Foreign Nationals and the American Judicial System

By Holly Christensen

After a lengthy battle over proper service, Prince Andrew, the second son of Queen Elizabeth of the United Kingdom, was served with a civil sexual assault lawsuit in late September of this year. [1]The claimant is Virginia Giuffre, a 38-year-old American-Australian victim of Jeffrey Epstein’s infamous sex-trafficking ring. She alleges that in 2001, when she was seventeen years old, she was forced to have sex with Prince Andrew three times, in London, New York, and the U.S. Virgin Islands. Giuffre filed suit under New York’s Child Victims Act, a recent law allowing civil damages for abuse cases past their criminal statute of limitations.[2]

Prince Andrew denies all allegations against him. He was forced to step down from royal duties in November of 2019 due to the intense public backlash over the allegations. Both the complaint and Prince Andrew’s response are not widely available, but it was reported that Prince Andrew filed for a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, or in the alternative, a motion for a more definitive statement, under Rule 12(b)(e). These motions will be decided in January of 2022, and if the case moves forward, depositions are expected to be held the summer of 2022.[3]

The case against Prince Andrew highlights a plethora of interesting legal questions surrounding the legal liability of royalty in the American judicial system. Can the United States subject a person who is not American to their judicial system? What if that person is not in the United States? What if that person is royalty in their country? Can a United States citizen sue a member of a royal family in the United States? Can the United States charge a member of foreign royalty with a crime in the United States? Can the United States extradite a foreign royal? I hope to answer some of these questions in this article.

 

DISCUSSION

Can the United States subject foreign nationals to the American judicial system?

Short answer, yes. There are countless examples of private United States citizens suing foreign nationals civilly. United States federal courts have jurisdiction over any case where the plaintiff and defendant are of different citizenships and the amount in controversy is over $75,000. [4]

This is similar for criminal charges. The United States has jurisdiction over persons and events inside its territory. Additionally, if a crime is committed abroad, by a foreign national, against an American, American courts can exert jurisdiction over the prosecution of that crime. Other situations where American courts have jurisdiction include prosecuting crimes against humanity, in situations of national security, certain cybercrimes, and others. [5]

Can the United States extradite foreign nationals to stand trial for crimes in the US?

The answer to this question is also yes, with some caveats. If there is an extradition treaty between the United States and the country where the foreign national is physically, (not where the foreign national is from or has citizenship) extradition is legal. It is usually not that simple, however. Multiple countries have been reluctant to extradite to the United States due to the use of the death penalty and the United States’ harsh sentences, among other policies[6]. For example, France, who has an extradition treaty with the United States, denied the extradition of Michael and Linda Mastro, (who were attempting to escape charges of money laundering and bankruptcy fraud) on account of Michael’s health. Fortunately for Prince Andrew, the United Kingdom is a country that, although having an extradition treaty with the United States, is often reluctant to send prisoners to the United States[7]. The most famous examples of this include the U.K.’s reluctance to extradite Chilean President Augusto Pinochet to Spain and their refusal to extradite Wikileaks founder Julian Assange to the United States.

There are several countries in the world that do not have extradition treaties with the United States, including Russia, China, North Korea, and other countries. For this reason, people looking to escape extradition often look to the Russian or Chinese government to grant them permanent residency, as was the case with whistleblower Edward Snowden, who was granted unlimited permanent residency in Russia in 2020. If a person is in a country with no extradition treaty, there is no legal recourse for the United States government to force a person back to the country to stand trial for their crimes.

Can a private US citizen sue a member of the royal family?

Yes, in theory. There are several examples of civil charges attempting to be brought by US citizens against members of foreign royal families, however, most people who have tried to sue royalty have been dismissed for lack of subject matter jurisdiction. For example, in 2001 New York photographer Henry Leutwyler sued Her Majesty Queen Rania of Jordan for claims of defamation and copyright dispute[8]. Similarly, in 2020, former servants of Prince Saad of Saudi Arabia sued King Fahd and the kingdom itself for claims of false imprisonment and abuse, as well as allegations of murder, kidnapping, and enslavement.[9] In both cases, the court dismissed the cases for either lack of jurisdiction or immunity stemming from the Foreign Service Immunities Act.

While there have been very few successful cases of a private United States citizen suing a member of a royal family, that does not mean it isn’t possible. In the case of Prince Andrew, Giuffre had to establish both personal and subject matter jurisdiction when she filed her initial complaint. She is suing Prince Andrew in his personal capacity in the jurisdiction in which the crime allegedly took place, satisfying New York’s long arm statute. Additionally, as mentioned above, because the plaintiff and defendant are citizens of different countries and more than $75,000 is in contention, subject matter jurisdiction is established.

Interestingly, this is not the case for British citizens seeking to sue the British Royal Family. According to Halsbury’s Laws of England, members of the British Royal Family cannot be sued in civil proceedings. [10]

 

Can a member of a royal family be charged with a crime?

For the Queen- or any head of state- herself, the answer is no. Within the UK, and in countries that recognize her sovereign immunity, like the United States (to a certain extent), the Queen is immune to prosecution. UK law explicitly lays out her immunity within the country in the Crown Proceeding Act of 1947. The Queen is immune to all criminal and virtually all civil proceedings in the United Kingdom.

In the United States, the Foreign Sovereign Immunities Act of 1976 says a “foreign head of state is not subject to the personal jurisdiction of a United States court, except to the extent provided by statute or waived by foreign government”. [11]This protection is extended only to the person the United States recognizes as the head of state. This mean, in our British example, that only Queen Elizabeth is safe from criminal charges in the United States, not her family.

