                               Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                          NEWS RELEASE #036


FROM: CLERK OF SUPREME COURT OF LOUISIANA


The Opinions handed down on the 29th day of June, 2016, are as follows:



BY CRICHTON, J.:


2015-KA-2163       STATE OF LOUISIANA v. DOMINICK SIMS (Parish of E. Baton Rouge)
                   (Trafficking of Children for Sexual Purposes)

                   For the reasons set forth herein, we reverse and vacate the
                   judgment of the district court and find that R.S. 14:46.3(C)(2)
                   is constitutional, specifically finding that the provisions of
                   R.S. 14:46.3(C)(2) are clear and unambiguous and do not conflict
                   with R.S. 14:46.3(A)(1). The matter is remanded to the district
                   court for further proceedings consistent with this opinion.
                   REVERSED AND REMANDED. REVERSED.

                   HUGHES, J., dissents with reasons.




                                     Page 1 of 1
06/29/2016


                     SUPREME COURT OF LOUISIANA

                                No. 2015-KA-2163

                             STATE OF LOUISIANA

                                     VERSUS

                                DOMINICK SIMS

                         ON APPEAL
        FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
            FOR THE PARISH OF EAST BATON ROUGE


CRICHTON, Justice.

      This matter arises from the defendant’s constitutional challenge to R.S.

14:46.3, a statute which makes illegal the trafficking of children for sexual

purposes. The defendant challenges R.S. 14:46.3(C)(2), which provides that a

defendant’s lack of knowledge of a victim’s age shall not be a defense to charges

under this statute. The case is now on direct review pursuant to La. Const. art. V, §

5(D), because the trial court ruled unconstitutional R.S. 14:46.3(C)(2). For the

reasons set forth herein, we reverse and vacate the judgment of the district court

and conclude that R.S. 14:46.3 is constitutional, specifically finding that the

provisions of R.S. 14:46.3(C)(2) are clear and unambiguous and do not conflict

with R.S. 14:46.3(A)(1).

                                 BACKGROUND

      In March 2014, the state charged defendant Dominick Sims by bill of

information with one felony count of trafficking of children for sexual purposes, in

violation of R.S. 14:46.3.   During the course of pretrial proceedings, defendant

filed a motion to quash, challenging the constitutionality of R.S. 14:46.3.

Defendant asserted that the statute is contradictory, vague, ambiguous, and

indefinite so as to deny her due process and violate her right to be informed of the

                                         1
nature and cause of the charges against her, because, according to defendant, it

criminalizes the knowing trafficking of juveniles for sexual purposes while

simultaneously precluding a defendant from asserting lack of knowledge of the

victim’s age as a defense.1

       The trial court granted the motion to quash and declared R.S. 14:46.3

unconstitutional, stating, in pertinent part:

       [T]he court finds [] subpart C(2) to be unconstitutional. It is clear that
       these two sections are contradictory. How can the State prohibit a
       defendant from knowingly committing a criminal act and, at the same
       time, not be required to prove defendant’s knowledge of an essential
       element of the crime – that being the age of the victim? These two
       sections are logically antagonistic and irreconcilable.

       This finding however does not mean that the entire statute should be
       declared invalid. Louisiana law recognizes that, unless specifically
       provided otherwise, each provision of an act or law is severable. . . .
       Consequently, the court only strikes subsection C(2) as
       unconstitutional. No other parts of this statute shall be affected by
       this ruling.

       The state, represented by the Attorney General 2, now appeals that ruling to

this Court, arguing that the district court erred when it found R.S. 14:46.3(C)(2)

unconstitutional. The inquiry is limited to the grounds on which the district court

based its declaration of unconstitutionality. See State v. Verret, 87 So. 2d 297, 298

