Amd 70.02, 460.10, 130.91, 120.70 & 230.01, add 230.34-a, Pen L; amd 168-a, Cor L; amd 700.05, 440.10 &
420.35, CP L; amd 447-a & 483-bb, Soc Serv L; amd 509-cc & 510-d, V & T L; amd 3-118, 9-131 & 14-154, NYC Ad
Cd; amd 1012, Fam Ct Act; amd 10.03, Ment Hyg L; amd 2324-a, Pub Health L; amd 621 & 631, Exec L; amd 410,
Gen Bus L
Establishes the crime of sex trafficking of a child; intentionally advances or profits from prostitution of another where such person is a child less than eighteen years old.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6823C
SPONSOR: Paulin TITLE OF BILL: An act to amend the penal law, in relation to estab-
lishing the crime of sex trafficking of a child and in relation to
promoting prostitution; to amend the penal law, the correction law, the
criminal procedure law, the social services law, the vehicle and traffic
law, the administrative code of the city of New York, the family court
act, the mental hygiene law, the public health law, the executive law,
and the general business law, in relation to making technical
corrections concerning sex trafficking of a child and promoting prosti-
tution
PURPOSE:
To establish the crime of sex trafficking of a child.
SUMMARY OF PROVISIONS:
Section 1 amends the penal law by adding a new section 230.34-a to
provide that a person is guilty of sex trafficking of a child when he or
she, being twenty-one years old or more, intentionally advances or
profits from prostitution of another person and such other person is a
child less than eighteen years old. Knowledge by the defendant of the
age of such child is not an element of this offense and it is not a
defense to a prosecution therefor that the defendant did not know the
age of the child or believed such age to be the same as or greater than
that specified in this section. Definitions for "advances prostitution"
and "profits from prostitution" are provided for purposes of this
section. Sex trafficking of a child is a class B felony.
Section 2 amends section 230.01 of the penal law to add sections 230.19,
230.20, subdivision 2 of section 230.25, subdivision 2 of section
230.30, section 230.34-a to the list of offenses for which an affirma-
tive defense is available if the defendant's participation in the
offense was the result of having been a victim of compelling prostitu-
tion under section 230.33, a victim of sex trafficking under section
230.34 of this article, 230.34a sex trafficking of a child, or a victim
of trafficking in persons under the trafficking victims protection act
(United States Code, Title 22, Chapter 78).
Section 3 amends paragraph (a) of subdivision 1 of section 70.02 of the
penal law, as amended by chapter 368 of the laws of 2015, to add as a
class B violent felony offense, sex trafficking of a child as defined in
section 230.34-a.
Section 4 amends paragraph (a) of subdivision 1 of section 460.10 of the
penal law, as amended by chapter 368 of the laws of 2015, to add as a
definition of an enterprise corruption "criminal act", sex trafficking
of a child as defined in section 230.34-a.
Sections 5 through 23 provide for technical corrections to the penal
law, the correction law, the criminal procedure law, the social services
law, the vehicle and traffic law, the administrative code of the city of
New York, the family court act, the mental hygiene law, the public
health law, the executive law, and the general business law, in
connection with sex trafficking of a child.
Section 24 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 traf-
ficking, even if the child is under 18.
In 2016, 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 coun-
try, 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 show-
ing 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 traf-
ficker. Yet requiring anyone, especially a minor, to testify against her
trafficker can retraumatize an already highly traumatized victim. More-
over, 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
2017, 402 of 2014), we reaffirmed our conviction that prostituted indi-
viduals 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.
This change 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. The bill provides an affirmative defense where such
person's participation in the offense was a result of having been a
victim of sex trafficking under New York or federal law. In this way, we
will not criminalize a sex trafficking victim who has been compelled by
her trafficker to assume a role, such as answering phone calls, relaying
messages, looking after younger sex trafficking victims, that she would
not have assumed had she not been a sex trafficking victim.
Eliminating proof of the elements of force, fraud or coercion in cases
of children under 18 will enable us to hold those who should be held
accountable- the individuals who enslave these children for commercial
sex -- and help these young girls and boys escape their lives of abuse
and exploitation at the hands of their predatory traffickers.
LEGISLATIVE HISTORY:
This is a 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.
