Introduction
Extraterritorial jurisdiction refers to the legal authority of a state or country to exercise its legal powers beyond its sovereign territory. This gives a nation the legal authority to address certain actions or offenses occurring outside its territorial limits by or against its citizens. While some countries apply their laws broadly to their citizens, irrespective of location or crime, the United States operates on a more selective system, asserting jurisdiction only over specific crimes. The United States has, in recent times, expanded its jurisdictional reach to encompass child sex crimes and homicides. However, a glaring void remains in the United States extraterritorial framework. While there are provisions to address sex crimes committed against children abroad, there exists no analogous statute in this framework for adult United States citizens who have been victims of similar crimes abroad, nor is there a mechanism to hold United States citizens accountable under United States law for sexually victimizing adults while overseas. The frequency of sexual assaults involving United States citizens abroad remains unclear due to a lack of comprehensive research. However, there are indications that such incidents may be particularly widespread in contexts like college study abroad programs. A recent study comparing rates of sexual violence during study abroad programs to those on domestic campuses found that female undergraduate students studying abroad face a risk of rape that is five times greater than those staying on their home campuses. United States nationals often receive only limited assistance, and sometimes no assistance at all when sexually assaulted abroad. In certain countries, the treatment of rape or sexual assault victims differs from expectations in the United States. For instance, in 2014, a Norwegian woman in Dubai was imprisoned after reporting a rape, later facing charges of extramarital sex and false reporting. Given the potential magnitude of adult Americans being sexually victimized overseas, and the many reasons justice may be unattainable in the country where the crime occurred, it is imperative for Congress to address this significant gap in extraterritorial jurisdiction.
The United States’ Ability to Exercise Extraterritorial Jurisdiction
At its core, extraterritorial jurisdiction allows a nation to regulate or adjudicate certain actions or offenses taking place outside its boundaries. It stems from nations’ need to safeguard their national interests, protect their citizens abroad, and ensure that transgressions of significant consequence do not escape the scope of justice.
In the United States, the Supreme Court has ruled that “it is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” Thus, “unless there is the affirmative intention of the Congress clearly expressed” to give a statute extraterritorial effect, it is presumed that “it is primarily concerned with domestic conditions.” Consequently, the ability of the United States to claim extraterritorial jurisdiction over criminal actions committed abroad exists within a patchwork of statutes extending jurisdiction to some violent crimes but not others.
In 1991, Senator Strom Thurmond (R-NC) introduced the Murder of a United States National Act in response to the killing of an American citizen in South Korea. Soon after, it became clear that the murder was orchestrated by two U.S. citizens who were in South Korea at the time of the murder. At this time, the United States did not have an extradition treaty with South Korea, nor was it certain that South Korean authorities would have pursued an extradition if they could. As a result, “the Federal Government ha[d] no jurisdiction to prosecute a person residing in the United States who ha[d] murdered an American abroad except in limited circumstances, such as a terrorist murder or the murder of a Federal official.” A revised version of the bill was included as part of the Violent Crime Control and Law Enforcement Act of 1994 but conferred criminal jurisdiction only where both the perpetrator and the victim were United States nationals. Congress passed the new legislation and it was codified as 18 U.S.C. § 1119, what would become known as the “Foreign Murder Statute.” Section 1119 emerged to address a jurisdictional gap highlighted by the murder of a United States citizen overseas, committed by another United States citizen. It sought to enable the prosecution of United States nationals who killed other United States nationals in foreign lands, especially when the countries in which the crimes took place lacked the ability or desire to ensure the accused faced trial. In response to a jurisdiction gap highlighted by an American national killing another American national abroad, the Foreign Murder Statute was enacted, granting the United States authority to prosecute such offenses.
In 2003, the United States took a significant step in combating child exploitation when President George Bush signed into law the the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (commonly known as the PROTECT Act). This legislation was specifically designed to combat child sex tourism and protect children from sexual abuse abroad. The PROTECT Act grants the United States government authority to prosecute a range of offenses related to child sexual exploitation, irrespective of whether such conduct is deemed legal in the foreign country where it took place. Under this framework, any United States national who travels abroad and engages in sexual acts with a minor — be it through force or in exchange for money — is subject to legal prosecution in the United States. Additionally, 18 U.S.C. § 1596, passed in 2008, provides the United States the power to exercise extraterritorial jurisdiction over foreign nationals who participate in the sex trafficking of children outside the United States, extending jurisdiction to a crime when neither the perpetrator nor the victim is a United States citizen.
