[House Report 115-139]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-139
======================================================================
GLOBAL CHILD PROTECTION ACT OF 2017
_______
May 22, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1862]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1862) to amend title 18, United States Code, to
expand the scope of certain definitions pertaining to unlawful
sexual conduct, and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Performance Goals and Objectives................................. 6
Advisory on Earmarks............................................. 6
Section-by-Section Analysis...................................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Dissenting Views................................................. 13
Purpose and Summary
The Global Child Protection Act, H.R. 1862, closes
loopholes in the child exploitation statutes by expanding the
conduct covered involving abuse occurring abroad and the
offenses covered in the recidivist enhancement provisions for
sex crimes against children. The purpose of the legislation is
to ensure that predators do not escape culpability for offenses
committed abroad by limiting their behavior to ``illicit sexual
conduct'' rather than ``illicit sexual contact.'' The
legislation is also intended to include additional conduct in
the definition of ``Federal sex offense'' under the recidivist
child sex offender provision. Currently, this enhancement does
not include ``sexual contact'' with children, which appears to
be no more than an oversight in original drafting.
Background and Need for the Legislation
First, H.R. 1862 closes a loophole in the definition of
``illicit sexual conduct'' as defined in 18 U.S.C.
Sec. 2423(f), by adding ``illicit sexual contact'' to the
definition.
The phrase ``illicit sexual conduct'' is referenced in: 18
U.S.C. Sec. 2423(b), which prohibits someone from traveling in
interstate or foreign commerce for the purpose of ``engaging in
illicit sexual conduct''; 18 U.S.C. Sec. 2423(c), which
prohibits U.S. citizens and permanent residents from traveling
in foreign commerce and engaging in illicit sexual conduct; and
18 U.S.C. Sec. 2423(d), which prohibits someone from arranging
the travel of a person for the purpose of engaging in illicit
sexual conduct.
The definition of ``illicit sexual conduct'' currently
includes ``sexual acts'' with persons under 18, as defined in
18 U.S.C. Sec. 2246. However, the definition does not also
encompass ``sexual contact'' as defined in Sec. 2246. This
means that ``illicit sexual conduct'' includes situations where
an adult defendant molests a child, but it does not include
situations in which a child is caused to touch an adult
defendant--for example, a scenario where a U.S. citizen travels
abroad and forces a child to manually stimulate his genitals.
This section closes this loophole by striking the reference to
``sexual act'' and instead defines illicit sexual conduct to
include any conduct that would violate any child exploitation
statute in Chapter 109A of title 18.
Second, H.R. 1862 closes a loophole by including sexual
contact with children in 18 U.S.C. Sec. 3559(e), a recidivist
provision specifically addressing child predators. It also
amends current law to add sexual abuse of children abroad as a
predicate offense for an enhanced sentence under Sec. 3559(e).
Section 3559(e)(1) currently provides that a ``person who
is convicted of a Federal sex offense in which a minor is the
victim shall be sentenced to life imprisonment if the person
has a prior sex conviction in which a minor was the victim. . .
.'' ``Federal sex offense'' is defined in section
Sec. 3559(e)(2), which enumerates several sexual offense
statutes. This reference as to what constitutes a ``Federal sex
offense,'' however, does not include sexual contact with
children under the age of 12, or aggravated sexual contact with
children aged 12-15, because the definition of Federal sex
offense in Sec. 3559(e)(2) refers only to Sec. 2244(a)(1) of
the Abusive Sexual Contact statute (which covers forcible
sexual contact or contact where victim is unconscious) and not
Sec. 2244(a)(5) (which covers sexual contact where the victim
is under 12, and aggravated sexual contact with children
between 12 and 15).
Thus, Sec. 3559 currently does not incorporate sexual
contact with children under the age of 12 or aggravated sexual
contact with children aged 12-15. It makes no sense that
Sec. 3559(e), which is a recidivist provision specifically
addressing sex offenders who prey upon children, would not
reach all contact offenses against the youngest of children.
This is especially so since federal law treats sexual contact
with a child under the age of 12 or a child aged 12-15 under
aggravating circumstances as a significantly more serious
offense than sexual contact committed through force or threats
or with an unconscious or impaired adult victim.
