(U.S.) AIR, WATERS, FOREIGN

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This section concerns the mixed venues under U.S. special maritime and territorial jurisdiction (18 U.S.C. § 7): the seas, Great Lakes and their connecting waterways, plane flights, and federal premises abroad (diplomatic, consular, military, and related sites).

CONTEXT FOR JURISDICTION under 18 U.S.C. § 7:

(A)     Federal jurisdiction includes territorial seas, down to the seabed.  [18 U.S.C. § 7(2)]:

(1)      Ocean-bordering states and U.S. territories (e.g., Guam, etc.) include waters to 3 nautical miles [3.45 statute miles] from the average low tide level, but 9 nautical miles [10.35 statute miles] for Texas and the Gulf coast of Florida.

(2)      Federal territory extends out 12 nautical miles from the average low tide level [13.80 statute miles], minus the states’ and U.S. territories’ (e.g., Guam, etc.) portions.

(3)      The rule for allocating territorial seas to states applies in U.S. portions of the Great Lakes also. The Great Lakes and their connecting waterways are divided between the U.S. and Canada, except for Lake Michigan, which is entirely within the U.S.

(4)      Federal territory includes: U.S. waterfront lands & structures: forts, magazines, arsenals, dockyards, and other buildings.  [18 U.S.C. § 7(3)]:

(5)      It includes: islands, rocks, and keys, from guano (bird feces).  [18 U.S.C. § 7(4)]

(B)     Federal jurisdiction includes watercraft with ties to the U.S.:  [18 U.S.C. § 7(1),(2),(8)]

(1)      Any watercraft at least partly owned by the U.S., a citizen, or an American corporation, while in the federal portion of waters above;

(2)      Any U.S.-registered, licensed, or enrolled vessel on a voyage on the Great Lakes (even in Canada) or St. Lawrence River where it is the International Boundary Line;  [https://www.justice.gov/archives/jm/criminal-resource-manual-671-great-lakes-jurisdiction]  or

(3)      Foreign vessels with a scheduled departure or arrival in the U.S., for an offense by or against a U.S. national (jurisdiction is as permitted by international law).

(C)    Federal jurisdiction includes places outside of (any) other nations’ jurisdiction, for an offense by or against a U.S. national.  [18 U.S.C. § 7(7)]

(D)    Federal jurisdiction includes foreign-locale buildings, residences and lands used for or by U.S. diplomatic, consular, military, or other U.S. missions or entities or their U.S. personnel, regardless of who owns the premises, when the jurisdiction concerns an offense by or against a U.S. national, (except that U.S. military criminal offenders are covered under other federal jurisdiction).  [18 U.S.C. § 7(9)]

(E)     Federal jurisdiction includes aircraft over federal lands and waters. In-flight acts are from when the doors close after embarking until the doors open before disembarking, or until authorities take over after a forced landing.  [49 U.S.C. § 46501(1),(2)]

(1)      U.S. special aircraft jurisdiction includes: (1) U.S. civil, military, American-leased, and other aircraft in the U.S., and (2) foreign aircraft outside the U.S. that (a) took off from and next land in the U.S., or (b) land in the U.S. with a hijacker or terrorist.

(2)      U.S. jurisdiction includes vessels in flight, defined as above, in: (1) any aircraft at least partly owned by the U.S., a citizen, or an American corporation, while over the seas or federal waters; and (2) U.S.-registered spacecraft.  [18 U.S.C. § 7(5),(6)]

COMMENTS FOR JURISDICTION under 18 U.S.C. § 7:

·        There are: (1) no maritime-specific mandatory reporters; (2) no maritime-specific reporting protocols unless in Navy or Coast Guard contexts (see the Military section of this digest); but (3) some maritime-linked statutory definitions of child sexual abuse. And some professionals have overlapping mandates from elsewhere.

COMMENTS FOR JURISDICTION under 18 U.S.C. § 13:

·        For (1) any place in U.S. waters (i.e., within maritime boundaries) where (2) a site is on, above, below any portion of a U.S. territorial sea but NOT within the jurisdiction of a state, territory, commonwealth, possession or district and (3) Congress does not already punish some act or omission but (4) the state or etc. would if its boundaries were extended to the outer limit of U.S. maritime jurisdiction, (5) the laws of that state or etc. apply. 

o   Among other things this includes: airspace, seabed, seabed subsoil, artificial islands, and fixed structures erected there.

o   Result: state child abuse and neglect laws for coastal states and for territories extend outward 12 nautical miles (13.8 statute miles) from the average low tide level.

·        But also, for any federal site within state or territory jurisdiction, the rules of that state or territory are adopted to the extent they punish acts or omissions that Congress did not. 

WHO:  See the relevant state or territory for rules on permissive and mandatory reporters.

