“Human trafficking” is an umbrella term that encompasses many different kinds of forced labor.
“Sex trafficking” is only one of the many broad categories of human trafficking.
The problem with charging someone with the crime of “sex trafficking” is:
- First, it is difficult to determine what alleged sex trafficking is actually criminal sexual exploitation, and what is not.
- Second, victims experience further victimization when they enter the law enforcement system.
- Third, “marginal players” who own legitimate businesses like car services and advertising companies are being charged for sex trafficking after unknowingly helping traffickers. Regardless of their knowledge, these “marginal players” are being charged as equal participants in the crime.
Defending Against Charges of Sex Trafficking
Our lawyers have successfully represented clients in several high profile sex-trafficking cases.
Below, we will discuss:
- The definition of “human trafficking”
- The laws on “trafficking in persons”
- The prosecution of “marginal players”
- The agencies involved in investigating and reporting; and
- The penalties for violating the U.S. laws on trafficking in persons.
If you have been charged with a crime related to human trafficking and are looking for an attorney experienced in defending against these types of charges, contact us for a free legal review of your case.
Human Trafficking is More Common Than You Think
From the human trafficking of farmworkers to the labor trafficking of restaurant and food service employees, hotel employees and housekeepers, humans are exploited in many different ways.
In 2017, Polaris—a nonprofit organization that works to combat and prevent human trafficking—released an innovative report, which identified twenty-five individual types of human trafficking in the United States today.[1]
Sex trafficking through (1) outdoor solicitation, (2) escort services, (3) illicit massage parlors, (4) remote interactive sexual acts, and (5) pornography are only five out of the twenty-five types of human trafficking identified in the 2017 Polaris report.
United Nations Law on “Human Trafficking”
Sex trafficking is a crime under federal and international law.
The United Nations definition of human trafficking can be broken down to require three basic elements:
- An Act
- Recruitment
- Transportation
- Transfer
- Harboring; or
- Receipt
- Of persons
- By Particular means
- By means of
- the threat or use of force; or
- other forms of coercion
- Abduction
- Fraud
- Deception
- Abuse of power
- The position of vulnerability; or
- The giving or receiving of payments; or
- The giving or receiving of benefits;
- To achieve the consent of the person having control over another person
- For a Particular Purpose
- For the purpose of exploitation
- Involuntary servitude
- Debt bondage
- Slavery
- Sexual exploitation
U.S. Federal Laws on “Trafficking in Persons”
The Trafficking Victims Protection Act (“TVPA”), enacted in 2000 and subsequently amended in 2003, 2005, 2008, and 2013, is the legislative framework criminalizing trafficking in persons in the U.S.
| Date Enacted | Law Enacted |
| 10/28/00 | Victims of Trafficking and Violence Protection Act of 2000 |
| 01/07/03 | Trafficking Victims Protection Reauthorization Act of 2003 |
| 01/07/03 | Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003
(Protect Act) |
| 01/10/06 | Trafficking Victims Protection Reauthorization Act of 2005 |
| 01/01/08 | William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 |
| 03/07/13 | Trafficking Victims Protection Reauthorization Act of 2013
(Title XII of the Violence Against Women Reauthorization Act) |
| 05/28/15 | Survivors of Human Trafficking Empowerment Act of 2015
(Section 115 of the Justice for Victims of Trafficking Act of 2015) |
Trafficking Victims Protection Act of 2000
In 2000, the U.S. passed the Trafficking Victims Protection Act (“TVPA”). The TVPA was the first federal law in the U.S. to address human trafficking and it focused mainly on promoting policies of protection, prosecution, and prevention.
The TVPA, codified by 22 U.S.C §§ 7101 – 7114 describe several forms of trafficking in persons and includes:
o Trafficking in which a commercial sex act is induced by “force, fraud, or coercion”;
o Trafficking in which the person induced to perform such an act has not attained 18 years of age; or
o The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion.
“Trafficking in Persons”
The term “trafficking in persons” is a bit misleading. While it seems to imply moving people across continents or state lines, physically moving from one place to another is not a requirement of the TVPA.
On the other hand, “force, fraud, or coercion” is required for your act to be considered “trafficking” under the TVPA.
