Love's labour's lost: Michael Lewis Clark's constitutional challenge of 18 U.S.C. 2423(c).

• Author: Messigian, Amy

I shall be forsworn--which is a great argument of falsehood,--if I love. And how can that be true love which is falsely attempted? Love is a familiar; Love is a devil: there is no evil angel but Love.

--William Shakespeare, Love's Labour's Lost

Lolita, light of my life, fire of my loins. My sin, my soul. Lo-lee-ta: the tip of the tongue taking a trip of three steps down the palate to tap, at three, on the teeth.

Lo. Lee. Ta.

She was Lo, plain Lo, in the morning, standing four feet ten in one sock. She was Lola in slacks. She was Dolly at school. She was Dolores on the dotted line. But in my arms she was always Lolita.

--Vladimir Nabokov, Lolita

It is May 1, 2003. Michael Lewis Clark boards a United States military flight in Seattle, Washington headed for Asia. (1) After stopping in Japan, Singapore, Malaysia and Thailand, sixty-nine-year-old Clark travels to his home of five years, Cambodia. A sign at the Phnom Penh airport cautions, "Abuse a child in this country, go to jail in yours." Like many others, Clark does not heed the sign's warning and is arrested by Cambodian National Police on June 28, 2003, on "charges of debauchery for engaging in sexual contact with two Cambodian boys." (2) Clark is expelled from Cambodia and returned to the United States, where he is charged with committing a crime against the United States--engaging in illicit sexual conduct with a child on foreign soil.

It is only recently that the long arm of the law has extended prosecution of sex offenders off United States soil. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the "PROTECT Act"), passed by Congress on April 13, 2003, and signed into law on April 30, 2003, by President Bush dramatically improved the United States government's ability to pursue American citizens and resident aliens who commit sexual crimes against children outside of United States territory. (3) The PROTECT Act consists of a series of child-protection measures including the establishment of the Amber Alert for missing children. (4) Arguably, the most important part of the legislation is one of its lesser known elements: its enhancements to Section 2423 of the United States Criminal Code--a criminal statute providing for the prosecution of those who engage in child molestation abroad, among other things. (5)

On September 24, 2003, the United States government indicted Clark in the Western District of Washington on two counts of engaging in illicit sexual conduct in foreign places in violation of 18 U.S.C. [section] 2423(c). (6) Though challenging the constitutionality of the section, Clark pleaded guilty to the crimes and was sentenced to ninety-seven months imprisonment pending adjudication of the constitutional issues. (7)

Clark is the first person to receive a conviction under Section 2423(c). (8) Subsection (c) of Section 2423 criminalizes traveling in foreign commerce and engaging in illicit sexual acts with minors. (9) Clark moved to dismiss the case, but the District Court in the Western District of Washington denied each of Clark's motions. He appealed the lower court's rulings to the Ninth Circuit, only to have each of his claims rejected in a split decision issued on January 25, 2006, making the Ninth Circuit the first appellate court to expressly uphold Section 2423(c). (10) The Ninth Circuit concluded that Congress has the authority to enact legislation covering the type of activity prohibited by Section 2423(c), and that such legislation does not negate any obligations under international law nor does it offend Clark's constitutional rights. (11) However, in its analysis, the court left open several questions regarding the applicability of Section 2423(c) to circumstances not addressed in Clark, such as where the conduct in question does not constitute a "commercial sex act." (12)

The purpose of this paper is to analyze Clark's contentions, and to assess the relative weights of arguments against the constitutionality of Section 2423(c) in light of the Ninth Circuit ruling. Part A of this note discusses the problem of sexual exploitation of children worldwide and the steps the United States has taken to criminalize child sex tourism. Part B provides background information on the Clark case and its movement through the judicial system. Part C addresses the first of Clark's contentions; that extraterritorial application of Section 2423(c) violates international law, and articulates clear justifications for extraterritoriality. Part D briefly reviews Clark's argument that the statute does not apply to his behavior because he was not literally traveling at the moment he engaged in illicit sexual activity, and questions where a line might be drawn where a time lag exists between traveling and engaging in sexual misconduct. Part E assesses Clark's claim that Section 2423(c) constitutes an impermissible use of the commerce clause, and validates the Ninth Circuit's determination that the Lopez interstate commerce scheme is inapplicable to foreign commerce cases. Part F discusses the Ninth Circuit's rejection of Clark's due process challenge and offers potential procedural concerns arising from the extraterritorial reach of U.S. criminal law. Finally, Part G addresses the status of the law at present and offers suggestions that would further deter would-be child sex offenders.

