New Texas Sex Crimes: The Online Prostitution Laws Effective September 1, 2019
Posted on by Michael Lowe.
Texas Penal Code Amended to Address Human Sex Trafficking Over the Internet
Human trafficking laws exist at both the federal and state levels; anyone arrested on these charges faces serious felony time if convicted. However, the reality has been that federal prosecutions have been fiercer and with more bite than those charges at the state level. Texas is still in the process of passing laws outlawing sex trafficking. See, e.g., “Texas Lawmakers And Officials Want To Combat Human Trafficking, In All Its Forms,” written by Kristen Cabrera and published by KUT.com on January 23, 2019.
The Texas Attorney General, Ken Paxton, instituted his Human Trafficking and Transnational/Organized Crime Section shortly after his election three years ago. So far, it’s reported to have pursued 23 prosecutions state-wide, most notably going after Backpage.com, which AG Paxton described as the “largest online sex trafficking marketplace in the world.”
Now, AG Paxton’s efforts are bearing fruition in the statehouse. The Texas Legislature adopted (“codified”) all fourteen (14) recommendations given to it by the Texas Human Trafficking Prevention Task Force, a statutorily-created group administratively attached to AG Paxton’s office. Among them are educational efforts, such as posting human trafficking awareness signs in massage schools, as well as victim-support, including providing rape shield laws to human trafficking victims.
There’s also been lots of hoopla over new legislation passed in Texas to deal with sex crimes involving the trafficking of people as part of an online prostitution enterprise or business. Consider an editorial “written by the editorial board” which “serves as the voice and opinion of the Dallas Morning News,” which hypes two new laws signed into law by Governor Greg Abbott, published in June 2019 and entitled “Texas has put the real blame where it belongs, on sex traffickers, not their victims.” From the editorial:
“…Gov. Greg Abbott with a couple strokes of a pen executed an important shift in the fight against human trafficking in this state. Abbott signed into law two bills that finally increase the punishment for the purveyors in this soul-crushing criminal enterprise. What’s more, Texas will now do more to create a smoother path for exploited victims to start rebuilding their lives.
Too often, our criminal justice system has been tougher on the victims ensnared in this disgusting trade than on the traffickers themselves. We’re encouraged that the bipartisan effort from lawmakers this session to flip that narrative means Texas is serious about winning this ongoing fight that destroys so many lives. We know that online sites for decades have been the vehicle for these multimillion-dollar operations that sell humans into modern-day slavery. And almost as soon as authorities shut down one of these sites, another pops up in its place….”
These two new laws become effective on September 1, 2019. They define state crimes involving promotion of prostitution via the web, and criminalize both (1) the online promotion of prostitution as well as (2) the “aggravated” online promotion of prostitution.
Essentially, they expand the current state criminal code to incorporate the reality that lots of business – including illegal activities involving sex crimes – takes place over the web, as online operations.
Given the current environment, we can expect police and prosecutors to be anxious to use these new criminal charges in future prosecutions.
1. First, Definitions Are Provided to Include Computers and the Internet
The first change we find in this new legislation is new definitions are added to the Texas Penal Code pertaining to online activities. Specifically, Texas Penal Code §43.01 expands to include new subdivisions as follows:
- “Access software provider” means “a provider of software, including client or server software, or enabling tools that perform one or more of the following functions: (A) filter, screen, allow, or disallow content; (B) select, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.”
- “Interactive computer service” means “any: information service, system, or access software provider that provides or enables computer access to a computer server by multiple users, including a service or system that provides access to the Internet or a system operated or service offered by a library or educational institution.”
- “Information content provider” means “any person or entity that is wholly or partly responsible for the creation or development of information provided through the Internet or any other interactive computer service.”
- “Internet” means “the international computer network of both federal and nonfederal interoperable packet switched data networks.”
2. New Felonies in Texas Penal Code §§43.031, 43.041
Next, the two new crimes are provided. Both are serious felonies.
First, there is the new offense of online promotion of prostitution, defined as a 3rd degree felony, generally speaking. However, it can become a 2nd degree felony (1) upon prior conviction, or (2) if the conduct involves a person under 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense.
Second, there is the new state sex crime of aggravated online promotion of prostitution. This is defined as a 2nd degree felony, generally, but it can become a 1st degree felony upon (1) prior conviction or (2) if the conduct involves a person under 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense.
3. Texas Penal Code §43.031: Online Promotion of Prostitution
Effective September 1, 2019, Chapter 43 of the Texas Penal Code will officially include the following:
Sec. 43.031. ONLINE PROMOTION OF PROSTITUTION
(a) A person commits an offense if the person owns, manages, or operates an interactive computer service with the intent to promote the prostitution of another person or facilitate another person to engage in prostitution.
4. Texas Penal Code §43.041: Aggravated Online Promotion of Prostitution
A separate crime is created for “aggravated” online promotion of prostitution in Chapter 43 of the Texas Penal Code. What is “aggravated” under this new statute? “Aggravated” describes an operation where at least five people are involved as prostitutes in the operation. It’s a bigger business than the one described in TPC §43.031:
Sec. 43.041. AGGRAVATED ONLINE PROMOTION OF PROSTITUTION.
