You recognize that sex trafficking is a serious problem in the United States, but you may not realize that the young victims of sex trafficking can actually be arrested for the offenses involved (charges related to prostitution) – offenses that they are forced to perform – in many states across the nation, including Texas. Better understanding how the law works in relation to prostitution can help you better understand the legal problem as it stands.
The U.S. Department of Justice (DOJ) shares that, in 2019 (the most recent year for which analytics are available), about 290 children between the ages of 10 and 17 were arrested for crimes related to prostitution in the United States and that 40 of these children were between the ages of 10 and 14. While there is no doubt that these children had no criminal agency and that they were clearly coerced and manipulated as victims of sex trafficking into the precipitating events, the arrests happened nonetheless.
A Washington Post Exposé
A recent article in the Washington Post dives deeper into the problem and shares that police prostitution stings in Las Vegas – a place where tourists often mistakenly believe that prostitution is illegal – were once quite common. Police departments, however, are recognizing that these prostitution stings tend to criminalize young people who may be victims of human trafficking in the first place – or who may have been pushed into the situation out of desperation (as runaways or children who are buffeted about in a less-than-stellar foster care system).
Teenagers who experience poverty and/or are in the foster-care system are among the most vulnerable of all. Often, the traffickers hide under the guise of being adults these kids can trust to help them, or they finagle themselves into the youngsters’ lives via social media. The manipulation begins, and voilà, the children find themselves in the very dangerous position of being sold for sex. While federal laws deem these children victims – rather than criminals – far too many continue to be arrested each year. While about ten states have passed laws banning minors from being arrested on prostitution-related charges, Nevada and Texas are not among them. In fact, a bill that would have made this happen was actually vetoed by the governor of Texas in 2019.
What Is Happening in Texas?
KCBD Channel 11 (NBC) reports that, after the governor vetoed the popular bill prohibiting the arrest of prostituted minors (or the requirement that prostituted minors go to juvenile court), sex-trafficked children in Texas can still face prostitution charges. House Bill 1771 would have dropped children entirely from the definition of prostitution in the state. The bill, however, would have allowed officers to apprehend minors who are believed to be caught up in prostitution and/or sex trafficking, but they would no longer be allowed to arrest them.
Instead, these vulnerable children would either have gone to the Texas Department of Family Protective Services or would have been returned to their parents. The point has been made that, although the age of consent (the age that a person can legally consent to sex) is 17 in the State of Texas, children younger than 17 can be arrested for prostitution in the state (regardless of whether or not they were coerced, manipulated, threatened or otherwise pressured into the crime). In other words, while these children are the victims of the crimes in question, they can also be arrested for the crimes, which many believe is a violation of their liberties.
Texas Prostitution Laws
Texas laws on prostitution are considered inconsistent at best. Charging victims of sex trafficking with crimes related to prostitution is something of an endless loop that makes it that much more difficult for these young victims to extricate themselves from the vicious circle of sex trafficking. Texas law is clear on the point that anyone who employs, authorizes, or induces a minor under the age of 18 to engage in either a sexual act or a sexual performance is in violation of the law. Further, causing a child who is not yet 18 to commit prostitution is a first-degree felony that can land the accused – if convicted – in prison for up to 99 years. The victim of this crime, however, can also find himself or herself facing a criminal charge, and this is where things become legally murky.
A New Texas Prostitution Law
On September 1, 2021, a new prostitution law went into effect in Texas, and it elevates the crime of purchasing sex (being on the buying end of prostitution) from a Class B misdemeanor to a state jail felony, which comes with much harsher penalties and fines – making Texas one of the first states in the nation to make purchasing sex a felony. The new law also ups the penalties associated with recruiting vulnerable victims from shelters (and some residential treatment facilities) to be used as prostitutes. Prior to the new law going into effect this month, those convicted of purchasing sex faced sentences that maxed out at 180 days behind bars and fines of up to $2,000. A second charge of prostitution (on either the buying or the selling end), on the other hand, was a Class A misdemeanor, which came with a sentence of up a year in prison and fines of up to $4,000. The new law changes all that. Consider the following:
A first-time conviction of purchasing sex is now a state jail felony, which comes with from 180 days to two years behind bars and with fines of up to $10,000.
A second conviction of purchasing sex ups the legal charge to a third-degree felony, which comes with from 2 to 10 years in state prison and with fines of up to $10,000.
