The federal statute criminalizing sex trafficking of a minor does not require proof that the defendant actually knows that his alleged victim is a minor, the U.S. Court of Appeals for the Second Circuit ruled on Nov. 30.
Addressing an issue of first impression, the Second Circuit said that a provision added by Congress in 2008 to the statute “imposes strict liability with regard to the victim’s age, thus relieving the government’s usual burden to prove knowledge or reckless disregard of the victim’s under age status.”
The decision, following oral arguments heard by the court on Jan. 25, 2012, affirms the conviction in the Eastern District of Devon Robinson on two counts of sex trafficking of a minor under 18 U.S.C. 1581.
The circuit was dealing with §1591(c), an evidentiary provision added by Congress in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Wilberforce (1759-1833) was leader in the movement in Great Britain to abolish the slave trade.
Robinson was convicted following a jury trial before Judge John Gleeson (See Profile). The victim, “Jane Doe,” then 19, testified as a hostile witness. She said that Robinson was not her pimp, but her boyfriend and that, while she was 17 when she started seeing Robinson, she told everyone she was 19.
But the jury also heard recorded statements that Robinson made to a detective and an assistant district attorney in Queens and 35 recorded phone calls that Robinson made to the victim while he was being held at various detention facilities between July 2008 and April 2010.
In those recorded calls, Robinson demands that the victim keep prostituting herself and deliver $200 a day to his grandmother, all the while repeatedly threatening to kill her if she failed to hand over the money or tried to leave him.
The jury returned a verdict on June 24, 2010 and by special verdict found that Robinson knew the girl was under 18, recklessly disregarded that fact and had a “reasonable opportunity to observe” her. Gleeson sentenced Robinson to 15 years in prison.
Writing for the court, Judge Cabranes discussed the relevant part of §1591(c), which was added on top of §1591(a).
“Because Section 1591(a) requires proof of knowledge or reckless disregard—not both—the government may satisfy its burden by proving knowledge or the substitute for knowledge under Section 1591(c),” Cabranes said. “Accordingly, Section 1591(c) supplies an alternative to proving any mens rea with regard to the defendant’s awareness of the victim’s age.”
Cabranes said this reading “gives force to the provision’s obvious goal—to reduce the government’s burden where the defendant has a reasonable opportunity to observe the victim.”
The judge said the court “remained mindful” that “criminal statutes are generally construed to include mens rea requirements.”
“But that presumption does not apply to sex crimes against minors…” at least where, in the words of the U.S. Supreme Court, to situations where “‘the perpetrator confronts the underage victim personally,’” United States v. X-Citement Video, 513 U.S. 64 (1994).
Given the court’s holding, he said, Judge Gleeson did not err in giving his jury a three-part instruction on the victim’s age.
Challenging the sufficiency of the evidence, Robinson said it was significant that the victim told him and others she was 19.
But the government countered that, in one conversation, she stated she had been with Robinson every weekend for about three years and, in another, had discussed her birthday, and the jury had an opportunity to view several photographs of her taken before she turned 18 and saw her on the witness stand.
Cabranes said the evidence was sufficient to show that “Robinson knew that Jane Doe was under the age of eighteen at the time he was causing her to engage in commercial sex acts” within the respective time spans of the charges and that “Robinson was aware of Jane Doe’s status as a minor, especially given that their relationship began before Jane Doe dropped out of high school during her junior year.”
Curtis Farber represented Robinson.
Assistant U.S. Attorney Sylvia Shweder argued for the government.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.