In the spring of 1978, the Federal Bureau of Investigation established an undercover organization titled Abdul Enterprises. The organization allegedly represented two “Arabs” of considerable wealth interested in investing in the United States. The major figure in “Abscam” was convicted confidence man Melvin Weinberg, who had been given a sentence of probation to charges of mail and wire fraud in exchange for assisting the FBI. Weinberg “played” the role of financial adviser while various agents held other posts in the fictitious Abdul organization. Agent Anthony Amoroso assumed the role of president. Abdul Enterprises contacted various business people in New Jersey who were told that the firm would pay $25,000 to a member of the U.S. Congress who was willing to provide assistance with matters such as the Arabs’ immigration into the United States. This eventually came to the attention of Eugene Ciuzio who, in turn, contacted Congressman Richard Kelly. Kelly stated that he would be pleased to assist “the Arabs,” particularly in the event that they invested in his district. He also noted that he had no problem with the fact that Ciuzio would likely receive a substantial fee. Kelly shared with Ciuzio that he had substantial personal financial debt. Ciuzio then met with Weinberg and Amoroso who assured Ciuzio that “the Arabs” would invest in Kelley’s district so as to provide an explanation for the Congressman’s willingness to assist them and that “the Arabs” wanted to pay Kelly $25,000 to insure that he would assist them in the future. In December 1979, Ciuzio again met with Kelly and explained that the $25,000 would be paid in anticipation of immigration problems that would require special congressional legislation to be introduced by Kelly. In return, Kelly would receive an additional $125,000 and Ciuzio $100,000. Kelly stated that he would go to the meeting and that he did not want any money, this was merely part of his job. Kelly, Ciuzio, and the two New Jersey businesspeople who first contacted Ciuzio then met with Amoroso and Weinberg at Abdul Enterprises in Washington D.C., in January 1980. Weinberg first talked with Ciuzio, who insisted that the money be given to him. Weinberg agreed so long as Kelly acknowledged that the money was in exchange for Kelly’s assistance. Kelly and Amoroso then met privately and discussed the Arab’s desire to have “friends” in Congress and plans to invest in Kelly’s district. Amoroso clarified that Kelly would be paid $25,000 and that the rest of the money would be transmitted following the introduction of the immigration legislation. Kelly resisted and stated that he was not involved in the financial arrangements and thought that only Ciuzio would be paid. Amoroso then received a call from a U.S. attorney who was monitoring the meeting complaining that Kelly was “being cute” in insisting that the money be paid to Ciuzio. Amoroso then continued the discussion with Kelly. Kelly confirmed that he understood the payment arrangement, but reiterated that he thought that the money would go to Ciuzio. Amoroso explained that giving the money directly to Kelly would avoid witnesses and protect the Congressman. Kelly agreed and stuffed the $25,000 into the pockets of his suit. Kelly was charged with bribery. Will Kelly prove successful in claiming entrapment under the subjective, objective, or due process tests? For an account of the so-called Abscam investigation, see United States v. Kelly, 707 F.2d 1460 (D.C. 1993).

         United States v. Kelly, 707 F.2d 1460 (D.C. 1993). A federal district court, while fully aware of the difficulty of investigating corrupt public officials, dismissed the indictment against Kelly based on the conclusion that the FBI conduct reached a “demonstrable level of outrageousness.” This decision was reversed by the Federal Court of Appeals. The FBI had reasonable suspicion prior to the January 8th meeting that Kelly would consider an illegal bribe. As for the utilization of an “admitted confidence man, Melvin Weinberg,” the use of Weinberg was required to lend the operation an atmosphere of legitimacy. 

            The Federal Court of Appeals stressed that Kelly readily agreed to assist the Arab visitors and was aware that they would pay substantial amounts of money to Ciuzio and would invest in his district. These investments would indirectly assist Kelly by assisting his re-election and violated the bribery statute. Kelly’s main concern at the townhouse on January 8, was the manner in which the bribe would be paid rather than with whether it would be paid. Kelly was not subjected to multiple offers. His conversations with Kelly can be “fairly characterized only as a single offer of a corrupt proposal.”

         Kelly would not be successful under the predisposition test since he had little resistance to the offer of an investment in his district or to a financial bribe. It also would be difficult to contend that the government conduct, however objectionable, violated the objective test. The scheme was unlikely to implant a criminal design into an otherwise innocent mind. As noted in the court’s opinion, Abscam was “no more than an ‘opportunity for the commission of crime by those willing to do so.’”

         In summary, Abscam did not significantly differ from “an undercover drug or fencing operation offering to buy from all who appear at its door.” The type of “government involvement in crime does not violate principles of due process.”  

            The defendant, Peter Werner was visiting Kenneth Netterville when a car driven by the deceased, Tarbell Travis, sped down the street, swerved to miss a parked car, and collided with Netterville’s automobile. Travis then drove off at a high rate of speed. Netterville gave Werner a pistol and both gave chase in their own cars. Werner encountered Travis and his passenger, John Christensen, inspecting the damage to Travis’s car. Werner exclaimed that “you hit my friend’s car. I ought to shoot you.” Travis allegedly “looked crazy” and challenged Werner to “shoot him.” Werner testified that he did not know whether Travis was armed and feared for his life and shot and killed Travis. The defense asked the judge to permit a psychiatrist to testify that Werner’s half-Jewish father and Jewish grandmother had been interned and survived Nazi concentration camps. Other relatives were not so fortunate and were exterminated. The defense explained that the psychiatrist would testify that Werner had a subconscious motivation to defend himself and to achieve justice in the world as a result of the repression of his family. There was also evidence that Werner had told the arresting officer that he was ashamed that his father, who had survived the Holocaust, would be forced to once again experience the internment of a family member. Should the court permit the defendant to rely on the defense of the “Holocaust Syndrome” to establish that the defendant reasonably believed that he was acting in self-defense or to reduce his liability for premeditated and intentional murder to a lesser degree of murder or voluntary manslaughter? See Werner v. State, 711 S.W.2d 639 (Tex.Crim.App. 1986).

         Werner v. State, 711 S.W.2d 639 (Crim.App. 1986). The defendant’s paternal grandmother was Jewish, his paternal grandfather was Protestant. Following his grandfather’s death in 1941 or 1942, his grandmother and half-Jewish father and other members of his family were placed in concentration camps. Both his father and grandmother survived and he was raised surrounded by stories of the Holocaust and concentration camps. He apparently was determined that he would not become a victim like the members of his family. As a result, the defendant argued that in light of his background that he reasonably believed that he was acting in self-defense. The trial court rejected psychiatric testimony regarding the defendant’s experiences growing up as the child of a Holocaust survivor on the grounds that people come from various backgrounds and that the law can only function effectively and fairly by holding individuals to a single reasonableness standard. The Texas Court of Criminal Appeals pointed out that the defendant did not contend that he saw a weapon in the possession of the deceased and that the defendant as a result “could not have . . . reasonably believed it necessary to shoot the deceased in order to defend himself against the deceased’s use or attempted use of deadly force.” There is no indication that a reasonable person in the defendant’s background could not have retreated from the struggle and avoided the employment of deadly force. The defendant, while clearly affected by the Nazi genocide, was not able to demonstrate that he had acted as a result of the “Holocaust syndrome.”

         Thirteen year-old B.W. was arrested for soliciting prostitution. A background check revealed that B.W. was thirteen years of age and a new charge was filed under the Family Court Code which governs juvenile proceedings. A psychologist’s report stated that B.W. had a history of sexual and psychological abuse and had been deprived of love and emotion and was living with a 32 year-old male. Her probation report recorded convictions for an assault that causes bodily injury and for possession of a controlled substance. She also had pulled a knife on her school principal and threatened to kill him and assaulted a fellow resident of a group home. Her caseworker testified that she was “violent” and a “chronic runaway.” B.W. had been placed in foster care of Child Protective Services (CPS) and had run away from a group home and was missing or over a year before her arrest for prostitution.

            B.W. was declared a delinquent by the juvenile court for committing the offense of prostitution. Under the Texas Penal Code, a person commits prostitution if the person "knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee. B.W. pled guilty and was sentenced to eighteen months probation. B.W. appealed the delinquency declaration on the grounds that children under seventeen in Texas in most instances are considered incapable of consenting to a sexual act. See Re B.W., 113 S.W.3d 818 (Tex. 2010).           

IN RE B.W., 313 S.W.3D 818 (Tex. 2010)      Opinion by: O’Neill, J.

Issue

          In this case we must decide whether the Legislature, by its wholesale incorporation of Penal Code offenses into the juvenile justice provisions of the Family Code, intended to permit prosecution of a thirteen-year-old child for prostitution considering its specific pronouncement that a child under fourteen is legally incapable of consenting to sex with an adult.
 

Facts

B.W. waved over an undercover police officer who was driving by in an unmarked car and offered to engage in oral sex with him for twenty dollars. The officer agreed. When B.W. entered the officer's car, he arrested her for the offense of prostitution. B.W. was originally charged in criminal court, but when a background check revealed that she was only thirteen the case was dismissed. Charges were then refiled under the Family Code, which governs juvenile proceedings.
      Before trial, a State psychologist examined B.W. During the examination, B.W. related a history of sexual and physical abuse. The psychologist concluded that B.W. was "emotionally impoverished, discouraged and dependent." The psychologist noted that the report should be viewed with caution given that some of B.W.'s statements were inconsistent with probation records, but expressed concern over B.W.'s untreated substance abuse and her report that she had been living, and having sex, with her thirty-two-year-old "boyfriend" for the last year and a half.
    At trial, pursuant to an agreed recommendation, B.W. pleaded true to the allegation that she had "knowingly agree[d] to engage in sexual conduct . . . for a fee." Following her plea, the trial court found that B.W. had engaged in delinquent conduct constituting a Class B misdemeanor offense of prostitution as defined by section 43.02 of the Penal Code, and placed her on probation for eighteen months. The trial court denied B.W.'s motion for new trial and granted her permission to appeal. The court of appeals affirmed. We granted B.W.'s petition for review to consider the challenges she raises to her adjudication of delinquency for the offense of prostitution.
 

Reasoning

         The statute proscribing prostitution is found in the Texas Penal Code, which does not generally apply to juveniles under the age of seventeen. Instead, the Legislature made a blanket adoption of the Penal Code into the Texas Family Code, which provides that the juvenile justice courts have jurisdiction in all cases involving delinquent conduct of children between the ages of ten and seventeen. The Family Code defines "[d]elinquent conduct" as "conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail." One of the purposes of placing such jurisdiction in civil courts under the Family Code is to "provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions."
     The offense of prostitution is punishable by confinement in jail, and therefore falls under the Family Code's definition of "delinquent conduct." Under the Texas Penal Code, a person commits prostitution if the person "knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee." "A person acts knowingly, or with knowledge, with respect to the nature of his conduct . . . when he is aware of the nature of his conduct." Thus, "knowing agree[ment]" suggests agreement with an understanding of the nature of what one is agreeing to do. B.W. contends the Legislature cannot have intended to apply the offense of prostitution to children under fourteen because children below that age cannot legally consent to sex. See TEX. PENAL CODE § 22.021 (criminalizing sex with a child irrespective of consent). The State, on the other hand, claims that consent by a child under the age of fourteen is a shifting concept designed to protect victims of sex crimes rather than juvenile offenders like B.W. We agree with B.W.
     The notion that an underage child cannot legally consent to sex is of longstanding origin and derives from the common law."The conclusive presumption of inability to consent is not of recent vintage. It has been with us at least from the reign of Queen Elizabeth of England (1558-1603)." While at the time of Blackstone this age was set at ten, every state in the United States has raised this age by statute. Texas follows the majority of states which have established a two-step scheme that differentiates between sex with a younger child and sexual relations with an older teen. The rule's underlying rationale is that younger children lack the capacity to appreciate the significance or the consequences of agreeing to sex, and thus cannot give meaningful consent. As compared to adults, juveniles have a "'lack of maturity and an underdeveloped sense of responsibility'. . . [they] are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure."                  
     Our Legislature has incorporated this rationale into the Texas Penal Code. In enacting the sexual assault statute, section 22.011 of the Texas Penal Code, the Legislature made it a crime to intentionally or knowingly have non-consensual sex with an adult, or sex under any circumstances with a child, a person under seventeen. There are defenses available if the child is at least fourteen, such as when the accused is no more than three years older than the child, or when the accused is the child's spouse. In those instances, the child's subjective agreement or assent becomes the main issue in determining whether or not a crime has been committed. There are no such defenses, however, when the child is under fourteen, irrespective of the child's purported willingness. Thus, in Texas, "a child under fourteen cannot legally consent to sex."
     The Legislature has passed a number of statutes providing greater protection against sexual exploitation for underage children. For example, promotion of prostitution involving an adult, without the use of force, threat, or fraud, is a misdemeanor. Compelling a child under eighteen to commit prostitution, however, is treated as a crime equivalent to using "force, threat, or fraud" to compel an adult to commit prostitution, and is a second-degree felony¹ Similarly, sexual assault of a child under fourteen is considered "aggravated sexual assault" and is subject to the same consequences as the rape of an adult involving serious bodily injury or other aggravating circumstances. In passing these statutes, the Legislature has expressed both the extreme importance of protecting children from sexual exploitation, and the awareness that children are more vulnerable to exploitation by others even in the absence of explicit threats or fraud.
     It is difficult to reconcile the Legislature's recognition of the special vulnerability of children, and its passage of laws for their protection, with an intent to find that children under fourteen understand the nature and consequences of their conduct when they agree to commit a sex act for money, or to consider children quasi-criminal offenders guilty of an act that necessarily involves their own sexual exploitation. In the context of these laws, and given the blanket adoption of the Penal Code into the Family Code, it is far more likely that the Legislature intended to punish those who sexually exploit children rather than subject child victims under the age of fourteen to prosecution.   

