Law Against Illicit Sexual Conduct by Americans Abroad Upheld

A Kentucky man’s conviction for sexually abusing two girls under 10 years old in Cambodia was upheld by the Sixth Circuit, despite the defendant’s contention Congress didn’t have the power to pass the law under which he was charged.

Micky Rife was a teacher in Phnom Penh when two of his students accused him of sexual assault. He left Cambodia and returned to Kentucky, where he was charged with two counts of violating 18 U.S.C §2423(c).

Section 2423(c) punishes any U.S. citizen “who travels in foreign commerce or resides” in a foreign country and engages in noncommercial or commercial sex acts with a person under 18 years old.

Rife pleaded guilty to one count and was sentenced to 21 years in prison and 20 years of supervised release. But he reserved the right to challenge congressional authority to adopt the law.

The government argued that Section 2423(c) was valid under the foreign commerce clause and its power to enact legislation to implement treaties.

The foreign commerce clause didn’t give Congress authority to adopt the statute, Judge Raymond M. Kethledge of the the U.S. Court of Appeals for the Sixth Circuit said. The clause only applies to trade and the transportation of goods, it said.

The court rejected the argument that the U.S. Supreme Court’s holding under the interstate commerce clause that Congress has authority to regulate activities that substantially affect commerce should be applied to the foreign commerce clause.

“Rife’s molestation of his two victims was undisputedly noncommercial, and thus was not itself trade or commerce of any kind,” the court said. The bare fact that an American travels in foreign commerce doesn’t “empower Congress to regulate, under the Foreign Commerce Clause, everything that American does afterward,” it said.

But Congress did have the constitutional power to adopt laws implementing the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, the court said.

The Supreme Court has said that if a treaty is valid there can be no dispute about the validity of a law Congress adopted as a necessary and proper means to execute the power of the government, the court said. Because the Optional Protocol is valid, so too is Section 2423(c), it said.

Judge John K. Bush joined the opinion.

Judge Jane Branstetter Stranch concurred in the result because Congress had the authority to implement the treaty.

But Stranch said there was no reason for the majority to address the foreign commerce clause issue. Not only is the majority’s conclusion wrong, it creates a circuit split with the Third, Ninth, and D.C. circuits, which held that the foreign commerce clause provided Congress the power to adopt Section 2423(c), she said.

Green Chesnut & Hughes PLLC argued for Rife. It later withdrew and was replaced by a federal public defender’s office.

The case is United States v. Rife, 2022 BL 156059, 6th Cir., No. 20-5688, 5/5/22.