Micky Rife was convicted under 18 U.S.C. § 2423(c), which prohibits any U.S. Citizen or lawful permanent resident from committing a sexual act with a person under 18 while living or traveling abroad. Rife had been living in Cambodia and, upon his return to Kentucky, he was interviewed by federal agents and confessed to having sex with two minors while living abroad.
On appeal from Rife’s conditional guilty plea, and applying a de novo standard of review, the Sixth Circuit held that Congress’s authority to criminalize the conduct at issue could not be justified by the Foreign Commerce Clause where, as here, the illicit sexual conduct was not commercial in nature. The court distinguished the facts of Rife’s case from a case where the activity abroad might indeed be considered commercial in nature, such as the production of child pornography there.
However, the Sixth Circuit upheld Rife’s conviction based on finding constitutional support for the statute based on a combination of U.S. Const. Art. II, § 2, cl. 2 (the executive treaty-making power) and U.S. Const. Art. I, § 8, cl. 18 (the Necessary and Proper Clause), which it combined to call “the [legislative] power to implement treaties.”
Ratified in 2002, the “Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography” was a valid treaty, and as such, 18 U.S.C. § 2423 was a valid exercise of Congress’s constitutional power to enact such laws deemed necessary and proper for the enforcement of that treaty.
Judge Stranch concurred, arguing that the majority applied the wrong analysis to come to its conclusion and criticizing the majority’s discussion of the history of the Foreign Commerce Clause.
Appeal from the Eastern District of Kentucky
Opinion by Kethledge, joined by Bush
Concurring opinion by Stranch
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