Online Sex Banter Leads to Criminal Case

Orange County prosecutors have filed molestation charges against a Trabuco Canyon man who allegedly engaged in sexual banter with children on the phone and the Internet but never touched them.

Prosecutors said the case marks the first time a court must decide whether someone is guilty of molestation even though he never met or coerced victims into sexual acts.

The district attorney’s office contends that David Allen Fay, 42, is guilty of “cyber molestation” because he met the children in Internet chat rooms before having “phone sex” with them and mailing them explicit photos and materials.

The case, if successful, would further expand the scope of molestation laws, which are coming under increasing scrutiny as the World Wide Web makes communication--and exploitation--easier.

An appeals court in 1992 upheld the attempted molestation conviction of a Los Angeles man who called a Ventura County boy at random and threatened to hurt his father if the boy didn’t touch himself.

But Orange County prosecutors want to go a step further. They acknowledge that Fay never threatened or forced any of the four alleged victims to do anything. But prosecutors say Fay’s requests that the girls, ages 12 to 15, touch themselves amounted to molestation.

“He deliberately sought out children and exploited them for his own sexual gratification,” said Orange County Deputy Dist. Atty. Matt Murphy.

Fay has pleaded not guilty to charges of molestation, attempted molestation, possessing child pornography and distributing harmful matter. The girls live in Florida, New York, Illinois and Minnesota.

Fay was arrested and charged in January and is free on $150,000 bail. Prosecutors said Fay could be sentenced to up to 19 years in prison if convicted.

Fay’s attorney, Eric Hansen, said the case was little more than an attempt to create new law. He said phone records show that the alleged victims called Fay hundreds of times and were rarely on the phone for more than a half a minute. And, Hansen pointed out, even authorities concede his client did not use force or threats against any of the girls.

“It’s ridiculous,” Hansen said. “Like it or not, the Internet has opened up a whole realm of fantasies. Are we punishing people for their sexual fantasies?”

The World Wide Web in recent years has given sexual predators a whole new realm in which to anonymously approach possible victims but has also provided law enforcement with a brand-new tool to stop them.

Most cases involve sexual predators setting up trysts with people they meet online, as in the case of former Internet executive Patrick J. Naughton, who pleaded guilty in March to crossing state lines with the intent to have sex with a minor.

Fay’s case, however, is unusual because it does not involve an attempt to solicit sex, said UCLA law professor John Shepard Wiley Jr., a former federal prosecutor.

“As far as I know, it’s a new type of crime and a new type of prosecution,” Wiley said.

Julie Posey, who runs a Colorado-based nonprofit organization that tracks sexual predators online, said she had never heard of the type of “cyber molestation” charges brought against Fay.

“That’s really wild,” Posey said. “The ones I’ve heard of always eventually want to meet the kid.”

Concerned about children’s access to online pornography and predators, Congress has repeatedly tried to pass laws restricting material that can be sent over the Internet only to have its efforts blocked by the Supreme Court.

But the Fay case, prosecutors argue, uses existing law to crack down on online sexual exploitation.

“This really is the promised land for child molesters. They can meet teens and preteens anonymously, enter chat rooms and find teenage girls and boys,” prosecutor Murphy said. “There are going to be many, many more cases like this, I have no doubt.”