Human sex trafficking has been a widely discussed issue in recent years and has been the subject of numerous documentaries and movies, including the “Sound of Freedom,” which is currently playing in theaters across the country. The movie is based on the real-life experience of a former federal agent who traveled to Cartagena, Colombia, and the central Colombian jungle to locate a young girl who was being held captive by child traffickers. Apart from bringing awareness to the pernicious problem of child sex trafficking, the movie also highlights the broad power of the United States Federal Government to investigate and prosecute individuals for conduct that occurs in foreign countries, regardless of whether the conduct violates that country’s laws.
There are many levels and types of trafficking that plague people, including minors, throughout the United States and afar. One such scenario is rather common and surprises many people unfamiliar with federal law. The situation includes American citizens visiting a country where the age of consent for voluntary sexual conduct is less than 18 years old. The citizen engages with a person who has not yet reached the age of 18. Because the age of consent in that country is much lower than in the United States, the U.S. citizen believes that their conduct is legal.
Upon returning to the United States, they are questioned by the Department of Homeland Security or another division of federal law enforcement as to their activities while out of country. Their smartphone, tablet, and laptop are seized to be forensically examined. Admissions are made, chats and web searches are discovered, and incriminating photographs are extracted. The citizen is taken into federal custody while trying to understand how they could be prosecuted in the United States but not in the country where the underlying conduct occurred. Enforcement in instances like this is becoming more common today. Some are rightfully accused and prosecuted; others, however, are wrongfully accused. Both are in need of legal representation as this is a complicated area of law.
In 1994, Congress enacted 18 U.S.C. § 2423(b) as part of the Violent Crime Control and Law Enforcement Act of 1994 (“Violent Crime Act”), making it a crime for “a United States citizen ... [to] travel [ ] in foreign commerce ... for the purpose of engaging in any sexual act ... with a person under 18 years of age....” Pub. L. No. 103-322, 160001(g), 108 Stat. 1796, 2037 (1994) (codified at 18 U.S.C. §§ 2423(a)-(b) (1994)). Section 2423(b)’s reach was limited to individuals who traveled abroad intending to engage in illicit sex acts. But proving intent was difficult. See H.R. Rep. No. 107-525, at 2 (2002). In 2003, Congress enacted § 2423(c) to permit the prosecution of individuals who travel abroad and engage in illicit sex acts – regardless of whether they intended to do so at the time of travel. See Durham, 902 F.3d at 1196.
In essence, 18 U.S.C. § 2423(c) prohibits a United States citizen from traveling to a foreign country and engaging in illicit sexual conduct. The statute contains three essential elements that the Government must prove beyond a reasonable doubt, to wit: (1) that a United States citizen; (2) travels in foreign commerce; and (3) engages in illicit sexual conduct. Each element is discussed more fully below. The statute also provides an affirmative “mistake of age” defense where the “illicit sexual conduct” being alleged is a commercial sex act. Under such circumstances, the defendant may avoid criminal liability if they can establish, by clear and convincing evidence, that they reasonably believed the other party had attained the age of 18 years at the time of the subject encounter. See 18 U.S.C. § 2423(g).
A defendant who is accused of engaging in any prohibited conduct in a foreign country faces severe consequences. Any person convicted of violating 18 U.S.C. § 2423 is subject to a sentence of ten (10) years to life in prison in the United States. Apart from serving a significant term of incarceration, the defendant will also be required to register as a sex offender for anywhere between fifteen years to life. Importantly, these penalties are separate and distinct from any punishment that the defendant may receive in the foreign country where the conduct occurred.
Elements of the Offense
The term “travel” is generally interpreted as requiring proof that the defendant went from one place to another. To that end, courts have rejected attempts to narrowly construe the statute’s reach to instances where the prohibited sexual conduct occurred while the defendant was en route from one location to another. See, e.g., United States v. Clark, 435 F.3d 1100, 1107 (9th Cir. 2006) (“[§ 2423(c)] does not require that the conduct occur while traveling in foreign commerce.”). Rather, travel denotes a broader concept of movement abroad. A person may still be traveling even after a significant amount of time in a given location so long as the visit is sufficiently transient or contemplates some future departure. See United States v. Jackson, 480 F.3d 1014, 1022 (9th Cir. 2007). Travel can thus continue until a party either returns to his or her place of origin or permanently resettles elsewhere.
