Perverse Incentives or: How I Learned to Stop Worrying and Love the Internet Part 1

This episode of 'Deviants' dives into the controversial and complex realm of sexual offense investigations and decoy operations in the US and UK. Hosts Zurc and Danny break down the legal intricacies of entrapment, revealing stark differences in how these cases are handled across the Atlantic. They argue that while the US invests billions in sting operations that often entrap vulnerable individuals, it neglects funding for primary prevention that could keep potential offenders from committing crimes in the first place. This lack of preventive measures results in devastating consequences for families and communities. In contrast, the UK’s legal system, though not perfect, offers more protections against state-created crimes. The episode underscores the need for more balanced approaches to handling these sensitive cases and asks pressing questions about the integrity and priorities of the justice system.

Transcript

Zurc: [00:00:00] I'm Zurc and this is Deviants. The show that interrogates the places where our systems punish, but rarely prevent.

This episode is part one of a two-part series that discusses sexual offense investigations and decoy operations, but we won't have too many graphic details. And Danny has another content note. Danny.

Danny: I'm a practicing solicitor in England and Wales, but I'd just like to stress that, I'm here as a co-presenter with Zurc, of this podcast Not in a professional capacity. So what I'm saying is that although I may share legal information here and, express an opinion about it, nothing that I say should be construed as legal advice.

It's simply my own personal opinion as a presenter of the podcast. [00:01:00] If you're looking for legal advice, then, please, approach a legal professional in whatever jurisdiction you are. And, don't take any advice from me in this context. That's my back covered Zurc!. So where are we going with this?

Zurc: Oh, thanks Danny. You're in a chat and the profile says he's 14 and cute and you hesitate and he keeps writing. Or rather, someone keeps writing. You don't know it, but on the other side is a trained adult, an officer, nudging, waiting and documenting. In some states, this is a lawful sting. In others, the same police conduct could be the textbook definition of entrapment.

The line we draw around government [00:02:00] creating crime changes as you cross state borders in the United States and international borders from the UK to the us and I think Danny, even within the uk between Ireland, Scotland, and England. Is that right? 

Danny: Yeah, particularly, the Republic of Ireland has completely different laws about, which I know very little. In England and largely in Scotland and Northern Ireland as well. The law on this is pretty clear cut.

Zurc: Okay. The first thing, so the first thing that we want to do here is define entrapment. What is it? What does that mean?

Danny: Entrapment is where somebody is enticed or talked into committing an offense . And in the UK it is not what's called a substantive, defense that will automatically [00:03:00] get a case thrown out. The legal focus for successful prosecution challenge is whether the conduct of a state agent, whether that's a police officer or the local authority, was so improper as to constitute an abuse of process or render the evidence inadmissible.

So if somebody is. Enticed into a committing an offense that yeah, they would've committed anyway. Then entrapment is not a legal defense against it. Now, the, yeah, there's a, a very famous case that any anyone studying law these days will know about because it made a substantial difference in the uk and that was the case against the Crown versus Lucely.

Now, if I remember correctly, this was, uh, a guy called Grant Lucely who was [00:04:00] talked into supplying an undercover copper or police officer with heroin, he appealed against this. Saying that he was entrapped by the officer who was informed by what's called a grass in the UK or by another criminal, um, who informed him that he was, he was a drug dealer and the officer went along, but he didn't he actually phoned him on his mobile phone and said, uh, oh, "can you sort me out with a couple of bags?"

Didn't mention heroin. And Grant Lucely said to him, "yeah, sure mate, meet me in such and such place and I'll sort you, man. I'll sort you then." So the copper goes along, grant comes with his couple of bags. They do the deal and the police officer says, "you are nicked mate." [00:05:00] Now. Uh, this this before this case, the whole thing was a bit gray under UK law. There's a bit in the Police and Criminal Evidence Act or PACE from 1984 saying that a judge can exclude evidence obtained by entrapments if it's admission would have an adverse effect on the fairness of the proceedings. And Mr. Lucely who was subsequently convicted of drug dealing took case all the way to what was then known as the House of Lords, confusingly what's known now as the Supreme Court in, uh, in the uk.

