Both prosecutors and defense attorneys play roles in responding to commercial sexual exploitation and sex trafficking of minors. Prosecutors work with law enforcement to develop sex trafficking cases and charge offenders, while defense attorneys represent victims of these crimes who have not been recognized as such by law enforcement.
“Police and prosecutors are increasingly attempting to employ a philosophy of presenting ‘victim-centered, not victim-built’ cases by corroborating victims’ testimony with other evidence.”
Like law enforcement professionals, prosecutors face a number of challenges in responding effectively to commercial sexual exploitation and sex trafficking of minors. And as with law enforcement, a number of noteworthy approaches may offer opportunities for overcoming these challenges.
Sex trafficking is a federal crime and in almost all states is also a state crime, so federal, state, and local prosecutors all work sex trafficking cases. The nature of trafficking cases may require prosecutors to work with numerous other agencies within and outside the legal system, including local, state, and federal law enforcement; the juvenile justice system; federal and state criminal justice systems; federal and state judiciaries; child welfare departments; and
victim service organizations. Navigating this multiagency, multijurisdictional system and achieving effective collaboration can be challenging.
Additional challenges to prosecuting human trafficking cases cited by prosecutors include the length of investigations, lack of knowledge about trafficking issues, lack of victim cooperation, unavailability of victims and witnesses, lack of collaboration, lack of training, lack of institutional support, and lack of funding [13, 24].
Prosecutors also cite as major barriers to charging cases the lack of precedent on human trafficking case law; the lack of clarity in the relevant statutes as to elements they would be required to prove and evidentiary standards; and the lack of guidance on prosecutorial techniques, common defense tactics, or jury instructions for such cases. The ambiguity and difficulty entailed in prosecuting trafficking cases may make prosecutors reluctant to charge cases, which in turn may make police less likely to investigate them [8]. Another potential challenge for prosecutors is the difficulty of overcoming a defense of “mistake of age,” in which a defendant argues he had a reasonable belief that the victim was not a minor [23]. While no longer a defense at the federal level, mistake of age can be an impediment to prosecution at the state level.
The lack of knowledge about elements that must be proven, evidentiary standards, and effective prosecution techniques indicates that prosecutors at all levels would benefit from further training in this area. Yet state prosecutors have noted that most of this training, while useful, is led by federal prosecutors whose cases appear to differ significantly from local cases (for example, they include foreign victims with immigration-related issues) [8].
Prosecutors have used a number of approaches to overcome the challenges entailed in prosecuting cases of commercial sexual exploitation and sex trafficking of minors.
First, in addition to or instead of the numerous laws at both the state and federal levels that are potentially applicable to these crimes, prosecutors have the option of charging defendants with various other crimes, including human trafficking, compelling/promoting prostitution, kidnapping, sexual exploitation of a minor, and transport for purposes of prostitution. These other crimes may have lower evidentiary standards, and judges may be more familiar with them, although their use may result in more lenient sentences [8]. Prosecutors also can make creative use of existing laws. For example, they might consider using statutory rape laws to charge perpetrators so there is no need to prove knowledge of the victim’s age, or they might approach trafficking as organized crime [21, 33]. With respect to mistake of age, it may be possible to prevent this defense at the state level through legislation making it clear that crimes involving the commercial sexual exploitation and sex
trafficking of minors are strict liability offenses—that is, that mistake of age is not allowed as a defense.
The array of potentially applicable laws can be a benefit, but can also create confusion, conflict, and a lack of accountability. This drawback can be overcome through the participation of law enforcement professionals and prosecutors on multiagency, multijurisdictional task forces (discussed in Section 6).
Prosecutors in Dallas have responded to the challenge of noncooperative victims by recognizing that forcing them to participate in multiple trials increases their trauma and is a discouraging factor. They now try to implement a “one child, one trial” rule and carefully plan how they will work together to bring perpetrators to justice and to prioritize cases so as not to subject victims to more than one trial [4].
In another approach, discussed in Section 3, police and prosecutors are increasingly attempting to employ a philosophy of presenting “victim-centered, not victim-built” cases by corroborating victims’ testimony with other evidence. Corroboration may be sought because the victim’s testimony is deemed unreliable, but also because corroborative evidence results in stronger cases that do not rely solely on victims to testify against their exploiters [8, 20]. This approach is widely supported because testifying often is difficult for victims and survivors of these crimes and can make them feel criminalized [34].
