Commercial sexual exploitation: human sex trafficking & non-consensual pornography

• Author: Sarah Finley
• Pages: 479-489

COMMERCIAL SEXUAL EXPLOITATION: HUMAN SEX

TRAFFICKING & NON-CONSENSUAL PORNOGRAPHY

EDITED BY SARAH FINLEY

I. HUMAN SEX TRAFFICKING .................................. 479

A. CRIMES & DEFENSES RELATED TO HUMAN SEX TRAFFICKING . . . . . 480

B. FEDERAL REGULATION OF HUMAN SEX TRAFFICKING ............ 482

II. NON-CONSENSUAL PORNOGRAPHY ............................. 486

A. REGULATION OF NON-CONSENSUAL PORNOGRAPHY ............. 486

B. CRIMES RELATED TO NON-CONSENSUAL PORNOGRAPHY . . . . . . . . . 487

C. CIVIL REMEDIES FOR NON-CONSENSUAL PORNOGRAPHY . . . . . . . . . 488

I. HUMAN SEX TRAFFICKING

According to the United States (U.S.) Department of Health and Human

Services, human trafficking is tied with the illegal arms industry as the sec-

ond largest criminal industry in the world.

1

Fact Sheet: Human Trafficking, U.S. DEP’T OF HEALTH & HUM. SERVS. ADMIN. FOR CHILD. &

FAM. (Nov. 21, 2017), https://perma.cc/T5H3-SDDE.

The Trafficking Victims

Protection Act of 2000 (TVPA) defines sex trafficking as “the recruitment,

harboring, transportation, provision, obtaining, patronizing, or soliciting of

a person for the purpose of a commercial sex act.”

2

Human trafficking is dis-

tinct from human smuggling, which involves consent on the part of the indi-

vidual being transported,

3

and is distinct from sex work. Unlike sex workers,

survivors of human trafficking do not profit financially from the sexual serv-

ices they perform.

4

Severe forms of trafficking include those in which the

commercial sex act is induced by force, fraud, or coercion, or in which the

person induced to perform such act has not reached eighteen years of age.

5

Indeed, human sex trafficking survivors are typically youth runaways

6

or

immigrant women and children

7

who are held against their will in brothels or

similar establishments and forced to perform sexual services to repay inflated

1.

2. 22 U.S.C.A. § 7101 (West, Westlaw through Pub. L. No. 117–262).

3. Id. This distinction is important because “U.S. State Department guidelines treat persons who were

smuggled into the United States as criminals in violation of federal immigration laws, but treat

involuntarily trafficked persons as victims.” Derek Pennartz, The Irony of the Land of the Free: How

Texas Is Cleaning Up Its Human Trafficking Problem, 12 TEX. TECH. ADMIN. L.J. 367, 371 (2011)

(citing Office of the Attorney General, The Tex. Response to Human Trafficking Rep. to the 81st Leg.,

at 10 (2008)).

4. 22 U.S.C.A. § 7101(b)(2)–(4).

5. Id.

6. Marilyn Tobocman & Diane Citrino, Human Trafficking in Our Backyard: What Can Lawyers

Do?, FED. LAW., Apr. 2014, at 16.

7. 22 U.S.C.A. § 7101(b)(1).

479