UNITED NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD
OPTIONAL PROTOCOL TO THE CONVENTION ON THE
RIGHTS OF THE CHILD ON THE SALE OF CHILDREN,
CHILD PROSTITUTION AND CHILD PORNOGRAPHY
PERIODIC REPORT
OF THE
UNITED STATES OF AMERICA
and
U.S. RESPONSE TO RECOMMENDATIONS IN
COMMITTEE CONCLUDING OBSERVATIONS OF JUNE 25, 2008
JANUARY 22, 2010
PERIODIC REPORT OF THE UNITED STATES
TO THE UNITED NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD
and Response to Committee Recommendations
CONTENTS
INTRODUCTION 1
PART I PERIODIC REPORT OF THE UNITED STATES 2
I. GENERAL GUIDELINES 2
II. DATA 4
A. Incidence of Child Prostitution and Pornography and other Sexual Abuse 4
B. Incidence of sale of children 7
III. GENERAL MEASURES OF IMPLEMENTATION 9
A. Applicable laws 9
B. Coordination 13
1. Federal Inter-agency Coordination 13
2. Federal-state coordination 15
a. Department of Justice 15
b. Department of Homeland Security 17
c. U.S. Marshals Service 18
C. Training 18
1. Department of Justice 18
2. Department of Homeland Security 19
3. Department of Defense 20
4. Department of State 20
D. Collection of data concerning implementation of the Optional Protocol 21
E. Budget allocated to activities implementing obligations under the Optional Protocol 21
F. National Strategy 23
G. Ombudspersons and similar autonomous public institutions 23
IV. PREVENTION OF THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 26
A. Reducing demand 26
B. Protecting the most vulnerable 28
C. Public Awareness 29
1. Department of Justice 30
2. Department of Health and Human Services 31
3. Department of Homeland Security 32
4. Department of State 33
5. Department of Education 35
V. PROHIBITION AND RELATED MATTERS (arts. 3; 4, paras 2 and 3; 5; 6 and 7) 35
A. Sale of Children Offenses 36
1.a. Sale for Sexual Exploitation of the Child: Federal 36
1.b. Sale for Sexual Exploitation of the Child: Other U.S. jurisdictions 37
2.a. Sale of Children for Transfer of Organs of the Child for Profit: Federal 37
2.b. Sale of Children for Transfer of Organs of the Child: Other U.S. jurisdictions 38
3.a. Sale of Children for Engagement in Forced Labor: Federal 38
3.b. Sale of Children for Engagement in Forced Labor: Other U.S. jurisdictions 39
4. Sale of Children by Improperly Inducing Consent, as an Intermediary, for the Adoption of a Child in Violation of Applicable International Instruments on Adoption 39
5. Kidnapping and related statutes 39
B. Child Prostitution Offenses 40
1. Child Prostitution: Federal 40
2. Child Prostitution: other U.S. jurisdictions 40
C. Child Pornography Offenses 40
1. Child Pornography: Federal 40
2. Child Pornography: other U.S. jurisdictions 43
D. Laws Applicable to Members of the U.S. Military 43
E. Criminal Penalties 45
1. Juvenile offenders 45
2. Sentences for attempts and complicity 46
F. Statutes of Limitations 46
1. Statutes of Limitations: Federal 46
2. Statutes of Limitations: Other U.S. Jurisdictions 46
G. Investigations, Prosecutions, and Sentences 47
H. Review of legislation 51
I. Criminal liability of legal persons 51
J. Adoption 52
1. Applicable international legal instruments on adoption 52
2. Legal and other measures to prevent illegal adoptions 52
3. Accreditation and approval of entities to provide adoption services: Hague Convention adoptions under the IAA 53
4. Fees 56
5. Prohibition on improper inducement of consent 57
6. Amendments to immigration laws 61
7. Other aspects of implementation 62
8. Preventing improper attempts to persuade mothers or pregnant women to give up children for adoption 64
9. Preventing advertising by unauthorized persons or agencies for services concerning adoption 64
10. Preventing the theft of young children and fraudulent birth registration 65
11. Waiver of parental consent requirement 65
12. Domestic and non-Hague intercountry adoptions 65
K. Advertising of offenses 66
L. Jurisdiction 66
M. Extradition, Mutual Legal Assistance and Assets Forfeiture 69
1. Extradition 69
2. International legal assistance 70
3. Assets forfeiture 71
VI. PROTECTION OF THE RIGHTS OF VICTIMS (arts. 8 and 9, paras. 3 and 4) 72
A. Rights of child victims 72
B. Protection of children in the criminal justice system 72
1. Federal 72
2. Other U.S. Jurisdictions 74
C. Investigation where actual age unknown 75
D. Legal, psychological or other training for those who work with victims of the offenses prohibited in the Optional Protocol 75
E. Allowing entities and individuals to work without fear of interference or reprisals 76
