The search for a constitutional justification for the noncommercial prong of 18 U.S.C. [section] 2423(C).

• Author: Notebaert, Jessica E.
• Position: PROTECT Act of 2003 - Symposium on Cybercrime

1. INTRODUCTION

   In September 2011, the Third Circuit became the first U.S. court of appeals to definitively address the constitutionality of a federal statute criminalizing citizens' noncommercial, overseas sexual conduct. (1) In United States v. Pendleton, it upheld the noncommercial prong (2) of 18 U.S.C. [section] 2423(c) against the defendant's facial challenge. (3) The Pendleton court, like other courts that have considered the issue, held that the Foreign Commerce Clause gave Congress the power to pass [section] 2423(c), which criminalizes "travel[ing] in foreign commerce, and engaging] in any illicit sexual conduct with another person." (4) But no two courts have used precisely the same reasoning in reaching that conclusion, leaving the noncommercial prong of [section] 2423(c) on shaky constitutional ground. (5)

   This Comment analyzes the possible constitutional justifications for the noncommercial prong of [section] 2423(c), which has primarily been used to prosecute U.S. citizens who engage in child sex abuse overseas. It advocates for a single test to determine the constitutionality of a criminal statute passed pursuant to Congress's Foreign Commerce Clause authority. It also argues that there is an alternate constitutional basis for statutes criminalizing citizens' overseas conduct--Congress's power to pass laws effectuating treaty obligations. As prosecutions of [section] 2423(c) violations become more frequent, (6) definitively resolving the statute's constitutional status may prevent protracted pretrial proceedings disputing the statute's legitimacy and normalize decisions across the lower federal courts.

   Part II of this Comment describes the background of [section] 2423(c), including the statute's origins, current form, and operation. It also surveys recent Foreign Commerce Clause jurisprudence, particularly as it relates to [section] 2423(c), with the goal of identifying and analyzing the different approaches taken by lower federal courts.

   Part III.A articulates a test for analyzing whether a statute that criminalizes citizens' overseas conduct is constitutional under the Foreign Commerce Clause. Applying that test, this Part concludes that Congress exceeded its authority under the Foreign Commerce Clause when it passed the noncommercial prong of [section] 2423(c). Part III.B argues that prosecutions under [section] 2423(c) of noncommercial child sex abuse occurring overseas may be constitutionally sound, but under Congress's Necessary and Proper Clause powers, not its Foreign Commerce Clause authority. The Necessary and Proper Clause authorizes Congress to pass laws, such as [section] 2423(c), to implement the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (Optional Protocol), a multilateral treaty to which the United States is a signatory. (7)

   Part III.C argues that prosecutors who wish to avoid litigating the unsettled constitutional status of [section] 2423(c) can obtain substantially the same results for substantially the same conduct under a related statute, [section] 2423(b). Section 2423(b) criminalizes, in pertinent part, "travel[ing] in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person." (8) The drafters of the 2003 PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act passed [section] 2423(c) because they feared that the need to prove intent under [section] 2423(b) prevented prosecutors from aggressively prosecuting sex offenders. (9) But this fear is proving unfounded because of the ways in which modern investigatory techniques, Federal Rule of Evidence 414, and the increasingly frequent admission of expert testimony in child sex exploitation cases have affected criminal trial practice.

   Finally, Part IV summarizes the arguments contained in Parts II-III and comments briefly on the significance of settling the issues discussed therein. In an era of globalization, Congress's increasing attempts to exert its reach extraterritorially require courts to be able to engage in informed discussions regarding Congress's constitutional authority to criminalize citizens' overseas conduct.

