Sex Trafficking:
Proposals in the 114th Congress
to Amend Federal Criminal Law
Charles Doyle
Senior Specialist in American Public Law
April 29, 2015
Congressional Research Service
7-5700
www.crs.gov
R44007
Sex Trafficking: Proposals in the 114th Congress to Amend Federal Criminal Law
Summary
Existing federal law outlaws sex trafficking and provides a variety of mechanisms to prevent it
and to assist its victims. Members have offered a number of proposals during the 114th Congress
to bolster those efforts. Several clarify, expand, or supplement existing federal criminal law.
For instance, Senator Cornyn’s S. 178, which passed the Senate, and Representative Poe’s H.R.
181, which passed the House, would confirm that federal commercial sex trafficking prohibitions
apply to the customers of such enterprises. The bills would also constrict the defense of those
who engage in illicit sexual activities with children. Both bills would afford state and federal law
enforcement officials greater access to court-supervised electronic surveillance in sex trafficking
cases. Both would also expand victims’ statutory rights and remove stringent limits on appellate
enforcement of those rights.
S. 178, along with Senator Kirk’s S. 572 and Representative Wagner’s H.R. 285, would bring
culpable advertisers within the reach of the federal law which proscribes commercial sex
trafficking.
With Senator Feinstein’s S. 140, Representative Poe’s H.R. 296, and Representative Granger’s
H.R. 1201, S. 178 would lengthen the permissible term of supervised release for those convicted
of plotting to engage in commercial sex trafficking.
S. 178 and Senator Burr’s S. 409 would require Department of Defense (DOD) officials to
provide the Attorney General with information relating to military sex offenders required to
register under the federal Sex Offender Registration and Notification Act (SORNA).
Representative Speier’s H.R. 956 would establish a separate DOD sex offender registry.
Representative Carolyn B. Maloney’s H.R. 1311 would increase the penalties for tax evasion by
sex traffickers and call for the establishment of a dedicated office within the Internal Revenue
Service to investigate and prosecute tax-avoiding sex traffickers.
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Sex Trafficking: Proposals in the 114th Congress to Amend Federal Criminal Law
Contents
Introduction ...................................................................................................................................... 1
Substantive Offenses ........................................................................................................................ 2
Commercial Sex Trafficking ..................................................................................................... 2
Liability of Patrons .............................................................................................................. 2
Age: Prosecutors’ Burden .................................................................................................... 3
Advertisers .......................................................................................................................... 4
Conspirators’ Supervised Release ....................................................................................... 6
Statute of Limitations .......................................................................................................... 6
Mann Act ................................................................................................................................... 6
Tax Enforcement........................................................................................................................ 7
Tax Offenses ........................................................................................................................ 8
Enforcement Office ............................................................................................................. 9
Victims ............................................................................................................................................. 9
Crime Victims’ Rights ............................................................................................................... 9
Special Assessments ................................................................................................................ 11
Forfeiture ....................................................................................................................................... 12
Bail ................................................................................................................................................. 13
Wiretapping Authority ................................................................................................................... 14
Sex Offender Registration ............................................................................................................. 14
Contacts
Author Contact Information........................................................................................................... 17
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Sex Trafficking: Proposals in the 114th Congress to Amend Federal Criminal Law
Introduction
The 114th Congress opened with the introduction of a number of proposals that address human
trafficking, particularly sex trafficking.1 Among them were proposals to amend existing federal
criminal law, which would expand the coverage of federal sex trafficking laws; amend bail
provisions; raise the limits on supervised release; authorize more extensive wiretapping; and
adjust the application of federal forfeiture and restitution laws.2 The legislation includes the
following:
• Justice for Victims of Trafficking Act (H.R. 181) (Representative Poe) (House
passed);3
• Justice for Victims of Trafficking Act (S. 178) (Senator Cornyn) (Senate passed);4
• Justice for Victims of Trafficking Act (H.R. 296) (Representative Poe);
• Stop Advertising Victims of Exploitation Act (SAVE Act) (H.R. 285)
(Representative Wagner) (House passed);5
• Stop Advertising Victims of Exploitation Act (SAVE Act) (S. 572) (Senator
Kirk);
• Combat Human Trafficking Act (H.R. 1201) (Representative Granger);
• Combat Human Trafficking Act (S. 140) (Senator Feinstein);
• Human Trafficking Fraud Enforcement Act (H.R. 1311) (Representative Carolyn
B. Maloney);
• Military Sex Offender Reporting Act (S. 409) (Senator Burr); and
• Military Track Register and Alert Communities Act (Military TRAC Act) (H.R.
956) (Representative Speier).
1 Human trafficking is the coercive or fraudulent exploitation of another in order to secure her labor or services; sexual
trafficking is when the victim’s sexual services are exploited, BLACK’S LAW DICTIONARY, 1726 (10th ed. 2014)(“The
illegal recruitment, transportation, harboring, or receipt of a person, esp. one from another country, with the intent to
hold the person captive or exploit the person for labor, services or body parts”); see also 22 U.S.C. 7102(9)(b)(“The
term ‘severe forms of trafficking in persons’ means - (A) sex trafficking in which a commercial sex act is induced by
force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the
recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery”).
2 Other proposals, which focus to a large extent on grant programs for victims’ benefits and services, are beyond the
scope of this report; see, generally, CRS Report R43917, Domestic Human Trafficking Legislation in the 114th
Congress, by Kristin Finklea, Adrienne L. Fernandes-Alcantara, and Alison Siskin. For background on federal sex
trafficking laws, supervised release, bail, electronic surveillance, forfeiture, and restitution, see CRS Report R43597,
Sex Trafficking: An Overview of Federal Criminal Law; CRS Report RL31653, Supervised Release (Parole): An
Overview of Federal Law; CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act;
CRS Report R40221, Bail: An Overview of Federal Criminal Law; CRS Report 97-139, Crime and Forfeiture; and
CRS Report RL34138, Restitution in Federal Criminal Cases, each by Charles Doyle.
3 161 Cong. Rec. H600-H602 (daily ed. January 27, 2015); see also H.Rept. 114-7 (2015).
4 161 Cong. Rec. S2338 (daily ed. April 22, 2015).
5 161 Cong. Rec. H596 (daily ed. January 27, 2015); see also H.Rept. 114-8 (2015).
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Sex Trafficking: Proposals in the 114th Congress to Amend Federal Criminal Law
Substantive Offenses
The legislation would amend federal substantive law in three areas: commercial sex trafficking
(18 U.S.C. 1591); the Mann Act, which outlaws transportation and travel for unlawful sexual
purposes; and federal tax crimes.6
Commercial Sex Trafficking
The proposals would amend Section 1591 to (1) confirm the coverage of the customers of a
commercial sex trafficking enterprise; (2) outlaw advertising of a commercial sex trafficking
enterprise; (3) clarify the government’s burden of proof with regard to the age of the victim; and
(4) enlarge the permissible term of supervised release for commercial sex trafficking conspirators.