And, they actually stated that the conviction was sound because it was an offense that Mr. Lucely would've committed anyway. That he was a habitual drug dealer. He had not been enticed into dealing and, the fact that he was asked for a couple of [00:06:00] bags, quote and turned up with two little packs of heroin meant that she wasn't enticed into doing it.

It was just doing what he would've done anyway.

Zurc: Interesting. So you're saying whether or not they were predisposed. Did the person have a predisposition to committing the crime or did the police officer induce a normally law abiding person to commit the crime? those

Danny: Now, Mr. Lucely was clearly not a, normally, I think he had previous convictions anyway, so he was not a normally, um, law abiding person, and so he wasn't, coerced into, uh, into it. But a lesser known part of this case is that there was, um, a second defendant who is anonymous because he was actually acquitted and he was also a drug dealer, but was [00:07:00] known through for dealing in Class B drugs, cannabis.

Basically. And um, he was asked by the officer to supply heroin and he said, "ah, no man, I don't do the heavy stuff. Nah, few hash cakes maybe, or whatever." And, um, the officer said to him, "oh, go on. Send, give, give us some smack. Yeah, yeah. Get us some smack. Uh, if you do, I've got a good, I've got a good source for cheap cigarettes." The dealer then said, "ah, I'll see what I can do." And ended up supplying the heroin and the law lords in the uk held that the judge was, as he did, entitled to stay the prosecution. So the guy wasn't, uh, acquitted of the offense.

This anonymous person had obviously committed the offense. There was no, you know, there was no doubt about that, but that the officer had used [00:08:00] improper inducements, IE, the contraband cigarettes to persuade the defendant, uh, defendant to commit a more serious crime than he would otherwise have committed.

And so he was not proceeded against in law, and this is, this is crown versus Lucely in, uh, 2001. And that was quite, um, interesting because the clarification about what inducement meant was that shops started becoming open to local authorities and police investigations about serving alcohol and tobacco to underage people.

What it clarified was that if a local authority or the police took a young person who could quite possibly be underage and let them into a shop and successfully buy tobacco or alcohol , then the shopkeeper [00:09:00] or shop itself could be prosecuted for the offense. And this led and it to, um, shops becoming far stricter.

And given that this is when I was a teenager myself, I remember it it became far harder for teenagers to underage teenagers to buy tobacco and alcohol. Uh, because, uh, shops became paranoid about it and introduced a policy called, well, it was originally called Challenge 21 and was later tightened to be challenged 25.

And, uh, the, the staff were instructed that if anyone appeared to be under the age of 25, not under the age of 18, then they should demand proof of age or else they should be 

Zurc: Yeah. 

Danny: Because if they, you know, if a young person who's of questionable age walks into a shop and attempts to buy tobacco or alcohol or any other product, they're not [00:10:00] legally allowed to be supplied with. And the member of staff allows them to buy it, then they open to the full force of the law, because they're not being entrapped into committing an offense, they simply committing an offense that they would in other circumstances have committed.

Zurc: right. Well, okay. But for sexual offenses online, when we're talking about somebody's sexual behavior in private alone, in their room, sitting at their computer, this question of whether or not you were predisposed to engage in this behavior so that's the subjective test.

The subjective test asks if you were predisposed or the objective test, which asks whether the police tactics would induce a normally law abiding person to commit the crime. I feel like that actually becomes kind of important. The federal government in the United [00:11:00] States, and most states in the United States use the subjective test.

They ask, is this person predisposed to commit this crime? Are they a pedophile? Are they a child molester. Okay. But a significant minority used the objective test. They ask whether or not the police tactics would induce a normally law abiding person to commit the crime.

