Solicitation of Prostitution or Sex Trafficking? Overzealous Prosecutions of Johns in Texas

Earlier this year, national headlines announced that the Department of Homeland Security had made almost four dozen (46) arrests for felony sex trafficking here in North Texas.  However, it was soon discovered that those arrested on federal felony charges as traffickers were actually individuals who thought they were dealing with sex workers (prostitutes) for consensual sex.  They were “johns” looking for a “date,” and not players in the business of trafficking people.  For details, read “Another Bogus ‘Sex Trafficking Sting’ Led by Homeland Security Agents,’” written by Elizabeth Nolan Brown and published by Reason on January 24, 2023.

Recently, a new criminal statute was effective here in the State of Texas that makes it a felony as defined by state law to solicit prostitution.  For more, read our earlier discussion in Buying Sex in Texas: Texas Is First State In USA To Make Solicitation Of Prostitution A Felony Offense.  This is a state crime, not a federal one.  Texas also has laws that make it a crime to promote prostitution online.  Read, Online Sex Crimes: Prostitution Over the Web Is Illegal in Texas.

However, the Homeland Security investigation was based upon federal law, not state statutes.  Their actions forever changed the lives of these individuals and all their loved ones and family members with very serious human trafficking criminal charges.

What happened?  According to the Reason article, these 46 Texas arrests happened after the men answered online ads placed by federal law enforcement agents.  The online ads appeared from adult sex workers inviting a sex-for-money transaction.  When the men agreed to pay for sex, they were arrested.  As Reason described it, “…tricking men into committing petty crimes is exactly what happened.”

Among them:  a volunteer firefighter; semi-pro hockey player; high school teacher; health systems director of operations; and youth pastor explained Reason, citing to coverage provided by CBS News.

In another news piece by WFAA, this same Homeland Security sting explained that the Dallas office of Homeland Security Investigations placed “”thousands of ads” on a daily basis throughout the Dallas-Fort Worth metroplex.  It was a joint effort; also involved were the Arlington Police Department, Colleyville Police Department, Collin County Sheriff’s Department, Dallas Police Department, Dallas County Sheriff’s Department, Frisco Police Department, Irving Police Department, Midlothian Police Department and the Tarrant County Human Trafficking Task Force.

The sting worked out of hotels in affluent areas, with a focus explained by Homeland Security as “…targeting those involved in this crime, we hope disrupt this activity and provide assistance to human trafficking victims by getting them connection to the advocated and resources they need.”

Read, “North Texas youth pastor, high school coach and volunteer firefighter among 46 arrested in commercial sex sting, Homeland Security says,” written by Briauna Brown and Teresa Woodard and published by WFAA on January 23, 2023.

From a criminal defense perspective, how these federal investigations were orchestrated and how the arrests were made is one issue.  An entirely different matter is that Homeland Security proceeded to charge these men with being sex traffickers.

What is the Difference Between Solicitation of a Prostitute and Sex Trafficking?

Prostitution is often described as “the oldest profession,” and is essentially a transaction where sex is purchased.  It is also known as “sex work,” and while it is illegal here in Texas, it is not illegal everywhere in this country.

1. Prostitution or Sex Work is Legal in Some Parts of Nevada

The same 46 men that were arrested in these stings based out of swanky Dallas-Fort Worth hotels would have not been in violation of the law if they had been seeking companionship in one of the Nevada counties where prostitution is legal at licensed brothels.  For details on how Nevada deals with prostitution, read “Indy Explains: How legal prostitution works in Nevada,” written by Michelle Rindels and published in the Nevada Independent on May 27, 2018.

There are those that argue, including the American Civil Liberties Union, that Nevada has the right idea and sex work should be decriminalized through the United States.  From this perspective, keeping prostitution illegal does not serve to help protecting trafficking victims from being enslaved since legalize sex work is licensed and carefully regulated.

So, what is the distinction here?  Sex work is consensual between two people, especially the sex worker.  Sex trafficking is based upon force or coercion or deception where the prostitute is not willingly and voluntarily participating in the transaction.