Liability of Patrons
Section 1591 outlaws commercial sex trafficking. More precisely, it outlaws
• knowingly
• recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining
another individual
• knowing or with reckless disregard of the fact that
• the individual will be used to engage commercial sexual activity
• either as a child or virtue of the use of fraud or coercion
• when the activity occurs in or affects interstate or foreign commerce, or occurs
within the special maritime or territorial jurisdiction of the United States.7
It outlaws separately profiting from such a venture.8
Offenders face the prospect of life imprisonment with a mandatory minimum term of not less
than 15 years (not less than 10 years if the victim is between the ages of 14 and 18).9 The same
penalties apply to anyone who attempts to violate the provisions of Section 1591.10
6 Some of the analysis here corresponds to a discussion of similar proposals in CRS Report R44006, Mandatory
Minimum Sentencing Legislation in the 114th Congress, by Charles Doyle.
7 18 U.S.C. 1591(a): “Whoever knowingly - (1) in or affecting interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or
maintains by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a
venture which has engaged in an act described in violation of paragraph (1),
“knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in
subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex
act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall
be punished as provided in subsection (b).”
8 18 U.S.C. 1591(a)(2)(quoted above).
9 18 U.S.C. 1591(b).
10 18 U.S.C. 1594(a).
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There have been suggestions to expand Section 1591 to cover advertisers and to more explicitly
cover the customers of a commercial sex trafficking scheme. At first glance, Section 1591 does
not appear to cover the customers of a sex trafficking enterprise. Moreover, in the absence of a
specific provision, mere customers ordinarily are not considered either co-conspirators or
accessories before the fact in a prostitution ring.11 Nevertheless, the U.S. Court of Appeals for the
Eighth Circuit found that the language of Section 1591(a) applied to the case of two customers
caught in a law enforcement “sting” who attempted to purchase the services of what they believed
were child prostitutes.12 “The ordinary and natural meaning of ‘obtains’ and the other terms
Congress selected in drafting §1591 are broad enough to encompass the actions of both suppliers
and purchasers of commercial sex acts,” the court declared.13
S. 178 (Senator Cornyn), H.R. 181 (Representative Poe), and a number of other bills would
explicitly confirm this construction by amending Section 1591(a) to read in part “Whoever
knowingly ... recruits, entices, harbors, transports, provides, obtains, maintains, or patronizes, or
solicits by any means any person.... ” (language of the proposed amendment in italics).14
Age: Prosecutors’ Burden
The same bills often amend the “knowledge of age” element in Section 1591(c) to reflect its
clarifying amendment with respect to the customers of a commercial sex trafficking venture. The
law now absolves the government of the obligation to prove that the defendant knew the victim
was a child, if it can show that the defendant had an opportunity to “observe” the victim.15 The
proposal would make it clear that the government would be equally absolved regardless of
whether the defendant were a consumer or purveyor of a child’s sexual commercial services, as
long as it establishes that the defendant had an opportunity to observe the child: “In a prosecution
under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person
so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or
solicited the Government need not prove that the defendant knew, or recklessly disregarded the
fact, that the person had not attained the age of 18 years,” 18 U.S.C. 1591(c) (language of the
proposed amendment in italics).16
11 See e.g., United States v. Southard, 700 F.2d 1, 20 (1st Cir. 1983)(“[O]ne having intercourse with a prostitute is not
liable for aiding and abetting prostitution”); see, generally, CRS Report R43769, Aiding, Abetting, and the Like: An
Overview of 18 U.S.C. 2, by Charles Doyle.
12 United States v. Jungers, 702 F.3d 1066 (8th Cir. 2013).
13 Id. at 1071.
14 S. 178 (Sen. Cornyn), §108(a)(1), (2), proposed 18 U.S.C. 1591(a); H.R. 181, §6(1), (2), proposed 18 U.S.C.
1591(a); H.R. 296 (Rep. Poe), §9(a)(1), (2), proposed 18 U.S.C. 1591(a); H.R. 1201 (Rep. Granger), §2(a)(1), (2),
proposed 18 U.S.C. 1591(a); S. 140 (Sen. Feinstein), §2(a)(1), (2), proposed 18 U.S.C. 1591(a); see also H.Rept. 113-
450, at 15-6 (2014)(discussing a similar proposal in the 113th Congress). Here and hereinafter references to H.R. 181
and later references to H.R. 285 allude to those measures as passed by the House.
15 United States v. Robinson, 702 F.3d 22, 26 (2d Cir. 2012)(“[T]his provision [Section 1591(c)], when applicable,
imposes strict liability with regard to the defendant’s awareness of the victim’s age, thus relieving the government’s
usual burden to prove knowledge or reckless disregard of the victim’s underage status under §1591(a)”).
16 S. 178, §108(a)(3), proposed 18 U.S.C. 1591(c); H.R. 181, §6(3), proposed 18 U.S.C. 1591(c); H.R. 296, §9(a)(3),
proposed 18 U.S.C. 1591(c); S. 140, §2(a)(3), proposed 18 U.S.C. 1591(c); the House report with respect to
comparable language in an earlier proposal observed that “[t]his clarification is intended to direct law enforcement’s
investigative and prosecutorial focus on the purchasers of these illegal services, who create the market for the
traffickers,” H.Rept. 113-450, at 16 (2014).
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Advertisers
Proposals to explicitly cover advertisers might also be seen as a matter of simply sharpening
existing law. Anyone who aids and abets the commission of a federal crime by another merits the
same punishment as the individual who actually commits the crime.17 Liability for aiding and
abetting requires that a defendant embrace the crime of another and consciously do something to
contribute to its success.18
One of Section 1591’s distinctive features is that its action elements—recruiting, harboring,
transporting, providing, obtaining—are activities that might be associated with aiding and
abetting the operation of a prostitution enterprise. Section 1591, read literally, does not outlaw
operating a prostitution business; it outlaws the steps leading up to or associated with operating a
prostitution business—recruiting, harboring, transporting, etc. Strictly construed, advertising in
aid of recruitment, harboring, transporting, or one of the other action elements might qualify as
aiding and abetting a violation of Section 1591; advertising the availability of a prostitute might
not.
Yet one court suggests that Section 1591 does outlaw operating a prostitution business, at least for
purposes of aiding and abetting liability, and that by implication advertising might constitute
aiding and abetting a violation of the section:
Pringler first argues that the evidence is insufficient to support his conviction for aiding and
abetting the sex trafficking of a minor [in violation of Section 1591].... We disagree. The
record is not devoid of evidence to support the jury’s verdict and show Pringler’s integral
role in the criminal venture. Pringler took the money that Norman and B.L. earned from their
prostitution and used some of it to pay for hotel rooms where the women met their patrons.