Paradoxically, the omission of Sec. 2244(a)(5) in the
definition of Federal sex offense means that a defendant who
commits sexual contact with a victim aged 12-15 either through
force or threats or when the victim is unconscious or impaired
will have a qualifying predicate or prior conviction if he was
charged under Sec. 2244(a)(1), but not if he were charged under
Sec. 2244(a)(5). The only difference between the two charges is
that the latter charge requires proof of the age of the victim
and carries a higher penalty.
There is no way to justify the inclusion of two sex
offenses that carry penalties of up to 10 years in prison as
predicate and qualifying convictions under Sec. 3559(e), but
the exclusion of an offense that is specifically designed to
protect children of especially tender years and that carries
the maximum prison term available under the law. H.R. 1862
closes this loophole by including Sec. 2244(a)(5) in the
definition of ``Federal sex offense'' in Sec. 3559(e)(2).
Finally, H.R. 1862 adds 18 U.S.C. Sec. 2423(c), which
prohibits the sexual abuse of children abroad by U.S. citizens,
as a predicate offense to 18 U.S.C. Sec. 3559(e). As currently
written, Sec. 2423(c) is the only criminal provision
prohibiting the sexual abuse of children that is not referenced
in Sec. 3559(e).
Closing these technical loopholes is necessary to prevent
dangerous predators from escaping liability altogether in
circumstances in which they are engaging in certain uncovered
conduct abroad and also to prevent recidivist offenders who
have previously sexually abused a child from avoiding the
sentencing enhancement provision due to mere technicalities.
Hearings
The Committee on the Judiciary held no hearings on H.R.
1862, but held a hearing on the subject of child exploitation
generally on March 16, 2017.
Committee Consideration
On April 5, 2017, the Committee met in open session and
ordered the bill H.R. 1862 favorably reported, without
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 1862.
1. An Amendment, offered by Mr. Conyers to create a
separate sentencing framework for recidivist penalties for
those previously convicted of certain offenses that did not
include mandatory minimum sentences. The amendment was defeated
by a roll call vote of 2 to 14.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Swalwell (CA)..............................
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................
Ms. Jayapal (WA)...............................
Mr. Schneider (IL).............................
------------------------
Total...................................... 2 14 .......
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1862, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 12, 2017.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1862, the Global
Child Protection Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Keith Hall.
Enclosure
cc: Honorable John Conyers Jr.
Ranking Member
H.R. 1862--Global Child Protection Act of 2017
As ordered reported by the House Committee on the Judiciary on April 5,
2017
H.R. 1862 would broaden the coverage of current laws
relating to unlawful sexual conduct with minors. As a result,
the government might be able to pursue cases that it otherwise
would not be able to prosecute. CBO expects that the bill would
apply to a relatively small number of offenders, however, so
any increase in costs for law enforcement, court proceedings,
or prison operations would not be significant. Any such costs
would be subject to the availability of appropriated funds.
Enacting the bill could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. Because
those prosecuted and convicted under H.R. 1862 could be subject
to criminal fines, the federal government might collect
additional fines if the legislation is enacted. Criminal fines
are recorded as revenues, deposited in the Crime Victims Fund,
and later spent without further appropriation action. CBO
expects that any additional revenues and subsequent direct
spending would not be significant because the legislation would
probably affect only a small number of cases.
CBO estimates that enacting H.R. 1862 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1862 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 1862 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 1862 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1862 closes loopholes in child exploitation laws by expanding
conduct that constitutes criminal offenses committed abroad and
expanding conduct that qualifies a predator for recidivist
sentencing enhancement provisions.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1862 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1. Short Title. This section cites the short title
of the bill as the ``Global Child Protection Act of 2017.''
Section 2. Expanding the Definition of Explicit Sexual
Conduct. This section closes a loophole in the definition of
``illicit sexual conduct'' as defined in 18 U.S.C. 2423(f), by
adding ``illicit sexual contact'' to the definition. Section
2423 of Chapter 109A covers sex offenses against minors
committed abroad as well as arranging travel of a person to
engage in illicit sexual conduct with a minor. The bill expands
the range of conduct covered to include ``illicit sexual
contact,'' as opposed to merely ``illicit sexual conduct,''
which does not encompass behavior such as making a child touch
an adult in a sexual manner.
Section 3. Expanding the Definition of Federal Sex Offense.
