Commonwealth Established Intent for Indecent Liberties

Regardless of whether a particular photograph displayed “sexual parts,” a teacher who engaged in a series of provocative texts with an 11-year-old student was properly convicted under Code § 18.2-374.3(B) of using a cell phone for “purposes of procuring or promoting” the student for activity that would violate Code § 18.2-370 (taking indecent liberties with children) and the teacher’s conviction is affirmed.

The court held there was no requirement in Code § 18.2-374.3(B) for third-party communication nor is a third-party communication necessarily implied from the operative words – “purpose,” “procure” and “promote.”

“Purpose” is defined as “something that one sets before himself as an object to be attained,” or “an end or aim to be kept in view.” The definition of “procure” includes “to bring about by scheming and plotting,” and “to prevail upon to do something indicated: INDUCE.” “Promote” is defined as “to move forward.” Accordingly, a perpetrator could clearly violate Code § 18.2-374.3(B) by directly communicating with a minor, with the objective of scheming or plotting to induce the minor to be the victim of an activity proscribed under Code § 18.2-370 (an activity that would constitute taking indecent liberties with a child), whether presently or in the future.

The court concluded that a defendant need not have actually committed a crime under Code § 18.2-370 of taking indecent liberties with a child to have committed a crime under Code § 18.2-374.3(B) of engaging in improper communications involving a child. To establish the latter offense, it is sufficient to show that the defendant’s communication was for the purpose of moving forward with a scheme of taking indecent liberties with a child.

This assessment of the case is dictated by a plain reading of Code § 18.2-374.3(B). The provision contemplates a communication by the perpetrator with a child (though it does not require it) with the purpose of procuring or promoting the child in an act proscribed under Code § 18.2-370. Therefore, under Code § 18.2-374.3(B), the communication establishes the actus reus component of the crime and the purpose of the communication establishes the mens rea component, both of which must be proved to establish a violation of this subsection.

As to the “purpose” component of Code § 18.2-374.3(B), it may be established by showing that the defendant was procuring or promoting the use of the child with the intent of involving the child in either a then present act or a future act constituting the taking of indecent liberties with children under Code § 18.2-370. To construe Code § 18.2-374.3(B) otherwise, i.e., to require proof of a violation of Code § 18.2-370 in order to establish a violation of Code § 18.2-374.3(B), would require ignoring the full scope of the operative words, “purpose,” “procure” and “promote,” as defined above, which we will not do.

This construction of Code § 18.2-374.3(B) is also consistent with the General Assembly’s clear intent, when enacting this statute, “to protect children from people who would take advantage of them before the perpetrator could commit a sexual assault on an actual child.”

Judgment of the Court of Appeals upholding conviction affirmed.

Dietz v. Commonwealth (McClanahan) No. 160857, Sept. 7, 2017; Court of Appeals; Timothy G. Clancy for appellant; Lauren C. Campbell for appellee. (VLW 017-6-070, 13 pp.)