              Given the longstanding rule that children under fourteen lack the capacity to understand the significance of agreeing to sex, it is difficult to see how a child's agreement could reach the "knowingly" standard the statute requires. Because a thirteen-year-old child cannot consent to sex as a matter of law, we conclude B.W. cannot be prosecuted as a prostitute under section 43.02 of the Penal Code.
    The dissent contends Texas' statutory rape statutes do not render all minors under the age of fourteen incapable of consenting to sex with an adult as a matter of law. In the dissent's view, the statutes merely eliminate consent as an affirmative defense to the offense of child rape. But the very purpose of the Legislature's abrogation of the consent defense was its determination that underage children cannot meaningfully consent to sex. While no statute explicitly states that children under fourteen are unable to provide consent for all purposes, the inability of children to consent to sex as a matter of law is both part of the common law and a necessary inference from section 22.021 and the other statutes dealing with sexual exploitation of a child.                  
     The dissent concedes that children below a certain age lack the mental capacity to consent to certain actions, and that the law reflects that inability to consent. Nonetheless, the dissenting justices would themselves allow children as young as ten to be prosecuted for prostitution. By contrast, our conclusion that children under a certain age lack the legal capacity to consent to sex rests on the legislative policy determination expressed in the statutory rape statute that children under the age of fourteen are legally incapable of consenting to sex. Courts around the country have long recognized that children lack the experience and mental capacity to appreciate the nature and consequences of sex, and therefore cannot knowingly consent to sex. I cannot believe, for example, that any responsible adult seriously thinks a six-year-old legally could consent to sex. Children of that age always lack the experience and mental capacity to understand the harm that may flow from decisions of this type. They may unwittingly "consent" to something that can ruin their lives, jeopardize their health, or cause emotional scars that will never leave them. I think most concerned adults and experts in the field would agree that this lack of prudent foresight continues in youths well into the teen years. By unequivocally removing the defense of consent to sexual assault, the Texas Legislature has drawn this line at the age of fourteen.            
     Nor is this the only area in which the law recognizes that minors of a certain age have a reduced or nonexistent capacity to consent, no matter their actual agreement or capacity. A minor under the age of sixteen cannot consent to be married without a court order finding the marriage to be in the child's best interest, no matter how mature the child appears or how earnestly the child might mouth the words "I do." Similarly, a minor's contracts are voidable at the minor's election, even if the minor knew what he or she was doing and innocent people are prejudiced. When it comes to a child under fourteen consenting to sex, the Legislature has made it clear that the child's consent is void rather than voidable. To engage in an individualized determination of a child's capacity to knowingly consent to sex is contrary to the Legislature's pronouncement that all minors under fourteen lack the capacity to give that consent. The Legislature closed this door with regard to minors over the age of fourteen when it abolished the defense of promiscuity to sexual assault and indecency with a child, and has never opened this door with regard to children under the age of fourteen.
     The State posits a number of arguments in an attempt to show that juveniles may engage in consensual sex in certain circumstances, including the fact that children over fourteen may legally engage in sex with a person within three years of their age, and that children may legally engage in sex with a spouse. However, most of these arguments have to do with children aged fourteen and over, and do not apply in this case where the defendant is under fourteen. ³
      Additionally, while the Code of Criminal Procedure does provide certain exemptions to mandatory sex-offender registration for offenders under the age of nineteen when the victim was over thirteen and the conviction was based solely on age, this speaks more to the treatment of teenage sex offenders than to the ability of a child under the age of fourteen to legally consent to sex. While both the dissent and the State argue that this demonstrates that a minor under fourteen may consent to sex, they have confused the ability to factually agree to sex, which can have legal relevance in the treatment of the offender, with the legal capacity to consent, which is necessary to find that a person "knowingly agreed" to engage in sexual conduct for a fee.
      We do not agree that our decision today infringes on prosecutorial discretion. The Legislature has determined that children thirteen and younger cannot consent to sex. This necessitates the holding that these children cannot be tried for prostitution. If this holding infringes on the prosecutor's discretion, then so too does every decision upholding a legislative or constitutional limitation on the ability of a prosecutor to bring a case.
      We also reject the State's argument that exempting children under fourteen from prosecution for prostitution will somehow undermine the State's ability to protect children and encourage the sexual exploitation of minors. The State claims that under our interpretation, an adult male who agreed to pay a thirteen-year-old girl for sex could claim that he did not commit the offense of prostitution because the sex would not have been consensual. But section 43.02 expressly allows for the prosecution of a person who "solicits another in a public place to engage with him in sexual conduct for hire," regardless of the solicitee's consent. Similarly, pimps and other sexual exploiters of children may still be prosecuted for compelling prostitution and other crimes of sexual exploitation even though the child herself may not be prosecuted for prostitution.  
     Similarly unavailing is the State's argument that our reading of the law will encourage pimps to seek out young children because they would be immune from criminal liability. The sexual exploitation of children under fourteen is already a crime. It is unclear how the prosecution of a child for prostitution would serve as any further deterrent, especially in the case of children on the streets. Most of these children are controlled by their pimps through a combination of emotional and financial security mixed with violence and drugs, and are unaware that the treatment they are receiving is against the law.       
       The State has broad power to protect children from sexual exploitation without needing to resort to charging those children with prostitution and branding them offenders. Section 261.101 of the Family Code requires a person to report to a law enforcement agency or the Department of Family and Protective Services if there is cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect. The department or agency must then conduct an investigation during which the investigating agency may take appropriate steps to provide for the child's temporary care and protection.
      The dissent suggests that our decision bars the State from providing treatment, confinement, probation, counseling or any other rehabilitation, implying that the juvenile justice system is the only portal to such services for children like B.W. That is simply not true. Even absent a report or investigation, a law enforcement officer may take possession of a child without a court order if a person of ordinary prudence and caution would believe there is an immediate danger to the physical health or safety of the child, or that the child has been the victim of sexual abuse. Presumably a thirteen-year-old girl walking the streets offering sex for money would meet this standard. The State may also seek a court order to take possession of a child to protect the child's health and safety. Thus, the suggestion that lack of criminal prosecution would somehow mean the State would have no option but to put the exploited child back on the streets is entirely without merit. While in CPS custody, a child has access to a full range of counseling and treatment options, including 24-hour supervision and one-on-one monitoring. CPS provides these services within a purely rehabilitative setting, and without the permanent stigma associated with being adjudged a prostitute. Furthermore, while the trial court in this particular case may have exercised good judgment in adjudicating treatment and rehabilitation, there is no guarantee that another judge would do the same, nor would the dissent's opinion protect a thirteen-year-old, or even a ten-year-old, from being subjected to a harsh and punitive sentence.
     The dissent emphasizes B.W.'s "long and sad history of delinquent behavior," presumably suggesting that her bad behavior is indicative of her mental capacity to commit this crime. The United States Supreme Court has recognized that juveniles "are more vulnerable or susceptible to negative influences and outside pressures," and that "[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Notwithstanding that fact, B.W.'s behavior is sadly in keeping with many children who have been abused or neglected at home. This dysfunctional family life leads to problems with discipline and fighting, and often results in the child running away, just as B.W. did. These children are also the ones most at risk of being victimized by pimps and exploited as prostitutes, and are the most in need of serious treatment. If B.W.'s prior CPS temporary placement was inadequate to treat her, then that placement should be reviewed and her level of care increased.
    Children are the victims, not the perpetrators, of child prostitution. Children do not freely choose a life of prostitution, and experts have described in detail the extent to which they are manipulated and controlled by their exploiters. Courts, legislatures, and psychologists around the country have recognized that children of a certain age lack the mental capacity to understand the nature and consequences of sex, or to express meaningful consent in these matters. Drawing a distinction between consensual sex with a child and exploitation simply blinks reality.

Holding
     Our Legislature has passed laws recognizing the vulnerability of children to sexual exploitation, including an absolute prohibition of legal consent for children under fourteen. In the absence of a clear indication that the Legislature intended to subject children under fourteen to prosecution for prostitution when they lack the capacity to consent to sex as a matter of law, we hold that a child under the age of fourteen may not be charged with that offense. Accordingly, we reverse the court of appeals' judgment, and remand the case to the trial court for an appropriate disposition.
 

