The pudgy, pasty, and exceedingly creepy founder of Perverted Justice, the online vigilante group that NBC News pays to lure in gap-toothed perverts for Dateline NBC's "To Catch a Predator," narrowly escaped a taste of his own medicine last week. On August 10, a judge in Oglethorpe County, Georgia, issued a previously unreported order finding that "there is probable cause to believe that Xavier Von Erck solicited ... child molestation, statutory rape, or attempted child molestation or attempted statutory rape."
Sadly, it's not quite as deliciously ironic as it sounds: There's no evidence (yet) that Von Erck is a secret pedophile. The case stems from a rather novel legal theory pursued by Robert E. White, whose son Robert Gerald White was arrested for attempted child molestation and attempted statutory rape after a Dateline sting in Harris County, Georgia, last year. The elder White thinks that Von Erck, by posing as a 15-year-old girl during online chats with his son, actually solicited the younger White into showing up at the Dateline house for sex. And in Georgia, solicitation is a crime.
Robert E. White's attorney, Gary Gerrard, went to a Georgia state judge last month seeking a warrant for Von Erck's arrest for criminal solicitation, and the judge, by and large, agreed: He issued an order stating that "there is probable cause to believe that Xavier Von Erck communicated with Robert Gerald White with intent that Robert Gerald White would engage in conduct constituting a felony." In other words, Von Erck wanted the younger White to break the law and tried to get him to do so, behavior that is usually considered criminal in Georgia. But the judge declined to issue the warrant, finding that there was no way the younger White could have actually committed the crime that Von Erck was soliciting him to commit—there was, after all, no 15-year-old girl to molest.
But it might not be that simple. Gerrard and other sources familiar with Georgia criminal law say the judge plainly got it wrong.
Georgia law clearly states that "it is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited." So if Von Erck were prosecuted for solicitation, he wouldn't be able to argue that he knew all along that no actual 15-year-old girl was going to be molested.
"The law says the impossibility of committing the crime is not a defense," says Gerrard.
What's more, White was charged with attempted molestation, a crime that he actually committed by showing up at the Dateline house. And that crime, the judge's order says, was solicited by Von Erck.
"It seems clear here that Von Erck did intend for this man to commit a felony," said Robert D. Leonard II, a Georgia criminal defense attorney who maintains a blog on Georgia law. "The felony would be attempted child molestation."
Gerrard says he is considering his options and may appeal the order.
In a statement, NBC said, "We believe our newsgathering and activities in connection with "To Catch a Predator" fully complied with Georgia law."
E-mailed for a response, Von Erck replied, "Thanks for contacting us for comment. Unfortunately, you're not a legitimate reporter, you're just a rather scummy fellow who writes for a tabloid rag. Other than being told that you're a scummy hack who resembles a stalker more than a journalist, we don't have any comment for you on this issue or any other issue."
