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Benson (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee. Martin (argued), Attorney, Viniyanka Prasad, Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant. The cases hold (though more often just assume) that the “criminal offense” to which the statute refers can be a state rather than a federal crime, United States v. For a federal statute to fix the sentence for a violation of a broad category of conduct criminalized by state law, such as “any sexual activity for which any person can be charged with a criminal offense,” is a questionable practice. Explicitly defining sexual activity to include producing child pornography was needed only if the term “sexual activity” requires contact, since the creation of pornography doesn't involve contact between the pornographer and another person; this is further evidence that “sexual activity” as used in the federal criminal code does require contact. 3 (7th Cir.2008)—another case factually similar to the present one—the question of the meaning of the term “sexual activity” in section 2422(b) was neither raised by the appellant nor answered by the court. But when there are two equally plausible interpretations of a criminal statute, the defendant is entitled to the benefit of the more lenient one. It has not qualified the term with “actual or constructive,” and if the term “presence” is expanded to include constructive and actual presence, that development should not come from the courts, especially the federal courts. Under Indiana law, a person is guilty of soliciting a minor if the person “solicits” the child “to engage in (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.” Ind. There are two ways to read the statute: does the solicitation have to be for “fondling” or “touching” with the other person, or does simply instructing a person to do so apart from the adult qualify.
The appeal requires us to construe the statutory term “sexual activity”—surprisingly an issue on which there is very little law. To repeat our basic point: if “sexual activity” and “sexual act” are synonymous in Title 18, as they appear to be, then “sexual activity” requires contact because “sexual act,” we know, does. Maybe our interpretation of section 2422(b) is no more plausible than the government's. Indiana's legislature has, however, made “presence” an element of the offense.