Thursday, January 26, 2006
Court Upholds Ban on Americans Buying Child Sex Overseas
By KENNETH OFGANG, Staff Writer/Appellate Courts
A federal law that makes it a crime for an American to pay a child for sex in another country is constitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel upheld the controversial provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, better known as the PROTECT Act.
In doing so it, it broadly upheld congressional power under the Foreign Commerce Clause and said that U.S. citizenship alone is a sufficient connection with this country to support the jurisdiction of American courts over persons accused of crimes overseas.
The decision is apparently the first appellate ruling on the commercial sex provision. Judge M. Margaret McKeown, who authored yesterday’s opinion, noted that the court did not consider a separate provision that punishes non-commercial sex with minors, as well as non-consensual sex with adults, by Americans overseas.
The defendant, Michael Lewis Clark, is a 71-year-old military veteran who was sentenced to eight years and a month in prison by U.S. District Judge Robert Lasnik in Seattle two years ago. Clark pled guilty to two counts of violating the statute, which permits a sentence of up to 30 years, but reserved the right to appeal on constitutional, jurisdictional, and statutory interpretation grounds.
Since a federal grand jury indicted Clark in 2003, 14 other men have been charged under the Protect Act, according to U.S. Immigration and Customs Enforcement.
Clark was arrested after a non-governmental organization fighting child sex tourism in Cambodia alerted the police in Phnom Penh. He was found in a boardinghouse with two boys, ages 10 and 13, and was turned over to U.S. authorities and agreed to return to this country, saying he did not think he would survive Cambodian prison.
Clark told investigators he may have had sex with as many as 50 boys in Cambodia.
Two Dollars for Sex
He admitted he paid the boys who he was with at the time of his arrest two dollars each for sex. One of the boys said he had sex with Clark because he needed money to feed his family, and the other said he had been paid for sex by Clark before, receiving five dollars on one occasion and two dollars on others.
In sentencing Clark, Lasnik said the boys were so vulnerable “they could be purchased for less than you would pay for a latte here,” according to news accounts of the proceeding.
McKeown, writing for the court, said the Constitution permits the government to regulate the activities of Americans traveling abroad. While the courts will normally presume that Congress intended a statute to have domestic application only, she added, in this case the intent to apply the law extraterritorially was explicit.
The Supreme Court, the judge noted, has frequently rejected due process challenges to congressional authority to regulate the activities of Americans abroad.
“Clark is a U.S. citizen, a bond that ‘implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other, ‘ ” the judge wrote.
The judge distinguished cases dealing with the extent of U.S. jurisdiction over crimes committed by non-citizens overseas. It was only because of the lack of citizenship on the part of the defendants that those courts had to examine the extent to which the defendant or the crime was tied to the United States, McKeown explained.
The judge added in a footnote that even if citizenship alone was not enough, Clark had other ties to this country—he invested his money here, received military retirement benefits, and had the privilege of flying on military aircraft.
McKeown also rejected the argument that the statute did not apply to Clark, because he was not a “citizen...who travels in foreign commerce.” The defense argued that at the time of his arrest, Clark was a resident of Cambodia—having spent most of his time over the previous five years there—and not merely a tourist.
The judge noted that Clark frequently traveled to the United States, as well as to other Asian countries, and was arrested only two months after returning from his last visit to this country.
Senior Judge Procter Hug Jr. concurred with McKeown, but Senior Judge Warren Ferguson dissentedwriting that Clark’s behavior did not justify the reach of United States law enforcement into foreign countries.
“The sexual abuse of children abroad is despicable,” Ferguson wrote, “but we should not, and need not, refashion our Constitution to address it.”
The problem with the law, he argued, is that it requires no nexus between the prohibited activity and foreign commerce. “Rather, it punishes future conduct in a foreign country entirely divorced from the act of traveling except for the fact that the travel occurs at
some point prior to the regulated conduct,” Ferguson wrote, even in cases where there was no criminal intent at the time of travel.
Yesterday’s ruling “is really an important decision from the government’s point of view,” Assistant U.S. Attorney Helen Brunner, one of the prosecutors on the case, told The Associated Press “There are really very few statutes that govern the conduct of U.S. citizens abroad.”
The attorney with the Federal Public Defender’s Office in Seattle who represented Clark did not return a telephone call.
The case is United States v. Clark, 04-30249.
Copyright 2006, Metropolitan News Company