One of the buzzes at this spring’s Mass Torts Made Perfect (MTMP)–a seminar held in Las Vegas twice a year for personal injury trial lawyers to learn about the latest in wide-spread tort claims-was the move for trial lawyers to get involved in the war on human trafficking. Human trafficking is a wide-spread criminal enterprise in the United States and across the globe. But battling it has not been easy.
Historically, laws in the U.S. have targeted the “prostitutes” and the pimps. The next step was to try to stop the johns. However, with the emergence of the world wide web, it has become clear that these laws have done little to reduce the problem of human trafficking. Now many states, including Texas, are aiming their guns towards businesses who turn a blind eye to human trafficking in order to make a profit. Civil liability laws give trial lawyers a way to fight human trafficking by flushing the crime out of the places where it hides.
The Problem of Human Trafficking
The United States is the #1 consumer of sex by way of prostitution. Texas has the second-highest number of cases reported to the Nations Human Trafficking Hotline. The United Nations Office on Drugs and Crime 2012 reported that there were 20.9 million human trafficking victims worldwide. Of those, 1.5 million were in the United States. 2 Million of the world victims were children.
Human trafficking is a 32 billion-dollar-a-year industry of which Houston, Texas is a major hub. The average age for children forced into the prostitution business as slaves is 12-14 years of age. They are comprised of approximately 64% girls and 36% boys. A Study done in December of 2016 by the University of Texas found that there were 313,000 victims of human trafficking in Texas, 79,000 of which were minors. Thus, human trafficking is a problem globally, nationally and locally for Texans.
Historical View of Sex Trafficking and the Law
In the past, victims were simply treated as prostitutes. A brothel would be raided, the human trafficking victims would be charged as prostitutes, serve time in jail and then be dumped back on the streets for their pimps to put them right back into the business. This did nothing to deter the johns from seeking prostitutes. The demand was still present and unpunished. So, suppliers continued to supply.
In the early 2000’s the states recognized the growing human and sex trafficking problem. Laws prohibiting trafficking of persons like Texas Penal Code 20A.01 sprung up, prohibiting the trafficking of persons for work and sex and invoking stiffer penalties where sexual acts and minors were involved. These often supplemented other laws such as the Texas law prohibiting compelled prostitution dating back to 1974. However, these laws still failed to significantly impact the trafficking epidemic for a few simple reasons.
First, many human trafficking victims are trafficked in from foreign countries. The do not understand the laws or the language. They do not know who they can reach out to because in their home countries, the authorities and those they trust are often involved in the trade. Second, many human trafficking victims are controlled by drug addiction and fear. The pimps get them addicted so that they cannot run for long before needing the drugs again. As for fear, we heard from victims of human trafficking and advocates in the fight at the MTMP. One of the more disturbing stories was of a pimp who stuck a knife inside the mouth of a girl “in his stable” who withheld $200 and sliced her face open from the rear all the way to her mouth to send a message to his other girls not to withhold the money they got paid by johns.
If we should have learned one thing from the drug war and Prohibition, it is that as long as there is a demand, someone will supply it. Making it illegal just makes it more lucrative for criminals. In an effort to reduce demand, many states have enacted laws to punish the johns. In Texas, Penal Code 43.02(b) states: “A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.” It is a misdemeanor unless it is a third conviction or involves a minor (or even a belief that it is with a minor) whereupon it becomes a felony. While this statute still makes prostitution a crime, it goes on to create a defense to a charge of prostitution for anyone who is a victim of human trafficking.
Battling Online Trafficking & Facilitation
It is no secret that the world wide web has become a big facilitator of prostitution and human trafficking. In 2018, huge steps were made to combat this when the Texas Attorney General brought criminal charges against Carl Ferrer the owner of Backpage.com–an online want ads website–for facilitating human trafficking and prostitution. On 4/12/2018 Ferrer pled guilty to human trafficking. As a result of that prosecution, the Backpage.com website was removed from the web entirely.
One day before that conviction was announced, President Donald Trump signed the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017.” This law made it a Federal crime to own, manage, or operate a website with the intent to promote or facilitate prostitution. Following the enacting of that law, Craigstlist.org immediately removed all of their dating and “personals” pages from their website.
Texas Civil Liability for Facilitation of Human Trafficking
In the past 10-15 years, states have also begun to equip the legal community with another weapon to fight human trafficking–civil liability laws for those who are not pimps but turn a buck by facilitating human trafficking. On June 19, 2009, Texas Civil Practice and Remedies Code Section 98 went into effect. Under this law, “A defendant who engages in the trafficking of persons or who intentionally or knowingly benefits from participating in a venture that traffics another person is liable to the person trafficked, as provided by this chapter, for damages arising from the trafficking of that person by the defendant or venture.” Not only individuals but also shareholders and members of any entity involved may be held liable—meaning businesses and their owners.
Victims of human trafficking who prevail under this statute may recover actual damages, including mental anguish (with or without a showing of physical injury), attorneys’ fees, costs, and punitive damages. Tex.Civ.Prac.&Rem.Code 98.003. Furthermore, it is not a defense that the person or business is acquitted of a criminal human trafficking charge. Id. 98.002.
What a powerful statute. The underage child who is led regularly past the check-in by a pimp who is not a hotel guest to be sexually abused at a sleazy hourly-rate hotel could now be the evidence that convicts the hotel owner for turning a blind eye. The big Las Vegas hotel manager who sees a young “prostitute” enter regularly and go up the elevator to the rooms without every asking why they are there now has to think twice about not checking for elevator keys. The restaurants who pay underage kids’ “parents” in cash to wash the dishes could now be liable for the horrid life the child has been forced to endure. Not asking because they do not want to confirm the answer they already know could cost businesses dearly under this law.
Civil Human Trafficking Statute Underutilized
This statute has not been utilized often since its enactment. A search of Westlaw case records brings up only three lawsuits filed under this law: One from 2013 has a sealed record and the other two are Jane Doe #1 and Jane Doe #2 vs Backpage.com and its proprietors filed in 2018–the civil cases that share the facts of the Backpage.com criminal prosecution. The need to seal the records of these proceedings is self-evident when minors are involved, but, even with adults, the safety of the victims from their pimps and the criminal enterprises that they belong to often necessitates sealing the record. Still, with only three reported cases of using this statute on the books, it seems like the problem is not so serious.
However, there is likely another reason few of these cases come to light—fear of retaliation. One of the greatest challenges that lawyers will face in pursuing these actions is that the victims are scared of everyone. They have been abused, imprisoned, drugged, lied to, cheated and arrested. Some of that mistreatment came from the people the trusted most. Some of them were originally trafficked by their parents, relatives, uncles and foster parents. (70-80% of underage trafficking victims in the United States come from the foster system.) The victims are scared of the system that is supposed to protect them and thus, do not come forward to use it. Somehow, we must make the victims feel safe enough to ask for our help.
Human trafficking is a billion-dollar industry that affects us on a global, national and local level. Prosecutors have faced significant challenges in stopping the human trafficking epidemic and in getting scared victims to come forward and assist in the prosecution of their crimes. Now that states have created laws to enable private-sector lawyers to join the fight, Texas trial lawyers will, no doubt, face these same challenges. Human trafficking lawyers are going to have to earn our client’s trust and find a way to make sure they do not disappear back into the human trafficking criminal enterprise before we can get the case to trial. We should be encouraged, however, that we hold the power to be the next step and now have the tools to do our part.