The Extraterritorial Application of the Child Sex Trafficking Laws

The Eleventh Circuit in United States v. Frank has ruled that a child sex trafficking statute applies extraterritorially. The statute, 18 U.S.C. § 2251A, provides that:

“[w]hoever purchases … a minor … with intent to promote … the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and “in the course of the conduct described … the minor or the actor traveled in or was transported in or affecting interstate or foreign commerce” is guilty of an offense punishable by fine and not less than 30 years’ imprisonment or for life.

In January 2004, Kent Frank, a United States citizen and resident, was detained in Cambodia by the Cambodian National Police (“CNP”) on suspicion of violating Cambodian laws against child sex prostitution. During his detention by Cambodian authorities, Frank admitted that he had engaged in sexual conduct with and had taken sexually explicit photographs of Minors A, B, C, and D on multiple occasions. He confessed to paying the girls $15 or $25 to either photograph them or have sex with them. At some point during the interview, Gary Phillips, the Assistant United States Immigration and Customs Enforcement Attach in Bangkok, Thailand, arrived to meet with Chief Meng Say of the CNP, but did not participate in Frank’s interview. In a separate room, Agent Phillips reviewed the evidence Cambodian officials had seized from Frank’s hotel room.

The Eleventh Circuit upheld the conviction finding that (1) Miranda warnings were unnecessary; (2) the statute applied extraterritorially; and (3) the “purchase” of a child may occur through payment directly to the child, rather than a third party.

The Court found that generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Moreover, the joint venture exception does not apply because American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation.

As for the extraterritorial application of the statute, the Court found that because Section 2251A requires that in the course of the prohibited conduct, the defendant or minor “travel[ ] in … interstate or foreign commerce,” Congress plainly intended that the statute sweep broadly and apply extraterritorially. The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially. Moreover, such an intent is consistent with international law, which permits jurisdiction under the “nationality” principle.

Finally, the Court held that “purchase” does not require the sale of a minor from a third party to the defendant. In the context of child prostitution, the minor herself is turned into an object or commodity, by selling her body to be used by the defendant for a certain purpose. A minor cannot separate her services from herself because she lacks the capacity to do so. Congress used the term “purchase” alone, rather than “purchase from the minor herself,” “purchase a minor’s services,” or “purchase from another,” to encompass situations where money is paid to a third party and where money is paid directly to the minor. “Purchase,” as used in § 2251A(b), covers situations where a defendant pays a minor directly for sex.