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Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2

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Trafficking Crimes in Texas

Trafficking is a criminal law term used for both drug crimes and sex crimes.  Here, we will be excluding drug trafficking and the defense of those charged with trafficking drugs in Texas.

Our focus is on the crimes involved in human trafficking laws: what they provide, and related crimes that are incorporated into the current trafficking laws.  In our next article, we’ll delve into issues of continuous trafficking and penalty ranges. 

What is Human Trafficking?

 The Texas Penal Code defines “trafficking” for us.  Section 20A.01(4) of the Texas Penal Code explains that trafficking “… means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.”

The Office of the Texas Attorney General describes human trafficking as human trafficking “modern-day slavery,” where people are exploited in one of two ways:

  1. Commercial sex (prostitution, pornography, stripping, live-sex shows, mail-order brides, military prostitution and sex tourism); or
  2. Forced labor (agriculture, domestic servitude, and sweatshop).

Human Trafficking Crimes: Minors and Adults

In Texas, human trafficking laws are divided into two groups of crimes, depending upon the age of the person allegedly trafficked in the criminal charges and prosecution. 

Charged with Trafficking an Adult

Under Texas Penal Code Section 20A.02, it is a crime to knowingly do one of the following with someone over the age of 18 years:

  1. traffics another person with the intent that the trafficked person engage in forced labor or services;
  2. receives a benefit from participating in a venture that involves an activity described above (number 1), including by receiving labor or services the person knows are forced labor or services;
  3. traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in conduct prohibited by:

(A)  Section 43.02 (Prostitution);

(B)  Section 43.03 (Promotion of Prostitution);

(C)  Section 43.04 (Aggravated Promotion of Prostitution); or

(D)  Section 43.05 (Compelling Prostitution); or

4. receives a benefit from participating in a venture that involves an activity described above (number 3) or engages in sexual conduct with a person trafficked in the manner described above (number 3).

Charged with Trafficking a Child

Under Texas Penal Code Section 20A.02, it is a crime to knowingly do one of the following with someone who is legally a minor (under the age of 18 years):

  1. traffics a child with the intent that the trafficked child engage in forced labor or services;
  2. receives a benefit from participating in a venture that involves an activity described above (number 1), including by receiving labor or services the person knows are forced labor or services;
  3. traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by:

(A)  Section 21.02 (Continuous Sexual Abuse of Young Child or Children);

(B)  Section 21.11 (Indecency with a Child);

(C)  Section 22.011 (Sexual Assault);

(D)  Section 22.021 (Aggravated Sexual Assault);

(E)  Section 43.02 (Prostitution);

(F)  Section 43.03 (Promotion of Prostitution);

(G)  Section 43.04 (Aggravated Promotion of Prostitution);

(H)  Section 43.05 (Compelling Prostitution);

(I)  Section 43.25 (Sexual Performance by a Child);

(J)  Section 43.251 (Employment Harmful to Children); or

(K)  Section 43.26 (Possession or Promotion of Child Pornography); or

4. receives a benefit from participating in a venture that involves an activity described above (number 3) or engages in sexual conduct with a child trafficked in the manner described above (number 3).

Human Trafficking: Felony Charges

Absent certain exceptions, anyone charged for violating these state human trafficking laws will be charged with an offense proscribed as a felony of the second degree.

They may face charges of a felony of the first degree if:

  1. Either the person allegedly trafficked died in the commission of the alleged offense;
  2. This person’s unborn child died as a result of the commission of the alleged offense; or
  3. The charges involve someone under the age of 18 years, i.e., the alleged trafficking of a child.

Texas Penal Code Section 20A.02(b).

What is a first degree felony in Texas?  Anyone adjudged guilty of a felony of the first degree shall be punished by a term of 5 – 99 years, or they may be sentenced to life imprisonment (along with a fine of up to $10,000).  Texas Penal Code Section 12.32

A second degree felony comes with a term between 2-20 years (and a fine of up to $10,000).  Texas Penal Code Section 12.33.

Federal Human Trafficking Laws

Independent of the state criminal statutes are federal Anti-Trafficking laws which have been passed by Congress.  Anyone arrested for human trafficking may face federal prosecution in federal courts for violation of the federal  Trafficking Victims Protection Act (TVPA) of 2000 (reauthorized periodically by Congress in 200320052008, and 2013).

Just as the Texas legislation, federal law (22 USC § 7102) defines trafficking to involve either sex trafficking or labor trafficking:

  1. Sex trafficking means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.
  2. Labor trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery.
  3. Severe forms of trafficking in persons involves:
    1.  sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
    1. the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Under federal law, “commercial sex act” means any sex act on account of which anything of value is given to or received by any person. 

Johns Arrested

Congress has also passed the Justice for Victims of Trafficking Act (JVTA) of 2015, which makes it a crime for anyone to purchase or buy commercial sex from someone who has been trafficked.  It allows “johns” to be arrested in federal sex trafficking cases.

The “Crisis” of Human Trafficking in Texas

According to the National Human Trafficking Hotline, human trafficking is an extreme problem in the State of Texas, with only California having more cases reported during the first six months of the latest reporting year, 2018. 

Statistics: 19 Trafficking Cases per Week

Their research shows over 5147 cases of trafficking (sex and labor) during January – June 2018, with 455 cases originating in Texas. That averages to approximately 75 cases per month or 19 per week across the Lone Star State.