“Force, Fraud, and Coercion”
In order to be convicted of sex trafficking under the TVPA, the situation must include:
o Force: This includes the use of force or the threat of violence.
o Fraud: Fraudulent or deceitful recruitment practices like debt accumulation.
o Coercion: Coercive acts like emotional manipulation, threats of law enforcement, threats of deportation, or threatening consequences to family members.
Persons Under the Age of 18
Under the TVPA, any person under the age of 18 who performs a “commercial sex act” is considered a victim of human trafficking—regardless of whether “force, fraud, or coercion” was present.
“Commercial Sex Act”
Any sex act where anything of value is given or received by any person.
Amendments to the TVPA
Trafficking Victims Protection Reauthorization Act of 2003:
- Allows dissemination of materials to alert travelers that sex tourism is illegal.
- Creates a cause of action for trafficked victims to sue their traffickers in federal court.
- Requires the Attorney General to report annually on anti-trafficking efforts.
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“Protect Act”)
- Established programs to obtain criminal background checks for volunteer organizations.
- Authorized wiretapping and monitoring of communications in all cases related to child abuse or kidnapping.
- Increased penalties for sex offenders against children including life imprisonment for repeat offenders.
- Eliminates statute of limitations for child abduction or child abuse.
- Bars pretrial release of persons charged with specific offenses against or involving children.
- Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad—with or without the intent of engaging in sexual misconduct.
- Established the national “Amber Alert” network and “Code Adam” systems to recover abducted children.
Trafficking Victims Protection Reauthorization Act of 2005
- Expanded victim assistance programs to U.S. citizens or resident aliens subjected to trafficking.
- Developed rehabilitation and service facilities for trafficking victims.
- Developed extraterritorial jurisdiction over trafficking offenses committed overseas by persons employed by the federal government.
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
- Establishes new crimes for anyone who obstructs or attempts to obstruct investigations of trafficking.
- Changed the standard of proof required for the crime of sex trafficking to require that the government only have to prove the defendant acted in “reckless disregard of the fact that such means [force, fraud or coercion] would be used.”
- Eliminated the requirement in sex trafficking charges that the defendant know the person engaging in commercial sex was a minor where the defendant had a reasonable opportunity to observe them.
- Imposed criminal liability on those who, knowingly and with intent to defraud, recruit workers from outside the U.S. for employment within the U.S. by making materially false or fraudulent representations.
- Increased the penalty for conspiring to commit trafficking.
- Created a penalty for those who knowingly benefit financially from the participation in trafficking.
- Added measures to provide information to people entering the U.S. and established protections for alien minors.
Trafficking Victims Protection Reauthorization Act of 2013 (“Title XII of the Violence Against Women Reauthorization Act”)
- Provided resources that support holistic services for survivors.
- Penalized the confiscation of identification documents by traffickers—which is a common tactic to coerce victims into trafficking by immobilizing them.[3] This rule applies even if the documents they possessed were forged or fraudulent.
- Allows victims who assist in the prosecution of their traffickers to receive a “T-Visa” which allows the victim to remain in the United States.
- Allows law enforcement to prosecute U.S. citizens living abroad who sexually exploit children commercially.
Online Advertising and Marketing
While some buyers discover sex trafficking locations by word-of-mouth, others use websites like “Backpage.com, “Craigslist,” and “Redbook.com” to discover new avenues of sex trafficking.
According to the TVPA, creators of content like online marketing and advertisements who “recruit” or “harbor” victims of sex trafficking may also be found liable of felonies violating the TVPA.
Charges against individuals for advertising and marketing can implicate violations of your First Amendment right to free speech.
If you are charged with online advertising or marketing in connection with sex trafficking, your attorney should be prepared to argue for the protection of your right to free speech through commercial advertisements.
Investigating and Reporting
In the U.S., there are multiple federal agencies that conduct investigations into trafficking in persons.
The majority of cases are handled by two agencies:
- The Federal Bureau of Investigation (“FBI”): The FBI has assigned specialized officers to the human trafficking initiative since 2005.
- The U.S. Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”)
In 2017, the NYPD announced that it had formed a joint test force with the FBI to combat sex trafficking.
Penalties for Violating the TVPA
The charge of conspiring to transport individuals in interstate commerce for the purpose of illegal sexual activity carries a maximum sentence of five years in prison.
In addition, counts of transporting individuals between states, which carry a maximum sentence of 10 years in prison, can be added for each individual allegedly transported.
