Sex Tourism—Extraterritorial Jurisdiction

The extraterritorial jurisdiction of the United States is a topic that we mention quite often, especially in the transnational crimes arena. One of the cases that we have used to suggest support for the notion that some offenses are subject to universal jurisdiction has been complicated somewhat^[1]: United States v. Clark.^[2] In the district court, the defendant, Michael Lewis Clark, pleaded guilty to two violations of 18 U.S.C. § 2423, engaging in “sex tourism,” reserving the right to challenge the legality of the statute. Mr. Clark claimed that his prosecution would violate principles of international law;^[3] we have analyzed these arguments here and here. In short, the District Court rejected this assertion, basing its decision on the nationality principle and the universality principle.^[4]

The nationality principle means that jurisdiction is based on the nationality or the national character of the offender, and since Mr. Clark had done nothing to evince a renunciation of his nationality, the Court found that it had extraterritorial jurisdiction over acts committed in Cambodia based on the defendant’s status as an American citizen.^[5]

The universality principle, which we most recently discussed on Monday, is far more complicated and controversial. However, the District Court found that it applied because it “provides jurisdiction over extraterritorial acts for crimes so heinous to be universally condemned.”^[6] And while the Court acknowledged that certain countries “have not yet done nearly enough to ensure that their child citizens are protected from sexual abuse by other citizens or by foreign travelers,” it found that sexual abuse of children is universally condemned.^[7]

Mr. Clark’s appeal,^[8] challenging the constitutionality of the law and challenging the jurisdiction of the court, was just decided. We discuss the 9th Circuit Court of Appeals’ constitutional inquiry on our Federal Criminal Appeal blog.

On appeal, Mr. Clark argued that the extraterritorial application of section 2423(c) violates principles of international law.^[9] However, the Court held that “extraterritorial application is proper based on the nationality principle.”^[10] First, the Court addressed the long-standing “presumption that Congress ordinarily intends federal statutes to have only domestic application” by pointing out that the text of section 2423(c) states that it reaches “people ‘who travel[] in foreign commerce.’”^[11] Furthermore, the “nationality principle ‘permits a country to apply its statutes to extraterritorial acts of its own nationals.’”^[12] This is fairly-well established, and, other than pointing out that such application is reasonable under international law,^[13] that is where the Court’s analysis ends. In other words, the Court declined to address whether the text of the statute that applies to people other than citizens (i.e., “alien[s] admitted for permanent residence”) is valid under international law,^[14] nor did the Court address whether the District Court erred in applying the universality principle: “we decline to address whether the universality principle also applies in [Mr.] Clark’s case,” the court noted, “because extraterritorial application of a criminal law need be justified by only one of the five principles of extraterritorial authority.”^[15] Thus, the question of whether the United States truly recognizes universal jurisdiction will be answered some other day.

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[1] See Paul Elias, Crimes Abroad Punishable at Home, Associated Press (via Monterey Herald), Jan. 26, 2006.
[2] 315 F. Supp. 2d 1127 (W.D. Wash. 2004).
[3] Id. at 1131.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 1131 & n.3.
[8] United States v. Clark, No. 04-30249 (9th Cir. 2006). (PDF)
[9] Id. at 10.
[10] Id.
[11] Id.
[12] Id. at 11 (quoting United States v. Hill 279 F.3d 731, 740 (9th Cir. 2002)).
[13] Id. at 12.
[14] Id. at 11 n.9.
[15] Id. at 11 n.10 (citing Chua Han Mow v. United States, 730 F.2d 1308, 1312 (9th Cir. 1984)). The five principles, which are discussed in more detail here, are: the objective territorial principle; the protective principle; the nationality principle; the universality principle; and the passive personality principle.