(1956) (“[O]ur inquiry is limited to the specific issue on which the declaration of

unconstitutionality was predicated.”). Accordingly, the issue herein is whether the

district court was correct in declaring that R.S. 14:46.3(C)(2)’s prohibition on




1
  Defendant’s motion to quash referred to the Fifth Amendment right to due process and the
Sixth Amendment right to be informed of the nature of the accusation. However, defendant
appears to have confused the origins of her rights to due process in these state proceedings,
which derive from the Fourteenth Amendment to the United States Constitution, not the Fifth or
Sixth Amendments. See McDonald v. City of Chicago, 561 U.S. 742, 759 (2010) (explaining
origins of due process rights). The distinction is immaterial for our purposes, given that the
Fourteenth Amendment due process clause fully incorporates the rights contained in the first
eight amendments. Id. at 763.
2
  The Office of the Attorney General has a discretionary right to respond to a constitutional
challenge and represent the state with respect to that challenge. La. R.S. 49:257(C); La. R.S.
13:4448; La. C.Cr.P. art. 62(B).

                                              2
using lack of knowledge of the victim’s age as a defense to prosecution

irreconcilably conflicts with R.S. 14:46.3(A)(1)’s knowledge requirement.

                                  RELEVANT LAW

       The constitutional guarantee that an accused shall be informed of the nature

of the accusation against him requires that penal statutes describe unlawful conduct

with sufficient particularity and clarity that ordinary persons of reasonable

intelligence are capable of discerning their meaning and conforming their conduct

thereto. U.S. Const. amend. XIV, § 1; La. Const. art. I, §§ 2, 13. See, e.g., State v.

Azar, 539 So. 2d 1222, 1224 (La. 1989), cert denied, 493 U.S. 823 (1989).

Statutes are presumed constitutional and should be upheld “whenever possible.”

State v. Griffin, 495 So. 2d 1306, 1308 (La. 1986).                  Moreover, a facial

constitutional challenge – such as the challenge made by the defendant herein –

seeks more drastic relief than an as-applied challenge. LaPointe v. Vermilion

Parish School Bd., 15-0432, p.10 (La. 6/30/15), 173 So. 3d 1152, 1159-60. The

movant in a facial challenge therefore bears an especially heavy burden and must

establish that “no set of circumstances exists under which the statute would be

valid, that is, that the law is unconstitutional in all its applications.” Id.

       With respect to the criminal law, the legislature has sole authority to define

criminal conduct and provide penalties for such conduct. La. Const. art. III, § 1;

State v. Dorthey, 623 So. 2d 1276, 1278 (La. 1993); see also R.S. 14:8(2); R.S.

14:11. In reviewing and interpreting Louisiana criminal statutes, the Court’s aim is

to “promote justice and to effect the objects of the law” by giving all provisions “a

genuine construction, according to the fair import of their words, taken in their

usual sense, in connection with the context, and with reference to the purpose of

the provision.” R.S. 14:3. When this Court reviews constitutional challenges to




                                            3
statutes, the standard of review is de novo. State v. Eberhardt, 13-2306 (La.

7/01/14), 145 So. 3d 377, 380. 3

       Although strict liability criminal offenses are generally disfavored, this

Court has recognized a legislature’s authority to exclude the element of knowledge

or intent in defining a criminal offense. See State v. Granier, 99-3511, pp. 3-4 (La.

7/6/00), 765 So. 2d 998, 1000-01 (“While offenses that dispose of a scienter

requirement are not favored, the United States Supreme Court has noted that the

legislatures’ authority to define a criminal offense includes the power to ‘exclude

elements of knowledge and diligence from its definition.’”) (quoting Lambert v.

California, 355 U.S. 225, 228 (1958)). Courts have often dispensed with the

knowledge requirement in cases where the underlying conduct, irrespective of

knowledge of any particular characteristic of the victim, is illegal. See, e.g.,

Liparota v. United States, 471 U.S. 419, 425 (1985) (it is appropriate to interpret

statutes in a way that does not criminalize “a broad range of apparently innocent

conduct”).4

       More specifically, deviation from the general preference for a mens rea

requirement is not unusual in the realm of offenses involving juveniles. See, e.g.,

