The blueprint for conducting an investigation can typically be derived from the Statute which criminalizes the behavior. Statutes can be broken down into what are known as the “elements” of the crime. The elements are the questions which must be answered to prove whether or not a person is guilty of a specific criminal offense. Unless the statute states that intent or a particular mindset must be present when the perpetrator committed the offense, mens rea, that is the criminal mindset or intent to commit the crime, is implied by their actions. The elements ask the investigation to prove the Defendant did take the action listed in each element. In the event the investigation cannot prove the Defendant did take the action, either evidence shows they did not, or there is no conclusive way to prove they did take the action, then the Defendant cannot have been said to have committed the crime. Many crimes require the investigation to prove the Defendant did multiple things, while others use “or” to state any of the actions would amount to a criminal act.
As an example, 18 U.S. Code § 2242, criminalizes Sexual abuse, and the statute reads:
Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly—
(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or
(2) engages in a sexual act with another person if that other person is—
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;
or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.
(https://www.law.cornell.edu/uscode/text/18/2242)
The first paragraph of the statute, deals with the Federal Government’s ability to exert Jurisdiction over individuals who commit the offense of Sexual Abuse. The Federal Government cannot charge a person with Sexual Abuse, if they violate the elements of this crime, unless it was done within in the Special Maritime and Territorial Jurisdiction of the United States (Anywhere in the Ocean, Aboard Naval Vessels and any Ships, on Military Posts, and in Washington, D.C.). (1) and (2) are the acts a person must commit to be have violated this statute. Notice the “or” in each part.
To prove a violation of 18 USC 2242(2), an investigation must determine that a Suspect engaged in a sexual act with another part who was either incapable of understanding what was occurring, meaning they suffered from some mental impairment such as a mental health condition or were under the influence of anesthesia or other drugs; OR, that the victim was physically incapable of declining participation, which means they were unconscious or unable to physically or verbally resist/decline consent. These elements can be met through physical evidence, such as finding the Suspects seamen on a victim, and collecting medical records which show the victim has been in a coma for the last three years.
Your assignment in this discussion post, is to look at 18 USC § 2251, Child Exploitation, Paragraph (a) (https://www.law.cornell.edu/uscode/text/18/2251) and answer the questions at the end. 18 USC 2251(a) reads:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
Answer the following questions:
1) What in paragraph (a) determines the Federal Government can prosecute individuals who violate this statute? (IE – What is condition must be met, what is their Jurisdiction) Hint: The statute provides a few options.
2) What action, in your own words, does this statute criminalize?
3) Break down the elements of this paragraph. What do you need to be able to prove in order to say someone violated paragraph (a)?
4) With the elements you provided, what evidence are you looking for? What devices do you need to collect, and what are you looking for on those devices?
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