The Prosecutor, September-October 2010, Volume 40, No. 5

Prosecuting human traffickers

A primer on how Dallas County prosecutors go after the criminals in these cases, where the victims are oftentimes unsympathetic and uncooperative

 

Recently, I was discussing a human trafficking case with defense counsel, who leaned in and said, “You know, your alleged victim is a prostitute.” I looked at him and said, “You know, she’s only 15.” It was clear that he will never see her as just a kid, just as I will never dismiss her victimization by categorizing her as “just a prostitute.” She is both, making her case a very difficult one to resolve with a happy ending.

In Dallas County, we are extremely lucky to have police officers who look for these kids on the streets (and elsewhere) and a district attorney’s office devoted to prosecuting their exploiters. Domestic trafficking of children is seldom the kidnapping at gunpoint imagined in the media and is instead often the planned commercial exploitation by pimps of at-risk youth.

Human trafficking refers to recruiting, transporting, or harboring victims for the purpose of forcing them into labor through force, fraud, or coercion.1# In Dallas County, we consider human trafficking to be broader than the Texas statute and include compelling and promotion of prostitution as well as other prostitution-related charges in our human trafficking caseload. This article will discuss why we focus on these cases, how to investigate these offenses, charging options, and prosecuting these cases to a successful result.

Why these cases are important

The average age of initiation into prostitution is between 12 and 14.2# Victimization of children through human trafficking is a brutal form of child sexual abuse, yet it is often overlooked and unrecognized. Child prostitutes have the unique status of being both victims and offenders. These are typically children who have run away or have been thrown away by their parents, and they have a host of psychosocial problems. They are sought out by their exploiters—pimps—and are lured into prostitution through a complex array of psychological and emotional controls between the ages of 11 and 16. These youth have frequent contact with police, juvenile justice, and Child Protective Services (CPS)—all of whom are ill-equipped to deal with them.

The traditional criminal and juvenile justice system practice of arresting these youth as prostitutes and treating them as offenders utilizing brief, ineffective, and costly periods of incarceration does not work. Simply filing a case against their exploiters, without further services to the victim, also does not work. Without individual attention and special services, these children will be victimized again and again until they become adult offenders in the same system that failed to help them as children. Because of their dual status as victim and offender, these children often lose in the competition for services against other victims and offenders, and their complex needs remain unmet.

Children who are at risk for commercial exploitation often have a history of truancy and running away that was precipitated by sexual and other abuse at home. Studies show that nearly a third of the children who run away trade sex for food, drugs, money, or a place to stay.#3 If they are left without services, their path frequently follows the one shown in Figure 1 on the opposite page. Running away from home generally leaves the child in a situation where she is residing on the street and thus vulnerable to adults who seek to commercially exploit her. The exploitive adult recruits her and starts a grooming process to develop control over her and to indoctrinate her into his lifestyle. Soon he convinces her it is “natural” for her to engage in prostitution, child pornography, sexual performances, or other commercialized sexual activities as a way to support her new family, of which he is clearly the head. Once she becomes successful in this role, the exploitive adult will generally persuade her to help recruit other children for their commercial sexual endeavors. If this process is not interrupted, she will become, to this pimp or to another one, a “bottom girl”—the head girl in the prostitution ring. This life of prostitution leads to a life of crime, drug addiction, and early death.

It is essential to intervene before the child becomes a perpetrator herself by recruiting other children into commercial sexual exploitation. Generally, children caught in this life are uncooperative victims—they do not consider themselves victims of their adult exploiter and do not cooperate with service providers who attempt to remove them from their unhealthy lifestyle. In fact, most do not even recognize themselves as victims and have been trained by their exploiter to view law enforcement and adult service providers as their enemy. Through the grooming process, the adult exploiter convinces the child that she must protect him and their commercial sexual enterprise. Thus, intervention services must be equipped to deal with both cooperative and uncooperative victims.

Investigating these cases

The Dallas County Criminal District Attorney’s Office receives human trafficking cases from two groups of investigators: vice detectives from several different police departments and Dallas Police Department’s High Risk Victim’s Unit. The Dallas Police Department (DPD) has received a human trafficking grant, and as a result, many vice detectives in our area have been trained on the dynamics of human trafficking. Thus, when they arrest prostitutes, they often start gathering information about the pimp and can develop a case against him.

