Victim or Prostitute?

A Closer Look at U.S. Trafficking Laws Surrounding Trafficking

“Arresting and detaining [individuals] who have endured systematic, commercial rape re-traumatizes and re-victimizes them and is, without question, a human rights violation.” Despite these considerations, and increasing awareness regarding the human rights of trafficking survivors, adults — and even children — continue to be charged with prostitution in the United States every year.

It is clear that our justice system is failing in its response to trafficking victims. This is due to well-intentioned, yet inadequate, laws and how difficult it is to distinguish between sex trafficking victims and those who willingly enter prostitution for law enforcement personnel. To better address the needs of survivors in the United States, it is important to look at the history of trafficking legislation in the country, and how it has evolved.

A History of Trafficking Legislation in the U.S.

In 2000, the United States adopted human trafficking as a federal crime. The federal government’s jurisdiction over human trafficking cases is due to two factors:  

  1. the Thirteenth Amendment, which abolished slavery
  2. the Commerce Clause, which allows Congress to regulate international and interstate commerce.

Unfortunately, human trafficking cases often fall in the overlap between federal and local jurisdiction. This can result in harsher punishments for the traffickers, but also for the victims. Currently, every state has laws in place against human trafficking, but most are underdeveloped and not well understood by law enforcement and state prosecutors. State officials, having much more experience with prostitution cases, will often defer the case to the federal level or charge victims with prostitution.

This response is problematic, however. Prosecuting victims of trafficking for prostitution erodes their trust in the police and denies them any aid they would receive as a trafficking victim. This not only re-victimizes survivors, it also makes them more susceptible to future trafficking — creating a cycle of vulnerability. Many legislators and NGOs are also worried that inconsistency among state laws will lead to “destination states” —  areas  traffickers will flock to because of lenient trafficking policies.

Shared Hope International developed a system to annually evaluate individual states based on their laws to combat human trafficking, as well as their improvement from year to year. Ratings from 0-100 are assigned and take into account criminalization of domestic minor sex trafficking, protective provisions for children and victims and criminal provisions for demand (demand includes buyers of trafficking victims for commercial sex and child pornography), as well as traffickers and facilitators (facilitators are those who aid in the trafficking process but are not directly connected with the victims).  

Case Studies: Tennessee, California, New York and Texas

Tennessee, California, New York and Texas are all states with large trafficking problems, however the legislation and response to trafficking in each state varies wildly. The 2017 grades received by each of these states ranged from F to high A. Tennessee, one of the leading states in the country, received a 96.5 with Texas, California and New York receiving a 93.5, 76 and 66, respectively. Because of the high amount of trafficking in these states, it is important to examine what is, and is not, working effectively to identify where improvements can be made in the fight to end slavery in the United States.

One of the biggest challenges that currently remains with anti-trafficking legislation in the United States is that those forced into sexual slavery can be, and often are, charged with prostitution.

According to Tennessee House Bill (HB) 2823/ State Bill (SB) 2590, adults charged with prostitution in the State of Tennessee can defend themselves based on the claim that the conduct “occurred because a person was a victim of involuntary labor services, a victim of trafficking for sexual servitude or a victim as defined under the federal Trafficking Victims Protection Act.” Additionally, in Tennessee all commercially sexually exploited children (CSEC) are considered sex trafficking victims; there is no need to prove force, fraud or coercion. In January 2017, California officially decriminalized the prostitution of minors. Under California law, minors “are provided with an affirmative defense to other crimes arising from trafficking victimization” in these cases. In Texas, all CSEC are defined as juvenile sex trafficking victims, however, no law prohibits minors under 18 from being prosecuted for prostitution. Still,“case law has held that a child under 14 may not be charged with prostitution”.

Unfortunately, New York still requires proof of force, fraud or coercion, even in cases involving minors. Although minors being bought and sold for sex in New York are presumed to be trafficking victims, they can still be arrested for prostitution. It is clear after examining the policy of just 4 states, how much confusion can arise from disconnected and contradictory legislation regarding the prosecution of prostitution vs. trafficking victims.

Protecting Survivors & the Need for Aftercare

State laws also vary on their protective provisions for survivors of trafficking. This variation can get confusing, however, when legislation is new and not fully understood.  For example, in California and Tennessee, there are statutes of limitations for sex trafficking cases, however in California, this statute can be removed for cases when force, fear or coercion are used to keep victims silent. In providing rehabilitation services, Texas implemented policies that allow minors to avoid prostitution charges by taking part in a Trafficking in Persons Program and a number of other victim rehabilitation services created by the Governor.  

In New York, minors have access to special safe houses with highly trained staff, but they are only available if individuals are willing to cooperate with law enforcement. If not, they are at risk for being charged with delinquent prostitution. In Tennessee, access to victim services and compensation is dependent on compliance with police and whether or not the crimes were reported within the first year. Furthermore, “rape shield” laws — intended to protect victims of sexual abuse from re-victimization — do not apply to CSEC victims in most states, forcing many young victims to come face to face with their abusers in court and suffer through destructive cross-examinations.

Policy Change: A Sustainable Way to Combat Trafficking in Our Own Communities

It is clear that while some states responding to human trafficking survivors better than others, all have room to improve. Every state needs to adopt policies that assume minors in the commercial sex industry are trafficking victims, not prostitutes. Additionally, state officials and law enforcement personnel need to be trained to understand the differences between prostitution and human trafficking, and how often the boundaries are blurred within this violent cycle of abuse. Finally, all states should prioritize improving their practices related to victim aftercare. Victims should not be required to cooperate with police to receive services, and trial procedures should not re-traumatize those who have already endured so much. If all victims were allowed to testify through a closed-circuit television and were free from cross-examination, more would be encouraged to press charges.  An increase in testimony has the potential to further increase arrests and convictions. Appropriate victim care, and the policy that ensures it, is truly one of the largest steps forward in the fight to end human trafficking.

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

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Eichelberger, Erika. “Why are police still arresting children for prostitution?” Splinter. June 22, 2016. Accessed January 25, 2018. 
T.N. Congress. Tennessee General Assembly Fiscal Review Committee . HB2823/SB2590.
“Tennessee Report Card 2017.” 2017. Accessed January 25, 2018.
“California Prostitution Laws.” Findlaw. Accessed January 25, 2018.
“California Report Card 2017.” 2017. Accessed January 25, 2018.
“Texas Report Card 2017.” 2017. Accessed January 25, 2018.
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.