Sunday, January 29, 2006

Case Law Development: Ninth Circuit Rules 2-1 that Americans Who Pay for Sex with Children in Foreign Countries may be Prosecuted in U.S.

Americans caught paying children for sex in foreign countries can be prosecuted in the United States, a panel of the Ninth Circuit Court of Appeals Ruled Wednesday.  In its 2-1 ruling, the panel upheld a two-year-old law criminalizing such behavior.

The court was confronted with a question of first impression regarding the scope of Congress’s power under the Foreign Commerce Clause. At issue was whether Congress exceeded its authority “to regulate Commerce with foreign Nations,” U.S. Const. art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S.citizen who travels in “foreign commerce,” i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor. 18 U.S.C. § 2423(c). 

The defendant, age 71, did not dispute that he traveled in “foreign commerce,” nor did he dispute that he engaged in illicit commercial sexual conduct. He lived from 1998 to 2003 mostly in the Southeast Asian nation of Cambodia and had sex with between 40-50 boys there, by his own admission. Victims told authorities they had earned between two and five dollars for the sex acts.

He was extradited to the United States and was the first person charged under a 2003 law that made it easier to prosecute cases of commercial sex with children abroad. The defendant admitted his activities in a 2004 plea agreement that sent him to prison for 97 months, while leaving open the possibility to appeal the law on constitutional grounds.

The court held that the defendant failed to demonstrate “a plain showing that Congress . . . exceeded its constitutional bounds,” in enacting §§ 2423(c) and (f)(2). "Traveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which the defendant pled guilty," said the court. "The fact that §§ 2423(c) and (f)(2) meld these economic and criminal components into a single statute does not put the conduct beyond Congress’s reach under the Foreign Commerce Clause. The rational nexus requirement is met to a constitutionally sufficient degree. Congress did not exceed its power `to regulate Commerce with foreign Nations in criminalizing commercial sex acts with minors committed by U.S. citizens abroad.” Source:  Adam Tanner, Reuters, today.reuters.com.  For the complete story, please click here (last visited January 29, 2006, reo). The opinion, U.S. v. Clark, filed January 25, 2006, may be found here (last visited January 29, 2006, reo).

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