And that includes California, gigantic state, Michigan and Utah. And it centers on police conduct rather than the defendant's history. We're talking about the tactics of the police versus whether or not a person was predisposed. Those are pretty different tests there. And, decoy stings, decoy, minor stings where an adult officer pretends to be a teenager are by and large, widely authorized in the US And I [00:12:00] guess in federal law, right?

Courts have repeatedly held that the government doesn't need a real child. For an enticement conviction, interacting with an adult decoy can be enough. And here in Oregon where I am that's like written into law. There's an explicit, there doesn't need to be a re real child Interacting with a fake child is enough to break the law.

And this isn't rare. I'm not talking about something that happens once in a blue moon, okay. In the US at least. I'm talking about the internet Crimes Against Children, department of Justice, ICAC. Program. Okay. For 2024, reported 203,000 investigations, and over 12,000 arrests across the 50 states scale like that shapes lives.

Okay. It [00:13:00] shapes people's lives and understanding of the world around them. It shapes court dockets, it shapes public narratives. Okay? And what I want to ask is, what do these different legal lines do in real life? Who gets caught because of these shifting boundaries around, what entrapment is and why?

Why is it that we are so willing to fund stings? But we don't have any funding for the primary prevention of sexual abuse that might keep people from crossing that line at all?

Danny: There is a difference in the US that, um, entrapment by a law enforcement officer, if it can be proved, is an absolute defense and can result in acquittal 

Zurc: That can't happen in the uk?

Danny: It can't, no, it, it's not an [00:14:00] absolute defense. It can result in a stay of prosecution so that, uh, the case isn't acquitted, but it's not proceeded with, or it can result in a lesser sentence.

But no, it's not an absolute defense.

Zurc: I guess it's just, when you're talking about predispositions Okay. And sexual behavior, you're not talking about drugs. You're talking about somebody's private, intimate, sexual behavior that they may not have talked to anybody else about in their entire life that they have been, with drugs, if you're engaging in, even the most innocuous drug alcohol use.

Okay. Or it's not innocuous, actually, it's pre, it can be really dangerous. but even with alcohol, which is legal everywhere, as a drug, okay, if I start drinking when I am 13 years old.

Okay. And there's no way for me to [00:15:00] get help. And I am 35 and I have been drinking alcohol since I was 13, 14 years old every day. And then a police, a po. Can you imagine a police officer come up to me and say, Hey, do you want to buy a fifth? Okay. Obviously, yeah, like, I don't mean to be, like, there's no way to get help. Like I, I am just in, in this fake scenario, fake world that I'm describing to you. We don't have any alcohol abuse prevention programs.

There's no one even recognizes that alcohol abuse is a problem. You got a guy that's been drinking since he was 14 years old. A cop comes up and says, Hey, I got a fifth. Do you wanna buy it? And doesn't say that they're a cop and just, obviously, yeah, but so like, it, it's just that scenario is so, if we try to map alcohol or drugs onto the sex offense universe of things, it's so absurd the way that we're [00:16:00] handling the sex offense side of things compared to the way that we're handling the substance use side of things.

It's almost like we've taken all the law laws from substance use and applied them to the sex offense universe of things. But we haven't taken any of the prevention, any of the learning that we've done, understanding how people's brains work, being trauma informed, trying to think through creative ways to get people to get help.

And so we just didn't take any of that. We just took the law, we just took the prosecution. We just took the punishment. And I think it's hurting a lot of people in the us. I think it's really like families, and, and when you look at it, it's, it's, it's really scary and, your entrapment odds.

What counts as government creating crime, is actually changing from jurisdiction to jurisdiction. And a chat log can mean two totally [00:17:00] different trials depending on where you stand. Okay? And, you look at Utah and Utah, we see this objective lens. Okay? What they're gonna say is entrapment occurs depending on the police conduct.

Okay? And, and very recently there have been cases in online decoy stings. That get upheld and affirmed, the conviction gets ac affirmed. There's no entrapment as a matter of law because when we apply this lens, the tactic, what was inducing someone who wouldn't normally be law abiding, but when you're talking about sexual behavior, like we're talking about, again, we're talking about something where that person's sexual development began when they were 13 and they're getting caught when they're like 35, 45 years old.