This section closes a loophole by including sexual contact with
children (18 U.S.C. 2241(a)(5)) as a federal sex offense that
would trigger the recidivist sentencing enhancements provided
for in 18 U.S.C. Sec. 3559(e), which is a recidivist provision
for sex offenders who victimize minors. It also amends current
law to add sexual abuse of children abroad (18 U.S.C. 2423(c))
as a predicate offense under Sec. 3559(e).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED
CRIMES
* * * * * * *
Sec. 2423. Transportation of minors
(a) Transportation With Intent To Engage in Criminal Sexual
Activity.--A person who knowingly transports 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 intent that the individual engage in
prostitution, or in any sexual activity for which any person
can be charged with a criminal offense, shall be fined under
this title and imprisoned not less than 10 years or for life.
(b) Travel With Intent To Engage in Illicit Sexual
Conduct.--A person who travels in interstate commerce or
travels into the United States, or 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 shall be fined
under this title or imprisoned not more than 30 years, or both.
(c) Engaging in Illicit Sexual Conduct in Foreign Places.--
Any United States citizen or alien admitted for permanent
residence who travels in foreign commerce or resides, either
temporarily or permanently, in a foreign country, and engages
in any illicit sexual conduct with another person shall be
fined under this title or imprisoned not more than 30 years, or
both.
(d) Ancillary Offenses.--Whoever, for the purpose of
commercial advantage or private financial gain, arranges,
induces, procures, or facilitates 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 shall be fined under this title, imprisoned not
more than 30 years, or both.
(e) Attempt and Conspiracy.--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.
(f) Definition.--As used in this section, the term ``illicit
sexual conduct'' means--
(1) [a sexual act (as defined in section 2246) with]
any conduct involving a person under 18 years of age
that would be in violation of chapter 109A [if the
sexual act] if the conduct occurred in the special
maritime and territorial jurisdiction of the United
States;
(2) any commercial sex act (as defined in section
1591) with a person under 18 years of age; or
(3) production of child pornography (as defined in
section 2256(8)).
(g) Defense.--In a prosecution under this section based on
illicit sexual conduct as defined in subsection (f)(2), it is a
defense, which the defendant must establish by clear and
convincing 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.
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 227--SENTENCES
* * * * * * *
SUBCHAPTER A--GENERAL PROVISIONS
* * * * * * *
Sec. Sec. 3559. Sentencing classification of offenses
(a) Classification.--An offense that is not specifically
classified by a letter grade in the section defining it, is
classified if the maximum term of imprisonment authorized is--
(1) life imprisonment, or if the maximum penalty is
death, as a Class A felony;
(2) twenty-five years or more, as a Class B felony;
(3) less than twenty-five years but ten or more
years, as a Class C felony;
(4) less than ten years but five or more years, as a
Class D felony;
(5) less than five years but more than one year, as
a Class E felony;
(6) one year or less but more than six months, as a
Class A misdemeanor;
(7) six months or less but more than thirty days, as
a Class B misdemeanor;
(8) thirty days or less but more than five days, as
a Class C misdemeanor; or
(9) five days or less, or if no imprisonment is
authorized, as an infraction.
(b) Effect of Classification.--Except as provided in
subsection (c), an offense classified under subsection (a)
carries all the incidents assigned to the applicable letter
designation, except that the maximum term of imprisonment is
the term authorized by the law describing the offense.
(c) Imprisonment of Certain Violent Felons.--
(1) Mandatory life imprisonment.--Notwithstanding
any other provision of law, a person who is convicted
in a court of the United States of a serious violent
felony shall be sentenced to life imprisonment if--
(A) the person has been convicted (and those
convictions have become final) on separate
prior occasions in a court of the United States
or of a State of--
(i) 2 or more serious violent
felonies; or
(ii) one or more serious violent
felonies and one or more serious drug
offenses; and
(B) each serious violent felony or serious
drug offense used as a basis for sentencing
under this subsection, other than the first,
was committed after the defendant's conviction
of the preceding serious violent felony or
serious drug offense.