Pringler bought the laptop Norman and B.L. used to advertise their services. He drove
Norman and B.L. to “outcall” appointments, and he took photographs of Norman, which he
had planned for use in advertisements.19
Some bills, S. 178 (Senator Cornyn), H.R. 285 (Representative Wagner), and S. 572 (Senator
Kirk), for example, would amend Section 1591(a)(1) to outlaw knowingly advertising a person,
knowing the victim would be used for prostitution.20 Proponents might suggest that “advertising”
would seem to fit snugly within the litany of Section 1591’s action elements.
Section 1591 now requires the government to prove either that the defendant knew of the victim’s
underage or coerced status or recklessly disregarded it. The proposal would expose the trafficker
and the profiteer to liability based on different levels of knowledge. Advertising traffickers would
17 18 U.S.C. 2(a)(“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal”).
18 Rosemond v. United States, 134 S.Ct. 1240, 1245 (2014), quoting, Central Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 511 U.S. 164, 181 (1994)(“[T]hose who provide knowing aid to persons committing federal
crimes, with the intent to facilitate the crime, are themselves committing a crime”); see also, United States v. Pringler,
765 F.3d 445, 449 (5th Cir. 2014)(“To hold a defendant liable for aiding and abetting an offense, the government must
show that elements of the substantive offense occurred and that the defendant associated with the criminal activity,
participated in it, and acted to help it succeed”).
19 Id. at 449-51.
20 E.g., S. 178, §118(b), proposed 18 U.S.C. 1591(a)(1); H.R. 285, §2(a), proposed 18 U.S.C. 1591(a)(1); S. 572, §2(a),
proposed 18 U.S.C. 1591(a)(1).
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be liable if they knew of or recklessly disregarded the victim’s status. Advertising profiteers
would be liable only if they knew of the victim’s status.21
Knowledge is obviously a more demanding standard than reckless disregard, but the dividing line
between the two is not always easily discerned, in part because of the doctrine of willful
blindness. The doctrine describes the circumstances under which a jury may be instructed by the
court that it may infer knowledge on the part of a defendant. Worded variously, the doctrine
applies where evidence indicates that the defendant sought to avoid the guilty knowledge.22
Since the element is worded in the alternative—knowing or in reckless disregard of the fact—the
courts have rarely distinguished the two. One interpretation comes from comparable wording in
an immigration offense which outlaws transporting an alien knowing or acting in reckless
disregard of the fact that the alien is in this country illegally: “To act with reckless disregard of
the fact means to be aware of but consciously and carelessly ignore facts and circumstances
clearly indicating that the person transported was an alien who had entered or remained in the
United States illegally.”23 The courts refer to a similar unreasonable indifference standard when
speaking of the veracity required for the issuance of a warrant.24
21 Should the proposal be enacted, 18 U.S.C. 1591(a) would read in pertinent part (proposed language in italics):
“Whoever knowingly - (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial
jurisdiction of the United States, recruits ... advertises ...; or (2) benefits, financially or by receiving anything of value,
from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where, in an offense under paragraph (2), the act constituting the violation of paragraph (1) is
advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in
subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex
act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall
be punished as provided in subsection (b).”
22 Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2070 (2011)(“While the Courts of Appeals articulate the
doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant
must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate
action to avoid learning of that fact”); United States v. Adorno-Molina, 774 F.3d 116, 124 (1st Cir. 2014)(“A willful
blindness instruction is appropriate if (1) a defendant claims a lack of knowledge, (2) the facts suggest a conscious
course of deliberate ignorance, and (3) the instruction, taken as a whole, cannot be misunderstood as mandating an
inference of knowledge”); United States v. Salinas, 763 F.3d 869, 878 (7th Cir. 2014)(“A defendant may not escape
criminal liability simply by pleading ignorance if he knows or strongly suspects he is involved in criminal dealings but
deliberately avoids learning more exact information about the nature and extent of those dealings”); United States v.
Mathauda, 740 F.3d 565, 568-69 (11th Cir. 2014), quoting, United States v. Bisong, 384 F.3d 400 (D.C. Cir. 2011),
(“We agree with the United States Court of Appeals for the District of Columbia Circuit that there are two predominant
formulations of willful blindness: ‘when a defendant purposely contrived to avoid learning of the facts, or the defendant
was aware of a high probability of the fact in dispute and consciously avoided confirming that fact’”).
23 United States v. Anyanwu, 775 F.3d 1322, 1325 (11th Cir. 2015).
24 United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013)(“An allegation is made with reckless disregard for the truth if
the affiant in fact entertained serious doubts as to the truth of the allegations or where the circumstances evinced
obvious reasons to doubt the veracity of the allegations in the application”); Betker v. Gomez, 692 F.3d 854, 860 (7th
Cir. 2012)(“We have said that a reckless disregard for the truth can be shown by demonstrating that the officer
entertained serious doubts as to the truth of the statements, had obvious reasons to doubt their accuracy, or failed to
disclose facts that he or she knew would negate probable cause”); United States v. Brown, 631 F.3d 638, 645 (3d Cir.
2011)(“This definition provides two distinct ways in which conduct can be found reckless: either the affiant actually
entertained serious doubts; or obvious reasons existed for him to do so, such that the finder of act can infer a
subjectively reckless state of mind”).
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Conspirators’ Supervised Release
Defendants sentenced to prison for federal crimes are also sentenced to a term of supervised
release.25 Supervised release is comparable to parole. It requires a defendant upon his release
from prison to honor certain conditions—such as a curfew, employment requirements and
restrictions, limits on computer use, drug testing, travel restrictions, or reporting requirements—
all under the watchful eye of a probation officer.26 As a general rule, the court may impose a term
of supervised release of no more than five years.27 For several crimes involving sexual
misconduct—commercial sex trafficking, for example—the term must be at least five years and
may run the lifetime of the defendant.28
S. 178, among other bills, would add conspiracy to engage in commercial sex trafficking to the
list of offenses punishable by this not-less-than-five-years-nor-more-than-life term of supervised
release.29
Statute of Limitations
Section 1595 establishes a cause of action for victims of human trafficking.30 The cause of action
is subject to a 10-year statute of limitations.31 S. 178 would extend the statute of limitations in
cases in which the victim is a child. Under those circumstances, the statute of limitations is 10
years after the child reaches the age of 18 years of age.32
Mann Act
The Mann Act criminalizes, among other things, (1) interstate or foreign transportation of a child
for purposes of prostitution or other unlawful sexual purposes; (2) interstate or foreign travel for
purposes of engaging in “illicit sexual activity” with a child; and (3) overseas travel of U.S.
nationals followed by illicit sexual activities with a child.33
Defendants enjoy an affirmative defense in “illicit sexual activity” cases if they can establish by a
preponderance of the evidence that they reasonably believed that the victim was over 18 years of
age.34
S. 178, H.R. 181, and other bills would limit the defense to cases where the defendant establishes
the reasonableness of his belief by clear and convincing evidence.35 The difference between
25 18 U.S.C. 3583(a).
