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Focus on the Law: Human Sex Trafficking Part 2

By Sharon Frankenberg,
Attorney at Law

“As of November 2013, Tennessee was ranked as the toughest state in the nation regarding state statutes that protect children from commercial sex exploitation crimes,” reports Mark Gwyn, Director of the Tennessee Bureau of Investigation. Director Gwyn blames domestic issues, the drug trade, poverty and other socio-economic factors as catalysts for human sex trafficking.

In an attempt to address this epidemic, twelve new anti-human trafficking laws have been created in this state. The prohibition against sex trafficking is currently defined in Tennessee Code Annotated Section 39-13-309 as follows: “a person commits the offense of trafficking persons for a commercial sex act who knowingly subjects, attempts to subject, benefits from or attempts to benefit from another person’s provision of a commercial sex act; or recruits, entices, harbors, transports, provides, purchases, or obtains by any other means, another person for the purpose of providing a commercial sex act…these means may include…causing or threatening to cause physical harm to the person; physically restraining or threatening to physically restrain the person; abusing or threatening to abuse the law or legal process; knowingly destroying, concealing, removing, confiscating or possession any actual or purported passport or other immigration document, or any other actual or purported government identification document, or the person; using blackmail or using or threatening to cause financial harm for the purpose of exercising financial control over the person; or facilitating or controlling a person’s access to a controlled substance.” This statute shows an understanding of the many methods sex traffickers use to control their victims.

Other state statutes have increased the penalty for sexual offenses, particularly those involving minors. The defense of ignorance or mistake of fact concerning the age of a minor has been removed where it concerns the offenses of patronizing prostitution and soliciting sexual exploitation of a minor.  A conviction of trafficking for commercial sex acts is now grounds for termination of parental rights where the parent’s child is one of the victims of the offense. Sexual offenses have been added to the definitions of organized crime so that criminal offenses involving racketeering and unlawful debts can be applied to certain offenders. Trafficking for commercial sex acts has also been added to the definitions of criminal gang offenses. All of these laws strengthen the protections against sex trafficking.

A major policy shift came in 2011 when the Tennessee General Assembly removed prostitution as a prosecutable crime for individuals under the age of 18. Prior to this time, juveniles were commonly arrested and charged with prostitution. Some of these children were as young as 13. When the new sex trafficking laws were passed, a juvenile was defined as a victim if a commercial sex act occurred. Under the criminal statute on prostitution, the juvenile was defined as the criminal for committing the same act. Interestingly, in the TBI’s 2013 follow up report to its 2011 Tennessee Human Sex Trafficking Study, there was a split between how law enforcement respondents thought juveniles should be treated and how non-law enforcement respondents thought they should be treated. Members of law enforcement responding to the survey were slightly more likely to believe that minors should be charged with prostitution than not. Non-law enforcement respondents were much more likely to believe that minors should not be charged with the crime of prostitution. Juveniles are not being charged now and only time and experience will tell if this is the correct decision.

Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. Her office number in Knoxville is (865)539-2100.

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