Sex Overseas May Fall Under U.S. Jurisdiction

The New York Sun ^ | January 26, 2006 | JOSH GERSTEIN

[Lurking Libertarian]

SAN FRANCISCO - A federal appeals court panel yesterday upheld the government's authority to punish Americans for patronizing child prostitutes overseas, but one judge dissented from the ruling, warning that the law in question goes beyond Congress's power under the Constitution to regulate foreign commerce.

[snip]

The new ruling rejected a challenge to a law passed by Congress in 2003, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act, or PROTECT Act. The law bans "illicit sexual conduct" overseas regardless of the purpose of the trip. Under earlier statutes, a conviction required showing that an American traveled overseas with the intent of engaging in illegal sex. Prosecutors complained that this subjective prior intent was difficult to prove beyond a reasonable doubt.

[snip]

The two-judge majority noted that prostitution is inherently commercial, and that Congress has broad power to regulate such economic activity. "The combination of Clark's travel in foreign commerce and his conduct of an illicit commercial sex act in Cambodia shortly thereafter puts the statute squarely within Congress's foreign commerce Clause authority," Judge M. Margaret McKeown wrote, in an opinion joined by Judge Procter Hug Jr.

In dissent, Judge Warren Ferguson said a paid sex act committed abroad has nothing to do with the right granted to Congress by the Constitution "to regulate commerce with foreign nations."

"The mere act of boarding an international flight, without more, is insufficient to bring all of Clark's downstream activities that involve an exchange of value within the ambit of Congress's foreign commerce power," Judge Ferguson wrote.

[ClearCase_guy]

Over-arching legal authority must go to Scottish Law. What do the Scots say about child prostitution?

[PeteB570]

foreign commerce????

Oh come on now.

[montag813]

Sounds like sex-obsessed Gonzales is at it again. Now if only he were as obsessed with stopping illegals at the borders.

[Lunatic Fringe]

As repugnant as child sex tourism is, I really see no way for Congress to have authority what you do in other countries. Are they going to start arresting people who go to the Netherlands and smoke pot???

[MarcusTulliusCicero]

I guess this is the flip side of using foreign law to interpret the U.S. Constitution. I wonder if this appeals court will recognize the authority of, say, the French to regulate activities in the U.S. with which they are in disagreement.

[elmer fudd]

There is something that doesn't pass the smell test about outlawing this by "regulating foreign commerce". Surely there is another way to criminalize pedophilia without playing legal origami. It's amazing that we can't just say that it's a felony to have sex with a child.

[Paul C. Jesup]

A federal appeals court panel yesterday upheld the government's authority to punish Americans for patronizing child prostitutes overseas, but one judge dissented from the ruling, warning that the law in question goes beyond Congress's power under the Constitution to regulate foreign commerce.

This ruling could in theory declare that all of humanity has to pay U.S. income taxes.

[Lurking Libertarian]

There is something that doesn't pass the smell test about outlawing this by "regulating foreign commerce". Surely there is another way to criminalize pedophilia without playing legal origami. It's amazing that we can't just say that it's a felony to have sex with a child.

The federal government has no delegated power to "just say that it's a felony to have sex with a child." The states have the power to say that, but not if it happens in a foreign country. So the alternatives are to either get cute with the foreign commerce clause, or leave prosecution to places like Cambodia or Thailand (which often turn a blind eye to this sort of thing).

[Publius6961]

LOL!

Legal origami?
I'll have to remember that one!

[Bob J]

Judge M. Margaret McKeown: Appointed by: President Clinton, April 1998


Judge Procter Hug Jr: Court: Appointed by: President Carter, 1977

[Condor51]

***Sounds like sex-obsessed Gonzales is at it again.***

No not, Gonzales - the power mad US Congress.

The underlying theme of the Roberts & Alito hearings was Congress' constitutional authority to enact legislation, i.e. the Commerce Clause. IMHO the 'privacy' and 'executive power' junk was all a smoke screen. Its really about the Commerce Clause and how Alito views its limitations. Di-Fi was the only one to really tip their hand on this subject, though yesterday Durbin ranted about it in the Senate.

I'm just glad that this one judge sees it correctly,

"In dissent, Judge Warren Ferguson said a paid sex act committed abroad has nothing to do with the right granted to Congress by the Constitution "to regulate commerce with foreign nations."

"The mere act of boarding an international flight, without more, is insufficient to bring all of Clark's downstream activities that involve an exchange of value within the ambit of Congress's foreign commerce power," Judge Ferguson wrote.

The surprising thing is, he's an LBJ judge.

[Steel Wolf]

This ruling could in theory declare that all of humanity has to pay U.S. income taxes.

Good. Since all of humanity appears to be getting their hands on U.S. tax dollars, one way or another, it's about time they paid into the system. ;-)

[mysterio]

Are they going to start arresting people who go to the Netherlands and smoke pot???

I bet you they would love to do that. But first, we have to go after people searching for porn on google, by golly.

[Lurking Libertarian]

Judge M. Margaret McKeown: Appointed by: President Clinton, April 1998
Judge Procter Hug Jr: Court: Appointed by: President Carter, 1977

And the dissenter, Judge Warren Ferguson: Appointed by President Carter, 1979.

[lesser_satan]

bump

[countorlock]

As repugnant as child sex tourism is, I really see no way for Congress to have authority what you do in other countries. Are they going to start arresting people who go to the Netherlands and smoke pot???

Interesting problem. Reminds me of the sex offenders list which keeps growing and broadening in scope.

[sandbar]

>>>foreign commerce

This "judge" considers child prostitution FOREIGN COMMERCE???

So it would be illegal to prosecute drug pin cartels to not interfere with FOREIGN COMMERCE???

Idiot.

[Yo-Yo]

Alright, so how do you prove beyond a reasonable doubt in a US courtroom that the suspect did willfully engage in a sex act with a minor while on foreign soil? Is the US Justice Department going to start offering free flights to the US for witnesses? How is it expected that a defendant has the resources required to send an investigative team to the country in question to depose the witnesses?

I abhor child exploitation in all forms, but this is a case of judicial activism, making a law mean what you want it to mean, rather than what the Constitution says it is. This is the sort of case where Alito would have dissented and then later would have been branded as supporting child sexual exploitation because of his descent.

[PAR35]

I wonder if this appeals court will recognize the authority of, say, the French to regulate activities in the U.S. with which they are in disagreement.

They already have. The Yahoo case was out of the 9th Circus.

See, generally, the 99 page opinion in YAHOO! INC. v. LA LIGUE CONTRE LE RACISME ET ý L’ANTISEMITISME, No. 01-17424, (9th Cir. Jan 12, 2006)

Link to a PDF of the opinion here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=title&v1=Yahoo