(2) Definitions.--For purposes of this subsection--
(A) the term ``assault with intent to commit
rape'' means an offense that has as its
elements engaging in physical contact with
another person or using or brandishing a weapon
against another person with intent to commit
aggravated sexual abuse or sexual abuse (as
described in sections 2241 and 2242);
(B) the term ``arson'' means an offense that
has as its elements maliciously damaging or
destroying any building, inhabited structure,
vehicle, vessel, or real property by means of
fire or an explosive;
(C) the term ``extortion'' means an offense
that has as its elements the extraction of
anything of value from another person by
threatening or placing that person in fear of
injury to any person or kidnapping of any
person;
(D) the term ``firearms use'' means an
offense that has as its elements those
described in section 924(c) or 929(a), if the
firearm was brandished, discharged, or
otherwise used as a weapon and the crime of
violence or drug trafficking crime during and
relation to which the firearm was used was
subject to prosecution in a court of the United
States or a court of a State, or both;
(E) the term ``kidnapping'' means an offense
that has as its elements the abduction,
restraining, confining, or carrying away of
another person by force or threat of force;
(F) the term ``serious violent felony''
means--
(i) a Federal or State offense, by
whatever designation and wherever
committed, consisting of murder (as
described in section 1111);
manslaughter other than involuntary
manslaughter (as described in section
1112); assault with intent to commit
murder (as described in section
113(a)); assault with intent to commit
rape; aggravated sexual abuse and
sexual abuse (as described in sections
2241 and 2242); abusive sexual contact
(as described in sections
Sec. 2244(a)(1) and (a)(2));
kidnapping; aircraft piracy (as
described in section 46502 of Title
49); robbery (as described in section
2111, 2113, or 2118); carjacking (as
described in section 2119); extortion;
arson; firearms use; firearms
possession (as described in section
924(c)); or attempt, conspiracy, or
solicitation to commit any of the above
offenses; and
(ii) any other offense punishable by
a maximum term of imprisonment of 10
years or more that has as an element
the use, attempted use, or threatened
use of physical force against the
person of another or that, by its
nature, involves a substantial risk
that physical force against the person
of another may be used in the course of
committing the offense;
(G) the term ``State'' means a State of the
United States, the District of Columbia, and a
commonwealth, territory, or possession of the
United States; and
(H) the term ``serious drug offense''
means--
(i) an offense that is punishable
under section 401(b)(1)(A) or 408 of
the Controlled Substances Act (21
U.S.C. 841(b)(1)(A), 848) or section
1010(b)(1)(A) of the Controlled
Substances Import and Export Act (21
U.S.C. 960(b)(1)(A)); or
(ii) an offense under State law
that, had the offense been prosecuted
in a court of the United States, would
have been punishable under section
401(b)(1)(A) or 408 of the Controlled
Substances Act (21 U.S.C. 841(b)(1)(A),
848) or section 1010(b)(1)(A) of the
Controlled Substances Import and Export
Act (21 U.S.C. 960(b)(1)(A)).
(3) Nonqualifying felonies.--
(A) Robbery in certain cases.--Robbery, an
attempt, conspiracy, or solicitation to commit
robbery; or an offense described in paragraph
(2)(F)(ii) shall not serve as a basis for
sentencing under this subsection if the
defendant establishes by clear and convincing
evidence that--
(i) no firearm or other dangerous
weapon was used in the offense and no
threat of use of a firearm or other
dangerous weapon was involved in the
offense; and
(ii) the offense did not result in
death or serious bodily injury (as
defined in section 1365) to any person.
(B) Arson in certain cases.--Arson shall not
serve as a basis for sentencing under this
subsection if the defendant establishes by
clear and convincing evidence that--
(i) the offense posed no threat to
human life; and
(ii) the defendant reasonably
believed the offense posed no threat to
human life.
(4) Information filed by United States Attorney.--
The provisions of section 411(a) of the Controlled
Substances Act (21 U.S.C. 851(a)) shall apply to the
imposition of sentence under this subsection.
(5) Rule of construction.--This subsection shall not
be construed to preclude imposition of the death
penalty.
(6) Special provision for Indian country.--No person
subject to the criminal jurisdiction of an Indian
tribal government shall be subject to this subsection
for any offense for which Federal jurisdiction is
solely predicated on Indian country (as defined in
section 1151) and which occurs within the boundaries of
such Indian country unless the governing body of the
tribe has elected that this subsection have effect over
land and persons subject to the criminal jurisdiction
of the tribe.
(7) Resentencing upon overturning of prior
conviction.--If the conviction for a serious violent
felony or serious drug offense that was a basis for
sentencing under this subsection is found, pursuant to
any appropriate State or Federal procedure, to be
unconstitutional or is vitiated on the explicit basis
of innocence, or if the convicted person is pardoned on
the explicit basis of innocence, the person serving a
sentence imposed under this subsection shall be
resentenced to any sentence that was available at the
time of the original sentencing.
