“Sex trafficking, like all social problems, requires a comprehensive response from many quarters.”
By Mary G. Leary, Professor of Law, Catholic University of America, Shea Rhodes, Director of Villanova Law School’s Institute to Address Commercial Exploitation, Chad Flanders, Professor of Criminal Law and Constitutional Law Scholar, St. Louis University, and Audrey Rogers, Professor of Criminal Law and the Internet, Pace University.
Q: Why isn’t federal criminal law adequate to address sex trafficking online? Why are state criminal liability and civil liability important?
Sex trafficking, like all social problems, requires a comprehensive response from many quarters: the criminal law, civil law, business regulations, etc. These mechanisms are necessary to deter, prevent, and when prevention fails, punish trafficking or facilitating the trafficking of people. For many crimes we look to federal, state, local, civil, criminal, medical, and educational institutions to respond. Human trafficking is no different.
There is an important aspect of federal prosecution that is worth mentioning here: federal prosecution is discretionary. Because of the limited resources of the federal government, federal prosecutors do not and cannot take every case. They select certain cases to handle based on a variety of factors. Most criminal charges, therefore, take place on the local and state level. For example, although it is a federal crime to distribute narcotics, the Department of Justice does not handle every narcotics case. Rather, it selects a small number of cases, leaving the primary job of prosecuting these crimes to the states.
Now, let’s turn to the specific problem of human trafficking. There is an enhanced need to allow states to enforce their trafficking laws against all bad actors because of the size of the problem and the many actors involved in it. The problem of human trafficking is massive. This is an extremely lucrative criminal enterprise with many tentacles. One of the reasons human trafficking is growing so rapidly is the large role the internet plays in its execution. We need many pressure points to contain and eradicate this form of victimization on both the state and federal level. Indeed most of the prosecution of criminal cases of human trafficking is based on state laws.
Furthermore, states have the right – indeed the obligation – to protect their citizens. Since the founding of our nation, there have been many sources of criminal law for all forms of victimization. States have their criminal codes for crimes that state legislatures see affecting their citizens. The federal criminal code addresses federal crimes and these are forms of victimization that the United States Congress has identified as crimes with a federal interest. While some crimes just have a federal interest – treason for example, most crimes are local and the federal government chooses to supplement the state criminal laws, not replace them.
In what other arena do we stop states from enforcing their laws? In most crimes, and human trafficking is no exception, the amount of criminal activity is massive and we combat it with all the pressure points possible. Take any crime – narcotics, child pornography, illegal firearms – our system depends upon all the actors in the system to handle these cases. Can we possibly imagine telling states they cannot prosecute drug dealers or their co-conspirators, child sex predators or those that facilitate their access to children, or those that facilitate illegal trafficking of firearms? No, of course we cannot. Human trafficking is no different.
State and federal civil law is also an essential tool to fight online trafficking. The TVPA and many state trafficking laws recognize that businesses play a role in human trafficking when they actually traffic in human beings, or knowingly benefit from participating in a joint enterprise of human trafficking, or conspire with human traffickers. Given the number of businesses – such as massage parlors, internet companies, hotels – that fall into this category, it is essential that societal responses deter those entities from facilitating human trafficking. That is why applying civil law deterrents is an essential component of a comprehensive response to human trafficking. Allowing victims to sue companies who knowingly enter into joint ventures with human traffickers is a basic right of victims of crime. Denying them that right by providing absolute immunity to service providers because the business is online is not sustainable or within the norms of our system of justice.
Thousands of children are involved in child sexual exploitation. Some research suggests that 70% of exploited children are sold online. Even if the Child Sexual Exploitation and Obscenity Section of the Department of Justice devoted all its resources to combating online exploitation, it could not possibly stop a criminal epidemic of this size. That is why all aspects of the law: criminal, civil, state, and federal are necessary.
 USAM 9-2.020.
 Trafficking in Persons Report, U.S. Department of State 1 (2017); Belinda Luscombe, Inside the Scarily Lucrative Business Model of Human Trafficking, Time (May 20, 2014); http://www.ilo.org/global/topics/forced-labour/statistics/lang–en/index.htm;
 MARK LATONERO, CTR. ON COMMC’N LEADERSHIP & POL’Y, HUMAN TRAFFICKING ONLINE: THE ROLE OF SOCIAL NETWORKING SITES AND ONLINE CLASSIFIEDS 8 (2011); Mary Graw Leary, Fighting Fire with Fire: Technology in Child Sex Trafficking, Duke Journal of Gender, Law, and Policy, Vol. 21, No. 2 (2014)
 Trafficking in Persons Report, U.S. Department of State, 416 (2017).
 U.S. Const. Amend. X.
 18 U.S.C. 1591, 1595.
Robbie Couch, 70% of Sex Trafficking Victims Are Sold Online: Study, Huffington Post (July 29, 2014) http://www.huffingtonpost.com/2014/07/25/sex-trafficking-in-the-us_n_5621481.html