Court dismisses attempted-rape charge against man who agreed to pay $200 for sex with a four-year-old

The Supreme Judicial Court today reversed an attempted-rape conviction for a man who agreed to pay an undercover Worcester cop $200 for sex with her supposed foster child, because police arrested him before he could get near the girl.

The court upheld Kerry van Bell's conviction on a charge of soliciting sex for a fee, because he agreed to hand over the money to the cop. But the court said it could not uphold his conviction on a charge of attempted rape of a child because the legal definition of "attempted" means police would have had to stop him in the moments just before he actually raped a child:

[W]e must determine whether, under the facts of this case, the defendant's actions were merely in preparation to commit the crime or if his actions constitute the crime of attempt. Here, the defendant met Cummings in a parking lot to arrange to have sex with a young child. He expressed his displeasure that the child was not in the car with Cummings. Cummings and the defendant then negotiated for sex with the child, coming to an agreement that she would provide her four year old foster daughter to him for sexual intercourse in exchange for $200. After reaching an agreement, she told the defendant to follow her to "Elm Street, by Elm Park," where the child was waiting. He began to drive his vehicle out of the parking spot, turning in the direction of the exit nearest Elm Park, which was approximately one mile away.

However, even though Cummings and the defendant came to an agreement, he had yet to see a child and did not know the exact location of the child. He had yet to follow Cummings to any type of house or park, and he had not yet paid for the child. The preparation and negotiation, although sufficient to warrant a guilty verdict of solicitation, did not come near enough--in time or ability--to the substantive crime of attempted rape to sustain a guilty verdict.

Van Bell was convicted on the two charges in 2007 and sentenced to four years at Cedar Junction. He had been convicted on similar charges in Californa and Nevada.

Complete decision.