Prosecutors can use additional creative strategies to help prove these cases, depending on applicable law and resources in their jurisdictions. For example, they can:
- seek to admit evidence of the victim’s prior testimony or out-of-court statements in lieu of having the victim testify at trial by establishing that “forfeiture by wrongdoing” applies—that is, that the defendant’s actions to intimidate the victim are the reason the victim is unable or unwilling to testify, so the defendant has forfeited his constitutional right to confront the victim at trial;
- introduce any available evidence that shows overt or subtle intimidation employed by the defendant to explain why the victim is absent from the trial, unwilling to testify, or testifying on behalf of the defendant;
- introduce expert testimony to explain victim behavior and the dynamics of child sexual exploitation and sex trafficking cases that might otherwise be misunderstood by jurors or interpreted as damaging the victim’s credibility;
- use technology and the private sector to assist in gathering and presenting evidence of money laundering, to mine cell phone data, and/
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or to identify a “financial footprint” that corroborates the victim’s testimony or indicates suspicious or criminal behavior;
- seek forfeiture of assets (e.g., money, houses, cars, other property) gained by the offender as a result of engaging in commercial sexual exploitation or sex trafficking of minors; and
- pursue restitution orders to make offenders pay for victim services [17, 21, 22, 23, 24, 25, 26].
Finally, Box 6 describes a toolkit developed to assist prosecutors in one state in prosecuting these crimes.
BOX 6
A Toolkit for Prosecutors
The Barton Child Law and Policy Center at Emory University School of Law developed a toolkit for prosecutors to improve accountability of offenders and to help overcome some of the challenges related to pursuing cases of commercial sexual exploitation and sex trafficking of minors. This toolkit provides strategies for building a case, including how to obtain evidence, how to educate a jury to understand the crimes of commercial sexual exploitation and sex trafficking of minors and their victims, and how to build a case that is victim centered and protects the minor during the prosecution process [35]. The toolkit offers prosecutors specific guidance on pursuing the range of offenses related to the exploitation and/or trafficking of a child or adolescent to maximize the likelihood of conviction and substantial sentencing [35]. These offenses include pimping, pandering and trafficking, human trafficking, other sexual offenses, related violent offenses, kidnapping, child pornography, organized crime and gang involvement, false identification, and obstruction of justice. Guidance also is offered on determining whether there is federal jurisdiction over the case.
Even though state laws related to commercial sexual exploitation and sex trafficking of minors vary, this toolkit can provide guidance for prosecutors outside of Georgia. Additional research may be necessary to determine its acceptability and utility for prosecutors in Georgia and in other states that are interested in providing similar guidance for their prosecutors.
FOR MORE INFORMATION:
http://bartoncenter.net/uploads/publications_staff/2012ProsecutorsToolkitFINAL.pdf
“With appropriate training, defense attorneys may be well positioned to identify victims of commercial sexual exploitation and sex trafficking among those arrested for prostitution and other offenses.”
Criminal defense attorneys, and juvenile defense attorneys in particular (in delinquency, status offense, and child protection cases), may be instrumental in identifying and assisting victims of commercial sexual exploitation and sex trafficking [11]. In Suffolk County, Massachusetts, for example, members of the defense bar are active participants in the SEEN (Support to End Exploitation Now) Coalition and are recognized as critical partners in the multisector response to these crimes [15].
With appropriate training, defense attorneys may be well positioned to identify victims of commercial sexual exploitation and sex trafficking among those arrested for prostitution and other offenses. One former public defender suggests that all defendants arrested for prostitution be considered potential victims of these crimes [11]. In some jurisdictions, victim and support service providers have partnered with defender organizations to provide training for defense attorneys that can enhance their ability to screen defendants, identify victims, provide referrals for services, and prepare robust legal defenses on behalf of victims [11, 15, 36].
In addition to training for attorneys, opportunities exist to train and educate law students about commercial sexual exploitation and sex trafficking of minors. Box 7 describes one such effort.
BOX 7
University of Michigan Law School: Training Students and Providing Legal Services to Victims and Survivors of Human Trafficking
The University of Michigan Law School operates a legal clinic to train students and provide legal services to victims and survivors of human trafficking, including commercial sexual exploitation and sex trafficking. The clinic provides a variety of services, including direct representation of and advocacy for victims and survivors, as well as community education and training [37].
In addition to its legal clinic, the University of Michigan Law School maintains the Human Trafficking Law Project as a resource for individuals and entities working to address human trafficking and to strengthen the law’s response to this problem. To that end, the project maintains a searchable database of human trafficking cases within the United States [37]. This database includes federal and state human trafficking cases, both criminal and civil, within the United States since 1980.a The project gathers details on cases from a range of sources (e.g., case opinion and news databases on the LexisNexis search engine; government websites, such as those maintained by the U.S. Departments of Justice and State; Internet search engines; and legal research services such as Bloomberg Law and Westlaw). Each case is reviewed before being added to the database.
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aAccording to the Human Trafficking Law Project website: “Although the comprehensive federal anti-trafficking law, the Trafficking Victims Protection Act (TVPA), was enacted in 2000, the database includes cases going further back in time to offer a fuller view of trafficking in the United States. To achieve a thorough and consistent review, HTLP [Human Trafficking Law Project] researchers analyze not only cases prosecuted under the TVPA, but also apply the TVPA standard to evaluate other potential human trafficking cases from 1980 to the present” [38].
SOURCE: [37].
