To sue or not to sue third-party businesses for sex trafficking?

by Kimberly Mehlman-Orozco | @MehlmanOrozco | Human trafficking expert witness
Monday, 3 July 2017 20:35 GMT

Law enforcement officers make an arrest in this still image taken from video in New Jersey, provided by the FBI in this 2013 file photo. REUTERS/FBI/Handout via Reuters

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Instead of blaming third parties, anti-trafficking advocates and politicians should consider identifying better mechanisms to address the root causes of sex trafficking

Third party liability is the latest trend in efforts in the United States to combat sex trafficking. Victims have begun suing the websites used to market commercial sex services, as well as hotels where the commercial sex services are allegedly exchanged. These accusations assume that the third parties were aware of the commercial sex exchanges, were able to differentiate consenting adult commercial sex workers from victims of sex trafficking, and facilitated the sex trafficking victimization.

Unfortunately, these accusations aren’t particularly reasonable; here’s why.

First, sex trafficking is a clandestine crime. Sex traffickers go to great lengths to develop trauma bonds with their victims, to facilitate mental manipulation and control and conceal the nature of the exploitative relationship. As such, it is unlikely that they would openly disclose this information to business owners.

Second, it is very difficult to discern an adult consenting sex worker from a victim of sex trafficking. Trauma bonding often results in victims behaving more like consenting participants or co-conspirators, rather than quintessential victims. As such, these women and children are often misidentified and erroneously criminalized by both service providers and criminal justice actors. This happens with such frequency, even by trained law enforcement, that an increasing number of states have begun to pass vacatur statutes, in order to expunge the convictions of mistakenly arrested and convicted victims of human trafficking.

Last, law enforcement doesn’t even intervene in many situations where there is probable cause of commercial sex or sex trafficking, so it is confusing why third-party businesses are being held liable for following a similar standard.

For example, during the dark hours of early dawn this morning, women in platform heels, thongs, and see-through nightgowns walked the streets of Washington, D.C., in an area known as "the track" or the local "ho stroll." A variety of men, in business suits and expensive jewelry or driving luxury cars, watched the women from a close distance, presumably their pimps or sex traffickers. As cars passed, some of the women would wave; others would gyrate on lampposts or shake their derriere for the passing cars. Every so often, the women would hop into one of the vehicles, driving to nearby parking spots or down alleys.

Several police officers passed in patrol cars and even one on a bicycle, without stopping.

I conduct these systematic social observations to provide me with qualitative insight into the commercial sex industry in the Washington D.C. area, as well as the oftentimes-lacking intervention by law enforcement. These data are featured in my forthcoming book, "Hidden in Plain Sight: America’s Slaves of the New Millennium".

An increasing number of anti-trafficking advocates have begun to jump on the bandwagon to hold businesses liable for the crimes committed by third parties. While these accusations make assumptions that the businesses were aware of these crimes and were accurately able to differentiate consenting adult commercial sex workers from sex trafficked victims, it is unclear why anti-trafficking advocates aren't holding criminal justice actors to an equal or higher standard.

A lieutenant for the D.C. Metropolitan police told me that he didn’t know why the officer's didn’t stop and intervene, given the probable cause of commercial sex exchanges on the street this morning. However, he did tell me that his sex trafficking vice squad makes thousands of arrests per year through various stings, but the offenders are often back out on the streets quickly.

Instead of blaming third parties and attempting to hold them liable for the crimes committed by others, truly dedicated anti-trafficking advocates and politicians should consider identifying better mechanisms to address the root causes of sex trafficking and hold the actual offenders liable for their crimes.

Kimberly Mehlman-Orozco, Ph.D. serves as a human trafficking expert witness for criminal cases and her book, "Hidden in Plain Sight: America's Slaves of the New Millennium," will be published by Praeger/ABC-Clio this fall.

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