CRS-30 a sex offense if it occurs during the commission of certain enumerated crimes 76/ over which there is federal jurisdiction. In other words, the commission of one federal crime serves as the basis for asserting federal jurisdiction over the sex offense. The enumerated crimes which "piggyback" federal jurisdiction over sex offenses are mostly crimes which are likely to be coupled 77/ with a sex offense. For example, kidnapping piggybacks federal jurisdiction over sex offenses because unlawful sexual conduct is likely to occur during a kidnapping. Ancillary jurisdiction is not likely to produce a significant increase in the number of federal prosecutions for sex offenses. Some of the enumerated crimes which serve as the basis for ancillary jurisdiction already provide a basis for federal prosecutions of sexual misconduct, al78/ beit in a roundabout fashion. For example, the crime of rape can be pros79/ ecuted as the federal crime of interfering with civil rights if rape is the cause of the interference. 76/ The application of ancillary jurisdiction is not limited to the sex offense provisions in S. 1437. 771 78/ The crimes supporting ancillary jurisdiction over sex offenses are: Tam- See text supra at 7-8. 79/ 18 U.S.C. §§241, 242. CRS-31 Ancillary jurisdiction serves two important purposes. First, it makes the law more logical and therefore easier to work with. For example, prosecuting the crime of rape as the crime of interfering with civil rights is not very logical conceptually since what is really involved are two separate, but related, offenses. Ancillary jurisdiction over sex offenses will enable both counts to be charged thereby decreasing the chances that the sex offender will escape punishment altogether because of some techni80/ cality. Ancillary jurisdiction serves the second purpose of permitting prosecutions based upon the offender's entire course of criminal conduct, rather than splitting the prosecutions between the federal and local govern ments. The crime of sexual abuse of a ward depends on yet a third basis for federal jurisdiction-- a federal interest arising from the circumstances of the detention. Thus, there is federal jurisdiction over the crime if the victim is detained pursuant to a federal law, if the offender is a federal public servant, and if the detention facility is a federal facility. There is also federal jurisdiction over the offense if it occurs within the special jurisdiction of the United States. An issue related to jurisdiction is the problem of assimilation. S. 1437 creates several new substantive sex offenses which under existing federal law depend on state law for prosecution through the Assimilated Crimes Act. S. 1437, however, is not exhaustive. It omits several sex crimes which are found in state criminal codes. Included in the list of omitted 80/ Other advantages which flow from charging separate counts are greater clarity in jury instructions and greater leverage for plea bargaining. CRS-32 crimes are consensual sodomy, bestiality, necrophilia, incest, bigamy, fornication, adultery-- to name but a few of the less archaic crimes. Since S. 1437 also contains an assimilated crimes provision, the question arises whether S. 1437's silence regarding these crimes means they are never to be prosecuted under federal auspices or means they are to be prosecuted under the assimilation provision, i.e., as a federal crime but according to state substantive law. The Senate Report accompanying S. 1437 provides an answer to this question tucked away in a footnote. The footnote states: "[virtually the only sexual offenses for which assimilation of State law will be needed under the proposed Code are incest and bigamy. Other forms of consensual sexual activity among competent adults, not proscribed in this subchapter, are 81/ not meant to be federally prosecutable." The legislative history which accompanies a bill frequently controls judicial interpretation provided it gives a clear indication of congressional intent. A footnote, however, is rarely persuasive evidence of congressional intent. If S. 1437 is meant to be a comprehensive criminal code embodying the legal philosophy of decriminalizing sexual activity between consenting adults, then the intent to bar assimilation may require more than a footnote. Decriminalization is a matter of great public concern. There are numerous arguments both for and against it-- most of them variations on a few themes. On the one hand, it is argued that sexual activity outside of marriage requires regulation to prevent moral decay, to prevent increased crime which usually accompanies moral decay, and to preserve family stability which is the cornerstone of an ordered society. On the other hand, 81/ 1977 Senate Report, supra note 19, at 572 n. 3. CRS-33 it is argued that criminalizing sexual activity between consenting adults infringes on the rights to privacy, deters treatment for medical and psychological problems related to sex, serves the interest of blackmailers, and leads to selective law enforcement and the misallocation of police resources. Arguments for and against decriminalization are espoused with heated concern. The strong social impetus to prosecute traditional notions of sex crimes may require more than a legislative footnote to bar judicial authority to allow assimilation. If it is truly the legislative intent to bar assimilation, then the certain way to prevent it is to write the exception into the assimilation section of the bill. Of course, another way of handling the problem is to add a provision to the general provision section of the sex offense subchapter stating that sex offenses cannot be prosecuted by assimilation. The Senate Report accompanying S. 1437 states that bigamy and incest are meant to be prosecuted as assimilated crimes. It adds that the justification for not barring the prosecution of these crimes by assimilation is that they 82/ involve matters of local mores. Since consensual sodomy, fornication, etc., also involve matters of local mores, some other justification is required to rationalize the intent to limit prosecutions by assimilation to bigamy and incest. Perhaps a better ground of distinction is that bigamy and incest, unlike consensual sodomy and fornication, are crimes against family stability. Traditionally, matters involving the family have been left to state regulation 83/ where the federal interest is not significant. However, if the need to protect family integrity is used to justify prosecutions of bigamy and incest by 82/ Id., at 582. 83/ See, e.g., 18 U.S.C. $1153 extending federal jurisdiction over the crime of incest to Indians in Indian country, but assimilating state law for the definition and punishment of the crime. CRS-34 assimilation, then adultery likewise would be a candidate for prosecution by assimilation since it also interferes with family harmony. D. Punishment S. 1437 changes the punishment for rape and related sex offenses. The change is effected in two ways. First, S. 1437 separates the common law crime of rape into two offenses carrying separate penalties. Second, S. 1437 sharply reduces the penalty for rape. The common law crime of rape covers a variety of circumstances, ranging from intercourse at gunpoint to intercourse with a woman who has been deceived into thinking the offender is her husband. Under existing federal 84/ law, both acts carry the same maximum punishment. Present federal law also authorizes the same punishment for a teen-age boy who "makes love" with his fifteen-year-old girlfriend and the stranger who takes advantage of a young 85/ girl. While both the rape and statutory rape laws permit the judge to exercise discretion in sentencing, it is hypothesized by some that jurors will not convict where the crime does not fit traditional notions of violent rape 86/ or child molesting because of the potential severity of the sentence. S. 1437 avoids any such risk of non-coviction by carefully categorizing the circumstances of each offense. 841 851 86/ 18 U.S.C. $2031 provides three sentencing alternatives: death, life imprisonment, or prison for any term of years. The death penalty for the rape of an adult woman has recently been declared unconstitutional. Coker v. Georgia, 97 S.Ct. 2861 (1977). The statute is permissive so that the judge can exercise discretion in sentencing. Both constitute statutory rape punished by 18 U.S.C. $2032 which provides a maximum penalty of fifteen years for the first offense and thirty years for the second offense. Note, "Recent Statutory Developments in the Definition of Forcible Rape," 61 Virginia Law Review 1500, 1517 (1975) |