F. Rights of accused persons to a fair and impartial trial 76
G. Programs to provide benefits to child victims 76
1. Service benefit programs 76
a. Department of Health and Human Services 77
b. Department of Justice 86
c. Department of Homeland Security 88
2. Immigration benefits 89
3. Comparison of assistance provided to alien children and children who are nationals 93
4. Damages available to child victims 93
VII. INTERNATIONAL ASSISTANCE AND COOPERATION (Art. 10) 94
A. International cooperation 94
1. Law enforcement and victim assistance cooperation, training and technical assistance 94
a. Department of Homeland Security 95
b. Department of Justice 98
2. U.S. diplomatic engagement and assessments of foreign government performance 102
3. International grants to combat trafficking 107
a. Department of Labor 107
b. Department of State 109
c. U.S. Agency for International Development 112
B. International cooperation to address root causes, in particular poverty and underdevelopment 113
Part II U.S. RESPONSES TO SPECIFIC RECOMMENDATIONS BY THE COMMITTEE 119
ANNEXES[1]
Annex 1: PRINCIPAL STATUTES CITED IN U.S. PERIODIC REPORT ON THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE SALE OF CHILDREN, CHILD PROSTITUTION, AND CHILD PORNOGRAPHY
Annex 2: BIENNIAL COMPREHENSIVE RESEARCH AND STATISTICAL REVIEW AND ANALYSIS OF SEVERE FORMS OF TRAFFICKING, SEX TRAFFICKING AND UNLAWFUL COMMERCIAL SEX ACTS IN THE UNITED STATES
Annex 3: USG FUNDS OBLIGATED IN FY 2008 FOR TRAFFICKING IN PERSONS (TIP) PROJECTS
Annex 4: DEPARTMENT OF EDUCATION COVER LETTER AND FACT SHEET
Annex 5A: SALE OF ORGANS AND RELATED STATUTES
Annex 5B: SALE, KIDNAPPING, TRAFFICKING FOR ADOPTION AND RELATED STATUTES
Annex 6: U.S. SUBMISSION TO WORLD CONGRESS III
92
INTRODUCTION
1. The Government of the United States of America welcomes the opportunity to report to the Committee on the Rights of the Child on measures giving effect to its undertakings under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol), pursuant to Article 12(2) thereof and ¶ 47 of the Committee’s Concluding Observations of June 25, 2008, following the U.S. oral presentation. U.N. Doc. CRC/C/OPSC/USA/CO/1 (Committee's Concluding Observations).
2. The United States submitted its Initial Report to the Committee on May 10, 2007. U.N. Doc. CRC/C/OPSC/USA/1 (Initial Report). The United States provided additional information as requested by the Committee on May 13, 2008 (U.N. Doc. CRC/C/OPSC/USA/Q/1/Add.1) (2008 Written Replies) and May 23, 2008 (U.N. Doc. CRC/C/OPSC/USA/Q/1/Add.2), and made its oral presentation to the Committee on May 22, 2008. Accordingly, the purpose of this periodic report is to supplement and update relevant information, in keeping with the Committee’s Revised Guidelines Regarding Initial Reports, U.N. Doc. CRC/C/OPSC/2.
3. This submission to the Committee consists of two parts. Part I provides the U.S. Periodic Report. Part II responds to recommendations included in the Committee’s Concluding Observations.
4. The United States has sought to respond to the Committee’s requests for information as fully as possible in this submission. In this regard, the United States notes the discussion of its reservation and understandings to the Optional Protocol in ¶¶ 7, 20, 29, and 50 of the U.S. Initial Report.
5. The United States became party to the Optional Protocol pursuant to Article 13(2), which provides that the Optional Protocol “is subject to ratification . . . by any State that is a party to the [Convention on the Rights of the Child (Convention)] or has signed it.” Although the United States signed the Convention in February 1995, it has not proceeded to ratify it. Therefore, the United States stated in its instrument of ratification of the Optional Protocol that it “understands that the United States assumes no obligations under the Convention on the Rights of the Child by becoming a party to the Protocol.” Neither provisions of the Convention nor interpretations of the Convention in the Committee’s general comments affect the U.S. reporting requirement, and the United States takes no position in this report on Convention provisions and general comments referred to in the Guidelines and its annex. In the spirit of cooperation, the United States has provided as much information as possible on other issues raised, not limited to those that directly relate to U.S. obligations arising under the Optional Protocol.