Wainwright, J. joined by Johnson, J., and Willett, J. dissenting

         The Court holds that a thirteen-year-old minor cannot be adjudicated under the Juvenile Justice Code for prostitution, despite a clear statutory charge to address such distressing conduct by treatment and rehabilitation of the minor and protection of the public through the juvenile justice system. The text of the Juvenile Justice and Penal Codes does not support the Court's result. The language of the prostitution statute includes thirteen-year-olds, and the Juvenile Justice Code makes them subject to juvenile delinquency proceedings for committing that offense; and neither the Court nor B.W. point to any language in the Juvenile Justice or Penal Codes that changes the prostitution statute to mean something other than what it says. The Court attempts to justify this infirmity through a narrow exception found in a criminal statute unrelated to the provision proscribing prostitution, even though the circumstances of this case support the juvenile court order of rehabilitation and treatment.           
      The minor's probation report states that B.W. was convicted "for Assault Causes Bodily Injury" and "for Possession of a Controlled Substance." She also pulled a knife on her school principal, threatening to kill him, and seriously assaulted a fellow resident of a group home. Her caseworker explained that she is "violent" and a "chronic runaway." Placed in foster care by Child Protective Services, she ran away from a group home in Harris County the day after her placement there and was missing for over a year before an undercover police officer arrested her for soliciting sex for a fee. After B.W. pled true to commission of prostitution, the juvenile court judge found that she had engaged in delinquent conduct (prostitution) and that rehabilitation was in her best interest and necessary to protect the public. The court ordered probation, treatment, and counseling for the wayward teen under the auspices of the Harris County Juvenile Probation Department, and the court of appeals affirmed the ruling. This Court, however, overturns the treatment order and bars juvenile courts from ordering treatment, confinement, probation, counseling, or any other rehabilitation under the Juvenile Justice Code for minors of age thirteen who commit the charged sex crime.
     The misguided result of the Court's attempt to help has turned the juvenile justice system's rehabilitative objective on its head. The Court sends B.W. back to CPS and the temporary placement that has already proven, in her case, inadequate to treat her. The Court also infringes prosecutorial discretion in which district attorneys exercise judgment in deciding whether to bring teenage offenders to the juvenile justice system for treatment or to decline those proceedings in favor of other options such as CPS. Announcing this change in state policy, the Court forgets that "in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." The Legislature established the juvenile justice system for these types of circumstances and has not indicated an intent to depart from that system when a minor is thirteen. And the Court blanketly decides that the juvenile justice system is never available to rehabilitate thirteen-year-olds who commit sex crimes because it proclaims that all thirteen-year-old teens are legally incapable of consenting to sex.
     The Court provides a short factual background, but there are additional pertinent facts that evidence B.W.'s need for the treatment and rehabilitation that the juvenile court ordered. Petitioner B.W. was born in April 1993 and has a long and sad history of delinquent behavior. In 2004, the State placed B.W. in CPS custody. Described by her caseworker as "violent" and a "chronic runaway," B.W. was transferred among three CPS placements in less than a year. In October 2005, she ran away from her third placement at a group home facility. B.W. was missing until January 12, 2007, when an undercover police officer arrested her for criminal prostitution—offering to engage in oral sex with him for twenty dollars. B.W. claimed to be nineteen years old, and the authorities mistook her for an adult. Upon discovering she was thirteen, the State dismissed the case against her in the adult, criminal system and re-filed it in the civil, juvenile system, in which adjudications focus more on rehabilitation of delinquency rather than prosecution for crimes. . ."The philosophy was that, whenever possible, children should be protected and rehabilitated rather than subjected to the harshness of the criminal system because children, all children are worth redeeming."
      B.W.'s probation report and psychological evaluation were admitted into evidence during her juvenile proceedings. Her CPS caseworker warned in the probation report that B.W. "will run[]away if returned to CPS custody." The caseworker described two particularly disturbing, violent incidents: one in which B.W. pulled a knife on her principal and threatened to kill him, and another where she repeatedly bashed a classmate's head into the ground until it was bloody. Her probation report also revealed a history of legal violations: evading arrest, running away, disrupting school, assaulting another person causing bodily injury, and possessing a controlled substance.
      B.W. met with a state psychologist after her arrest. During discussions with that psychologist, she maintained that she was being mistaken for someone else. She did, however, chronicle a troubled past that included living with a thirty-two-year-old man, untreated substance abuse problems, allegations of abuse, and academic difficulties. The psychologist's report concluded that B.W. is a troubled minor who has encountered much adversity at a young age, but also stressed that the veracity of B.W.'s report should be "viewed with caution given that numerous statements [she] made [were] inconsistent with probation records."
     B.W. pled "true" to allegations of prostitution in the juvenile court, and the juvenile judge concluded that B.W. engaged in delinquent conduct and ordered, among other things, that B.W. (1) was in need of rehabilitation, (2) should be placed in the Chief Juvenile Probation Officer's custody, and (3) should participate in individual counseling and have HIV Awareness/Drug Assessment with an educational specialist. ¹ The juvenile judge denied B.W.'s motion for new trial, but granted her permission to appeal. The court of appeals affirmed.
      B.W. requests that this Court (1) hold that minors under fourteen years old cannot consent to sexual conduct as a matter of law and, therefore, cannot be adjudicated in the juvenile justice system for engaging in conduct constituting prostitution; and (2) determine that failure to prosecute her "boyfriend" and grant her immunity in exchange for testimony against him violated her right to due process. The Court holds that B.W., and no thirteen-year-old, may ever be brought into the juvenile justice system for committing prostitution under the current Juvenile Justice Code. It asserts that the Legislature determined that thirteen-year-old minors cannot legally consent to sex, despite the fact that nowhere in the Juvenile Justice or Penal Codes has the Legislature said so. To be clear, children below a certain age probably do not have the mental capacity and the law would deem them unable to consent to certain actions, but that is not the case here. The Juvenile Justice Code expressly provides that delinquent conduct of thirteen-year-old teenagers is within the exclusive jurisdiction of the juvenile court.           
     B.W. was adjudicated delinquent under the Juvenile Justice Code for committing the offense of prostitution. She does not contest any of the facts constituting the offense, and, in fact, she stipulated to them in the juvenile court. Nor does she argue that any language in the Juvenile Justice Code provides an exemption to civil adjudication of minors aged thirteen in the juvenile system for prostitution. Instead, she contends that adjudicating her for prostitution would lead to an absurd result because thirteen-year-old minors cannot legally consent to sex in cases of statutory rape (a crime proscribed in the sexual assault statute), and therefore, the Legislature could not have possibly intended that a minor her age be adjudicated delinquent in the juvenile justice system for other sex offenses, like prostitution. Contrary to B.W.'s allegations, this is a type of conduct and category of delinquents the Legislature decided to permit treatment and rehabilitation through the Juvenile Justice Code.
      The text discloses legislative intent, and courts should apply statutory language literally unless enforcing the language of the statute as written would produce absurd results. Instead of subjecting minors to criminal prosecution, the Legislature created the juvenile justice system. See TEX. PENAL CODE § 8.07 (explaining that the Penal Code is not generally applicable to minors under seventeen); TEX. FAM. CODE § 51.02(2) (explaining that a minor ten or older and younger than seventeen years old is subject to delinquency proceedings under the Family Code). Title three of the Family Code is the Juvenile Justice Code, and it vests juvenile courts with exclusive, original, civil jurisdiction to adjudicate minors so they may be appropriately treated and rehabilitated and the public protected. A juvenile may be adjudicated in the juvenile system for "delinquent conduct," defined to include "conduct, other than a traffic offense, that violates a penal law of this state . . . punishable by imprisonment or by confinement in jail."
     Prostitution is a crime that violates Texas penal law and is punishable by confinement in jail. Commission of prostitution is thus delinquent conduct for which a minor may be adjudicated in the juvenile system. "A person commits [prostitution] if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire." "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Thus, any "person" can commit prostitution if he or she does so "knowingly." A "person" under the Penal Code "means an individual, corporation, or association." A "child" under the Juvenile Justice Code includes "any person" who is "ten years of age or older" and under seventeen. Thus, the age range of persons subject to delinquency proceedings for violating the prostitution statute includes teenagers like B.W. Neither B.W. nor the Court dispute that teenagers are persons under the Juvenile Justice and Penal Codes. On her own admission, the juvenile court adjudicated B.W. delinquent for the offense of prostitution.
      But the Court takes the position that B.W. cannot be charged with prostitution because, as a thirteen-year-old minor, she could not legally consent to sex. The Legislature proscribed sex with a minor under seventeen years old, in the sexual assault statute. A minor's consent is relevant to provide a defense only when: (1) the actor and minor were married at the time of the offense; or (2) the actor was no more than three years older than the minor who is at least fourteen years old. As pointed out by the Court, "[t]here are no such defenses . . . when the child is under fourteen, irrespective of the child's purported willingness." The Court acknowledges that a fourteen-year-old may be adjudicated delinquent for prostitution, but asserts that a thirteen-year-old cannot because of the absence of a consent defense in the statutory rape statute. However, the lack of a consent defense to statutory rape does not change the prostitution statute.
     The Court's conclusion that a thirteen-year-old cannot commit a sex crime is based on several analytical flaws. Foremost, there is no language in either the Juvenile Justice Code or the Penal Code that supports the Court's conclusion, as both it and B.W. admit. In fact, in a post-submission letter, B.W.'s counsel candidly states, "During my rebuttal argument, Justice Hecht pointed out that the Texas statutes regarding sexual assault . . . do not expressly state that a child under 14 is legally incapable of consenting to sex. I responded that the statute ‘specifically' says that a sexual assault on a child is without consent if the child is under 14." B.W.'s counsel explains in her post-submission filing that she "should have clarified" that her conclusion is an inference from Penal Code provisions, and that there is no specific language indicating that in the Code. The Court concedes that its conclusion that the inability of minors to consent to sex as a matter of law is only an "inference from section 22.011 and the other statutes dealing with sexual exploitation of a minor" and that "no statute explicitly states that children under fourteen are unable to provide consent for all purposes." Later in the opinion, the Court claims the Legislature made a "pronouncement that all minors under fourteen years lack the capacity to give that consent." Certainly, the Legislature could have made such a specific pronouncement, but nowhere in the Penal Code, Juvenile Justice Code, or any other statute did it do so. In other words, the Court reasons that B.W. cannot legally be adjudicated for prostitution because any consent on her part to sex would be legally ineffective as a defense to the separate crime of statutory rape.
      Specifically, section 22.011 of the Penal Code makes it a crime to intentionally or knowingly have intercourse with another person "without that person's consent." It makes that same conduct the crime of sexual assault against a minor, except "without that person's consent" is not provided as a defense for this offense against minors. The statutory rape provision criminalizes adult intercourse with minors. By excluding consideration of consent when the minor is under fourteen, the Legislature made sexual conduct in those circumstances a strict liability offense. It is settled that an adult cannot prove or attempt to prove that the minor consented as a defense to statutory rape.                      
      The Court takes this inference from the omission of four words in the section 22.011(a)(2) statutory rape statute and applies it to govern the section 43.02(a) prostitution statute. [T]he Court concludes that the inference from the four-word omission in section 22.011(a)(2) applies globally to the criminal and juvenile law. ….
At another point, the Court offers a guess as to the Legislature's intent. The Court says it is "far more likely" that the Legislature would seek to punish those sexually exploiting minors than subject minors to "prosecution."  But we need not guess what the Legislature intended because we can read the Penal Code, which defines prostitution and statutory rape as separate crimes. And only one crime—statutory rape—indicates that a minor's consent is no defense to the charged offense.
    The Court's logic that the absence of a consent defense to statutory rape precludes adjudication for the separate offense of prostitution is perplexing. This is not a case where an actor is attempting to assert consent as a defense to statutory rape. However, B.W. argued that the absence of consent as a defense in the statutory rape statute is a de jure defense to civil juvenile adjudication for committing prostitution. The Court employs a unique approach to statutory interpretation by taking the bait and inferring that the Legislature would impose such an exemption throughout the entire Penal Code by omitting words in the sexual assault statute. The only affirmative indications of legislative intent the Court points to in support of its holding are instances where the Legislature passed statutes affording greater protection against sexual exploitation of underage minors. It points out that the Penal Code explicitly proscribes compelling prostitution of a minor under eighteen as a second-degree felony as an example of how it intended heightened protection of sexually exploited minors. It simply does not follow that heightened punishment for adults who exploit teenagers means that teenagers can never commit prostitution.
     The Court says that the underpinning of my position is that "because Penal Code section 43.05 makes it a crime for a person to cause a child younger than eighteen to  commit prostitution, the Legislature must have envisioned the prosecution of children under the age of fourteen for prostitution." This is not correct. The basis of my conclusion is not an inference implied from a different statute, as is the Court's; it is the expressed intent of the Legislature. The language of the prostitution statute includes thirteen-year-olds, and the Juvenile Justice Code makes them subject to juvenile delinquency proceedings for committing that offense; and neither the Court nor B.W. point to any language in the Juvenile Justice or Penal Codes that changes the prostitution statute to mean something other than what it says. The Court then argues that a criminal may be prosecuted for compelling sexual exploitation of a teenager even though the teenager may not be adjudicated for prostitution. Certainly, in the proper exercise of prosecutorial discretion, ³ this may be the case; but the Court's holding precludes exercise of that discretion in all cases involving thirteen-year-old teenagers involved in sex crimes.
     The language of section 43.05 of the Penal Code in fact provides that minors under eighteen years old may commit prostitution. It makes it a crime if any person knowingly "causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time the actor commits the offense." The Legislature's use of the word "child," defined to be a person under age seventeen, certainly includes thirteen-year-olds. Yet the Court effectively limits the Legislature's definition to children ages fourteen to seventeen, without any language to support it
     The Legislature easily could have created the exception that the Court proclaims today. It expressly excluded "traffic offense[s]" from the definition of delinquent conduct. All it needed to do was add a few words to section 51.03(a)(1) to compel the result the Court desires, but the Legislature did not exclude "prostitution" from the list of offenses constituting delinquent conduct. Alternatively, the Legislature could have limited application of the prostitution statute to persons fourteen and older, rather than any "person." Yet, it opted not to do so.
       The Legislature has expressly recognized that teenagers can commit such offenses. A defendant may prove consent by a teenager in a statutory rape case to possibly avoid registering as a sex offender. The Texas Code of Criminal Procedure gives a trial court discretion to grant an exemption from the sex offender registration requirement if it appears, based on a preponderance of the evidence, that a victim aged thirteen or older consented to sexual contact with an offender nineteen or younger. This is contrary to the Court's conclusion that, as a matter of law, a thirteen-year-old cannot legally consent to sex in a prostitution adjudication.
      The Legislature makes social policy determinations, and has made one in this situation. The Juvenile Justice Code incorporates the offense of prostitution as proscribed in the Penal Code, and minors may be subject to civil adjudication for engaging in conduct that constitutes prostitution. Nothing in any of these statutes indicates that the Legislature could not have intended the law to be enforced as written, and the Court errs in declaring an "absurd result" where one does not exist.
     The Court's opinion has shallow support in the common law. It cites William Blackstone for support, but Blackstone's Commentaries explain that twelve years is the "age of female discretion by the common law." ⁶. B.W. engaged in conduct constituting prostitution at the age of thirteen. She had reached the age of discretion under the common law. The Court further looks to find the common law primarily in cases from a few other states—Arkansas, Florida, Kentucky, Mississippi, New Hampshire, and Vermont. ⁷ But none of these cases addresses the question before us—whether the common law deems that no thirteen-year-old can, as a matter of law, commit prostitution. They all concern whether an adult can defend a charge of statutory rape by asserting that the child consented. And the Court's quotation to a concurrence in a Florida case focuses on a six-year-old child's capacity, a fact not at issue in that case and that says little or nothing about the issue involving the teenager before us. . . .
     In addition to the absence of any language in the Juvenile Justice and Penal Codes to support the Court's conclusion, the common law also provides scant support for its reasoning.
      Notwithstanding the Court's use of the term "prosecute" repeatedly in its opinion, there is no dispute that in the juvenile court proceeding B.W. was not convicted of a crime. She was adjudicated delinquent as a juvenile, and the juvenile court ordered rehabilitation, counseling, and treatment. In fact, the juvenile court ordered only probation for B.W. with no term of juvenile confinement. The Court fails to credit the purpose of the juvenile justice system as distinct from the criminal justice system. Its holding precludes juvenile courts from adjudicating and then ordering counseling and treatment as the Legislature intended for minors like B.W. who commit prostitution. The Legislature enacted the Juvenile Justice Code for various public purposes, including: "to provide for the protection of the public and public safety"; "to promote the concept of punishment for criminal acts"; "to remove, where appropriate, the taint of criminality from children committing certain unlawful acts"; "to provide treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child's conduct"; "to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions"; and "to protect and to control the commission of unlawful acts by children." 
      The Court's opinion removes B.W. from adjudication under the Juvenile Justice Code for a criminal act she acknowledged committing. Instead of allowing B.W. to be treated as the Legislature intended, its opinion overturns the juvenile judge's treatment order and sends her back into CPS custody or, more likely given her history of running away, back to a toxic street environment. The psychologist that screened B.W. explained that she needed to be placed in a secure facility with a structured and consistent environment, that she is a "high risk for runaway," and there is a "moderate to high risk" that she will hurt others. The psychologist also recommended intensive treatment for substance abuse, enrollment in a mentor program, individual and group therapy, and tests to evaluate her educational needs. The prosecutor evaluating B.W.'s case considered B.W.'s history as well as the recommendations of those evaluating B.W. when deciding whether to bring the proceeding. The juvenile judge considered the psychologist's evaluation and ordered treatment as provided by the Juvenile Justice Code through individual counseling and other programs. In light of B.W.'s past conduct, it is reasonable that the juvenile judge would recommend that the Chief Juvenile Probation Officer supervise B.W. instead of placing her back in the CPS system.
     The Legislature decided to subject minors ten or older and younger than seventeen to civil adjudication as opposed to generally subjecting them to the same criminal laws as adults. The Juvenile Justice Code provides a civil means for effectuating its stated purposes to avoid subjecting minors, who might be headed down a treacherous path, to criminal proceedings. Sadly, many minor prostitutes are exploited by others who take advantage of their vulnerability. Those exploiters deserve criminal punishment. However, the Legislature enacted the Juvenile Justice Code not merely as a means of punishment, but also for treatment and rehabilitation in order "to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions."
     The Legislature passed a statute last term that instructs the executive director of the Texas Juvenile Probation Commission to establish a committee "to evaluate alternatives to the juvenile justice system, such as government programs, faith-based programs, and programs offered by nonprofit organizations, for children who are accused of engaging in acts of prostitution." The Legislature recognizes the problem of prostitution committed by minors, and it continues to work on solutions to address it. Instead of exempting minors from adjudication in the statute, the Legislature requested the committee to study and evaluate the effectiveness of alternative treatment options outside the justice system. In the same September 2009 bill, the Legislature added a defense to prosecution for victims of human trafficking, acknowledging in the bill analysis that trafficked minors are often arrested for committing prostitution. "The vast majority of domestic victims of human trafficking are minors; approximately 70 percent fall into the sex trade. Unfortunately, most of these children are criminalized and placed with Child Protective Services with the result that the child does not receive necessary services and often falls back under the thumb of traffickers." Nonetheless, the Legislature did not modify the Family Code to exempt teenagers from delinquency adjudication for prostitution. But the Court's opinion today does just that and removes the juvenile justice system as a viable alternative to CPS and other treatment programs for minors younger than fourteen who are accused of prostitution. This is an unnecessary and intrusive limitation on the Legislature's discretion to address an important social policy issue.
     For all of these reasons, I would apply the Juvenile Justice Code and Penal Code provisions at issue as the Legislature drafted them. I would hold that a thirteen-year-old minor may be subject to civil, juvenile delinquency proceedings and rehabilitative treatment for committing an act that constitutes prostitution as proscribed in the Penal Code. The Legislature specifically intended to hold actors that engage in sexual conduct with a minor under fourteen strictly liable for sexual assault, regardless of the minor's consent. It also specifically incorporated certain Penal Code provisions into the definition of delinquent conduct, including the offense of prostitution, making it a chargeable delinquent offense. The Court's opinion purports to recognize legislative intent that is expressed nowhere in applicable statutes and is contrary to the common law. ….
       While I would prefer a world in which such questions concerning the delinquent sexual conduct of minors would never arise, the reality is that these questions do arise, and we must answer them. I could not agree more that thirteen-year-old teenagers engaging in prostitution are victims of severe physical, sexual, and emotional scarring. But, exempting all of these minors from civil adjudication in the juvenile justice system—where treatment and rehabilitation are favored—when they commit the crime of prostitution imposes a broad policy on the State that is not supported by statute or legislative intent. The Legislature addressed the plight of minors such as B.W. by creating the juvenile justice system to offer a means, albeit not perfect, of hopeful rehabilitation. The Court globally declares that all thirteen-year-olds lack capacity to commit sex crimes and thereby precludes them all from any assistance through the juvenile justice system. I therefore respectfully dissent.
 