Morissette v. United States, 342 U.S. 246, 251 n.8 (1952) (“Exceptions [to mens

rea] came to include sex offenses, such as rape, in which the victim's actual age

was determinative despite defendant’s reasonable belief that the girl had reached

age of consent.”).         Indeed, the United States Supreme Court has expressly


3
  The Court has articulated the means of challenging the constitutionality of a statute as three-
pronged: First, a party must raise the claim in the district court; second, the unconstitutionality of
the statute must be specially pleaded; and third, the grounds must be particularized. State v.
Hatton, 07-2377, p. 14-15 (La. 7/1/08), 985 So. 2d 709, 719. Because defendant specifically
pleaded the unconstitutionality of R.S. 14:46.3 in the district court and particularized grounds in
her motion to quash and at the hearing on the motion, the issue is squarely before the Court.
4
  See also generally Heather C. Gregorio, More Than “Johns,” Less Than Traffickers: In Search
of Just and Proportional Sanctions for Buyers of Sex with Trafficking Victims, 90 N.Y.U. L. Rev.
626, 668 (2015) (noting, inter alia, that strict liability offenses for crimes involving juvenile
victims of trafficking are appropriate because the john “already knows that he is committing an
illegal act by soliciting prostitution”).

                                                  4
recognized that “such crimes as statutory rape and public welfare offenses” often

dispense with mens rea requirements. Dean v. United States, 556 U.S. 568, 580

(2009). See also United States v. Copeland, -- F. 3d -- (5th Cir. 5/2/16), 2016 WL

1741616, at *3 (recognizing that reducing the government’s burden of proof in

crimes involving juvenile victims “makes sense as Congressional choice not only

because of the severe victimhood of children in these offenses, as well as the

impracticality of proving knowledge of a minor’s age, but also because the offense

separately still requires the Government to prove beyond a reasonable doubt a

defendant’s knowing involvement in a commercial sex act.”). Consistent with

these Supreme Court holdings, this Court previously upheld statutes without mens

rea requirements in cases involving the law prohibiting carnal knowledge of a

juvenile, Granier, 99-3511, 765 So. 2d at 1001, the crime of contributing to the

delinquency of a juvenile, State v. Elias, 357 So. 2d 275, 278 (La. 1978), overruled

on other grounds by State v. Bosworth, 373 So. 2d 152 (La. 1979), and a law

prohibiting possession with intent to distribute narcotics within 1,000 feet of a

school, State v. Brown, 94-1290, pp.7-8 (La. 1/17/95), 648 So. 2d 872, 876-78.

                                    DISCUSSION

      With these broad principles in mind, we turn to the language of the statute at

issue here. Revised Statute 1446.3, entitled “Trafficking of children for sexual

purposes,” specifically provides:

         A. It shall be unlawful:

             (1) For any person to knowingly recruit, harbor, transport,
                 provide, sell, purchase, receive, isolate, entice, obtain, or
                 maintain the use of a person under the age of eighteen years
                 for the purpose of engaging in commercial sexual activity….

         C. . . .

             (2) Lack of knowledge of the victim's age shall not be a defense
             to a prosecution pursuant to the provisions of this Section.



                                         5
R.S. 14:46.3 (emphasis added). 5

       The defendant argues that R.S. 14:46.3(C)(2) is unconstitutionally

contradictory, vague, ambiguous, and indefinite so as to deny her due process

rights and the right to be informed of the nature of the accusation against her. The

heart of this argument rests with the meaning of the word “knowingly” in R.S.

14:46.3(A)(1), which, according to the defendant, requires proof of intent for each

element of the crime, including the victim’s age.              As a result, defendant argues,

the provision in R.S. 14:46.3(C)(2) precluding the use of lack of knowledge as a

defense renders the entire statute vague. In other words, she asserts that R.S.

14:46.3(C)(2) makes the “recruitment, harboring, transporting, providing, selling,

purchasing, receiving, isolating, enticing, obtaining, or maintaining” the use of a

person for the purpose of engaging in commercial sexual activity a strict liability

crime, which conflicts with the mens rea requirement of R.S. 14:46.3(A)(1).

