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Sexual Temptation is Not Entrapment

When undercover police officers, like Detective Tabatha McLemore, catch people trying to solicit the services of a prostitute, they do it by pretending to be prostitutes themselves. They stand on street corners, take long looks at passing cars, and even waive at those that look back. When a vehicle stops, the exchange is fairly standard between the individual soliciting and the undercover officer. The individuals who stops rarely wants to be the first person to bring up the topic of sex, so the undercover police officer is usually the first to bring up the topic directly (presumably so the body-wire that she’s wearing can record the transaction). The question that divided the Indiana Supreme Court recently was: does this practice constitute unlawful police entrapment?

When police induce an individual to commit a criminal offense, the burden of proof is then placed on the State of Indiana to prove beyond a reasonable doubt that the individual was predisposed to commit the crime in the first place. This is to prove that law enforcement’s actions were not the cause of the criminal behavior. In Griesemer v. State of Indiana, the majority of the Indiana Supreme Court held that mere temptation to commit a crime was not inducement. Focusing more what would happen if it held otherwise, the majority stated: “if we were to find entrapment on these facts, we would effectively put an end to prostitution stings. We are not willing to so limit the activity of undercover officers to the detriment of safety and quality of life in many neighborhoods.” Justice Rucker, in his dissent, took issue with the fact that Detective McLemore was the first person to mention money, the first to mention performance of a sex act, and the first to mention trading a sex act for money. In so doing, the dissent pointed out that the State of Indiana has the burden of showing the defendant’s predisposition to commit the offense, and it failed. Now, the question has become: what is required to turn a temptation into an inducement?

Contact Keffer Hirschauer LLP today if you have been accused of a crime. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at (317) 857-0160.

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