September 24, 2017

Tenth Circuit: Mens Rea Element of Child Sex-Trafficking Statute Satisfied Where Defendant Recklessly Disregarded Victim’s Underage Status

The Tenth Circuit Court of Appeals issued its opinion in United States v. Doung on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine whether a statutory amendment to 18 U.S.C. § 1591, relating to child sex-trafficking, altered the government’s burden in proving the requisite mens rea. The defendants, Tung Doung, William Baker, and Curtis Anthony were each charged with one count of child sex trafficking and one count of conspiracy to engage in child sex-trafficking in violation of 18 U.S.C §§ 1591 and 1594. The defendants moved to dismiss the indictment, on the basis that it did not allege the mens rea element of the child sex trafficking crime, and the district court granted the motion.

Under § 1591, the government can prove the mens rea element of child sex-trafficking pertaining to the age of a child in three ways: (1) by showing that the defendant knew the child was underage; (2) the defendant acted in reckless disregard of their age, or (3) the defendant had a reasonable opportunity to observe the victim prior to engaging in a commercial sex transaction. In the superseding indictment, the government charged the defendants only with having a reasonable opportunity to observe the victim to prove the requisite mens rea.

To interpret the statute, the court began by looking at the plain language of § 1591, stating, “the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. After looking at the plain language of the statute, the court determined that § 1591 (c) (pertaining to the language adding reasonable observation as a mens rea standard), was not ambiguous, and provides the government a third option for proving a defendant’s mens rea.

Because the section was enacted by congress as a part of the Trafficking Victims Protection Act of 2000 (TVPA), the court next addressed the congressional intent behind the addition of § 1591. The court noted that Congress’ stated purpose behind the act was to, “combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude,” and that § 1591 was added to provide federal criminal penalties for engaging in such conduct. The court then stated that because Congress added subsection 1591(b) to lessen the government’s burden as to the mens rea required regarding a child’s age, the addition of a third subsection further lessening that burden is wholly consistent with the intent of the TVPA.

The defendants argued that if the court interprets § 1591(c) as giving the government a third avenue to prove mens rea, then the section would effectively relieve the government from having to prove actual knowledge or reckless disregard of a victim’s age. The court rejected the defendant’s argument, and stated that contrary to the defendant’s assertions, the government will still have to prove actual knowledge or reckless disregard in circumstances where the defendants did not have a reasonable opportunity to observe the child victim before engaging in the commercial sex transaction. Additionally, the court stated that the defendant’s preferred interpretation actually goes against the stated objective of the TVPA of lessening the government’s burden by restricting the government’s ability to show mens rea under the reckless disregard standard.

As to the conspiracy charge, the defendants argue that the courts interpretation of § 1591(c) does not resolve if the district court properly dismissed the conspiracy charge. Relying on the seventh circuit holding in United States v. Saldago, the defendants claim that they could not have conspired to commit the crime of child sex-trafficking without knowing that the child in question was actually a minor. The court rejected this claim as well, holding that because the government is alleging the defendants had reasonable opportunity to observe the victim, the indictment specifically charges that the defendants had knowledge of the victim’s age for the purpose of the conspiracy charge as well.

The court reversed the decision of the district court in dismissing both charges against the defendants, and remanded the matter for further proceedings.

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