Crime

What You Don't Know About Sex Trafficking

Sex trafficking is more complex than it seems.  Some sex trafficking is a lot more serious than others.

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It’s very difficult for judges to show temperance in sentencing when it comes to two types of crimes — terrorism and sex trafficking.  When any defendant is convicted of these charges, moderation in sentencing and a sense of balance go out the window.  Defendants are often given the max even if their role in the crime was incidental or peripheral.

In 2011, I represented a man found guilty of terrorism.  Even though the plot was invented and spurred on by a government cooperator (the government actually financed the continuation of the plot), and the alleged goal (to blow up gas tanks at JFK airport) was never feasible, the defendant was sentenced to life.  In federal prison, that means “life” — no chance of parole.  A lesser sentence would have been far more just.

Sex trafficking is another such crime.  It inspires high sentencing and bad press if a low sentence is given.

Sex trafficking is a spectrum crime.  By that I mean it covers a huge spectrum of acts, some serious, some less so.  It’s also the crime du jour.  Local prosecutors’ offices are being infused with money to set up sex trafficking units, hire more staff, and buy new IT tools to ferret out suspects.

This is all potentially good.  But sometimes the little fish are snagged in the same web and sentenced the same as the big guys.  And that’s unfair.

The man-on-the-street most likely thinks sex trafficking necessarily involves transporting scores of unwilling women (and sometimes men) over state or national lines, chaining them to basement posts, then forcing them to have sex with dozens of customers a day.  That’s an exaggerated view.

The laws are so expansively written that even if a woman voluntarily agrees to be photographed in scant attire in response to an escort ad but later changes her mind, the person who took the pictures could be convicted of sex trafficking for threatening to post the ad without her permission.  This is true even if the woman never prostituted herself or only met the man for an hour.

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Now I understand that nobody is going to cheer for the guy (or gal) who recruits escorts and then threatens to post their photo on Backpage if they don’t work for him, but there is a difference between the person who does only this and the guy who hauls women in the back of a truck from Mexico, feeds them drugs, then forces them to service 40 clients a day.  That guy deserves the max.

Because of the internet and the widespread use of Backpage to advertise sex services, there are jurisdictional issues as well.  Is it enough if your ad reaches New York City or Las Vegas to be prosecuted in one of those states even if your only contact with those jurisdictions is virtual? Is it fair that the man who threatened to “reveal the secret” of a woman who seductively posed for him in Michigan (by posting her photo on the internet) be tried in Nevada?  Or is it a function of which prosecutor’s office has the most money?

I tried a case recently where the court found that a Backpage ad was enough to convict my client of sex trafficking in New York even though all of the acts relating to the sex trafficking charge occurred in New Jersey.

Because these cases are so new, few have reached the appellate courts.  No matter how distasteful it may be for an appellate panel to overturn such a conviction, it may be necessary to examine whether virtual contact among jurisdictions is enough to claim jurisdiction.

It should come as no surprise that sex sells.  Advertising for sex work — known euphemistically as “escort services” — is so common that inputting “escort services NYC” into Google brings up close to six million hits in under one second.

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How can it be legal to promote prostitution on Backpage, but illegal to actually run such a service?

In trying the sex trafficking case, I learned some other surprising things.  Many sex workers solicit “pimps” themselves.  They need their help to do the following:

  1. Act as the beard. He (or she) uses his credit card and identifying information so that when police track down a Backpage posting, they’ll target him, not the sex worker.
  2. Act as protection. The “market facilitator” (what sex workers prefer to call “pimps”) helps vet the John before he arrives and often waits in the wings while the assignation takes place.  There’s an actual website that black-lists Johns who are dangerous.
  3. Provide down-to-earth support in the form of babysitting the sex workers’ kids, paying for hotel rooms and cars, as well as providing food, birth control, and medical services. Yes, they split the profit, but for many sex workers that split is worth it.

I was told by Bella Robinson, founder of Coyoteri.org (a sex-worker legalization site), that sex workers are more fearful of police who jail them than Johns.  Cops can arrest them, take their money, threaten to take their kids, and demand sex for free.

Sex trafficking is more complex than it seems.  Prosecution offices often vie for such convictions. They make good stats and justify their budgets.  Most people respond viscerally to the charge, often thinking the person is guilty by the mere nature of the accusation.

No one will shed a tear over a tough sentence for a convicted sex trafficker.  However, let’s be sure the sentence fits not just the name of the crime, but the particular facts involved.  Some sex trafficking is a lot more serious than others.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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