Justice for Victims of Trafficking Act: A Legal Analysis of the Criminal Provisions of P.L. 114-22
Released: 2015-06-09T00:00:00

Introduction

Early in the 114 th Congress, the House passed a proposed Justice for Victims of Trafficking Act ( H.R. 181 ). The Senate took S. 178 , the Senate companion to H.R. 181 , and added several other proposals from elsewhere. The package subsequently passed into law as the Justice for Victims of Trafficking Act of 2015, P.L. 114-22 . P.L. 114-22 consists in large measure of new or expanded federal anti-trafficking programs which are beyond the scope of this report. It does, however, include a number of substantive and procedural criminal law provisions which are discussed below.

Substantive Offenses

Most federal sex trafficking prosecutions arise under one of two statutes: 18 U.S.C. 1591, which outlaws commercial sex trafficking that has an impact on interstate or foreign commerce, and the Mann Act, which outlaws transportation and travel for unlawful sexual purposes. P.L. 114-22 addresses both.

Commercial Sex Trafficking

It amends Section 1591 to (1) confirm the coverage of the customers of a commercial sex trafficking enterprise; (2) outlaw advertising of a commercial sex trafficking enterprise; (3) clarify the government's burden of proof with regard to the age of the victim; and (4) enlarge the permissible term of supervised release for commercial sex trafficking conspirators.

Liability of Patrons

Prior to passage of P.L. 114-22 , §1591 outlawed commercial sex trafficking. More precisely, it outlawed:

knowingly recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining another individual knowing or with reckless disregard of the fact that the individual will be used to engage commercial sexual activity either as a child or virtue of the use of fraud or coercion when the activity occurs in or affects interstate or foreign commerce, or occurs within the special maritime or territorial jurisdiction of the United States.

It continues to outlaw separately profiting from such a venture.

Offenders face the prospect of life imprisonment with a mandatory minimum term of not less than 15 years (not less than 10 years if the victim is between the ages of 14 and 18). The same penalties apply to anyone who attempts to violate the provisions of Section 1591.

At first glance, Section 1591 did not appear to cover the customers of a sex trafficking enterprise. Moreover, in the absence of a specific provision, mere customers ordinarily are not considered either co-conspirators or accessories before the fact in a prostitution ring. This might be thought particularly so given the severity of the penalties that attend conviction. Nevertheless, the U.S. Court of Appeals for the Eighth Circuit held that the language of Section 1591(a) applied to the cases of two customers caught in a law enforcement "sting" when they attempted to purchase the services of what they believed were child prostitutes. "The ordinary and natural meaning of 'obtains' and the other terms Congress selected in drafting §1591 are broad enough to encompass the actions of both suppliers and purchasers of commercial sex acts," the court declared.

P.L. 114-22 confirms this construction by amending Section 1591(a) to read, in part, "Whoever knowingly ... recruits, entices, harbors, transports, provides, obtains, maintains, or patronizes, or solicits by any means any person ..." (language of the amendment in italics).

Age: Prosecutors' Burden

Section 1591 absolves the government of the obligation to prove that a trafficker knew or recklessly disregarded the fact that a child prostitute was underage, if the prosecution can show that the defendant had an opportunity to "observe" the victim. P.L. 114-22 makes it clear that the government is comparably relieved regardless of whether the defendant were a consumer or purveyor of a child's sexual commercial services, as long as it establishes that the defendant had an opportunity to observe the child: "In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or solicited the Government need not prove that the defendant knew, or recklessly disregarded the fact , that the person had not attained the age of 18 years."

Advertisers

Section 1591 consists of two offenses: commercial sex trafficking and profiting from commercial sex trafficking. Even before amendment, there was some evidence that advertising might constitute a crime under either offense. Aiding and abetting would have provided the key to prosecution in both instances. Anyone who aids and abets the commission of a federal crime by another merits the same punishment as the individual who actually commits the crime. Liability for aiding and abetting requires that a defendant embrace the crime of another and consciously do something to contribute to its success. Anyone who knowingly advertised the availability of child prostitutes might have faced charges of aiding and abetting a commercial sex trafficking offense. An advertiser who profited from such activity might face charges under the profiteering prong of Section 1591.

