6th Cir. Pattern Crim. Jury Instr. 16.11

(1) Count ____ of the indictment charges the defendant with traveling with intent to engage in illicit sexual conduct. For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First: That the defendant traveled [in interstate commerce] [into the United States].

(B) Second: That the defendant did so with intent to engage in illicit sexual conduct.

(2) Now I will give you more detailed instructions on some of these terms.

(A) The term “illicit sexual conduct” includes

[(1) a sexual act with a person under 18 years of age that would consist of [describe crime from 18 U.S.C. §§ 2241, 2242, 2243, or 2244 alleged in the indictment].]

or

[(2) any commercial sex act with a person under 18 years of age. A commercial sex act is any sex act for which anything of value is given to or received by any person.]

[(B) The term “in interstate commerce” means the defendant traveled across a state line.]

[(3) The government is not required to prove that the defendant took any steps to entice, coerce, or persuade the person under 18 years of age to engage in sexual conduct.]

(4) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

Use Notes

Paragraph (1)(A) covers two options on the defendant’s travel, but the statute includes as well a third option stating that the defendant is a “United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce.” The instruction omits this third option because it arises infrequently, but the court should include it if appropriate in the case.

Paragraph (2)(A)(1), which provides the first definition for illicit sexual conduct, uses the term “a sexual act.” The instruction does not define this term, but if the issue is raised in the case, the court should use the definition in 18 U.S.C. § 2246(2).

Brackets indicate options for the court. Bracketed italics are notes to the court.

Committee Commentary

(current through May 29, 2026)

This instruction covers the offense of traveling with intent to engage in illicit sexual conduct. That offense is defined in 18 U.S.C. § 2423(b), which provides:

(b) Travel with intent to engage in illicit sexual conduct. A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

The two elements of the crime identified in paragraph (1) are based on the statute, and they adopt the court’s approach in United States v. DeCarlo, 434 F.3d 447, 456 (6th Cir. 2006). In DeCarlo, the court described the crime using two elements and a multi-part definition of illicit sexual conduct.

In paragraph (1)(A), the language requiring the defendant to travel “in interstate commerce” or “into the United States” is based on the statute, § 2423(b), quoted above. The statute includes as a third option that the defendant is a “United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce.” The instruction omits this third option because it arises infrequently, but the court should include it if the issue is raised in the case.

In the introductory language of paragraph (1) and in paragraph (1)(B), the instruction uses the phrase “with intent to” rather than the statutory phrase “for the purpose of” based on United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011) (explaining that § 2423(b) requires “an intent to” engage in sexual conduct) and DeCarlo, supra at 456 (explaining that under § 2423(b), the government had to prove that the defendant “intended to engage” in illicit sexual conduct).

In paragraph (2)(A), the two definitions of illicit sexual conduct are drawn from § 2423(f), which provides:

(f) Definition. As used in this section, the term “illicit sexual conduct” means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.

The options for defining illicit sexual conduct in paragraphs (2)(A)(1) and (2)(A)(2) are based on subsections (f)(1) and (f)(2), respectively.

For the first definition of illicit sexual conduct, paragraph (2)(A)(1) uses the term “sexual act.” As quoted above, § 2423(f)(1) refers to the definition of “sexual act” in § 2246. Subsection 2246(2) provides:

(2) the term "sexual act" means--

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person . . . .

The instruction does not include these definitions of sexual act for the usual case, but the court should include a definition if the issue is raised by the facts.

Subsection 2423(f)(1) provides that to qualify as illicit sexual conduct, the sexual act must be an act “that would be in violation of chapter 109A . . . .” Chapter 109A Sexual Abuse includes four statutes defining offenses, 18 U.S.C. §§ 2241, 2242, 2243, and 2244. In paragraph (2)(A)(1), the instruction indicates in an italicized note to the court that it should describe how the defendant’s conduct alleged in the indictment would consist of a violation of §§ 2241 to 2244. See, e.g., Wise, supra at 559 (stating the evidence was sufficient because the defendant’s conduct would have violated § 2243(a)).

For the second definition of illicit sexual conduct, which is based on § 2423(f)(2), paragraph (2)(A)(2) uses the term “commercial sex act” and defines it as “any sex act, on account of which anything of value is given to or received by any person.” See § 1591(e)(3).

For paragraph (3), which provides that the government need not prove that the defendant took any steps to entice, coerce, or persuade the minor to engage in sexual conduct, see United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011) (stating that § 2423(b) requires the defendant to travel with the intent to engage in sexual conduct, but does not require an element of enticement or coercion). Cf. Inst. 16.09 Coercion and Enticement: Persuading a Minor to Engage in Prostitution or Unlawful Sexual Activity (18 U.S.C. § 2422(b)) (providing that the defendant must persuade, induce, entice, or coerce a minor to engage in sexual activity). The provision in paragraph (3) should be used only if relevant.

This statute also makes it a crime to attempt or conspire to violate § 2423(b). See § 2423(e). If the charge is based on attempt, an instruction may be compiled by combining this instruction with the instructions in Chapter 5 Attempts. If the charge is based on conspiracy, an instruction may be compiled using the instructions in Chapter 3 Conspiracy with one caveat. Conspiracies under § 2423(e) do not require an overt act, see Whitfield v. United States, 543 U.S. 209, 213-14 (2005) (holding that when Congress omits an explicit reference to an overt act in a conspiracy statute, it dispenses with that requirement), so Instruction 3.01A Conspiracy to Commit an Offense–Basic Elements should be modified to omit paragraph (2)(C). All other references to overt acts should be deleted as well.

Section 2423(g) provides as follows:

(g) Defense. In a prosecution under this section based on illicit sexual conduct as defined in subsection (f)(2), it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years.

The text of the instruction does not refer to this defense, but if the prosecution is based on the definition of illicit sexual conduct involving a commercial sex act as defined in paragraph (2)(A)(2), and the defense is raised in the case, the court should include an instruction on the defense. In that case, the court may also include a definition of the term preponderance, see, e.g., Inst. 6.05(4).