Sergeant Byron Fassett of the DPD has developed a high-risk victims model which is used to identify and locate children at risk for commercial exploitation. DPD’s High Risk Victims and Trafficking Investigative Team (HRVT) identifies high-risk youth by examining runaway reports to find chronic runaways, targeting juveniles who are involved in prostitution, and recognizing children with repeated reports of sexual abuse and exploitation. Once these high-risk victims are identified, the HRVT flags them within the department’s Missing Person System and in NCIC so that any law enforcement officer anywhere in the country who contacts the child will know that she has been identified as a high-risk victim and will contact DPD’s HRVT. Once the HRVT is notified that a high-risk victim has been contacted by law enforcement, the team conducts the initial investigation into any sexual abuse and exploitation of the child. If past or current exploitation is identified, the HRVT will conduct any follow-up investigation. Additionally, it will conduct an initial risk assessment for the child and will assist in determining her appropriate initial placement. After the child is safe, the HRVT will seek to identify the exploiters and file appropriate charges.

For cases based on both adult and juvenile witnesses, the key to a successful prosecution is corroboration, which helps insulate the prostitute witness from claims of fabrication. Though Penal Code §43.06 specifically excludes the corroboration requirement for prostitution, promotion of prostitution, aggravated promotion of prostitution, and compelling prostitution, if human trafficking is charged, corroboration is required. (Plus, many jurors do not find victims who are also prostitutes credible witnesses.) Generally one of the first questions I ask of a detective when discussing a case is, “What is the corroboration of the offense?” Sgt. Fassett has described his investigation technique as akin to a murder investigation—take the victim out of the picture and figure out how to prove the case.

Some examples of corroboration include:

Motel records. These records show that the hotel room was rented by the pimp or associates. Motel staff can sometimes identify the victims and the pimp by sight and recognize them as renting a room at the time in question.

Phone records. Much of the business of pimping, whether the girls are walking the street, stationed in a brothel, or working from advertisements, is done on the telephone. Phone records link the pimp to the victim, showing the timing of events (some girls are required to call their pimp each time they have a date), measuring the response to an advertisement, or identifying other of the defendant’s associates.

One-party consent calls. With a cooperative victim, the police can set up a phone call to the pimp and have her elicit criminal admissions from him. As with other sexual assault cases, most one-party consent calls give the prosecutor something to work with because it is very seldom that the defendant denies all criminal activity to the girl on the phone. Calls are also an important way to corroborate acts of violence or the element of coercion, and they show the jury the relationship of the pimp to the victim.

Jail records. Book-in information such as names, addresses, tattoos, and emergency contacts can help corroborate a victim’s information about where the defendant lives and who works with him. Just like drug dealers, pimps generally are able to keep their business running even when they are incarcerated for short periods of time, so visitor lists, calls, and incidents at the jail can help to show the pimp’s associates and who is running his operation.

Medical records. Doctor’s notes can be invaluable, but generally prostitutes do not give their true name when they go to the hospital. Get from your victim the name she used at the hospital so that you can get the records corroborating the pimp’s acts of violence.

Prior encounters with law enforcement. Many police officers encoun-ter a pimp with his victims without realizing that they are witnessing an offense. Traffic stops, manifestation of prostitution tickets, prostitution arrests, public lewdness charges, and accident reports can reflect who was together where and at what time.

Computer records. With Craigslist and other Internet advertisements, it is hard to be a profitable pimp without a computer. Executing a search warrant to seize the computer will provide the investigating detective with photos, the correspondence to pay for the ads, and any email correspondence planning or discussing criminal activity.

Photos. Pictures of the crime scene, hotel room, and most importantly, the victim can make a huge difference. The child will look all grown up at the time of trial, but a picture taken in the middle of the night when the investigation is beginning can show her vulnerability. Photos from previous police encounters may portray the victim as a child or show signs of abuse.

DNA. Because it is common for pimps to have sex with their trafficking victims, DNA can be a useful clue in an investigation. DNA testing can prove that the victim was at the location where she states the perpetrator kept her. DNA evidence on implements or tools can help prove physical or sexual abuse.