26 18 U.S.C. 3583(d), 3553(a); U.S.S.G. §5D1.3.
27 18 U.S.C. 3583(b).
28 18 U.S.C. 3583(k).
29 S. 178, §114(d), proposed 18 U.S.C. 3583(k); S. 140, §2(c), proposed 18 U.S.C. 3583(k); H.R. 296, §14(d), proposed
18 U.S.C. 3583(k); H.R. 1201, §2(c), proposed 18 U.S.C. 3583(k).
30 18 U.S.C. 1595(a).
31 18 U.S.C. 1595(c).
32 S. 178, §120, proposed 18 U.S.C. 1595(c)(2).
33 18 U.S.C. 2423(a), (b), and (c), respectively; 18 U.S.C. 2423(f).
34 18 U.S.C. 2423(g).
35 S. 178, §111(b), proposed 18 U.S.C. 2423(g); H.R. 181, §8, proposed 18 U.S.C. 2423(g); H.R. 296, §11(b), proposed
(continued...)
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preponderance of the evidence and clear and convincing is the difference between more likely
than not36 and highly probable.37 Many of these same proposals would amend the “illicit sexual
activity” definition to include child pornography cases,38 with the result that interstate or foreign
travel associated with the production of child pornography would be clear violations of the Mann
Act’s Section 2423(b)(interstate or foreign travel for purposes of such production), Section
2423(c)(foreign travel followed by such production), and Section 2423(d)(commercially
facilitating such travel), each of which is punishable by imprisonment for not more than 30
years.39
S. 178 would add a modification for the prosecution of Mann Act offenses that involve interstate
transportation of an individual for prostitution or other unlawful purposes. The proposal instructs
the Attorney General to honor the request of a state attorney general to cross-designate a state
prosecutor to handle the case or to explain in detail why the request has not been honored.40 The
designated state prosecutor—or prosecutors, should the Attorney General receive requests from
both the state from which, and the state into which, the victim was transported—would
presumably operate under the direction of the United States Attorney.41
Tax Enforcement
The Internal Revenue Code makes taxable income from any source lawful or unlawful.42 H.R.
1311 (Representative Carolyn B. Maloney) would increase the penalties associated with various
tax offenses committed by sex traffickers, and would direct the creation of an office of tax law
enforcement to invest tax offenses committed by sex traffickers. The enhanced enforcement
would be focused on tax offenses relating to crimes proscribed in
• 18 U.S.C. 1351 (foreign labor contracting fraud);
• 18 U.S.C. 1589 (forced labor);
• 18 U.S.C. 1590 (peonage, slavery, involuntary servitude, or forced labor
trafficking);
• 18 U.S.C. 1591(a) (commercial sex trafficking);
• 18 U.S.C. 1952 (Travel Act);
(...continued)
18 U.S.C. 2423(g); see also H.Rept. 113-450, at 16 (2014).
36 Syblis v. Attorney General of the U.S., 763 F.3d 348 (3d Cir. 2014), quoting, Concrete Pipe & Prods of Cal., Inc. v.
Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993), and Schaffer ex rel. Schaffer v. Weast, 546 U.S.
49, 56 (2005)(“A burden of proof by a preponderance of the evidence ‘requires the trier of fact to believe that the
existence of a factor is more probable than its nonexistence’ ... Accordingly, the burden establishes ‘which party loses
if the evidence is closely balanced”); see also Siddiqui v. Holder, 670 F.3d 736, 742 (7th Cir. 2012); United States v.
Manigan, 508 F.3d 621, 631 (4th 2010).
37 Bishop v. Warden, 726 F.3d 1243, 1258 (11th Cir. 2013); United States v. Springer, 715 F.3d 535, 538 (4th Cir. 2013);
Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 159 (3d Cir. 2013).
38 S. 178, §111(a)(3), proposed 18 U.S.C. 2423(f)(3); H.R. 296, §11(a), proposed 18 U.S.C. 2423(f)(3).
39 18 U.S.C. 2423(b), (c), (d).
40 S. 178, §303, proposed 18 U.S.C.2421(b).
41 28 U.S.C. 516, 547; see also U.S. Const. Art. II, §3; Morrison v. Olson, 487 U.S. 654 (1988).
42 I.R.C. §§61, 63; 26 U.S.C. 61, 63.
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• 18 U.S.C. 2421 (transporting an individual for unlawful sexual purposes);
• 18 U.S.C. 2422 (coercing or enticing travel for unlawful sexual purposes);
• 18 U.S.C. 2423(a) (transporting a child for unlawful sexual purposes);
• 18 U.S.C. 2423(d) (trafficking in travel to engage in unlawful sex with a child);
• 18 U.S.C. 2423(e) (attempting or conspiring to transport a child or to travel and
engage in unlawful sex with a child);
• 8 U.S.C. 1328 (importing aliens for immoral purposes); and
• state or territorial laws prohibiting promotion of prostitution or commercial sex
acts.43
Tax Offenses
Among other offenses, the Internal Revenue Code outlaws (1) attempting to evade or defeat a
federal tax;44 (2) willfully failing to file a return;45 and (3) making false statements in a tax
matter.46 H.R. 1311 would increase the maximum terms of imprisonment and the maximum fines
for each of these offenses when one or more of the designated sex trafficking offenses generated
the income involved:47
Imprisonment:
Imprisonment:
Tax Offense
Current Law
H.R. 1311
Fine: Current Law
Fine: H.R. 1311
Attempt/Conspiracy
5 years (max.)
10 years (max.)
$250,000 (max.) /
$500,000 (max.) /
(26 U.S.C. 7201)
$500,000 (max.)
$1 million (max.)
(organizations)
(organizations)
Failure to file
1 year (max.)
10 years (max.)
$25,000 (max.) /
$500,000 (max.) /
(26 U.S.C. 7203)
$100,000 (max.)
$1 million (max.)
(organizations)
(organizations)
False statement
3 years (max.)
5 years (max.)
$250,000 (max.) /
$500,000 (max.) /
(26 U.S.C. 7206)
$500,000 (max.)
$1 million (max.)
