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Home , Sex tourism

Child Sexual : 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 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. and the are also sites for child sex tourism. is another country of destination. According to UNICEF, about 16,000 children are employed in the border child-sex trade business in border towns and 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 " 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, • owners, • , • 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 .

In cases of 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 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 Prevention Act of 1994, said that:

"(a) TRANSPORTATION WITH INTENT TO ENGAGE IN CRIMINAL SEXUAL ACTIVITY- A person who knowingly 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 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 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 , 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. Such materials may include, for example, brochures, public service announcements, and billboards."

That brings me to the actors involved in sex tourism.

Of course, there is always Professor Hersh, the customer, the client, the criminal, the perpetrator. That is the "natural person", because to have sex you have to have a natural person. And that is what Professor Hersh did.

A renowned sex tourism case is U.S. v. Hersh. The United States' only conviction of a U.S. citizen under the 1994 Act, is the case of Professor Marvin Hersh, who traveled to Honduras on numerous occasions for the purpose of engaging in sexual relations with young boys:

• Hersh sexually exploited several boys from Honduras who were brothers ranging from ages 8 to 16. • Hersh brought back to the United States one of the Honduran boys, age fifteen, by using a false . • He had claimed that the boy was his adopted son and enrolled him in a school in Florida. • However, Hersh's former wife alerted the authorities that her former husband was living with a boy he had illegally brought into the country and was arrested. • Hersh's friend and co-conspirator testified against Hersh stating that he had gone with Hersh to Honduras to engage in sexual activities with young Honduran boys on numerous occasions. • The FBI cooperated with the Honduran police and NGO Casa Alianza to locate and interview victims and witnesses. • Hersh was sentenced to a total of 105 years imprisonment for all 9 offenses he was found guilty of, including conspiracy to a minor in foreign commerce, as well as traveling abroad with the intent to engage in illegal sexual activity. And there are many other cases which you may find on The Protection Project website, www.protectionproject.org These include cases of international sex tourism. For example:

The Bolin Case Stockholm District Court Stockholm, Sweden June 22, 1995

• A Swedish national was arrested in while having sexual contact with a 13 year- old Thai boy. • He fled from Thailand, but Swedish authorities later arrested him. • The child victim was brought to testify in the Swedish court. • The defendant was sentenced to three months imprisonment and a fine.

Correctional Tribunal Brunges, Belgium May 18, 1998 • A Belgium teacher was arrested in Thailand for exploiting a 14 year-old Thai boy. • He escaped to Europe, but upon cooperation between Thailand and Belgium he was arrested. • The defendant was sentenced to one year imprisonment.

District Court of New South Wales New South Wales, April 26, 1996

• An Australian sexually assaulted a 5 year-old girl in the . • He was sentenced to 6 years in prison, under sex tourism legislation, designed to to apply to sexual offenses committed outside Australia.

Tribunal de Grande Instance Draguigan, France October, 20 1997

• A French citizen committed crimes in France and Romania. • The French citizen sexually abused children in Romania and trafficked children into France from Romania.

High Court of Appeals October 8, 1996

• Affirmed the decision of the District Court of the Hague. • A Dutch businessman was sentenced to 5 years imprisonment for pornography and sexual abuse of young girls in the Philippines. • The Court recognized the application of the double criminality requirement since the offenses are illegal in both the Netherlands and the Philippines. • This was the first conviction of a sex crime on the basis of extraterritorial law.

District Court of Zurich Zurich, Switzerland June 25, 1998

• A Swiss national was convicted for the sexual abuse of children in Sri Lanka. • The defendant was arrested by the Sri Lankan authorities who deported him. • He was arrested him upon arrival in Zurich. • This was the first case to apply the extraterritoriality principle. These are natural persons from Sweden, Belgium, Australia, France, the Netherlands, and Switzerland, all from Tier 1 countries according to the State Department TIP Report from June 11, 2003.

The first successful prosecution of sex tourists was in Norway in 1990. Three Norwegian nationals were sentenced for indecent intercourse with 13 year-old boys in the Philippines and Thailand. Under the Swedish law, in order for the Swedish courts to have jurisdiction, the act must be criminal both in Sweden and in the country where it was committed, thus requiring "double criminality" for prosecution.

In addition, in Sweden, the sanction for such a crime may not exceed the maximum penalty prescribed for that crime under the law of the country where the crime was committed.

This means that Swedish courts have no competence to prosecute a Swedish national in a country where is legal or where the is lower than Sweden's.

So, the Swedish Law has its shortcomings.

• The law contains a double criminality provision so that the law cannot be enforced against a sex tourist who acts in a country where sex tourism is not a crime. • And the courts can apply only the maximum sentence under the law of the host country. In 1993, the German Parliament extended the application of its penal code to sexual offenses committed with children under the age of 14 by German nationals abroad, independently of the law of the country in which the criminal act was committed, thus eliminating the "double criminality" requirement.