Additional Consequences
Arrest records and the stigma involved with crimes like prostitution and sex trafficking can follow you forever and can have additional consequences beyond criminal charges.
- Civil Asset Forfeiture: Federal law permits federal agents to seize your money and assets if they suspect you have committed sex trafficking.
- Deportation: Deportation to your country of origin because of charges related to sex trafficking.
- Housing: Inability to rent an apartment because of charges related to sex trafficking
- Employment opportunities: Inability to find work because of charges related to sex trafficking.
- Sigma: After being charged with prostitution or sex trafficking, how other perceive you may change. This stigma could follow you forever.
Civil Asset Forfeiture
Federal law permits federal agents to seize your money and assets if they suspect you have committed a crime like sex trafficking, conspiracy, or money laundering.
Network sweeps in organized crime have lead to the seizure of employee bank accounts, along with their homes and other assets.
This can mean funding sponsors and business partners—who fund what seem to be legitimate businesses—are met with federal agents taking their house and car, freezing their bank accounts and shutting down their establishments.
Even those who are suspected of aiding and abetting the practice of sex trafficking may be the subjects of civil asset forfeiture.
Establishing a Defense to Sex Trafficking and Related Crimes
Human trafficking is no doubt a serious problem, with current United Nations estimates of forced labor at more than 40 million people—or about 1 out of every 180 people worldwide—with sex trafficking consisting of around 22%[4]
The problem with charging someone with the crime of “sex trafficking” is:
- First, it is difficult to determine what alleged sex trafficking is actually criminal sexual exploitation, and what is not.
- Second, victims experience further victimization when they enter the law enforcement system.
- Third, “marginal players” who own legitimate businesses like car services and advertising companies are being charged for sex trafficking after unknowingly helping traffickers. Regardless of their knowledge, these “marginal players” are being charged as equal participants in the crime.
Marginal Players
Indictments for human trafficking are on the rise as government efforts expand to include bringing charges of sex trafficking against “marginal players.”
“Marginal players” are people running legitimate businesses—like car services and advertising companies—who have unknowingly helped traffickers.
In most cases, each of these marginal players is charged as an equal participant.
Sometimes, those charged don’t even know the traffickers, but they are charged as if they forced victims into the actions themselves.
Federal prosecutors are targeting owners, managers, brokers, transporters, and advertisers in network-like sting operations across the country.
Lack of Intent
In order to be found guilty of violating the prohibitions described in the TVPA, prosecutors must prove that you intentionally engaged in trafficking of persons.
You don’t need to know that your conduct is unlawful. If prosecutors can prove that you intended to traffic in persons—regardless of your knowledge of the law—you may be found liable.
The “purpose” of the trafficking was not criminal.
In order to be convicted of trafficking under the TVPA, you must intend to commit a crime or tort independent of the act of trafficking itself—unless the trafficking involved a child under the age of 18.[5]
If prosecutors cannot prove that the reason for your “trafficking” someone else was to carry out “involuntary servitude, debt bondage, slavery or sexual exploitation,” there is no cause of action against you under the TVPA.
Mislabeling Offenders
Distinguishing between human trafficking and prostitution can be difficult.
One involves consensual sex work and penalties, while the other involves coercion.
Many recent cases of sex trafficking involve foreign prostitutes who come to the United States in anticipation of continuing their trade.
These individuals are willing to work in the sex industry, but are often considered victims of human trafficking by overzealous prosecutors.
Simply put, not everyone believed to be a victim of human trafficking is—just like not everyone thought to be guilty of facilitating human trafficking is.
Vacating Records for Crimes Committed as a Result of Being Subject to Trafficking
“Vacatur” is the formal recognition of “factual innocence.”
Vacatur increases a victim’s ability to find work by reducing the additional consequences and economic vulnerabilities discussed above.
In 2010, New York became the first state to pass a law allowing survivors of trafficking to vacate their convictions for prostitution offenses.
Call an Experienced Criminal Defense Attorney
Our firm has gone to battle with the FBI and Manhattan U.S. Attorney’s Office in and has successfully represented clients in several sex-trafficking cases in the Southern District of New York.
In that case, we were ultimately able to get the charges against our client dismissed.
If you or someone you know has been charged with a crime associated with sex trafficking, we are here to help. Call us now for a free legal review of your case.