(d) Death or Imprisonment for Crimes AgainstChildren.--
(1) In general.--Subject to paragraph (2) and
notwithstanding any other provision of law, a person
who is convicted of a Federal offense that is a serious
violent felony (as defined in subsection (c)) or a
violation of section 2422, 2423, or 2251 shall, unless
the sentence of death is imposed, be sentenced to
imprisonment for life, if--
(A) the victim of the offense has not
attained the age of 14 years;
(B) the victim dies as a result of the
offense; and
(C) the defendant, in the course of the
offense, engages in conduct described in
section 3591(a)(2).
(2) Exception.--With respect to a person convicted
of a Federal offense described in paragraph (1), the
court may impose any lesser sentence that is authorized
by law to take into account any substantial assistance
provided by the defendant in the investigation or
prosecution of another person who has committed an
offense, in accordance with the Federal Sentencing
Guidelines and the policy statements of the Federal
Sentencing Commission pursuant to section 994(p) of
title 28, or for other good cause.
(e) Mandatory Life Imprisonment for Repeated Sex Offenses
Against Children.--
(1) In general.--A person who is convicted of a
Federal sex offense in which a minor is the victim
shall be sentenced to life imprisonment if the person
has a prior sex conviction in which a minor was the
victim, unless the sentence of death is imposed.
(2) Definitions.--For the purposes of this
subsection--
(A) the term ``Federal sex offense'' means
an offense under section 1591 (relating to sex
trafficking of children), 2241 (relating to
aggravated sexual abuse), 2242 (relating to
sexual abuse), Sec. 2244(a)(1) or
Sec. 2244(a)(5) (relating to abusive sexual
contact), 2245 (relating to sexual abuse
resulting in death), 2251 (relating to sexual
exploitation of children), 2251A (relating to
selling or buying of children), 2422(b)
(relating to coercion and enticement of a minor
[into prostitution]), [or] 2423(a) (relating to
transportation of minors) or 2423(c) (relating
to illicit sexual conduct) ;
(B) the term ``State sex offense'' means an
offense under State law that is punishable by
more than one year in prison and consists of
conduct that would be a Federal sex offense if,
to the extent or in the manner specified in the
applicable provision of this title--
(i) the offense involved interstate
or foreign commerce, or the use of the
mails; or
(ii) the conduct occurred in any
commonwealth, territory, or possession
of the United States, within the
special maritime and territorial
jurisdiction of the United States, in a
Federal prison, on any land or building
owned by, leased to, or otherwise used
by or under the control of the
Government of the United States, or in
the Indian country (as defined in
section 1151);
(C) the term ``prior sex conviction'' means
a conviction for which the sentence was imposed
before the conduct occurred constituting the
subsequent Federal sex offense, and which was
for a Federal sex offense or a State sex
offense;
(D) the term ``minor'' means an individual
who has not attained the age of 17 years; and
(E) the term ``State'' has the meaning given
that term in subsection (c)(2).
(3) Nonqualifying Felonies.--An offense described in
section 2422(b) [or 2423(a)], 2423(a), or 2423(c) shall
not serve as a basis for sentencing under this
subsection if the defendant establishes by clear and
convincing evidence that--
(A) the sexual act or activity was
consensual and not for the purpose of
commercial or pecuniary gain;
(B) the sexual act or activity would not be
punishable by more than one year in prison
under the law of the State in which it
occurred; or
(C) no sexual act or activity occurred.
(f) Mandatory Minimum Terms of Imprisonment for Violent
Crimes Against Children.--A person who is convicted of a
Federal offense that is a crime of violence against the person
of an individual who has not attained the age of 18 years
shall, unless a greater mandatory minimum sentence of
imprisonment is otherwise provided by law and regardless of any
maximum term of imprisonment otherwise provided for the
offense--
(1) if the crime of violence is murder, be
imprisoned for life or for any term of years not less
than 30, except that such person shall be punished by
death or life imprisonment if the circumstances satisfy
any of subparagraphs (A) through (D) of section
3591(a)(2) of this title;
(2) if the crime of violence is kidnapping (as
defined in section 1201) or maiming (as defined in
section 114), be imprisoned for life or any term of
years not less than 25; and
(3) if the crime of violence results in serious
bodily injury (as defined in section 1365), or if a
dangerous weapon was used during and in relation to the
crime of violence, be imprisoned for life or for any
term of years not less than 10.
