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United States v. Park - 938 F.3d 354 (D.C. Cir. 2019)

Rule:

The prohibition in the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, 18 U.S.C.S. § 2423, against U.S. citizens producing child pornography while residing abroad rationally relates to two aspects of the Optional Protocol. First, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, T.I.A.S., requires the States Parties to criminalize the production of child pornography. Second, it empowers them to exercise jurisdiction over the pertinent offenses of their nationals regardless of where the offenses occur.

Facts:

The United States ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol or Protocol). The Protocol empowered its signatories to police their own nationals’ sexual exploitation of children wherever it took place. Among the laws that fulfilled the United States' duties under the Protocol was the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, 18 U.S.C. § 2423 (2018) (PROTECT Act). Pursuant to the obligations of the U.S. under the Protocol, defendant Joseph Ricky Park - a U.S. citizen who travelled the world as an English teacher, and sexually abused children – faced a PROTECT act indictment for further sex crimes against a minor in Vietnam. The United States apprehended Park in 2016 and indicted him for producing child pornography and sexually abusing a child while residing in Vietnam in 2015, in violation of the PROTECT Act, 18 U.S.C. §§ 2423(c), (e), (f)(3), (f)(1). Vietnam was a signatory to the Optional Protocol. Park successfully moved the district court to dismiss the indictment on the ground that Congress lacked constitutional authority for the application of a federal criminal prohibition to child sexual abuse and production of child pornography in a foreign country. The government appealed.

Issue:

Was the PROTECT Act constitutional as applied to Park?

Answer:

Yes.

Conclusion:

The Court of Appeals for the District of Columbia Circuit held that the district court erred in dismissing an indictment charging Park with producing child pornography and sexually abusing a child while residing in Vietnam in violation of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, 18 U.S.C.S. § 2423(c), (e), (f)(3), and (f)(1), because the Act was constitutional as applied to Park. According to the Court, because the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, T.I.A.S., reached both commercial and non-commercial production of child pornography, the Act's criminalization of non-commercial child pornography production plainly implemented the treaty. The "extraterritorial application" of the Act, § 2423(c), to defendant's conduct while he was residing abroad was expressly permitted by the Optional Protocol.

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