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In two decisions released today, Comm. v. Disler and Comm. v. Filopoulos, the Supreme Judicial Court has interpreted the Child Enticement Law, MGL c.265, § 26C to require the Commonwealth to affirmatively prove intent to lure an underage individual. The decisions hold, in part:

  1. “The statute surely does not prohibit specific words. It also does not ban anyone from communicating with adults or minors about sexual topics, even through indecent language.” “What the statute does require in addition to enticing words or gestures…, is that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes.”
  2. It is “of no consequence that [the “child” with whom the defendant was communicating] was not a real person, because ‘factual impossibility is not a defense to a crime.'”
  3. “The Commonwealth is required to prove beyond a reasonable doubt, as an element of the crime of child enticement, that the defendant intended that his advances be directed to an underage person. ” “This approach would not require that the Commonwealth prove that the defendant knew the exact age of the child. However, the defendant could not be found guilty unless the Commonwealth proves that his intention was to direct his sexual advances to an underage individual, i.e., an intent to do a criminal act. Intending to have consensual sexual relations with another adult would not provide the requisite criminal intent, even if it turns out that the object of the defendant’s advances was in fact a child.”

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