(g)(1) If a defendant who is convicted of a felony offense
(other than offense of which an element is the false
registration of a domain name) knowingly falsely registered a
domain name and knowingly used that domain name in the course
of that offense, the maximum imprisonment otherwise provided by
law for that offense shall be doubled or increased by 7 years,
whichever is less.
(2) As used in this section--
(A) the term ``falsely registers'' means registers
in a manner that prevents the effective identification
of or contact with the person who registers; and
(B) the term ``domain name'' has the meaning given
that term is section 45 of the Act entitled ``An Act to
provide for the registration and protection of
trademarks used in commerce, to carry out the
provisions of certain international conventions, and
for other purposes'' approved July 5, 1946 (commonly
referred to as the ``Trademark Act of 1946'') (15
U.S.C. 1127).
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 1862, the ``Global Child Protection Act of 2017,''
would expand the federal criminal code's definitions pertaining
to unlawful sexual conduct with a minor. Specifically, the bill
would expand the definition of ``illicit sexual conduct'' as
defined in 18 U.S.C. Sec. 2423(f)(1) and the definition of a
``Federal sex offense'' as defined in 18 U.S.C. Sec. 3559(e).
As a result of these expansions, more individuals would be
subject to mandatory minimum sentences, specifically life
imprisonment, which is the penalty for these recidivist
offenses under current law. We have long-opposed the imposition
of mandatory minimum sentences because of their extraordinary
injustice, role in causing prison overcrowding, and the
excessive costs to taxpayers they cause. Mandatory minimum
sentences have had a particularly devastating impact on
minority communities across our Nation. Given the fact that
H.R. 1862 would subject more individuals to mandatory minimum
sentences, we must respectfully dissent and urge our colleagues
to oppose this legislation when it comes to the floor.
DESCRIPTION AND BACKGROUND
DESCRIPTION
Section 2 of the bill expands the definition of ``illicit
sexual conduct'' found in section 2423(f)(1) of title 18 of the
United States Code, changing it from a sexual act with a minor
as defined in section 2246 that would violate chapter 109A of
title 18, to any conduct involving a minor that would violate
chapter 109A. Section 3 expands the definition of a ``Federal
sex offense'' to include violations of section Sec. 2244(a)(5)
(sexual abuse of a minor between the ages 12 and 15) and
section 2423(c) (relating to illicit sexual conduct in foreign
places). Section 3 also provides that section 2423(c) will not
serve as basis for a mandatory life sentence if evidence is
provided as set forth in section Sec. 3559(e)(3).
BACKGROUND
``Illicit sexual conduct,'' as defined in section
2423(f)\1\ of title 18 of the United States Code, includes any
``sexual act'' with a minor, as defined in section 2246,\2\ but
does not include ``sexual contact,'' which is also defined in
section 2246.\3\ The phrase ``illicit sexual conduct'' is
referenced in: section 2423(b), which prohibits travel in
interstate or foreign commerce for the purpose of ``engaging in
illicit sexual conduct;'' section 2423(c), which prohibits U.S.
citizens and permanent residents from traveling in foreign
commerce and engaging in illicit sexual conduct; and section
2423(d), which prohibits arranging travel for the purpose
engaging in illicit sexual conduct. The acts prohibited in
chapter 109A\4\ (Sexual Abuse) include sexual acts and sexual
contact. H.R. 1862 would remove the reference to a ``sexual
act'' and instead define ``illicit sexual conduct'' as any
conduct that would violate chapter 109A, thereby significantly
expanding the types of behavior that may be prosecuted under
sections 2423(b), (c), and (d). These offenses are, however,
not subject to mandatory minimum sentencing.
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\1\18 U.S.C. Sec. 2423 (2017) (transportation of minors).
\2\18 U.S.C. Sec. 2426(2) (2017) defines ``sexual act'' as: contact
between the penis and the vulva or the penis and the anus, and for
purposes of this subparagraph contact involving the penis occurs upon
penetration, however slight; contact between the mouth and the penis,
the mouth and the vulva, or the mouth and the anus; the penetration,
however slight, of the anal or genital opening of another by a hand or
finger or by any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person; or the
intentional touching, not through the clothing, of the genitalia of
another person who has not attained the age of 16 years with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.
