8.168 AGGRAVATED SEXUAL ABUSE

OF CHILD

(18 U.S.C. § 2241(c))

The defendant is charged in [Count _______ of] the indictment with aggravated sexual abuse of a child in violation of Section 2241(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly engaged in a sexual act with [name of victim];

Second, at the time, [name of victim] was under the age of twelve years; and

Third, [the defendant crossed a state line with the intent to engage in a sexual act with a person who was under the age of twelve years] [the offense was committed at [specify place of federal jurisdiction]].

The government need not prove that the defendant knew that the other person engaging in the sexual act was under the age of twelve years.

In this case, "sexual act" means [specify statutory definition].

Comment

See Comment to Instruction 8.164 (Aggravated Sexual Abuse).

The Ninth Circuit, analyzing the mandatory life sentencing enhancement under the last sentence of the statute, has held that a conviction under § 2241(c) "depend[s] on the commission of a 'sexual act.'" United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003) (defining sexual act as "skin-to-skin touching" and finding that sentencing enhancement did not apply where previous conviction was pursuant to statute allowing conviction for touching over clothes).

Although the Committee has not found any Ninth Circuit case explicitly holding that proof of a sexual act is an element of the offense under the first clause of 18 U.S.C. § 2241(c), the court, when analyzing the mandatory life sentencing enhancement under the last sentence of the statute, stated a conviction under § 2241(c) "depend[s] on the commission of a 'sexual act.'" (defining sexual act as "skin-to-skin touching"). United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003).

See 18 U.S.C. § 2241(d), as to the penultimate paragraph of the instruction. See 18 U.S.C. § 2246(2) for the definition of sexual act referred to in the last paragraph of the instruction.

An alleged mistake as to the victim's age is not a defense to a charge of aggravated sexual abuse under a statute prohibiting anyone from knowingly engaging in sexual contact with another person who has not attained the age of 12 years. United States v. Juvenile Male, 211 F.3d 1169, 1171 (9th Cir. 2000).

Approved 1/2019