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Sex Tourism Response Child Sexual Tourism: The Appropriate Legal Response Mohamed Y. Mattar, Adjunct Professor of Law and Co-Director of The Protection Project at Johns Hopkins University, School for Advanced International Studies III Bilateral Conference "Parallel Worlds" Tijuana - San Diego Child Sexual Tourism and Other Forms of Trafficking August 26-27, 2003 San Diego California I am privileged to be speaking to you today about the issue of sex tourism in a conference mainly focused on "Child Sexual Tourism and Other Forms of Trafficking". That is the title of the conference and it suggests to me that we are addressing sex tourism here as a form of trafficking. It is believed that sex tourism traces its origins to Asia during the Vietnam War. Asia is still a popular region for sex tourism. Latin America is another region which is a popular destination for international sex tourism. In fact, it is a more "convenient" and cheap destination for American sex tourists. The countries of Honduras and Costa Rica have emerged as especially popular destination countries. • One report documents that sex tourists constitute 5% of the 4 million annual tourists to Central America. • Reports from Costa Rica itself document that between 5 to 10 thousand sex tourists visited in 1998 alone. Brazil and the Dominican Republic are also sites for child sex tourism. Colombia is another country of destination. According to UNICEF, about 16,000 children are employed in the border child-sex trade business in Mexico border towns and resort areas. In Costa Rica, between 1992 and 1994, 160 foreigners were detained for sexually abusing children. • 25% American • 18% German • 14% Australian • 12% British and • 6% French A contributing factor to the increase in trafficking in children is the mistaken belief that young children are less likely to be infected with AIDS, providing a "safe sex partner". Poverty, underdevelopment and lack of financial means have been cited as contributing factors to the supply. The sex tourism industry is not limited to providing economic benefits to families in these poor nations: • Pimps, • brothel owners, • hotels, • travel agencies, • recruiters, • and local police are all reaping economic benefits from the continuation of the industry. Gender discrimination is another important factor as girls have fewer educational and employment opportunities. Now I will limit myself to the appropriate legal responses to sex tourism since other distinguished speakers are addressing the issue from different perspectives. But to design an appropriate legal response to the problem of sex tourism, one must first identify the elements of the problem as well as the actors involved in the problem. As to the elements of the problem, First, sex tourism is an issue that is closely related to the demand issue. So any legal response to the problem must take into consideration the demand issue. And countries do not always feel comfortable addressing the issue of demand and the behavior of the customer or the client. In cases of prostitution of women, the Swedish Act of January 1, 1999 criminalizes the behavior of the client. The Swedish Law provides that "a person who obtains casual sexual relations in exchange for payment shall be sentenced-unless the act is punishable under the Swedish Penal Code-for the purchase of sexual services to a fine or imprisonment for at most six months. Attempts to purchase sexual services are punishable under Chapter 23 of the Swedish Penal Code." Another legal system that also stands alone is the law of Macedonia. If the man buying sex has knowledge that the prostitute is being trafficked, he would be liable. Article 418-a of the Criminal Code of Macedonia provides that "The one that uses or enables another person's usage of sexual services from the persons for whom he knows are victims of human trafficking will be punished with from six months up to five years imprisonment." And then there is the Islamic Law approach, which punishes both the client and the woman in prostitution, except in cases in which she is forced into prostitution. And that is the same approach adopted by U.S. Law. Recently, the "Sex Tourism Prohibition Improvement Act of 2002" amended Section 2423 of Title 18 of the United States Code to say that: "(b) TRAVEL WITH INTENT TO ENGAGE IN ILLICIT SEXUAL CONDUCT- A person who travel 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 15 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, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 15 years, or both. (d) ANCILLARY OFFENSES- Whoever 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 15 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 a person that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person who the individual engaging in the commercial sex act, knows or should have known has not attained the age of 18 years." This is really an improvement because the original 2423, which is The Child Sexual Abuse Prevention Act of 1994, said that: "(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, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. (b) TRAVEL WITH INTENT TO ENGAGE IN SEXUAL ACT WITH A JUVENILE- A person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, or conspires to do so, for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18b years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than 15 years, or both." This is an extraterritorial application of the law, something which must be provided by Congress. In United States v. Thomas (893 F. 2d 1066 of the 9th Cir. 1990) • the Ninth Circuit applied the nationality principle where a man crossed the border into Mexico with a 13 year-old girl and photographed his sexual acts with her. • Despite a presumption against the extraterritorial application of domestic law, the Court held that the defendant was guilty on the theory that the congressional intent to apply the criminal statute on pornography extraterritorially could be inferred from the nature of the crime. • With the Sex Tourism Act, the Congressional intent does not have to be inferred. Second, sex tourism is a form of trafficking: • It is trafficking in children. ◦ That means it is trafficking per se. We do not have to prove force, fraud, or coercion. This is the position of the Trafficking Victims Protection Act. ◦ And we do not have to prove abuse of position of vulnerability. That is the United Nations Protocol on Trafficking's position. • It is a commercial sex trafficking. ◦ And sex trafficking is defined under the TVPA as trafficking for a commercial sex act. ◦ That may include prostitution and it may include pornography and it may also include sex tourism. ◦ That's what Congress refers to in Section 102 of the TVPA. ◦ But you have to be careful here, the TVPA does not cover non-commercial sex. ■ So bride trafficking is not covered under the TVPA. ■ And trafficking of mothers, or trafficking for the purpose of childbearing is not covered under the TVPA. ■ And arranged marriages, forced marriages, early marriages, marriages of convenience, etc. are not covered under the TVPA ◦ The TVPA, although it does not explicitly cover sex tourism, makes the point, in Section 105 (d) (5), that one of the main tasks of the Interagency Task Force to Monitor and Combat Trafficking is to: "Examine the role of the international 'sex tourism' industry in the trafficking of persons and in the sexual exploitation of women and children around the world." • However the new amendment to the TVPA, under H.R. 2620, provides that: "(e) COMBATING INTERNATIONAL SEX TOURISM- (1) DEVELOPMENT AND DISSEMINATION OF MATERIALS- The President, pursuant to such regulations as may be prescribed, shall (A) require that airlines organized under the laws of the United States and other airlines operating in the United States develop and disseminate materials alerting travelers that sex tourism (as defined in section 2423(c-e) of title 18, United States Code) is illegal, will be prosecuted, and presents dangers to those involved, and (B) encourage such airlines to work with nongovernmental organizations in developing these materials.
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