If someone sexually assaults a woman in Canadian territorial waters, where would you expect that person to be prosecuted? Why, in Alaska of course. Earlier this week the Alaska Supreme Court rendered an unusual decision in State v. Jack addressing the question of whether a state criminal statute against sexual assault could be applied extraterritorially to prosecute someone who committed the act in the territorial waters of Canada.
I'm all in favor of prosecuting persons who commit sexual crimes in Canadian territorial waters. But the question is, by whom and under what law? I am not a maritime expert, but it would appear the options are prosecution under the law of the coastal state (Canada) or prosecution under the law of the flag (United States). But in the latter case, does the law of the flag refer to state or federal law? One would have thought federal law.
There are two remarkable aspects of the decision. First, the Alaska Supreme Court ruled that the statute’s reference to commission of the crime on the “high seas” could encompass the territorial waters of Canada. The relevant Alaska statute provided that “The jurisdiction of the state extends to … the high seas to the extent that jurisdiction is claimed by the United States of America, or to the extent recognized by the usages and customs of international law or by agreement to which the United States of America or the state is a party.” It made no reference to jurisdiction over the commission of crimes in the territorial waters of another country. Nonetheless, the Court ruled that "[i]n view of the broad interpretation that should be given to the statute, we think that the State’s definition [of ‘high seas’] encompassing all ocean waters beyond the boundaries of the low-water mark is appropriate.” The obvious problem, of course, is that criminalizing conduct on the high seas does not encroach on the territorial sovereignty of another country, whereas criminalizing the commission of a crime in Canada has the potential to encroach on Canada’s authority as the coastal state, not to mention U.S. federal authority as the flag state.
Second, the Alaska Supreme Court broadly construed the effects doctrine to encompass this sexual assault. It ruled that “the Alaska ferry route to the state of Washington is an important transportation link between the state and the contiguous forty-eight states. Most of the cities and towns in Southeastern Alaska served by this link lack any road access. Further, the ferries are important to the tourism industry. As the State puts it: ‘If people believe that crimes can be committed on ferries traveling to Alaska without any real risk of being prosecuted, it will have a harmful effect on Alaska’s welfare--particularly on the personal security of ferry crew members and persons traveling to and from Alaska on ferries as well as on tourism and the economy.’ These interests are substantial and suffice to satisfy the application of the effects doctrine in this case.”
Unfortunately, it appears the Alaska Supreme Court fails to appreciate the full nature and purpose of the effects doctrine. The doctrine was developed to address extraterritorial economic violations that caused direct and substantial effects on the U.S. domestic market. This seems a somewhat strained interpretation for upholding a criminal conviction for sexual assault based on the potential economic harm to Alaskan tourism, particularly in the absence of some cognizable legislative intent to address such economic harms.
The prospect of a patchwork of state criminal laws regulating extraterritorial crimes occurring in the territorial waters of other countries should give one pause. For example, if Jack is correct, then potentially several coastal U.S. states on the Pacific or Atlantic seaboard could plausibly regulate crimes of this sort occurring in the territorial waters of Canada, Mexico, or various Caribbean countries. And of course, Canadian provinces potentially could assert a claim to do the same in U.S. territorial waters.