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Federal Judge OKs Child Victims' Suit Against 'Sex Tourist'
The Legal Intelligencer
Finding that "sex tourism" is a "global problem" and violates the "law of nations," a federal judge has refused to dismiss four lawsuits filed under the Alien Tort Statute by Moldovan minors who say they were victims of Anthony Mark Bianchi.
Bianchi, a New Jersey millionaire, is currently serving a 25-year sentence for traveling to foreign countries to have sex with boys aged 12 to 15.
His lawyers moved to dismiss the civil suits on the grounds that the Alien Tort Statute doesn't apply to private individuals, and that rape, outside the context of war or genocide, is not actionable under the law.
But Chief U.S. District Judge Harvey Bartle III disagreed, finding that the plain language of the ATS includes "no requirement of state action," and that Bianchi's targeting of children and the frequency of his crimes "is extreme enough for subject matter jurisdiction to exist under the ATS."
"Although Bianchi's conduct occurred outside of the context of war and genocide, it was directed toward underage boys from a rural, poverty-stricken community in Moldova," Bartle wrote in his 12-page opinion in M.C. v. Bianchi.
Bartle noted that Bianchi conceded the truth of the allegations, including that he had engaged in acts of child sex tourism on at least five occasions -- in Moldova, Romania and Cuba -- and that he sexually assaulted his victims by performing oral sex and anally raping them.
"He accomplished these horrifying acts by paying the victims and their families or by using physical force," Bartle wrote.
Bianchi's lawyer, Michael S. Bomstein of Pinnola & Bomstein, filed a motion to dismiss that amounted to a facial challenge to the Alien Tort Statute.
Bomstein argued that the U.S. Supreme Court has spoken only once on the scope of the ATS, in its 2004 decision in Sosa v. Alvarez-Machain, which rejected the claims of a Mexican citizen who alleged that his abduction from Mexico to face trial in the United States for the torture and murder of a federal agent violated the ATS.
The justices held that ATS jurisdiction was not triggered by "a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment" because such conduct "violates no norm of customary international law so well defined as to support the creation of a federal remedy."
Bomstein argued that, since Sosa, no federal appellate court has ever held that a private, non-state actor can be liable under the ATS "for anything less than war crimes and genocide."
Even the crimes of murder and torture have been rejected as grounds for subjecting private actors to ATS jurisdiction, Bomstein argued.
But plaintiffs attorneys Ronald J. Cohen and Sergiu Gherman of Miami Lakes, Fla., argued that ATS jurisdiction was properly grounded on their allegations of violations of "customary international law."
"Since at least the Nuremberg trials individuals were held personally liable for violations of customary international law, and that there is a universal consensus among civilized nations that the prohibition against sexual child abuse, advancement of child prostitution, and forcible sex with children constitutes an established norm of customary international law," the plaintiffs team wrote.
The plaintiffs cited the United States' signing of a treaty known as the Optional Protocol to the Convention on the Rights of the Child.
Now Bartle has sided with the plaintiffs, finding that the impetus behind ratification of the Optional Protocol was the "widespread and continuing practice of sex tourism."
The Optional Protocol "has gained widespread acceptance," Bartle noted, with 118 countries as signatories. To implement the treaty, Bartle noted, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of 2003, also known as the PROTECT Act, the criminal statute under which Bianchi was convicted.
In rejecting Bianchi's argument that private individuals cannot be held liable under the ATS, Bartle said courts have held that some conduct can violate the laws of nations "whether undertaken by those acting under the auspices of a state or only as private individuals."
As examples, Bartle cited piracy and enslavement as conduct that was "historically committed by private individuals, not state actors."
Bartle concluded that Bianchi's crimes "represent a global problem, whereby individuals from developed nations travel to less developed nations to prey on young children from impoverished communities."
The courts, Bartle said, "have been willing to recognize claims by children under the ATS, even where the same claims would not be actionable if brought by adults."
Due to the young age of his victims and the frequency of Bianchi's crimes, Bartle found that "this case is extreme enough for subject matter jurisdiction to exist under the ATS."
Bomstein could not be reached for comment on the ruling.