A Legislative Crisis

How Traffickers Are Taking Advantage of Our Own Communities

Human trafficking is currently the second largest illegal industry in the world, and it is one that is rapidly growing. Unlike illicit drugs, which can only be used a single time, human trafficking provides a product that can be be sold over and over again at little to no additional cost. This creates a practically unending revenue source that costs the trafficker nothing more than the bare minimum cost of food and lodging. Because of weak laws related to trafficking in some states, traffickers are often able to benefit from enormous profit margins with very little risk.

The previous post discussed various legal protections and services available to trafficking victims in four states: Tennessee, Texas, California and New York. All have significant human trafficking problems, and yet each state’s laws are incredibly different.

Weak Laws Create Legal Loopholes

Not only does victim care and identification vary state to state, prosecution laws for buyers, traffickers and facilitators are all widely divided. It is easy to then see how some states, those with more lenient laws and punishments, are more profitable to traffickers than others. Without uniform legislation, the unfortunate reality is that these “loophole states” will continue to allow human trafficking to grow and flourish.

"Unlike illicit drugs, which can only be used a single time, human trafficking provides a product that can be sold over and over again."

Leading the Way

Tennessee is one of the states leading the charge in anti-trafficking legislation. First, Tennessee makes a clear distinction within their legal code between adult and child trafficking victims, and establishes more severe punishments for the trafficking of minors. According to Tennessee law, committing or facilitating sex trafficking can result in 8-30 years imprisonment along with a $25,000 fine. If the victim is under 15, however, it results in a minimum sentence of 15-16 years and a $50,000 fine. Additionally, anyone convicted of possessing child pornography or purchasing a child for the purpose of sexual exploitation is required by law to register as a sex offender.  Finally, Tennessee provides a great example by prohibiting the ‘mistake of age’ defense, where a defendant claims they did not realize the victim was under 18 when purchasing sex. Further, a defense cannot be made based on the willingness of a minor to a commit a commercial sex act.

Texas has followed Tennessee’s example by implementing severe legal punishments for human trafficking. Those found guilty of promoting prostitution can now face up to 20 years in prison and a $10,000 fine. If a minor is involved, however, this punishment is increased to up to 99 years imprisonment, along with the $10,000 fine.  Additionally, any connection to the sexual exploitation of a child requires sex offender registration. In Texas, defendants who have purchased sex are also not allowed to claim ‘mistake of age’ in their defense. There are two spots lacking in Texas’ policy and legislation, however. Currently, there is no law addressing sex tourism and defendants are still able to claim ‘willingness on the part of the victim,’ even in juvenile cases. This powerful defense claim has the potential to lessen a defendant’s sentencing.

A State Conflicted

California is making efforts to combat human trafficking, but is not yet at the level of Tennessee or Texas. On a positive note, California does set stricter penalties for trafficking cases involving minors, and does automatically consider minors in the commercial sex industry trafficking victims. One of the biggest problems with California’s laws, however, is that trafficking laws do not necessarily apply to buyers, even in cases involving minors. Buyers are typically charged with disorderly conduct, which is accompanied by incredibly lenient punishment of up to a year in prison and a $10,000 fine. The defendant can receive additional penalties if the prosecution can prove the defendant should have known the victim was a minor, but this is difficult when ‘mistake of age’ defenses are allowed in California. Additionally, while a conviction for buying or possessing child pornography requires sex offender registration, a disorderly conduct charge does not. Further, child pornography laws in California are still lenient compared to similar federal crimes.  

In terms of punishments for traffickers, they can face a 5-12 year prison sentence and a $500,000 to $1,000,000 fine, if a child is involved. Anyone convicted of child trafficking is also required to register as a sex offender. In California, traffickers are also required to pay restitution to victims. Finally, if a parent is convicted of human trafficking, it is grounds to terminate their parental rights. While this policy is meant to protect and remove children from harm, it is important to recognize that it may also make them vulnerable as dependent of the courts. Children in foster care are one of the most at-risk populations for abuse and trafficking in the U.S., and protective measures must go beyond the courtroom.  

A Major ‘Loophole State’

New York is a state with very lenient trafficking laws. Currently, trafficking legislation does not apply to buyers. Because of this, penalties for buyers of sexualy exploited children are not aligned with the severity of the crime. Punishments are more severe for those buying a prostitute under 15, but defendants are allowed to claim a ‘mistake of age’ defense. If a person is convicted of sexually exploiting a child, they are required to register as a sex offender but only face 1-7 years in prison and a $5,000 fine — less punishment than any of the other states examined.

As a convicted trafficker in the state of New York, you can face 10 years – life in prison, which is equivalent to federal laws, and a fine of $5,000 or double the amount gained off the exploitation. Traffickers are also required to provide victim restitution. Unfortunately, in New York, a trafficking or child sexual exploitation charge is not enough to remove parental rights, unless the parent is receiving significant jail time. Finally, for all cases, including those involving minors, defendants are able to claim a victim’s ‘willingness to commit the act’ as a defense.

A Need for Change

It is very clear that state laws vary significantly in their punishment for human trafficking. This disconnect is problematic, however, because the states that are more lenient actually encourage traffickers. Large-scale legislative change is required in many states produce more consistency in policy. As a first step,  all states should require both stronger punishment and sex offender registration for crimes involving minors. It may also be beneficial to require traffickers and those who purchased sex from adult trafficking victims to register as sex offenders as well. Additionally, states should have similar punishments for both buyers and sellers, in an effort to stop trafficking from each end. As long as there are lenient punishments for buyers, there will continue to be demand for trafficked services. Without decreasing demand, it will be infinitely harder to see an end to human trafficking. While many states have made massive improvements in the last few years, there still remains a lot of room to grow in order to effectively combat human trafficking in our own communities.

"As long as there are lenient punishments for buyers, there will continue to be demand for trafficked services."

— Post researched and written by Free for Life’s spring intern, Josh Rickerman 

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Resources:
California Report Card 2017.” 2017. Accessed January 25, 2018. https://sharedhope.org/PICframe7/reportcards/PIC_RC_2017_CA.pdf
New York Report Card 2017.” 2017. Accessed January 25, 2018. https://sharedhope.org/PICframe7/reportcards/PIC_RC_2017_NY.pdf
“Tennessee Report Card 2017.” 2017. Accessed January 25, 2018. https://sharedhope.org/PICframe7/reportcards/PIC_RC_2017_TN.pdf.
“Texas Report Card 2017.” 2017. Accessed January 25, 2018. https://sharedhope.org/PICframe7/reportcards/PIC_RC_2017_TX.pdf
Free for Life
Free for Life Team
Free for Life is fighting Human Trafficking in Nepal by partnering with organizations and individuals globally to meet the needs of trafficking survivors and those who are considered to be at high risk of being trafficked. Together with our partners, we provide financial, emotional and spiritual support. View more posts by Free for Life.