HI- Internet sex law ‘bad’ (Internet Sting Law)

4-2-2009 Hawaii:

House member seeks leniency in ‘imaginary crime’

WAILUKU - State Rep. Joe Bertram III urged leniency Wednesday for a Makawao man who was sentenced for using the Internet to arrange sexual contact with someone he thought was a 14-year-old girl, saying the defendant shouldn't be sent to prison for an "imaginary crime."

Bertram, a Democrat who represents South Maui, said he was the only representative who voted against changing the law last year to make a 10-year prison term mandatory for someone convicted of first-degree electronic enticement of a child.

"This is a bad law," Bertram said. "It's an imaginary crime. I feel very strongly that people should not be put into prison for an imaginary crime, especially when you have somebody who's so committed to correcting this mistake."

Bertram spoke "in support of my friend," 52-year-old Mark Marcantonio.

He was originally charged with first-degree electronic enticement of a child after being arrested Nov. 24, 2007, when he went to Maui Mall in Kahului to meet a girl, who actually was an undercover police detective.

Marcantonio arranged the meeting after numerous contacts, including e-mails, a telephone call and a sexual demonstration through a Webcam, police said.

"In his conversations, he talked rather explicitly about the sexual acts he wants to commit with her," said Deputy Prosecutor Andrew Martin. "He acknowledges that what he's doing and what he wants to do is wrong because of her age. But he also acknowledges that that seems to be part of the excitement for him."

Martin said the crime was far from "imaginary."

"He showed up at the Maui Mall that day," Martin said. "To him, this was not imaginary. This was real."

In an October 2007 online chat, Marcantonio talked about how "he had done this before" with a 15-year-old Oahu girl, Martin said.

He recommended a five-year prison term for Marcantonio, who had pleaded no contest to a reduced charge of second-degree electronic enticement of a child.

Noting that Marcantonio had cooperated with police and was undergoing sex offender counseling, defense attorney Cary Virtue asked that a jail term be suspended for Marcantonio and he be ordered to perform community service and pay a fine.

"He's completely ashamed, embarrassed, humiliated," Virtue said. "He's very sorry for the pain he's inflicted on his family."

Bertram was in the courtroom gallery Wednesday along with Marcantonio's wife, mother and therapist. Bertram said he has known Marcantonio for more than 30 years, starting when they worked together at a rental car company.

"He has been an upstanding member of the community," Bertram said. "He has been a good father. He has been an entrepreneur in the community."

Contacted afterward, Bertram said he didn't know if his opinion about the law was shared by Marcantonio.

"We can't keep putting people into prison, especially for nonviolent crimes," Bertram said in court. "Maybe it's just best to address this wrong behavior in a therapeutic setting. There may be programs in prison, but they're rare and many folks are trying to get it. We just don't have room in our prison anymore."

Second Circuit Judge Joel August questioned Bertram about his views, asking if he believed children who are contacted by adults in chat rooms aren't being used for sexual purposes.

"What I'm saying is they are surmising that this is what's going to happen, yet they don't know what's going to happen," Bertram said. "These people, once they meet, it could be that they say this isn't going to work. I know they say this online, but it's a whole different thing when people actually meet. There's a big difference between speech and action."

Bertram said there was a perception that Internet enticement of children was a major problem.

"Yet when I asked for statistics, they couldn't provide that to me," Bertram said. "Unfortunately, many of the laws we pass don't always reflect the best policy or scientific evidence. It's more to say we're doing something."

When the judge asked if Bertram thought police should wait to act until a suspect had an actual 14-year-old girl in a car with him and was engaged in sexual contact, Bertram said he didn't like sting operations.

"Sting operations in general, they put out a possibility that something may happen," he said. "You can't predict what somebody's behavior will be."

August ordered Marcantonio to turn himself in today to serve a nine-month jail term as part of five years' probation. He was ordered to have no contact with a minor other than family members and to report his computer activity monthly to his probation officer.

August suspended another three months of jail for Marcantonio. ..News Source.. by LILA FUJIMOTO, Staff Writer