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Of all the myths and misinformation about sex trafficking in America, the most pernicious may be that our current laws are insufficient. Pushing his new Justice for Victims of Trafficking Act, which passed last May, Sen. John Cornyn (R–Texas) declared that it would "provide law enforcement with the tools" to hold human traffickers accountable. Another co-sponsor, Sen. Mark Kirk (R–Ill.), said the bill "gives police and prosecutors the tools they need to go after sex traffickers." Such statements—and there are plenty more—imply that we currently lack tough anti-trafficking laws. Yet for at least 15 years, federal policy makers and agencies have been continually strengthening these laws and increasing funding for their enforcement.
Things really got going with the passage of the Trafficking Victims Protection Act (TVPA) in 2000, though before this federal agents could bring human trafficking charges under various statutes, including the Mann Act (passed in 1910 to prohibit transporting a minor across state lines for the purposes of engaging in prostitution), the Tariff Act (passed in 1930 to ban importing goods made with forced or indentured labor), and various laws related to peonage, indentured servitude, and slavery. But the TVPA, signed by President Bill Clinton in the waning days of his presidency, specifically established as federal crimes "forced labor," "sex trafficking," and "unlawful conduct with respect to documents in furtherance of trafficking." It also created a national Office to Monitor and Combat Trafficking in Persons, and gave the feds authority to seize traffickers' assets.
The TVPA's 2003 reauthorization gave law enforcement the ability to use wiretapping to investigate sex trafficking and child sexual exploitation, increased the minimum and maximum sentencing requirements for a variety of sex offenses, and instituted a "two strikes, you're out" rule requiring mandatory life imprisonment upon a second sex offense involving a minor, "unless the sentence of death is imposed." The 2005 reauthorization added human trafficking to crimes that can trigger the federal Racketeer Influenced Corrupt Organizations (RICO) law, expanded asset forfeiture possibilities, and directed the CIA to study "the interrelationship between trafficking in persons and terrorism." It also increased funding for the prosecution of "persons who engage in the purchase of commercial sex acts."
In 2008, legislators enhanced criminal penalties for human trafficking and expanded what qualifies to include several new areas, including anyone who "obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of" anti-trafficking laws. It specified that in minor sex trafficking cases, "The Government need not prove that the defendant knew that the person had not attained the age of 18 years." And it significantly increased federal funding—doubling some appropriations and more than tripling others—for anti-trafficking efforts at home and abroad. The 2013 reauthorization increased federal involvement with state and local anti-trafficking efforts.
This year's Justice for Victims of Trafficking Act made soliciting paid sex from a minor a form of federal sex trafficking; established a Domestic Trafficking Victims' Fund into which anyone convicted of trafficking must pay $5,000; and lowered the evidentiary standard for proving trafficking charges. The act also established that websites and publishers—from classified ad sites such as Craigslist to social media services such as Twitter and Reddit—may be charged with sex trafficking if any victim is found to have advertised there. And it created a "HERO corps" of military veterans who will work with Immigrations and Customs Enforcement agents to fight cybercrime, including "digital intellectual property theft" and "hidden marketplaces."
Sen. Cornyn called it a "first step."
The State Department's 2014 Trafficking in Persons report states explicitly that our current penalties for human trafficking "are sufficiently stringent and commensurate with penalties prescribed for other serious offenses." Penalties for forced labor, involuntary servitude, or peonage range from five to 20 years without aggravating factors; possible life imprisonment with them. Sex traffickers can receive up to life imprisonment, and are required to serve at least 10 years in prison if the victim is under 17 and 15 years if the victim is under 14. Victims may also independently file a civil cause of action; something 117 have done since 2003, with a 75 percent success rate.
In addition to federal anti-trafficking laws, states have been adopting a flurry of their own measures. In 2014 alone, 31 states passed new laws concerning human trafficking. Since the start of 2015, at least 22 states have done so.
Echoing the policy choices of the drug war, one common trend in these laws has been harsher sentences for trafficking offenses, including new mandatory minimums. In Florida, helping a minor engage in prostitution in any way now comes with mandatory life imprisonment. In Louisiana, labor trafficking of a minor comes with a five-year mandatory minimum, and sex trafficking of a minor 15 years. In New Jersey, soliciting a minor for paid sex comes with a minimum $15,000 fine. Some states have also started adding "aggravating" factors that trigger higher penalties, such as the offense taking place within a certain distance of a school or group home.