It’s become clear that.members of the British Royal Family are not safe from criminal action in the United Kingdom, either. In 2002 Princess Anne, the Queen’s daughter and Prince Andrew’s sister, became the first senior member of the royal family to be convicted of a criminal offence when she pled guilty to a charge under the dangerous dog act after her dog bit two children. Ironically enough, the case pitted Princess Anne against her mother, as the case was titled Regina v Anne Elizabeth Laurence.[12]

For a non-British example of royalty being charged with a crime in their country, Princess Cristina, the daughter of King Juan Carlos I and Queen Sofia, was investigated and tried for corruption and fraud in 2013. She was ultimately acquitted in 2017 while her husband was sentenced to five years in prison. [13]

Additionally, according to Halsbury’s Laws of England, members of the British Royal Family cannot be arrested in the monarch’s presence, or within the verges of a royal palace.[14] This means Prince Andrew, or any other British royal, would be safe in Buckingham Palace, Kensington Palace, or any other official royal residence or palace. In Prince Andrew’s case, he would be safe from arrest at his country home on the grounds of Windsor Palace at the Royal Lodge and in his official London residence at Buckingham Palace.

For Prince Andrew, this is extraneous, as he will likely never answer to these allegations in a United Kingdom criminal court. In October of 2012, London’s police chief announced they would be taking no further action in the investigation of the sex crime allegations against Prince Andrew.[15]

 

Can a member of the royal family be extradited to the United States for a criminal trial?

Theoretically. While the United States has never had the explicit opportunity to extradite a member of royalty or a head of state before, the United States has certainly extradited famous and infamous criminal defendants. While a different type of “lord” than the royalty we have discussed so far, Mexican drug lord Joaquin “El Chapo” Guzman was famously extradited in early 2017.

Extraditing a member of the British Royal Family would be legal, but prove politically and diplomatically difficult, and would probably be blocked by the British government or royal family. Sexual assault is an extradition offense, taken equally seriously in the United States and the United Kingdom.[16] This means that if the United States sought to charge Prince Andrew with criminal charges, an extradition would be allowed, but politically difficult.

 

CONCLUSION

Prince Andrew will not be extradited to the United States any time soon. The case brought by Giuffre was filed in civil courts, meaning no extradition would be allowed. No criminal charges have been filed against Prince Andrew and it is not likely any will. Some legal scholars have suggested the statute of limitations would not apply to Prince Andrew while he is outside of the jurisdiction the case was filed in, which would allow him to be charged with the alleged 2001 assaults, but absent the success of this argument, the statute of limitations ran out over fifteen years ago. It will fall to the civil court system to decide Prince Andrew’s fate.

 

[1]Jonathan Stempel, Prince Andrew is served sexual assault lawsuit in United States, Reuters (Sep. 21, 2021), https://www.reuters.com/world/uk/prince-andrew-is-served-accusers-sexual-assault-lawsuit-united-states-lawyers-2021-09-21/.

[2] Giuffre v. Andrew, 21-CV-6702 (LAK), 2021 WL 4236718 (S.D.N.Y. Sept. 17, 2021); Eloise Barry, Prince Andrew is Being Sued by a Victim of Jeffrey Epstein for Sexual Abuse. Here’s What to Know About the Lawsuit, TIME (Oct. 21, 2021) https://time.com/6107815/prince-andrew-sexual-abuse-lawsuit-allegations/.

[3] Prince Andrew asks US court to dismiss case, BBC (October 30, 2021), https://www.bbc.com/news/uk-59099346.

[4] Jennifer K. Elsea, Substantive Due Process and U.S. Jurisdiction over Foreign Nationals, 82 Fordham L. Rev. 2077 (2014)

[5] Jennifer K. Elsea, Substantive Due Process and U.S. Jurisdiction over Foreign Nationals, 82 Fordham L. Rev. 2077 (2014)

[6] Artemio Rivera, Probable Cause and Due Process in International Extradition, 54 Am. Crim. L. Rev. 131 (2017).

[7] Fern L. Kletter, Extradition Treaties Between United States of America and United Kingdom of Great Britain and Northern Ireland-United States and United Kingdom Cases, 45 A.L.R. Fed. 3d Art. 6 (Originally published in 2019).

[8] Leutwyler v. Off. of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277 (S.D.N.Y. 2001)

[9] Alicog v. Kingdom of Saudi Arabia, 860 F. Supp. 379 (S.D. Tex. 1994), aff’d, 79 F.3d 1145 (5th Cir. 1996)

[10] Halsbury’s Laws of England, volume 12(1): “Crown and Royal Family”.

[11] Foreign Sovereign Immunities Act of 1976 (FSIA), Foreign Sovereign Immunities Act of 1976 (FSIA)

[12] Warren Hoge Princess Anne, in Courtly Fashion, is Convicted in Dog Attack, New York Times (Nov. 21, 2002), https://www.nytimes.com/2002/11/21/international/princess-anne-in-courtly-fashion-is-convicted-in-dog-attack.html

[13] Bill Chappell, Spain’s Princess Cristina is Cleared in Fraud Trial; Her Husband Gets Prison Time, NPR (February 17, 2017), https://www.npr.org/sections/thetwo-way/2017/02/17/515752372/spains-princess-cristina-cleared-in-fraud-trial-her-husband-gets-prison-time.

[14] Halsbury’s Laws of England, volume 12(1): “Crown and Royal Family”.

[15] Michael Holden, UK police: no further action over Prince Andrew, Epstein allegations, Reuters (Oct. 11, 2021), https://www.reuters.com/world/uk/uk-police-no-further-action-over-prince-andrew-epstein-allegations-2021-10-11/

[16] Fern L. Kletter, Extradition Treaties Between United States of America and United Kingdom of Great Britain and Northern Ireland-United States and United Kingdom Cases, §26: Sexual Assault, 45 A.L.R. Fed. 3d Art. 6 (Originally published in 2019).