By: Christine L. Hogan
Child sex tourism describes a phenomenon where Western men
travel to developing foreign countries and sexually molest
children. Developing countries, in an effort to boost their
economy, embrace mass tourism as a means to further their nations’
interests. A domino effect occurs: Poor economies make
impoverished children easy targets for child sex tourists, while
the countries’ desire for healthier economies encourages continual
lax enforcement against them. The statistics are
troubling: One research study estimates that one-quarter of
all child sex tourists depart from the United States.
Section 2423(c) of the United States Code exists to prevent
child sex tourism. The statute bases its authority in the
Foreign Commerce Clause of the Constitution: It permits the
government to prosecute a United States citizen “who travels in
foreign commerce and engages in any illicit sexual conduct with
another person.” Although the Ninth Circuit has upheld the
constitutionality of prosecuting commercial illicit sexual conduct
under section 2423(c), no court in this nation has determined the
constitutionality of prosecuting non-commercial illicit sexual
conduct under the statute.
Although child sex tourism under 18 U.S.C. § 2423(c) involves
foreign commerce, the interstate framework is the only appropriate
method for its constitutional analysis. Since the Supreme
Court in the last couple of decades has avoided a facial
constitutional analysis under the Foreign Commerce Clause and
recent circuit court decisions have adopted the U.S. Supreme
Court’s Interstate Commerce Clause analysis, this Note utilizes the
framework set out in United States v.
Lopez.
On its face, prosecuting non-commercial sex acts under section
2423(c) is a constitutionally permissible exercise of Congress’s
commerce power. Although the statute probably will not pass
muster under a channels of commerce analysis, the aggregate
economic effects of non-commercial sex offenders, as an
indispensable part of a larger economic scheme to prevent child sex
tourism, substantially affects foreign commerce. With the
argument strengthened by the application of the proper standard of
review and the overwhelming policy arguments in favor of the
statute’s constitutionality, section 2423(c) passes constitutional
muster with ease.