The reasoning behind this tightening of the law is that legislators in Texas find that those who purchase sex are – in effect – supporting human trafficking, which coerces victims to either engage in prostitution or to perform what amounts to slave labor. This is an across-the-board change, however, and while prostitution obviously does not always involve human trafficking, the law does not address the distinction between those who have been trafficked and those who consider themselves legitimate sex workers.
Sex Trafficking on the Rise in Texas during Pandemic
The pandemic has rocked our lives in ways that we have yet to fully understand, but one thing we do know is that sex trafficking did not pause for the pandemic – in fact, the numbers rose in Texas. According to a Texas ABC station, human traffickers prey on all the following:
Those living in generally unsafe or unstable situations
Those attempting to pursue better lives
Those who are more vulnerable generally, including young people
Ultimately, trafficking is widespread across the massive state of Texas, and the pandemic helped to highlight exactly how vulnerable some sectors of our communities are. Sex trafficking is about more than simply putting young people out on the street. In fact, those who are trafficked for sex can be any age, and they can be found in all of the following venues:
Brothels that are tucked up into residential areas
Thinly veiled massage businesses
Prostitution on the street
The National Trafficking Hotline hosts the most comprehensive collection of data related to human trafficking, and the numbers from 2019 indicate that trafficking across the country continues to be on the rise. In fact, a study put out by The University of Texas Institute on Domestic Violence & Domestic Assault in 2017 found that there were about 313,000 victims of human trafficking in the state at the time. Additionally, the study found that 79,000 minors were victims of sex trafficking in the state and that sex trafficking of young people cost the state about $6.6 billion that year. California, Texas, and Florida have the largest number of human trafficking cases in the nation overall.
A 2020 report put out by the nonprofit Polaris Project on Human Trafficking entitled Crisis in Human Trafficking during the Pandemic analyzed the activity on trafficking hotlines across the country (comparing activity for three periods in both 2109 and 2020), and the number of trafficking situations that hit the crisis level during the pandemic increased by about 40 percent (the study deliberately compared time periods that occurred prior to sheltering in place and those that occurred during shelter-in-place mandates). Crisis situations are defined as instances in which assistance in the form of law enforcement involvement, transportation, or shelter is needed within 24 hours. The pandemic has not only increased the vulnerability of victims but also seems to have helped open inroads for sex trafficking operations across the country.
A misdemeanor charge in the State of Texas is a serious charge in its own right, and they are broken into three classes.
Class A Misdemeanor
A conviction on a Class A misdemeanor comes with fines of up to $4,000 and a sentence of up to one year in county jail.
Class B Misdemeanor
A conviction on a Class B misdemeanor comes with fines of up to $2,000 and a sentence of up to 180 days in county jail.
Class C Misdemeanor
A conviction of a Class C misdemeanor comes with fines of up to $500 and generally brings no threat of jail time.
Texas State Jail Felony
While misdemeanors are serious charges, felony charges are that much more so. State jail felonies in Texas bridge the divide between misdemeanors and felonies and take misdemeanor charges to the next level. While felonies are classified according to degrees (first, second, and third), a state jail felony falls outside this degree classification. While a state jail felony is called a felony, the time served for a conviction is in the jail system – not in the prison system (as it is with other felonies). As of September 2021, a first-time conviction for purchasing sex is a Texas state jail felony, which – as mentioned – comes with fines of up to $10,000 and with jail time from between 180 days and up to two years.
Is It Prostitution?
Anytime sex is offered up or requested in exchange for money, it is considered prostitution in the State of Texas. In fact, no one has to explicitly state that sex is on the table (the term date will suffice), and no money has to even exchange hands. Instead, offering or accepting an offer of sex – even if it is not called sex directly – in exchange for money is all that is necessary for a charge of prostitution to be levied. In other words, there is plenty of room for miscommunication and improperly applied charges that relate to prostitution, and defending yourself accordingly is in your best interest.
The Promotion of Prostitution
The promotion of prostitution is also a crime in Texas, and it involves the receipt of money (or something else of value) for one’s promotion of the crime of prostitution. Examples include:
Receiving fees derived from someone else’s acts of prostitution
Soliciting an act of prostitution between others (as a third-party)
Convincing someone to have sex with someone else for money