Yet Section 1591 might have presented a technical obstacle. One of Section 1591's distinctive features was that its action elements—recruiting, harboring, transporting, providing, obtaining—were activities that might be associated with aiding and abetting the operation of a prostitution enterprise. Section 1591, read literally then, did not outlaw operating a prostitution business; it outlawed the steps leading up to or associated with operating a prostitution business—recruiting, harboring, transporting, etc. Strictly construed, advertising in aid of recruitment, harboring, transporting, or one of the other action elements might have qualified as aiding and abetting a violation of Section 1591, while advertising the availability of a prostitute might not have.

Nevertheless, at least one court suggested that Section 1591 did outlaw operating a prostitution business, at least for purposes of aiding and abetting liability, and thus by implication advertising might have constituted aiding and abetting a violation of the section:

Pringler first argues that the evidence is insufficient to support his conviction for aiding and abetting the sex trafficking of a minor [in violation of Section 1591].... We disagree. The record is not devoid of evidence to support the jury's verdict and show Pringler's integral role in the criminal venture. Pringler took the money that Norman and B.L. earned from their prostitution and used some of it to pay for hotel rooms where the women met their patrons. Pringler bought the laptop Norman and B.L. used to advertise their services. He drove Norman and B.L. to "outcall" appointments, and he took photographs of Norman, which he had planned for use in advertisements.

P.L. 114-22 resolves the uncertainty by adding advertising to the prostitution-assisting element of the commercial sex trafficking offense. The offense now reads in pertinent part:

Whoever knowingly- (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, or maintains by any means a person; ... knowing, or ... in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b) [language added by the amendment in italics].

After amendment, the knowledge element of §1591's trafficking and profiteering offenses is slightly different. Advertising traffickers are liable if they knew of or recklessly disregarded the victim's status. Advertising profiteers are liable only if they knew of the victim's status:

Whoever knowingly-(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits ... advertises ... ; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or , except where, in an offense under paragraph (2), the act constituting the violation of paragraph (1) is advertising , in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b) [language added by the amendment in italics].

Knowledge is obviously a more demanding standard than reckless disregard, but the dividing line between the two is not always easily discerned, in part because of the doctrine of willful blindness. The doctrine describes the circumstances under which a jury may be instructed by the court that it may infer knowledge on the part of a defendant. Worded variously, the doctrine applies where evidence indicates that the defendant sought to avoid the guilty knowledge.

Since the element was worded in the alternative—knowing or in reckless disregard of the fact—the courts have rarely distinguished the two. One possible interpretation comes from comparable wording in an immigration offense which outlaws transporting an alien knowing or acting in reckless disregard of the fact that the alien is in this country illegally: "To act with reckless disregard of the fact means to be aware of but consciously and carelessly ignore facts and circumstances clearly indicating that the person transported was an alien who had entered or remained in the United States illegally." The courts refer to a similar unreasonable indifference standard when speaking of the veracity required for the issuance of a warrant.

Conspirators' Supervised Release

Defendants sentenced to prison for federal crimes are also sentenced to a term of supervised release. Supervised release is comparable to parole. It requires a defendant upon his release from prison to honor certain conditions—such as a curfew, employment requirements and restrictions, limits on computer use, drug testing, travel restrictions, or reporting requirements—all under the watchful eye of a probation officer. As a general rule, the court may impose a term of supervised release of no more than five years. For several crimes involving sexual misconduct—commercial sex trafficking, for example—the term must be at least five years, and may run the lifetime of the defendant.

P.L. 114-22 added conspiracy to engage in commercial sex trafficking to the list of offenses punishable by this not-less-than-five-years-nor-more-than-life term of supervised release.

