Relates to sex trafficking and persons under eighteen years of age

Section two provides the effective date.

Justification

Since 2007, New York State has taken significant steps to hold both sex and labor traffickers accountable. In 2015, New York strengthened its criminal justice response to trafficking with the Trafficking Victims Protection and Justice Act ("TVPJA," Ch. 368 of 2015), comprehensive legislation that increases accountability of traffickers, patronizers and other exploiters, while providing necessary protection to victims.

Although we have enacted legislation to ensure that those who devastate the lives of children by promoting them in the sex trafficking industry are held accountable, the law must go further to hold these traffickers accountable just as they are under federal law.

Under federal law, the crime of sex trafficking is made when a sexual act is induced by force, fraud or coercion, or when the person induced to perform such act is under 18. Accordingly, a prosecutor need not articulate or prove force, fraud or coercion to prosecute a trafficker who exploits a child under 18. Instead, under federal law, any child under the age of 18 who engages in commercial sex is considered a victim of sex trafficking and any person who promotes and benefits from exploiting such child is considered a sex trafficker.

Under New York law, however, the prosecution must prove that a person used force, fraud or coercion to find such person guilty of sex trafficking, even if the child is under 18.

Recently, Manhattan District Attorney Cyrus Vance, Jr. in announcing the conviction of an operator of a sex trafficking ring, which included the prostitution of a 15-year old, on Super Bowl weekend in 2014, called on the Legislature to amend our penal code. "In 46 states across the country, simply proving that a child was sold for sex would have been proof of Sex Trafficking. In New York, however, even though this 15-year-old was too young to legally engage in sexual activity with grown men, my Office still had to prove that she was forced to do so by the defendant under the threat of violence to secure this conviction."

Prosecutors, advocates and service providers see the restrictions the law imposes on a frequent basis. Another case is illustrative.

Fourteen-year old Jennifer was lured into prostitution by her 40-year old boyfriend, Mac. For months Jennifer was sold online for sex and was required to make a quota set by Mac. Although Mac deceived Jennifer repeatedly and at times used force to ensure Jennifer's obedience, Jennifer believed that Mac loved her and refused to testify against Mac. This refusal to accept that they are being victimized by an older exploiter is especially common with victims of human trafficking as they are often traumatically bonded to their exploiter, who can alternate between acts of affection and violence.

Under federal law, prosecutors could bring an action for sex trafficking against Mac based on the fact that Jennifer is under 18, without a showing of force, fraud or coercion. In New York, however, a prosecutor would be required to prove that Mac used force, fraud or coercion in order for the court to find Mac guilty of sex trafficking. Requiring such proof most often obligates a victim to testify against her trafficker. Yet requiring anyone, especially a minor, to testify against her trafficker can retraumatize an already highly traumatized victim. Moreover, a minor may be unwilling to testify against her trafficker because she is convinced she is in love with him. And if she does testify, she may state that she engaged in sex out of love for her trafficker, not by force, fraud or coercion. If the minor does not testify against her trafficker, no case can be made. The child returns to her trafficker, with the trafficker free to continue his commercial sexual exploitation of the child.

When we passed and had signed into law the TVPJA and legislation to treat 16-and 17-year olds as Persons in Need of Supervision (Ch. 555 of 2013), we reaffirmed our conviction that prostituted individuals under the age of 18 are sexually exploited youth. And in our statutory rape laws we have long recognized the fact that children do not have the legal, psychological, or emotional capacity to consent to sexual activity. This principle should not be discarded merely because there is an exchange of money.

By amending the Penal Law to eliminate proof of force, fraud or coercion where a child under 18 engages in commercial sex, this legislation will also align the Penal Law with the Family Court Act, which creates a presumption that a minor charged with prostitution, is a sex trafficking victim. Federal law, the Federal Trafficking Victims Protection Act, already establishes that all prostituted children are trafficking victims.

Eliminating proof of these elements in cases of children under 18 will enable us to hold traffickers accountable and prevent returning these young girls and boys to lives of abuse and exploitation at the hands of their predatory traffickers.

Legislative history

New bill.

Fiscal implications

None to the State.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law.