Wednesday, March 18, 2015

Yellow Rose; Red Light

Via ENB, Texas unanimously passed HB 10, "AN ACT relating to certain criminal and civil consequences of trafficking of persons, compelling prostitution, and certain other related criminal offenses; to the prevention, prosecution, and punishment of those offenses, and to compensation paid to victims of those offenses." A little wordy, so the press has been calling it a "sex trafficking" bill. Pithy, yes?

If you're anything like me (odds are slim here) you'll find yourself a little puzzled why a legislature would bother passing a bill banning something that's already illegal. Shall we parse the bill together?

FELONY indictments may be presented within these limits, and not afterward:
(1)  no limitation:
(A)  murder and manslaughter;
(B)  sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code;
(C)  sexual assault, if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained;
(D)  continuous sexual abuse of young child or children under Section 21.02, Penal Code;
(E)  indecency with a child under Section 21.11, Penal Code;
(F)  an offense involving leaving the scene of an accident under Section 550.021, Transportation Code, if the accident resulted in the death of a person;
(G)  trafficking of persons under Section 20A.02(a)(7) or (8), Penal Code; [or]
(H)  continuous trafficking of persons under Section 20A.03, Penal Code; or
(I)  compelling prostitution under Section 43.05(a)(2), Penal Code;
So the first section lifts the statute of limitations for the listed offenses. I've posted a little bit already on how such statutes are, for lack of a better term, behavior modification technology for prosecutors: the legislature, in its role as guardian of the public interest, ensures the efficient use of public funds by obliging district attorneys to direct the state's resources towards those cases most likely to result in a successful application of criminal justice. Now in the event that you, my cherished reader, are a practicing defense attorney (and perhaps your name is Mark Bennett or Scott Greenfield or Ken White or someone else I know from Law Twitter), I am not making a claim about the actual practical wisdom of lifting the statute of limitations from the listed offenses. My claim is that it is not in the political interests of elected officials to preside over overzealous prosecutors. No one ever lost an election by appearing too tough on crime. Not yet anyway. A boy can hope. If the DA strains against the yoke, ambitious legislators will naturally loosen the reins. DNA evidence changes the detection calculus, so that old, cold cases can be successfully re-opened and convictions obtained. Note the specific language in (C). That language is precisely what I mean in the link at the top of this paragraph.

Moving along:
(2)  ten years from the date of the commission of the offense:
(A)  theft of any estate, real, personal or mixed, by an executor, administrator, guardian or trustee, with intent to defraud any creditor, heir, legatee, ward, distributee, beneficiary or settlor of a trust interested in such estate;
(B)  theft by a public servant of government property over which he exercises control in his official capacity;
(C)  forgery or the uttering, using or passing of forged instruments;
(D)  injury to an elderly or disabled individual punishable as a felony of the first degree under Section 22.04, Penal Code;
(E)  sexual assault, except as provided by Subdivision (1);
(F)  arson;
(G)  trafficking of persons under Section 20A.02(a)(1), (2), (3), or (4), Penal Code; or
(H)  compelling prostitution under Section 43.05(a)(1), Penal Code;
Arson? Eh, whatever. I'm not sure what the old limits on these were, and I can't be bothered to look it up (seriously, IANAL, and even if I were, MB<MC for the purposes of this post). I have to admit, I like (B) here. Or I would if I thought for a moment that the petty theft committed by roguish government officials outweighed the massive plunder conducted under a tin aegis of state legitimacy. Still, the thought of "public servants" and yardarms gives me a little smile.
(3)  seven years from the date of the commission of the offense:
(A)  misapplication of fiduciary property or property of a financial institution;
(B)  securing execution of document by deception;
(C)  a felony violation under Chapter 162, Tax Code;
(D)  false statement to obtain property or credit under Section 32.32, Penal Code;
(E)  money laundering;
(F)  credit card or debit card abuse under Section 32.31, Penal Code;
(G)  fraudulent use or possession of identifying information under Section 32.51, Penal Code; (H)  Medicaid fraud under Section 35A.02, Penal Code; or
(I)  bigamy under Section 25.01, Penal Code, except as provided by Subdivision (6);
Money laundering and bigamy. Well, if you're going to update your statutes of limitations and you worry about committee pushback or the bar association (or a passel of curmudgeonly defense attorneys, a few of which I listed above) raising a stink, it's probably politically wise to cram it into a "sex trafficking" bill. It's not like anyone ever actually reads legislation anyway, especially not journalists on a deadline who, thanks to editorial pressure and the demands of an insatiable marketplace, are almost invariably more interested in salacious headlines than in substance. USA PATRIOT ACT? Obviously if you oppose that, you're a traitor. It's right there in the name of the bill. Patient Protection and Affordable Care Act? Why, that makes health care cheaper. It says so right in the title! Feh.
(5)  if the investigation of the offense shows that the victim is younger than 17 years of age at the time the offense is committed, 20 years from the 18th birthday of the victim of one of the following offenses:
(A)  sexual performance by a child under Section 43.25, Penal Code;
(B)  aggravated kidnapping under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or
(C)  burglary under Section 30.02, Penal Code, if the offense is punishable under Subsection (d) of that section and the defendant committed the offense with the intent to commit an offense described by Subdivision (1) (B) or (D) of this article or Paragraph (B) of this subdivision;
"20 years from the 18th birthday of the victim" is a curious construction. Well, as long as it's for the children, anything goes, right?
(6)  ten years from the 18th birthday of the victim of the offense:
(A)  trafficking of persons under Section 20A.02(a)(5) or (6), Penal Code;
(B)  injury to a child under Section 22.04, Penal Code; or
(C)  compelling prostitution under Section 43.05(a)(2), Penal Code; or (D)  bigamy under Section 25.01, Penal Code, if the investigation of the offense shows that the person, other than the legal spouse of the defendant, whom the defendant marries or purports to marry or with whom the defendant lives under the appearance of being married is younger than 18 years of age at the time the offense is committed; or 
(7)  three years from the date of the commission of the offense: all other felonies.
"All other felonies." Ha ha, Texas. Way to bury the lede. I see what you did there.