B. Foreign Commerce
The term “foreign commerce,” which is defined in 18 U.S.C. § 10, has been interpreted as requiring some nexus with the United States. See, e.g., Bollinger, 798 F.3d at 214; United States v. Pendleton, 658 F.3d 299, 307-08 (3d Cir. 2011) (“Courts have consistently held that the Foreign Commerce Clause requires a jurisdictional nexus ‘with’ the United States, but there is precious little case law on how to establish the requisite link . . . .”); United States v. Weingarten, 632 F.3d 60, 70 (2d Cir. 2011) (“[I]t would be anomalous to construe the general definition of ‘foreign commerce’ in § 10 . . . as including all forms of commerce occurring outside the United States and without nexus whatsoever to this country”). The statutory history of § 10 reinforces this requirement. Id. at 67-70.
Travel in foreign commerce therefore encompasses movement abroad that maintains some nexus with the United States. “Movement directly to or from the United States is unquestionably an adequate nexus” United States v. Schmidt, 845 F.3d 153, 157 (4th Cir. 2017). Similarly, courts have held that the foreign commerce element can be satisfied where the defendant has significant assets remaining in the United States and continually travels on a United States passport, even when the individual had been living in a foreign country for a significant period of time.
C. Illicit Sexual Conduct
“Illicit sexual conduct” is defined to proscribe three different types of conduct: (1) engaging in sexual activity with a minor who is older than 12, but less than 16 years old when the defendant is at least 4 years older than the minor; (2) any commercial sex act (i.e., prostitution) with a person who is under the age of 18; and (3) the production of child pornography. See 18 U.S.C. § 2423(f)(1)-(3).
The term “commercial sex act” is further defined as “any sex act, on account of which anything of value is given to or received by any person.” See 18 U.S.C. § 1591(e)(3). Congress's use of expansive language in defining commercial sex act – e.g., using such terms as “any sex act,” “anything of value,” etc. – permits a liberal interpretation and application of the statute, and courts have historically given such an expansive interpretation to the phrase “anything of value” in other related contexts. See, e.g., United States v. Maneri, 353 F.3d 165, 168 (2d Cir. 2003) (defining “thing of value” in the context of 18 U.S.C. § 2252’s sentencing guidelines to include intangibles, specifically “the opportunity for a sexual encounter, in return for distributing child pornography”); United States v. Cook, 782 F.3d 983, 989 (8th Cir. 2015) (acknowledging the “extremely broad” nature of the term “anything of value,” and holding defendant's receipt of sexual photographs, as well as the sex acts in which he participated, “could constitute things of value under [Section 1591]”); United States v. Rivera, 2012 WL 6589526, *5 (M.D. Fla. Dec. 18, 2012) (finding, in the context of 1591, that “the term ‘anything of value’ encompasses more than just monetary gain and thus encompasses T.M.'s ordination” as a prophet).
As noted above, the statute contains an affirmative defense that insulates an individual from prosecution if they can establish, by clear and convincing evidence, that they reasonably believed that the person with whom they were engaging in the commercial sex act was at least 18 years old. See 18 U.S.C. § 2423(g). There are not many published decisions specifically addressing the affirmative defense under 18 U.S.C. 2423; however, several courts have interpreted comparable provisions under 18 U.S.C. § 1591, which prohibits participating in or benefiting from a venture involving commercial sex acts with minors.
