He contends rather that such conduct is not “sexual activity” within the meaning of the federal statute, and therefore that his conviction—which was solely for violating federal law—should be quashed. But that is not argued (it would make the express reference to prostitution in the statute redundant, though many statutes are littered with redundancies), and anyway there is a separate provision for enhanced punishment of sex-crime recidivists. Congress elsewhere has defined “sexually explicit conduct” to include masturbation, but that's in a statute (18 U. (Maybe the defendant in this case could have been charged with attempting to produce child pornography because he asked the supposed minor to masturbate for him on her webcam. The only fondling that Taylor solicited was for “elliegirl1234” to touch herself, apart from him. As the Supreme Court has cautioned, the rule that “a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings to avoid the giving of unintended breadth of the [legislature].” National Muffler Dealers Ass'n, Inc.
This is more than forfeiture; it is waiver; for he emphasizes the breadth of the Indiana statutes in order to bolster his claim that they should not be deemed absorbed into the federal statute. That takes the case out of the typical solicitation scenario where an adult solicits a minor to meet and engage in sexual conduct, Laughner v.
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Code § 35–42–4–5(c)(3) (“fondling in the presence of a minor” is the name of this crime), and “knowingly or intentionally solicit[ing] a child under fourteen (14) years of age [or believed to be so] ․ to engage in ․ any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.” § 35–42–4–6(b)(3) (“child solicitation”). We find nothing in the 1998 amendment or its discussion by members of Congress to suggest a legislative purpose of subjecting less serious sexual misconduct (misconduct involving no physical contact) to the draconian penalties in subsection (b). § 608(a)(7)(C)(iii)(IV), which defines “battered or subjected to extreme cruelty” to include “being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities.” It would be unrealistic to suppose that Congress never uses synonyms—that every word or phrase in a statute has a unique meaning, shared by no other word or phrase elsewhere in the vast federal code. True—but so does “sexual act.” Yet Congress as we know defined “sexual act” as excluding sex acts that do not involve physical contact between two people. While masturbating over the webcam, Taylor also had a conversation with “elliegirl1234” over Instant Messenger, in which he told her to touch and caress her vagina. These legitimate and competing readings render the final element ambiguous.
The defendant does not contend in this appeal that the conduct that he was accused of engaging in did not violate the Indiana statutes. Elsewhere in the vast body of federal statutory law we find scattered references to “sexual conduct,” “sexual act,” and “sexual activity” or “sexual activities,” but the terms seem to be regarded as synonymous, as in 42 U. One might think that “sexual activity” connoted a series of acts rather than a single act: for example, being a sexual predator rather than committing a single act of sexual predation, or being a prostitute. If “sexual activity” is no broader than “sexual act,” it doesn't include solitary sex acts either. § 2256(2)(A)) that criminalizes films and videos of children masturbating. It was also during this typed conversation that “elliegirl1234” twice asked whether she and Taylor would meet, and twice Taylor told her that they could not—in his words, their relationship would remain a “fantasy.”Here, Taylor did not want to meet and have sex with “elliegirl1234,” nor did he seek to meet “elliegirl1234” so he could fondle her. As a matter of statutory construction, when we have terms that are open to competing definitions, we usually define them in reference to the terms they appear with.
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