By Duncan Brown, J.D.1

The process of grooming involves techniques designed to lower the inhibitions of victims in order to exploit them sexually. Before the advent of computers and the resulting ability of people to talk instantly and anonymously with each other via the Internet, child molesters had to rely on physical interaction with potential victims in order to groom them for a relationship. Thus, grooming required the molester to be in close proximity with children and actively interact with them. Although the Internet has changed some grooming techniques of child molesters, the investigation and prosecution of these offenders has evolved to meet these new challenges.

The grooming process before the Internet

Traditionally, child molesters have occupied positions of apparent authority or trust with the children, commonly serving as coaches, youth group leaders, or in similar types of positions. As the controlling adult in those situations, child molesters are able to select victims, usually younger, weaker, or more socially awkward children, and develop a non-sexual relationship with them. To a casual observer it would appear that an adult is merely befriending a child otherwise ignored by their peers. However, in reality the child molester is giving the victim the attention or affection lacking in the child’s life in order to win the victim’s confidence and trust.

It is important to emphasize that the trust established by the child molester is not really trust; it is deception. While the child might trust the molester, the molester is merely manipulating the child in order to serve his own appetites. Once a relationship of seeming trust is established, the child molester then continues to groom the child in an attempt to get the child to lower his or her inhibitions completely. During this stage of the grooming the molester usually gives the child gifts, takes the victim on trips, or fulfills an emotional or non-sexual need of the victim. An 11 year-old female victim describes an example of the grooming process to this point:

 I met a man who was 35 years old. He treated me very fine. He never hit me, we never argued. We always agreed on the same thing. …He bought me presents, then he took dirty pictures of me and offered me money. … I don’t really want that. … I want a home. I want a mother and a father. I want someone who will accept me and love me for a long time. … All he really wants are the dirty pictures and the sex.2

This is also the stage when the molester may expose the child to pornography as part of the grooming process in an attempt to transition from a non-sexual to a sexual relationship.

The pornography used could take many forms. Sometimes the pornography qualifies as erotica, while at other times adult pornography is used. The child molester also uses child pornography building from innocent images like children in their underwear, progressing to erotica of nude children, finally showing the victim graphic images of child pornography. Using these types of images the molester aims to get the child comfortable seeing nudity, arouse interest in sex, and try to convince the victim that engaging in sex with adults is normal. Quite simply, the molester uses pornography to stimulate the child’s interest in sex, and then try to convince the child that the best way to satisfy that curiosity is through engaging in sex with the molester

With the Internet, the rules have changed. The Internet provides child molesters access to many more potential victims simultaneously, while also affording them a cloak of anonymity under which they may use many disguises in attempts to have sex with children.

The grooming process after the Internet

On the Internet, child molesters are able to shorten the trust building period and establish trust with many more potential victims at once. Because the Internet is anonymous, child molesters can pretend to be virtually anyone in order to deceive the victim into thinking that they are understanding and sympathetic. One good example is from a case in which the defendant pretended to be the same age as his victim. Like his victim, the defendant said that his parents were recently divorced and he was having trouble adjusting to his new life. After a certain period, the defendant said his father “banned” him from the Internet, but his older brother would be able to continue the Internet friendship.3 Thus, over time, the victim not only came to trust the defendant, but gradually accepted the fact that the defendant was older than him and an adult.

Anonymity also allows molesters to create personas and lifestyles that do not exist in reality. Before the Internet, a molester could not hide the fact that he was older, overweight, balding, living in a small apartment, driving a beat-up car, or barely holding down a minimum wage job. However, without the necessity of physical interaction during the grooming phase, the Internet molester can convince the child that he lives an exciting life filled with expensive possessions, fancy houses, or action-filled activities.

Finally, the Internet can allow a molester to groom multiple victims at the same time. On the Internet, a molester can carry on dozens of conversations at one time. Conversely, when physically present with children, the molester can only groom a few victims at once for fear of drawing attention to himself.

What kind of grooming evidence to look for during a search

The best way to discover what the child molester used to groom the victims is to ask the victims; they will be able to recount what was given to them, what the defendant used, or what tactics he employed to gain their trust and confidence. However, there will be times when a victim cannot provide such information; in these situations, the investigator must be creative and think like the defendant. Items that look out of place in an adult’s home, like children’s toys or clothing, might be a tip-off. Additionally, any and all images of children should be collected, as well as all pornography. Remember that a defendant may be grooming multiple victims at the same time, so expand your search to include evidence for known, unknown, and potential victims.

Below is a partial list of items to consider potential grooming evidence during a search:

• Adult and child pornography: obviously could be used to lower a victim’s inhibitions about sex and nudity;
  
  
• Adult or child erotica: same use as pornography;
  
  
• Photographs of children in underwear or suggestive poses: used as initial grooming device;
  
  
• Photography equipment: many molesters first take regular photos of victims to get them used to being in front of the camera;
  
  
• Toys, children’s clothes, and other items an adult would not, or could not, use: if an adult male has Barbie dolls or the latest Pokemon cards, he may be using them to gain credibility and build rapport with a child victim.
  

In a computer case, look for these items as well:

• Hard drives or external storage devices that may hold pornographic images;
  
  
• Accessories like web cameras used to record and broadcast acts of sexual exploitation;
  
  
• Chat logs and names of websites visited by the defendant;
  
  
• Passwords for private chat rooms;
  
  
• Screen names used by the defendant;
  
  
• Notes and profiles about victims met online;
  
  
• Items purchased specifically for meeting the victim: online undercover investigators usually ask the defendant to bring an identifying gift for the victim.
  

