Summary
The Washington Supreme Court held that a defendant impliedly consented to the recording of private e-mail and ICQ communications sent to a fictitious child during a police sting operation. The court concluded that the communications were private and were recorded by a device under Washington’s privacy act, but that the recipient’s computer-recording practices and applicable ICQ warnings established implied consent. The court also held that the defendant took a substantial step toward attempted second degree rape notwithstanding the factual impossibility created by the fictitious child.
Topics
Practice areas
Questions Presented
- Whether Townsend's e-mail and ICQ communications with the fictitious child were private communications covered by Washington's privacy act.
- Whether the detective's computer was a device within the meaning of RCW 9.73.030(1)(a) when it automatically recorded and stored the communications.
- Whether Townsend impliedly consented to the recording of his e-mail and ICQ communications by sending them to the recipient.
- Whether sufficient evidence supported Townsend's conviction for attempted second degree rape despite the fact that the purported child was actually a detective and therefore factual impossibility existed.
Holdings
- The communications were private because Townsend subjectively intended them for the fictitious child's eyes only, as shown by the confidential subject matter and his request that she not tell anyone about them.
- A computer that is used both to communicate and to automatically record messages is a device within RCW 9.73.030(1)(a), and the privacy act applies to messages recorded on it.
- Townsend impliedly consented to recording of both his e-mail and ICQ messages because he sent them to a recipient knowing, or reasonably understood, that the recipient's computer could record them.
- The evidence was sufficient to establish a substantial step toward attempted second degree rape, and the fact that the purported child was actually a detective was not a defense because factual impossibility is not a defense to attempt.
Key quotations
“Evidence obtained in violation of the statute is inadmissible in a criminal case.” (at 672)
“The plain fact is that the communications from Townsend to Amber were recorded on Detective Keller’s computer.” (at 675)
“A person sends an e-mail message with the expectation that it will be read and perhaps printed by another person.” (at 676)
“The attempt statute focuses on the actor’s criminal intent, rather than the impossibility of convicting the defendant of the completed crime.” (at 679)
“Washington’s privacy act applies to computers that can record and save messages; (2) Townsend consented to the recording of his private e-mail and ICQ communications by the recipient of the communications; and (3) there is sufficient evidence that Townsend took a substantial step toward the commission of the crime of attempted second degree rape.” (at 680)
Factual background
A Spokane detective created a Hotmail account and an ICQ account posing as a fictitious thirteen-year-old girl after receiving information that Townsend was seeking sexual contact with young girls. Townsend exchanged e-mails and real-time ICQ messages with the fictitious girl, arranged to meet her at a motel, and repeatedly stated that he wanted to have sex with her. The detective's computer automatically stored the communications, and Townsend went to the motel before being arrested; he later admitted that he intended to have sex with someone he believed was thirteen.
Procedural history
Townsend was charged in Spokane County Superior Court, moved to dismiss on the ground that the recording and printing of his e-mail and ICQ communications violated Washington's privacy act, and was convicted after a bench trial. The superior court imposed an 89-month sentence. Division Three of the Court of Appeals affirmed, holding that Townsend impliedly consented to the recordings and rejecting his factual-impossibility challenge. The Supreme Court granted review and affirmed in all respects.