Men Caught In Prostitution Sting Aren't Sex Traffickers, Massachusetts High Court Says
But the ruling suggests prostitution clients could be convicted of sex trafficking in other circumstances.
Does answering a prostitution ad make a man a sex trafficker? The highest court in Massachusetts says no, in a ruling that represents a win for both common sense and civil liberties.
The case—Commonwealth v. Garafalo—involved a prostitution sting conducted by state police in 2021. Officers posted web ads pretending to be adult female sex workers and arrested men who met up with these "women" to pay for sex. Rather than simply charge their marks with the crime of soliciting a sex worker or engaging in sexual conduct for a fee, authorities charged them with trafficking of persons for sexual servitude.
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No Recruitment or Enticement
Five of the men charged in this sting pushed back against being treated as sex traffickers, and the matter came before the Massachusetts Supreme Judicial Court in January.
Their lawyers noted that state law defines trafficking for sexual servitude as subjecting, recruiting, enticing, harboring, transporting, providing, obtaining, or causing "another person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography."
Since there was no trafficked person in their cases, they could not be charged with trafficking, defense lawyers argued. And taking "every single John, charg[ing] them with sex trafficking, and put[ting] them in prison for five years" was not "the intent" of the sex trafficking law, defense attorney Patrick Noonan told the court.
On May 2, the court ruled in favor of the men charged with trafficking.
It doesn't matter that the "sex worker" was a figment of cops' machinations and not a real person, the court held. ("It is a basic proposition of our criminal laws that factual impossibility is not a defense to a charge of attempt," as the court put it.)
But it does matter that other elements of the crime of trafficking for sexual servitude were not met. Merely agreeing to "the terms extended by [a] sex worker"—or someone pretending to be a sex worker—"cannot reasonably be found to be conduct aimed to entice or to recruit the sex worker," wrote Justice Dalila Argaez Wendlandt in the court's opinion.
"Nothing in the telephone calls or text message interactions between the defendants and the sex worker reasonably suggests any effort by the defendants to allure, to attract, to tempt, or to persuade the sex worker to engage in commercial sexual activity; instead, in those calls and messages, they selected sexual activities from a menu of activities she proposed," noted Wendlandt.
The justices also considered the trafficking law's prohibition on "obtaining" someone for commercial sexual activity. They ultimately decided that the defendants didn't meet this element of the crime either.
"It is ambiguous…whether the Legislature intended to capture a purchaser of services offered by an ostensibly independent sex worker" with the inclusion of phrase "obtain by any means," wrote Wendlandt. But "the conduct alleged here arguably is at odds with the language of the sex trafficking statute as a whole, which delineates specific enumerated acts of those who engage in the steps of the business of buying and selling human beings for sexual exploitation rather than at purchasers who agree to pay an independent sex worker for sexual activities she has offered on the terms she has set."
Helping People or Creating Criminals?
I'm glad to see the court reject this police overreach. Treating someone as a sex trafficker for merely agreeing to pay an independent sex worker certainly offends justice.
But I was hoping the court would agree with the defense team's arguments about no actual person being involved. As long as cops can make arrests, seize assets, and play hero by targeting the "trafficking" or imaginary people, they'll continue to concentrate anti-trafficking efforts on undercover stings rather than spending their limited time and resources on saving actual victims of abuse and exploitation.
We're better off when police solve real crimes, not create criminals.
And while it's good that Massachusetts doesn't consider soliciting sex to be a form of trafficking, its law against trafficking for sexual servitude is still ridiculously broad. Remember, its definition covers recruiting, enticing, etc., for commercial sex or a sexually explicit performance, or benefiting financially from someone else doing so.
There is no requirement that force, fraud, or coercion be employed. And it doesn't take much to be guilty of "recruiting" or "enticing," according to the judges in this case.
"A person may 'entice' or 'recruit' another to engage in commercial sexual activity through, for example, words or acts of encouragement, assistance, incentives, gifts, money, housing, benefits, promises, drugs, or alcohol, without engaging in threats of serious harm (coercion), physical force, or fraud."
