The government has many reasons for criminalizing the production and distribution of child pornography. First, there is a compelling governmental interest in safeguarding the physical and psychological well being of minors. Second, the distribution of child pornography is intrinsically connected to the sexual abuse of children. Third, distribution of child pornography provides integral economic incentive for its production. Finally, there is little social value of reproductions of lewd sexual conduct of children. These were all reasons outlined in the landmark case of New York v. Ferber in which the Supreme Court established a constitutional foundation for criminalizing child pornography. 458 U.S. 747 (1982).

In addition to government interest in criminalizing child pornography, there is also a public interest. Tragedies involving children are usually gruesome and highly publicized. This commonly leads to greater public outrage and swifter government action. Congress has had little trouble passing legislation against child pornography due to the high levels of public support.

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Due to recent case law developments, whether or not a person will face a minimum 10-year sentence for attempted sexual enticement of a minor depends on how his jurisdiction chooses to define two words: sexual activity. As of now, at least two circuits have chosen vastly different definitions. With the increase of internet related crimes, this question is becoming more and more common. It is likely that until the Supreme Court or Congress sets the record straight, circuits will continue to struggle with how to define this term. This article focuses the Seventh Circuit, which has defined “sexual activity” as requiring physical contact.

Under federal law, child enticement is codified under 18 U.S.C. § 2422(b). This statute prohibits using interstate commerce to coerce a person under the age of eighteen to engage in any illegal “sexual activity” or to attempt to arrange such an encounter. Those found in violation of §2422(b) “shall be fined . . . and imprisoned not less than 10 years or for life.” In order to charge someone under § 2422(b), federal prosecutors must also bring a charge under a state or federal statute that criminalizes “sexual activity” in order to establish the federal offense. This, however, has become difficult for prosecutors to navigate, as it has come to light that Congress has not
defined “sexual activity” within the meaning of § 2422(b).

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