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Travel Ban on Sex with Minors Upheld

The 4th Circuit upholds the constitutionality of statute criminalizing engaging in an illicit sexual act with a minor after traveling in foreign commerce, and affirms the convictions of a Lutheran pastor and acknowledged sex addict who sexually abused young girls while operating a religious center and school in Haiti.

This case examines the constitutional limits of Congress’ power to regulate activities of U.S. citizens traveling and living abroad. Specifically, we consider whether Congress may prohibit individuals from engaging in non-commercial “illicit sexual conduct” after they “travel in foreign commerce.”

The district court upheld the legislation, 18 U.S.C. § 2423(c), reasoning that Congress acted pursuant to its constitutional authority to implement an international treaty designed to combat the commercial sexual exploitation of children. We affirm on different grounds and hold that the Foreign Commerce Clause provides constitutional sanction. We separately affirm the 25-year prison sentence imposed by the district court.

The government argues that Congress had two sources of authority for the statute. First, it reasons that the Foreign Commerce Clause permits the criminalization of non-commercial sexual conduct after travel in foreign commerce because the law regulates the channels and/or instrumentalities of commerce, and because the underlying non-commercial activity has a constitutionally sufficient commercial effect. Alternatively, the government asks us to uphold the district court’s conclusion that the statutory section was validly enacted as a necessary and proper implementation of the Optional Protocol to combat the commercial sexual exploitation of children.

Because we agree that the Foreign Commerce Clause authorizes the law, we do not reach the question of whether Congress’ treaty-implementation powers provide additional license.

The pivotal question in this case is how directly an activity must affect foreign commerce for it to be a proper subject of congressional regulation. Instead of requiring that an activity have a substantial effect on foreign commerce, we hold that the Foreign Commerce Clause allows Congress to regulate activities that demonstrably affect such commerce. Requiring a showing of demonstrable effect, of course, still requires that the effect be more than merely imaginable or hypothetical.

We agree with the government that this circuit’s clear precedent could provide a solid basis for upholding § 2423(c) on the ground that it regulates the channels and instrumentalities of foreign commerce. Yet we need not adopt such an expansive holding when a second, more limited, ground exists upon which we now find that § 2423(c) regulates commerce with foreign nations. It is eminently rational to believe that prohibiting the non-commercial sexual abuse of children by Americans abroad has a demonstrable effect on sex tourism and the commercial sex industry. As a tool to close statutory “loopholes” that affected commercial sex tourism, § 2423(c) removed § 2423(b)’s “intent” requirement, to more effectively curtail the stream of Americans traveling in foreign commerce to abuse children in other countries.

The 25-year sentence imposed by the district court – representing a 60 percent downward variance – was not unreasonable when considered in light of our deferential standard of review, the heartrending victim-impact statements in the record, the powerlessness of the victims and the minister’s heinous abuse of authority. That sentence should stand.

U.S. v. Bollinger (Gregory) No. 14-4086, Aug. 19, 2015; USDC at Charlotte, N.C. (Conrad) Anthony J. Colangelo for appellant; Amy E. Ray, AUSA, for appellee. VLW 015-2-147, 46 pp.

VLW 015-2-147

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