AMENDMENT 641

Amendment: Chapter Two is amended in the heading of Part G by striking "PROSTITUTION" and inserting "COMMERCIAL SEX ACTS".

Chapter Two, Part G is amended in the heading of Subpart 1 by striking "PROSTITUTION" and inserting "A COMMERCIAL SEX ACT".

Section 2G1.1 is amended in the heading by striking "Prostitution" and inserting "A Commercial Sex Act".

Section 2G1.1(b)(1) is amended by striking "prostitution" and inserting "a commercial sex act"; by inserting "fraud," after "force,"; and by striking "by threats or drugs or in any manner".

Section 2G1.1(b)(4) is amended by striking "prostitution" each place it appears and inserting "a commercial sex act".

Section 2G1.1(b)(5) is amended by striking "prostitution" and inserting "a commercial sex act".

Section 2G1.1(c)(3) is amended by striking "prostitution" and inserting "a commercial sex act".

Section 2G1.1(d)(1) is amended by striking "prostitution" and inserting "a commercial sex act".

The Commentary to §2G1.1 captioned "Application Notes" is amended in Note 1 by inserting after "For purposes of this guideline—" the following paragraph:

"‘Commercial sex act’ has the meaning given that term in 18 U.S.C. § 1591(c)(1).";

and by striking the last two paragraphs as follows:

"‘Promoting prostitution’ means persuading, inducing, enticing, or coercing a person to engage in prostitution, or to travel to engage in, prostitution.

‘Victim’ means a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, prostitution or prohibited sexual conduct, whether or not the person consented to the prostitution or prohibited sexual conduct. Accordingly, ‘victim’ may include an undercover law enforcement officer.",

and inserting the following:

"‘Promoting a commercial sex act’ means persuading, inducing, enticing, or coercing a person to engage in a commercial sex act, or to travel to engage in, a commercial sex act.

‘Victim’ means a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, a commercial sex act or prohibited sexual conduct, whether or not the person consented to the commercial sex act or prohibited sexual conduct. Accordingly, ‘victim’ may include an undercover law enforcement officer.".

The Commentary to §2G1.1 captioned "Application Notes" is amended in Note 2 by inserting "fraud," after "force,"; and by striking "prostitution" and inserting "commercial sex act".

The Commentary to §2G1.1 captioned "Application Notes" is amended in Notes 3, 4, 7, 8, and 11 by striking "prostitution" each place it appears and inserting "a commercial sex act".

The Commentary to §2G1.1 captioned "Application Notes" is amended in Note 10 by striking "kidnaping" each place it appears and inserting "kidnapping".

The Commentary to §2G1.1 captioned "Application Notes" is amended by striking Note 12 as follows:

"12. Upward Departure Provisions.—An upward departure may be warranted in either of the following circumstances:

(A) The defendant was convicted under 18 U.S.C. § 1591 and the offense involved a victim who had not attained the age of 14 years.

(B) The offense involved more than 10 victims.",

and inserting the following:

"12. Upward Departure Provision.—An upward departure may be warranted if the offense involved more than 10 victims.".

Reason for Amendment: This amendment ensures that appropriately severe sentences for sex trafficking crimes apply to commercial sex acts such as production of child pornography, in addition to prostitution, and also targets offenders who use fraud to entrap victims. It makes several changes to §2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct) to address more adequately the portion of section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000 (the "Act"), Pub. L. 106–386, pertaining to the new offense at 18 U.S.C. § 1591, which prohibits knowingly transporting or harboring any person, or benefitting from such transporting or harboring, knowing either that force, fraud, or coercion will be used to cause that person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be forced to engage in a commercial sex act.

In response to the Act, the Commission in 2001 promulgated an amendment that referenced 18 U.S.C. § 1591 to §§2G1.1 and 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material) and provided an encouraged upward departure in those guidelines to address cases in which (1) the defendant was convicted under 18 U.S.C. § 1591 and the offense involved a victim who had not attained the age of 14 years; or (2) the offense involved more than 10 victims. (See Supplement to Appendix C, Amendment 612, effective May 1, 2001, and Amendment 627, effective November 1, 2001).

This amendment makes three substantive changes to §2G1.1. First, this amendment broadens the conduct covered by the guideline beyond prostitution to encompass all commercial sex acts, consistent with the scope of the Act. Second, this amendment expands the "force or coercion" prong of §2G1.1(b)(1) to also cover offenses involving fraud. This change addresses the increased punishment provided by 18 U.S.C. § 1591 for offenses effected by force, fraud, or coercion. Third, the amendment deletes the portion of the encouraged upward departure provision in §2G1.1 pertaining to the age of the victim because such conduct already is taken into account by that guideline.

Effective Date: The effective date of this amendment is November 1, 2002.