Questions for Discussion
1. Explain the reason that B.W. charge of prostitution is adjudicated under the Texas Family Code.

2. Why does the Texas Supreme Court conclude that the courts lack jurisdiction to adjudicate B.W a delinquent for knowing agreement to engage in sexual conduct?

3. What is the argument of the dissenting judges?                  

4.  As a matter of social policy, is the majority opinion or the dissenting opinion a better approach to the treatment and rehabilitation of juveniles?

         Mark Poehlman, “a cross-dresser and foot-fetishist searched the Internet "alternative lifestyle" discussion groups in hopes of finding a romantic relationship. The women whom he contacted quickly lost interest after learning of his “proclivities” and some even urged him to kill himself. He is described as a lonely and depressed, divorced military veteran.

             Poehlman finally received a positive reaction from a woman named Sharon. Poehlman started a correspondence with Sharon when he responded to her ad in which she advertised for a military veteran who understood her three children’s s "unique needs." Poehlman responded that he "was looking for a long-term relationship leading to marriage," "didn't mind children," and "had unique needs too."
     Sharon in two e-mails stated that she was "looking for someone who understands us and does not let society's views stand in the way . . . [there are] "some things I'm just not equipped to teach [the children]" and [wanted] "someone to help with their special education." Sharon stressed that she was looking for a “special man teacher” for the children rather than for herself. "If you understand and are interested, please write back. If you don't share my views I understand. Thanks again for your last letter."
    Poehlman repeated his interest in Sharon. She stressed that "[o]ne thing I should make really clear though, is that there can't be anything between me and my sweethearts special teacher." She asked Poehlman to tell her what he planned to teach the girls and indicated that.” I do like to watch, though. I hope you don't think I'm too weird."
      Poehlman “finally got the hint and expressed his willingness to play sex instructor and “graphically detailed his ideas” to Sharon, usually with her encouragement. “Among these ideas were oral sex, anal sex and various acts too tasteless to mention.” Sharon called Poehlman and one of the girls wrote him a note. He made decorative belts for the girls as Christmas presents. Poehlman and Sharon made plans for him to travel to California. He met her at a hotel room where she gave him pornographic material featuring children to examine. Poehlman “commented that he had always looked at little girls. Sharon also showed Poehlman photos of her children: Karen, aged 7, Bonnie, aged 10, and Abby, aged 12. She “directed Poehlman to the adjoining room, “where he was to meet the children, presumably to give them their first lesson. Poehlman was arrested and charged, and convicted of attempted lewd acts with a minor in violation of California law and sentenced to 21 months in prison. Was Poehlman predisposed to commit these offenses or was he entrapped? Poehlman v. United States, 217 F.3d 692 (9th Cir. 2000).

Poehlman v. United States, 217 F.3d 692 (9th Cir. 2000)

Opinion By: Kozinski, J.

Issue
Mark Poehlman, a cross-dresser and foot-fetishist, sought the company of like-minded adults on the Internet. What he found, instead, were federal agents looking to catch child molesters. We consider whether the government's actions amount to entrapment.
 

Facts
After graduating from high school, Mark Poehlman joined the Air Force, where he remained for nearly 17 years. Eventually, he got married and had two children. When Poehlman admitted to his wife that he couldn't control his compulsion to cross-dress, she divorced him. So did the Air Force, which forced him into early retirement, albeit with an honorable discharge.
     These events left Poehlman lonely and depressed. He began trawling Internet "alternative lifestyle" discussion groups in an effort to find a suitable companion. Unfortunately, the women who frequented these groups were less accepting than he had hoped. After they learned of Poehlman's proclivities, several retorted with strong rebukes. One even recommended that Poehlman kill himself. Evidently, life in the HOV lane of the information superhighway is not as fast as one might have suspected.
    Eventually, Poehlman got a positive reaction from a woman named Sharon. Poehlman started his correspondence with Sharon when he responded to an ad in which she indicated that she was looking for someone who understood her family's "unique needs" and preferred servicemen. Poehlman answered the ad and indicated that he "was looking for a long-term relationship leading to marriage," "didn't mind children," and "had unique needs too."
     Sharon responded positively to Poehlman's e-mail. She said she had three children and was "looking for someone who understands us and does not let society's views stand in the way." She confessed that there were "some things I'm just not equipped to teach [the children]" and indicated that she wanted "someone to help with their special education."   In his next e-mail... Poehlman disclosed the specifics of his "unique needs." He also explained that he has strong family values and would treat Sharon's children as his own. Sharon's next e-mail focused on the children, explaining to Poehlman that she was looking for a "special man teacher" for them but not for herself. She closed her e-mail with the valediction, "If you understand and are interested, please write back. If you don't share my views I understand. Thanks again for your last letter."

     Poehlman replied by expressing uncertainty as to what Sharon meant by special man teacher. He noted that he would teach the children "proper morals and give support to them where it is needed," and he reiterated his interest in Sharon.
     Sharon again rebuffed Poehlman's interest in her: "One thing I should make really clear though, is that there can't be anything between me and my sweethearts special teacher." She then asked Poehlman for a description of what he would teach her children as a first lesson, promising "not to get mad or upset at anything written. If I disagree with something I'll just say so. I do like to watch, though. I hope you don't think I'm too weird."
      Poehlman finally got the hint and expressed his willingness to play sex instructor to Sharon's children. In later e-mails, Poehlman graphically detailed his ideas to Sharon, usually at her prompting. Among these ideas were oral sex, anal sex and various acts too tasteless to mention. The correspondence blossomed to include a phone call from Sharon and hand written notes from one of her children. Poehlman made decorative belts for all the girls and shipped the gifts to them for Christmas.
     Poehlman and Sharon eventually made plans for him to travel to California from his Florida home. After arriving in California, Poehlman proceeded to a hotel room where he met Sharon in person. She offered him some pornographic magazines featuring children, which he accepted and examined. He commented that he had always looked at little girls. Sharon also showed Poehlman photos of her children: Karen, aged 7, Bonnie, aged 10, and Abby, aged 12. She then directed Poehlman to the adjoining room, where he was to meet the children, presumably to give them their first lesson under their mother's protective supervision. Upon entering the room however, Poehlman was greeted by Naval Criminal Investigation Special Agents, FBI agents and Los Angeles County Sheriff's Deputies.
     Poehlman was arrested and charged with attempted lewd acts with a minor in violation of California law. He was tried, convicted and sentenced to a year in state prison. Two years after his release, Poehlman was again arrested and charged with federal crimes arising from the same incident. A jury convicted him of crossing state lines for the purpose of engaging in sex acts with a minor. . He was sentenced to 121 months. Poehlman challenges the conviction on the grounds that it violates double jeopardy and that he was entrapped. Because we find there was entrapment, we need not address double jeopardy.
 