Statute of Limitations

Section 1595 establishes a cause of action for victims of human trafficking. The cause of action is subject to a 10-year statute of limitations. P.L. 114-22 extends the statute of limitations in cases in which the victim is a child. Under those circumstances, the statute of limitations is 10 years after the child reaches the age of 18 years.

Mann Act

P.L. 114-22 extends the reach of a number of the Mann Act's prohibitions to encompass activities involving child pornography. Section 2423(b) of the Mann Act outlaws travel in U.S. interstate or foreign travel with intent to engage in "illicit sexual conduct." Section 2423(c) prohibits U.S. citizens or U.S. permanent resident aliens from engaging in illicit sexual conduct overseas. Section 2423(d) outlaws commercially facilitating overseas travel in order to engage in illicit sexual conduct. Each of the offenses is punishable by imprisonment for not more than 30 years, and the same punishment attaches to any attempt or conspiracy to commit any of the three.

Prior to the enactment of P.L. 114-22 , Section 2423 defined "illicit sexual conduct" as either (1) conduct that would be sexual abuse of a child if committed in U.S. maritime or territorial jurisdiction or (2) commercial sex trafficking of a child. P.L. 114-22 adds production of child pornography as an alternative third definition. Thus, it is a federal crime (1) under Section 2423(b) to travel in U.S. interstate or foreign travel with the intent to produce child pornography; or (2) under Section 2423(c) for a U.S. citizen or permanent resident alien to produce child pornography overseas; or (3) under Section 2423(d) to commercially facilitate overseas travel in order to produce child pornography.

Defendants previously enjoyed an affirmative defense in "illicit sexual activity" cases involving commercial sex trafficking, if they could establish by a preponderance of the evidence that they reasonably believed that the victim was over 18 years of age. P.L. 114-22 limits the defense to cases in which the defendant establishes the reasonableness of his belief by clear and convincing evidence. The difference between preponderance of the evidence and clear and convincing is the difference between more likely than not and highly probable.

The final Mann Act amendment involves prosecutors. Section 2421 outlaws transporting another in interstate or foreign commerce for purposes of prostitution or other unlawful sexual activity. Section 303 of P.L. 114-22 instructs the Attorney General to honor the request of a state attorney general to cross-designate a state prosecutor to handle a Section 2421 prosecution or to explain in detail why the request has not been honored. The designated state prosecutor—or prosecutors, should the Attorney General receive requests from both the state from which, and the state into which, the victim was transported—presumably operates under the direction of the U.S. Attorney.

Victims

P.L. 114-22 addresses three victim-related matters. It expands the rights of those victimized by federal crimes, trafficking and otherwise; creates a Domestic Trafficking Victims Fund fed by special assessments levied against trafficking offenders; and adjusts federal forfeiture law to ensure victim restitution.

Crime Victims' Rights

Section 3771 provides victims of federal crimes and victims of crime under the District of Columbia Code with certain rights, including the right to confer with the prosecutor and to be heard at public proceedings concerning pleas and sentencing in the case. The rights are reinforced by a right to notice from federal officials of available services. Victims may appeal a failure to honor their rights by seeking a writ of mandamus, and the appellate court must decide the matter within three days (72 hours), or in the case of a stay or continuance within five days.

Most often, mandamus is an extraordinary remedy awarded only on rare occasions and only if at least three prerequisites can be satisfied: "First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires.... Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances."

The federal appellate courts, however, cannot agree on whether this stringent traditional mandamus standard or the usual appellate standard (abuse of discretion or legal error) should apply in Crime Victims' Rights Act appeals.