Charging options

In 2007, the legislature changed the trafficking of persons statute to make it more onerous for prosecutors to prove. Prior to 2007, the State simply had to prove trafficking (transporting, recruiting, harboring, enticing, providing, or otherwise obtaining for transport by deception, coercion, or force) and a Chapter 43 (public indecency) offense (we generally used prostitution) or forced labor. Currently, the State must prove trafficking (transporting, recruiting, harboring, enticing, providing, or otherwise obtaining by any means) with the intent that the victim engage in forced labor or services. Forced labor or services is a long definition but essentially includes labor or services obtained through:

(a)    injury or threats or injury,
(b)    restraint,
(c)     withholding identifying records,
(d)     threats of abuse of legal process,
(e)    threats of deportation,
(f)     financial debt that either cannot be paid down or is indefinite or unreasonable, or
(g)     using a scheme of intimidation.

Since it was changed in 2007, we have filed only a few cases under the human trafficking charge. The stories of trafficking victims are complex, and they seldom fit neatly into the categories of forced labor that the statute provides, so we generally charge offenses with less complex language, such as compelling prostitution or aggravated promotion of prostitution.

When children are the victims and the forced labor is prostitution, compelling prostitution is the obvious charge, especially with the 2009 statutory changes to the Penal Code. A person now commits the offense of compelling prostitution if he “causes by any means a child under 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time the actor commits the offense.”#4 “By any means” gives the State an extremely broad range of conduct that can be alleged as causing a child to prostitute. Examples of conduct that caused the child to prostitute by any means include offering to buy a child,5# promising her that she could earn money by working for the suspect,6# buying her revealing clothes,7# driving her to the location to prostitute,8# providing the child food, clothing, and lodging in exchange for money,#9 telling the child where and how to prostitute,#10 and telling the child what to charge and collecting the money she earned from prostituting.11# Compelling prostitution is a second-degree felony, and it requires lifetime registration as a sex offender when the victim is a child.#12

When adults are the sex trafficking victims, the easiest charge is generally aggravated promotion of prostitution.13 For this offense, the State must prove that the defendant “knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.” Generally, corroborating evidence shows that the pimp was controlling, supervising, and managing the operation. Note that the bottom girl can often also be charged with aggravated promotion of prostitution, which might give her incentive to give information on her pimp. Aggravated promotion of prostitution is a third-degree felony offense, but unlike compelling prostitution, it does not carry with it a duty to register as a sex offender.

Another choice is compelling prostitution by force, threat, or fraud.14 We find that it is generally easier to prove compelled prostitution through force, fraud, or coercion—which is a simple idea for juries to understand—than to prove the defendant transported, recruited, harbored, enticed, provided, or otherwise obtained the victim and then forced or coerced her by one of the means enumerated in the human trafficking statute. Holding a woman at knifepoint and threatening to kill her, hitting her so she fell and hit her head and became unconscious, and burning her were all held sufficient to show compelling prostitution by force and threat.15# As with trafficking of persons, compelling prostitution of an adult is a second-degree felony; however, it carries with it the added benefit of requiring the defendant to register as a sex offender for the duration of the sentence plus 10 years.16


When we are prosecuting a large-scale criminal network, such as a brothel or an extensive pimping operation, we can also increase the penalty range by alleging aggravated promotion of prostitution or compelling prostitution as engaging in organized criminal activity (EOCA).17# With this offense, we can charge the main pimp, recruiters, managers, and the bottom girl. The defendant can even be convicted of EOCA as a mere party to the offense of compelling prostitution.18# (For comparison’s sake, trafficking of persons either under age 18 or for the purposes of compelling prostitution or sexual performance by a child is a first-degree felony and and is not a registerable offense. Trafficking of persons over 18 is a second-degree felony.)

