Child Sex Trafficking Arrest in Texas: Criminal Defense Overview
Posted on by Michael Lowe.
The National Center for Missing and Exploited Children (NCMEC) defines Child Sex Trafficking as “… a form of child abuse that occurs when a child under 18 is advertised, solicited or exploited through a commercial sex act. A commercial sex act is any sex act where something of value – such as money, drugs or a place to stay – is given to or received by any person for sexual activity.” According to the NCMEC, Child Sex Trafficking happens in every state in this country, with 17,000 reports of possible child sex trafficking being logged by its offices alone during 2020.
Only the State of California surpasses Texas in the number of Child Sex Trafficking cases in the United States. Moreover, Texas has seen a significant increase in the Human Trafficking of Minors for Sex since the Coronavirus Pandemic began. Read, “Report: Human trafficking spikes in Texas amid pandemic,” written by Olivia P. Tallet and published in the Houston Chronicle on November 22, 2020.
Accordingly, experienced Texas criminal defense lawyers expect to see more and more arrests in all areas of the Lone Star State alleging violations of Child Sex Trafficking laws that bring, upon conviction, very serious felony jail time.
Child Sex Trafficking is a Felony Under Both Federal and State Law
Child sex trafficking ranks as a felony charge under both federal and state law. These crimes are a focus at all levels of law enforcement in Texas. The Attorney General for the State of Texas has announced that the trafficking of anyone under the age of 18 years for sex is one of the four core human trafficking targets for state law enforcement.
Explains the Attorney General’s Office:
“Human trafficking is occurring throughout Texas, every day, often in plain sight. Claims that “we don’t have a human trafficking problem here” are simply untrue. In fact, in the first 11 months of 2020, when so many industries were struggling because of COVID-19, the commercial sex trade flourished. According to research conducted by the Department of Public Safety, there were over 1.5 million online commercial sex ads in Texas in these 11 months, almost 300,000 of which contained suspected minors. [i] Not all commercial sex is trafficking, of course, but this is a clear indication that traffickers have flourished despite the pandemic. And while labor trafficking is more difficult to quantify, it is occurring in big cities and rural areas alike throughout Texas as well.”
Read,” What every prosecutor should know about human trafficking,” written by Brooke Grona-Robb, Assistant Attorney General, and Cara Foos Pierce, Human Trafficking Section Chief, Office of the Attorney General, and published by TDCAA in its January-February 2021 issue.
Child Sex Trafficking Charges Under Texas Law
The Texas Legislature has passed a criminal statute, Texas Penal Code §20A.02, stating that an individual can be charged with trafficking of a child if it can be shown that they knowingly did the following:
- traffics a child with the intent that the trafficked child engage in forced labor or services;
- receives a benefit from participating in a venture that involves an activity described by Subdivision (5), including by receiving labor or services the person knows are forced labor or services;
- traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by:
- Section 02 (Continuous Sexual Abuse of Young Child or Disabled Individual);
- Section 11 (Indecency with a Child);
- Section 011 (Sexual Assault);
- Section 021 (Aggravated Sexual Assault);
- Section 02 (Prostitution);
- (E-1) Section 021 (Solicitation of Prostitution);
- Section 03 (Promotion of Prostitution);
- (F-1) Section 031 (Online Promotion of Prostitution);
- Section 04 (Aggravated Promotion of Prostitution);
- (G-1) Section 041 (Aggravated Online Promotion of Prostitution);
- Section 05 (Compelling Prostitution);
- Section 25 (Sexual Performance by a Child);
- Section 251 (Employment Harmful to Children); or
- Section 26 (Possession or Promotion of Child Pornography); or
- receives a benefit from participating in a venture that involves an activity described by Subdivision (7) or engages in sexual conduct with a child trafficked in the manner described in Subdivision (7).
Statutory Sentences Upon Conviction of Child Sex Trafficking in Texas
If the prosecution can prove beyond a reasonable doubt that the accused has violated one or more of the provisions of Texas Penal Code §20A.02 (a)(5) – (8), then the Texas Child Sex Trafficking statute delineates the range of punishments available upon conviction.
