The Precursor Crime: Grooming & the Limits of the Law.

By Chloe Mills

Introduction

Social media is ever-expanding and creates a way for individuals to communicate with friends and family who live around the world. This also means a predator can find millions of potential child victims with one search. Social media has now provided predators with a seemingly endless supply of prey accessible to them without even leaving their couch. It is estimated that, on average, minors use the internet about seven and a half hours each day.^[1] Child sexual exploitation crimes have taken a form that has never been seen before and therefore require prevention that has never been contemplated until now. How and when is the government permitted to protect such a vulnerable population? There are already efforts underway to combat one glaring issue: internet-based grooming.

Understanding Grooming in the Digital Context

Child grooming is commonly understood as “an adult building a relationship with or soliciting a child to exploit or abuse them sexually.” ^[2] Grooming occurred long before the introduction of the internet, when predators would find their victims in classrooms, neighborhoods, community centers, and other places where physical interaction and relationships could develop. However, with the ease of communication via online websites and social media, it has become more convenient, less dangerous, and more enticing for perpetrators. A study conducted in the United Kingdom revealed that the sexual assault of a minor can occur in less than eighteen minutes by manipulating or persuading the minor online.^[3]

Grooming involves building trust with the victim and is typically achieved through extensive conversations conducted via email, social networking sites, chatrooms, and other online communication forums.^[4] Perpetrators specifically target their victims by looking at their social media profiles to determine which techniques will be most effective in their communications.^[5] They will use the victims’ posts to determine key talking points such as location, interests, and vulnerabilities in order to exploit weaknesses and instill a sense of commonality.^[6] Conversely, perpetrators may not be strangers but rather individuals the child has previously met or with whom the child has already formed a relationship with outside the online realm.^[7]

United States Current Legal Framework

The United States federal statute that criminalizes the enticement of children is typically used to prosecute grooming.^[8] The enticement statute punishes anyone who “knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.”^[9] Further, “whoever, using the mail or any facility or means of interstate or foreign commerce, or knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity” may also be punished.^[10]  To be successful with a charge under this statute, the prosecution bears the burden of proving that the individual “intended to commit the crime of child sexual abuse and that the individual took a ‘substantial step’ towards child sexual abuse.^[11] These elements are what make conviction of a grooming charge alone difficult to obtain. It is extremely difficult for a prosecutor to prove what the defendant’s intentions are if the separate crimes of sexual assault or the production of Child Sexual Abuse Material have not yet been completed.^[12] This is why the offense of grooming is typically applied as a companion charge when there has already been an assault or other crime committed.^[13] This poses the following question: is this form of legislation is a successful approach?

Constitutional Considerations for Alternative Approaches

There are several constitutional constraints to consider when creating or amending grooming laws. The First Amendment protects freedom of speech.^[14] This issue was addressed by the Supreme Court of Minnesota in State v. Muccio, which dealt with the constitutionality of a Minnesota grooming statute.^[15] The Minnesota statute that was challenged in Muccio prohibited "[a] person 18 years of age or older" from "us[ing] the Internet, a computer, . . . or other electronic device capable of electronic data storage or transmission" to "engag[e] in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct."^[16] Additionally, the statute stated that the adult must act "with the intent to arouse the sexual desire of any person."^[17] Muccio argued that this statute was unconstitutional on its face because it burdened a substantial amount of constitutionally protected speech.^[18] The Court found that upon examination of the plain language of the statute, it prohibited constitutionally protected speech; the Court also held, however, that it was not substantially overbroad, and upheld the statute against a facial challenge.^[19]  This statute did prohibit constitutionally protected speech, meaning that statutes that are less specific or restrict more speech could be struck down under the First Amendment.

First Amendment issues may also arise when using a preventative approach to grooming rather than a punitive approach. One example of a law using a preventive approach is the Australian social media age-based restriction. In November 2024, the Australian Online Safety Act was amended to create a ban on social media accounts belonging to those under the age of 16.^[20] Most social media sites have a minimum age of at least 13; however, studies show that in Australia, 84% of social media users are 8-12 years old.^[21] Without age-restrictive social media laws, many social media platforms would prompt users with a box to check to ensure they were over the required age.^[22] This industry method has proved ineffective as one-third of children under thirteen years old lie about their age in order to gain access to the platforms.^[23] Under the Australian law, children must provide proof of age either by a government ID or an alternate pathway chosen by the site.^[24] If the site chooses to use government-issued identification, it must not be the only choice of verification for users.^[25] Australia has also begun testing age estimation systems, which use biometric data such as voice and facial features to infer a person’s age as another verification option.^[26]  While the Australian age limits on social media are primarily motivated by mental health concerns, protecting children and young teens from grooming and sexual exploitation are also relevant goals.^[27] In this sense, safeguarding minors from grooming can be viewed as a positive consequential effect of these laws and a future potential preventative method against online exploitation.

The Australian law, if enacted in the United States, could pose First Amendment issues based on the categories of speech it restricts. If the age-based restriction is on websites that predominantly contain sexually explicit content, then there might be a strong argument that it does not violate the First Amendment. When sexual material is not obscene under the Miller test, and is therefore considered protected speech, any restrictions must be subjected to strict scrutiny:  the restriction must be “necessary to promote a compelling interest” and represent the “least restrictive means” of achieving that interest.^[28]

 It is likely a court would find that preventing children from seeing content that is primarily sexually explicit through age-based verification would meet those standards.^[29] This is evidenced in Free Speech Coalition v. Paxton,where the Supreme Court of the United States upheld a Texas statute requiring pornographic websites to use verification methods to ensure the user is over the age of eighteen.^[30] The Court applied intermediate scrutiny, a lower level of scrutiny than normally used when both adults and minors are prevented from accessing certain types of speech.^[31]Upon examination, the Court found that the state had an “important interest in shielding children from sexual content” and that the age-verification requirement was “appropriately tailored” to achieve this goal.^[32] This decision reinforces the assumption that statutes regulating access to sexually explicit material to protect minors are likely to withstand constitutional challenges.

