House Legislation on Sextortion Introduced

Benjamin Wittes
Thursday, July 14, 2016, 10:32 AM

Yesterday, Reps. Katherine Clark (D-Mass.) and Susan Brooks (R-Ind.) introduced this bill, which they have dubbed the "Interstate Sextortion Prevention Act." The bill keeps the promise Rep.

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Yesterday, Reps. Katherine Clark (D-Mass.) and Susan Brooks (R-Ind.) introduced this bill, which they have dubbed the "Interstate Sextortion Prevention Act." The bill keeps the promise Rep. Clark made the day our Brookings sextortion studies came out to introduce legislation to combat the problem. Here's her press release on the bill, which is a thoughtful and serious piece of work that deserves careful consideration and provides a good template off of which legislators can work.

A few thoughts both on the bill itself and on the politics of it. Politics first.

First off, it's really good that the legislative action on this subject is, from the outset, bipartisan. There is absolutely zero reason why this issue needs to map onto any left-right divide. Indeed, expressions of concern about sextortion following the reports' release have crossed party identifications. So kudos to Reps. Clark and Brooks for teaming up on this one. It would be great if the subject could get similarly bipartisan treatment in the House Judiciary Committee.

Second and a little less ebulliently: No male original cosponsors? Seriously?

To be clear, this criticism is not directed at the women who introduced this bill. It's directed, rather, at the many male members who should have acted with similar alacrity and did not. There are a lot of male members of Congress—a whole heck of a lot; exactly one of their offices has shown an interest in this subject since our reports came out—interestingly, a GOP Senate office. So here's a memo to male members of the House and Senate: Don't duck this because it involves sexual violence and therefore belongs in a political basket of "women's issues." We identified 78 cases involving as many as 6,000 victims—maybe as many as 10,000 if you believe an FBI estimate that one case alone produced as many as 3,800 victims. Those victims are your constituents, and they are your constituents' kids. If male members leave to the ladies the task of thinking through how better to protect them, they should not be surprised if this issue becomes the next sexual violence scandal which erupts around the men in Congress, making them look foolishly flatfooted in response. Remember sexual assault in the military?

The bill itself is bit more elaborate than the model law Cody Poplin, Quinta Jurecic, Clara Spera and I wrote. And if I have a criticism of it generally, it's the lack of parsimony and efficiency. That said, it does follow our general model of criminalizing both the threats designed to coerce the production of pornography and the production of pornography by means of such threats. It thus consists of a number of distinct sections, each of which has a subsection covering the acts coerced and a subsection covering the threats used to coerce those acts. (Full disclosure: I gave Rep. Clark's staff comments on an early draft of this bill.)

The first section deals with anyone who "using the mail or any facility or means of interstate or foreign commerce, knowingly coerces any person to engage in a sexual act with another" by means of "fraud or threats to injure the person, property, or reputation of any person." This section, which effectively prohibits extorted rape, carries a penalty of any term of years or life in prison, following the sentencing model of the federal aggravated sexual abuse law.

The second section covers in similar fashion, anyone who "knowingly coerces any person to engage in sexual contact with another." The category of "sexual contact" in federal law is a more general category than "sexual act," covering lots of conduct that does not reach the level of a "sexual act." This provision carries a maximum sentence of ten years in prison.

Both of these provision carry a maximum sentence of five years for the threats themselves.

Note two features of these initial provisions. First, they don't require images, videos, or any other electronic transmissions of sexual content. They criminalize, rather, the conduct of forced sexual activity by means of threats, and they criminalize the threats. Second, and importantly, the language of both (which includes the words "with another") requires that a second person be involved in the sexual activity in question. These initial provisions would thus cover some of the most egregious sextortion cases we have reviewed—which have sometimes involved forced sexual activities with siblings, friends, or others—but they would not cover forced nudity or masturbation, which cumulatively account for the lion's share of sextortion cases.

For this reason, I suspect the workhorse provision of this bill, were it to become law, would be the the next one, which covers anyone who, in similar fashion, "knowingly coerces another person to produce a sexually explicit visual depiction of any person"—the term "any person" here covering not merely any other person, as in the two previous provisions, but also the victim himself or herself. This provision carries a maxiumum 20 years in prison, with the threats themselves carrying again up to five years.

The bill then departs from the subject matter we covered in our report with a provision that appears to be aimed at sexual extortion in which the object is not the production of pornography but money. There are a lot of these cases, which we did not cover in our research, and it's an important parallel focus. (Many of the victims of this sort of activity, incidentally, are adult men and the amounts of money being extorted from these people is large.) So the bill would punish with up to seven years in prison anyone who "extorts any money, property, or other thing of value from another person through threats to publish any sexually explicit visual depiction of the addressee or of an immediate family member or intimate partner of the addressee"—with, again, a five year maximum sentence based on the threats alone.

The following section creates a sentencing enhancement for situations involving minor victims—an enhancement of five years for victims at least 12 years old and a doubled sentence if the victim is below the age of 12. Yes, there are sextortion cases with victims below the age of 12.

The next section is a bit tricky and I suspect should probably be removed. It provides for a sentence of any term of years or life in prison if death results from a sextortion crime and a 20 year maxiumum penalty if serious bodily injury results. There is a righteous moral impulse behind this provision, but I anticipate that it may cause real problems in some cases. The reason is that the chief way death results from sextortion is that sextortion victims commit suicide. Proving that a given suicide resulted from the sextortion, though it may sometimes be intuitively obvious, will sometimes be devilishly difficult to prove. How long after the sextortion stops can we impute a death or injury to the crime? What if the sextortion was one contributing factor among several in a suicide? Can a suicide, a self-inflicted act, even be said to "result" from a crime in a criminal law sense? I sympathize with this provision, but I suspect it will be more trouble in practice than it's worth.

The next section treats attempts and conspiracies as comparable to completed violations. Query whether that may be too harsh. The structure of the proposal, after all, treats the threat used to sextortion someone as a crime in and of themselves. In other words, if I threaten someone with release of material unless she produces more, and she does not, the relevant substantive provisions of the law would still have me guilty of a felony threat worth five years in prison. According to this additional provision, however, I am also guilty of an attempt punishable by—depending on which substantive provision we're talking about—up to life in prison. That seems internally contradictory to me.

The final enhancement doubles the maximum sentence for those with prior sex offenses.

The bill also contains a civil liability provision, allowing a victim to "bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States."

All in all, this is a very credible and thoughtful first legislative effort on this problem. Reps. Clark and Brooks and their staffs have clearly spent a good deal of time imagining how to address the range of activity we group under the word "sextortion" and they have given some serious thought to how severely to punish different forms of it. There are a great many decisions in this bill which reasonable legislators might approach differently, and it will be interesting to see the range of opinion, if we ever get congressional hearings on the subject of sextortion, about the best way to approach the problem. I remain keen also to see how the Justice Department responds to Sen. Barbara Boxer's letter seeking data on the subject and what the department may have to say on the adequacy of its own existing prosecutorial and sentencing tools, particularly with respect to adult victims.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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