“Commercial Sex, the New ‘Terrorism’?” - Why You Need To Worry About H.R. 3530

On May 20, 2014, to little fanfare, the House of Representatives passed H.R. 3530, the so-called “Justice for Victims of Trafficking Act” in a 409-0 vote. If you have been concerned about the barrage of legislation targeting commercial sex under the guise of anti-trafficking, and the hairs on the back of your neck go up at the choice of words in that title, your anxiety is well-taken.

First, in the name of “streamlining state and local human trafficking investigations”, Section 5 of the bill would amend 18 U.S.C. § 2516 to allow state prosecutors to seek a wiretap in state courts in cases where they claim to have probable cause of “human trafficking, child sexual exploitation [and] child pornography production” regardless of whether or not state law authorized such wiretaps.

Thus, even though the California Legislature has restricted the use of wiretap applications to cases of narcotics trafficking, murder, terrorism and gang activity and kidnapping, these limitations set forth in P.C. § 629.52 would be chucked out the window if a prosecutor could persuade a magistrate that she had probable cause to believe “human trafficking, child sexual exploitation [and] child pornography production” was going on and that normal investigative tactics would not be effective. This would be a dramatic expansion of governmental electronic surveillance in direct contravention to the will of California’s voters, but that’s not even the worst part of the bill.

That distinction goes to Section 7 of the measure, which would classify people who purchase sex from a minor (known to the bill as “human trafficking victims”) as traffickers. As a result, if a patron is arrested for “maintain[ing], patroniz[ing], or solicit[ing]” an underage sex worker, they can be subject to the same penalties as the individuals who forced or coerced an adult or minor to engage in commercial sex —i.e. either ten years to life or fifteen years to life.

What about those customers who claim they reasonably believed that the sex worker they were retaining was of age? Currently, they can get a jury instruction on that claim if they are able to produce a preponderance of evidence (i.e. facts that would make a reasonable jury conclude it’s more likely than not to be true) at trial that they did not know the sex worker was a minor, which is the standard for the vast majority of affirmative defenses in criminal law.

Section 9 of H.R. 3530 would “fix” this by raising the standard needed to assert the mistake of age defense to “clear and convincing” evidence—e.g. the same standard the defendant would need to get a jury instruction on an insanity defense under federal law pursuant to 18 U.S.C. §17. This is particularly egregious because under current law applying to traffickers (which H.R. 3530 would extend to patrons) so long as the trafficker (patron) has had a “reasonable opportunity” to “observe” the sex worker (whatever that means), the government need not prove they knew the person was underage. See 18 U.S.C. §1591(c).

Conclusion

H.R. 3530 is the latest in a series of legislation which purportedly aims to “help” individuals classified as “victims of human trafficking” by expanding governmental powers of electronic surveillance, treating customers identically with principals and organizers and curtailing the due process rights of defendants charged with patronizing underage sex workers, while turning them into federal criminals.

Parts of the bill, which are beyond the scope of this article as they have to do with grant making, may have merit. Unfortunately, as presently written Section 5 is an inappropriate preemption of state law by the federal government, Section 7 would classify mere patrons as criminals deserving of greater punishment than those convicted of torture where no death results (18 U.S.C. §2340A), counterfeiters (18 U.S.C. §471) or those who cross state lines to incite a riot (18 U.S.C.A. § 2101).

There will be those who claim those who patronize underage sex workers are unworthy of our concern and that their rights must yield because of the alleged “evil” to be remedied and that it is impossible or highly unlikely that anyone who wasn’t intending to exploit an underage sex worker would be caught within the law’s net. My answer would be two words: Traci Lords.

It wasn’t that long ago that the disclosure that Ms. Lords had performed in a slew of adult productions while she was underage threw the industry into a tailspin and aroused Congress to enact the recordkeeping and inspection requirements set forth in 18 U.S.C. §2257. The people who employed Ms. Lords when she was underage—including, but not limited to, Penthouse magazine, had the opportunity to meet her and examine her documents. They had strong legal and economic incentives to not permit someone who was underage to work for them and had to make these judgment calls on a daily basis. Despite all that, they were still fooled.

Is it reasonable to expect someone who patronizes sex workers whom they do not personally know to do better, all the time, than the staff of Penthouse did with Ms. Lords? Customers of commercial sex may not be seeking out a minor to patronize, in fact may be actively trying to avoid minors, but this law will still give them ten years to life if they are mistaken about the age of the sex worker they solicit. Under the statute, they’d better—or they’re looking at least ten to life if they guess wrong.

And that, of course, is the point. The federal government wants to attack “demand” on the assumption that if it does that, “supply” will dry up in response. The flaw in this analysis is that the bill, as presently written, provides a perverse incentive for principals and organizers (or who used to be called “traffickers” before the bill stripped that word of its linguistic meaning through expansion to customers) to take their operations even further underground for operational security reasons. Of course, doing that makes it harder for the supposed intended beneficiaries of the bill—those who are underage—to be able to access services and seek assistance.

It’s time for the Senate to choose wisely. Sections 5, 7 and 9 should be stripped from the bill before it goes further.

Ms. DiEdoardo is a San Francisco resident and an active member of the State Bars of California and Nevada whose practice is focused on state and federal criminal defense. For more information about Ms. DiEdoardo and her firm, visit http://www.diedoardolaw.com. Nothing in this article should be construed as legal advice and no attorney-client relationship between the reader and Ms. DiEdoardo is created by reading it.