she was actually 13.

Sanders said the majority opinion was written in such a way that would make that scenario a criminal offense even though the man realized the situation before any sexual relations could take place.

“Thus, the lead opinion misinterprets (the law) to put those who seek amorous relationships online in peril of attempted child rape charges even where they are neither seeking nor would carry out any sexual contact with a minor,” he said.

Justices Susan Owens and Mary Fairhurst agreed with Sanders’ opinion.

Regardless of the differences of opinions, Spokane County Deputy Prosecutor Jack Driscoll said the ruling supports efforts to find online sexual predators.

“They made a distinction. If it’s a fictitious person, you focus on what their intent was and whether they took a substantial step toward that intent,” Driscoll said. “We are happy the Supreme Court has found it a proper investigative technique.”


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