DOJ-OGR-00005434.jpg

Case 1:20-cr-00330-PAE Document 380 _ Filed 10/29/21 Page 41 of 54 Cir. 1986) (“[C]onsent is a defense to kidnapping but not to a Mann Act charge . . . .”); United States v. Rivera, No. 13 Cr. 149 (KAM), 2015 WL 1886967, at *7 n.4 (E.D.N.Y. Apr. 24, 2015) (“[C]onsent is not a defense to the sex trafficking of minors . . . and is also not a defense to violations of 18 U.S.C. § 2422.”); United States v. Griffith, No. 99 Cr. 786 (HB), 2000 WL 1253265, at *18 (S.D.N.Y. Sept. 5, 2000) (“The Mann Act (18 U.S.C. §§ 2241-3) has never, since its inception, provided for a defense of consent.”); see also Gebardi v. United States, 287 U.S. 112, 119 (1932) (‘For the statute is drawn to include cases in which the woman consents to her own transportation.”). And it is not a defense to the New York offense which is the object of the Mann Act counts. See N.Y. Penal Law § 130.05(3)(a) (“A person is deemed incapable of consent when he or she is . . . less than seventeen years old... .”). The Indictment concerns only minor victims, and as a matter of law, such underage victims could not consent to engage in sexual activity. Accordingly, evidence or arguments that the victims consented to being trafficked, transported, enticed, or sexually exploited would not give rise to a valid defense, and they should be precluded. See Elbert, 561 F.3d at 777-78 (affirming exclusion of evidence of a victim’s consent under Federal Rule of Evidence 412). In the absence of a consent defense, evidence about the victims’ consent to sexual activity should also be excluded as irrelevant. See Fed. R. Evid. 401. Such evidence is not probative or relevant to any issue at the trial. It cannot support a defense, and it does not impeach the witnesses or undermine their credibility. And in any event, argument and evidence about victims’ consent should be excluded under Rule 403. Any marginal value of such evidence would serve primarily to cast aspersions 40 DOJ-OGR-00005434