\3\18 U.S.C. Sec. 2426(3) (2017) defines ``sexual contact'' as the
intentional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
\4\Offenses included in chapter 109A: section 2241 (Aggravated Sex
Abuse); section 2242 (Sexual Abuse); section 2243 (Sexual Abuse of a
Minor or Ward); section Sec. 2244 (Abusive Sexual Contact); and section
2245 (Offenses Resulting in Death).
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Section 3559(e) of title 18 provides that a ``person who is
convicted of a Federal sex offense in which a minor is the
victim shall be sentenced to life imprisonment if the person
has a prior sex conviction in which a minor was the victim . .
. .'' Currently, the term ``Federal sex offense'' is defined
within the statute as an offense under sections: 1591 (relating
to sex trafficking of children, 2241 (relating to aggravated
sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1)
(relating to abusive sexual contact), 2245 (relating to sexual
abuse resulting in death), 2251 (relating to sexual
exploitation of children), 2251A (relating to selling or buying
of children), 2422(b) (relating to coercion and enticement of a
minor into prostitution), or 2423(a) (relating to
transportation of minors). As ``Federal sex offense'' presently
refers only to section 2244(a)(1), the term does not include
sexual contact with children under the age of 12 or aggravated
sexual contact with children who are 12 to 15 years old, both
of which are found in section 2244(a)(5). This bill would amend
section 3559(e) to include offenses under section 2244(a)(5)
and section 2423(c).
Section 2244\5\ sets forth criminal offenses involving
sexual contact, instead of sexual acts, but references
categories of crimes that are sexual acts defined in section
2241. In particular, section 2244(a)(1) criminalizes sexual
contact, involving conduct described in section 2241(a) and
(b). Section 2244(a)(5) criminalizes sexual contact, involving
conduct described in section 2241(c); section 2241(c) prohibits
aggravated sexual abuse of children under the age 12 and
children who are 12 to 15 years old.
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\5\18 U.S.C. Sec. 2244 (2017) (Abusive Sexual Contact).
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The only differences between the offenses in sections
2244(a)(1) and (a)(5) are that the latter requires proof of the
age of the victim and carries higher penalties. In fact, the
penalty for section 2241(c) violations is significantly more
severe than the penalties for sections 2241(a) and (b). Section
2241(c) violations are punishable by a mandatory prison term of
at least 30 years up to life for sexual acts and a maximum of
life in prison for sexual contact. Violations of sections
2241(a) and (b) are punishable by a maximum of life in prison
for sexual acts and a maximum of ten years in prison for sexual
contact; neither offense (section 2241(a) or (b)) is subject to
mandatory minimum sentencing. As a result of the exclusion of
section 2244(a)(5) offenses from the definition of ``Federal
offense,'' the recidivist provision of section 3559(e) does not
apply to offenders who commit sexual contact offenses against
children under the age of 12 or children who are 12 to 15 years
old.
H.R. 1862 would add section 2244(a)(5) to section 3559(e),
subjecting such offenders with prior sex convictions involving
minor victims to mandatory sentences of life in prison. Section
3559(e) would also be amended to include section 2423(c), which
prohibits the sexual abuse of children abroad by U.S. citizens,
as a predicate offense for recidivist treatment; section
2423(c) would be added to the subsection outlining
``nonqualifying felonies.'' Under section 3559(e)(3), an
offense will not serve as a basis for the mandatory life
sentence if the defendant establishes by clear and convincing
evidence that the sexual act or activity was consensual and not
for the purpose of commercial or pecuniary gain and the sexual
act or activity would not be punishable by more than one year
in prison under the law of the state in which it occurred; or
no sexual act or activity occurred.\6\
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\6\18 U.S.C. Sec. 3559(e)(3) (2017).
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CONCERNS
I. THE BILL WOULD SUBJECT MORE INDIVIDUALS TO THE IMPOSITION OF
MANDATORY MINIMUM SENTENCES
Our concerns with this bill primarily stem from the
expanded application of mandatory minimum sentences that would
result from broadening the scope of individuals who would be
subject to such penalties under the bill. H.R. 1862 amends
section 3559(e) to include offenses under section 2244(a)(5)
and section 2423(c) as predicates for recidivist treatment.