A close examination of the Foreign Murder Statute and the PROTECT Act reveals an inherent gap in the legislative landscape: while United States citizens who commit murder or sexually exploit children abroad are subject to United States criminal jurisdiction, United States citizens over the age of 18 who fall victim to sexual assault abroad lack legal recourse in United States courts. Children who are sexually exploited while abroad have options available to them for remedies based in the United States legal system. Adults, however, find themselves in a legislative void when subjected to similar crimes. Many nations lack the desire or resources to prosecute sex crimes, particularly when the victim is a foreign national that has since left the country, and in other nations the act of reporting becomes a risk in itself. United States adults are vulnerable to the same heinous acts in foreign territories as children but lack the legal recourse in domestic courts provided by the PROTECT Act or the Foreign Murder Statute. This disparity underscores the need for comprehensive legislation that offers equal protection to all United States citizens irrespective of age, ensuring that no individual is left unprotected in the face of serious crimes committed outside the United States’ territorial jurisdiction.
Extraterritorial Jurisdiction in United States Courts
The legal questions about jurisdictional boundaries for prosecuting crimes committed abroad when they involve United States citizens have regularly been left for courts to decide. While there is a dearth of comprehensive statutes addressing sexual assaults committed by or against American adults abroad, certain cases illustrate how judges have grappled with the nuances of the extraterritorial application of United States law. United States v. Neil sheds light on this matter, specifically in the context of offenses committed on cruise ships in the “special maritime and territorial jurisdiction” of the United States.
In Neil, Neil (not a United States citizen) was charged with sexually abusing a minor in violation of 18 U.S.C. § 2243(a). Neil was originally charged for the crime of sexually abusing a minor (a United States citizen) in foreign waters, where Neil was working on the cruise ship in which the assault took place. The Appellant contended that since the incident happened in foreign waters, the United States lacked jurisdiction.
To determine the validity of extraterritorial jurisdiction, the court devised a dual-pronged test. For the first step, the court looked to the language of 18 U.S.C. § 2243 (a): “Whoever, in the special maritime and territorial jurisdiction of the United States …knowingly engages in or causes sexual contact with or by another person, if so to do would violate. . .” Importantly, this special jurisdiction extends, as per 18 U.S.C § 7(8), to “any foreign vessel” that has a “scheduled departure from or arrival” in the United States as it concerns offenses involving a United States national. As the incident happened on a foreign-flagged cruise ship that departed from and concluded in the United States, and the victim was a United States citizen, the court concluded that the sexual assault fell within the scope of 18 U.S.C. § 2243(a).
Transitioning to the second prong, the Court weighed the application of extraterritorial jurisdiction against international legal standards. The Court pinpointed two pertinent principles: the territorial principle, which grants a nation jurisdiction over incidents within its territory regardless of the nationalities involved; and the passive personality principle, which permits jurisdiction based exclusively on the victim’s citizenship. In examining the territorial principle, the Court emphasized the fact that the controlling jurisdiction statute, § 2243(a), specifically includes foreign-flagged ships departing from, and arriving to, the United States. While the totality of the circumstances made the passive personality principle applicable, the Court noted that “the passive personality principle [alone] has not been accepted as a sufficient basis for extraterritorial jurisdiction over ordinary torts and crimes.”
In Neil, the Ninth Circuit ultimately upheld the application of extraterritorial jurisdiction over the sexual assault of a United States national that occurred on a foreign cruise ship in international waters, reasoning that the crime fell within the special maritime and territorial jurisdiction of the United States. However, the outcome of this case relied upon a very specific set of facts, any one of which being different may have allowed the perpetrator to evade prosecution. While the Neil decision provides a clear framework for cases occurring within this special jurisdiction, it does not fully address or resolve the broader issue of United States jurisdiction over sexual assaults occurring overseas, particularly when the victim is an adult.
In 2010, the Supreme Court addressed the issue of extraterritorial jurisdiction in Morrison. In this case, a group of Australian investors filed a class action lawsuit against an Australian bank claiming that the bank had misled investors about the value of its American subsidiary’s assets and alleged a breach of the Securities Exchange Act (SEA). The central question before the Court was whether the antifraud provisions of United States securities laws could be applied extraterritorially for stock purchases made on foreign securities exchanges. In a decisive 8-0 ruling, the Supreme Court established that there is a general presumption against the extraterritorial application of federal law. The Court reaffirmed Aramco, reiterating that “unless there is the affirmative intention of the Congress clearly expressed to give a statute extraterritorial effect, a court must presume it is primarily concerned with domestic conditions.” Continuing, the Court said “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” Consequently, the Court confirmed that the SEA does not extend to international transactions.
