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The appeal requires us to construe the statutory term “sexual activity”—surprisingly an issue on which there is very little law. To repeat our basic point: if “sexual activity” and “sexual act” are synonymous in Title 18, as they appear to be, then “sexual activity” requires contact because “sexual act,” we know, does. Maybe our interpretation of section 2422(b) is no more plausible than the government's. Indiana's legislature has, however, made “presence” an element of the offense.
§ 2422(b), which provides that anyone who, “using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States[,] knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.” He was convicted by a jury and sentenced to the statutory minimum of 10 years in prison. Masturbation is also a “sexual act” in that sense, but not in the statutory sense. That's not to say there isn't a strong argument to be made that webcams and other similar technologies put two people in the constructive presence of one another.
Dwinells, 508 F.3d 63, 72 (1st Cir.2007); United States v. No matter; the defendant does not question that “criminal offense” in section 2422(b) includes state crimes. In none was the question that this appeal presents raised. Root, 296 F.3d 1222, 1235–36 (11th Cir.2002), and United States v. Since a webcam did not place him in the presence of “elliegirl1234,” Taylor could not have been convicted of that offense. So, under that reading, a salacious letter that directed the minor to masturbate would be a crime.
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