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.