How to use this evidence at trial—other acts evidence

Grooming evidence is not direct evidence of a crime and cannot be used to prove that a defendant actually molested a victim. Obviously, the possession of erotica, a web camera, and a pink t-shirt in a small girl’s size does not positively implicate a defendant; however, these items can have immense value as “other acts” evidence. Currently, only Colorado has a Federal Rule of Evidence 404(b) equivalent that explicitly mentions grooming as other acts evidence:

The prosecution may introduce evidence of other acts of the defendant to prove the commission of the offense as charged for any purpose other than propensity including…showing motive, opportunity, intent, preparation, including grooming of a victim, knowledge, identity, or absence of mistake or accident.4

All other states, and Federal Rule of Evidence 404(b) itself, allow for grooming evidence to be used for some or all of the following: motive/propensity; preparation/plan/scheme; intent; opportunity; lack of mistake or accident; identity; and knowledge.

Using grooming evidence to show a defendant’s motivation has been accepted in three jurisdictions, and is offered only when the defendant is a repeat offender.5 Thirteen other jurisdictions use the term propensity to describe essentially the same concept; this term has the added benefit that it subtly insinuates the frame of mind the defendant was in. Likewise, evidence such as pornography, gifts, and chat logs can be used to show the defendant’s preparation, planning, or scheme to commit the crime.6 This type of evidence is most properly used in conjunction with a state’s expert witness explaining the grooming process. It is important to note however, some states that accept evidence of planning will only do so if the defendant was arrested before the act was completed.7

Conversely, in the federal system, intent can also be shown using grooming evidence, but only if the crime charged was a completed crime, not a crime of attempt. However, jurisdictions vary in how grooming evidence in crimes of attempt versus completed crimes may be used, so check state law.8 In Minnesota grooming evidence can be used to show opportunity because case law has held that opportunity is related to the defendant’s lack of control; however, this exception has only been used in cases of repeat offenders9 and at sentencing.10 The prosecutor can also use grooming evidence to show lack of mistake or knowledge by the defendant.11

For example, if the defendant claims that he accidentally downloaded pornography, or did not know the person he was sending images to was actually a child, grooming evidence can be used to defeat those claims. Presenting chat logs, stored communications and downloads, notes about online conversations, and other proof that the defendant knew where he was online, and what he was doing, and that he was intentionally engaged in conversations can combat such claims.12 Likewise, evidence of child appropriate gifts purchased in anticipation of a meeting is further proof that a defendant’s claims of lack of identity or knowledge are not credible.

Grooming evidence cannot, however, be used on its own to create sufficient probable cause to support a search warrant of a suspect’s home or computer.13 For a search warrant, evidence of grooming must be supported by additional evidence that creates probable cause to suspect a defendant is actually sexually exploiting a victim.

Expert witnesses may be used to explain the grooming process, but like grooming evidence itself, experts have a specific and somewhat limited value. Experts may be used to explain the process and techniques of grooming, and may also testify that the evidence found, or defendant’s actions, resemble those techniques.14 However, experts cannot testify as to whether, based on the grooming evidence presented, the defendant actually molested the victim. Using the expert to explain behavior is acceptable; using an expert to predict behavior is prohibited.15

Conclusion

Grooming evidence is the result of a complete and thorough investigation that recognizes the value of objects or information that may not be obviously related to sexual exploitation. At trial, grooming evidence should be used to help build a solid wall of evidence against the defendant. Although grooming evidence cannot by itself convict a defendant of a crime, taken as a whole to explain the theory of the case, it can convincingly explain the process used to commit the offense.

1 Staff Attorney, American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse.
2 Pedophiles and Sexual Offences Against Children, Dennis Howitt, London, Wiley and Sons, 1995.
3 United States v. Romero, 189 F.3d 576 (7th Cir., 1999).
4 CRS 16-10-301(3).
5 Washington v. Long, 1998 Wash.App.LEXIS 1694 (1998); Burris v. Texas, 2001 Tex.App.LEXIS 2620 (2001); and Idaho v. Spor, 134 Idaho 315 (2000).
6 Oregon v. Leach, 169 Ore.App. 530; Idaho v. Spor, 134 Idaho 315; Wisconsin v. Ashmore, 2000 WI App 32 (1999); Michigan v. Starr, 457 Mich. 490 (1998); New Hampshire v. Haley, 141 NH 541 (1997).
7 Id.
8 Anited States v. Johnson, 132 F.3d 1279 (9th Cir., 1997); but see also New Hampshire v. Haley, 141 NH 541 (1997).
9 In the Matter of Matthew Charles Manahl, 2000 Minn.App.LEXIS 533.
10 Maine v. Pfeil, 1998 ME 245; Minnesota v. Cox, 1999 Minn.App.LEXIS 655; New York v. Marinconz, 178 Misc.2d 30.
11 Arizona v. Bass, 2001 Ariz.App. LEXIS 145.
12 Id.
13 Georgia v. Staley, 2001 Ga.App.LEXIS 462.
14 United States v. Romero, 189 F.3d 576 (7th Cir, 1999); United States v. Johnson, 132 F.3d 1279 (9th Cir, 1997); Willits v. Texas, 2001 Tex.App.LEXIS 470; Iowa v. Query, 594 NW 2d 438 (1999); California v. Hatfield, 68 Cal.App.4th 594 (1998); United States v. Huberty, 53 MJ 369 (2000).
15 United States v. Patterson, 54 MJ 74 (2000).