20.30A Travel with Intent to Engage in Illicit Sexual Conduct (18 U.S.C. § 2423(b))

            The defendant is charged in [Count _______ of] the indictment with traveling with intent to engage in illicit sexual conduct in violation of Section 2423(b) of Title 18 of the United States Code. 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 [traveled in interstate commerce] [traveled into the United States] [is a United States citizen who traveled in foreign commerce] [is an alien admitted for permanent residence in the United States who traveled in foreign commerce]; and

             Second, the defendant did so with a motivating purpose of engaging in any illicit sexual conduct with another person.

             A defendant travels with a motivating purpose of engaging in illicit sexual conduct if engaging in the intended sexual conduct was a dominant, significant, or motivating purpose of the travel.

             In this case, “illicit sexual conduct” means [specify sexual act(s) with a person under 18 years of age] [a commercial sex act with a person under 18 years of age, meaning a sex act on account of which anything of value is given to or received by any person] [the production of child pornography, that is, specify statutory definition].

Comment

            Further definitions for “sexual act,” “commercial sex act,” and “child pornography” are referenced in the statute. See 18 U.S.C. § 2423(f). 

“In interpreting the elements for transportation and travel offenses, we have consistently held that a dominant, significant, or motivating purpose to engage in criminal sexual activity satisfies the intent requirement.” United States v. Flucas, 22 F.4th 1149, 1154 (9th Cir. 2022). In Flucas, the court held that the district court “correctly instructed the jury . . . with respect to the intent requirement[]” in § 2423(a) when the district court instructed that it was “sufficient if the government proves beyond a reasonable doubt that the sexual activity was a significant, dominating or motivating purpose.” Id. at 1154-55, 1164. See also United States v. Pepe, 81 F.4th 961, 977 (9th Cir. 2023) (“Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling.”).

Effective December 2018, Congress amended 18 U.S.C. § 2423(b) to prohibit travel in foreign commerce “with a motivating purpose of engaging in any illicit sexual conduct” rather than simply “for the purpose of” so engaging. Pub. L. 115-392, 132 Stat. 5256. The Ninth Circuit had approved using “motivating purpose” as an instruction for the pre-2018 version of the statute. Pepe, 81 F.4th at 978 (citing United States v. Lindsay, 931 F.3d 852, 864 (9th Cir. 2019), and Flucas, 22 F.4th at 1156-57).