Most of the human trafficking is reported by NHTH as involving sex trafficking.  According to their findings, these trafficking cases involve:

  • Illicit Massage/Spa Business
  • Residence-Based Commercial Sex
  • Hotel/Motel-Based
  • Pornography
  • Online Ad, Venue Unknown.

The NHTH claims to haveone of the most extensive data sets on the issue of human trafficking in the United States,” with data coming from phone calls, emails, and online tips.

The NHTH data for Texas provides the following for 2017 (the last full reporting year):

  • 792 reported cases of human trafficking; and
  • 551 reported cases of sex trafficking.  In Texas, these sex trafficking cases involved:
  • Illicit Massage/Spa Business (100)
  • Hotel/Motel-Based (76)
  • Residence-Based Commercial Sex (54)
  • Online Ad, Venue Unknown (34)
  • Escort Services (31).

Study: 79,000 Minor Victims of Sex Trafficking in Texas Each Year

Meanwhile, a study by the Statewide Human Trafficking Mapping Project of Texas found over 300,000 victims of human trafficking in Texas, with sex trafficking totals including almost 79,000 people under the age of 18 years. According to this study, underage sex trafficking costs the State of Texas approximately $6.6 Billion each year. For more, read Busch-Armendariz, Noël, et al. Human trafficking by the numbers: The initial benchmark of prevalence and economic impact for Texas. Institute on Domestic Violence and Sexual Assault (IDVSA), The University of Texas at Austin, 2016.

North Texas Coalition

Locally, the North Texas Coalition Against Human Trafficking (NTCAHT) reports that “it’s happening here” and “it’s happening now,” with the group’s mission being educating and mobilizing our local community to “… to work against human trafficking in the North Texas region and to empower survivors of human trafficking.” 

Texas Task Force: Human Trafficking Crisis Needs Expanded Criminal Laws

The Texas Powers-That-Be have long considered human trafficking to be a “crisis” within the state.  Back in 2009, the state lawmakers set up the Texas Human Trafficking Prevention Task Force (“Task Force”) to advise the Legislature on how to deal with trafficking crimes.  Today, the Office of the Attorney General oversees over 50 different agencies in this Task Force pursuant to Texas Government Code §402.035.

In its latest report to the Texas Legislature (December 2018), the Task Force warns that “the fight is long from over,” (report, page 29) as it itemizes suggested legislation for passage that includes (1) enhanced penalties for traffickers along with (2) helping prosecutors in the following suggested amendments to the current criminal laws:

  1. Amend Texas Code of Criminal Procedure Chapter 38 to not allow evidence of previous sexual conduct in criminal cases involving victims of human trafficking and child sexual abuse;
  2. Amend Code of Criminal Procedure Art. 38.37 Section 1 to allow evidence of uncharged crimes to be admitted in cases involving adult sex trafficking and adult sexual assault cases;
  3. Amend Texas Penal Code to allow state law enforcement to pursue online conduct at the state level by mirroring federal provisions from the Federal Communications Decency Act, with passage of FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) and SESTA (Stop Enabling Sex Traffickers Act), which would let Texas “tackle sex trafficking” on websites like Backpage where websites are promoting prostitution;
  4. Amend Texas Penal Code §3.03 (a) 5 A to include continuous human trafficking under stackable offenses provision.  Currently the provision allows for stacking offenses for human trafficking under 20A.02 and compelling prostitution under 43.05 even when tried in a single indictment in single proceeding, but continuous human trafficking under 20A.03 is not included in the offenses that allow stacking;
  5. Amend Texas Penal Code §20A.02(a-1) to also include conduct under 20A.02(a)(4) and to adult and child labor trafficking under 20A.02 (a)(1), (2), (5), and (6).  This would allow the definition of “coercion” to adult sex trafficking under 20A.02(a)(3) to also apply to conduct under 20A.02(a)(4) and to adult and child labor trafficking under 20A.02 (a)(1), (2), (5), and (6).

The majority of proposed laws sent to the Texas Legislature by the Task Force do indeed become law.  We must expect to see some of these amendments becoming a part of the state criminal code. 

Human Trafficking is a Separate Crime from Smuggling

From a criminal defense standpoint, it is important to distinguish the crime of human trafficking from charges of smuggling humans.  Both are illegal acts.  However, illegally entering the country makes the smuggled person someone who has violated the law.  Someone who is trafficked is not in violation of any criminal statute; they are considered victims by prosecutors. 

Furthermore, smuggling involves payment for services.  A contract is established where the smuggled person pays another person to help them enter the country.  Legally, there is no coercion involved in the transaction.  This compares to human trafficking, where force or fraud or other manipulative conduct is involved to force the trafficked person to perform labor or commercial sex acts.

Criminal Defense against Charges of Human Trafficking

Texas was one of the first states in the country to pass significant legislation to deal with human trafficking.  Today, both state and federal law enforcement are aggressively seeking out opportunities to arrest and charge individuals for crimes involving the human trafficking of individuals, particularly the sex trafficking of those under the age of 18 years.

Penalties can be severe in these cases, and anyone arrested for human trafficking under either state or federal law must be prepared for an aggressive and vigorous criminal defense.  

We’ll go into more details in part two of this article, as well as asking the question:   how much fake news surrounds sex trafficking?

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,”Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution.”


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