They've had no intervention their entire life. They've had no way to get help. They've been scared, [00:18:00] they've been alone, they've been suffering, and they've desperately wanted help for a long time. And then we're saying that person isn't normally law abiding and so therefore this isn't entrapment and it's just they don't have any way to get help.

How do you know that? How do you know they're not a, how do you know they wouldn't have tried to get help if there was a way?

Danny: Well, some people would say, I wouldn't personally, but some would say they get help once they've been caught and once they've been convicted, and how can we have, uh, detected what they were doing before then?

Zurc: That's a good point, but I wanna remind you of the numbers that I read earlier. Okay. 203,000 investigations over 12,000 arrests. Danny, that's billions of dollars. That's teachers salaries. That's their raise. That's the raise for our school teachers, our elementary [00:19:00] school, our primary school teachers, our high school teachers, our middle school teachers.

That's their raise out the window. Gone. That's what we did an up for. That's the, um, that's a raise for police officers, better equipment, safer practices, trauma-informed training. That's gone. We just arrested 12,000 people. That's the, these sentence, the sentencing in the United States for this crime is not a joke.

It is not funny. It's not cute. It's, it is, it annihilates people's life. It puts them in prison for a very long time. I'm talking decade plus.

That's expensive. 

Danny: Uh, the UK is different in two ways here. First of the the police thing, or, law enforcement sting is far less common.

Zurc: Yeah,

Danny: It's really only used.

Yeah. Oh yeah. Mo most of the convictions for what's commonly known as online grooming [00:20:00] in the UK are through like ordinary citizens and the

the bar for professional behavior for a member of the public is far lower than it is for law enforcement officers.

Yeah. 

Zurc: That's a really good point. So who's in the crosshairs, right? Like who's getting caught? Okay. And in the US this is a really interesting question because the US is very concerned about, or I'm sorry, I shouldn't say the us at least in my state, in Oregon, I ad I admire Oregon because it it, it does do, it's not perfect, but it does try to suss out where there's like overrepresentation.

Of certain groups and classes of people. And when you look at who's in the crosshairs of these sting operations, okay, some pe some classes stand out. Okay? L-G-B-T-Q people, okay? Stand out as a class of people [00:21:00] that are, crucial to understand when you're looking at the entrapment lines and how they're sort of policed.

And academic reviews and major market reporting show that these operations continue in parts of the country and carry, severe downstream consequences that negatively affect gay and bisexual men 

Danny: Yeah. 

Zurc: particular, okay? Disproportionately okay. And civil rights cases and advocacy accounts, detail, these sort of like mass sweeps with sustained convictions.

But lasting harm. I'm talking outing people that are parents that are fathers. Okay. They're outing like, da like dads. Okay. With young children, we're talking job loss. And in some jurisdictions talking, [00:22:00] even like sex offense, registration tied to lewd conduct. And once you register as a sex offender, Danny, you can't even be a parent to your child anymore.

The state will get involved to literally forcibly separate the man and steal, like literally rob their right to parent their child. And the pattern is the point. Okay. Civil rights cases and advocacy accounts, detail, these sort of like mass sweeps with few sustained convictions.

So they're not convicting very many people, but they're sweeping up a big number of them pretending to be the police, pretending to be these children online. And they're contacting CPS, okay? They're contacting the department of Human Services and they're getting the child welfare person out to the home.

Okay? And the moment that happens, we're talking dads like parents with young children getting outed. Okay. Losing their job. Okay. And in some cases, when there is a [00:23:00] conviction sustained, they could even go on the registry. And once they go on the registry, the state can forcibly separate the parent from their children and deny them the right to be a part of their child's life.

And that's just, when we're talking overrepresentation among L-G-B-T-Q people, we're talking about a lot of gay parents there, man. Okay. That's like gay dads, that's like dads who've spent their entire life and they have, maybe they have a sexual behavior problem that's been going on since they were a child and they haven't been able to get help and they're scared and they're alone and they have nowhere to go.