       We first find that this statute is not at all unconstitutionally contradictory,

vague, ambiguous, or indefinite. R.S. 14:46.3(C)(2) could not be more clear:

“Lack of knowledge of the victim’s age shall not be a defense to a prosecution

pursuant to the provisions of this Section.” This sentence plainly modifies the term

“knowingly” in R.S. 14:46.3(A)(1), removing any doubt regarding the requirement

of knowledge of the victim’s age. To explain this result, we begin with the

familiar canon of statutory construction that the starting point for interpreting a

statute is the language of the statute itself.          See, e.g., State v. Fussell, 06-2595,

p.13 (La. 1/16/08), 974 So. 2d 1223, 1231.                     A central tenet of statutory

construction is that we read the statute as a whole, to effectuate its purpose. Id.

       In discerning precisely how “knowingly” applies to the instant statute, the

Court should interpret the language “as we normally speak it” and attribute to the

5
  R.S. 14:46.3(G) states: “If any Subsection, Paragraph, Subparagraph, Item, sentence, clause,
phrase, or word of this Section is for any reason held to be invalid, unlawful, or unconstitutional,
such decision shall not affect the validity of the remaining portions of this Section.”

                                                 6
words their “everyday meaning.” Watson v. United States, 552 U.S. 74, 79 (2007).

See also R.S. 1:3 (“Words and phrases shall be read with their context and shall be

construed according to the common and approved usage of the language.”); R.S.

14:3 (criminal statutes must be given “a genuine construction, according to the fair

import of their words, taken in their usual sense, in connection with the context”).

The word “knowingly,” as used in R.S. 14:46.3(A)(1), is an adverb, and common

usage makes clear that an adverb modifies the verbs that come after it – “recruit,

harbor, transport, provide, sell, purchase, receive, isolate, entice, obtain, or

maintain the use of a person . . . .”        However, “knowingly” does not also modify

the dependent clause “under the age of eighteen years of age” that comes after, and

modifies, the noun “person.” See, e.g., United States v. Jones, 471 F.3d 535, 539

(4th Cir. 2006) (“Adverbs generally modify verbs, and the thought that they would

typically modify the infinite hereafters of statutory sentences would cause

grammarians to recoil.”) (Wilkinson, J.).

       Our interpretation is in accord with federal appellate court interpretations of

18 U.S.C. § 2423, a statute that criminalizes the transportation of minors across

state lines for the purpose of engaging in prostitution or any sexual activity for

which any person can be charged with a criminal offense.6 The statute states, in

pertinent part: “A person who knowingly transports an individual who has not

attained the age of 18 years in interstate or foreign commerce . . ., with intent that

the individual engage in prostitution, or in any sexual activity for which any person

can be charged with a criminal offense. . . .” 18 U.S.C. § 2423(a) (emphasis

added). Federal appellate courts have found that 18 U.S.C. § 2423 does not require

proof that the defendant knew the victim was under 18, despite the use of the term

“knowingly.” See, e.g., United States v. Taylor, 239 F.3d 994, 996-97 (9th Cir.

6
  When interpreting state laws, it is appropriate to consider interpretations of similar federal
statutes, though such interpretations are, of course, not binding on this Court. See, e.g., King v.
Phelps Dunbar L.L.P., 98-1805, p.7 (La. 6/4/99), 743 So. 2d 181, 187.

                                                7
2001) (“A more natural reading of the statute . . . is that the requirement of

knowledge applies to the defendant’s conduct of transporting the person rather than

to the age of the person transported.”); United States v. Cox, 577 F.3d 833, 837

(7th Cir. 2009) (“The only reasonable reading . . . is one under which the adverb

‘knowingly’ acts only on the verb ‘transports’ and not on the noun ‘individual’”);

Jones, 471 F.3d at 539 (“It is clear from the grammatical structure of § 2423(a) that

the adverb ‘knowingly’ modifies the verb ‘transports.’”). These federal courts

have made these holdings even though the federal statute does not contain a

provision analogous to R.S. 14:46.3(C)(2), which makes the Louisiana statute

clearer than 18 U.S.C. § 2423. 7 Moreover, though the United States Supreme

Court does not appear to have considered this exact issue yet, in a concurring

opinion in Flores-Figueroa v. United States, 556 U.S. 646 (2009), Justice Alito

referred to 18 U.S.C. § 2423(a) as an example of a statute in which the context may

rebut a presumption that a specified mens rea applies to all elements of the offense.

