More spcifically can the State prosecute you for a crime you commit in another country that the US considers a crime but the other country does not (so the other country lets you go)? Say you kill your wife in a country under specific circumstances that the country you are in deems allowable (IIRC some middle east countries will let a husband go if he kills his wife because his wife trangressed in some specific way…if I am wrong about it then consider it a hypothetical). Upon returning to the United States can you be arrested and prosecuted for that crime? Assume the person in question is a US citizen.
[sub]Disclaimer: I am not married or planning a trip anywhere or have any intention of testing this in any way. The thread on cannibalism brought to mind the case depicted in the movie Alive where a plane crash in the Andes saw some survivors eat the dead while waiting for rescue. It made me wonder if cannibalism were a crime in the US and some of the passengers were US citizens would/could they be prosecuted for doing that.[/sub]
Yep. Congress did this a couple years ago to curb sex tourism. Violating the PROTECT Act of 2003 - engaging in illicit commercial sex abroad with anyone under 18 or any sex whatsoever with anyone under 16 - can carry a penalty of up to 30 years imprisonment. Regardless of the legality of the sex act in the foreign territory.
this sort of application of extraterritorial jurisdiction is somewhat controversial since it does not adhere to the principle of “double criminality” (offence in both countries)
Does it restrict travelling overseas to have such sex, or does it apply universally? E.g. If, in some country, a 30 year old man has a 14 year old wife. Can he be arrested when he sets foot on US soil? What if they’re not married and he just had sex with her? Does it matter where he is a citizen of?
This is odd since in some states it’s legal for an adult to have sex with an under16 and Congress can’t do anyting. Also in theory a state could legalize prostitution and set the provider age at 16 (or 6!). Didn’t Nevada at one time allow clients to be 16.
In the sex tourism statute, it seems to me that the government is not criminalizing the sex itself but is using its power to regulate commerce to criminalize the “travel with the intent” to commit a sex crime. So in that sense, the US is not criminalizing actions that take place in another country but instead is criminalizing actions that take place in this country (using interstate commerce), or the use of the US passport (which the government controls) to cross a border with the intent to commit a sex crime. So that’s not really an example of criminalizing activity in another jurisdiction, no?
Second, as to the jurisdictional statute you quote, subsection 7 lists “an offense by” a US national overseas, but doesn’t specify whose laws. Have you found any explanation of what this means/how it is applied? (Yes, I’m lazy, but if I get some time today I’ll look myself.)
So the general answer to the OP is: You can be prosecuted for violating certain US statutes when you are in a foreign country, but there has to be some indication that the statute in question was meant to apply to conduct outside of US territory.
As part of my research for the thread I had about the 1933 double eagle coins (which are illegal to own), a man was arrested for trying to sell it in London (where, presumably, owning a 1933 gold double eagle is not illegal) and then brought back to the U.S. and charged with the crime here.
(In the end, the government dropped the charges and the coin actually became legal - becoming the only legal 1933 gold double eagle in existence).
I can only assume there is a treaty in place between Great Britain and the US which allows for such things to occur. I do not know the details of the case but perhaps the crime (buying/possessing the double eagle coin) was committed in the US and the British officials will arrest someone in their country and return them to the US at the request of the US government. Effectively the person is “fleeing” justice in the US so the Brits help out by making so “fleeing” there won’t help evade justice.
He’d probably have been charged under the statute cited above and the ones cited in the other thread. The principle of double criminality only requires that the conduct be illegal in the requesting and requested states–not that it be the same offense.
One specific example would be with the Trading with the Enemy Act… If I find my way to Cuba, smoke all the fine cigars, drink all the fine rum, and otherwise spend $$$, I will have violated this law and could be subject to some pretty hefty fines. Hell, I don’t even have to go to Cuba. Let’s assume I travel up to Canada to smoke/drink Cuban cigars/rum. I’d be guilty just the same. Regardless of where I purchased Cuban goods, I’d be guilty of violating the TWEA.
I presume, though, that it would be the US’ responsibility to detect the offence in Canada. It is not a Canadian offence even for Americans to smoke Cuban cigars, travel to Cuba, etc.
Back during the Vietnam War, I understand that it was not a Canadian offence to avoid enlistment in the US army, so once they crossed the border, the draft dodgers were free and clear. I believe that after the Vietnam War, a treaty providing for extradition in such cases was signed between Canada and the US–I could be wrong about that.
The thing I don’t quite understand is the application of the Cuban embargo laws to non-US citizens resident in or admitted to the USA. Is that retroactive? I, as a Canadian, can travel to Cuba no problem. Does this mean that, a year from now, I would have problems if I went to the US? Would my Canadian friend who is a legal resident of California have problems if he came back to Canada, then went to Cuba, returned to Canada, then went back to the USA?
You could also get charged under the Foreign Corrupt Practices Act for attempting to bribe public officials while overseas. While bribery is likely illegal in every country, the odds of being charged in many countries is quite low.
Is this extraterritorial jurisdiction what they used on American Taliban fighter John Walker Lindh, who was “just minding his own business” in Afghanistan when boom the full weight of the US military/judicial establishment landed on him? Jurisdiction never seemed to be at issue in that case.