Reasoning
In their zeal to enforce the law . . . Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." On the other hand, "the fact that officers or employees of the Government merely afford opportunity or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." The defense of entrapment seeks to reconcile these two, somewhat contradictory, principles.
     When entrapment is properly raised, the trier of fact must answer two related questions: First, did government agents induce the defendant to commit the crime? And, second, was the defendant predisposed. We discuss inducement at greater length below, but at bottom the government induces a crime when it creates a special incentive for the defendant to commit the crime. . . . Even if the government induces the crime, however, defendant can still be convicted if the trier of fact determines that he was predisposed to commit the offense. 
     Predisposition . . . is the defendant's willingness to commit the offense prior to being contacted by government agents, coupled with the wherewithal to do so. While our cases treat inducement and predisposition as separate inquiries, the two are obviously related: If a defendant is predisposed to commit the offense, he will require little or no inducement to do so; conversely, if the government must work hard to induce a defendant to commit the offense, it is far less likely that he was predisposed. To raise entrapment, defendant need only point to evidence from which a rational jury could find that he was induced to commit the crime but was not otherwise predisposed to do so . . .
     Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats,  coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. Poehlman argues that he was induced by government agents who used friendship, sympathy and psychological pressure to "beguile[] him into committing crimes which he otherwise would not have attempted."
     According to Poehlman, before he started corresponding with Sharon, he was harmlessly cruising the Internet looking for an adult relationship; the idea of sex with children had not entered his mind. When he answered Sharon's ad, he clearly expressed an interest in "a long-term relationship leading to marriage." His only reference to children was that he "didn't mind" them. Even after Sharon gave him an opening by hinting about "not letting society's views stand in the way," Poehlman continued to focus his sexual attentions on the mother and not the daughters: "If you don't mind me wearing your hose and licking your toes then I am open for anything."
     It was Sharon who first suggested that Poehlman develop a relationship with her daughters: "I've had to be both mother and father to my sweethearts, but there are some things I'm just not equipped to teach them. I'm looking for someone to help with their special education." Poehlman's response to this ambiguous invitation was perfectly appropriate: "As far as your children are concerned I will treat them as my own (as I would treat my boys if I had them with me) I have huge family values and like kids and they seem to like me alright too." Even when Sharon, in her next e-mail, became more insistent about having Poehlman be a special man teacher to her daughters, he betrayed no interest in a sexual relationship with them: "I am interested in being this special teacher, but in all honesty I really don't know exactly what you expect me to teach them other than proper morals and give support to them where it is needed."
      In the same e-mail, Poehlman expressed a continued interest in an adult relationship with Sharon: "I have to be honest and tell you I would hope you would support and enjoy me sexually as well as in company and hopefully love and the sexual relations that go with it." It was only after Sharon made it clear that agreeing to serve as sexual mentor to her daughters was a condition to any further communications between her and Poehlman that he agreed to play the role Sharon had in mind for him.
      The government argues that it did not induce Poehlman because Sharon did not, in so many words, suggest he have sex with her daughters. But this is far too narrow a view of the matter. The clear implication of Sharon's messages is that this is precisely what she had in mind. Contributing to this impression is repeated use of the phrases "special teacher" and "man teacher," and her categorical rejection of Poehlman's suggestion that he would treat her daughters as his own children and teach them proper morals with a curt, "I don't think you understand."
    In case the references to a special man teacher were insufficient to convey the idea that she was looking for a sexual mentor for her daughters, Sharon also salted her correspondence with details that clearly carried sexual innuendo. In her second e-mail to Poehlman, she explained that she had "discussed finding a special man teacher with my sweethearts and you should see the look of joy and excitement on their faces. They are very excited about the prospect of finding such a teacher." To round out the point, Sharon further explained that "I want my sweethearts to have the same special memories I have . . . . I've told them about my special teacher and the memories I have. I still get goose bumps thinking about it." From Sharon's account, one does not get the impression that her own special teacher had given her lessons in basket weaving or croquet. Finally, Sharon's third e-mail to Poehlman clearly adds to the suggestion of a sexual encounter between him and her daughters when she states: "I do like to watch, though. I hope you don't think I'm too weird." In light of Sharon's earlier statements, it's hard to escape the voyeuristic implications of this statement. After all, there would be nothing weird about having Sharon watch Poehlman engaged in normal father-daughter activities.
     Sharon did not merely invite Poehlman to have a sexual relationship with her minor daughters, she made it a condition of her own continued interest in him. Sharon, moreover, pressured Poehlman to be explicit about his plans for teaching the girls: "Tell me more about how their first lesson will go. This will help me make my decision as to who their teacher will be." The implication is that unless Poehlman came up with lesson plans that were sufficiently creative, Sharon would discard Poehlman and select a different mentor for her daughters.
     Sharon eventually drew Poehlman into a protracted e-mail exchange which became increasingly intimate and sexually explicit. Approximately three weeks into the correspondence, Poehlman started signing off as Nancy, the name he adopts when dressing in women's clothes. Sharon promptly started using that name, offering an important symbol of acceptance and friendship. In the same e-mail, Sharon complained that Poehlman had neglected to discuss the education of her two younger girls. "I thought it curious that you did not mention Bonnie or Karen. Are they too young to start their educations? I don't want them to feel left out, but at the same time if you aren't comfortable with them please say so."
       Sharon also pushed Poehlman to be more explicit about his plans for the oldest daughter: "Abby is very curious (but excited) about what you expect her to do and I haven't been able to answer all her questions. Hope to hear from you soon." Poehlman responded to Sharon's goading: "Bonnie and Karen being younger need to learn how to please, before they can be taught how to be pleased. they will start be exploring each others body together as well as mine and yours, they will learn how to please both men and women and they will be pleasein Abby as well."
     Over six months and scores of e-mails, Sharon persistently urged Poehlman to articulate his fantasies concerning the girls. Meanwhile Poehlman continued his efforts to establish a relationship with Sharon. For example, Poehlman twice proposed marriage, but this drew a sharp rebuke from Sharon:
     Nancy, I'm not interested in marriage or any type of relationship with my darlings' teacher. My quest as their mother is to find them the right teacher so that they get the same education I was fortunate enough to get at their ages. You need to understand this. This is not for me, but for them. I don't mean to sound harsh, but you can't imagine the number of people just looking for a wife or girlfriend online. I have to look past all this and concentrate on finding my darlings' special man teacher.
     Poehlman nevertheless continued to seek a familial relationship with Sharon and her daughters, expressing himself ready to quit his job and move across the country to be with them.
     Where government agents merely make themselves available to participate in a criminal transaction, such as standing ready to buy or sell illegal drugs, they do not induce commission of the crime. "An improper 'inducement' . . . goes beyond providing an ordinary 'opportunity to commit a crime.' An 'inducement' consists of an 'opportunity' plus something else—typically, excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, non-criminal type of motive."
     [E]ven very subtle governmental pressure, if skillfully applied, can amount to inducement . . . [T]here is no doubt that the government induced Poehlman to commit the crime here. Had Sharon merely responded enthusiastically to a hint from Poehlman that he wanted to serve as her daughters' sexual mentor, there certainly would have been no inducement. But Sharon did much more. Throughout the correspondence with Poehlman, Sharon made it clear that she had made a firm decision about her children's sexual education, and that she believed that having Poehlman serve as their sexual mentor would be in their best interest. She made repeated references to her own sexual mentor, explaining that he could have mentored her daughters, had he not died in a car crash in 1985. While parental consent is not a defense to statutory rape, it nevertheless can have an effect on the "self-struggle [to] resist ordinary temptations." This is particularly so where the parent does not merely consent but casts the activity as an act of parental responsibility and the selection of a sexual mentor as an expression of friendship and confidence. Not only did this diminish the risk of detection, it also allayed fears defendant might have had that the activities would be harmful, distasteful or inappropriate, particularly since Sharon claimed to have herself benefitted from such experiences.
     It is clear, moreover, that Poehlman continued to long for an adult relationship with Sharon, as well as a father-like relationship with the girls. He offered marriage; talked about quitting his job and moving to California; discussed traveling with Sharon and the girls; even offered his military health insurance benefits as an inducement. While refusing to give Poehlman hope of a sexual relationship with her, Sharon encouraged these fantasies; she went so far as to check out Poehlman's job prospects in California. The government thus played on Poehlman's obvious need for an adult relationship, for acceptance of his sexual proclivities and for a family, to draw him ever deeper into a sexual fantasy world involving these imaginary girls. . . .
     The jury could, nevertheless, have found Poehlman guilty if it found that he was predisposed to commit the offense. Quite obviously, by the time a defendant actually commits the crime, he will have become disposed to do so. However, the relevant time frame for assessing a defendant's disposition comes before he has any contact with government agents, which is doubtless why it's called predisposition. 'The prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.'" In our case, the question is whether there is evidence to support a finding that Poehlman was disposed to have sex with minors prior to opening his correspondence with Sharon. . . .
      [T]he fact that Poehlman willingly crossed state lines to have sex with minors after his prolonged and steamy correspondence with Sharon cannot, alone, support a finding of predisposition. It is possible, after all, that it was the government's inducement that brought Poehlman to the point where he became willing to break the law. . . [W]e must consider what evidence there is as to Poehlman's state of mind prior to his contact with Sharon.
     The government produced no e-mails or chat room postings where Poehlman expressed an interest in sex with children, or even the view that sex with children should be legalized. Nor did the government produce any notes, tapes, magazines, photographs, letters or similar items which disclosed an interest in sex with children, despite a thorough search of Poehlman's home. There was no testimony from the playmates of Poehlman's children, his ex-wife or anyone else indicating that Poehlman had behaved inappropriately toward children or otherwise manifested a sexual interest in them. Sharon's ad, to which Poehlman responded, does not clearly suggest that sex with children was to be the object of the relationship: "Divorced mother of 3 looking for someone who understands my family's unique needs. Servicemen preferred. Please E-mail me at Darlings3@aol.com." While one might presume that one or more of the children are minors, the phrase "unique needs" could, just as easily, connote children with physical disabilities, or merely the plight of a single mother of three.
     Poehlman does not appear to have responded to her ad because it mentions children or their special needs. During the crucial first few exchanges, when Sharon focused Poehlman's attention on those special needs, he expressed confusion as to what she had in mind. Instead of exploiting the ambiguity in Sharon's messages to suggest the possibility of sex with her daughters, Poehlman pushed the conversation in the opposite direction, offering to act as a father figure to the girls and teach them "proper morals." While Poehlman's reluctance might have been borne of caution—the way a drug dealer might demur when he is unsure whether a prospective buyer is a government agent—the fact remains that Poehlman's earliest messages (which would be most indicative of his pre-existing state of mind) provide no support for the government's case on predisposition. To the contrary, Poehlman's reluctance forced Sharon to become more aggressive in her suggestions, augmenting the defendant's case for inducement.
      Poehlman's enthusiastic, protracted and extreme descriptions of the sexual acts he would perform with Sharon's daughters are, according to the government, its strongest evidence of Poehlman's predisposition. Indeed, once he got the idea of what Sharon had in mind, Poehlman expressed few concerns about the morality, legality or appropriateness of serving as the girls' sexual mentor. But Poehlman was not convicted of writing smutty e-mails; he was convicted of crossing state lines, some six months later, to have sex with minors. The problem with using Poehlman's e-mails as evidence of predisposition is that they were all in response to specific, pointed suggestions by Sharon. The e-mails thus tell us what Poehlman's disposition was once the government had implanted in his mind the idea of sex with Sharon's children, but not whether Poehlman would have engaged in such conduct had he not been pushed in that direction by the government. In short, Poehlman's erotic e-mails cannot provide proof of predisposition because nothing he says in them helps differentiate his state of mind prior to the government's intervention from that afterwards.
    It is entirely plausible to infer that . . . it was the government's graduated response—including e-mail correspondence, handwritten letters from the girls and Sharon, the use of intimate names, a photograph of Poehlman sent to Sharon, Poehlman handcrafting gifts for the girls and Sharon's willingness to help Poehlman look for a job in Southern California—that brought Poehlman to the point where he was willing to cross state lines for the purpose of having sex with the three young girls. Since the government has the burden of proof as to the lack of predisposition, materials like these e-mails, which do not demonstrate any preexisting propensity to engage in the criminal conduct at issue, simply cannot carry that burden.
         Poehlman's protracted correspondence with Sharon . . . undermines the view that he was predisposed to commit the offense. Even as his e-mails became more intimate and explicit—usually in response to Sharon's constant hectoring for more details about Poehlman's lesson plans—he never gave any indication that being a sexual mentor to the girls in any way fulfilled his preexisting fantasies. To the contrary, Poehlman repeatedly tried to integrate Sharon's expectations of him into his own fantasies by insisting that the girls (and Sharon) parade around the house in nylons and high-heeled pumps ("as high of a heel as they can handle,"—as Poehlman himself apparently does.
     The only indication in the record of any preexisting interest in children is Poehlman's statement in the hotel room that he has "always looked at little girls." But this is hardly an indication that he was prone to engage in sexual relations with minors. . . . Having carefully combed the record for any evidence that Poehlman was predisposed to commit the offense of which he was convicted, we find none. To the extent the jury might have found that Poehlman was predisposed to commit the offense, that finding cannot be sustained.
 

Holding
" When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene." So far as this record discloses, Poehlman is such a citizen. Prior to his unfortunate encounter with Sharon, he was on a quest for an adult relationship with a woman who would understand and accept his proclivities, which did not include sex with children. There is surely enough real crime in our society that it is unnecessary for our law enforcement officials to spend months luring an obviously lonely and confused individual to cross the line between fantasy and criminality. The judgment of conviction is reversed on grounds of insufficiency of the evidence and the case is remanded with instructions that defendant be released forthwith.
 

