Mens Rea Reform as a Demand-Side Solution to the Problem of Sex Trafficking.

• Author: Criswell, Daniel Michael
• Position: International Law and Policy in the Age of Trump

Trafficking in persons has existed around the world for many years, yet the United States has only begun to take this modern form of slavery seriously in the last two decades. The nature of sex trafficking has caused confusion for the United States and others around the globe regarding how to best deal with the commercial sex industry. The failure to reduce the commercial sex industry through traditional means of prosecuting the traffickers and their victims has motivated Sweden, and consequently the United States, to pursue a different strategy: reducing the demand through the prosecution of the buyers of commercial sex. While this infant strategy has yet to produce any results, all is not lost. The United States must reform the statute's mental state requirement and lower the burden prosecutors bear in trafficking cases.

Introduction I. Understanding Human Trafficking II. Prosecuting the Sellers and Obstacles to Overcome A. A History of International Trafficking Laws B. Trafficking Laws in the United States C. Complications of Prosecuting the Sellers III. The JVTA Amendment and a Proposal for a Uniform State Trafficking Statute A. The JVTA Amendment to the TVPA 1. In or Affecting Interstate Commerce 2. Actus Reus 3. Mens Rea B. State Trafficking Laws 1. Actus Reus 2. Mens Rea IV. Alternative Solutions: Strict Liability, Reckless, or Negligence? A. Sweden's Model B. An Analysis: Mens Rea Reform 1. Reckless 2. Negligence Conclusion Introduction

In February 2011, a man named Mr. Jungers responded to an online advertisement for sex with a child in Sioux Falls, South Dakota. (1) Jungers and the anonymous seller negotiated the transaction through a number of emails, detailing the age and rate for the girl. (2) After traveling to Sioux Falls, Jungers entered the house to pick up his reservation, but the girl was not there--the police were. (3) The officers arrested Jungers and charged him with attempted commercial sex trafficking in violation of (18) U.S.C. [section][section] 1591 and 1594. (4) At trial, Jungers argued that he was not culpable under the statute because he was a mere consumer of commercial sex acts and not a "trafficker." (5) The jury found him guilty. (6) Soon after, however, the district judge acquitted Jungers, reasoning that "the purpose of [section] 1591 is to punish sex traffickers and that Congress did not intend to expand the field of those prosecuted under that statute to those who purchase sex made available by traffickers." (7)

On appeal, the Court of Appeals for the Eighth Circuit addressed the issue of whether [section] 1591 applies to both suppliers and buyers of commercial sex acts. (8) The Court found, through the plain language of the statute, that nothing in the text itself suggests Congress's intent to exclude purchasers, and therefore [section] 1591 applies to both sellers and buyers of commercial sex. (9) This expansive interpretation opened the door for new strategies regarding federal and state prosecutions in sex trafficking.

This Note will explore the two most culpable parties involved in sex trafficking--the party forcing another to engage in sex acts, and the party paying for the sex acts--and compare the effectiveness of prosecutions aimed at those parties. Part I will explore the background of sex trafficking as well as the international and domestic efforts to solve the problems of sex trafficking. Part II will analyze the prosecution of the seller of trafficking victims and discuss the barriers to convictions under domestic trafficking statutes. Part III will analyze the recent trend to prosecute the buyer of commercial sex, and will critique the construction of federal and state trafficking statutes. Finally, Part IV will analyze mens rea reform opportunities, and advocate for a standard of negligence with the hope to increase conviction rates of traffickers in the United States.

1. Understanding Human Trafficking

   Sex trafficking is a subset of human trafficking (10) in which human beings are coerced into sexual exploitation against their will. (11) A 2004 report estimated between 600,000 and 800,000 people were trafficked worldwide in 2003, (12) which explains the staggering estimate of 20.9 million people currently in bondage because of trafficking. (13) Although these numbers are often controversial because of the "complexity involved in making accurate assessments," (14) as well as the secretive and illegal nature of the industry, (15) trafficking is a global issue. Many countries have laws to combat human trafficking, but little progress has been made to overcome it. (16)

   Vulnerabilities within society, such as poverty, political instability, and the existence of marginalized groups, combined with the ongoing demand for cheap labor and commercial sex, contribute to the transnational harm of human trafficking. (17) Victims of human trafficking around the world are subjected to serious injury, namely high levels of physical and psychological harm. (18) One report on the physical and psychological impacts on women and adolescents trafficked into Europe found that ninety-five percent of victims had been physically assaulted or coerced into a sexual act while being trafficked. (19) Other victims had confirmed mental health problems-anxiety, post-traumatic stress, and depression--that continued long after being rescued from extreme environments. (20)

   But how do individuals get caught up in the vicious industry of sex trafficking in the first place? Sex traffickers lure individuals into the industry through a number of techniques. (21) For example, members of organized crime rings may take women off the streets and sell them to traffickers. (22) In these instances, the victims are typically drugged and kidnapped, not knowing where they are or whom they are with. (23) In other instances, traffickers induce their victims by making false promises of employment. (24) These "employment scams" occur in various forms of "prosperous opportunities," including working as a maid, dancing at clubs, or modeling. (25) Sometimes victims even agree to go to another country with the expectation they will be involved in the sex industry, (26) but despite their initial consent to sex work, they are subsequently forced into sexual activity to which they had not agreed, nor would have, if presented with the truth beforehand. (27)

2. Prosecuting the Sellers and Obstacles to Overcome

   1. A History of International Trafficking Laws

      Until recently, policymakers have made limited efforts to combat the problem of sex trafficking. (28) Internationally, the trafficking of women and children has existed for many years, (29) but it was only first brought to light in 1904 in the International Agreement for the Suppression of the White Slave Traffic. (30) Almost fifty years went by before the United Nations addressed human trafficking in the 1949 Convention for the Suppression of the Traffic in Persons and Exploitation of the Prostitution of Others, (31) and still another fifty years passed before the United Nations presented the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, (32) which introduced a new and comprehensive definition of human trafficking:

      [T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (33) Past treaties recognized the problem of trafficking, but the Protocol was the first to provide a broad definition of trafficking. (34) It was also the first instrument to address all facets of human trafficking, including the prevention of trafficking, protection of victims, and punishment of offenders. (35) It simultaneously laid the foundation for the creation of a federal trafficking law in the United States. (36)

   2. Trafficking Laws in the United States

      In 1910, Congress passed the Mann Act, which aimed to prevent the transportation of human beings across state or international lines for the purpose of prostitution or other immoral acts. (37) However, Congress did not respond to the increasing epidemic of human trafficking again until 2000 with the Trafficking Victims Protection Act (TVPA). (38) Like the definition of human trafficking in the Protocol, the TVPA defined trafficking in persons to mean:

      (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained (18) years of age; or

      (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. (39)

      The purpose of the TVPA was to "combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims." (40) Traditionally in trafficking cases, the "pimps" and "johns" (41) went without punishment because the law enforcement focused on the sex worker. (42) Rather than protecting the victims, existing laws imposed severe punishment on them. (43) But a new century was to bring about new changes, and the new TVPA remodeled that legal landscape by focusing on three categories: protection, prosecution, and prevention. (44)

      The TVPA increased protection for victims by providing assistance to victims of trafficking, such...