Men Caught In Prostitution Sting Aren’t Sex Traffickers, Massachusetts High Court Says
Does answering a prostitution ad make a man a sex trafficker? The highest court in Massachusetts says no, in a ruling that represents a win for both common sense and civil liberties.
The case—Commonwealth v. Garafalo—involved a prostitution sting conducted by state police in 2021. Officers posted web ads pretending to be adult female sex workers and arrested men who met up with these “women” to pay for sex. Rather than simply charge their marks with the crime of soliciting a sex worker or engaging in sexual conduct for a fee, authorities charged them with trafficking of persons for sexual servitude.
No Recruitment or Enticement
Five of the men charged in this sting pushed back against being treated as sex traffickers, and the matter came before the Massachusetts Supreme Judicial Court in January.
Their lawyers noted that state law defines trafficking for sexual servitude as subjecting, recruiting, enticing, harboring, transporting, providing, obtaining, or causing “another person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography.”
Since there was no trafficked person in their cases, they could not be charged with trafficking, defense lawyers argued. And taking “every single John, charg[ing] them with sex trafficking, and put[ting] them in prison for five years” was not “the intent” of the sex trafficking law, defense attorney Patrick Noonan told the court.
On May 2, the court ruled in favor of the men charged with trafficking.
It doesn’t matter that the “sex worker” was a figment of cops’ machinations and not a real person, the court held. (“It is a basic proposition of our criminal laws that factual impossibility is not a defense to a charge of attempt,” as the court put it.)
But it does matter that other elements of the crime of trafficking for sexual servitude were not met. Merely agreeing to “the terms extended by [a] sex worker”—or someone pretending to be a sex worker—”cannot reasonably be found to be conduct aimed to entice or to recruit the sex worker,” wrote Justice Dalila Argaez Wendlandt in the court’s opinion.
“Nothing in the telephone calls or text message interactions between the defendants and the sex worker reasonably suggests any effort by the defendants to allure, to attract, to tempt, or to persuade the sex worker to engage in commercial sexual activity; instead, in those calls and messages, they selected sexual activities from a menu of activities she proposed,” noted Wendlandt.
The justices also considered the trafficking law’s prohibition on “obtaining” someone for commercial sexual activity. They ultimately decided that the defendants didn’t meet this element of the crime either.
“It is ambiguous…whether the Legislature intended to capture a purchaser of services offered by an ostensibly independent sex worker” with the inclusion of phrase “obtain by any means,” wrote Wendlandt. But “the conduct alleged here arguably is at odds with the language of the sex trafficking statute as a whole, which delineates specific enumerated acts of those who engage in the steps of the business of buying and selling human beings for sexual exploitation rather than at purchasers who agree to pay an independent sex worker for sexual activities s
Article from Reason.com
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