2. Who Gets Arrested for Prostitution? Pimp, Prostitute, John

In Texas and elsewhere, prostitution can be the basis of an arrest for not only the services provider (the prostitute or sex worker) but the customer (the “john”) and the manager or broker of the transaction (the “pimp”).   Whether or not anything happens physically does not matter.  No services need be provided in order for there to be an arrest and conviction.  See, Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution.

Federal law does not delve into these sex crimes as a whole, and most prostitution cases are based upon state statute.  There are things like the federal Mann Act which makes it illegal to take people across state lines for the purpose of illegal sexual activity or for child prostitution.  And trafficking, in comparison to prostitution, is definitely covered by federal criminal law (and Texas law, as well).

3. How is Prostitution or Sex Work Different from Sex Trafficking?

Solicitation happens when someone requests a sex act.  That is legal, as a general rule.  If that solicitation comes with the offer or agreement to pay money in exchange for that sexual encounter, then it is illegal.  That is solicitation of prostitution.  See, Texas Penal Code §43.021.

Human sex trafficking is different, although it can be involved in the situation.  When anyone manipulates the sex provider in any way, like using trickery, coercion, or outright threats to enter into a sexual encounter with anyone, then that is sex trafficking.  These are usually third parties who operate this as a business.    According to Section 20A.01(4) of the Texas Penal Code, trafficking “… means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.”

Both the Texas Legislature and Congress have passed serious criminal statutes outlawing human trafficking.  Federal arrests proceed as alleged violations of the Trafficking Victims Protection Act (TVPA) of 2000 (reauthorized periodically by Congress in 2003, 2005, 2008, and 2013).

Pursuant to 22 USC § 7102, trafficking is defined as 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
   2. 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.

Of note, there is also 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 when they buy sex from a trafficking victim.

Continued Warnings of Overzealous Prosecutions Under Trafficking Laws

The recent joint investigation here in the Dallas-Fort Worth metroplex that resulted in almost fifty arrests of men who were allegedly acting in the role of john and ended up arrested for violation of federal trafficking laws is not a shocking occurrence for many criminal defense attorneys.

In June 2019, we pointed to growing concerns being voiced about the use of trafficking laws to arrest and charge individuals who are not involved in the coercion, manipulation, or control of any other human being while they may be violating the law insofar as soliciting prostitution.   We pointed to:

1. An article, “Lawyers: Human trafficking laws may hit some too hard,” written by Yamiche Alcindor and published by USA Todayon March 13, 2013, which warned that anti-trafficking laws “could unintentionally lead to wrongful convictions and unfair stigmatization,” with “marginal players” who unwittingly did business with traffickers being unjustly accused, if not convicted.
2. A news report from ReasonTV entitled “Stossel: Moral Panic Over Sex Work,” warning that more and more law enforcement is considering “sex trafficking” and “prostitution” as synonymous charges, even though they are two distinctly different crimes under state and federal law. Among other things, they delve into the arrest of Robert Kraft, then owner of the New England Patriots, as part of a “sex trafficking” sting, where after much media coverage, prosecutors later admitted there was no trafficking involved.
3. Research findings in a George Washington University study published in the Journal for Human Trafficking, Sanford, Rachealle, Daniel E. Martínez, and Ronald Weitzer. “Framing human trafficking: A content analysis of recent US newspaper articles.” Journal of Human Trafficking2.2 (2016): 139-155 (“Study”). Here, the research considers news coverage of human trafficking and finds (quoting from page 153):

• The content of coverage frequently mirrors official government claims; the newspapers rarely question even some of these claims, let alone serve as a conduit for the expression of alternative views. This is partly because the news media rely so heavily on official sources;
• The reporting of enforcement actions and the use of law-enforcement sources have increased substantially since the timeframe of Gulati’s study, indicating a shift in news media’s focus from policy debates to implementation;
• Victims are most often portrayed as minors and females, reflecting prevailing assumptions regarding ideal victimhood, where some individuals are viewed as more “legitimate” and worthy of assistance than others;
• The two newspapers generally do not define human trafficking for their readers and almost never question official claims regarding the magnitude of the problem (cf. Kessler, 2015a, 2015b);
• “… [there is a] low percentage of articles attempting to quantify the problem or to question prevailing claims about its scope — coupled with these newspapers’ clear support of existing or more punitive anti-trafficking policies — demonstrates how thoroughly the dominant discourse has been embraced by the press.”

