Congress Can Criminalize International Illicit Non-Commercial Sex

US v. Bollinger: Bollinger was a minister who moved to Haiti in 2004, along with his wife, to run a ministry. He enjoyed the services of local prostitutes and, eventually, began molesting young girls. In 2009 (while in bed with another woman), Bollinger got a call from his wife and confessed his infidelity. He returned to Virginia a week later to start counseling. As part of that counseling he admitted his sexual acts with young girls. The psychologist treating the couple contacted authorities. Bollinger was charged with engaging in illicit sexual acts with minor after traveling in foreign commerce. Bollinger entered a conditional guilty plea when the district court denied his motion to dismiss the indictment.

On appeal, the Fourth Circuit affirmed Bollinger's conviction, rejecting his argument that the statute exceeded the scope of Congressional authority. Recognizing that Bollinger's conduct was "non-commercial illicit conduct," the court examined whether it was encompassed by the Foreign Commerce Clause. It declined Bollinger's invitation to "wholly transport" the Supreme Court's jurisprudence involving the Interstate Commerce Clause, concluding (among other things) that the federalism concerns that were implicated in interstate regulation did not apply to foreign regulation. Thus, "the pivotal question in this case is how directly an activity must affect foreign commerce for it to be a proper subject of congressional regulation." The Foreign Commerce Clause, the court concluded, only required a "demonstrable effect" on such commerce, rather than a "substantial effect," as with interstate commerce. It was then "imminently rational to believe that prohibiting non-commercial sexual abuse of children by Americans abroad has  a demonstrable effect on sex tourism and the commercial sex industry." Thus, it fell within Congress's power.

The court also rejected Bollinger's challenge to his sentence of 25 years in prison, a variance downward from an advisory Guideline range (and statutory max) of 60 years.