Thompson, J. dissenting
  Poehlman failed to present "'undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act.'" Even though during the first two weeks of Poehlman's e-mail communications with the government agent posing as "Sharon" Poehlman revealed no sexual interest in children, Poehlman soon began to interpret purposely vague e-mails from Sharon as containing sexual undertones. While the government sent Poehlman messages, it did not first suggest sexual relations with children nor propose any specific sexual acts. Moreover, the government's e-mails never forced Poehlman to respond and, in fact, offered Poehlman many opportunities to end the communications if he were interested in a relationship with Sharon and not the kids or if he were at all uncomfortable. The majority contends that the "clear implication of Sharon's messages" suggested that Poehlman have sex with the children, but, so long as ambiguous evidence requires inferences to be made, it is the role of the jury to draw such inferences. . . .
      Poehlman's character and the absence of a profit motive are two factors that weigh heavily in Poehlman's favor. Poehlman does not have a history of a sexual interest in children, and his e-mail communications with Sharon never revealed an interest in profiting from any sexual relationship. The other predisposition factors, however, tip in favor of the government. During the undercover operation, the government constructed purposely vague e-mail messages. While Poehlman claims that the government initiated the sexual conversation when Sharon wrote about the lessons for her children from a "special man teacher" and her desire to watch the lessons, Poehlman conceded at trial that Sharon "never came out and said that [he] have sex with the kids." Poehlman first introduced sexual remarks in his reply to the government's message stating Sharon's interest in finding a "special man teacher" for her children.
     Although Poehlman's e-mail messages during the first two weeks of his communication with Sharon appeared free of sexual allusions directed toward her children, his communications for the next roughly 5-1/2 months detailed sexual acts that he would perform with Sharon's three children, even asking Sharon to put the two older girls on birth control. Moreover, just prior to Poehlman's arrest, a female undercover agent, posing as Sharon, presented Poehlman with a child pornography magazine and pointed to a particular picture depicting a child in a sexual act. When the officer asked Poehlman whether he thought the children "will be ready for this," Poehlman responded, "God, I hope so." Poehlman also remarked that he has "always looked at little girls." Although Poehlman at trial stated that he meant women over the age of eighteen, a reasonable jury could have concluded that he revealed a predisposition toward having sexual relations with young children.
     At trial, the government established that Poehlman first mentioned having sex with the children, and each proposed sexual act originated from him. Even though this case is not as clear cut as a case in which a defendant, for example, exemplifies predisposition by owning a library of explicit materials before the commencement of a sting operation, the jury heard enough evidence for it to reasonably conclude that Poehlman in fact had a predisposition to commit the crime. . . .
 

Questions for Discussion

1. What is the legal test for entrapment relied on by the judges in Poehlman?         

2. Compare and contrast the argument of the majority opinion and of the minority opinion.     

3. What is your view?     

4. Do you believe that the investigation and prosecution of Poehlman was a wise use of the resources of law enforcement agencies? 

Officers Servando Pena and Melissa Town approached Jose de Jesus Flores in their unmarked car. They observed that Flores was going through withdrawal and asked if he could "hook" them up with twenty dollars worth of cocaine. Flores responded that he did not have any drugs, but would assist them. “Flores was pale and shaking, his head kept moving back and forth, and he said he desperately needed cocaine.” Flores saw Bradley, whom he had encountered on the street in the past. Flores exited the vehicle, and vomited in front of the officers and Bradley. Moments later, he approached Bradley.
     Bradley testified that Flores looked "pinkish, yellowish, sick," smelled like vomit and was "tweaking and twitching"; and he was "shaking, like . . . a junky dude." Flores asked Bradley to “help him get something.” Bradley asked Flores what he meant, and Flores responded "I'm hurting. I need a fix." Flores begged Bradley for drugs, and repeatedly asked whether Bradley could help him: "Please, please, big man, would you help me out?"
     Bradley agreed and told Flores that "I have to go see because I don't, you know, do it. I know people up and down the street that does it, but I don't do it." Bradley then rode his bicycle up the street where drug dealers congregated and after not finding anyone selling drugs returned the twenty-dollar bill. Bradley then observed co-defendant Tyrone Jennings walking towards a liquor store. Bradley caught up with Flores and the officers, asked for twenty dollars from the officers, exchanged the twenty dollar bill for cocaine from Jennings, and delivered the cocaine to the officers and Flores. Bradley was arrested.   No drugs were found on his person.              
     In California, the test for entrapment focuses on the police conduct and is objective. To be entitled to an instruction on entrapment, a defendant must present substantial evidence that "the conduct of the law enforcement agent [was] likely to induce a normally law-abiding person to commit the offense." Was Bradley entrapped? See Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002).

ENTRAPMENT

WAS BRADLEY ENTRAPPED UNDER THE OBJCTIVE TEST?

Bradley v. Duncan, 315 F.3D 1091 (9th Cir. 2002).

Ferguson, J.

Issue
Warden William A. Duncan ("the State") appeals the District Court's conditional grant of Defendant/Petitioner Gary Bradley's ("Bradley") petition for a writ of habeas corpus challenging his conviction on the grounds that the state trial court's refusal to instruct the jury on the defense of entrapment violated his federal due process rights. 

Facts
Defendant/Appellee Gary Bradley ("Bradley") was arrested and charged with one count of selling cocaine in violation of California Health and Safety Code section 11352(a). Bradley's only defense at trial was that he was entrapped by the police into committing the offense.
     Bradley admitted that he facilitated the sale of cocaine, but testified that his sole purpose was to help an unwitting police agent, Jose de Jesus Flores, who was suffering greatly due to drug withdrawal. At the close of evidence, the defense . . . requested an entrapment instruction. This time, the trial court denied the request without explanation.
      Not surprisingly, the jury found Bradley guilty. He was sentenced to twenty-five years to life imprisonment pursuant to California's "three strikes" provisions. His prior convictions were for a 1980 and 1988 burglary. The state claims that Bradley did not present sufficient evidence to deserve an instruction on entrapment. Its reasoning is simply fallacious.             
    On January 8, 1996, while conducting an undercover narcotics operation, Officers Servando Pena and Melissa Town observed Jose de Jesus Flores standing on the sidewalk. Officer Pena pulled the unmarked car over and motioned for Flores to approach the car. Flores came over to the car, smelling of alcohol. Officer Pena asked Flores if he could "hook" him up with twenty dollars worth of cocaine. Flores stated that he did not have any, but he would take the officers to obtain drugs. Flores got into the car and directed Officer Pena to drive toward a particular intersection, but he did not state that he was looking for any specific person.
       Officer Pena knew something was wrong with Flores and believed that he was going through drug withdrawal. Flores was pale and shaking, his head kept moving back and forth, and he said he desperately needed cocaine. As they approached the intersection, Flores spotted Bradley, whom he had previously seen in passing, and called out for him to stop. Flores told Officer Pena to pull over, exited the vehicle, and vomited audibly in front of the officers and Bradley. Moments later, he approached Bradley.
     Bradley observed that Flores was going through withdrawals—he looked "pinkish, yellowish, sick"; he smelled like vomit; he was "tweaking and twitching"; and he was "shaking, like . . . a junky dude." Flores implored him to help him "get something." Bradley asked him what he meant, and Flores responded "I'm hurting. I need a fix." Flores begged Bradley for drugs, asking repeatedly "Can you help me?" Flores told Bradley he was ill and appealed to him saying, "Please, please, big man, would you help me out?"
     Bradley finally agreed but told Flores to wait, stating: "I have to go see because I don't, you know, do it. I know people up and down the street that does it, but I don't do it." Bradley then rode his bicycle up the street where drug dealers congregated. The officers and Flores followed him in the vehicle. When they reached the designated intersection, Flores gave Bradley the officers' twenty-dollar bill. However, Bradley did not locate anyone selling drugs and returned the money.
      Bradley then proceeded homeward on his bicycle, but he stopped upon observing co-defendant Tyrone Jennings walking towards a liquor store. Bradley caught up with Flores and the officers and told them to meet him at the liquor store. Bradley obtained twenty dollars from the officers, exchanged it for cocaine from Jennings, and delivered the cocaine to the officers and Flores. Bradley was arrested minutes later. No drugs were found on his person.

Reasoning
     The purpose of the entrapment defense is to deter impermissible police conduct. In adopting an objective test of entrapment, the California Supreme Court reasoned, "the function of law enforcement manifestly 'does not include the manufacturing of crime.'"  It is permissible for the police to offer "the simple opportunity to act unlawfully," by the use of decoys or otherwise. However, "it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." It is also impermissible for the police or their agents to conduct themselves in a manner that would induce a normally law-abiding person "to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose."
     The defendant is entitled to an entrapment instruction if he presents sufficient evidence for a reasonable jury to conclude that he was entrapped. . . . In this case, the California Court of Appeal found that Bradley was not entitled to an entrapment instruction under California law. . . .
    The California Court of Appeal's decision was unreasonable in light of the record. The court characterized the police conduct as "an ordinary, run-of-the-mill, undercover drug operation in which a decoy was used." In so doing, it stated that "neither officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime."
     Although the California Court of Appeal was correct that neither Officer Pena nor Officer Town badgered, cajoled, or importuned Bradley personally, their decoy did. The court overlooked Flores' actions in determining that the facts did not support an entrapment instruction. Yet, a decoy who is manipulated by the police also constitutes a police agent "for purposes of the entrapment defense, even [if] the third party remains unaware of the law enforcement object."
     Flores, the unwitting police agent, targeted Bradley individually and begged him for drugs. Flores' appeal, "Please, please, big man, would you help me out?"—despite Bradley's statements that he neither had drugs nor sold them—could certainly be found by a jury to constitute "badgering" or "cajoling.". . . In light of the urgency of Flores' requests, his conduct also constituted "importuning" in the ordinary meaning of the term (defining "importune" as "to press or urge with . . . unreasonable requests").
     Moreover, the California Court of Appeal's determination that the police merely offered the opportunity to act illegally was unreasonable in light of the record. Officers Pena and Town chose as their "hook" a drug addict who was going through withdrawals and was very ill. This was not a case in which the police merely used an underage decoy to purchase alcohol or to respond to an ad soliciting sex with a female of any age. This was a case in which the police used a decoy whose physical suffering would appeal to the sympathies of most people.
       Second, the California Court of Appeal failed to resolve its doubts as to whether a normally-law-abiding person would have been induced to commit the crime out of sympathy for Flores in favor of Bradley. The court denied Bradley's claim, reasoning that "the average person would not . . . purchase illegal drugs to aid a stranger, even if the stranger appeared to be a drug addict going through withdrawal." What a normally-law-abiding person would do under the circumstances should have been left to the jury. A reasonable jury could find that a normally-law-abiding person would feel sympathy for Flores in his desperate state and decide to help him obtain drugs to relieve his suffering.
    The Court of Appeal compounded its error by speculating that a normally-law-abiding person confronted by an evidently ill drug-addicted stranger in the throes of withdrawal would not purchase drugs for Flores, but would opt for a legal alternative. Of course, calling the police is an alternative to acquiescing in illegal activity, and it is conceded that taking a drug addict to a clinic is preferable to enabling his drug addiction. But one could always speculate about a legal alternative to the illegal action ultimately taken.
      A normally-law-abiding person does not always take the high road in the face of pressures or inducements by the police or their agents. As Justice Frankfurter observed in Sherman: "Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime." The state ignores the purpose of the entrapment defense, which is to curb unsavory police conduct. Instead of focusing on the impermissible police conduct, the state chooses to blame Bradley and to point out what he should have done differently. This argument is circuitous and leaves no situation where the defendant can assert entrapment as a defense.
    Moreover, in faulting Bradley for failing to call the police or take Flores to a treatment center, the state turns a blind eye to the fact that the officers did not do so either. Not only did the officers in this case fail to help Flores, they isolated him from any potential assistance, using him as a decoy and then arresting him as a co-defendant in this case. If anyone in this case had a duty to assist Flores, it was the officers, not Bradley. This is especially true because Bradley was on a bicycle (and could not transport Flores anywhere), whereas the officers were in a vehicle and had control over Flores as a passenger. However, instead of taking him to get help, the officers decided to exploit Flores' addiction as a tool to induce another person's participation in a drug sale.
    The failure to instruct the jury on entrapment deprived Bradley of his due process right to present a full defense. . . . Bradley testified . . . that he bought the cocaine for Flores and explained that he did so out of concern for Flores' well-being and sympathy for his plight. At the second trial, the prosecution read Bradley's testimony into the evidence.
     During closing argument, the prosecutor pointed to the portion of the record in which Bradley had confessed to the crime. He admonished the jury not to consider the evidence that Bradley had acted as a "Good Samaritan" or that he had committed the crime out of sympathy for Flores. He also reminded the jury of the court's instruction not to acquit on the basis of "sympathy" for Bradley. Defense counsel argued that the officers' "tactics" of manipulating a drug addict going through withdrawals was "despicable" and is not "something that should be done." However, because of the court's refusal to instruct on entrapment, he could not point to a legal grounds on which the jury could acquit Bradley if it agreed.
 

Holding
As aforementioned, Bradley presented ample evidence supporting the giving of the entrapment instruction. . . . [T]he failure to so instruct had a substantial and injurious effect on the jury verdict. A guilty verdict was the result. . . .
 

