Wednesday, December 14th, 2022

Under 18 U.S.C. § 1591, the term “commercial sex act” — defined as “any sex act, on account of which anything of value is given to or received by any person,” id. § 1591(e)(3) — doesn’t require that the “[]thing of value” have a monetary value; it can be something “intangible” that has a subjective value to the person receiving it. United States v. Raniere, Nos. 20-3520-cr(L), 20-3789-cr(Con), __ F.4th ____, 2022 WL 17543156 (2d Cir. Dec. 9, 2022) (C.J.J.’s Calabresi, Cabranes, and Sullivan).

This case concerns the meaning of “commercial sex act,” in subdivision (e)(3) of 18 U.S.C. § 1591, titled “Sex trafficking of children or by force, fraud, or coercion.”  A “commercial sex act” is defined as “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3).

The Appellant argued that the phrase “anything of value” must mean “‘economic benefit[ ].’” The Circuit holds, however, that the phrase isn’t restricted to monetary or financial benefits but can include “intangibles,” such as maintaining or improving a person’s position within the hierarchy of a group. Raniere, 2022 WL 17543156 at *4-*8. The focus is on the value that the recipient “subjectively attaches to what is sought to be received.” Id. at *5.


Appellant Keith Raniere was the leader of an executive coaching and self-help organization called NXIVM that he started in 2003. “New members paid thousands of dollars to attend self-help workshops. NXIVM members referred to Raniere as ‘Vanguard.’” Id. at *2.

In 2015, “Raniere created the secret society ‘DOS,’ which was structured as a pyramid, with Raniere at the head, followed by first-line ‘masters’ and their subordinate ‘slaves.’ ‘Slaves’ were  expected to be obedient to their ‘masters.’” Id. at *2.  According to the Government, “members of the organizations recruited and groomed sexual partners for Raniere,” and “numerous women were coerced to engage in nonconsensual sexual acts with Raniere.”Id. at *2. The Government alleged, for instance, that a co-defendant “master” “was able to maintain and strengthen her privileged position in the DOS hierarchy” by “assigning her ‘slaves’ to engage in sexual acts with Raniere[.]” Id. at *7, *8.

“At trial, the Government presented evidence that Raniere led both entities as pyramid organizations, and that he— alongside his ‘inner circle’—committed” various offenses, including  sex trafficking in violation of 18 U.S.C. § 1591. See  Raniere, 2022 WL 17543156 at *1-*2.

The “anything of value” requirement (of § 1591(e)(3)’s definition of  “commercial sex act”) isn’t restricted to monetary gain, but can be an “intangible” benefit — such as maintaining  or strengthening the privileged position within the group of the person receiving the benefit.

In challenging the convictions for sex trafficking under 18 U.S.C. § 1591, Appellant Raniere argued “that  to qualify as a ‘commercial sex act,’ there must be a monetary or financial component to the ‘[]thing of value’ that is given or received, and the relevant sexual exploitation must be for profit.” Raniere, 2022 WL 17543156 at *Id. at *1. Therefore, because the government’s evidence showed only “that individuals received benefits, such as privileged positions within an organization,” it was insufficient to prove a violation of  § 1591. Id. The Second Circuit disagreed.. Id.

Section 1591 provides, in relevant part,  for the punishment of any person: “Who knowingly …  (2) benefits, financially or by receiving anything of value, from participation in a venture which has  engaged in an act described in violation of paragraph (1), [while also] knowing[ ] …that means of force, threats of force, fraud, coercion … , or any combination of such means will be used to cause the person to engage in a commercial sex act, ….”  18 U.S.C. § 1591(a). Section 1591(e)(3) defines a “commercial sex act” as “any sex act, on account of which anything of value is given to or received by any person.” Id. § 1591(e)(3) (emphases added).

The Circuit notes that the statute doesn’t explicitly define the phrase “‘anything of value.’” Raniere, 2022 WL 17543156 at *4. But it states that, as a matter of statutory interpretation, the word “any” has an “expansive meaning,” and the phrase “thing of value” “is generally construed to cover intangibles as well as tangibles.” Id. at *4, *5. So, “adding the expansive prefix ‘any’ onto ‘thing’ only underscores our understanding that ‘anything of value’ should be broadly understood to include intangibles. A ‘thing of value’ as it appears in Section 1591 may be intangible.” Id. at *5. In addition, the Circuit states, the word “value” refers to “a subjective, rather than objective concept.” Id.. “Stated differently, in the ordinary sense, we construe the word ‘value to focus … on the value which the [recipient] subjectively attaches to what is sought to be received.” Id. (alterations in opinion).

The Circuit thus held “that for sexual exploitation to be actionable under Section 1591, it need not have been conducted—as Raniere argues it must—for profit.” Id. at *5 (footnote omitted). “[M]onetary worth is not the sole measure of ‘value’.” Id..

Accordingly, the Circuit concluded that the district court properly instructed the jury on the sex trafficking counts, and the evidence was sufficient.  Id. at *6-*7. On the “anything of value” element, the Circuit noted (among other things) that there was evidence that a DOS “master” “was able to maintain and strengthen her privileged position in the DOS hierarchy because of the relationship between Raniere and one of [the DOS master’s] ‘slaves[.]” Additionally, there was an  “expectation that DOS “masters’ would receive approximately 40 hours of ‘work’ per week  from their various ‘slaves.’” Id. at *7-*8.

The Circuit further concluded that the evidence was sufficient to establish “a causal connection between the sexual act and the giving or receiving of anything of value.” See  Id. at *8. And it was sufficient to establish “coercion” under § 1591(e)(2)(A).  Id., at *9; see id. at *1-*2  (discussing how DOS recruits were required to provide “collateral” — consisting of things such as sexually explicit photographs and videos and other things embarrassing or incriminating that were allegedly used to blackmail recruits to engage in sex acts).

Comments are closed.