In sum, a conviction for Child Sex Trafficking under Texas law usually equates to a felony of the first degree, which comes with a possible life sentence (imprisonment ranging from 5 years to life) and a $10,000 fine.
Variables in sentencing include things like whether or not a weapon was used in the commission of the crime, and whether or not the accused has a prior conviction or is considered to be a habitual offender.
Specifically, the Texas Child Sex Trafficking Statute provides the following as punishment:
(b) Except as otherwise provided by this subsection and Subsection (b-1), an offense under this section is a felony of the second degree. An offense under this section is a felony of the first degree if:
(1) the applicable conduct constitutes an offense under Subsection (a)(5), (6), (7), or (8), regardless of whether the actor knows the age of the child at the time of the offense;
(2) the commission of the offense results in the death of the person who is trafficked;
(3) the commission of the offense results in the death of an unborn child of the person who is trafficked; or
(4) the actor recruited, enticed, or obtained the victim of the offense from a shelter or facility operating as a residential treatment center that serves runaway youth, foster children, the homeless, or persons subjected to human trafficking, domestic violence, or sexual assault.
(b-1) An offense under this section is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 25 years if it is shown on the trial of the offense that the actor committed the offense in a location that was:
(1) on the premises of or within 1,000 feet of the premises of a school; or
(2) on premises or within 1,000 feet of premises where:
(A) an official school function was taking place; or
(B) an event sponsored or sanctioned by the University Interscholastic League was taking place.
(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.
(d) If the victim of an offense under Subsection (a)(7)(A) is the same victim as a victim of an offense under Section 21.02, a defendant may not be convicted of the offense under Section 21.02 in the same criminal action as the offense under Subsection (a)(7)(A) unless the offense under Section 21.02:
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under Subsection (a)(7)(A) was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a)(7)(A).
Child Sex Trafficking Charges Under Federal Law
The Federal Child Sex Trafficking Statute is found in 18 U.S.C. § 1591. To obtain a conviction, the AUSA does not need to provide evidence that the accused (or the child) crossed the Texas state line to or from another state or Mexico. Federal charges can be pursued based upon activities that occurred entirely within the State of Texas.
The Federal Child Sex Trafficking Statute defines it as a felony crime to obtain or to maintain anyone under the age of 18 years either (1) knowing or (2) in reckless disregard of the fact that the individual is a minor (under 18 years old) and (3) would be caused to engage in a commercial sex act.
The federal law defines “commercial sex act” with a broad scope, and convictions can be based upon “any sex act, on account of which anything of value is given to or received by any person.” That “anything of value” can be money or goods, but it can also be shown with evidence of reciprocal favors, personal benefits of some sort, or another type of benefit. 18 USC § 1591(e)(3).
Statutory Sentences Upon Conviction of Child Sex Trafficking in Federal Court
Pursuant to the Federal Child Sex Trafficking Statute, if the minor was under the age of 14 or if force, fraud, or coercion were used, then the law provides for a penalty of not less than 15 years in prison, up to life. For children between the ages of 14 and 17 years, then the punishment upon conviction is a sentence of not be less than 10 years in prison up to life. Things are enhanced if it is shown that the accused obstructed or attempted to obstruct the enforcement of the statute; then the sentence can be 20 years imprisonment. Restitution may also be ordered to be paid to the child for any shown losses.
The Complexities of Child Sex Trafficking Cases
Child Sex Trafficking arrests are made by both state and federal authorities based upon all sorts of factual scenarios. Assumptions that these cases solely involve international cartel operations, for example, are naïve. Social media relationships may form the crux of a Child Sex Trafficking case, for instance, as well as local gang involvement and even circumstances between family members.
The prosecution’s perspective, as the Justice Department explains, is that “[n]o child is immune to becoming a victim of child sex trafficking, regardless of the child’s race, age, socioeconomic status, or location, and every child involved in this form of commercial sexual exploitation is a victim.”