Another potential legal issue is the principle that the law must be clear, and the public must be aware of the prohibited act.^[33] It is impossible to know when a conversation will lead to grooming, and thus, it is favorable to criminalize these acts based on intent.^[34] However, it is difficult to know if an individual communicating with a child has innocent intentions or if there is a hidden motive to commit sex crimes against the child.^[35] Normal adult interactions with children are integral to the growth and development of the child; therefore, it is vital to public policy that laws are not so unclear as to make these adults eliminate all interaction to avoid committing a crime.^[36]

Conclusion

Internet-based grooming is a glaring issue that is only increasing in prevalence with the expansion of web-based communication capabilities. In 2024, more than 456,000 reports of “online enticement” were reported to the National Center for Missing & Exploited Children.^[37]  Predators are finding new ways to inflict their sadistic fantasies on the vulnerable children of the world. It is legislators’ and citizens’ duty to be informed and proactive to advocate for better protections against these new forms of grooming. There are many potential legal issues within the United States that can limit the effectiveness of prosecutorial and preventive methods used to reduce the rate of internet-based grooming offenses. However, while it is certainly important for our lawmakers to respect the Constitution, it is imperative that the interests of the children of America are protected.

^[[1]] D. L. Exzioni, The Crime of Grooming, 10 Child & Fam. L.J. 1, 7 (2021), https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1041&context=cflj.

^[[2]] Technology Coalition, Research Paper: Considerations for Detection, Response, and Prevention of Online Grooming 4 (July 2023), https://technologycoalition.org/wp-content/uploads/Research-Paper-Online-Grooming-Considerations-for-Detection-Response-and-Prevention-of-Online-Grooming.pdf.

^[[3]] Exzioni, supra note 1, at 8.

^[[4]] Int’l Centre for Missing & Exploited Children, Online Grooming of Children for Sexual Purposes: Model Legislation & Global Review, 2 (1^st ed. 2017), https://www.icmec.org/wp-content/uploads/2017/09/Online-Grooming-of-Children_FINAL_9-18-17.pdf.

^[[5]] Exzioni, supra note 1, at 6.

^[[6]] Id.

^[[7]] Id.

^[[8]] Leah E. Kaylor, Georgia M. Winters, Elizabeth L. Jeglic & Jennifer Cilli, An Analysis of Child Sexual Grooming Legislation in the United States, 29 Psychol., Crime & L. 11 (2022), https://www.tandfonline.com/doi/abs/10.1080/1068316X.2022.2043313.

^[[9]] 18 U.S.C. § 2422(a).

^[[10]] 18 U.S.C. § 2422(b).

^[[11]] Kaylor, supra note 8.

^[[12]] Exzioni, supra note 1, at 9.

^[[13]] Id. at 12.

^[[14]] U.S. Const. amend. I.

^[[15]] 890 N.W.2d 914 (Minn. 2017).

^[[16]] Minn. Stat. § 6.09.352, subd. 2a(2).

^[[17]] Id.

^[[18]] Muccio, 890 N.W.2d at 919.

^[[19]] Id. at 929.

^[[20]] Jasmine Fardouly, Potential Effects of the Social Media Age Ban in Australia for Children Younger Than 16 Years, 7 Lancet Digit. Health235, 235 (2025) https://www.thelancet.com/action/showPdf?pii=S2589-7500%2825%2900024-X.

^[[21]] Id.

^[[22]] Ashley Johnson, How to Address Children’s Online Safety in the United States, Information Tech. & Innovation Found., 11, 2024 https://www2.itif.org/2024-child-online-safety.pdf.

^[[23]] Technology Coalition, supra note 2.

^[[24]] Maria Rychkova et. al., The Age of Reason(able Steps): Australia’s Impending Social Media Minimum Age Obligations, MinterEllison, (2025), https://www.minterellison.com/articles/australias-impending-social-media-minimum-age-obligations.

^[[25]] Id.

^[[26]] eSafety Commissioner, Roadmap for Age Verification and Complementary Measures to Prevent and Mitigate Harms to Children from Online Pornography (2023) 16, https://www.esafety.gov.au/sites/default/files/2023-08/Roadmap-for-age-verification_2.pdf.

^[[27]] Katrina E. Champion et al., Debate: Social media in children and young people- time for a ban? Beyond the ban-empowering parents and schools to keep adolescents safe on social media, 30 Child & Adolesc. Ment. Health 411,414 (2025), https://pubmed.ncbi.nlm.nih.gov/40931432/

^[[28]] Sable Commc'ns of Cal. v. FCC, 492 U.S. 115, 126 (1989); see Miller v. California, 413 U.S. 15 (1973).

^[[29]] Johnson, supra note 22, at 13.

^[[30]] Free Speech Coalition v. Paxton, 606 U.S. 461, 145 S. Ct. 2291 (2025).

^[[31]]Id. at 463.

^[[32]] Id.at 463, 499.

^[[33]] Exzioni, supra note 1, at 10.

^[[34]] Id. at 11.

^[[35]] Id.

^[[36]] Id.

^[[37]] Nat’l Ctr. for Missing & Exploited Children, Online Enticement (2026), https://www.missingkids.org/theissues/onlineenticement.