(organizations)
(organizations)
Source: Congressional Research Service based on H.R. 1311 (114th Cong.), and 26 U.S.C. 7201, 7203, and 7206.
H.R. 1311 would also expand liability for those who provide their employees with false W2
forms and other required forms. Existing law limits employer liability for furnishing employees
with a false statement to the misdemeanor provisions of Section 7204 and Section 6674.48 H.R.
43 H.R. 1311, §2(b).
44 I.R.C. §7201; 26 U.S.C. 7201.
45 I.R.C. §7203; 26 U.S.C. 7203.
46 I.R.C. §7206; 26 U.S.C. 7206.
47 H.R. 1311, §3(a), (b), (c), proposed I.R.C. §§7201, 7203, 7206; proposed 26 U.S.C. 7201, 7203, and 7206,
respectively. H.R. 1311 would also increase from not more than $25,000 to not more than $50,000 the fines for
individuals, other than sex traffickers, who fail to file in violation of Section 7203, H.R. 1311, Section 3(b)(1). The
1984 Sentencing Reform Act silently amended the maximum fines for violations of Section 7201 and Section 7206, 18
U.S.C. 3551, 3571. Amendments to Section 7203 enacted after 1984 reestablished the fine levels noted in that section.
48 I.R.C. §7204; 26 U.S.C. 7204.
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1311 would add Section 7201 and Section 7203,49 which would increase potential liability for
providing false statements to employees to imprisonment for not more than 10 years, where the
misconduct involved income generated by one or more of the sex trafficking offenses.50
Enforcement Office
H.R. 1311 would direct the Secretary of the Treasury to create an Internal Revenue Service office
specifically for the investigation and prosecution of designated sex trafficking-related tax
offenses.51 The bill anticipates that the office would work cooperatively with the Justice
Department’s Child Exploitation and Obscenity Section and the Federal Bureau of Investigation’s
Innocence Lost National Initiative.52 The bill would authorize an appropriation of $4 million for
FY2016 supplemented with an appropriation equal to the amounts collected as a consequence of
its activities.53 It would also make sex trafficking victims eligible for the whistleblower/informant
rewards, which can top out at 30% of the amounts collected as a consequence of their
disclosures.54
Victims
Crime Victims’ Rights
Section 3771 provides the victims of federal crimes and the victims of crime under the District of
Columbia Code with certain rights, including the right to confer with the prosecutor and to be
heard at public proceedings concerning pleas and sentencing in the case.55 The rights are
reinforced by a right to notice from federal officials of available services.56 Victims may appeal a
49 H.R. 1311, §3(d), proposed I.R.C. §7204; proposed 26 U.S.C. 7204.
50 See H.R. 1311, §3(a), (b), proposed I.R.C. §§7201, 7203; proposed 26 U.S.C. 7201 and 7203.
51 H.R. 1311, §2(a).
52 H.R. 1311, §2(c).
53 H.R. 1311, §2(f).
54 H.R. 1311, §2(e); I.R.C. §7623; 26 U.S.C. 7623.
55 The full litany of rights consists of “(1) The right to be reasonably protected from the accused. (2) The right to
reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or
of any release or escape of the accused. (3) The right not to be excluded from any such public court proceeding, unless
the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially
altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public
proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to
confer with the attorney for the Government in the case. (6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for
the victim’s dignity and privacy,” 18 U.S.C. 3771(a).
56 42 U.S.C. 10607(c)(“(1) A responsible official shall- (A) inform a victim of the place where the victim may receive
emergency medical and social services; (B) inform a victim of any restitution or other relief to which the victim may be
entitled under this or any other law and manner in which such relief may be obtained; (C) inform a victim of public and
private programs that are available to provide counseling, treatment, and other support to the victim; and (D) assist a
victim in contacting the persons who are responsible for providing the services and relief described in subparagraphs
(A), (B), and (C).
“(2) A responsible official shall arrange for a victim to receive reasonable protection from a suspected offender
and persons acting in concert with or at the behest of the suspected offender.
(continued...)
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failure to honor their rights by seeking a writ of mandamus, and the appellate court must decide
the matter within three days (72 hours), or in the case of a stay or continuance within five days.57
In other cases, mandamus is an extraordinary remedy awarded only on rare occasions and only if
at least three prerequisites can be satisfied. “First, the party seeking issuance of the writ must
have no other adequate means to attain the relief he desires.... Second, the petitioner must satisfy
the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if
the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must
be satisfied that the writ is appropriate under the circumstances.”58
The federal appellate courts, however, cannot agree on whether this stringent traditional
mandamus standard or the usual appellate standard (abuse of discretion or legal error) should
apply in Crime Victims’ Rights Act appeals.59
(...continued)
“(3) During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest
possible notice of - (A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim
and to the extent that it will not interfere with the investigation; (B) the arrest of a suspected offender; (C) the filing of
charges against a suspected offender; (D) the scheduling of each court proceeding that the witness is either required to
attend or, under section 10606(b)(4) of this title, is entitled to attend; (E) the release or detention status of an offender
or suspected offender; (F) the acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial;
and (G) the sentence imposed on an offender, including the date on which the offender will be eligible for parole.
“(4) During court proceedings, a responsible official shall ensure that a victim is provided a waiting area removed
from and out of the sight and hearing of the defendant and defense witnesses.
“(5) After trial, a responsible official shall provide a victim the earliest possible notice of - (A) the scheduling of a
parole hearing for the offender; (B) the escape, work release, furlough, or any other form of release from custody of the
offender; and (C) the death of the offender, if the offender dies while in custody.
“(6) At all times, a responsible official shall ensure that any property of a victim that is being held for evidentiary
purposes be maintained in good condition and returned to the victim as soon as it is no longer needed for evidentiary
purposes.
“(7) The Attorney General or the head of another department or agency that conducts an investigation of a sexual
assault shall pay, either directly or by reimbursement of payment by the victim, the cost of a physical examination of
the victim which an investigating officer determines was necessary or useful for evidentiary purposes. The Attorney
General shall provide for the payment of the cost of up to 2 anonymous and confidential tests of the victim for sexually
transmitted diseases, including HIV, gonorrhea, herpes, chlamydia, and syphilis, during the 12 months following sexual
assaults that pose a risk of transmission, and the cost of a counseling session by a medically trained professional on the
accuracy of such tests and the risk of transmission of sexually transmitted diseases to the victim as the result of the
assault. A victim may waive anonymity and confidentiality of any tests paid for under this section.
“(8) A responsible official shall provide the victim with general information regarding the corrections process,
including information about work release, furlough, probation, and eligibility for each”).
57 18 U.S.C. 3771(d)(3).
