Massachusetts Court Weighs Whether All Prostitution Is Sex Trafficking
“So every John is a sex trafficker?” asked Massachusetts Supreme Judicial Court Scott L. Kafker in the courtroom last week.
“Yes, your honor,” replied Plymouth County Assistant District Attorney Julianne Campbell.
The case—Commonwealth v. Garafalo—represents the latest assault on civil liberties and basic language to be carried out in the name of stopping sex trafficking.
Victimizing ‘A Fictitious Individual Created by Law Enforcement’
It’s long been a goal of certain radical feminists to define all sex work as sex trafficking. If you completely remove agency and free will from the equation—at least for women—then anyone who accepts money for sexual activity can be a victim and anyone who makes or facilitates this payment a criminal.
This paradigm is the basis for the “Nordic Model” of regulating prostitution, in which paying for sex is illegal but the basic act of offering sex for money is not. The Nordic model is established in many European countries, was adopted last year in Maine, and is gaining ground in the U.S. (where it’s sometimes, confusingly, called the Equality Model).
In keeping with this paternalistic mindset, some places have also started to raise penalties for prostitution customers, even elevating solicitation from a misdemeanor to a felony. Meanwhile, at the federal level, trying to pay for sex with someone under age 18 counts as sex trafficking even when the solicitor does not know the minor’s actual age.
Massachusetts may take these ideas one step further and declare anyone who tries to pay for sex at all to be a sex trafficker, thereby defining all prostitution, even between consenting adults, to be a form of sex trafficking.
A case that came before the Massachusetts Supreme Judicial Court (SJC) last week involves a prostitution sting conducted by Massachusetts state cops in 2021. The officers, posing as adult sex workers, posted ads online and arrested people who responded to the ads and attempted to meet up for paid sexual activity.
Regrettably, this type of sting is incredibly common in the U.S. It typically results in solicitation charges—still a misdemeanor in most places—for those ensnared. But in this case the state indicted those who responded to the sham ads on sex trafficking charges.
Massachusetts law says that anyone who “subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography” is guilty of trafficking of persons for sexual servitude—a.k.a. sex trafficking. The crime is a felony, punishable by at least 5 years in prison (without eligibility for probation, parole, or work release) and a possible 20 years, plus a potential fine of up to $25,000.
The five defendants in Garafalo, arrested in the 2021 sting and charged with trafficking of persons for sexual servitude, pushed back against the charges, filing a motion to dismiss them in 2022.
State Judge Maynard Kirpalani agreed to dismiss the charges. “The grand jury heard no evidence that there were any actual victims in the cases involving any of the Defendants, as the woman in the advertisements was a fictitious individual created by law enforcement, and there was no money and/or sexual services exchanged,” wrote Kirpalani. “Consequently, there was no evidence that any of the Defendants knowingly enabled or caused, or attempted to enable or cause, another person to engage in commercial sexual activity.”
‘We’re Going To Take Tvery Single John…and Put Them in Prison for Five Years?’
The state appealed, but the Appeals Court judge also sided with the defendants. So the state appealed again.
The Massachusetts high court heard oral arguments for the case on January 6.
Massachusetts’ position is that the state’s sexual servitude statute clearly captures paying for sex among its prohibited activities. It comes down to the word “obtain,” the state argued.
But at the same time the state legislature enacted a sex trafficking statute in 2011, it also raised the penalty for “soliciting a prostitute,” making this misdemeanor crime punishable by “a fine of not less than $1,000 and not more than $5,000” and up to two and a half years in jail.
“We’re going to take every single J
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