For instance, the Sixth Circuit Court of Appeals has upheld a conviction under 1591, even though the victim initially told the defendant that she was over the age of 18. See, e.g., United States v. Jackson, 622 Fed.Appx. 526 (6th Cir. 2015). As the Court observed, the defendant’s initial belief as to the victim’s age is not necessarily outcome determinative; rather, courts must also consider whether later interactions or subsequently disclosed information caused – or reasonably should have caused – the defendant to doubt that initial belief. Id. at 535. The Ninth and Eleventh Circuits have similarly found that a victim’s testimony that they informed the defendant of their age prior to or during their sexual relationship was sufficient to overcome the defendant’s mistake of age claim. See, e.g., United States v. Redd, 511 Fed.Appx. 656 (9th Cir. 2013); United States v. Rivera, 558 Fed.Apppx. 971 (11th Cir. 2014). Likewise, the Fifth Circuit has previously held that in the context of prosecutions under 18 U.S.C. § 1591, the touchstone for whether a defendant recklessly disregards a victim's age is whether there are facts that “would cause a reasonable person to question whether the victim was actually eighteen years old.” United States v. Phea, 755 F.3d 255, 261 (5th Cir. 2014).
Other courts across the country have considered similar factors in determining whether the defendant knew the victim was underage or was reckless in that regard. For example, courts have found sufficient evidence to convict the defendant where the jury was able to observe the victim testify and view several photographs of the victim taken before they turned 18 years old. See, e.g., United States v. Robinson, 702 F.3d 22 (2d Cir. 2012); United States v. Brooks, 610 F.3d 1186 (9th Cir. 2010). Some courts have also relied upon text messages, emails and other communications between the defendant and the victim where the issue of age is discussed. See, e.g., United States v. Atkins, 52 F.4th 745 (8th Cir. 2022) (evidence was sufficient to prove that defendant knew or recklessly disregarded that the victim was under the age of 18, as required to support a conviction for sex trafficking of a minor; victim testified that she told the defendant in a text message that she was 17 years old and that she sent him a photo of her birth certificate to prove it, and although the text messages were not recovered by the Government, the victim also testified that she and the defendant had in-person conversations about her age, and that the defendant told the victim not to wear any clothing with her school's name on it because he did not want anyone to know that she was in high school); United States v. Banker, 876 F.3d 530 (4th Cir. 2017) (evidence sufficient to establish that the defendant knew or recklessly disregarded the victim’s age; both victim and accomplice testified that accomplice told the defendant that the victim was 17 years old before the charged offenses occurred, and the defendant had multiple opportunities to observe and spend time with the victim, engaged in sexual activities with the victim, knew she lived with her stepfather, knew she attended a local high school, knew she did not have a source of income, and knew she described herself as a “runaway” when she elected not to return home to her stepfather); Phea, 755 F.3d 255 (the defendant knew that the victim did not have identification that would allow her to obtain an airline ticket, victim was only 14 years old, there was no evidence that the victim appeared to be 18 or older, and jury was entitled to draw its own conclusions from its direct observations as to the victim's appearance and behavior).
Although the defendants in the foregoing cases were unsuccessful in their attempts to rely upon the mistake of age affirmative defense, these opinions provide useful guidance for defense counsel who are representing a client facing an investigation and/or prosecution for engaging in commercial sex acts in a foreign country. To that end, counsel will need to obtain all communications between the defendant and others concerning any sexual activity that may have occurred. Likewise, counsel will want to secure any of the victim’s social media accounts, including any postings or profiles, to determine whether the victim made any representations about their age. This can be particularly significant since many dating websites or social media platforms require their users to be 18 years of age or older.
Additionally, counsel may want to retain a private investigator to assist with traveling to the location where the conduct is alleged to have occurred in order to interview witnesses as well as the potential victims. Due to cultural differences and language barriers, attorneys should also consider engaging someone locally to help interpret and facilitate needed interviews.
At Friedman Nemecek & Long, L.L.C., our team of experienced attorneys have travelled the globe representing individuals facing criminal investigations or charges related to sexual activity occurring in various foreign countries. Our lawyers stay abreast of the constant changes in legislation and/or court cases to ensure that our clients receive the most comprehensive and effective representation available. If you have questions regarding such matters, or you have been subjected to, or accused of, committing a criminal offense for sexual activity in a foreign country, please call the law firm of Friedman, Menashe, Nemecek, & Long, L.L.C., at 888-694-4645 for an initial consultation.