2. BACKGROUND

   1. TRACKING THE ORIGINS AND OPERATION OF SECTION 2423(c)

      Section 2423(c) was one of a number of provisions enacted in 2003 as part of the PROTECT Act, a comprehensive piece of federal legislation designed to address the growing concern over child pornography, sex tourism, and other forms of sexual exploitation of children. (10) It is one of four related provisions, sometimes called the "travel statutes," (11) that criminalize travel in interstate or foreign commerce that is connected to sexual abuse. (12)

      The first of the other three provisions, [section]2421, criminalizes transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or any other criminal sexual activity. (13) The current version of [section] 2421 originated in 1910 as the Mann Act, once known as the White-Slave Traffic Act. (14) The purpose behind the Mann Act was "to protect women who were weak from men who were bad," (15) although its scope has since expanded. (16) The second provision, [section] 2423(a), criminalizes transporting a minor in interstate or foreign commerce with the intent that the minor engage in prostitution or any other criminal sexual activity. (17) The third, [section] 2423(b), criminalizes traveling in interstate or foreign commerce for the purpose of engaging in any illicit sexual conduct, as defined by statute. (18)

      Section 2423(c) criminalizes traveling in foreign commerce and engaging in illicit sexual conduct. (19) Illicit sexual conduct is defined in [section] 2423(f) as:

      (1) [A] sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age. (20) The combination of [section] 2423(c) and (f)(2) criminalizes, in a nutshell, giving or receiving anything of value in exchange for any sex act with a minor. (21) This combination is known as the "commercial prong" of the sex tourism statute. (22) The combination of [section] 2423(c) and (f)(1) criminalizes the sexual abuse of minors. (23) This combination is known as the "noncommercial prong" of the sex tourism statute. (24)

      The purpose of 2003's PROTECT Act was to "give[] law enforcement authorities valuable new tools to deter, detect, investigate, prosecute, and punish crimes against America's children." (25) In addition to drafting new provisions increasing prosecutors' ability to track and collect evidence against child pornographers, the PROTECT Act substantially revised 18 U.S.C. [section] 2423. (26) The PROTECT Act replaced the then-current version of [section] 2423(b) with [section] 2423(b)-(g). (27) The revision left [section] 2423(b) substantially intact, (28) but added [section] 2423(c) ("Engaging in illicit sexual conduct in foreign places"), [section] 2423(d) ("Ancillary offenses," i.e., "arranging], inducing], procuring], or facilitating] the travel of a person knowing that such a person is traveling in interstate or foreign commerce for the purpose of engaging in illicit sexual conduct"), [section] 2423(e) ("Attempt and conspiracy"), [section] 2423(f) (defining "illicit sexual conduct"), and [section] 2423(g) (providing an affirmative defense to certain charges under this statute). (29)

      The primary effect of adding [section] 2423(c) was to remove one of the greatest barriers to enforcement of [section] 2423(b)--the requirement that prosecutors prove that mens rea existed prior to travel. (30) Under the precursor to [section] 2423(c)--the pre-2003 version of [section] 2423(b) (31)--a prosecutor had to prove that a defendant formed the intent to engage in illicit sexual activity prior to his travel in interstate or foreign commerce. (32)

      The PROTECT Act eliminated this intent requirement. (33) The conference report regarding the Act stated, "Current law requires the government to prove that the defendant traveled with the intent to engage in the illegal activity. Under [[section] 2423(c)], the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country." (34) In other words, a defendant could be prosecuted for traveling to a foreign country and engaging in illicit sex in violation of [section] 2423(c), even if he had no preconceived intent to do so. (35) Thus, the elements that prosecutors now need to prove under [section] 2423(c) are: (1) that the defendant is either a U.S. citizen or an alien admitted to the United States for permanent residence; (2) that the defendant traveled in foreign commerce; and (3) that while the defendant was in the foreign place, he engaged in illicit sexual conduct with another person. (36)

      The PROTECT Act did not include a jurisdictional statement, (37) and the legislative history surrounding its passage makes no explicit reference to a constitutional provision giving Congress the power to pass such wide-sweeping legislation. By contrast, the Sex Tourism Prohibition Improvement Act (STPIA), a precursor to the PROTECT Act that was proposed but not passed in 2002, included a "Constitutional Authority Statement" grounding Congress's authority to pass the law in its power to regulate commerce under Article I, Section 8 of the U.S. Constitution. (38) When Congress enacted the PROTECT Act instead of the STPIA, it neglected to include a similar statement of constitutional authority. (39) Nevertheless, courts that have considered the constitutionality of the PROTECT Act appear to have assumed that the Commerce Clause and, in...