On September 9th, the Georgia Supreme Court unanimously granted certiorari to hear the appeal in State v. Cosmo, which was decided by the Georgia Court of Appeals in March (See, Convictions Reversed in North Georgia Internet Sting Case).
The case involved a sting operation in which a police officer posing as a woman named Amber posted an ad on Craigslist stating that she and several other “girls” were interested in providing sexual services. The defendant responded to the ad and began to converse with Amber about the services. Eventually, Amber stated that the other girls were her minor daughters, ages 14, 12, and 9. During subsequent phone calls and text messages, the defendant repeatedly emphasized that he was “not comfortable with this underage thing” but wanted to meet with Amber alone. After a meeting was arranged, the defendant again indicated that he planned to meet just with Amber and not with the minor daughters. When the defendant arrived at the meeting place, he was arrested.
Cosmo was charged under Georgia Law with violating the “Computer or Electronic Pornography and Child Exploitation Prevention Act.” At the time of his prosecution, the statute prohibited the intentional or willful use of a “computer on-line service or Internet service…to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure or entice a child or another person believed by such person to be a child to commit any illegal act…” At trial, Cosmo testified that he intended to have a one-on-one sexual encounter with an adult, and did not intend at any time to engage in sex with a minor.
The Georgia Court of Appeals reversed the defendant’s convictions, holding that the State failed to prove all of the elements of the offense since the defendant never engaged in conversation with someone he believed to be a child.
The Georgia Supreme Court has asked for briefs on one issue only: “Did the Court of Appeals err in holding that proof of a direct communication with a child is required to prove a violation of O.C.G.A. § 16-12-100.2(d)(1))?”
The appeal will be assigned to the Georgia Supreme Court’s January 2014 oral argument calendar. We will continue to follow the case and provide an update once the Supreme Court reaches a decision.
It is important to note that, effective July 1, 2013, Georgia’s Computer or Electronic Pornography and Child Exploitation Act has been amended. The current version of the statute prohibits the use of a computer or internet service to “seduce, solicit, lure, or entice…a child, another person believed by [the defendant] to be a child, any person having custody or control of a child, or another person believed by [the defendant] to have custody or control of a child” to engage in any unlawful sexual act with a child.
There is little doubt that it was the Cosmo case that caused the legislature to adopt this amendment to the statute. Clearly, under the current statute, a defendant can be in violation even if he only communicates with someone he believes is the mother of a child. With the new amendment, the decision in Cosmo’s case will have little impact on future cases prosecuted under the statute.
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