Id. at 661 (Alito, J., concurring) (remarking that the federal courts of appeal “have

uniformly held that a defendant need not know the victim’s age to be guilty under”

18 U.S.C. § 2423(a)).8

       The defendant also argues that R.S. 14:46.3(C)(2) is unconstitutional solely

because it is a strict liability statute, i.e., it permits the state to obtain a conviction

without proving the defendant actually knew the victim was a minor. But, as set

7
  This interpretation is also in accord with federal court interpretations of 18 U.S.C. § 1591,
which prohibits the sex trafficking of children by force, fraud, or coercion. Though that statute
does not have a “lack of knowledge” as a defense subsection like the Louisiana corollary, it does
provide that the government “need not prove” knowledge of the victim’s age where the
defendant “had a reasonable opportunity to observe the person.” 18 U.S.C. § 1591(c). This has
been held to “give force to the provision’s obvious goal – to reduce the government’s burden” of
proof. See United States v. Copeland, -- F. 3d -- (5th Cir. 5/2/16), 2016 WL 1741616, at *3.
Given that the Louisiana law goes even further – not requiring “reasonable opportunity to
observe” at all – the Louisiana statute plainly intends to reduce the state’s burden of proof when
prosecuting child trafficking defendants.
8
  Indeed, federal courts have “consistently” upheld laws in which Congress has imposed strict
liability with regard to a victim’s age. Copeland, -- F. 3d -- (5th Cir. 5/2/16), 2016 WL 1741616,
at *3-4 (citing 18 U.S.C. § 2241(d), 18 U.S.C. § 2243(d), 18 U.S.C. § 2251(a), and 18 U.S.C. §
2323(a) and related cases).

                                                8
forth above, neither the jurisprudence of this Court nor the United States Supreme

Court requires scienter as an element of a crime, particularly where the underlying

conduct would be illegal even if the strict liability element was eliminated. See,

e.g., Granier, 99-3511, pp. 3-4, 765 So. 2d at 1000-01 (noting that legislatures

have the power to “exclude elements of knowledge and diligence” from a criminal

offense); Liparota, 471 U.S. at 425. To the extent the defendant makes a separate

constitutional argument solely because this is a strict liability statute, we do not

agree with this interpretation and expressly find that statutes without scienter

requirements, though “not favored,” are not by their very nature constitutionally

offensive. Granier, 99-3511, pp. 3-4, 765 So. 2d at 1000-01.

      To be clear, the plain language of the statute indicates that it is not

unconstitutionally contradictory, vague, ambiguous, or indefinite. And, as noted

above, this Court’s prior jurisprudence and jurisprudence from the United States

Supreme Court have instructed that strict liability offenses are not per se

unconstitutional – particularly where those offenses involve juveniles and address

conduct that is illegal notwithstanding the victim’s age.      Furthermore, and to

alleviate any doubt, we also find that our interpretation is in accord with the

purpose of the statute. See Fussell, 06-2595, p.13, 974 So. 2d at 1231 (directing

courts to read statutes to effectuate their purpose).

      An evaluation of the language and purpose of the statute is definitive in

ascertaining its meaning; a review of the legislative history of an act may be a

“helpful guide” in ascertaining that purpose. State v. Chinn, 11-2043, p.8 (La.

2/10/12), 92 So. 3d 324, 329 (citation omitted). Speaking about the distinction

between R.S. 14:46.3 and Louisiana’s broader human trafficking law, R.S. 14:46.2,

which is applicable to both juvenile and adult victims, Representative Neil

Abramson (the bill’s sponsor) indicated that R.S. 14:46.3 was intended to remove

the state’s burden of proving that the child victim had been coerced or defrauded.