The reality today is that people are vulnerable to being wrongfully arrested and charged for human trafficking.  Defense lawyers know that there is need to confirm if law enforcement agents or prosecutors have not been clear in charging for trafficking instead of solicitation of prostitution or other lesser crimes.

Facing Arrest in Texas for Soliciting Services or Sex Trafficking

When a sex customer or john is arrested, they are often shocked and humiliated to be caught and cuffed.  These people may understand it is wrong to ask for sex in exchange for money, but they are also thinking they are dealing with a consensual individual.  They don’t know that this person may have been coerced into this job.

It is devastating personally to find they are facing charges of human trafficking.  This is what many are arguing happened with the almost fifty arrests here in DFW this year, where Reason described law enforcement as “…tricking men into committing petty crimes…” over the web.

Sentencing Differences

Solicitation charged as trafficking is also a very different scenario from a criminal defense perspective.  Not only is the social stigma must more intense when there are allegations with the word “trafficking” involved, but the potential sentencing upon conviction is much more serious than a solicitation of prostitution charge.  Under both state and federal law, conviction for trafficking can result in a life sentence.  For more, read:

• Human Trafficking In Texas: Criminal Defense Perspective Part 1 of 2; and
• Human Trafficking In Texas: Criminal Defense Perspective Part 2 of 2.

Solicitation of prostitution may now be a felony charge under Texas state law; however, it involves a much less serious punishment than sex trafficking charges under either state or federal statute.  Federal trafficking charges, upon conviction, can mean very long prison sentences as well as substantial monetary fines.  There will also be the requirement to register as a convicted sex offender.

Defense Considerations

Defenses must be considered in these cases depending upon the particular facts made the bases of the charges as well as the underlying investigation that resulted in the arrest.  Among them are:

• A review of the actions undertaken by the investigators for improprieties and due process violations; illegal searches or seizures can form the basis of a motion to suppress or dismiss because of inadmissible evidence;
• A confirmation of the factual bases of the charges, i.e., are there any false accusations (which can happen, for instance, in child custody cases or divorce proceedings);
• Analysis of all elements of the crime to make sure each is supported by sufficient, admissible evidence.  Questions to be asked include: were these circumstances really trafficking? were there circumstances of alleged solicitation of prostitution?
• Viability of reducing or minimizing the charges through plea bargaining must be considered after a review of the government’s case as well as the defense’s independent investigation.

These cases are emotionally difficult for the accused and their loved ones.  Each matter deserves individual consideration with an understanding of the wide-ranging impact of these sex crime charges upon the personal and professional lives of the individual and their family members, friends, and colleagues.  Lives can be forever changed merely by an arrest even if the charges are summarily dismissed.

Of particular importance whenever someone seeks to buy sex is they may face arrest on charges of either solicitation of prostitution or sex trafficking based upon what may be an online encounter where nothing happened other than the offer to pay money.  Having an experienced, compassionate, and aggressive criminal defense advocate is critical in these cases.

For more, read:

• Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview
• Sex Crimes in Texas: Criminal Defense Overview
• Criminal Solicitation of a Minor: Criminal Charges under Texas Penal Code § 15.031
• Online Child Pornography Arrests: Video Conferencing and Online File Sharing Services Targeted by Federal Investigators
• Mandatory Minimum Penalties in Federal Sentencing
• Bail after Federal Arrest in Texas and The Bail Reform Act of 1984.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”