Federal Sex Crimes: An Overview for Michigan Cases

Michigan's own sex offense statutes are prosecuted in state court. A case can be charged in federal court when the conduct fits a federal statute, and each federal statute requires its own connection to federal authority: a federal place, the mail, a facility or means of interstate or foreign commerce, or interstate travel.^[1][2][3][4] Several of the federal offenses carry mandatory minimum prison terms, which are listed with the maximums below.^[6][7][3][5]

This overview identifies the main statutes and the terms of imprisonment each one states. Two companion pages go deeper: federal child exploitation charges and federal enticement of a minor. The Michigan Judicial Institute's Sexual Assault Benchbook states that federal sex offenses are beyond its scope, so everything here comes from the text of the United States Code.^[9]

What makes a case federal?

Federal criminal statutes are written with a jurisdictional element. In this area there are two kinds.

Federal places and federal custody

The four federal sexual abuse statutes, 18 USC 2241 through 2244, begin with the same words. They apply to conduct "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."^[1] The belief that there is a general federal rape law covering every assault in every state is mistaken.^[1]

Commerce, the mail and travel

The statutes that reach ordinary cases arising in Michigan use a different hook.

• The production statute, 18 USC 2251, applies if the person knows or has reason to know the depiction will be transported or transmitted using any means or facility of interstate or foreign commerce, if it was produced or transmitted using materials that have been mailed, shipped or transported in interstate or foreign commerce "by any means, including by computer," or if it has actually been so transported or transmitted.^[2]
• The enticement statute, 18 USC 2422(b), applies to a person "using the mail or any facility or means of interstate or foreign commerce."^[3]
• The transportation statute, 18 USC 2423, applies to transporting a minor, or traveling, in interstate or foreign commerce.^[4]
• The sex trafficking statute, 18 USC 1591, applies to conduct "in or affecting interstate or foreign commerce."^[10]

How courts apply these phrases to phones and the internet is a matter of federal case law that was not researched for this guide. The statutory text is what is reported here.

The main federal statutes and their prison terms

The table gives the minimum and maximum term of imprisonment stated in each provision for a person with no qualifying prior conviction. Where the provision states no minimum, the table says so. Each provision also authorizes a fine; fine amounts are not listed.

Offense	Mandatory minimum	Maximum
Aggravated sexual abuse by force, threat, or rendering unconscious or drugging, 18 USC 2241(a)-(b) (federal jurisdiction)	None stated	Any term of years or life[11]
Sexual act with a child under 12, including crossing a state line with that intent, 18 USC 2241(c)	30 years	Life[12]
Sexual abuse, 18 USC 2242 (federal jurisdiction)	None stated	Any term of years or life[13]
Sexual abuse of a minor aged 12 to 15 who is at least four years younger, 18 USC 2243(a) (federal jurisdiction)	None stated	15 years[14]
Abusive sexual contact, 18 USC 2244 (federal jurisdiction)	None stated	2, 3 or 10 years depending on the circumstance; any term of years or life where the contact would violate 18 USC 2241(c) had it been a sexual act[15]
Production of child pornography, 18 USC 2251	15 years	30 years[6]
Receipt, distribution or transport of child pornography, 18 USC 2252 and 2252A	5 years	20 years[7]
Possession, or access with intent to view, 18 USC 2252(a)(4) and 2252A(a)(5)	None stated without a qualifying prior conviction	10 years; 20 years if an image involved a prepubescent minor or a minor under 12[16]
Persuading any individual to travel for prostitution or criminal sexual activity, 18 USC 2422(a)	None stated	20 years[17]
Coercion and enticement of a minor, 18 USC 2422(b)	10 years	Life[3]
Transportation of a minor, 18 USC 2423(a)	10 years	Life[4]
Travel with intent to engage in illicit sexual conduct, 18 USC 2423(b)	None stated	30 years[4]
Sex trafficking by force, fraud or coercion, or of a person under 14, 18 USC 1591(b)(1)	15 years	Life[5]
Sex trafficking of a person aged 14 to 17 without force, fraud or coercion, 18 USC 1591(b)(2)	10 years	Life[5]
Failure to register, 18 USC 2250(a)	None stated	10 years[18]

A mandatory minimum is a floor written into the statute. These are the terms stated in the offense provisions themselves; this guide did not research the federal sentencing guidelines or the provisions that govern how a federal judge arrives at a sentence within the statutory range.

Sexual abuse in federal jurisdiction (18 USC 2241 to 2244)

Within federal territorial jurisdiction and federal custody settings, the chapter creates four offenses.

• Aggravated sexual abuse. Knowingly causing another person to engage in a sexual act by using force, or by threatening or placing the person in fear of death, serious bodily injury or kidnapping; or rendering a person unconscious and thereby engaging in a sexual act; or administering a drug, intoxicant or similar substance by force or threat of force, or without the person's knowledge or permission, that substantially impairs the person's ability to appraise or control conduct, and thereby engaging in a sexual act. The penalty is a fine, imprisonment for any term of years or life, or both.^[11]
• Sexual abuse. Causing a sexual act by other threats or fear, engaging in a sexual act with a person incapable of appraising the nature of the conduct or physically incapable of declining or communicating unwillingness, or engaging in a sexual act without the other person's consent, including through coercion. The penalty is a fine and imprisonment for any term of years or for life.^[13]
• Sexual abuse of a minor, a ward or a person in federal custody. A sexual act with a person aged 12 to 15 who is at least four years younger is punishable by up to 15 years, with a defense, which the defendant must prove by a preponderance of the evidence, of reasonable belief that the person was 16 or older.^[14] A sexual act with a person in official detention under the defendant's authority, or by a federal law enforcement officer with a person under arrest or in federal custody, is also punishable by up to 15 years.^[19]
• Abusive sexual contact. Sexual contact, as opposed to a sexual act, in the same circumstances carries maximums of 10, 3 or 2 years, and 2 years for sexual contact without the other person's permission; those maximums double if the contact is with a child under 12. Where the contact would violate 18 USC 2241(c) had it been a sexual act, the penalty is a fine and imprisonment for any term of years or for life.^[15][20]

