SCOTUS Examines Child Porn Sentencing Enhancements

Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal

By Jessica DaSilva

Nov. 3 — Justices of the U.S. Supreme Court focused on issues of redundancy and the rule of lenity in their questions to attorneys during oral argument Nov. 3 examining the applicability of repeat-offender sentence enhancements for child pornography crimes.

The case centers on a federal statute prescribing a 10-year minimum mandatory sentence enhancement based on recidivism for a defendant who “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” At issue is whether the phrase “involving a minor or ward” modifies all three listed crimes or only the last crime of “abusive sexual conduct,” an issue that has divided the lower federal courts.

The U.S. Court of Appeals for the Second Circuit below found guidance in the part of the statute that enumerates the federal statutes that set out the offenses that will serve as predicates for an enhancement. These statutes cover sexual abuse of adults, and the circuit court decided this shows that Congress didn't intend to limit predicate priors to those involving minors (95 CrL 244, 5/21/14; 97 CrL 220, 5/27/15).

Redundancy in the Law?

Justice Ruth Bader Ginsburg led Federal Public Defender for New York Edward S. Zas, who represented petitioner Avondale Lockhart, into his argument by asking whether a federal conviction for sexual abuse of an adult would trigger the minimum mandatory sentence.

Zas agreed, saying the intent of Congress was never focused on equal treatment of federal and state law. In furtherance of his point, Zas discussed Congress's decision to add federal obscenity offenses in a neighboring section that did not include state equivalents.

Overall, Zas contended the phrase “involving a minor or ward” encompasses all three crimes in the statute. If the court accepts his interpretation, his client—who previously pleaded guilty to sexually abusing his adult girlfriend—will not receive a sentencing enhancement.

However, Justice Samuel A. Alito Jr. set the tone of questioning when he asked whether reading the phrase to modify all three crimes creates redundancy between the crimes of “sexual abuse” and “abusive sexual conduct.”

Zas argued Congress's purpose was to broadly encompass differing language among state penal codes for sexual crimes against children.

Justice Elena Kagan put forth an alternative theory: What if the offenses were listed in order from most to least severe crimes? In that case, she said it would make sense for that end phrase to modify all three of the listed crimes.

Justice Antonin Scalia agreed, pointing out that “abusive sexual conduct” is not made less severe by adding the phrase “involving a minor or ward” to the end of it.

Zas maintained the list was intended to broaden the scope of sexual crimes committed on minors.

“It could be viewed as going broader, but with a floor,” Zas said. “If you commit any kind of sexual abuse, not only sexual abuse, but anything related to sexual abuse, you're going to face these severe penalties, so long as it involves a minor or ward. That's the focus. Congress was trying to protect children and to punish and deter those who would harm them.”

This would also keep those state offenses included if the language in any state's penal code changed, Zas argued.

Rule of Lenity

The government's argument focused on the third crime as standing alone because it features the term “ward,” which could include an adult.

“Congress made clear when it included that third category that it was picking up state law offenses where a person is deemed incapable of consenting to sexual contact or sexual conduct because of their status as either a minor or ward,” said attorney Ann O'Connell, of the Solicitor General's Office.

In response, Scalia became the first justice to bring up the rule of lenity, asking whether the fact that a Department of Justice report about the statute that accepted the defendant's interpretation indicated enough ambiguity that the court should interpret the statute in favor of the defendant.

“My goodness, I have no assurance what the right answer is,” Scalia said. “But I know that somebody could read this and think that it means what the petitioner says it means. And if that's the case, it seems to me the rule of lenity comes into play.”

O'Connell argued no need to invoke the rule of lenity exists, as the last option counts as a standalone crime that, on its face, protects children and adult wards alike.

Additionally, O'Connell supported her claim by citing to the parallel penalty statute for the law in question, which uses similar language that better conveys the third option as a separate crime: “State laws relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or a ward or sex trafficking of children.”

Possible Scrivener's Error?

The question prompted Kagan to ask whether O'Connell was suggesting the change from conduct to contact was a “scrivener's error.” O'Connell said no, but she pointed out that the statute defining sexual contact uses the word conduct when circumstances fall just below the severity of a sexual act.

Finally, O'Connell argued that accepting the petitioner's interpretation would frustrate the purpose of the statute by preventing a minimum mandatory sentence for defendants who sexually abused children but were convicted under a “generally applicable sexual-abuse statute.”

Before wrapping up, Kagan again asked a technical question on the last-antecedent rule in statutory construction. O'Connell referenced Scalia's seminal book on statutory interpretation, which states that the driving force behind the decision to apply the meaning of a last antecedent heavily depends on context. Applying the last antecedent in this statute renders it redundant, O'Connell said.

In response to O'Connell, Zas argued that the rule of lenity must apply based on the statute's facial ambiguity. Even after using all the tools of statutory construction, Zas said the statute still sounds ambiguous.

To contact the reporter on this story: Jessica DaSilva at

To contact the editor responsible for this story: C. Reilly Larson at

Request White Collar & Criminal Law News