Section 2 amends the criminal code to redefine: "'Trafficking of persons' means any offense that results in a person engaging in forced labor or services, including sexual conduct, and that may be prosecuted under Section 20A.02, 20A.03, 43.03, 43.04, 43.05, 43.25, 43.251, or 43.26, Penal Code."

I'm frankly astonished that this required any clarification. Forced labor has been illegal in the US since the middle of the 19th century. Maybe Texas was a little slow on the uptake. Better late than never, I reckon.

Section 3 reclassifies some offenses, and gets victims off the hook for complicity in further trafficking. If I'm reading it right, someone who's been coerced into being a sex slaver (rather than just a sex slave) won't be held criminally culpable (Code 20A.02 is a 2nd degree felony). Don't prosecute the fishing pole; prosecute the angler, to coin a metaphor.

Section 4 directs the AG to refrain from being too lenient with uncooperative participants in a criminal investigation. Read it yourself if you can stomach it. I'll be interested to see how that one stands up to a 6A challenge. Not that I'm a 6A expert or anything, mind you. Interested punter, at best.

Section 5 is more kiddie prostitution/porn stuff. Again, an easy sell for any randomly selected legislator. There's some language about online solicitation of a minor.

Section 6 details new reporting requirements, obliges schools (including charter schools) to comply with investigators (including the Department of Family and Protective Services, an agency most notorious for not being obliged to comply with the same sort of procedural due process imposed on ordinary police and prosecutors). Failure of school administrators to report child abuse or neglect (presumably, they mean "suspected" child abuse or neglect, but hey, "standards of evidence" are just, like, words, man) violates this section. We're referred to Chapter 261 of the Family Code for more details. I wonder how an elementary school teacher, untrained in the keen detectives' art will be able to identify whether or not a child has been trafficked. At any rate, the alert slaver will simply force their wards into truancy anyway, so that now not only will Texas be home to child slave prostitutes, but completely uneducated child slave prostitutes. I wonder if that's much of an improvement on the current state of affairs.

One wonders if anyone consulted an actual minor involved in the sex trade in writing this section. Isn't the stereotype for child prostitution usually an LGBTQ runaway who has to hustle in order just to stay alive? Do these kids still attend classes regularly? Or is this just some kind of code for heretical splinter Mormon sects with underage brides?

Section 7 adds "trafficking of persons" to the criminal statutes governing child abuse. There's also this: "The supreme court shall provide judicial training related to the problems of family violence, sexual assault, trafficking of persons, and child abuse and to issues concerning sex offender characteristics." Was this a problem in Texas? I've heard that it can be challenging to interrogate children (and troubling for interrogators when they hear the godawful details of some of the more sordid cases of child abuse), but it's not entirely clear why the judiciary needs special training. What's the lacuna in the judge pipeline here? I'm legitimately curious. It seems like a peculiar omission (then again, line (g) mentions "gender bias in the judicial bias," so maybe there's less mystery there than I imagine).

Section 8 is fluff. Section 9 mandates sex trafficking training for judges, both initial and continuing. Because we obviously want judges stuck in bullshit training rather than hearing cases. It's not like the criminal justice system is grotesquely overburdened with cases anyway, right?

Section 10 creates the task force mentioned in the press release. The annual estimate is, what, $1.4M. And the probability it won't be deployed to harass, annoy, and intimidate prostitutes who are peacefully trying to make ends meet might hover just above zero in even a charitable estimate. Good gravy, they're even getting the Texas Parks and Wildlife Department in on the fun.

There's a bunch of other stuff in there that will be of interest to attorneys. The task force is also appointed with generating and maintaining a database, so some researchers might be happy about that. Me? Kidnapping and slavery are already like, super bad crimes. Kidnapping children and forcing them in to the sex trade against their will is even worse. Kidnapping children overseas, taking them across international borders and into a country where they enjoy little in the way of official recognition or legal status and may not even speak the language is an act that earns its own little region of hell right next to Satan's butthole. But as awful as that stuff may be, conflating it with the harsh tragedy of a gay teenager kicked out of his house by unloving parents and forced to survive the only way he is able is the sort of evil that only the myopically self-righteous can muster. It's possible that this new task force will differentiate between voluntarily-chosen (perhaps even euvoluntarily-chosen) sex work and coerced slavery and to take adequate steps to combat an actual evil, but two things lean against that interpretation: (1) Texas has not ended prohibition against ordinary prostitution and (2) has made no appreciable efforts in the legislature to either increase immigration quotas or to do away with the quota system altogether.

Is sex work euvoluntary? Occasionally, but probably not all that often. Almost never when it involves children. On the margin, does strengthening criminal penalties help victims or further endanger them? I guess the Lone Star State is about to find out.

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Do you have suggestions on where we could find more examples of this phenomenon?