(a) A person commits an offense if the person owns, manages, or operates an interactive computer service with the intent to promote the prostitution of five or more persons or facilitate five or more persons to engage in prostitution.
5. Texas Code of Criminal Procedure Amended Regarding Human Trafficking
Alongside these two new crimes is their incorporation into the state statutory definition of “trafficking of persons” in Article 56.81(7) of the Texas Code of Criminal Procedure, which is amended to read as follows:
(7) “Trafficking of persons” means any conduct that constitutes an offense under Section 20A.02, 20A.03, 43.03, 43.031, 43.04, 43.041, 43.05, 43.25, 43.251, or 43.26, Penal Code, and that results in a person:
(A) engaging in forced labor or services; or
(B) otherwise becoming a victim of the offense.
6. Texas Penal Code Amended Regarding Knowing Conduct
Likewise, Texas Penal Code §20A.02(a) is amended to read as follows:
(a) A person commits an offense if the person knowingly:
(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 by Subdivision (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);
(B-1) Section 43.031 (Online Promotion of Prostitution);
(C) Section 43.04 (Aggravated Promotion of Prostitution);
(C-1) Section 43.041 (Aggravated Online Promotion of Prostitution); or
(D) Section 43.05 (Compelling Prostitution).
What is Online Promotion of Prostitution?
Using the World Wide Web to advertise an illegal prostitution operation has been called “remarkably effective.” Farley, Melissa, Kenneth Franzblau, and M. Alexis Kennedy. “Online prostitution and trafficking.” Alb. L. Rev. 77 (2013): 1039.
In fact, using the Internet to market sex for sale has been going on for years – historically, right alongside the growth of the web from those early forums and online chats (remember “You’ve Got Mail” from AOL.com?) to today’s more sophisticated message boards and social media sites. Id.
It is understood that an overwhelming amount of the international market share of prostitution involves marketing over the Internet. No longer is prostitution a business that takes place on street corners or darkened bars. Today, internet marketing brings customers directly to indoor locations (massage parlors; hotel rooms; apartments; strip clubs; etc.).
Those in the prostitution business are often following the same kind of marketing plans as those in legitimate service industries. The internet has changed how business is done for almost everyone.
For the prostitution enterprise, smart phones work together with online advertisements on Craigslist or various dating sites as well as social media sites like Facebook to bring in business. Skype is a big help.
They may also delve into specific areas of the web where they think their customers may be found, including gaming with Xbox Live or online in real-time with games like World of Warcraft. Gaming is a particularly great marketing opportunity here since users are often able to communicate with each other as part of the game technology. Boyd, Danah, et al. “Human trafficking and technology: A framework for understanding the role of technology in the commercial sexual exploitation of children in the US.” Microsoft Research, Cambridge, MA (2011).
Key here is gaining a communication route between the business and the customer over the internet, where it is difficult for police to know what is going on, much less track the activity. Of course, there is a hub to the wheel; however, the middleman here is an internet service provider, which will deny liability or responsibility for any content found on a website. Id.
It is no wonder that law enforcement has been frustrated with attempts to investigate, arrest, and charge those involved in prostitution operations in Texas today. And it is to be expected that the ability to prosecute using these two new online-focused statutes will be welcomed by police and prosecutors ready to make arrests.
There are several considerations for the Texas criminal defense lawyer in these upcoming representations.
Defending Against Charges of Online Promotion of Prostitution or Aggravated Online Promotion of Prostitution
Right out of the gate, we know these new laws will not have any judicial analysis. Texas criminal defense lawyers need to be aware that aggressive prosecutors may push past the edge of the envelope in these situations. Appeals will be filed after convictions based upon these statutes.
Secondly, these new laws point to the need for the savvy criminal defense lawyer to understand the nuances of computer technology and how it impacts things like the collection of evidence, the chain of custody in a case, the parameter of a search and seizure, and more. Not only does the defense attorney need to be adept at online evidentiary analysis, but he needs to be ready to educate a judge on failings he discovers when moving for exclusion or dismissal of a case.
These new laws force criminal defense lawyers to build expertise in computer technology, software management, hacking, file storage, and more. It’s not enough to hire an expert here: the defense lawyer needs to know his way around an internal drive and incognito browsers as well as how people can chat while gaming online.
Finally, Texas criminal defense lawyers need to be prepared for more and more clients facing human trafficking charges, because it’s a hot topic across the Lone Star State right now. I’ve discussed this in more detail already, see:
- Human Trafficking In Texas: Criminal Defense Perspective Part 1 of 2
- Human Trafficking In Texas: Criminal Defense Perspective Part 2 of 2.
The focus of much prosecutorial efforts in human trafficking is going after those matters involving sex crimes. Prostitution, of course, is far from being a new crime. However, this new twist to prosecute “pimps” as traffickers is one for the 21st Century and defense attorneys must be ready to advocate for their clients as charges are brought under these new Texas sex cybercrime laws.
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