Sex trafficking is not a crime of violence.
At least that is the conclusion of the U.S. Court of Appeals for the Fourth Circuit, which tossed out this August (PDF) a pimp’s conviction for “possession and use of a firearm in relation to a crime of violence.” The crime of violence in question was sex trafficking.
Unfortunately, the statute defining that firearm crime, known as section 924(c), has been criticized as one of federal law’s most enigmatic thanks to its “bramble of prepositional phrases.” Senior Judge Andre Davis, who wrote the ruling, must have gotten stuck in the bramble. He overlooked that sex trafficking is a violent trespass on human beings’ bodies, particularly women’s bodies.
The court, Judge Davis wrote, was “not persuaded that the ordinary case of sex trafficking by force, fraud, or coercion involves a substantial risk that the defendant will use physical force as a means to commit the offense.”
The pimp, German de Jesus Ventura, was also convicted of “sex trafficking by force, fraud, or coercion.” That conviction, along with convictions on five related counts and a 30-year prison sentence, stands. What did not survive the appeal was his 924(c) firearm conviction and the mandatory additional five-year prison sentence the statute imposes.
Prosecutors often tack on 924(c) firearm charges when they prosecute cases involving crimes of violence and firearms. The statute prohibits using or carrying a firearm during and in relation to a crime of violence. A crime is a crime of violence if there is a substantial risk that a typical perpetrator will use physical force against the victim in the course of committing the crime.
In Ventura’s case, prosecutors argued that “sex trafficking by force, fraud, or coercion” is a crime of violence. The sex trafficking statute, known as section 1591(a), criminalizes participation in a scheme where someone will be compelled by force, threats of force, fraud, or coercion to perform a sex act for money. The types of participation proscribed by the statute include recruiting, harboring, transporting, providing, and obtaining victims. Participation also includes profiting from a sex trafficking scheme.
According to this court, there is not a substantial risk that sex traffickers will use physical force against trafficking victims. That’s outrageous.
Congress passed section 1591(a) as part of the Trafficking Victims Protection Act of 2000 (TVPA). The TVPA included a congressional finding that traffickers “often” subject victims to physical violence. In other words, Congress said there is a substantial risk that a trafficker will use physical force against trafficking victims. The court ignored the finding, without any evidence to the contrary.
If the court had considered the evidence, it could not have denied that there is a substantial risk that sex traffickers will use physical force against their victims. A 2001 study (PDF) funded by the U.S. Department of Justice found that physical violence “was an intrinsic part” of sex trafficking. Of women victimized in the U.S. (the vast majority (PDF) of sex trafficking victims are women), 86 percent of the Americans and 53 percent of the non-Americans reported physical abuse by traffickers. That statistic does not include sexual assault, which is itself a form of physical violence. Seventy percent of the American victims and 40 percent of the non-American victims reported that traffickers sexually assaulted them. The researchers cautioned that underreporting means the actual incidence of physical violence, especially against non-American victims, is likely even higher.
The physical abuse that sex trafficking victims suffer is not just common; it is disturbingly serious. More than half of the American victims surveyed in the 2001 study required emergency room treatment for injuries and illnesses they sustained, such as broken bones and head injuries.
This evidence undoubtedly did not reach the Fourth Circuit.
The court made its ignorance of the reality of violence in sex trafficking even more apparent when Judge Davis distinguished sex trafficking from burglary, which is a crime of violence, without explanation. The ruling quoted the Supreme Court, which unanimously determined that “burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.” And yet a 2015 study (PDF) funded by the Department of Justice found that less than 8 percent of burglaries resulted in actual or threatened physical violence. With these statistics, how is burglary a crime of violence, while sex trafficking is not?
The motivations behind the court’s ruling that sex trafficking is not a crime of violence are unclear. One possibility is that the court was making a move to circumscribe the reach of controversial mandatory minimum sentencing. The 924(c) firearm statute is one such mandatory minimum statute. By limiting what is considered a crime of violence in this case, the court may be sending a message that it will not readily recognize other crimes as crimes of violence in future cases. The result would be a decrease in future mandatory minimum 924(c) convictions. But if that was indeed the court’s intent, it could have openly said so, to likely greater effect. The most compelling explanation is that the court simply did not understand the true scope of violence in sex trafficking.
Even the sobering numbers presented above fail to grasp the true extent of the physical violence to which sex traffickers subject victims. The issue is not only the callous violence frequently used to compel victims to engage in commercial sex acts; it is also the commercial sex acts they are compelled to engage in. Anyone who participates in sex trafficking should be held personally complicit in the violent trespasses on victims’ bodies. Sex traffickers are rapists whether they rape victims themselves or profit from the appropriation of victims’ bodies.
Is sex trafficking a crime of violence? How is it anything else?
The author is an attorney and Ph.D. candidate in Human Rights Law at the Freie Universität Berlin.
Disclosure: The author previously represented a victim of German de Jesus Ventura.