Another trend is adding trafficking-related offenses to those that get perps on sex-offender registries. Last January, Arkansas passed a bill requiring anyone convicted of trafficking in persons or "patronizing a victim of human trafficking" to register as a sex offender. Increasing criminal penalties on patrons, or "johns," has been hot in state legislatures, too.
In 21 states, "sex trafficking laws have been amended or originally enacted with the intent to decisively reach the action of buyers of sex," according to the anti-trafficking nonprofit Shared Hope International. In 2014, Michigan changed soliciting someone under 18 for sex from a misdemeanor to a felony sex offense. Florida recently stipulated that people found guilty of soliciting prostitution (from someone of any age) must do 100 hours of community service and attend "john school," where they will be educated on "the negative effects of prostitution and human trafficking."
Expanding police/prosecutorial power to fight and profit from trafficking is also common. At least 21 states now allow police to use wiretapping in trafficking investigations. And many states allow asset forfeiture for those convicted of sex trafficking or prostitution. For instance, in Colorado, "every building or part of a building including the ground upon which it is situated and all fixtures and contents thereof, every vehicle, and any real property" are up for grabs if they've been used in conjunction with prostitution of any kind.
The final category of popular new state laws seems predominantly concerned with "raising awareness," be it via classes for hotel employees, programs in school curricula, or signs posted in strip clubs. Dozens of states now require certain entities—from adult-entertainment businesses and job-placement firms to hospitals, rest stops, and airports—to post the National Human Trafficking Hotline number, or face penalties. In Georgia, failure to do so can result in fines of between $500 and $5,000.
Federal agencies are also in the trafficking publicity game. In July 2015, the DHS announced the expansion of "awareness efforts to major airports, truck stops, and motorist gas stations across the country," where it will fund messages describing "the signs of human trafficking" on signs, video monitors, and shopping bags. The Equal Employment Opportunity Commission conducted more than 250 human trafficking "outreach events" in 2013 alone.
If there's no empirical evidence that domestic human trafficking is increasing, and the State Department says we already have adequate laws to go after traffickers, then what's driving this current legislative frenzy?
One factor is opposition to prostitution, even between consenting adults. Since the 1990s, a coalition of Christian and radical feminist activists has been working to redefine all prostitution as sex trafficking. While the Clinton administration was unsympathetic to their efforts, they found a friend in President George W. Bush. In a 2002 National Security Presidential Directive, the White House stated that prostitution was "inherently harmful and dehumanizing." Hence the administration's new rule: Non-governmental organizations receiving federal funds to fight human trafficking (or AIDS) must explicitly oppose prostitution.
"Prostitution is not the oldest profession, but the oldest form of oppression," a State Department publication from 2004 reads. The agency stated that "the vast majority of women in prostitution don't want to be there," that "few activities are as brutal and damaging to people as prostitution," and that "prostitution leaves women and children physically, mentally, emotionally, and spiritually devastated," with damage that "can never be undone."
"Since the early 2000s, anti-prostitution policies at the federal level have translated into increasingly aggressive state and local-level policing of sex workers and their customers," wrote Kari Lerum, Kiesha McCurtis, Penelope Saunders, and Stephanie Wahab in a 2012 article for Anti-Trafficking Review. This conflation of trafficking and prostitution "has allowed for federal dollars to be used locally for anti-prostitution purposes," the authors noted. "Anti-trafficking raids, such as Operation Cross Country held annually since 2006, have resulted in the arrest of many sex workers nationwide using federal anti-trafficking dollars."
The goal of Operation Cross Country, according to the FBI's website, is "to recover victims of child sex trafficking." In 2014, more than a dozen cities took part. Knoxville, Tennessee, to cite one participant, uncovered zero underage victims of sex trafficking, but it did arrest eight women for prostitution, four women for promoting prostitution, two women for human trafficking, and four men for solicitation. In Newark, New Jersey, one 14-year-old victim was identified and 45 people were arrested for prostitution or pimping. Richmond, Virginia, found no child victims but charged 26 people with prostitution and two with pimping. In Atlanta, dozens were arrested for prostitution, loitering, soliciting, and drug possession.
Phoenix officials announced the most victims recovered: five minors and 42 adults. But dig beyond the press release and you'll see the adult "victims" included women willingly working in prostitution. Officers posing as clients answered these women's online ads and then apprehended them. One 20-year-old "victim" had her arm broken by the cops when she tried to flee. A 16-year-old victim was booked on prostitution charges when she refused to let officers contact her parents. After failing to secure emergency shelter for two adult victims who had no money and no identification, police returned them to the motel where they'd been apprehended "so they could try and arrange funds to get back" home.