Trial preparation

Perhaps the most difficult thing about prosecuting a human trafficking case is the unpredictability of the victims. We are lucky to have Art Garcia, an investigator assigned to our unit at the Dallas County Criminal District Attorney’s Office who is very skilled at finding runaway witnesses. The majority of our witnesses are not very cooperative and reluctant to come to court. Trying such cases is the first situation I have encountered as an ADA where the arrest and incarceration of a victim witness is generally a benefit to the case, not a detriment. Her arrest or incarceration—sadly, it’s usually for prostitution—allows us to locate her and assist her in stabilizing her life and for her to get away from life on the streets and the negative consequences of that lifestyle.

When we evaluate the strength of our cases, we must consider the degree of corroboration. In a compelling prostitution of a child case, essentially we want to corroborate that the child was prostituting or trying to prostitute and that the pimp caused this by any means. Generally, we show that the pimp himself or through his bottom girl taught the victim how to prostitute and was profiting from her exploitation. For compelling prostitution of an adult, we must show this plus the defendant’s use of force, threat, or fraud. For aggravated promotion of prostitution, we must show that the defendant is a pimp operating with more than one prostitute. For all these charges, the corroboration of as many aspects of the case as possible is crucial.

As we initially evaluate a case, we must determine our target. Other prostitutes, the bottom girl, and clients all might be facing criminal charges. Determining who at the outset we want to target allows us to begin discussing deals for the lesser players in return for their testimony. In Dallas, it is crucial to begin this immediately because juvenile and misdemeanor cases can be disposed of prior to an indictment being issued against our target. Beware that pimps often use their bottom girls to hide their involvement—so at first glance, it might seem like the bottom girl did all the training and organizing of the prostitutes and collected all the money. Yet, it is almost always done at the direction of her pimp, who gets the money, controls the girls, and directs the decisions. The pimp is generally the worst actor—he is the one employing violence, threats of violence, and emotional manipulation to get the girls to work for his sole benefit. Proper allocation of law enforcement resources directs us to attack the greatest threat of violence.

 

Trial

Jury selection is difficult in these cases. We generally start with a questionnaire, to get basic information about panelists’ opinion on prostitution, prior criminal history, and victimization crimes including sexual abuse. During voir dire in cases involving child victims, we focus on qualifying the jury panel on two major issues: (1) that the child’s apparent consent into a life of prostitution is not a defense, and (2) that the defendant did not have to know that she was a minor. We spend as much time as possible discussing these issues, so that once a jury is picked we can argue that they must follow the law, even when the child “consented” and even when the defendant claims he did not know she was a child. I find this crucial to obtaining a conviction because these victims often do not come off as sympathetic on the witness stand. Of course, as a child, the victim can never really consent, but the testifying victim often makes that a hard sell to an uneducated jury; she can appear very mature in her looks and very experienced for her years.

These cases vary in their complexity: One might have voluminous evidence from computers and phone records and the next might be almost entirely based on witness testimony. Each case must be evaluated for a proper workup to ensure that the correct documents are received and filed as business records when appropriate, witnesses are prepped and thoroughly interviewed for any additional information that can be corroborated, and jury visuals are created to explain the relationship between the parties, the timeline, or any other confusing material. One thing we have found to be essential is to use a police detective as an expert. The detective will explain, much as the expert in a drug delivery case, how this underground world of crime operates, and generally the jury is fascinated to learn the “business” of prostitution. The expert will also discuss the dynamics of the relationship, grooming the victim, and the pimp’s control mechanisms, similar to how experts might explain why a victim stayed with her abuser in a domestic violence case or why a child recanted in a child abuse case.

In these cases more than any other, be prepared for the unexpected. Have extra clothes for your witnesses for when they show up for court—their “best” might not be what you want the jury to see. Discuss their testimony with them and prepare them so that they will not appear defensive when defense counsel challenges them. File and argue motions in limine, so that you know in advance what prior convictions will be discussed and what (if any) prior bad acts of your witnesses and defendants are admissible. Be prepared for your jury to not like your victims. No matter how cleaned-up, straight-forward, and pulled-together they appear for trial, most juries will not see them as merely victims because of their willing involvement in the offense.