Okay. And somebody shows up on the internet, okay. And says, oh, hey, I got some interesting pictures. Or I don't, I don't know how it works. Oh, hey, I got some interesting pictures. You know, here, let me just send these to you. Or something like that. And the, the dad says, oh, you know, in a moment of weakness, [00:24:00] maybe they've had a beer.

And they say, yes boom, child welfare, police, FBI arrests registry. That child doesn't have two parents now they have one parent and they have another parent that's humiliated and they have to go to school. Okay. And all their friends know that's not how we wanna operate as a society. Okay. I think the other group we're talking about are these people with disabilities.

That's the other one that I really, that I care personally, I care about a lot as a person with a disability. Okay. And these sting tactics exploit people with intellectual or developmental disabilities. Okay. And there've been groups that have called on the DOJ, like the Arc. Okay. For oversight. And it's not a theoretical concern.

Okay. Suggestibility desire to please and communication differences for somebody with a disability, for someone like myself, like I [00:25:00] have those, like I'm reading this, you know, I'm reading this script and I'm thinking of myself like, no, like, wait a second. I have some issues with, I wanna, I'd like, like desire to please and suggestibility and communication differences.

Like, I mean, I'm not engaging in any illegal, illegal behavior, but I can see myself in this and I could imagine a world, you know, again, people don't talk about their private sexual behavior, especially people with disabilities. So they started developing whatever behavior, the law is claiming they were predisposed to engage in or that they would normally engage in.

They had started that when they were really young and they couldn't get help. Okay. They have a disability. I mean, it's just, that's not, and again, that's the teacher's raise at your school. That's your new sport equipment for your school. That's your, safety training and your trauma aware and trauma, trauma-informed practices in your [00:26:00] police department out the window because you're spending all the money to arrest these people.

'cause they could never get help

Danny: Yeah, I think, yeah, in the uk, although as I said, entrapment isn't an absolute defense against conviction. There is, when it comes to the police and state agents as in the crown versus Lucely case, a protection of the integrity of the criminal justice system from the misuse of state power. And that is a legal basis for a state of prosecution. Yeah. And the key test,

Zurc: Do you know if there's cases, are there cases of sexual offenses where there's like cops pretending to be kids in the uk? 

Danny: Not in the uk, 

Zurc: There it is. Yo, that doesn't happen. That's interesting. So, you know, all our listeners, I want to, I wanna just, let's repeat that. So I just want to clarify, in the UK I'm just, what I'm asking is, does it [00:27:00] happen that a police officer gets onto his computer, pretends to be a 13-year-old girl, and then talks to adult men

Danny: No, because one of the key tests to entrapment is whether the officer went beyond, offering an unexceptional opportunity. And, so an unexceptional opportunity would be a kid in a chat room. Yeah. But if they instead lured, incited or pressurized the defendant, so if someone comes along and says, Hey, if a copper comes along and says, Hey, I like kids your age, or I am I'm your age, would you like to meet up?

Then the likelihood is that the case would be stayed, the prosecution would be stayed. It wouldn't be acquitted. It would, but there would be no.

Zurc: Oh, that's so interesting. So in the uk, the police will pretend to be kids, to catch 

Danny: I don't [00:28:00] even know if that's happened. The legislation states that the courts must prevent the state from prosecuting state created crime. So if, uh, an officer posed online and, and tried to groom a child and or grow or try posed as a child and tried to groom an adult effectively and met up, that would be a state created crime.

Zurc: That concludes part one of our two part series discussing sexual offense investigations and decoy operations in the US and the uk. We'll be back next week to talk about manufacturing criminals, a book by Bonnie Burkhart and the Devilishly handsome Stephen Coker that dives into more detail into this complex and nuanced problem.

This is Danny and Zurc, and we're deviants and we'll see you then. Take care.