DENVER (CN) – The 10th Circuit Court of Appeals Wednesday upheld the criminal conviction of a missionary worker who had sex with Kenyan orphans, but not without raising concerns about applications of the Foreign Commerce Clause.
Matthew Durham was sentenced in 2015 to 40 years in prison after a jury in federal court in Oklahoma found him guilty of having sex with four children at the Upendo Children’s Home in Nairobi, Kenya. He was 19 years old at the time and the children’s ages ranged from 6 to 14.
He appealed on eight counts, one of which divided the panel; the constitutionality of applying the Foreign Commerce Clause for “noncommercial illicit sexual activity.”
In the 106-page opinion, Circuit Judge Scott Matheson Jr. rejected Durham’s challenge.
"Congress has worked to combat sex trafficking—particularly of minors— for over a century, developing a statutory scheme targeting sexual exploitation for both commercial and noncommercial purposes,” Matheson wrote, adding that the Foreign Commerce Clause “does not require the distinction between economic and noneconomic activity.”
This was a point on which Circuit Judge Harris Hartz differed.
Although Durham's "offenses were horrific," Hartz offered a 49-page dissenting opinion on the application of the Foreign Commerce Clause.
Because "there is no evidence in this case of any commercial sexual activity, I fail to see how conduct like that of defendant has any impact on commercial sexual activity, and no one has presented to this court any evidence of such a connection,” Hartz wrote.
"In my view, the Foreign Commerce Clause does not authorize Congress to prohibit noncommercial sexual assaults, no matter how heinous, committed by Americans abroad who formed the intent to commit the acts after arriving abroad,” Hartz wrote, concerned that if taken too far, the law could be used to “criminalize any conduct by Americans abroad.”
In Hartz’s opinion, Durham’s legal team found hope of raising the question to the U.S. Supreme Court.
“The dissent in … (a) compelling opinion, states the obvious: there is a limit on the reach of the Foreign Commerce Clause of the Constitution. The dissent cites reasonable judges across the nation who disagree on whether the act is constitutional,” said Durham’s attorney Stephen Jones of Oklahoma City firm Jones, Otjen, Davis & Bloyd. “He invites us to put the question of constitutionality squarely before the Supreme Court for its judgment. We will do exactly that.”
The prosecuting team does not see a larger issue of constitutional rights embedded in the case.
“The Kenyan orphans were brutally raped by a young man whose primary defense was to make personal attacks on the founder of the orphanage and the prosecutors. All of these attacks were not only without merit, but blatantly false,” said prosecuting attorney Robert Gifford. “The evidence was overwhelming, and despite the continued false allegations by the defense, justice was served.”
“What made this unusual is that this rapist was the grandson of a prominent and politically connected local judge who then used the Oklahoma County District Attorney’s Office to assist in the defense,” Gifford added, referring to Oklahoma District Judge Bill Graves, who is up for reelection this year.
Circuit Judge Nancy Moritz also sat on the panel.
While Durham also found his 40-year sentence "substantively unreasonable," Matheson wrote that the sentence was correctly calculated based on his age and the nature of the crime—a point on which the panel seemed to agree.
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