This Note analyzes law enforcement's use of one particularly troublesome tactic-the use of sexual acts or romantic promises to encourage a defendant to participate in illegal activities or to obtain information that can be used against the defendant at trial. The first part of this Note gives a brief history of the outrageous government conduct defense, including its distinction from entrapment, its origin and its lack of success in the courts. Although the entrapment defense and the outrageous conduct defense have some similarities, they are in fact quite different. The second section of this Note discusses the perception of sex and intimacy in the United States, and why according to this perception and the Constitution, the use of sex/intimacy is not an appropriate investigative tool. Section three of this Note examines police ethics and demonstrates that they do not and should not include using sex or intimacy during investigations. Part four analyzes federal and state sexual misconduct cases, and explains why the decisions reached by the courts are incorrect and immoral according to the Constitution and the views of sex and intimacy expressed in the United States. Finally, this Note concludes that the use of sexual or emotional intimacy by undercover agents/informants as an investigative tool is unconstitutional, outrageous and should be forbidden. There is no possible way to draw a line or develop a proper standard to apply when undercover agents use sexual conduct. This type of conduct is outrageous across the board and will lead to a lack of trust in law enforcement by all people in society. The solution is that this conduct should be prohibited altogether.
Note, Sexual Misconduct and the Government: Time to Take a Stand, 48 Clev. St. L. Rev. 793 (2000)