P.L. 114-22 resolves the dispute in favor of the less demanding abuse of discretion or legal error standard used for most appeals. It allows the parties to extend the three-day deadline for the appellate court to take up the petition for a writ of mandamus, but not the five-day limitation on stays or continuances in appellate mandamus cases concerning victims' rights. Finally, P.L. 114-22 creates two new additional rights—the right to timely notice of a plea bargain or deferred prosecution agreement and the right to be informed of the rights under the Crime Victims' Rights Act and the benefits under the Victims' Rights and Restitution Act. The House committee report indicates that the amendment was designed to "clarif[y] Congress' intent that crime victims be notified of plea agreements or deferred prosecution agreements, including those that may take place prior to a formal charge."

Special Assessments

Federal criminal convictions come with a special assessment ranging from $5 to $100 for individuals and from $25 to $400 for organizations, depending on the seriousness of the offense. Receipts are deposited in the Crime Victims Fund and used for victims' assistance and compensation.

P.L. 114-22 establishes a second Fund, the Domestic Trafficking Victims Fund, and second special assessment, this one for $5,000 directed to the Fund for the assistance and compensation of victims of trafficking and sexual abuse. The assessment is imposed on those convicted offenses under:

18 U.S.C. ch. 77 (peonage, slavery, and human trafficking); 18 U.S.C. ch. 109A (sexual abuse in U.S. special maritime and territorial jurisdiction); 18 U.S.C. ch. 110 (child pornography); 18 U.S.C. ch. 177 (interstate or foreign transportation for unlawful sexual purposes); or 8 U.S.C. 1324 (smuggling aliens other than immediate family members).

The Fund is to receive two types of transfers. The first is to be a transfer from the general fund of the Treasury in amounts equal to those collected from these assessments. These transferred amounts are to be appropriate and made available to the Attorney General, in coordination with the Secretary of Health and Human Services, through FY2019 for the services and benefits (other than health care services and benefits) under:

42 U.S.C. 14044c (grants for enhanced state and local anti-trafficking enforcement); 42 U.S.C. 13002(b) (grants for child advocacy centers); 22 U.S.C. 7105(b)(2) (grants to state, tribes, and local governments to enhance trafficking victims' services); and 22 U.S.C. 7105(f) (assistance for U.S. victims of severe forms of trafficking).

The second transfer is to be from appropriations under the Patient Protection and Affordable Care Act, as amended, in amounts equal to those generated by the special assessments, but not less than $5 million or more than $30 million per fiscal year. The amounts are also to be available to the Attorney General, in coordination with the Secretary of Health and Human Services, for health care services under:

42 U.S.C. 14044a (grants for trafficking victims' assistance programs); 42 U.S.C. 14044b (residential treatment for victims of child trafficking); 42 U.S.C. 14044c (grants for enhanced state and local anti-trafficking enforcement); 42 U.S.C. 13002(b) (grants for child advocacy centers); 22 U.S.C. 7105(b)(2) (grants to states, tribes, and local governments to enhance trafficking victims' services); and 22 U.S.C. 7105(f) (assistance for U.S. victims of severe forms of trafficking).

Forfeiture

P.L. 114-22 adjusts existing forfeiture law in order to increase the extent of restitution payments available to trafficking victims. Forfeiture is the confiscation of property based on its proximity to a criminal offense. Confiscation may be accomplished either as a consequence of the property owner's conviction (criminal forfeiture) or in a civil proceeding conducted against the property in rem (civil forfeiture). In either case, the proceeds from most federal forfeitures are deposited either in the Justice Department's Asset Forfeiture Fund or the Department of the Treasury's Forfeiture Fund, and are available for law enforcement purposes.

The forfeiture-triggering relationship between property and confiscation varies from one crime to another. Forfeitures relating to financial crimes sometimes apply to property "involved in" the offense. For example, property "involved in" a money laundering transaction is subject to confiscation. In the case of human trafficking, property that constitutes the proceeds from, that was used, or that was intended for use, to commit or facilitate, a trafficking offense is subject to criminal and civil forfeiture. P.L. 114-22 makes property "involved in" or proceeds "traceable to" a trafficking offense subject to criminal and civil forfeiture as well.