Graber, J. dissenting

Here, there was no substantial evidence to support entrapment instructions. This was an ordinary, run-of-the-mill, undercover drug operation in which a decoy was used. The officers used Flores as a "hook" in locating a source for cocaine; [Petitioner] expressed his willingness to assist in finding cocaine, and [Petitioner] took actions toward accomplishing that goal. He located a source for the drugs and exchanged money for the drugs. The police did not conduct themselves improperly. Neither officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime. [Petitioner] was simply offered the opportunity to commit the crime. The average person would not, as [Petitioner] contends, purchase illegal drugs to aid a stranger, even if the stranger appeared to be a drug addict going through withdrawal. . . .
    "In California, the test for entrapment focuses on the police conduct and is objective." To be entitled to an instruction on entrapment, a defendant must present substantial evidence that "the conduct of the law enforcement agent [was] likely to induce a normally law-abiding person to commit the offense." The law "presumes that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully." The question is whether "the police or their agents . . . pressured the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." "The rule is clear that ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime." An appeal to a defendant's sympathy by police can result in entrapment but only if that appeal would cause the "normally law-abiding person" to turn to crime. Whether the police conduct at issue constitutes entrapment is "judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand."
    Viewed in the light most favorable to Petitioner, the evidence shows that he was approached by a police decoy who was demonstrating overt signs of drug withdrawal. The decoy vomited just before approaching Petitioner, smelled like vomit, appeared "pinkish, yellowish, sick," and was "tweaking and twitching." The decoy asked Petitioner to "get something" and to help him get a fix because he was hurting. He repeatedly told Petitioner that he was really ill and needed drugs. Petitioner had seen the decoy before, but did not know him. Nevertheless, Petitioner decided to purchase drugs and provide them to the decoy.
     It is clear that the decoy's withdrawal symptoms appealed to Petitioner's sympathy and, I expect, would appeal to the sympathy of nearly every normally law-abiding person. However, that fact, standing alone, is insufficient to permit an entrapment defense under California law. Instead, the appeal to sympathy must have been to an extent and degree that were likely to cause a normally law-abiding person to buy or sell drugs. As the California Court of Appeal permissibly and reasonably concluded, a normally law-abiding person confronted by an ill, drug-addicted stranger (or casual acquaintance) in the throes of withdrawal—like the decoy in this case—would not respond by providing illegal drugs to him. That conclusion is particularly reasonable in view of the fact that there are several obvious lawful alternatives available to help a manifestly ill person, such as calling 911 or taking the person to a clinic. . . .  

Questions for Discussion    

1. What is the legal test for entrapment in California?   

2. Compare and contrast the arguments in the majority and dissenting opinions .
3. How would this case be decided under the predisposition test?

4. What were the police attempting to accomplish in directing Flores to purchase narcotics?

Defendants' claim, rejected by the trial judge, that the spiritual treatment provision in G. L. c. 273, § 1, protects them from criminal liability for manslaughter.

     The spiritual treatment provision read: “A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a recognized church or religious denomination by a duly accredited practitioner thereof.” G.L.c. § 1 (1992 ed.).

ENTRAPMENT

Commonwealth v. Thompson, 484 A.2d 159 (Pa.App. 1984)

         On May 1, 1981, appellant, Russell Thompson, a former Carlisle policeman, was arrested and charged with one count of unlawful delivery of a small amount of marijuana and one count of criminal conspiracy. Appellant was convicted by a jury on both counts on September 23, 1981. . . . [H]e was sentenced on the drug conviction to a term of imprisonment of not less than fifteen (15) days nor more than thirty (30) days and was fined fifty dollars; the sentence was suspended generally on the conspiracy conviction. This timely appeal followed.
   Appellant raises the following issue:

         Did the [l]ower [c]ourt err in finding that under the facts in this case the police conduct in the investigation did not constitute entrapment as a matter of law?
 

Facts

Beginning on May 1, 1980, state police Trooper Lucinda Hammond became involved in an undercover investigation of appellant, a 46-year-old black male who was married and living with his wife and mentally retarded daughter in Carlisle. At the time this investigation began, he was a ten-year veteran of the Carlisle Borough Police Force.  Trooper Hammond was a young, blonde, white female who apparently was very attractive.
      The undercover officer came to Carlisle on May 2, May 9, May 12, May 16, May 22, May 23, May 28, June 5, June 6, June 12, June 19, and June 25 of 1980 in an attempt to make contact with appellant. Although Trooper Hammond was unable to establish any direct communication with appellant, he did wave to her on May 22 and May 28. Her purpose in making contact with appellant on all these occasions was to determine if he would provide her with drugs.
      Trooper Hammond's first "face-to-face" contact with appellant was on July 10, 1980 at the square in Carlisle. He was on duty and she approached him with a question about a false temporary driver's license which apparently was used as a pretext for starting a conversation. She testified that at the time her hair was long and straight and she wore mid-thigh cut-off shorts and a short-sleeved jersey. During the conversation which ensued, the two began talking about "partying" and having a good time. Appellant discussed with Hammond his purported use of marijuana and she let him know that she "partied" and "got high." He then told her he would be able to get drugs for her.
     The second encounter between appellant and Hammond occurred on August 8, 1980 when she again walked up to him while he was on duty. She was again dressed in cut-offs and a jersey. There was a brief conversation, but no mention of drugs. Sometime after this meeting, Hammond began to telephone appellant at his place of work, the Carlisle Police Station. These calls continued over the course of the investigation, totaling at least eight to ten in all. Appellant never contacted Hammond and she never provided him with a means of doing so.
    The third direct contact between them occurred on September 3, 1980, when she again walked up to him while he was working. She wore a blouse that was open in the back and shoulders, as well as her by now standard cut-offs. Appellant recognized her immediately and started a friendly conversation, which included a discussion of drugs and getting high. He tried to get her to meet him after work at a tavern called the Oliver Plunkett, but she declined and instead arranged to meet him the next night at another tavern called Yancy's.
      As had been arranged, they met and had drinks together at Yancy's on September 4. It was their fourth meeting and first date. Again the discussion turned to partying and getting high. Appellant stated to Hammond that he kept marijuana in his locker at work which he would seize during drug arrests and then use himself. This appears to have been mere braggadocio. She asked if he was going to get some of this marijuana and he said no. He repeatedly, on that evening and throughout the investigation, indicated to her that he wanted her to trust him, that he might be a policeman, but he liked fun too. He assured her that he was not trying to set her up.
     The fifth direct contact occurred on September 29, after she had called him at the police station. They met again at Yancy's for a date, and she then asked him to obtain some marijuana for her personal use or "maybe make a little money on the side." He responded by again trying to get her to go to the Oliver Plunkett after hours with him, telling her she could get some marijuana if she would go with him. She declined to do so and left Yancy's.
    The next and sixth personal contact did not occur until December 17, 1980. She had talked to him, however, on October 23 and 24, and, in another telephone conversation on November 25, had "point blank" asked him if he could make a deal for some drugs. On November 26 and December 3, she traveled to Carlisle looking for appellant but could not find him. At the December 17 meeting, when he was on duty, she again asked him about getting drugs. As before, he wanted her to meet him after midnight and she would not do so.
      She met with him briefly on January 6, 1982 and arranged to meet him at Yancy's the next day. During that date at Yancy's, she began directly indicating to him that he "wasn't coming across" with any drugs. Possibly as early as October or November, but certainly by this date, she began chiding him, telling him he was "all talk" and never produced anything for her. She began to question appellant's ability to obtain drugs for her. He stated he would get some for her if she'd meet him again the next night. They did meet the following night, January 8, 1981, in a furniture store parking lot at the M.J. Carlisle Mall. On this eighth meeting between the two, she got into his car only to find he had no drugs. He indicated he would get them later in the evening, so they went to the Hamilton Lounge together. When she indicated to him she was interested in getting something for herself for later that night, he made no moves to get any drugs, despite having earlier mentioned his "connection" was in the Oliver Plunkett right across the street. Instead, he questioned her about her social life. Before she left, she asked about paying for the drugs, but he assured her the drugs would not cost her anything.
     It is clear from the testimony that on or about December 1980 or January 1981, they were kissing at the end of their dates or meetings, either at her car or while in his car. They were often seen together in public in Carlisle, and appellant would put his arm around her and introduce her to his friends. She concluded from his conduct that he was possibly interested in a romantic or sexual relationship, although he always treated her respectfully. However, she never offered and he never requested sexual relations.
    The telephone calls and meetings continued, with Hammond constantly requesting drugs and appellant just as consistently failing to provide them. She would insinuate that he couldn't get any drugs, while he again assured her no payment would be necessary for any drugs he produced. Appellant kept up his entreaties, asking her to meet him after midnight and once to stay overnight, all of which she declined. On one occasion, she mentioned she felt ill and appellant offered to get her a motel room. Around this time, he also started suggesting to Hammond that she move to Carlisle.
     Eventually, she arranged a meeting with him on the evening of March 23 at the Hamilton Lounge. . . . Appellant thereafter obtained 4.5 grams of marijuana from his friend, a Mr. Coleman, and gave it to Hammond. Appellant and Hammond then left the bar and went to his car where he rolled some marijuana cigarettes with papers supplied by Hammond. She offered to pay for the marijuana, but he refused to accept any money.
     The final meeting during the investigation was on April 11, 1981 at the Hamilton Lounge. This date had been pre-arranged by Hammond by phone. Appellant asked her how the marijuana was and whether she had any left. She replied that since it was such a little amount, there was no more left. He then talked of obtaining more drugs for her, but never produced any. The meeting ended after the two of them drove around Carlisle looking at apartments as appellant continued to talk about her moving there. Eventually, appellant offered to pay one-half of her rent if she moved to Carlisle.
 

Reasoning

  We now turn our attention to the issue of entrapment.
     The test for entrapment in Pennsylvania under section 313 is an objective one which "focus[es] on the conduct of the police and will not be concerned with the defendant's prior criminal activity or other indicia of a predisposition to commit crime.        
      The critical question, of course, is whether or not the…evidence of police conduct establishes entrapment as a matter of law. … As Mr. Justice Frankfurter noted, this "crucial question [is] not easy of answer." Answering that question is made all the more difficult by the fact that we have found no cases where either this court, or our supreme court, has found entrapment as a matter of law under the objective test.    
     Some guidance can be found in the Sherman concurring opinion. In that opinion, the objective test was said to be necessary in order to advance the ultimate goal which the doctrine of entrapment seeks to establish, i.e., "[p]ublic confidence in the fair and honorable administration of justice." The test, therefore, is aimed at condemning certain impermissible police conduct which, regardless of who may be induced by it to commit a crime, "falls below standards, to which common feelings respond, for the proper use of government power." Although entrapment necessarily must be decided on a case-by-case basis, impermissible activity may include "[a]ppeals to sympathy, friendship, the possibility of exorbitant gain and so forth." Depending on an evaluation of the facts in each case, prohibited governmental activity might include extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendship, and offers of inordinate sums of money. . . .           

Holding

 In light of all this, and under the facts of this case, we are convinced that the methods employed by the Commonwealth constitute entrapment as a matter of law. The Commonwealth, acting through Trooper Hammond, pursued a long term, persistent course of persuasion and inducement aimed at luring appellant into delivering marijuana to Hammond. The use of a young, blonde female to coax a middle age male, after months of kissing and socializing, into committing a minor crime is not police conduct which presents the "mere opportunity" to commit a crime. As this case clearly shows, opportunity and inducement are two separate consequences of police activity. The latter occurred here. . . . Not only was Trooper Hammond obviously aware of her actions and of appellant's interaction with her, she also admitted to suspecting the effect her conduct was having on appellant, i.e., romantic or sexual desires . . . The law enforcement authorities clearly strayed beyond the limits of acceptable practice in this case. We cannot sanction methods of inducement such as this, which lure otherwise law-abiding citizens into crime. . . .

         Russell Thompson, a Carlisle Pennsylvania policeman, was convicted of unlawful delivery of a small amount of marijuana and one count of criminal conspiracy. Beginning on May 1, 1980, state police Trooper Lucinda Hammond engaged in an undercover investigation of the 46-year-old Thompson. Thompson is an African American and, at that time, was a ten-year police veteran. He was married, with a mentally challenged daughter. Hammond is described as a “young, blonde, white female,” who is “very attractive.” According to the Pennsylvania court, she regularly wore mid-thigh cut-off shorts during her encounters with Thompson.

            During the course of the investigation, Hammond called Thompson eight to ten times, although she never provided him with her telephone number. She initially approached Thompson on three occasions on the street. On the third occasion, the discussion turned to drugs and to “getting high.” Hammond accepted Thompson’s invitation to meet him at a bar. During their “date,” he shared with her that he kept marijuana in his locker that he had seized during drug busts and that although he was a police officer, he liked to “party” and to “get high.”

