July 11, 2008
A cultural defense seeking to mitigate child porn sentence
As detailed in this post last month, the upcoming sentencing of ex-diplomat Gons Gutierrez Nachman on federal child porn charges has already generated controversy when the 42-year-old Nachman requested to get married before his sentencing to his 21-year-old Brazilian fiancee in the same federal courtroom where he admitted having sex with three underage girls while posted overseas. Now as detailed in this AP article, headlined "Ex-diplomat: Sex with teens OK in foreign cultures," the Nachman defense team has another notable approach to sentencing mitigation in this case:
An ex-diplomat convicted of having sex with teenage girls in the Congo and Brazil and taping the encounters is asking a judge for leniency, claiming that cultural differences in those countries make sex with girls more acceptable....
The judge has agreed to delay Nachman's sentencing until Aug. 22 so that he can be examined by noted forensic psychologist Stanton Samenow. Defense attorney Stephen Stine said in court papers that a psychological examination might show that cultural differences led Nachman to believe that sexual contact with teenage girls was acceptable, and that should have an impact on what kind of sentence he receives.
Prosecutors rejected the notion that Nachman's victims somehow deserve less protection because they were not born or raised in America. "Children in the Democratic Republic of the Congo and Brazil have the same inherent value as children in the United States," prosecutor Ron Walutes wrote in court papers. Prosecutors are asking for a 20-year prison term, the maximum he could receive under the law and much higher than the term of nine to 11 years called for under federal sentencing guidelines.
In a letter Nachman wrote from jail to the director of the Foreign Service pleading with him to intervene and get the charges dropped, Nachman explained the cultural differences as he sees them. "In the Congo, women develop quickly, both physically and emotionally, due to the substantial responsibility society places on them from early childhood," Nachman wrote. "In Kinshasa, the vast majority of teenagers are sexually active with men that are substantially older.... Their main concern is marrying young girls to men with financial stability, a concern dating thousands of years and cutting across cultural lines."
July 11, 2008 at 08:23 AM | Permalink
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While not strictly a "cultural" issue, I think it bears noting that, according to the UK Times, the age of consent in Congo is 14: http://www.timesonline.co.uk/tol/news/world/article405213.ece?token=null&offset=12&page=2. If the sex itself was legal in the jurisdiction where it occurred, it strikes me as pretty silly to file criminal charges against Nachman for recording it (assuming the recording was for personal use rather than distribution). I feel the same way about the application of child porn laws to recording sexual activity with under-18 individuals in the United States where the individual in question is above the age of consent in the state where the activity takes place.
Posted by: Anon | Jul 11, 2008 12:05:31 PM
The problem with his defense is that he's being tried in an American court. If citizens of the Congo want the age of consent to be 14 or 10 or whatever, they have that power. They can make up their own minds whether to charge him with a crime. But as Americans, we have the power to say to our fellow Americans that you will be judged on your behavior by our laws.
I do agree that this can create a difficult situation. On one hand we tell people that, "while in Rome, do as the Romans" and then on the other hand when someone like this man does that we get angry and say they are violating our own cultural norms. So I have some sympathy for his position and I don't think his plea for leniency is wacky. But it would take a brave judge to actually show such sympathy because it would create such a media storm.
Posted by: Daniel | Jul 11, 2008 1:35:10 PM
"But as Americans, we have the power to say to our fellow Americans that you will be judged on your behavior by our laws."
Nachman isn't being charged under American statutory rape law; unless there's some law that diplomats have to abide by the laws of the United States in addition to the laws of the host country while living abroad, which would be absurd, he couldn't be. And my point above isn't dependent on the fact that Congo is a foreign country-- as I stated in my last sentence it seems equally silly to me to charge someone with creating child porn for recording a legal, consensual encounter with someone above the age of consent in the local jurisdiction where the encounter takes place in the United States. So this is no different than if Nachman had videotaped a consensual sexual encounter with a 16-year-old in a state in which the age of consent is 16; in both cases it seems abusive to me to bring the child porn laws into play where the underlying encounter was perfectly legal and the recording is intended only for personal use. (Distribution of that recording, of course, is a different matter.)
Posted by: Anon @ 12:05 | Jul 11, 2008 2:24:25 PM
"...Diplomats have to abide by the laws of the United States in addition to the laws of the host country while living abroad, which would be absurd.."
Actually, when it comes to sex crimes there is a law that covers not just diplomats but *all* Americans. It's designed to combat "sexual tourism". And while you may think the law is absurd, it is the law. You can read more about the laws at the link below.
Posted by: Daniel | Jul 11, 2008 5:19:01 PM
Even if he did not commit any crimes in those foreign countries, he was on an American diplomatic mission and subject to American law. He misused his official position, taking advantage of the situation, and recorded his encounters. It is unbecoming an American diplomat to engage in such behavior with minors. I read the history of the case and it seems that the sexual tapes with minors occured in his US embassy housing which might make it US jurisdication as well under US criminal law.
Posted by: Jason | Jul 12, 2008 9:30:11 PM
The "sex crimes abroad" deal only applies because of the government's powers to oversee foreign commerce with the USA. Thus, if you're not engaging in any foreign commerce, it should not be illegal, i.e. you're not hiring a prostitute or engaging in child sex tourism.
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The Mobilization for Justice and Peace in the D.R. Congo (MJPC) today called on the International Criminal Court (ICC) to issue an arrest warrant against laurent Nkunda accused of multiple war crimes and crimes against humanity which are well documented by various human right organzations including Amnesty International and Human Rights Watch. Laurent Nkunda, former leader of the National Congress for the Defence of the People (CNDP) armed group, was arrested on 22 January and is detained at an undisclosed location in Rwanda.
How long would it take for the chief prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo to decide whether or not to issue an arrest warrant against Nkunda? echoed Makuba Sekombo, Director of Community Affairs of MJPC. The ICC Prosecutor has been investigating war crimes and crimes against humanity committed in the Democratic Republic of the Congo (DRC) since since 2004, but the ICC reportdely opened an investigation into alleged war crimes committed in the DRC since 1 July 2002.
Nkunda has been repeatedly implicated in numerous serious war crimes and crimes against humanity since 2002. In September 2005, the Congolese government issued an arrest warrant for Nkunda, accusing him of numerous war crimes and crimes against human rights. Human Rights Watch, for example, which has been calling for his arrest for war crimes and crimes against humanity since February 2006 and has documented summary executions, torture and rape committed by soldiers under the command of Nkunda in Bukavu in 2004 and in Kisangani in 2002. Also armed groups loyal to warlord Nkunda have been repeatedly accused of using rape as a weapon of war and the recruitment of child soldiers, some as young as 12 after the abduction from their homes. In November 2008, the UN mission in the country (MONUC), Humn Rights Watch many other organizations accused Nkunda of war crimes in November 2008; an estimated 150 people were killed innoncently in the town of Kiwanja by the troups loyal to Nkunda.
The MJPC deplores the refusal by the Government of Rwanda to hand over Nkunda for trial. "How shocking that Rwanda which has been receiving assistance from the International community to arrest genocide suspects and hand them over to the ICTR or to Rwanda would not allow for the extradition of a war criminal accused of massacring civilians, sexual violence, abduction of civilians, including children forcibly recruited as fighters and then used to attack civilian communities" said Mr. Sekombo.
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