Sex Trafficking Not Always a 'Crime of Violence' Says Federal Court
At stake: Possessing a firearm during a "crime of violence" adds five extra years to a felony sentence.
It's being reported as an "outrage," but the reasoning behind a recent federal court decision declaring sex trafficking "not a violent crime" is more a matter of statutory language than the belief that forcing someone into prostitution is no big deal.
The case involves two men, Kevin Garcia Fuertes and German de Jesus Ventura, who ran several brothels around Maryland and one in Portsmouth, Virgina. Most of the women who worked at these brothels did so willingly, were paid, and came and went as they pleased, sometimes traveling in from out-of-state to work for a week at a time. Ventura's girlfriend, however—"a young woman illegally present in the country with no English skills and a third-grade education," according to court documents—says he held her against her will and compelled her to engage in prostitution using violence and threats of violence. Prosecutors said Fuertes was aware that this was going on.
In the course of the police sex-trafficking investigation, several of the women working at the brothels were arrested for prostitution. Ventura and Fuertes were indicted for various federal sex-trafficking and prostitution-related offenses, including sex trafficking by force, fraud, or coercion; transportation of an individual in interstate commerce for the purpose of prostitution; and conspiracy to transport someone for the purpose of prostitution. Ventura was also charged with enticing an individual to travel in interstate commerce for the purpose of prostitution, more counts of transporting for prostitution, and possession of a firearm in relation to a violent crime.
A jury found Ventura guilty on all counts, and Fuertes guilty of sex trafficking and conspiracy. They were sentenced to 35 years and 19.5 years in prison, respectively, with the firearm possession charge adding a five-year mandatory minimum sentence to Ventura's time.
The men appealed. In August, the U.S. Court of Appeals for the Fourth Circuit upheld most of the convictions while striking down Ventura's conviction for "possession and use of a firearm in relation to a crime of violence." The charge "was erroneous," the court wrote, "because, we hold, sex trafficking by force, fraud, or coercion, in violation of (federal law) is not categorically a violent crime."
The categorically there is an important—to trigger the firearm charge in question (and its mandatory minimum sentence), a gun must be used in conjunction with a felony crime that by statuatory definition always involves "use, attempted use, or threatened use of physical force against the person or property of another" or "involves a substantial risk that" such physical force will be used in the couse of committing the offense."
"One possibility is that the court was making a move to circumscribe the reach of controversial mandatory minimum sentencing," writes Andrew Mark Bennett at The Daily Beast.
By limiting what is considered a crime of violence in this case, the court may be sending a message that it will not readily recognize other crimes as crimes of violence in future cases. The result would be a decrease in future mandatory minimum 924(c) convictions. But if that was indeed the court's intent, it could have openly said so, to likely greater effect. The most compelling explanation is that the court simply did not understand the true scope of violence in sex trafficking.
There's no need to invent judicial motivations here, however. Rather, we have a 30-something page document in which Judge Andre Davis explains the court's reasoning.
"When a statute defines an offense using a single, indivisible set of elements that allows for both violent and nonviolent means of commission, the offense is not a categorical crime of violence," Davis explained. For instance, because "the Maryland offense of resisting arrest has a single and indivisible set of elements that may be committed by either violent or nonviolent means, it does not qualify categorically as a crime of violence." Second-degree assault in Maryland is also not distinguished as a categorically "violent felony." Burglary, however, can be considered a categorically violent crime, because it's defined as breaking into someone's home to either "commit violence" or theft—inherent in the crime is the required "physical force against the person or property."
Federal criminal code lumps together as one crime "sex trafficking by force, fraud, or coercion." Because the law specifies "that sex trafficking by force, fraud, or coercion may be committed nonviolently—i.e., through fraudulent means—the offense does not qualify as a categorical crime of violence under the force clause," the court ruled.
"Senior Judge Andre Davis… overlooked that sex trafficking is a violent trespass on human beings' bodies, particularly women's bodies," writes Bennett.
He didn't. In fact, Judge Davis specifically addressed the fact that compelled prostitution may result in physical violence (i.e., rape, assault) against victims, noting federal prosecutors' position "that sex trafficking is categorically a crime of violence under (federal criminal code) because, even where the defendant effects the offense by means of fraud, there is still a substantial risk of physical injury from the prostitute's customers, or johns."
But "this argument misapprehends the (statute), which specifies that a felony is a crime of violence when it, 'by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," writes Davis. "The relevant inquiry is not whether there is a risk of any person using force in any way tangentially related to an on-going offense, but rather whether there is a substantial risk of the defendant doing so."
Note that he doesn't mean the particular defendant in this case, Ventura, but any defendant charged with federal sex trafficking of an adult—a crime which is defined as using physical force or other means to compel prostitution. While Bennett assumes the court was making a statement about either mandatory minimums or sex trafficking, judges actually seem to have taken the only non-activist position, ruling that a crime defined as sometimes not involving physical force can't also be defined as categorically involving physical force.
Sex-trafficking of a minor is categorically a crime of violence under federal law, according to a previous court ruling. Interestingly, using physical force is not a required element of committing sex trafficking of a minor; nor are fraud, coercion, kidnapping, or any other element used to compel sexual activity. Because people under 18 are not able to legally consent to sex work, anyone who knowingly helps them in that endeavor can be charged with sex trafficking, even if they're not aware the person was a minor.