To the extent that maritime sites are federally owned or operated facilities, the following guidelines apply. Permissive reporting is not addressed by statutes reviewed. The FBI encourages it.  [https://ucr.fbi.gov/stats-services/victim_assistance/brochures-handouts/when-you-suspect-child-abuse-or-neglect]

These are “covered professionals” (MUST report) for observations on federal lands and federally operated or federally contracted facilities: (1) Physicians, dentists, medical residents or interns, hospital personnel and administrators, nurses, health care practitioners, chiropractors, osteopaths, pharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers, undertakers, coroners, medical examiners, alcohol or drug treatment personnel, & persons performing a healing role or practicing the healing arts. (2) Psychologists, psychiatrists, & mental health professionals. (3) Social workers, licensed or unlicensed marriage, family, & individual counselors. (4) Teachers, teacher's aides or assistants, school counselors & guidance personnel, school officials, & school administrators. (5) Child care workers & administrators. (6) Law enforcement personnel, probation officers, criminal prosecutors, & juvenile rehabilitation or detention facility employees. (7) Foster parents. (8) Commercial film & photo processors. These also include military members with those roles for the military and its dependents.  [34 U.S.C. § 20341(b)]

These are “covered individuals” (MUST report): an adult who is authorized, by a national governing body, a member of a national governing body, or an amateur sports organization that participates in interstate or international amateur athletic competition, to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body, a member of a national governing body, or such an amateur sports organization. These include U.S. Olympic and U.S. Paralympic organizations as well.  These also include military members who have any of these roles for the military and its dependents.  [34 U.S.C. §§ 20341(b),(c)(9)]

·        NOTE: For a list of amateur sports with national governing bodies, see: https://en.wikipedia.org/wiki/Category:Sports_governing_bodies_in_the_United_States and see https://uscenterforsafesport.org/wp-content/uploads/2019/09/NGBlist.92619.pdf

·       NOTE FOR COVERED PROFESSIONALS: The mandate is limited to observations made while practicing their professions or professional activities on federal sites.

·       NOTE: FOR COVERED INDIVIDUALS: The mandate is not limited to observations made in particular circumstances or places.

·       STANDARD:  See standards for the relevant state or territory if applicable under 18 U.S.C. § 13 above.  As for federal sites in maritime locales, the following apply. This rule does not define “child”, but in another federal statute on child abuse (42 U.S.C. § 5101 Note) it means under age 18.

o    For covered professionals (as to federal sites): (a) while engaged in his/her professional capacity or activity (b) on Federal land or in a federally operated or contracted facility, (c) learns of facts that give reason to suspect that (d) a child suffered an incident of child abuse (or neglect).  [34 U.S.C. § 23041(a)(1)] 

o    For covered individuals: (a) learns of facts that give reason to suspect that (b) a child suffered an incident of child abuse (or neglect). [34 U.S.C. § 20341(a)(2)]

                                             (i)     As the statute is written, the abuse may be but isn’t limited to sexual abuse.

                                            (ii)     As the statute is written, amateur athletic organization adults are mandatory reporters BUT their mandates are NOT limited to amateur athletes.

o    For other reporters (by analogy to covered reporters): learns of facts that give reason to suspect that a child suffered an incident of child abuse (or neglect).

·       PRIVILEGE:  Privilege is not addressed in the statutes reviewed. But, 34 U.S.C. § 20341 grants no reporting exception for medical, mental health, or counseling workers.

WHEN:      See rules for the relevant state or territory if applicable under 18 U.S.C. § 13 above. For covered professionals and covered individuals at federal facilities: AS SOON AS POSSIBLE (meaning, within 24 hours).  [34 U.S.C. § 20341(a)(2),(c)(12)] 

WHERE & HOW:  See rules for the state or territory if applicable under 18 U.S.C. § 13 above. For federal facilities, a standard written reporting form with instructions is disseminated among mandated reporter groups; use is encouraged (versus mandated), but must not replace immediate oral reports by phone or otherwise, if circumstances dictate.  [34 U.S.C. § 20341(f)]

·        Do not confront abusers, but in an emergency, dial 911 and if feasible safeguard the child until authorities arrive. On the water, use VHF-FM Channel 16 (156.8 MHz) to dial 911. This solicits the U.S. Coast Guard (USCG). For a directory of USCG emergency phone numbers by district, see: https://www.uscg.mil/contact/ .

·        Child maltreatment in states’ and U.S. territories’ (e.g., Guam, etc.) portions of territorial waters (including in the Great Lakes), including in watercraft, are reportable to the respective state or U.S. territory. See those sections of this digest. 18 U.S.C. § 13 extends state and territory rules and penalties into federal portions of territorial waters, but does not specifically require reporting to that state or territory.

