When the FBI Comes Calling…®

HUMAN TRAFFICKING AND SMUGGLING (continued)

Trafficking in Persons (continued)

Trafficking For Sexual Activity (continued)

18 U.S.C. § 2423.

The Crime
Section 2423 is fairly large and has a number of different provisions, all relating to transportation or travel related to sexual activity.

  • It is a violation of section 2423 to "knowingly" transport an individual-who has not attained the age of 18 years-in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with the intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense. 18 U.S.C. § 2423(a).
  • Under section 2423, it is illegal to travel in interstate commerce or into the United States, or be a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person Id. § 2423(b).
  • It is a violation of section 2423 to be a United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engage in any illicit sexual conduct with another person Id. § 2423(c).
  • It is also a violation section 2423 to have the purpose of commercial advantage or private financial gain, and arrange, induce, procure, or facilitate the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct. Id. § 2423(d).
  • Whoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in the same manner as a completed violation of that subsection. Id. § 2423(e).

Note
Subsections 2423(b) & (c) are not well-written statutes. Subsection (b) is titled "Travel with intent to engage in illicit sexual conduct," while subsection (c) is titled "Engaging in illicit sexual conduct in foreign places," so it is plausible to assume subsection (b) refers to traveling, whether it is domestic or foreign, with the intent to engage in illicit sexual conduct, and (c) refers to foreign travel with actual illicit sexual conduct. However, it is not entirely clear exactly to whom the subsections apply.

Both subsections contain the phrase "United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages…" The phrase can be parsed as having the "who travels in foreign commerce" apply to both the United States citizen and the permanent resident alien. Or it might apply only to the alien. Furthermore, does it apply if the alien does not travel in foreign commerce? Since the subsections are titled the way they are, perhaps it is best to assume that "who travels in foreign commerce" applies to both the citizen and the alien-since it clearly applies to the alien, and the United States always has jurisdiction over its own citizens-and assume that it is irrelevant to question whether it applies to a non-traveling alien.

For a case that supports this conclusion, see United States v. Bredimus, 352 F.3d 200 (5th Cir. 2003), discussed on the next page.

Definition

  • "illicit sexual conduct" means:
    • a sexual act as defined in 18 U.S.C. § 2246 with a person under 18 years of age that would be in violation of chapter 109A (18 U.S.C. §§ 2241 et seq.) if the sexual act occurred in the special maritime and territorial jurisdiction of the United States. 18 U.S.C. § 2423(f)(1); or
    • any commercial sex act, as defined in 18 U.S.C. § 1591, with a person under 18 years of age. id. § 2423(f)(2).
  • "sexual act" as defined in section 2246 means:
    • contact between the penis and the vulva, or the penis and the anus, no matter how slight the penetration is. 18 U.S.C. § 2246(2)(A);
    • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus. Id. § 2246(2)(B);
    • the penetration, however slight, of the anal or genital opening of another by a hand, finger, or any object, with the intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. Id. § 2246(2)(C); or
    • the intentional touching, not through clothing, of the genitalia of another person who has not attained the age of 16 years, with the intent components of section 2246(2)(C). Id § 2246(2)(D).

Affirmative Defense
If a defendant is being prosecuted based on illicit sexual conduct as defined in 18 U.S.C. § 2423(f)(2) (commercial sex act with a person under the age of 18), it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years. 18 U.S.C. § 2423(g).

The Punishment

  • A violation of section 2423(a) will be punished by a fine and imprisonment for not less than 5 years and not more than 30 years.
  • A violation of section 2423(b) can be punished by a fine imprisonment for not more than 30 years, or both.
  • A violation of section 2423(c) can be punished by a fine, imprisonment for not more than 30 years, or both.
  • A violation of section 2423 (d) can be punished by a fine, imprisonment for not more than 30 years, or both.

Trafficking for Sexual Activity Continued-->