Arizonans Approve Life in Prison for Sex Trafficking a Minor

This isn't a policy that corrects for injustice but one that increases it.

Arizona Proposition 313 has passed. This is bad news, no matter how much the ballot measure's backers portrayed it as a simple measure to indicate that "children are not for sale."

Obviously, selling children is already banned, federally and in Arizona. And the specific crime that Prop 313 is concerned with—sex trafficking of minors—is already illegal at the state and federal level, with heavy prison sentences for those who disobey.

Proposition 313, which institutes a mandatory life sentence for this crime, passed with more than 60 percent of the vote, per the Associated Press. But this measure will mean more injustice in Arizona, not less. It could even mean more injustice for victims of sex trafficking.

What "Child Sex Trafficking" Means in Arizona

In Arizona, sex trafficking someone under age 18 can already mean life in prison under some circumstances. The crime generally comes with a mandatory minimum sentence of between 7 and 13 years for a first offense, and a possible sentence of 21 to 27 years imprisonment. One or more previous felony conviction for anything ratchet up the mandatory minimums and the potential sentences, with up to 50 years a possibility. The only circumstance in which child sex trafficking can result in a lesser sentence is when the crime involves "engaging in prostitution with a minor who is fifteen, sixteen or seventeen years of age" in a situation where the perpetrator couldn't have plausibly have known the minor's age.

The wide range of sentences under current law reflects the wide range of conduct that falls under the rubric of child sex trafficking—a crime that, in the U.S. at least, seldom looks like Hollywood or Washington portrays it. In most cases that get prosecuted, it involves teenagers—and, in many cases, teenagers willfully engaged in prostitution.

For those charged, ignorance of a minor's age is not generally considered a defense. Nor is the fact that a perpetrator may themselves be a trafficking victim.

And while force or coercion may be involved, it's not a necessary component for a conviction. One can violate Arizona's child sex trafficking law by—among other things—"causing a minor to engage in prostitution," "permitting a minor who is under the person's custody or control to engage in prostitution," "providing a means by which a minor engages in prostitution," "enticing, recruiting, harboring, providing, transporting, making available to another or otherwise obtaining a minor with the knowledge that the minor will engage in prostitution or any sexually explicit performance," or "engaging in prostitution with a minor."

The law targets not only people forcing or coercing minors into prostitution, porn, stripping, or similar activities but anyone who merely knows a minor is engaging in such activities and fails to stop them. It also targets driving a minor to a location where they will engage in prostitution, or doing anything that enables the prostitution of a minor, if the state determines someone "should have" known the minor's age.

These parameters give law enforcement broad leeway to go after friends of any minor selling sex; people who don't condone what they're doing but are trying to help them do it safely; people who think they're facilitating or engaging in prostitution with an adult; and sex workers who, even unknowingly, work alongside someone under 18. It could also be used to go after minors aiding each other in prostitution.

It's important to understand the broad contours of this law before considering the change that Proposition 313 will make.

A One-Size-Fits-All Sentence

Here's the text of the proposition:

Subject to voter approval, statutorily requires an adult who is convicted of a class 2 felony for any child sex trafficking offense to be sentenced to natural life imprisonment.

Unlike the current statute, which provides a range of punishments that vary based on circumstances, Proposition 313 will take away discretion from judges and imposes a one-size-fits-all life sentence nearly regardless of circumstances.

This isn't a policy that corrects for injustice but one that increases it.

"Sex trafficking is an arena where many participants are themselves victims, forced to participate by others," noted Hanna Liebman Dershowitz, a senior policy fellow at Reason Foundation (the nonprofit that publishes this magazine). "So, a law with no ability for a judge to adjust the sentence if the accused is a victim or was forced to participate can create its own injustices."

I've seen many cases where victims of abuse and coercion are themselves charged with sex trafficking. Under this measure they, too, could face life in prison.

So could an 18-year-old who compensates a 17-year-old for sex, if the state says the 18-year-old "should have known" the 17-year-old's age. So could an 18-year-old sex worker working with a 17-year-old friend. So could an older sex worker who didn't condone a teen selling sex but did engage in some action—giving them a place to stay, giving them a ride, etc.—that helped them do so more safely. So could a person managing a strip club where an older teen with a fake ID got hired. And so on.

The League of Women Voters of Arizona even opposed the measure on the grounds that it could punish victims harshly and that it removes too much power from judges.

Who Benefits?

And who is safer in all of this? "Longer sentences demonstrably do not improve public safety," noted Liebman Dershowitz. Proponents of Proposition 313 "are seeking to 'send a message,' but there is no evidence that increased penalties deter sex trafficking or that current punishment is inadequate."

Even Dominique Roe-Sepowitz, the director of the Office of Sex Trafficking Intervention and Research at Arizona State University and a longtime crusader for getting tough on sex trafficking, was opposed to Proposition 313. "She believes Prop. 313 'is not necessary,'" Arizona's Family reported. "Roe-Sepowitz emphasized that the current justice system effectively holds those who commit these crimes accountable."

Roe-Sepowitz also suggested that Proposition 313 could make punishing sex trafficking more difficult, since crimes that come with life sentences necessitate a higher burden of proof and it's already "very hard to get information and very hard to get evidence."

"Additionally, Roe-Sepowitz noted that such measures would prolong the legal process, placing more demands on victims who typically don't receive witness protection," noted the Arizona's Family article. She continued: "We are asking the victim to do even more, to testify more, to be a part of appeals that are naturally part of that system."

Proposition 313 follows in the path of the escalating war on drugs. Drug warriors kept proposing harsher and harsher sentences, in the name of prevention and justice. But all that accomplished was crowding prisons and ruining any chance for rehabilitation in many cases. It didn't stop drug use or stem the flow of drugs into American communities. And mandatory extreme sentences for sex trafficking won't stop sexual exploitation or vulnerable teenagers from selling sex.

"This proposition is an extreme measure based on an emotional, punitive and unscientific response to a serious situation and offers essentially nothing that would work to protect the most vulnerable among us," wrote John Covert, a member of the executive committee of Arizonans for Rational Sex Offense Policies, in an Arizona Republic op-ed.

As it stands, there's nothing stopping judges from imposing harsh punishments on people forcing girls into prostitution, knowingly paying to have sex with 14-year-olds, or anything else that might warrant a long sentence. And there's nothing stopping lawmakers from passing a narrow sentencing expansion that would increase the maximum allowable sentence for child sex trafficking.

There are ways to increase penalties for certain types of cases without catching all sorts of people who do not deserve decades or life in prison. Instead, Proposition 313 and the voters who supported it opt to create a blanket draconian solution.

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