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Rule of Construction: If a Statute is Ambiguous, the Sex Offender Loses

Last month, the Supreme Court ruled against a defendant’s appeal of his child pornography sentence in the Eastern District of New York, upholding a ten-year mandatory minimum based on an obliquely-worded statutory enhancement found in 18 U.S.C. Sec. 2252(b)(2). The mandatory minimum applies only if the defendant has previously been convicted of a crime related to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The defendant had been convicted of sex abuse of his 53-year-old girlfriend eleven years earlier. The question was, does sex abuse against an adult trigger the minimum? Judge Sterling Johnson held that it did and the Supreme Court agreed, reasoning that the “rule of the last antecedent” settled the matter.

Here’s how it works. In the sentence in quotes above, the defense argued, the phrase “involving a minor or ward” seems to apply to the whole sentence, so that the three different crimes — aggravated sexual abuse, sexual abuse, and abusive sexual conduct — only ought to trigger the ten-year minimum if they involve a minor or a ward. Makes sense right? Child pornography is about abuse of children, not sexual abuse generally which in New York can be very broad, applying to all non-consensual sexual contact and sometimes not even requiring sex offender registration if no child is involved. Why would sex abuse increase the sentence by ten years unless it was sex abuse against a child?

Not so fast, said the Supreme Court: “the phrase ‘involving a minor or ward’ modifies only the phrase that it immediately follows: ‘abusive sexual conduct.’ … [T]he phrases ‘aggravated sexual abuse’ and ‘sexual abuse’ are not so constrained.” To come to this conclusion, six justices dusted off the “timeworn textual canon” that the last phrase only modifies its immediate predecessor in a statute.

A two-justice dissent disagreed, arguing that the rule of the last antecedent does not really apply where, as here, the words to be interpreted make up a single integrated list. To support its approach, the dissent gave commonsense examples that seem overwhelmingly, well, ordinary: “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client ‘a house, condo, or apartment in New York.’ Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?”

Both the majority and the dissent invoked the scholarship of the late Justice Antonin Scalia, but the 6-2 post-Scalia majority carried the day. What’s really going on? Which canon is the strongest? We suggest a third one, that the majority slavishly follows but is unwilling to acknowledge. When there is any doubt at all, a person who has been convicted of a child pornography offense loses.

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