6. The United States is reviewing several human rights treaties to which it is not party, and the Administration is committed to reviewing the Convention on the Rights of the Child to determine whether it can pursue ratification.
PART I
PERIODIC REPORT OF THE UNITED STATES
TO THE UN COMMITTEE ON THE RIGHTS OF THE CHILD
OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD
ON THE SALE OF CHILDREN, CHILD PROSTITUTION
AND CHILD PORNOGRAPHY
I. GENERAL GUIDELINES
7. In preparing this report, the Department of State has drawn on the expertise of the U.S. Department of Justice, the Department of Homeland Security, the Department of Health and Human Services, the Department of Labor, the Department of Education, the Department of Defense, and the U.S. Agency for International Development. The United States also solicited comments from non-profit organizations with shared interests in this field, and has drawn extensively on information available through a number of governmental and non-governmental sources.
8. The legal and policy framework through which the United States gives effect to its undertakings pursuant to the Optional Protocol has not changed significantly since the Initial Report.
9. As noted in ¶ 3 of its Initial Report, at the time of U.S. ratification of the Optional Protocol, U.S. federal and state law satisfied the substantive requirements of the Optional Protocol. Accordingly, no new implementing legislation was required to bring the United States into compliance with the substantive obligations that it assumed under the Optional Protocol, although at the time it became a State Party to the Optional Protocol a technical legal consideration caused the United States to enter a reservation with respect to offenses committed on board a ship or aircraft registered in the United States. Where legislation has been enacted that enhances U.S. implementation in other respects or to take measures consistent with the objectives of the Optional Protocol although not required under it, it is discussed in this report.
10. The reservation included in the U.S. instrument of ratification states:
[T]o the extent that the domestic law of the United States does not provide for jurisdiction over an offense described in Article 3(1) of the Protocol if the offense is committed on board a ship or aircraft registered in the United States, the obligation with respect to jurisdiction over that offense shall not apply to the United States until such time as the United States may notify the Secretary-General of the United Nations that United States domestic law is in full conformity with the requirements of Article 4(1) of the Protocol.
Article 4(1) requires each State Party to “take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 3, paragraph 1, when the offences are committed in its territory or on board a ship or aircraft registered in that State.” The United States has explained in previous submissions to the Committee that although U.S. law provides a broad range of bases on which to exercise jurisdiction over offenses covered by the Optional Protocol that are committed “on board a ship or aircraft registered in” the United States, U.S. jurisdiction in such cases is not uniformly stated for all crimes covered by the Optional Protocol, nor is it always couched in terms of “registration” in the United States. Therefore, the reach of U.S. jurisdiction may not be perfectly co-extensive with the obligation contained in this Article. This is a minor technical discrepancy. As a practical matter, it is unlikely that any case would arise that could not be prosecuted due to the lack of maritime or aircraft jurisdiction. The United States did not, therefore, delay ratification of the Optional Protocol for this reason, but instead entered the reservation suspending the obligation that the United States establish jurisdiction over any covered offenses that may fall within this narrow technical gap. No additional legislation has been enacted since that time. Therefore, the United States is not in a position to withdraw the reservation at this time because there continues to be a narrow range of situations in which it might not be able to carry out its obligations in all situations where the action occurred on board a ship or aircraft “registered in” the United States. For further discussion, see Initial Report at ¶¶ 48-50.
11. Further information on U.S. implementation referenced in the General Guidelines is contained in information provided in subsequent sections of this report. As an initial matter, it is important to note that much of the legislation relevant to U.S. obligations under the Optional Protocol was initially enacted in the Trafficking Victims Protection Act of 2000 (TVPA). The stated purpose of the statute is “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Aspects of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol) addressing prevention and punishment of trafficking of children for exploitation, including for sexual exploitation and forced labor, and assistance for victims largely overlap with U.S. obligations under the Optional Protocol. Accordingly, although a number of the U.S. statutes, activities and reports use the terms “trafficking” and “trafficking in persons,” they demonstrably meet U.S. obligations under the Optional Protocol.[2] In fact, the Trafficking Protocol does not require the element of “remuneration or any other consideration” included in the definition of “sale” in the Optional Protocol. As a result, U.S. implementation goes beyond the requirements of the Optional Protocol in many instances.