Be ready for the defense to attack your victim through witnesses, cross-examination, and argument. If your corroboration is strong, the defense attorney’s major goal will likely be jury nullification. Remember that §43.06 specifically excludes the corroboration requirement for prostitution, promotion of prostitution, aggravated promotion of prostitution, and compelling prostitution, so the general requirement for accomplice corroboration imposed by Code of Criminal Procedure art. 38.14 should not appear in the charge or be argued by defense counsel. Get your victim to tell her story so the jury knows about the home life she is running from and, if appropriate, ask her to own her mistakes. This is a delicate balance, because she is definitely a victim of commercial exploitation at the defendant’s hand, yet her mistakes made her more vulnerable to that exploitation. Most kids I have worked with realize they made bad choices, and in my experience, the jury wants to know that the kids recognize that and have learned from it.

Legal issues that should be addressed in the jury charge include the law of parties, “on or about” language, and mistake of fact. Another to consider for compelling prostitution of a child is that of concurrent causation. To qualify for such a charge, the defendant “must show that the concurrent causation was sufficient to produce the result and the defendant’s conduct was clearly insufficient to do so.”19# We try to meet this argument from the start. We ask investigators to discuss with victims this particular pimp’s rules of conduct, his methods of prostitution, and the consequences of not following his rules and methods. We inform juries from the start that providing opportunity, persuasion, or influence is enough to show that he caused her to prostitute by any means and repeat it from jury selection through closing argument.#20

 

Post-trial

A successful prosecution is only a small step toward restoration for the victim, however. With court oversight and services for the child and her family, stabilization of the child is the ultimate goal. Once stabilized, the child can receive the long-term treatment, counseling, and therapy she needs. Yet this stabilization is difficult to obtain, both because the child usually continues to face the same family issues that precipitated her running away and because long-term placement options are very limited for this group of youth. Adult victims face similar challenges and need assistance and resources to help them stabilize their life. In Dallas, as across the nation, we are struggling to find resources and help for these girls and young women so that they can become healthy, successful citizens.

Improving our chances

Several institutional changes are needed to improve our ability to prosecute human trafficking cases in Texas. The statute should be improved, law enforcement should be better trained to detect and respond appropriately, and systems should be developed that help these girls permanently escape this life.

The human trafficking statute would be more useful if it included other Chapter 43 offenses, including Production of Child Pornography and Sexual Performance of a Child. In addition, Trafficking of a Minor should not require the State to prove that the defendant used force, fraud, or coercion. Conversely, that general idea of force, fraud, or coercion would be better as a replacement for the enumerated list of methods of forced labor now required to be proved by the statute so that the victim’s situation does not have to be strained to fit a certain category of forced labor. As an example, it would be simpler to allege forced trafficking by coercion and allow the victim to explain that she was coerced by the exploiter requiring her to meet a quota, his retaining her birth certificate, and his threats of violence toward her family. That is preferable to the current law under which the prosecution would have to prove at least eight complicated elements of this crime based on an indictment which would probably read like this (possible elements are numbered):

On or about June 1, 2010, the 1defendant did 2intentionally and knowingly 3traffic the victim by transporting, enticing, recruiting, and harboring 4the victim 5with the intent and knowledge that the victim engage in forced labor or services, 6to wit: prostitution, that was 7performed by the victim and obtained through the defendant’s 8(a)threatening to cause bodily injury to the victim’s family, and 8(b)by knowingly confiscating the victim’s actual or purported government records and identifying information and 8(c)(1)by exerting financial control over the victim 8(c)(2)by placing the victim under the defendant’s control as security for a debt 8(c)(3)to the extent that the duration of the services provided by the victim is not limited and 8(c)(4)the nature of the services provided by the victim are not defined.

This indictment would leave more room for legal arguments about whether the State had met its burden on every element than one that simply alleged that the victim was trafficked by force, fraud, or coercion.

In addition, law enforcement and those who deal with youth must be trained to identify these kids and young adults as victims, and there must be services to help the victims escape from this life. Decriminalization of all juvenile prostitution—as proposed by some victims’ advocate groups—is not a viable solution because it could increase minors’ victimization by those seeking to take advantage of “legal” prostitution. The Texas Supreme Court recently started down the path to decriminalization with its opinion In the Matter of B.W.21 (See page 33 for more in-depth analysis of the case.) The court held that juveniles under the age of 14 may not be charged with prostitution because they lack the capacity to consent to sex as a matter of law.22  The dissent points out the hurdle that this creates when dealing with juveniles, such as B.W., who continually run away from their guardians and need treatment and rehabilitation to find their way out of this life.23 Although the majority discusses CPS as an alternative to the juvenile system for rehabilitating these children, CPS has not historically been able to meet their complex needs.