In 1994, Australia enacted the Crime (Child Sex Tourism) Amendment Act which expressly prohibits sexual acts overseas with children under the age of 16.

So the Australian law:

• Criminalizes with a person under 16 years of age while outside Australia. • And provides for a maximum sentence of seventeen years imprisonment. • The Australian law also makes it an offense to encourage, advertise, benefit from, or assist a person to travel in order to sexually exploit minors under 16 years of age. ◦ Thus criminalizing travel agents and tour operators ◦ And Australian bars and brothel owners who participate in sex tourism. And the TIP Report did a fairly good job of documenting sex tourism in 16 countries, specifically in:

Brazil - "The Government of Brazil is fighting sex tourism by asking hotels to be active in discouraging child prostitution on their premises. Hotels participating in the program receive an extra "star" in their quality rating. Brazil also distributes brochures to visiting tourists making them aware of the penalties associated with exploiting minors… The government has made notable efforts to free slaves and fight sex tourism… The Ministry of Tourism ran an international public awareness campaign to combat sex tourism, which included pamphlet placement on flights into Brazil that explained the country's laws against sexual exploitation of minors to every traveler that gets a visa, and public service announcements in Brazil."

Costa Rica - "The vibrant tourism industry attracts a small but growing percentage of sex tourists primarily from the United States, Canada, and Germany who prey on children." - "Minors are victimized in sexual exploitation connected to the state-run tourism industry. Despite occasional measures by the Government of Cuba to crack down on prostitution, state- controlled tourism establishments and independent operators facilitate and even encourage the sexual exploitation of minors by foreign tourists. Government authorities turn a blind eye to this exploitation because such activity helps to win hard currency for state-run enterprises… Over the years, the Cuban government has reversed its position regarding its condemnation of the prostitution that feeds sex tourism. There is no known law enforcement against traffickers who make available state-controlled public facilities for the sexual exploitation of minors."

Jamaica - "Jamaica is a country of internal trafficking of minors for sexual exploitation, particularly connected to the industry."

Therefore, it is not enough to penalize the natural person. You have to hold the legal person liable:

The distinction between natural and legal persons has to be clear. Any effective legal response to trafficking in persons must address not only the liability of the trafficker, a natural person, but also the legal person or the corporate person that facilitates such acts.

• Travel agencies • employment agencies • adoption agencies • matchmaking organizations • advertisement agencies • hotels • • bars • taxi companies • and sex operators must all be criminally liable for any illicit activity The liability of sex operators including:

• strip clubs, • massage parlors, • and escort services should not be limited to compliance with residential zoning regulations. Instead, nuisance/tort liability should be combined with criminal liability in examining the legitimacy of sex operators.

Sex operators who abuse their employees or force them to engage in illicit sexual activities should be:

• fined, • have their business license revoked, • or be forced to close their business. The July 2002 European Council Framework Decision on Trafficking in Persons calls upon countries to provide for the liability of legal persons. The UN Protocol explicitly addresses the liability of commercial carriers "including any transportation companies or the owner or operator of any means of transport" [Article 11(3)].

So child sex tourism should be explicitly recognized as a criminal offense.

And this is not the case in many countries of the Americas, although existing criminal laws may be used to penalize sex offenses against children.

Child Sex Tourism as a Form of Corruption of Minors:

• For instance, the Penal Code of Mexico provides that "Whoever procures or facilitates the corruption of a person under the age of sixteen, or who does not have the capacity to understand the significance of the act, by means of corporal exhibition acts, lascivious or sexual, or who induces the practice of begging, the inebriation by consumption of narcotics, prostitution, homosexuality, or forming part of a criminal association, or to commit whatever crime, is subject to three to eight years in prison and fifty to two hundred days fine. When the practices of the corruption of a minor or incapacitated person cause the victim to become alcoholic, drug addicted, or dedicated to prostitution or homosexuality, or part of a criminal association, the penalty will be five to ten years imprisonment and one hundred to four hundred days fine. If more crimes, in addition to those listed in this chapter, become committed, the rules of accumulation apply." • Similarly, in Mexico "the sexual exploitation" of women and children are considered crimes by Mexican law, and fall under the term "corruption of minors" (corrupción de menores) and "human smuggling and pimping" (trata de personas y lenocinio). • Likewise, the Penal Code of Brazil prohibits corruption of minors. • Other laws may also be used to prohibit the direction, organization or promotion of tourist activities that include sexual use of women and children. • For instance, the Penal Code of Chile provides that "the following aliens are forbidden from entering Chile: (2) Whosoever is involved in the illicit trade or trafficking of drugs or firearms, smuggling, white slave trade, and in general, whosoever undertakes any activity which is immoral or is liable for moral turpitude." Explicit Laws Addressing the Problem of Sex Tourism:

• Colombian law now addresses explicitly the problem of sex tourism, providing that "The promotion, collaboration, permission, or aid, direct or indirect, of the prostitution of minors within the developing activities, will be considered as an infraction by the lenders of tourist services that are acting against the sound development of the country's tourism industry. The Ministry of Economic Development, through the Operative Address, will be able to impose administrative sanctions that confirm article 72 of Law 300 of 1996 on the lenders of tourist services who incur an infraction as determined in the previous article, without prejudice to the penal sanctions at that place." • In Costa Rica a 1999 law explicitly provides that sexual abuse charges can be raised against an adult customer of a child even if the minor is willing to perform the sexual services or is being paid for such services. • In Honduras, only the sexual abuse of a child under the age of 12 is considered a crime. A sex tourist will only be prosecuting for exploiting a minor between the ages of 12 and 18 when the child or his parents have denounced the offense. I just met with a delegation from Brazil this last Wednesday at the Protection Project and they told me about Law Number 8069-90, in particular Article 244(a) of 2000, which imposes sanctions including fines and revocation of the license of a or or other agency facilitating travel for the purpose of sex tourism. This is in addition to putting the tourist himself in jail for 10 years.

And the problem here is that the tourist is from another country.

And that is why countries of origin should apply criminal laws on an extraterritorial basis for sex tourism offenders.

Applying the Extraterritorial Principle to the Crime of Trafficking in Persons:

• For instance, Article 5 of the Criminal Code of Macau provides that the criminal law is applicable to acts carried outside of Macau when such acts constitutes the crimes of "trafficking in human beings," "trade in slavery" and such acts are committed by a national or resident of the country. • In Thailand, the Penal Code Amendment Act has expanded the territorial jurisdiction of courts to cover "indecent sexual acts" and "trafficking offenses" provided in Section 282 and 283 of the Penal Code, irrespective of where such offenses are committed. • In New Zealand, The Crimes Act Amendment of 1995 applies to offenses concerning sexual conduct with children, under the age of 12 and between the ages of 12 and 16, committed by nationals abroad [Article 144A]. The Act also prohibits assisting persons traveling overseas for the purpose of having sex with children. Article 144C provides that "the making or organizing of travel arrangements includes, but is not limited to, the purchase or reservation of tickets for travel to a country outside of New Zealand, and the purchase or reservation of accommodations in a country outside of New Zealand." • In Ireland, under the Sexual Offenses (Jurisdiction) Act of 1996, persons who are nationals or residents of Ireland may be prosecuted for sexual offenses committed against children abroad. • Law No. 269 of August 3, 1998 amended Article 604 of the Penal Code to extend its application to sexual offenses committed abroad by an Italian national or to the harm of an Italian national or by a foreign national in conjunction with an Italian national sex tour [Article 144C]. • The Crimes (Child Sex Tourism) Amendment Act of 1994 of Australia provide for a similar rule. Other legal systems must consider the application of anti-trafficking legislation on extraterritorial basis, irrespective of the place where the crime of trafficking occurs.

Punishment of that international tourist should not be limited to putting him in prison. Countries should consider revoking the passport of a convicted sex tourist so he may not be able to travel again as a tourist for the purpose of engaging in sex with a child.

In many countries, deportation of the tourist is the only sanction imposed.

Any effective legal response to the offense of sex tourism must: 1. Address the issue as an issue of demand. Here comes the role of prevention.

2. Impose appropriate sanctions against all of the actors in the sex tourism enterprise. These sanctions should not be limited to imprisonment of the tourist, the natural persons. More importantly, we have to go after the legal person, the travel agency, the airlines, the hotels, all those who facilitate sex tourism.

3. That's what we need in a comprehensive, adequate, and effective law combating sex tourism.

4. Countries have to work together. Mutual assistance in criminal matters is important and applying sex tourism laws on an extraterritorial basis is also important. Even though Articles 34 and 35 on the on the Rights of the Child do not particularly require parties to enact legislation extending criminal jurisdiction over their citizens abroad.

5. An extraterritorial legislation against sexual exploitation of children should enable a sending country to prosecute a child sex tourist for activity in a destination country that would constitute a sexual crime against a child if the activity occurred in the sending country.

Here are the elements:

• Extraterritorial legislation should apply to citizen and permanent residents. • Extraterritorial legislation should criminalize traveling, or conspiracy to travel, overseas with the purpose of sexually exploiting children. • Countries should adopt a uniform age of consent, preferably of 18, to consistently enforce laws against child exploitation. • Remove the Double Criminality requirement. • Extraterritorial legislation should not require that victims file complaints or that other governments file a request from the destination countries. This would deter enforcement. 6. In fact, now we are taking a step forward from extraterritoriality to universality where certain offenses are recognized by the community of nations as of universal concern. These offenses include crimes against humanity which are defined under Article 7 of the ICC statute to include:

• "Enslavement • • Enforced prostitution • And any other form of of comparable gravity." The ICC defines enslavement to mean "the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons in particular women and children."