Richard M. Thompson II
Legislative Attorney
Over the past 100 years, Congress has sought to prohibit acts of sexual abuse of minors and punish those who harm the nation’s children. These efforts began in the early 20th century when Congress prohibited the transportation of a minor in interstate commerce for the purpose of sexual exploitation, and continue to more modern measures such as outlawing the use of the Internet to lure children for sexual purposes. Nevertheless, Congress’s power in this area does have constitutional limits.
The power to create criminal laws in the United States resides most broadly with the states. The states retain a general police power to regulate for the health, safety, and welfare of their citizens. By contrast, Congress may only act within its express and implied powers, including the power to legislate for federal enclaves and in areas within its enumerated powers (e.g., commerce, spending, taxing). Congress has exercised both strands of authority to criminalize sexual abuse of children.
Congress began outlawing sexual abuse of minors in 1910 with the Mann Act, which outlawed the use of a common carrier to transport a minor in interstate commerce for an illegal sexual purpose. In subsequent enactments, including the Sexual Exploitation of Children Act of 1977, the Sexual Abuse Act of 1986, and the Protection of Children from Sexual Predators Act of 1998, Congress increased penalty provisions (including repeat offender provisions), expanded jurisdictional clauses, and broadened the list of prohibited acts, including aggravating factors warranting an increased penalty.
Presently, federal sexual abuse law is a hierarchy based on the age of the victim and whether the act involved aggravating circumstances. The most serious offense is when a child is murdered during the commission of a sexual offense. The penalty is death or up to life imprisonment. The least serious is sexual contact (as opposed to a sexual act) with a minor at least 12 years of age but younger than 16. This crime requires no aggravating circumstances and carries a possible four-year maximum prison sentence. Between these two crimes falls a host of other offenses prohibiting sexual abuse or contact. These include sexual abuse of a child at least 12 years of age but younger than 16, sexual contact with a child under the age of 12 years, and use of the mail or other facility of interstate commerce to persuade a minor under the age of 18 to engage in an illegal sexual act.
Because much of the prohibited conduct in these statutes overlaps, courts must consider the lesser-included offense doctrine when handling sexual abuse cases. This doctrine permits a court to instruct the jury on not only the offense charged by the government, but also a lesser offense that is “necessarily included” in the charged offense. This doctrine has been used to aid the prosecution in obtaining a conviction when proof of the charged offense is insufficient, but also assists defendants by allowing the jury to convict on the lesser included offense.
Date of Report: July 13, 2012
Number of Pages: 18
Order Number: R42132
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