·        Child abuse in general is reportable to the FBI at the CyberTipline run by the National Center for Missing & Exploited Children (NCMEC): 800-843-5678 (1-800-THE-LOST).

·        As to military vessels and sites, see this Digest’s military section.

·        All cases involving the Internet are reportable as in this Digest’s Internet section.

·        All cases listed in this Digest’s Special Cases section are reportable as shown there.

·        The Child Helpline may be called or texted for confidential advice: 1-800-422-4453.

·        Maltreatment of a child that would be a federal crime if done to an adult, is reportable to applicable authorities (such as the FBI) as a regular crime; see the CyberTipline above and descriptions below.

OTHER ASPECTS

·       REPORT DETAILS: If in state or territory portions of waters, see the corresponding state or territory pages. Details are not given for the federal portions. Suggestions here include, where known: (a) for abuse on a vessel, its ID/registration number, type, last known location, and nation of origin if not U.S; (b) child’s name, age, gender, residential address, and citizenship; (b) parents’ or guardians’ name(s), residential address(es), and contact info; (d) reasons for suspecting abuse or neglect; (e) description and location of child’s physical injuries (if applicable), and any known history of them; (f) suspected perpetrator(s)’s name(s), residential address(es), contact info, and citizenship; (g) relevant info freely disclosed by the child; (h) location of incident or observation; (i) child’s current location; (j) other known info on the incident or chronology; (k) documents (if any) for abuse (photos, medical, videos, etc.). 

·       REPORTER PROTECTION: (1) The federal statutes reviewed do not require a reporter to identify him/herself. (2) The federal statutes reviewed do not address disclosure of the reporter’s identity to others. (3) For reports in good faith concerning incidents on federal lands and federally operated or contracted facilities, the reporters are immune from civil or criminal liability, and good faith is presumed; there is no immunity for reports in bad faith. The statutes reviewed do not address immunity for reporting child abuse incidents within maritime jurisdiction, but 18 U.S.C. § 13 above adopts the rules and penalties of the relevant state or territory.  [34 U.S.C. § 20341(g)]

WHY:        A covered professional or covered individual who fails to report immediately (for federal land and/or federally operated or contracted facilities) has a class A misdemeanor, < $100,000 fine and/or < 1 year imprisonment.  [18 U.S.C. § 2258]  Rules of the relevant state or territory under 18 U.S.C. § 13 apply where they punish what Congress did not.

WHAT:      Federal law defines child abuse as physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.  [34 U.S.C. § 20341(c)(1)]

·        Exception:  DISCIPLINE is NOT abuse when administered by a parent or legal guardian to his or her child, provided it is (a) reasonable in manner and (b) moderate in degree and (c) otherwise does not constitute cruelty.  [34 U.S.C. § 20341(c)(8)]

·        Note: Under 18 U.S.C. § 13, state and territory rules apply to maritime sites also.

Initial Screening Criteria: See the criteria of the relevant state or territory under 18 U.S.C. § 13. Otherwise: For federal lands, federally operated or contracted facilities where children receive care or reside, and all covered individuals, the Attorney General designates an agency (which may be non-Federal) to receive and investigate reports. SPECIAL CASES: Reports (a) received by social services or health care agencies, (b) alleging sexual abuse, serious physical injury, or life-threatening neglect of a child, are referred immediately to a law enforcement agency with authority to take emergency action to protect the child. ALL reports received are promptly, and jointly when appropriate, investigated by social services and law enforcement.  [34 U.S.C. § 20341(d)]

Reportable: On FEDERAL sites: (1) anyone for physical or mental injury, sexual abuse / exploitation; or (2) a caregiver for negligent treatment.  But see pages for the relevant state or territory in case they cover situations that the federal rules do not.  [34 U.S.C. § 20341(c)(1); 18 U.S.C. § 13] 

·        Caregivers or persons responsible for the child are implicit in 34 U.S.C. § 20341.

Perspective: The federal definition of abuse and neglect has a context in federal “CAPTA” guidelines for states and territories: (1) “at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or (2) “an act or failure to act which presents an imminent risk of serious harm.” (Emphasis added; and sexual offenses include child porn, (statutory) rape, molestation, prostitution, other exploitation, incest, and sex trafficking.) Under CAPTA, reportable persons would be anyone for sex-related abuse and at a minimum any parent or caretaker for any other form of abuse or neglect. [Federal Child Abuse Prevention & Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), amended by the CAPTA Reauthorization Act of 2010, (at Sec. 103, which is 42 U.S.C.A. § 5101 Note, sometimes cited as 42 U.S.C.A. § 5106g)]

The definitions below are for federal facilities. If something is not covered below but is by the relevant state or territory under 18 U.S.C. § 13, both rule sets apply. If it is not at a federal facility or special maritime jurisdiction, only the state or territory rule applies.