1. IT'S A SMALL WORLD, AFTER ALL

   Sexual exploitation affects millions of children worldwide. (13) From Costa Rica to Thailand, Cambodia to India, children are prostituted, displayed in various forms of pornography, forced to engage in degrading acts, and trafficked for sexual purposes. (14) Some children are abducted, some are sold to pay off family debts, and still others are runaways forcefully recruited into prostitution. (15) "These abhorrent practices make child prostitution, pornography and sex tourism a multi-billion dollar international business." (16) The United States contributes greatly to this problem. Sex tours and travel for illicit sexual purposes exacerbates the sexual exploitation of children and research indicates that an estimated 25% of sex tourists worldwide are U.S. citizens. (17) A survey conducted by the Cambodian government and the humanitarian organization World Vision in 2001 estimated that Western pedophiles make up around 38% of the sex offenders frequenting the three predominant locales of sex tourism in Cambodia. (18)

   Though sexual exploitation of children is not a new problem, only recently has it become an issue of international concern and made its way onto the U.S. policy radar. The efforts of the United States to curb the demand side of sexual tourism reflect the increasingly global nature of criminal law. This change is the result of multiple developments: the globalization of U.S. law enforcement, the use of international conventions to internationalize criminal law, and the creation of independent international criminal law mechanisms. (19) The protection of children has played an especially significant role in these international efforts; for example, nations around the world have joined together by signing the United Nations Convention on the Rights of the Child (the "Convention"). (20) The Convention creates a set of obligations for the countries that ratify it, and specifically calls on state parties to enact criminal provisions dealing with sex tourism. (21) There are 192 state parties to the Convention, and the United States is one of only two states to have signed but not yet ratified the treaty. (22) However, despite not having given effect to the Convention, the United States ratified the Convention's Optional Protocol on the sale of children, child prostitution and child pornography (the "Optional Protocol") on January 23, 2003, only months before enacting the PROTECT Act amendments. (23) Of particular relevance are the terms of Articles 3 and 4 of the Optional Protocol. Article 3 states in pertinent part:

   1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether such offences are committed domestically or transnationally or on an individual or organized basis: ...

   (b) Offering, obtaining, procuring or providing a child for child prostitution, as defined in article 2; ... (24)

   Moreover, Article 4 provides:

   ... 2. Each State Party may take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 3, paragraph 1, in the following cases:

   (a) When the alleged offender is a national of that State or a person who has his habitual residence in its territory;

   (b) When the victim is a national of that State.... (25)

   As an additional international policy measure, the United States signed the Yokohama Global Commitment, which "welcomes new laws to criminalize [child prostitution], including provisions with extraterritorial effect" at the Second World Congress Against Commercial Sexual Exploitation of Children in 2001. (26) In its statement accompanying the Commitment, the United States wrote that it "believes that the Optional Protocol and [the International Labour Organization's Convention No. 182 regarding child labor] provide a clear starting point for international action concerning the elimination of commercial sexual exploitation of children." (27)

   Piecemeal steps improving the ability of the United States to prosecute acts of child sexual exploitation committed outside United States territory, along with coordinated efforts in investigating and extraditing child sex offenders, evidence a commitment on the part of the United States to uphold the Optional Protocol and the Yokohama Commitment's terms. (28) Indeed, the PROTECT Act does not mark the beginning of efforts by the United States to curb child sex tourism. In 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (29) (the "Crime Bill") into law, which...