Essentially, Child Sex Trafficking situations can be categorized as involving things like:
- Trafficking by a Pimp: here, either a man or woman who is not related to the minor “grooms” them and builds trust with the intentional goal of sex trafficking – this may involve the use of various social media platforms;
- Trafficking by a Family Member: family members can be investigated and charged with sex trafficking of a relative under the age of 18 years;
- Trafficking by Gang Involvement or Affiliation: gang membership may involve sex trafficking of a minor or it can involve the trafficking of a minor targeted by the gang; and
- Trafficking by Buyer: these situations involve someone who is exchanging sex with a minor for food, shelter, and/or money where the provider is considered to be a trafficker under the law.
In the investigation of suspicious relationships between minors and adults, a great many things will come under scrutiny in the minor’s life, from their wardrobe and school activities, to their social media history, how they act with their family and friends, and how they spend their money.
As described by the Texas Attorney General’s Office, law enforcement will be on the lookout for things like:
- Changes in their school attendance habits, appearance, socio-economics, friend groups, interests, school activities, vocabulary, demeanor, attitude and sexual behavior
- Luxury items like manicures, designer clothing, purses, etc. without an explainable source of income
- Getting into trouble in the company of older teens or adults
- Sexually provocative clothing
- Tattoos or branding
- Refillable gift cards
- Multiple phone or social media accounts
- Lying about the existence of those accounts or refusing parent access to those accounts
- Sexually provocative pictures on the phone or online accounts
- Unexplained injuries: bruising, swelling, redness, cigarette burns
- Third-party control of schedule and social interaction
- Isolation from community, family or friends.
Criminal Defense of Texas Child Sex Trafficking Charges
Given the social stigma associated with even a rumor or innuendo that someone is suspected by authorities of improper actions with a minor, it is very important to enlist the help of an experienced Texas Criminal Defense attorney as soon as possible.
This is particularly true when law enforcement is combing through a minor’s life and is becoming suspicious of a close bond between the minor and an adult which they will try and fit into the Child Sex Trafficking Statute definition, even if the charges cannot be supported by evidence and the case will never survive scrutiny at trial. Sensationalized, false allegations are made based upon Child Sex Trafficking and these can result in permanent harm to the accused’s personal and professional life, as well as detrimentally impact the lives of family and loved ones.
When the accused is innocent of any unscrupulous behavior toward the minor, then an aggressive defense will go through the state’s case to discover its weaknesses, and present arguments to the judge to free the accused because the charges can be shown to lack merit.
Key here will be a challenge to the “knowing” requirement of the statute and any proof of intent on the part of the accused to traffick the minor. Other important issues to be addressed here include any constitutional right violations, such as improper search and seizure.
For more here, read:
- What is Probable Cause For Police to Arrest in Texas?
- Examining Trials in Texas
- Illegal Search Warrants: Challenging the Underlying Affidavit.
Sometimes, the initial Child Sex Trafficking charges will be negotiated to a lesser charge. The state may have some evidence of inappropriate behavior involving the minor but the allegations do not meet the elements of either the state or federal Child Sex Trafficking statutes.
Here, plea negotiations may succeed in reducing the charges and the range of punishment. However, in these situations, serious felonies may still be involved and in addition to jail time, the accused may still face a future involving things like:
- A criminal record;
- Damage to personal reputation;
- Damage to professional career;
- Inability to own or possess a firearm;
- Requirement to register as a sex offender.
- Don’t Ever Talk To The Police! Never Give A Statement To Law Enforcement In Texas Criminal Investigation
- Encounters with Law Enforcement: A Criminal Defense Perspective
- Will You Go to State Jail or Texas Prison? The Importance of Plea Negotiations.
Human trafficking in Texas is a serious concern and arrests can be made based upon state or federal Child Sex Trafficking charges with immediate devastating consequences to the accused. These situations warrant advocacy by an experienced criminal defense attorney as soon as possible.
For more, read our earlier discussions in:
- Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2
- Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2;
- Prosecutors Have Standards to Follow: the Federal Principles of Prosecution; and
- Dallas Sex Crime Arrests and Possible Criminal Charges Against The Dallas Vice Unit.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles,” Pre-Arrest Criminal Investigations” and “The Early Part of a Texas Criminal Case in State or Federal Court.”
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