58 Cheney v. U.S. District Court, 542 U.S. 367, 380-81 (2004)(internal citations and quotation marks omitted); In re
Rolls Royce Corp., 775 F.3d 671, 675 (5th Cir. 2014); Linder v. Union Pacific Railroad Co., 762 F.3d 568, 572 (7th Cir.
2014); see also United States v. Index Newspapers LLC, 766 F.3d 1072, 1082 (9th Cir. 2014)(“This court considers the
following five factors in determining whether mandamus relief is appropriate: (1) whether the petition has no other
means to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable
on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s
order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court’s
order raises new and important problems or issues of first impression”).
59 In re Wellcare Health Plans, Inc., 754 F.3d 1234, (11th Cir. 2014)(“[T]he tradition mandamus standard of review
applies to petitions for writs of mandamus filed pursuant to the CVRA “), citing in accord, United States v. Monzel, 641
F.3d 528, 533 (D.C.Cir. 2011); In re Acker, 596 F.3d 370, 372 (6th Cir. 2010); In re Antrobus, 519 F.3d 1123, 1127-130
(10th Cir. 2008); In re Dean, 527 F.3d 391, 394 (5th Cir. 2008); contra, In re Stake Center Locating, Inc., 731 F.3d 949,
951 (9th Cir. 2013)(“In reviewing a CVRA mandamus petition, we ... must issue the writ whenever we find that the
district court’s order reflects an abuse of discretion or legal error”); In re Huff Asset Management Co., 409 F.3d 555,
(continued...)
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S. 178 and H.R. 181, among other bills, would resolve the dispute in favor of the less demanding
abuse of discretion or legal error standard used for most appeals.60 They would also allow the
parties to extend the three-day deadline, but not the five-day.61 Finally, they would create two new
additional rights—the right to timely notice of a plea bargain or deferred prosecution agreement
and the right to be informed of the rights under the Crime Victims’ Rights Act and the benefits
under the Victims’ Rights and Restitution Act.62
Special Assessments
Another proposal is designed to help fund victims’ assistance and compensation through the use
of special assessments and the creation of a Domestic Trafficking Victims’ Fund.63 Under existing
law, the courts impose a special assessment of $5 and $100 on individuals convicted of a federal
offense ($25 to $400 for organizations).64 Receipts are deposited in the Crime Victims Fund and
used for victims’ assistance and compensation.65
S. 178 would call for an additional special assessment of $5,000 to be imposed on those convicted
under
• 18 U.S.C. ch. 77 (peonage, slavery, and human trafficking);
• 18 U.S.C. ch. 109A (sexual abuse in U.S. special maritime and territorial
jurisdiction);
• 18 U.S.C. ch. 110 (child pornography);
• 18 U.S.C. ch. 177 (interstate or foreign transportation for unlawful sexual
purposes); or
• 8 U.S.C. 1324 (smuggling aliens other than immediate family members).66
The Fund would receive two types of transfers. The first would be a transfer from the general
fund of the Treasury in amounts equal to those collected from these assessments.67 These
(...continued)
563-64 (2d Cir. 2005)(abuse of discretion standard).
60 S. 178, §113(c), proposed 18 U.S.C. 3771(d)(3); H.R. 181, §10(b), proposed 18 U.S.C. 3771(d)(3); S. 140, §6(b),
proposed 18 U.S.C. 3771(d)(3); S. 140, §6(b), proposed 18 U.S.C. 3771(d)(3); H.R. 296, §13(c)(1), proposed 18 U.S.C.
3771(d)(3).
61 S. 178, §113(a)(2), proposed 18 U.S.C. 3771(d)(3); H.R. 181, §10(a)(2), proposed 18 U.S.C. 3771(d)(3); H.R. 296,
§13(a)(2), proposed 18 U.S.C. 3771(d)(3).
62 S. 178, §113(a)(1), proposed 18 U.S.C. 3771(a)(9), (10); H.R. 181, §10(a)(1), proposed 18 U.S.C. 3771(a)(9), (10);
H.R. 296, §13(a)(1), proposed 18 U.S.C. 3771(a)(9), (10)(“(9) The right to be informed in a timely manner of any plea
bargain or deferred prosecution agreement. (10) The right to be informed of the rights under this section and the
services described in section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. 10607(c) and
provided contact information for the Office of the Victims’ Rights Ombudsman of the Department of Justice”). H.R.
1201 and S. 140 would add only a new paragraph 3771(a)(9), S. 140, §6(a), proposed 18 U.S.C. 3771(a)(9); H.R. 1201,
§6(a), proposed 18 U.S.C. 3771(a)(9).
63 S. 178, §101(a), proposed 18 U.S.C. 3014(a), (c).
64 18 U.S.C. 3013.
65 42 U.S.C. 10601(b)(2), (d).
66 S. 178, §101(a), proposed 18 U.S.C. 3014(a).
67 S. 178, §101(a), proposed 18 U.S.C. 3014(d).
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transferred amounts would appropriate and make available to the Attorney General, in
coordination with the Secretary of Health and Human Services, through FY2019 for the services
and benefits (other than health care services and benefits) under
• 42 U.S.C. 14044c (grants for enhanced state and local anti-trafficking
enforcement);
• 42 U.S.C. 13002(b)(grants for child advocacy centers);
• 22 U.S.C. 7105(b)(2)(grants to state, tribes, and local governments to enhance
trafficking;
• victims’ services); and
• 22 U.S.C. 7105(f)(assistance for U.S. victims of severe forms of trafficking).68
The second transfer would be from appropriations under the Patient Protection and Affordable
Care Act, as amended, in amounts equal to those generated by the special assessments, but not
less than $5 million or more than $30 million per fiscal year.69 The amounts would also be
available to the Attorney General, in coordination with the Secretary of Health and Human
Services, for health care services under
• 42 U.S.C. 14044a (grants for trafficking victims’ assistance programs);
• 42 U.S.C. 14044b (residential treatment for victims of child trafficking);
• 42 U.S.C. 14044c (grants for enhanced state and local anti-trafficking
enforcement);
• 42 U.S.C. 13002(b)(grants for child advocacy centers);
• 22 U.S.C. 7105(b)(2)(grants to state, tribes, and local governments to enhance
trafficking;
• victims’ services); and
• 22 U.S.C. 7105(f)(assistance for U.S. victims of severe forms of trafficking).70
Forfeiture
Forfeiture is the confiscation of property based on its proximity to a criminal offense.71
Confiscation may be accomplished either as a consequence of the property owner’s conviction
(criminal forfeiture) or in a civil proceeding conducted against the property in rem (civil
forfeiture).72 In either case, the proceeds from most federal forfeitures are deposited either in the
Justice Department’s Asset Forfeiture Fund or the Treasury Department’s Forfeiture Fund, and are
available for law enforcement purposes.73
68 S. 178, §101(a), proposed 18 U.S.C. 3014(e).
69 S. 178, §101(a), proposed 18 U.S.C. 3014(h).
70 Id.
71 See, generally, CRS Report 97-139, Crime and Forfeiture, by Charles Doyle.
72 E.g., 18 U.S.C. 981, 982, 983.
73 28 U.S.C. 524(c) and 31 U.S.C. 9703, respectively.