Some youth and young adults need the threat of juvenile or criminal penalties to reform their life, and sadly, many of them can receive rehabilitation services only within the juvenile and criminal justice systems. There are not currently enough long-term services or placement options available for victims of domestic trafficking. These victims have special needs, separate from other runaway youth or women’s shelters. Their safety concerns, therapeutic needs, and unique issues mean that other shelters are not always an appropriate placement for these victims.#24 There are reportedly fewer than 50 beds across the country for human trafficking victims in only four shelters, none of which are in Texas.#25 Hopefully, these changes and/or similar recommendations by the Human Trafficking Prevention Task Force created in 200926 will become law next session so that we can better protect these victims and make our communities safer.

If no one is looking for them, the victims of human trafficking can easily by missed. Their exploiters count on the fact that their victims will not be found, they will not talk, and no one will believe them. As prosecutors, we must advocate for a better solution for these victims. With improved criminal prosecutions, trained law enforcement, and victim services, we can better combat the problem of human trafficking. i

Endnotes

1 Texas defines human trafficking in Chapter 20A (Trafficking of Persons) of the Texas Penal Code. The federal definition is found at 18 U.S.C.S. §1589 (2009) (Peonage, Slavery, and Trafficking in Persons).
2 Richard J. Estes and Neil Alan Weiner, Commercial Sexual Exploitation of Children in the U.S, Canada and Mexico, University of Pennsylvania, Executive Summary at 11-12 (2001).
3 Ian Urbina, “For Runaways, Sex Buys Survival,” New York Times, 10/26/2009.
4 Tex. Penal Code §43.05(a)(2) (2009).
5 Davis v. State, No. 05-99-00378-CR (Tex. Ct. App.—Dallas 2000) (unpublished opinion).
6 Id.
7 Id., Baker v. State, No. 05-96-00705-CR (Tex.  App—Dallas 1998) (unpublished opinion).
8 Davis v. State, No. 05-99-00378-CR (Tex.  App.—Dallas 2000) (unpublished opinion), Baker v. State, No. 05-96-00705-CR (Tex. Ct. App—Dallas 1998) (unpublished opinion).
9 Cotton v. State, No. 05-95-01070-CR (Tex. App—Dallas 1997) (unpublished opinion).
10 Id.
11 Davis v. State, No. 05-99-00378-CR (Tex. App.—Dallas 2000) (unpublished opinion).
12 Tex. Code Crim. Proc. art. 62.101(a)(2).
13 Texas Penal Code §43.04.
14 Texas Penal Code §43.05(a)(1).
15 Davis v. State, 735 S.W.2d 737, 738 (Tex. Crim. App. 1982).
16 Tex. Code Crim. Proc. art. 62.101(c).
17 Tex. Penal Code §71.02(a)(3) (2009).
18 McIntosh v. State, 52 S.W.3d 196, 207 (Tex. Crim. App. 2001).
19 Tex. Penal Code §6.04(a); Baker.
20 “One who provides opportunity for a willing minor to engage in prostitution and influences, persuades or prevails upon her to do so has … caused the prostitution …” Waggoner v. State, 897 S.W.2d 510, 512 (Tex. App—Austin 1995, no pet.) (citing State v. Wood, 34 Or. App. 569 (1978)).
21 In the Matter of B.W., ___ S.W.3d ___ (Tex.  2010).
22 Id.
23 Id.
24 Office of the Attorney General, The Texas Response to Human Trafficking Office of the Attorney General Report to the 81st Legislature, p. 47 (citing U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, September 2007 Issue Brief: Finding a Path to Recovery: Residential Facilities for Minor Victims of Domestic Sex Trafficking, Heather J. Clawson and Lisa Goldblatt Grace, p. 1).
25 Id., p. 10.
26 Tex. Government Code §402.035, created effective September 1, 2009, expires September 1, 2013.