While the predicate offenses would involve aggravated sexual
abuse of children under the age of 12 and children who are 12
to 15 years old and the sexual abuse of children abroad by U.S.
citizens, this amendment would add new classes of offenders
subject to mandatory sentences of life in prison.
During the Committee's consideration of this bill, Ranking
Member John Conyers, Jr. offered an amendment to address these
concerns. Unfortunately, that amendment was defeated by a vote
of 2 to 14. While we would prefer that mandatory minimum
sentences be removed from federal law altogether, we believe
the amendment offered by Ranking Member John Conyers, Jr.
represented a reasonable compromise that would have addressed
some of our concerns while not harming the goal of the bill.
The amendment would have provided that, for the offenses
that the bill would add as predicates for recidivist treatment,
these offenses would not be subject to the mandatory life
imprisonment, but instead would be subject only to the maximum
of life in prison, based on judicial discretion. In making this
change, the amendment would still allow judges to impose life
sentences in appropriate cases, but judges would also have the
discretion to impose sentences less than life in prison if
deemed more appropriate under the circumstances. The amendment
did not suggest that the conduct that the bill would subject to
recidivist penalties is not deserving of additional punishment,
but that mandatory minimums--of life imprisonment no less--are
not the right way to impose sentences.
II. H.R. 1862 WOULD ONLY EXACERBATE THE PROBLEMS CAUSED BY MANDATORY
MINIMUM SENTENCES
Congress should work to eliminate mandatory minimum
sentences altogether, not expand them as would be the result
under H.R. 1862. Mandatory minimum sentences are the wrong way
to determine punishment. They not only lead to unjust outcomes
for individuals, but also have serious systemic consequences by
contributing to the problem of overincarceration. Since
Congress enacted harsh mandatory minimums in the 1980s, the
federal prison population has exploded by over 700% to more
than 188,000 inmates today.\3\
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\3\U.S. Dep't of Justice, Bureau of Prisons, Historical
Information, at http://www.bop.gov/about/history/ (last visited May 15,
2017); U.S. Dep't of Justice, Bureau of Prisons, Inmate Statistics:
Offenses, at http://www.bop.gov/about/statistics/
statistics_inmate_offenses.jsp. (Mar. 25, 2017).
---------------------------------------------------------------------------
In addition, higher than warranted sentences resulting from
mandatory minimum sentencing strain public finances.
Expenditures for the federal Bureau of Prisons have risen to
comprise approximately 25 percent of the total budget of the
Department of Justice.\7\ Every dollar expended on lengthy
mandatory minimum incarcerations is a dollar that cannot be
spent on crime prevention, victim services, training,
investigation, and prosecution. Absent smarter sentencing
policies and reformation of mandatory minimum sentences, prison
populations and their associated costs will continue to
escalate. We need to take steps to ensure that sentences are
appropriately severe, but are not set beyond levels that no
longer serve legitimate criminal justice purposes.
---------------------------------------------------------------------------
\7\The Charles Colson Task Force on Federal Corrections,
Consequences of Growth in the Federal Prison Population (May 2015),
available at http://www.urban.org/sites/default/files/publication/
52636/2000221-Consequences-of-Growth-in-the-Federal-Prison-
Population.pdf.
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While long sentences may be appropriate under the facts of
a particular violation of law, Congress cannot know the facts
of every case in advance. Judges are in the best position to
impose sentences that are appropriate for the facts and
circumstances of each case. Even recognizing the seriousness of
these offenses, removing mandatory minimums--while still
permitting the lengthy statutory maximum penalty of life
imprisonment--would provide the appropriate spectrum of
sentences for culpability and proportionate punishment.
CONCLUSION
Without question, crimes against children are particularly
egregious. Congress must do everything it can to prevent these
crimes and, when they do occur, hold offenders accountable.
Expanding the scope of individuals subject to mandatory minimum
sentences, however, is the wrong answer. Such offenders would
still be subject to appropriately severe penalties if minimums
were eliminated and judges imposed sentences based on the facts
and circumstances of each case, up to the already-lengthy
statutory maximum sentences. Unfortunately, H.R. 1862 fails to
address this critical concern with respect to new classes of
offenders who would be subject to punishment under the bill.
Accordingly, we must oppose H.R. 1862 and we urge our
colleagues to join us in opposition.
Mr. Conyers, Jr.
Ms. Jackson Lee.
Mr. Johnson, Jr.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Mr. Jeffries.
[all]