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Case 1:20-cr-00330-PAE Document 397-1 Filed 10/29/21 Page 3 of 43

958
N. Bennett and W. O’Donohue

before abuse has actually taken place the abuse may be prevented. Second,
in a forensic context, sexual abuse allegations might be partially substantiated
when it is established that grooming did indeed occur. However, without
a clear grooming definition and a valid way of measuring grooming, this
judgment that a behavior constitutes grooming becomes problematic. For
example, a recently convicted sex offender in Las Vegas, Nevada, is seeking
to appeal his conviction on the grounds that the testimony provided by a
psychologist regarding his grooming behavior is unreliable (Mower, 2012).
His defense attorney claimed that “[Grooming] is not a proven science. It’s
a behavioral thing. . . . How can you tell that this was in the mind of this
guy?”
There have been attempts to criminalize grooming in several countries.
In the United States, a federal law (18 USC § 2252A(a)(6)) has made it illegal
and thus adds years onto a sentence for people who knowingly offer child
pornography to a minor to persuade the minor to participate in an illegal
activity such as adult–child sexual contact (18 USC § 2252A, certain activities
relating to material constituting or containing child pornography). In the
United Kingdom, Section 15 of the Sexual Offences Act 2003 has covered
“the behavior of an offender who meets, or seeks to meet, a child with the
intention of committing a sexual assault, if he has met or communicated
with that child on at least two earlier occasions” (McAlinden, 2006, p. 342).
However, as Gillespie (2004) noted, definitional problems with the construct
of grooming limit the use of this law, as grooming is “a transient feature that
is difficult to capture and virtually impossible to decide when it begins and
ends” (p. 586). McAlinden also described another law designed to criminalize
grooming in the UK:

Sections 123-9 introduce the risk of sexual harm order—a new civil
preventative order which can be used to prohibit specified behaviours,
including the ‘grooming’ of children. . . . This order effectively criminal-
izes acts which may be carried out for the purposes of sexual grooming,
but only after an individual had been identified as posing a risk to
children. (p. 342)

O’Callaghan (2011) described that in Wales a man pled guilty and was
sentenced to a year in prison for one count of meeting a child following sex-
ual grooming that consisted of inappropriate communication via Facebook.
In addition, Vance (2012) described a proposed law in New Zealand that
provides a sentence of three years in prison for anyone who participates in
online “indecent communication with anyone under 16.” This law is aimed at
sexual offenders who use Internet chatrooms or other social media websites
to find victims.
It is evident that these legal definitions of grooming are both varied
and limited. The sorts of activities that these laws target do not actually

DOJ-OGR-00005870