By Sharon Coolidge
The Cincinnati Enquirer

The 1st District Court of Appeals ruled Friday that an Ohio law allowing law enforcement officers to pose as children to catch Internet predators is constitutional.

The law makes it a crime for anyone over the age of 18 to use a computer or phone to solicit sex from a child. In 2001 the Legislature amended the law to make the crime a felony and, specifically, to allow police to go undercover online.

The appellate court is one of the first to uphold the constitutionality of the charge.

"Logic might flinch at the criminalization of conversation with an adult posing as a child," said 1st District Court of Appeals Judge Mark Painter. "But experience teaches that this law is necessary; it is almost impossible otherwise to catch those who would prey sexually upon children."

The case before the Appeals Court involves Thomas Tarbay, a Pickerington man convicted in July on charges of importuning and attempted unlawful sexual conduct with a minor.

Tarbay, 49, was accused of soliciting sex in an Internet chat room from two girls he thought to be ages 13 and 15. An officer was posing as the girls.

Tarbay was sentenced to 180 days in jail and placed on three years probation. A judge also designated him a sexually oriented offender.

Tarbay's appeals attorney, Louis Sirkin, argued before the appellate court that his client's First Amendment rights to free speech had been violated during the sting. Sirkin said Tarbay had not actually committed a crime because a real minor was not involved.

The opinion written by Judge Lee H. Hildebrant Jr. referred to the 3rd District Court of Appeals, which has said, "The state had a compelling interest in protecting minors from unlawful sexual activity."

Sirkin also argued that the law punishes thought.

But the court disagreed.

"Tarbay was not convicted of importuning because he was thinking about having sex with a minor; he was convicted for his intent to solicit a person he believed to be a minor to engage in sex acts with him," Tarbay wrote.

---

E-mail scoolidge@enquirer.com