APPLYING US-THAI TREATY TO ROSSER'S CASE:

There could be a strong reason for Rosser to resist extradition and to try his best to be judged by Thai law rather than American one. In the US he would face up to 20 years of imprisonment, while in Thailand if applying Section 287 of Thai Criminal Code on the charges distributing pornography he would face not more than 3 years(11). For committing an indecent act on a child not over thirteen years of age, with or without her consent, such person shall be punished with imprisonment not exceeding ten years or fine not exceeding twenty thousand baht, or both(12).

In order to extradite the suspect the US authorities must present their charges against the person. The US indictment against Rosser contained following counts: 1. conspiring to transport pornographic materials in interstate and foreign commerce; 2. employing a minor to engage in sexually explicit conduct for the purpose of producing pornographic materials; 3. distributing child pornography; 4. receiving child pornography. In order to make the suspect extradited, Thailand must hold the same conduct punishable according to its criminal law. This is required by the rule of dual criminality contained in Article 2 of the treaty.

It does not appear that acts in the counts 1 and 4 can be punishable by Thai criminal law in this particular case. Section 210 of Thai Criminal Code considers conspiracy to commit any criminal offence punishable with maximum imprisonment of one year upwards, only when five persons upwards conspire to commit a crime. In the indictment, only one person was named who was a part of conspiracy to receive a pornographic materials. Since receiving such materials are not considered to be a criminal it is clearly that this count as well as count 4 cannot stand before Thai courts.

As for the count 2, Thai and American law contain different constituent elements of crime. Thai law proscribes sexual intercourse (Section 277 of Thai Criminal Code) or a sexually explicit conduct (Section 279 of Thai Criminal Code)with a minor regardless the purpose of producing pornography. American prosecutors used Section 2251 whose constituent element is producing pornography. It is an interesting fact, that Rosser was not prosecuted in the US for being engaged in a sexually explicit act with the minor, but that he was sexually exploiting the minor for the purpose of producing pornographic materials(13). The reason for that, as it has been indicated above, is not that American law lacks relevant criminal provisions proscribing such behaviour. There was a technical issue. The American prosecutors chose to apply federal law rather than state law. According to the federal law it was possible to prosecute for aggravated child sexual abuse (Section 2241 of Chapter 109a) or abusive sexual conduct (Section 2244). However, the constituent element of those crimes should be crossing a state line with the intent to engage in sexual abuse. Proving this element can be more difficult than child sexual exploitation. Since the abuse was alleged to take place outside any American state there could be difficulties in applying state criminal laws. There could be also political reasons why the federal authorities chose to press this case by themselves rather than to let it do to state prosecutors.

According to Thai law, unlike American law, producing child pornography for not commercial purposes is not a criminal offence, as long as an adult was not considered to commit an indecent act on a child or a sexual intercourse with a child. If Rosser had not committed an indecent act on a child, then the count 2 will have difficulties to fit into even liberal interpretation of Thai law. In this particular case, it is not Thai law on pornography which should be applied, but Thai law on offences related to sexuality (Section 279). It is true, however, that an offence of committing an indecent act on a child can be interpreted broadly as making this child to be a pornographic model. Thus, the offence under count 2 can be considered as extraditable if the spirit of law rather than its letter has been taken into account.

There are criminal sanctions for producing and distributing pornographic materials in both countries. Thai law does not distinguish between child and adult pornography. Both types of pornography must have a commercial element to fall under criminal sanction. In the facts submitted in the indictment, there is nothing to indicate that the materials produced and distributed by Rosser were actually sold. It appears, more likely, that he shared them among a closed circle of people who were subjected to the same vice. However, Section 287 of Thai Criminal Code can be constructed broadly as punishing non-commercial production and distribution of pornography depending on how public was distribution of pornographic materials. Thus, count 3 could be extraditable under Thai law, providing that a broad interpretation of Thai criminal law is given, and providing that the US authorities prove that the materials went beyond a narrow circle of the friends of the accused. Since nothing in the indictment indicates so, it is unlikely that a criminal act under count 3 can be extraditable under international law.

In any case, even if Thai law allows extradition under counts 2 and possibly 3 it appears that the US is not allowed to press its charges under counts 1 and 4, since those offences are not apparently contained in Thai criminal law, and therefore cannot be extraditable. The only offence which can be brought under dual criminality is a sexual exploitation of a minor providing that there was an act of indecency committed towards the minor by the accused, and providing that both American and Thai laws are interpreted broadly according to their spirit rather than their letter. Such interpretation is warranted by Article 4(4) of the US-Thai Treaty.

Thus, the fact that Rosser was prosecuted under all 4 counts can be considered as a breach of extradition law of both countries. The rule of speciality is devised to prevent prosecution of the extradited person for any other offence than that which was alleged in the process of extradition by the requesting state. In article 14 of the US-Thai treaty, laying down the rule of speciality, there is, however, an exception, that the requesting state can detain, try and punish for an offence other than that for which extradition has been granted if the requested state has consented to detention, trial, or punishment for such an offence. It is important to emphasize that such request is foreseen for the charges pressed on after the extradition process has been completed(14). It is also important to note that in principle this consent must still subject to the rule that the additional offence must be extraditable. It is a surprise that the treaty does not adhere to this principle explicitly. It can give rise to the cases when the extradited person is prosecuted for the offences which are not punishable in the requested state. The UN Model Treaty on Extradition underlines that “Consent shall be given if the offence for which it is requested is itself subject to extradition in accordance with the present treaty(15).”

Part  3

---