U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Missionary Worker Child Rape Conviction Upheld

For former missionary worker Matthew Durham, his appeal of a conviction on multiple counts of sexual abuse and rape of orphan children while working in Kenya was rejected in a detailed, 100 plus page opinion of the Tenth Circuit Court of Appeals.

Durham's challenge however did present a novel argument, challenging the foreign commerce clause's reach. Because his conduct occurred outside of the United States, the panel of Tenth Circuit justices split on whether using the foreign commerce clause to punish noncommercial illicit sexual activity was constitutional.

Dissenting Despite Despicable Deeds

While the majority opinion stressed that Congress has, for over 100 years, made efforts to fight sex trafficking, and that the foreign commerce clause "doesn't require the distinction between economic and noneconomic activity."

However, dissenting, Judge Harris Hartz opined that despite "horrific" conduct, that because:

"there is no evidence in this case of any commercial sexual activity, I fail to see how conduct like that of defendant has any impact on commercial sexual activity, and no one has presented to this court any evidence of such a connection ... In my view, the Foreign Commerce Clause does not authorize Congress to prohibit noncommercial sexual assaults, no matter how heinous, committed by Americans abroad who formed the intent to commit the acts after arriving abroad."

Hartz explained that doing so would be a slippery slope and could open up nearly any conduct abroad to being criminalized at home.

Durham's attorney seemed to expect this result, and, in a statement, indicated that the matter will be appealed to SCOTUS.

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