Federal criminal charges for sex tourism

18 USC 2423(c) – Sex Tourism

“Sex tourism” refers to people traveling abroad to engage in illegal sexual activities, usually involving minors, before coming back to the U.S.

However, one of the key legal challenges is that the prohibited conduct takes place outside the U.S.  

For this reason, on April 30th, 2003, the U.S. took a significant step to strengthen children’s protection by enacting the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (108 P.L. 21), also known as the PROTECT Act.

The PROTECT Act enabled the U.S. to criminalize a broader scope of sexual offenses involving children. This act amended Section 105 USC by adding several provisions listing specific sexual offenses with a high-level punishment.

Among those new subsections is 18 USC 2423(c), which criminalizes “sex tourism.”

The elements constituting this offense.

According to this federal statute, this offense is constituted when:

1.A U.S. citizen or alien admitted for permanent residence

2.Who travels in foreign commerce

Traveling in foreign commerce has been interpreted broadly by courts, encompassing more than just the physical act of transportation.

For example, a defendant has been considered in foreign commerce from the time he left the U.S. until he committed illicit sexual conduct in Cambodia. His status had remained transient as he stayed in the Philippines on tourist visas and continued traveling under the U.S. passport without trying to obtain a permanent status in another country.

3.Or resides, either temporarily or permanently, in a foreign country

On this matter, courts have held that even if a defendant lives for five years in another country, he can still be considered a “sex tourist.”

4. Engages in any illicit sexual conduct with another person.

18 USC 2423(g) defines “illicit sexual conduct” as:

-“a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States;

– any commercial sex act (as defined in section 1591) with a person under 18 years of age; or

– production of child pornography (as defined in section 2256(8)).”

Here, the phrasing of this last condition refers broadly to “another person.” However, the definition of illicit sexual conduct testifies that the provision only applies when the victim is under 18 years old.

Moreover, courts have established that an individual may be charged with this offense even if the government does not prove that the individual had the intent to pursue illicit sexual conduct while traveling. The term “illicit sexual conduct” incorporates offenses that do require intent.

Overall, this offense is punishable with a fine or a sentence of imprisonment not exceeding 30 years or both. Pursuant to 18 USC 2423(f), the attempt or conspiracy to violate this subsection (c) is punishable in the same manner “as a completed violation of that subsection.”

Furthermore, courts have recalled that this subsection only applies if “both travel and illicit sex acts took place after enactment of statute on April 30, 2003.”

The defense to this offense.

In addition, 18 USC 2423(i) sets forth a defense to engaging in any commercial sex act with a person under 18 years of age (g2).

The defendant must reasonably believe that the person with whom he or she engaged in the commercial sex act had attained the age of 18 years.

Criticism of this federal statute.

While this subsection (c) enables the U.S. to prosecute a U.S. citizen or a permanent resident for an offense committed abroad, its constitutionality has been criticized.

Indeed, some have argued that Congress has exceeded its authority under the Foreign Commerce Clause (U.S. Const. Art I, §8, cl.3) because the illegal activities occur outside the U.S.

However, courts have held that criminalizing such conduct has an effect on sex tourism and the commercial sex industry and thus falls within Congress’ authority, as it involves activities that affect interstate and foreign commerce.

Matthew Galluzzo is a criminal defense attorney and former Manhattan prosecutor who has defended individuals accused of sex trafficking and sex tourism in New York federal courts. If you or a loved one have been charged with the crime of sex tourism in the New York City or Westchester area, you should strongly consider contacting him to discuss his engagement.

Tiphaine Marlange contributed to this blog post.