           The fifth direct contact occurred on September 29, after she had called him at the police station. Hammond asked Thompson for marijuana for her “personal use” or “maybe [to] make a little money on the side.” He responded by trying to get her to go to the Oliver Plunkett bar with him, telling her he could get some marijuana if she would go with him. She declined and left.

             The sixth encounter occurred on December 17, 1980. Hammond had talked to Thompson on two occasions in October and, in another telephone conversation on November 25, had “point blank” asked him if he could get her some drugs. At the December 17 meeting, she again asked him about getting drugs. He repeated that if she would meet him after midnight at Oliver Plunkett, he could obtain some drugs. She refused.

             Hammond next met the defendant on January 5, 1981. She stated that he “wasn’t coming across” with any drugs. She needled him that he was “all talk” and never had produced marijuana. He stated he would get some for her if she’d meet him the next night. They met in a furniture store parking lot and she got into his car only to find he had no drugs. Hammond stated that she was interested in getting some drugs for later in the evening. He nonetheless made no moves to get any drugs, despite having earlier mentioned that he had a “connection” in the Oliver Plunkett, which was right across the street. She asked about paying for the drugs and he insisted that the drugs would not cost her anything.

              By December 1980 or January 1981, they were kissing at the end of their dates or meetings; and Hammond testified that he was romantically interested in her. They were seen together in public in Carlisle, and Thompson would put his arm around her and introduce her to his friends. Hammond never offered and he never requested sexual relations.

            The telephone calls and meetings continued. Hammond constantly requesting drugs and Thompson “just as consistently failing to provide them.” She continued to push him to get her drugs, and he continued to promise to get her drugs and assured her that no payment would be necessary for the drugs he acquired for her. Thompson continued to ask her to meet him after midnight and on one occasion asked her to spend the night with him, all of which she declined.

            Hammond arranged a meeting on the evening of March 23 at a bar in Carlisle. At the bar, Thompson obtained 4.5 grams of marijuana from his friend and gave the drugs to Hammond. The two of them left the bar and went to Thompson’s car where he rolled some marijuana cigarettes with papers supplied by Hammond. She offered to pay for the marijuana, but he refused to accept any money.

             Hammond called Thompson and arranged to meet on April 11, 1981. She told Thompson that she had no marijuana left and he discussed obtaining more drugs for her. Thompson talked about Hammond moving to Carlisle, offered to pay one-half of her rent, and drove her around Carlisle looking at apartments. Pennsylvania’s entrapment statute “focus[es] on the conduct of the police and [is] not . . . concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.”

         Was Thompson entrapped under the objective test? See Commonwealth v. Thompson, 484 A.2d 159 (Pa. Super. Ct. 1984).

Joshua Frank Lee Harvill sold cocaine to Michael Nolte and was arrested. Harvill was charged with unlawful delivery of cocaine. He claimed that he sold cocaine to Nolte because he feared that Nolte would hurt him or his family.
     The facts in the case are based on Harvill’s testimony at trial. Harvill received 9 or 10 calls from Nolte in the days leading up to the sale. During the conversations, Nolte “insisted” that Harvill get Nolte cocaine. Nolte in an aggressive tone would say, “You gotta get me something,” or “You better get me some cocaine,” and his tone was aggressive. Harvill did not recall Nolte ever saying “or else” or words to similar effect. Harvill received four more calls on the day of the transaction, two at a restaurant where Harvill was eating with his family. Harvill claimed that he was afraid that Nolte would

         immediately come to the restaurant and hurt a member of his family if he refused to get Nolte some cocaine. Harvill claimed that he otherwise was not involved in selling cocaine. 
     Nolte is 5 feet 10 inches tall and weighs 200 pounds. Harvill is 5 feet 5 inches tall and weighs about 140 pounds. Harvill saw Nolte each day at work and Nolte would brag about how he had smashed another man's head with a beer bottle, causing brain damage.  Harvill also stated that he knew that Nolte on one occasion had grabbed a gun from another man and then stabbed him. Nolte and Harvill's brother had wrestled once and Nolte nearly broke his brother's arm. Harvill also claimed that Nolte used steroids and that he feared Nolte. Was Harvill entitled to a rely on the defense of duress. See Washington v. Harvill, 234 P.2d 1166 (Wash. 2010).
 

Washington v. Harvill, 234 P.2d 1166 (Wash. 2010).

Opinion By: Stephens, J.

Issue

         Joshua Frank Lee Harvill challenges his conviction for unlawful delivery of cocaine, arguing that he produced sufficient evidence at trial to entitle him to a jury instruction on the defense of duress. The trial court refused to give the duress instruction on the ground that evidence of an explicit threat was necessary, whereas Harvill's evidence showed only an implicit threat. Was the trial court’s denial of a duress instruction correct?

Facts

         Joshua Frank Lee Harvill sold cocaine to Michael Nolte in a controlled buy organized by the Cowlitz County Sheriff's Office. Harvill was arrested after the transaction and charged with unlawful delivery of cocaine. At trial, Harvill admitted his participation in the transaction and relied solely on the defenses of duress and entrapment. Specifically, Harvill claimed that he sold cocaine to Nolte because he feared that, if he did not, Nolte would hurt him or his family.
     Harvill testified that he received 9 or 10 calls from Nolte in the days leading up to the controlled buy in which Nolte insisted that Harvill get Nolte some cocaine. Nolte would say, “You gotta get me something,” or “You better get me some cocaine,” and his tone was aggressive. But, Harvill could not recall Nolte ever saying “or else” or words to similar effect. Harvill received four more calls on the day of the transaction, the last two while he was at Chuck E. Cheese's restaurant with his family. Harvill claimed that he was afraid that Nolte would immediately come to Chuck E. Cheese's and drag him or one of his family members outside and hurt one of them if Harvill refused to get Nolte some cocaine. He denied that he sold cocaine otherwise.
     Harvill and Nolte had known each other for several years. Nolte was 5 feet 10 inches tall and weighed 200 pounds. Harvill was 5 feet 5 inches tall and weighed about 140 pounds. Harvill was afraid of Nolte, he testified, because he saw Nolte daily at work, where Nolte would brag about how he had once smashed another man's head with a beer bottle, causing brain damage. Harvill also knew that Nolte had previously grabbed a gun from another man and then stabbed him. Nolte and Harvill's brother had wrestled once and Nolte nearly broke Harvill's brother's arm. Harvill asserted that Nolte used steroids and that he feared what Nolte was capable of.
      Harvill requested a jury instruction on duress so that he could argue the defense during closing argument. The trial court denied the instruction on the ground that Nolte never voiced any actual threat to Harvill. Rather, Harvill's fear of Nolte stemmed from his knowledge about Nolte's behavior, which the trial court held was insufficient to establish duress as a matter of law. Harvill objected, arguing that he had perceived Nolte's requests for drugs as a threat: If he refused to get Nolte drugs, Nolte would come to Chuck E. Cheese's and hurt him or his family. This was enough, Harvill claimed, to present the issue of duress to the jury. The trial court adhered to its initial holding rejecting the duress instruction. However, the court allowed Harvill to present closing argument connecting the evidence of Harvill's fear of Nolte to his entrapment defense.
     The jury convicted Harvill, and he appealed. The Court of Appeals assumed, without deciding, that the trial court erred by refusing the duress instruction but concluded that any error was harmless. The Court of Appeals reasoned that, in rejecting Harvill's argument that Nolte induced him to participate in the crime (entrapment), the jury necessarily rejected the argument that Nolte compelled Harvill to participate by threat or use of force (duress).
     Duress is an affirmative defense that must be established by a preponderance of the evidence. The defendant must prove that (a) he participated in the crime under compulsion by another who by threat or use of force created an apprehension in his mind that in case of refusal he or another would be liable to immediate death or immediate grievous bodily injury; and (b) such apprehension was reasonable upon his part; and (c) he would not have participated in the crime except for the duress involved.

               A defendant “is entitled to have the jury instructed on [his] theory of the case if there is evidence to support that theory. Failure to so instruct is reversible error.” The query here is whether the evidence at trial was sufficient to support Harvill's duress defense. The trial court denied Harvill's request for a duress instruction on the ground that there was no actual “threat.” A duress defense only should be issued if the defendant “participated in the crime under compulsion by another who by threat or use of force created an apprehension. . . . In this context, “threat” means “to communicate, directly or indirectly the intent . . . [t]o cause bodily injury in the future to the person threatened or to any other person.” According to the trial court, Nolte never communicated any intent to do Harvill harm, and Harvill's fear, based on general knowledge about Nolte's past behavior, did not constitute a “threat” under the duress statute. Harvill counters that he perceived Nolte's requests for drugs as threats—that is, as indirect communications of Nolte's intent to harm Harvill if he did not supply Nolte with drugs—and that his perception of a threat, if reasonable, was enough to allow him to argue the duress defense.

     The question comes down to whether the duress statute requires an explicit threat or whether an implicit threat that arises from the circumstances will suffice. At trial and again on appeal, the State emphasized that Nolte never told Harvill to get him drugs “or else,” arguing that the absence of this phrase or similar words confirms that no express or implied threat occurred. But, the lack of an “or else” proves only that there was no direct threat. The statutory definition of “threat” sweeps more broadly. See RCW 9A.04.110(27)(a) (defining “threat” as “to communicate, directly or indirectly the intent . . . [t]o cause bodily injury.”  Determining what counts as an indirect communication of intent to cause physical harm depends on the totality of the circumstances.
      Properly defining “threat” to include both explicit and implicit threats serves the purpose of the duress statute. The statute is concerned with the “lesser of two evils.” Faced with danger to his or another's safety, the defendant is excused for choosing the lesser evil of perpetrating a crime, unless the crime involves killing an innocent person, which is never the lesser of two evils. The defendant forfeits his excuse if by his own fault he necessitates his Hobson's choice. This purpose applies with equal force to direct threats, arising from overtly threatening words or physical intimidation, and to indirect threats, arising from other conduct and circumstances. So long as the defendant's perception of the implicit threat is reasonable under the circumstances, he is put to the choice between two evils through no fault of his own and should be allowed to argue the defense.
     The trial court relied on State v. Harris, 357 P.2d 719 (1960), in which we rejected a duress defense because the defendant had not been threatened. [D]uress is a defense only where it is shown that the threats of one person have created in the mind of another a reasonable apprehension of instant death or grievous bodily harm. “Mere fear or threat by another is not sufficient to constitute a defense.” As the court's language shows, Harris involved the complete absence of a threat. Harris's counsel suggested that the defendant did not know about the prison escape until 20 minutes before it occurred and had only acquiesced in it because he feared reprisal from the escapees if he did not. There was no evidence of any threat, implicit or otherwise, that prompted the defendant's fear. Harris is thus distinguishable. Harvill testified at length to the history, circumstances, and conduct that gave rise to his perception of Nolte's words as conveying an implicit threat. His testimony was in part corroborated by Nolte's testimony. . . .
     In sum, the trial court appeared to reject Harvill's duress instruction because Nolte never explicitly threatened Harvill. But there is no legal authority that requires a “threat” to be an explicit threat. The text, history, policy, and judicial interpretations of the duress statute indicate that an implicit threat arising indirectly from the circumstances can suffice to establish a threat. Accordingly, we hold that the trial court abused its discretion when it refused Harvill's duress instruction based on an erroneous view of the law.
      The trial court abused its discretion by refusing to instruct the jury on the duress defense. Harvill presented sufficient evidence of fear arising from an implicit threat, and the jury should have had the opportunity to decide if this fear was reasonable and if Harvill would have sold cocaine to Nolte absent the threat. We reverse the Court of Appeals' decision affirming Harvill's conviction and remand for a new trial.

A Laotian refugee was indicted for the intentional killing of his wife of one month. The defendant offered the defense that his wife’s continuing affection and receipt of phone calls from a former boyfriend brought shame on the defendant and his family and caused him to lose self-control. Should this cultural consideration result in the defendant being held liable for voluntary manslaughter? See People v. Aphaylath, 502 N.E.2d 998 (N.Y. 1986).

         People v. Aphaylath, 502 N.E.2d 998 (N.Y. 1986). Defendant, a Laotian refugee living in the United States for roughly two years was convicted of the intentional murder of his Laotian wife of one month. The defense argued that Apthaylath’s shame over his wife receiving phone calls from an unattached man and her evident affection was adequate provocation to trigger his “loss of control.” The court remanded the case to the trial court judge based on the judge’s refusal to permit expert witnesses to testify concerning Laotian culture. In the United States, viewing a spouse in a sexual embrace with another is considered adequate provocation. The defense might argue that a telephone call is equally as provocative under Laotian culture. The prosecution might argue that affirming that Aphaylath had been provoked would lead to an unmanageable number of acts being recognized as adequate provocation. Courts were not equipped to evaluate cultural claims and recognition of such claims would create multiple systems of justice.