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Forfeitures relating to financial crimes sometimes apply to property “involved in” the offense. For
example, property “involved in” a money laundering transaction is subject to confiscation. In the
case of human trafficking, property that constitutes the proceeds from, that was used, or that was
intended for use, to commit or facilitate, a trafficking offense is subject to criminal and civil
forfeiture.74 S. 178 and H.R. 296 would make property “involved in” a trafficking offense subject
to criminal and civil forfeiture as well.75
Defendants convicted of human trafficking offenses must be ordered to pay victim restitution.76
As a general rule, the Attorney General may transfer forfeited property to pay victim restitution.77
S. 178 and H.R. 296 would require such a transfer, without reducing or mitigating the defendant’s
restitution obligations.78
Subject to annual appropriations, the Attorney General may use the Justice Department Asset
Forfeiture Fund for informants’ fees in drug and money laundering cases.79 The Secretary of the
Treasury enjoys comparable authority with respect to the Treasury Fund, although apparently
without the need for annual appropriations.80 S. 178 and H.R. 296 would expand the authority to
include access to the Justice Department Fund for informants’ fees in human trafficking cases,81
and to the Treasury Department Fund for informants’ fees paid by Immigration and Customs
Enforcement in human trafficking cases.82
Bail
Existing federal law states that an individual charged with a federal offense should be released on
his own recognizance, unless the magistrate is convinced that certain conditions must be imposed
to insure individual or community safety or to insure the appearance of the accused at subsequent
judicial proceedings.83 The government may seek pretrial detention of an accused charged with a
crime of violence, a federal crime of terrorism, or with commercial sex trafficking.84 S. 178 and
H.R. 296 would amend the definition of “a crime of violence” for these purposes to include any
of the human trafficking offenses.85
74 18 U.S.C. 1594(d), (e).
75 S. 178, §105(a)(1), (2), proposed 18 U.S.C. 1594(d), (e); H.R. 296, §6(a)(1), (2), proposed 18 U.S.C. 1594(d), (e).
76 18 U.S.C. 1593(a).
77 18 U.S.C. 981(e)(6), 982(b)(1); 21 U.S.C. 853(i)(i).
78 S. 178, §105(a)(4), proposed 18 U.S.C. 1594(f); H.R. 296, §6(a)(4), proposed 18 U.S.C. 1594(f).
79 28 U.S.C. 524(c)(1).
80 31 U.S.C. 9703(a)(2)(B).
81 S. 178, §105(b), proposed 28 U.S.C. 524(c)(1); H.R. 296, §6(b), proposed 28 U.S.C. 524(c)(1).
82 S. 178, §105(c), proposed 31 U.S.C. 9705(a)(2)(B)(v); H.R. 296, §6(c), proposed 31 U.S.C. 9705(a)(2)(B)(v).
83 18 U.S.C. 3142(a), (b), (c).
84 18 U.S.C. 3142(e), (f).
85 S. 178, §112, proposed 18 U.S.C. 3156(a)(4)(C); H.R. 296, §12, proposed 18 U.S.C. 3156(a)(4)(C).
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Wiretapping Authority
In the investigation of certain serious federal and state crimes, the Electronic Communications
Privacy Act, sometimes referred to in part as Title III, authorizes federal and state law
enforcement officials to engage in court-supervised surreptitious interception of telephone, face-
to-face, or electronic communications.86 The list of these federal crimes includes commercial sex
trafficking (18 U.S.C. 1591), but not the other offenses outlawed in the slavery, peonage, and
forced labor chapter of the federal criminal code.87 The list of state crimes includes murder,
robbery, kidnaping, etc., but not prostitution or human trafficking.88
S. 178, H.R. 181, and others would permit federal court-ordered interceptions in conjunction with
investigations involving peonage (18 U.S.C. 1581 (peonage), 1584 (involuntary servitude), 1589
(forced labor), and 1592 (trafficking-related document misconduct)).89 They would also permit
state prosecutors to engage in state court-supervised interceptions in cases of human trafficking,
child pornography production, and child sexual exploitation; or in H.R. 181and H.R. 296 in cases
of human trafficking, child pornography, and child sexual abuse, as well as coercion and
enticement of children—to the extent that state law permits.90
Sex Offender Registration
The federal Sex Offender Registration and Notification Act (SORNA), as the name implies,
requires individuals convicted of a federal, state, tribal, foreign, or military sex offense to register
with, and continue to provide current information to, state or tribal authorities (jurisdictions) in
any location in which they live, work, or attend school.91 The reporting obligations apply to those
convicted of qualifying sex offenses either before or after the enactment of SORNA.92 SORNA
accomplishes its notification goal through the creation of a system which affords public online
access to state and tribal registration information.93 The system allows the public to determine
either where a particular sex offender lives, works, and attends school, or the names and location
86 18 U.S.C. 2510 et seq.
87 18 U.S.C. 2516(1).
88 18 U.S.C. 2516(2).
89 S. 178, §106(1)(B)(i), (ii), proposed 18 U.S.C. 2516(1); S. 140, §5(1), proposed 18 U.S.C. 2516(1); ); H.R. 1201,
§5(1), proposed 18 U.S.C. 2516(1). H.R. 181 and H.R. 296 would also authorize use for investigations involving 18
U.S.C. 1590 (peonage, slavery, involuntary servitude, or force labor trafficking), H.R. 181, §4(1), proposed 18 U.S.C.
2516(1); H.R. 296, §4(1), proposed 18 U.S.C. 2516(1).
90 S. 178, §106(2), proposed 18 U.S.C. 2516(2); S. 140, §5(2), proposed 18 U.S.C. 2516(2); H.R. 181, §4(2), proposed
18 U.S.C. 2516(2); H.R. 296, §4(2), proposed 18 U.S.C. 2516(2); H.R. 1201, §5(2), proposed 18 U.S.C. 2516(2).
91 42 U.S.C. 16913(a). SORNA defines the term jurisdiction “to mean any of the following: (A) A State. (B) The
District of Columbia. C) The Commonwealth of Puerto Rico. (D) Guam. (E) American Samoa. (F) The Northern
Mariana Islands. (G) The United States Virgin Islands. (H) To the extent provided and subject to the requirements of
section 16927 of this title, a federally recognized Indian tribe,” 42 U.S.C. 16911(10). For a general discussion of
SORNA, see CRS Report R43954, Federal Involvement in Sex Offender Registration and Notification: Overview and
Issues for Congress, In Brief, by Lisa N. Sacco, and CRS Report R42692, Failure to Register as a Sex Offender: A
Legal Analysis of 18 U.S.C. 2250, by Charles Doyle.