Physical Injury examples include: (a) lacerations, (b) fractured bones, (c) burns, (d) internal injuries, (e) severe bruising, or (f) serious bodily harm.  [34 U.S.C. § 20341(c)(2)] 

·        Maltreatment of a child that would be a federal crime if done to an adult is reportable to applicable authorities as a regular crime.  Examples include violent crimes: the use, attempt, or threat, of physical force against another person [here, a child] or his/her property. It includes any felony offense that, by its nature, involves a substantial risk of doing any of those acts in the course of committing the offense.  [18 U.S.C. § 16]

Endangerment: 18 U.S.C. § 13 reinforces or supplements any (coastal) state’s or territory’s law against operating a motor vehicle under the influence of a drug or alcohol with a minor in the vehicle, where minor means under age 18.  [18 U.S.C. § 13(b)]

Mental Injury harms a child's psychological or intellectual functioning.  [34 U.S.C. § 20341(c)(3)] 

(A)     Mental injury may be exhibited by (1) severe anxiety, (2) depression, (3) withdrawal or (4) outward aggressive behavior, or (5) a combination of those behaviors.

(B)     Mental injury may be demonstrated by a change in (1) behavior, (2) emotional response or (3) cognition.

Negligent Treatment means (1) failure to provide, for reasons other than poverty, (2) adequate food, clothing, shelter, or medical care (3) so as to seriously endanger the child’s physical health.  [34 U.S.C. § 20341(c)(7)]  This rule is for federal facilities; at other maritime sites, see the section for the relevant state or territory under 18 U.S.C. § 13.

Sexual Abuse includes employing, using, persuading, inducing, enticing, or coercing a child to engage or assist in: (a) sexually explicit conduct; (b) rape; (c) molestation; (d) prostitution; (e) other sexual exploitation; or (f) incest.  [34 U.S.C. § 20341(c)(4)] 

(A)     Sexually explicit conduct means actual or simulated:  [34 U.S.C. § 20341(c)(5)]

(1)     Sexual intercourse, including by genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex;

(a)      Sexual contact is intentional touching, directly or upon clothes, of anyone’s genitalia, anus, groin, breast, inner thigh, or buttocks, with intent to abuse, humiliate, harass, degrade, or arouse or gratify anyone’s sexual desire;

(2)     And acts such as: (a) bestiality; (b) masturbation; (c) lascivious exhibition of genitals or pubic area of a person or animal; or (d) sadistic or masochistic abuse.

(B)     The age of consent is 16; and statutory rape is sex with a child age 12, 13, 14, or 15 when the partner is at least 4 years older.  [18 U.S.C. § 2243] 

(C)     Sexual Exploitation means child porn or child prostitution.  [34 U.S.C. § 20341(c)(6)]

(D)     Incest is cited by federal law, but it does not define the kin included.  [cf. 18 U.S.C. § 3509(a)(8)]  Check the section of this Digest for the relevant state or territory.

(E)     Federal Maritime-specific abuse includes

(1)     Knowing, actual or attempted sexual acts, with a child age <12, or with a child age 12-16, if the perpetrator is > 4 years older [18 U.S.C. §§ 2241(c); 2243(a); 2244(c); (aggravated abuse)]

(2)     A sex act: (a) compelled by a threat to kill, seriously injure, or kidnap anyone, or (b) where the victim cannot understand the nature of the conduct or is physically incapable of declining or communicating.  [18 U.S.C. § 2242; (abuse)]

(3)     Knowing guard-with-prisoner sexual acts.  [18 U.S.C. § 2243(b) (abuse of ward)]

(4)     Knowing sexual contact without the other’s consent.  [18 U.S.C. § 2244(c)]

(F)     Child Sex Trafficking (as a federal violation) means:  [18 U.S.C. § 1591]

(1)     Knowingly in or affecting interstate or foreign commerce OR within the special maritime and territorial jurisdiction of the United States [defined below];

(2)     Recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or by any means soliciting a child; while

(3)     Knowing or reckless disregard of the fact that s/he is under age 18, OR that force, threats of force, fraud, coercion, or any combination will be used; so s/he will 

(4)     Engage in a paid sex act.

NOTE #1:   This does not require proof that anyone crossed state or national borders. And child prostitutes in the U.S. are protected regardless of whether they are U.S. citizens, U.S. residents, or foreign nationals.  [18 U.S.C. § 1591]

NOTE #2:   States & territories bar these too (see the Digest pages).  [18 U.S.C. § 7] 

NOTE #3:   Child sex trafficking includes but is not limited to transport or its for-profit arrangement for a child or adult across state or national borders for prostitution, unlawful sex, or sexual abuse of a child. [18 U.S.C. § 2423]