                                           9
See La. 2009 Reg. Session House Committee on Admin. Of Crim. Justice, Act 375,

HB 564 (5/5/09) (noting that the statute “removes any defenses that the perpetrator

didn’t know how old the child was, which is consistent with all of our other laws

with respect to crimes against juveniles.”), available at http://house.louisiana.

gov/H_Video/2009/May2009.htm. The treatise writers are in accord. See Cheney

C. Joseph. P. Raymond Lamonica, 17 La. Civ. L. Treatise, Crim. Jury Instructions

§ 10:76 (3d ed. Dec. 2015) (“Lack of knowledge of the age of the victim is

specifically rejected as a defense. Thus, knowledge of the sexual purpose of the

trafficking, and not of the age of the victims, would likely be sufficient to

constitute the offense.”). In contrast to these directives from the legislature, the

defendant’s interpretation of the term “knowingly” would “strip the statute of its

clear purpose: the protection of minors. . . . Imposing such a mens rea requirement

would be tantamount to permitting adults to prey upon minors so long as they

cultivate ignorance of their victims’ age.”    Jones, 471 F.3d at 540 (“It would be

nonsensical to require proof of knowledge of the victim’s age when the statute

exists to provide special protection for all minors, including, if not especially, those

who could too easily be mistaken for adults.”).

      Finally, in granting the defendant’s motion, the district court erroneously

relied upon this Court’s decision in State v. Cinel, 94-0942 (La. 11/30/94), 646 So.

2d 309. Cinel, however, is distinguishable, because it involves First Amendment

considerations that are not present here. In Cinel, this Court upheld a district court

ruling striking the portion of the child pornography statute, R.S. 14:81.1, that, like

subpart (C)(2) here, precluded the defendant from asserting lack of knowledge of

the victim’s age as a defense. Cinel, 94-0942, p.1, 646 So. 2d at 311. The Court

found that, notwithstanding the considerable leeway afforded to the state to

prohibit child pornography, First Amendment considerations preclude the state

from dispensing with the scienter element regarding the performer’s age. Id., 94-

                                          10
0942, p.11, 646 So. 2d at 317. See Granier, 99-3511, p.5, 765 So. 2d at 1001

(distinguishing Cinel). Cinel is also in accord with United States v. X-Citement

Video, Inc., 513 U.S. 64, 72 (1994), in which the Supreme Court held that

knowledge of the age of the performer for purposes of a child pornography charge

was an “elemental fact” to which the scienter requirement must be applied, because

non-obscene, sexually explicit materials involving adults are protected by the First

Amendment. Id. at 72. In other words, absent the presence of the underage

performers, the conduct itself is not illegal. The district court therefore erred when

it found Cinel controlling absent any First Amendment considerations and given

that the law does not criminalize conduct which would otherwise be legal but-for

the victim’s age.

      A review of the plain language and purpose of R.S. 14:46.3 demonstrates

that the district court erred when it declared subpart (C)(2) unconstitutional. That

R.S. 14:46.3, like other laws enacted to protect children, is intended to criminalize

the knowing sex trafficking of juveniles, regardless of the defendant’s knowledge

of the victim’s minority status, is apparent from the statute’s language, structure,

and history. Any ambiguity in R.S. 14:46.3(A)(1) can be eliminated by reading it

in conjunction with R.S. 14:46.3(C)(2)’s clear directive that lack of knowledge of

the victim’s age is not a defense.

                                     CONCLUSION

      For the reasons set forth herein, we reverse and vacate the judgment of the

district court and find that R.S. 14:46.3(C)(2) is constitutional, specifically finding

that the provisions of R.S. 14:46.3(C)(2) are clear and unambiguous and do not

conflict with R.S. 14:46.3(A)(1). The matter is remanded to the district court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.



                                          11
06/29/2016



                        SUPREME COURT OF LOUISIANA

                                   No. 2015-KA-2163

                                STATE OF LOUISIANA

                                         VERSUS

                                   DOMINICK SIMS

                            ON APPEAL
           FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
               FOR THE PARISH OF EAST BATON ROUGE



Hughes, J., dissenting.

         I respectfully dissent. I believe the trial court was correct. Lewis Carroll will

smile.




                                             1
