The Trafficking Victims Protection and Justice Act (TVPJA) seeks to address child sexual abuse and exploitation, including forcing minors into prostitution, in a comprehensive way by enhancing protection for trafficking victims. It increases accountability for buyers and traffickers who are fueling the growth of this massive underground industry and it helps prevent re-victimization of trafficking victims by the justice system. The bill looks to close any gaps and loopholes from the 2007 NYS Human Trafficking Law and the 2008 Safe Harbor Law that deal with how prostituted minor children are treated within the justice system.
1. Recognize that buying children for sex is child abuse. Currently, an individual convicted of patronizing a minor for prostitution receives a lower penalty than one convicted of raping a minor of the same age. This bill creates the felony sex offense of “aggravated patronizing a minor,” aligning the penalties with those for statutory rape. It also matches the ages of victims in each degree of patronizing with the ages in the corresponding degree of rape. This bill also repeals the defense to patronizing that the defendant did not have reasonable grounds to believe that the victim was a child. No such defense is provided for sexual abuse against children without the exchange of money.
2. Acknowledge that prostituted children are victims. When it passed the Safe Harbor Act, the New York legislature recognized that prostituted individuals under the age of 18 are sexually exploited youth. Likewise, the Federal Trafficking Victims Protection Act establishes that all prostituted children are trafficking victims. This bill brings State law in line with Federal law by removing the New York State’s requirement of coercion in prosecutions for the sex trafficking of children. The bill also addresses a problem with the Safe Harbor Act’s implementation: the criminal justice system continues to treat 16- and 17-year old victims as criminal defendants. This legislation amends the Criminal Procedure Law so that minor trafficking victims will receive protection and services as part of a PINS (Persons in Need of Supervision) proceeding.
3. Defend trafficked people from criminal prosecution. In 2010, New York amended its Criminal Procedure Law to enable sex trafficking victims to vacate prostitution convictions. This bill establishes sex trafficking as an affirmative defense to prostitution, encouraging defense counsel to investigate their clients’ experiences carefully and bring trafficking concerns to the attention of prosecutors and courts. Preemptive advocacy will contribute to New York’s efforts to protect victims and reduce trafficking, and it will obviate the need for post-conviction challenges.
4. Improve victim access to social services. Established providers of social and legal services are often the first to interact with trafficking victims and develop trusting relationships. This bill expands the group of people authorized to make referrals for social services. Currently, New York State statute only allows for law enforcement officials to make these referrals.
5. Increase accountability for traffickers. Penalties for trafficking should match the severity of the crime. Sex traffickers subject their victims to repeated rape. Labor traffickers force their victims to endure prolonged periods of enslavement. This bill designates sex trafficking as a Class B violent felony and raises the penalty for labor trafficking from a Class D felony to a Class B felony.
6. Close loopholes for exploiters. Livery and limousine drivers have become central players in human trafficking. This bill amends the Penal Law to take into consideration evolving modes of trafficking, ensuring that the state can prosecute drivers who engage in a business or enterprise of transporting people for the purposes of prostitution. Also, traffickers are increasingly using marijuana and ecstasy to coerce and control their victims. This bill clarifies that providing these drugs to a prostituted person with the intent to impair his or her judgment constitutes sex trafficking. Last summer, the legislature passed a bill to address trafficking in school zones. Recognizing that the bill failed to fully address the problem, Governor Cuomo urged the legislature to protect our children by enacting “similar enhanced penalties for patronizing a prostitute within a school zone.” This bill amends the Penal Law consistent with the Governor’s recommendation.
7. Eliminate stigmatizing language. The use of the term “prostitute” is the only instance where the Penal Law identifies someone by the crime he or she has allegedly committed. This bill replaces all references in the Penal Law to “prostitute” with the phrase “person for prostitution.”
8. Strengthen cases against traffickers. In order to hold traffickers accountable, prosecutors need strong evidence that does not rely exclusively on traumatized victims’ statements. Currently, while investigating traffickers, law enforcement can obtain judicial warrants to intercept conversations only when they can establish coercion or that the victim is under 16-years old. This amendment would enable law enforcement to obtain a judicial warrant when there is probable cause to believe that the suspect owns or manages a prostitution business, operates a sex tourism business, or is pimping children 18-years or younger.