Government Given Third Option for Proving Mens Rea in Child Sex-Trafficking Cases

United States v. Duong, 2017 WL 586439 (February 14, 2017) (OK, published): In child sex trafficking cases, the government, apparently, has had difficulty proving the mens rea element with respect to the victim’s status as a minor. This explains why Congress has repeatedly amended 18 U.S.C. § 1591 to “lower the government’s burden.” After examining the statute’s “plain language”, the panel concludes that the government is “no longer limited to the proof of actual knowledge.” Instead, the government need not prove actual knowledge when the accused had a “reasonable opportunity to observe the child victim.” This is a standard lower than the one that first reduced the knowledge requirement: reckless disregard of the fact that the child was a minor. To summarize, the government now has three ways to prove mens rea with respect to the age of the child victim: (a) the accused knew he was a minor; (b) the accused recklessly disregarded the fact he was a minor; or if these first two are unprovable (3) the accused had a reasonable opportunity to observe her.