92 42 U.S.C. 16913(d); 73 Fed. Reg. 81849 (December 28, 2010).
93 42 U.S.C. 16918, 16920(b).
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of sex offenders who live, work, or attend school within a particular area.94 SORNA requires
jurisdictions to satisfy minimum standards for the information they collect and maintain.95
Section 114 of SORNA requires registrants to provide (1) their name and any alias; their Social
Security number; (2) their place of residence; (3) the name and address of their employer; (4) the
name and address of any school they are attending; (5) the description and license plate number
of any vehicle they own or operate; and (6) any other information the Attorney General requires.96
Section 114 requires jurisdictions to include within their registries (1) a physical description of
the offender; (2) the text of the statute defining the crime which requires the offender to register;
(3) the offender’s criminal history; (4) a current photograph of the offender; (5) a set of the
offender’s fingerprints; (6) a sample of the offender’s DNA; (7) a copy of the offender’s driver’s
license or other identification card; and (8) any other information the Attorney General requires.97
S. 178 (Senator Cornyn), S. 409 (Senator Burr), and H.R. 956 (Representative Speier) would
direct the Secretary of Defense to provide the Attorney General with information described in
Section 114 relating to military sex offenders whom SORNA requires to register with state or
tribal authorities.98 The requirement would presumably apply to those convicted of registration-
requiring offenses both before and after the enactment of SORNA.99
H.R. 956 (Representative Speier) would further amend SORNA to increase the role of the
Department of Defense (DOD) by establishing a separate sex offender registry. Military sex
offenders, who are obligated to maintain current registration information with state or tribal
authorities any place where they live, work, or attend school, would also be required to register
with the Secretary of Defense upon their release from custody or entry into the United States. The
proposal makes no explicit provision for military sex offenders convicted prior to the enactment
of SORNA.
SORNA requires states and certain tribes to maintain a jurisdiction-wide sex offender registry that
meets SORNA requirements.100 H.R. 956 would impose the same obligation on the Secretary of
Defense,101 but without the fiscal sanctions which attend a state’s failure to comply.102 In addition
to the demand to register where they live, work, or attend school, sex offenders being released
from custody must also register with the jurisdiction in which they were convicted.103 H.R. 956
94 Id.
95 42 U.S.C. 16912.
96 42 U.S.C. 16914(a).
97 42 U.S.C. 16914(b).
98 S. 178, §502(a), proposed 42 U.S.C. 16928A; S. 409, §2, proposed 42 U.S.C. 16928A.
99 Cf., 42 U.S.C. 16913(d); 73 Fed. Reg. 81849 (December 28, 2010).
100 42 U.S.C. 16912.
101 H.R. 956, §3, proposed section 16912(a), which after amendment would read “Each jurisdiction, and, for military
offenders, the Secretary of Defense (including any military offender serving in the Coast Guard, without regard to the
department in which the Coast Guard is operating), shall maintain a jurisdiction-wide sex offender registry conforming
to the requirements of this subchapter.” (Language that would be added by H.R. 956 in italics.)
102 Jurisdictions that fail to comply with SORNA’s requirements are subject to a 10% reduction of federal law
enforcement assistance funds, 42 U.S.C. 16925(a).
103 42 U.S.C. 16913(a).
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would require military sex offenders to register upon release in addition with the Secretary of
Defense.104
H.R. 956, like S. 178 and S. 409, would require the Secretary of Defense to include the same
information within his registry regarding a recently released sex offender that states and tribes are
required to capture: physical description of the sex offender; text of the law proscribing the
conduct for which the sex offender was convicted; the sex offender’s criminal history;
fingerprints, a DNA sample, and a photograph of the sex offender; a copy of the offender’s
driver’s license or other official identification of the sex offender; and any additional information
required by the Attorney General.105
The Secretary would have to make this information publicly available online,106 and would be
required to report the information to the Attorney General, appropriate law enforcement, and
educational, public housing, social service officials, as well as assorted related public and private
entities.107 The Attorney General would be required to include the information in the national
registry and to forward updated information received from various jurisdictions relating to a
military sex offender to the Secretary of Defense.108 The national registry would be required to
include military sex offender information available on the Secretary’s website.109
SORNA mandates that “appropriate officials” and “appropriate law enforcement agencies” take
action when a sex offender fails to comply with the requirements of a state or tribal registry.110
H.R. 956 would establish a comparable command for action when a military sex offender fails to
comply with the requirements of the DOD registry.111 It is unclear whether the amendment is
intended to expand the terms “appropriate official” and “appropriate law enforcement agencies”
to encompass DOD officials and law enforcement agencies, giving them authority over
discharged military sex offenders over whom they would otherwise have no jurisdiction.
SORNA obligates the Attorney General to develop and support the computer software necessary
for jurisdictions to comply with SORNA’s standards.112 H.R. 956 would enlarge the obligation to
enable establishment and maintenance of a DOD registry.113
Finally, H.R. 956 would require military sex offenders entering the United States to register with
the Secretary of Defense.114
104 H.R. 956, §4(a), proposed 42 U.S.C. 16913(a).
105 H.R. 956, §4(b), proposed 42 U.S.C. 16914(b); S. 409, §2, proposed 42 U.S.C. 16928A.
106 H.R. 956, §4(c), proposed 42 U.S.C. 16918.
107 H.R. 956, §4(f), proposed 42 U.S.C. 16921(b).
108 H.R. 956, §4(d), proposed 42 U.S.C. 16919(a), (b).
109 H.R. 956, §4(e), proposed 42 U.S.C. 16920(b).
110 42 U.S.C. 16922.
111 H.R. 956, §4(g), proposed 42 U.S.C. 16922, which after amendment would read “An appropriate official shall notify
the Attorney General and appropriate law enforcement agencies of any failure by a sex offender to comply with the
requirements of a registry and revise the jurisdiction’s registry (and, in the case of military offenders, the registry of the
Secretary of Defense) to reflect the nature of that failure. The appropriate official, the Attorney General, and each such
law enforcement agency shall take any appropriate action to ensure compliance.” (Language that would be added by
H.R. 956 in italics.)
112 42 U.S.C. 16923.
113 H.R. 956, §4(h), proposed 42 U.S.C. 16923.
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Sex Trafficking: Proposals in the 114th Congress to Amend Federal Criminal Law
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
(...continued)
114 H.R. 956, §4(i), proposed 42 U.S.C. 16928.
Congressional Research Service
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