Morrison provides a clear framework for assessing the extraterritoriality of United States laws. For example, in 18 U.S.C. § 2241, the federal statute criminalizing aggravated sexual battery, extraterritoriality applies to sexual abuse occurring “in the special maritime and territorial jurisdiction of the United States.” The special maritime and territorial jurisdiction of the United States encompasses: (1) the high seas, other waters within the United States admiralty and maritime jurisdiction, and any United States or affiliated vessels on these waters; (2) lands reserved, acquired, or used by the United States, including locations like forts or dockyards; (3) United States-linked aircraft in flight over specific waters; (4) space vehicles registered in the United States while in flight; (5) areas outside the dominion of any country if offenses involve a United States national; (6) foreign vessels with planned journeys to or from the United States related to offenses with a United States national; and (7) locales outside the jurisdiction of any country if offenses are perpetrated by or against a United States national.
Utilizing the logic established in Morrison, for 18 U.S.C. § 2241 to have extraterritorial effect stretching into foreign nations, it would require an “affirmative intention of the Congress clearly expressed.” Without this clear intention, the statute is assumed to address only “domestic conditions.” Given that 18 U.S.C. § 2241 lacks explicit language indicating its extraterritorial application, it can be concluded that the provision is not intended to apply extraterritorially.
The lack of a comprehensive framework for such situations creates legal voids for many survivors of sexual assault. This can lead to situations where United States citizens victimized abroad might not see their assailants prosecuted or where perpetrators could potentially evade justice by exploiting these jurisdictional uncertainties. Illustrating the absurdity of this oversight, an American citizen sexually assaulted while orbiting the Moon would have more legal recourse in United States courts than an American citizen sexually assaulted in Canada because special maritime and territorial jurisdiction explicitly includes “any vehicle used or designed for flight or navigation in space.” This further underscores the need for clearer legislative or judicial guidance on the extraterritorial application of United States law, especially in the context of sexual assaults against adults occurring outside the United States.
Crafting a Solution
Many nations – including Australia, Canada, and the United Kingdom – have adopted strategies that extend jurisdiction over sex crimes committed abroad, namely those against children. However, there is a gap in similar protections for American citizens over the age of 18.
The legislative gap highlighted by the absence of explicit provisions in 18 U.S.C. § 2241 (regarding extraterritorial application for sexual assaults against adults) poses a serious challenge to victims. Legislation should not merely focus on children but should ensure that all American nationals, regardless of age, are given the opportunity to pursue their claims against their foreign assailants in domestic courts.
A solution needs not be complicated, nor partisan, nor need it reinvent the wheel. Congress has shown both the ability and willingness to address oversights in extraterritorial jurisdiction on numerous occasions. A potential solution would be the introduction of legislation to amend 18 U.S.C. § 2241 to alter the language as follows:
Current Language:
“(a) By force or threat. — Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act…”
Proposed Amendment:
“(a) By force or threat. — Whoever, in the special maritime and territorial jurisdiction of the United States, in a Federal prison, or outside the United States if either the perpetrator or the victim is a United States citizen or permanent resident, knowingly causes another person to engage in a sexual act…”
The legislation would further extend extraterritorial jurisdiction to § 2241(b) through the addition of similar language. By adding “or outside the United States if either the perpetrator or the victim is a United States citizen or permanent resident,” United States courts would have the ability to prosecute American citizens that commit sexual assaults abroad and individuals that sexually assault American citizens abroad.
A comprehensive legal framework would not only protect United States citizens abroad but would also signal to the international community the United States’ unwavering commitment to safeguarding its nationals, thereby fostering a safer global environment. By addressing this legislative oversight, Congress can ensure that United States citizens traveling or residing abroad have the same level of legal recourse from sexual assaults as they do at home, sending a powerful message that such crimes, regardless of where they occur, are intolerable and will not go unpunished.
Conclusion
The fabric of United States extraterritorial law, when viewed against the backdrop of the Foreign Murder Statute and the PROTECT Act, displays a conspicuous shortcoming: sexual assaults committed by or against adult United States citizens while abroad have no legal recourse in domestic courts. It is incongruous that while children abroad have legal protections against sexual exploitation, those protections cease upon an individual’s 18th birthday, and they then find themselves in a legislative chasm. As we live in an era of increasing global interconnectivity, with more Americans traveling and working abroad than ever before, ensuring the safety and justice for every United States citizen is not just a legal necessity, but also a moral imperative. The proposed amendments to existing legislation seek to bridge this gap, ensuring that legal protections extend to all Americans and that those who commit these indefensible acts face justice.
Author Biography: David Brown is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. He received his B.S. in Economics from Florida State University.
Editor: Patrick Seroogy, J.D. candidate at The George Washington University Law School.