Defendants convicted of human trafficking offenses must be ordered to pay victim restitution. As a general rule, the Attorney General may transfer forfeited property to pay victim restitution. P.L. 114-22 requires such a transfer in commercial sex trafficking cases or other human trafficking offenses cases, without reducing or mitigating the defendant's restitution obligations.

Subject to annual appropriations, the Attorney General may use the Justice Department Asset Forfeiture Fund for informants' fees in drug and money laundering cases. The Secretary of the Treasury enjoys comparable authority with respect to the Treasury Fund, although apparently without the need for annual appropriations. P.L. 114-22 expands the authority to include access to the Justice Department Fund for informants' fees in human trafficking cases, and to the Treasury Department Fund for informants' fees paid by Immigration and Customs Enforcement in human trafficking cases.

Criminal Procedure

P.L. 114-22 bolsters existing law enforcement tools in the area of bail, wiretapping, and sex offender registration.

Bail

Existing federal law states that an individual charged with a federal offense should be released on his own recognizance, unless the magistrate is convinced that certain conditions must be imposed to insure individual or community safety or to insure the appearance of the accused at subsequent judicial proceedings. The government may seek pretrial detention of an accused charged with a crime of violence, a federal crime of terrorism, or with commercial sex trafficking. P.L. 114-22 amends the definition of "a crime of violence" for these purposes to include any of the human trafficking offenses.

Wiretapping Authority

In the investigation of certain serious federal and state crimes, the Electronic Communications Privacy Act, sometimes referred to in part as Title III, authorizes federal and state law enforcement officials to engage in court-supervised surreptitious interception of telephone, face-to-face, or electronic communications. The list of these federal crimes includes commercial sex trafficking (18 U.S.C. 1591), but not any of the other offenses outlawed in the slavery, peonage, and forced labor chapter of the federal criminal code. The list of state crimes includes murder, robbery, kidnaping, etc., but not prostitution or human trafficking.

P.L. 114-22 permits federal court-ordered interceptions in connection with investigations involving peonage (18 U.S.C. 1581 (peonage), 1584 (involuntary servitude), 1589 (forced labor), and 1592 (trafficking-related document misconduct). It also permits state prosecutors to engage in state court-supervised interceptions in cases of human trafficking, child pornography production, and child sexual exploitation, to the extent that state law permits.

Sex Offender Registration

The federal Sex Offender Registration and Notification Act (SORNA), as the name implies, requires individuals convicted of a federal, state, tribal, foreign, or military sex offense to register with, and continue to provide current information to, state or tribal authorities (jurisdictions) in any location in which they live, work, or attend school. The reporting obligations apply to those convicted of qualifying sex offenses either before or after the enactment of SORNA. SORNA accomplishes its notification goal through the creation of a system which affords public online access to state and tribal registration information. The system allows the public to determine either where a particular sex offender lives, works, and attends school, or the names and location of sex offenders who live, work, or attend school within a particular area. SORNA requires jurisdictions to satisfy minimum standards for the information they collect and maintain.

Section 114 of SORNA requires registrants to provide (1) their name and any alias; their Social Security number; (2) their place of residence; (3) the name and address of their employer; (4) the name and address of any school they are attending; (5) the description and license plate number of any vehicle they own or operate; and (6) any other information the Attorney General requires.

Section 114 requires jurisdictions to include within their registries (1) a physical description of the offender; (2) the text of the statute defining the crime which requires the offender to register; (3) the offender's criminal history; (4) a current photograph of the offender; (5) a set of the offender's fingerprints; (6) a sample of the offender's DNA; (7) a copy of the offender's driver's license or other identification card; and (8) any other information the Attorney General requires.

P.L. 114-22 directs the Secretary of Defense to provide the Attorney General with the information described in Section 114 relating to military sex offenders whom SORNA requires to register with state or tribal authorities. The requirement would presumably apply to those convicted of registration-requiring offenses both before and after the enactment of SORNA.