The chapter defines "sexual contact" as the intentional touching, directly or through the clothing, of listed parts of the body with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; "sexual act" is defined separately.^[21]

The child-under-12 provision is the exception to the location rule. It reaches a person who "crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years," carries a minimum of 30 years, and does not require proof that the defendant knew the child's age.^[12] A defendant previously convicted under that subsection, or of a corresponding state offense, must be sentenced to life in prison unless the death penalty is imposed.^[22]

The commerce-based offenses

Images of minors

Federal law divides these offenses into production, with a 15-year minimum and a 30-year maximum; receipt, distribution and transport, with a 5-year minimum and a 20-year maximum; and possession, which has no minimum unless the person has a qualifying prior conviction.^[6][7][16] The elements and the higher ranges for prior convictions are set out in federal child exploitation charges. Michigan's own statute is covered in child sexually abusive material laws.

Enticement and travel

Using the mail or any facility or means of interstate or foreign commerce to knowingly persuade, induce, entice, or coerce a person under 18 to engage in prostitution or criminal sexual activity, or attempting to, carries a minimum of 10 years and a maximum of life.^[3] Transporting a minor in interstate commerce for that purpose carries the same range, and traveling in interstate commerce with intent to engage in illicit sexual conduct carries up to 30 years with no minimum stated.^[4] See federal enticement of a minor. The nearest Michigan statutes are accosting a child and using a computer to commit a crime.

Sex trafficking

18 USC 1591 covers whoever knowingly recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits a person, in or affecting interstate or foreign commerce, knowing or recklessly disregarding that force, threats of force, fraud or coercion will be used to cause the person to engage in a commercial sex act, or that the person is under 18 and will be caused to engage in one.^[10] The words "patronizes, or solicits" are in the list of covered acts.^[10]

The minimum is 15 years, and the maximum life, if the offense was effected by force, threats of force, fraud or coercion or the person was under 14; the minimum is 10 years, and the maximum life, if the person was 14 to 17 and those means were not used.^[5] Where the defendant had a reasonable opportunity to observe the person, the government need not prove the defendant knew or recklessly disregarded that the person was under 18.^[10] Michigan's trafficking chapter, and the help available to victims, are covered in human trafficking for commercial sex.

Provisions that add time

Registrants. A person required to register as a sex offender who commits a felony offense involving a minor under a list of sections, including 18 USC 1591, 2241 through 2244, 2251, 2422 and 2423, must be sentenced to 10 years in addition to the sentence for that offense, to run consecutively.^[23]

Repeat offenses against minors. Under 18 USC 3559(e), a person convicted of a listed federal sex offense in which a minor is the victim must be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim. The list is 18 USC 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2422(b) and 2423(a); for that subsection a minor is a person under 17, and subsection (e)(3) states exceptions for offenses under sections 2422(b) and 2423(a).^[24]

Supervised release. For offenses under these sections, the authorized term of supervised release after prison is any term of years not less than 5, or life.^[25]

Failure to register. Federal law separately requires a sex offender to register and keep the registration current in each jurisdiction where he or she resides, is employed or is a student.^[26] A knowing failure by a person covered by 18 USC 2250 is punishable by a fine, up to 10 years, or both, with no minimum stated; a person covered by that section who commits a crime of violence under federal, military, District of Columbia, tribal or territorial law faces an additional consecutive term of not less than 5 and not more than 30 years.^[18] Michigan's own offense is in failure to register penalties, and interstate moves in moving to or from Michigan on a registry.

Federal court in Michigan

The United States district courts have original jurisdiction, exclusive of the courts of the states, of all offenses against the laws of the United States.^[8] Michigan has two districts. The Western District's Southern Division takes in Kent, Ottawa, Muskegon, Allegan, Barry, Ionia, Kalamazoo, Montcalm and Newaygo counties, among others, and court is held at Grand Rapids, Kalamazoo, Lansing and Traverse City.^[27]

The same jurisdiction statute provides that nothing in Title 18 "shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof."^[8] Whether, and when, a person can be prosecuted by both the state and the federal government for the same conduct was not researched for this guide, and no rule is stated here. State court procedure is described in the timeline of a felony case in Michigan; federal procedure is different and is outside this guide. Service members face a third system, described in military sexual assault cases.

What people get wrong

"Federal rape law applies everywhere." The sexual abuse statutes apply in federal territorial jurisdiction and federal custody settings.^[1]

"Federal possession carries a 5-year minimum." The 5-year minimum attaches to receipt, distribution and transport. Possession carries up to 10 years, or up to 20 in the higher tier, with a minimum of 10 years only where there is a qualifying prior conviction.^[7][16]

"Only traffickers are covered by the trafficking statute." The federal statute's list of acts includes patronizing and soliciting.^[10]