This is a crime that comes with a mandatory minimum sentence of five years in state prison, not to mention a possible 20 years in state prison and a fine of up to $25,000. That's a staggering punishment for something in which there isn't any victim at all.
In fact, according to the justices' definition, merely being a prostitution customer could count as sex trafficking if it's you who suggests things. It doesn't matter if the person you're suggesting things to then consents. Being a customer of legal sex work, such as stripping, could even count, since the statute lists sexual performance and not just sexual intercourse or other sexual activity among its elements. And of course, suggesting you'll pay for a sexual performance by a person who doesn't exist and is merely a cop's catfish would also count.
The Massachusetts sex trafficking statute perfectly encapsulates what's wrong with the way the U.S. approaches sex crimes: an unwillingness to make a distinction between situations that involve violence and coercion and situations that merely involve sexual activities of which the state disapproves.
A Sign of the Times
That this was even a matter of debate shows how absurdly expansive the definition of "sex trafficking" has become.
When U.S. states started passing laws against sex trafficking, the idea was to stop criminals from coercing people into prostitution. States already had laws against things like pimping, pandering, facilitating prostitution, and brothel keeping that allowed authorities to go after sex-trade middlemen even when no force or coercion was used. They also already had laws that barred paying for sex. No one needed new sex trafficking laws to go after any of these things. But in the past 25 years, we've seen expansion after expansion of these laws.
To understand why, follow the money and follow the prestige.
Some might celebrate police targeting consensual sex between adults who exchange money, but a lot of people find this to be a waste of resources, an invasion of privacy, an affront to bodily autonomy, or all of the above. If you target trafficking—a term that conjures images of horrific exploitation and abuse—that tends to be much more broadly celebrated.
Going after sex workers and their clients doesn't necessarily bring in money either. But there are all sorts of federal funds available to local and state police departments that say they are trying to disrupt sex trafficking. So framing old-fashioned vice stings as "sex trafficking busts" means you can get federal funding to pose as sex workers, visit massage workers, and so on.
As America has become gripped by hysteria over an imaginary sex trafficking "epidemic," political leaders and anti-trafficking groups have ramped up pressure on police to catch traffickers. But there aren't nearly as many sex traffickers out there as the propagandists like to suggest, and catching and prosecuting people who do use coercion and force in this way can be difficult. It's much easier for police to put some ads online, pretend to be sex workers, arrest anyone who wants to pay for sex, and announce their "sex trafficking arrests." They get to satisfy the pressure to catch sex traffickers without actually catching sex traffickers.
For the most part, this has worked, especially when it's been done with a bit of smoke and mirrors. Police and prosecutors put out press releases about big "human trafficking" stings while simply charging people with misdemeanors such as prostitution, solicitation, or facilitating prostitution. But Massachusetts authorities took it one step further. They tried to actually charge potential prostitution customers as sex traffickers. And that—thank goodness—seems to have gone too far…for now.
More Sex & Tech News
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• The BBC is using an artificially intelligent Agatha Christie avatar to teach classes.
• A host of alternative phones have been cropping up to cater to parents who want their children to have some of the benefits of owning a phone without unlimited access to apps and the internet. The options are "more interesting than I'd thought they were going to be," writes Kaitlyn Tiffany of The Atlantic. "They reflected the tricky balancing act parents face: how to let kids enjoy the benefits of being connected (a chess game, a video call with Grandma, a GPS route to soccer practice, the feeling of autonomy that comes from setting a photo of Olivia Rodrigo as your home-screen background) and protect them from the bad stuff (violent videos, messages from creeps, the urge to endlessly scroll, the ability to see where all of your friends are at any given time and therefore be aware every time you're excluded)."
• "As Americans began storing larger portions of their personal information online, governments started buying this data, circumventing the Fourth Amendment's guarantees of protection. This week, Montana became the first state to restrict the practice," reports Reason's Joe Lancaster.
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