Complicit Bias: Sex-offender Registration as a Penalty for Obstructing Sex-trafficking Prosecutions

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 138. Complicit Bias: Sex-Offender Registration as a Penalty for Obstructing Sex-Trafficking Prosecutions

Complicit Bias: Sex-Offender Registration as a Penalty for Obstructing Sex-Trafficking Prosecutions

Blanche Cook(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 139

II. Case Synopsis ........................................ 145

III. The Federalization of Human Sex Trafficking .......... 147

IV. The Canons of Statutory Interpretation ................ 152
A. Plain Language of §§ 1591 and 16911 .............. 152
B. The Legislative History ............................ 160
1. Section 1591's Legislative History .............. 160
2. The Use of the T-Visa in Discouraging Obstruction .................................... 166
3. The Legislative History of the Sex Offender Registration and Notification Act .............. 170
a. The History and Purpose of National Sex Offender Registries ........................ 170
b. Sex Trafficking as an Offense Under SORNA .................................... 176
c. The Rule of Lenity ......................... 178

V. Doctrinal and Theoretical Framework ................. 179
A. Theories of Conspiracy: The Inappropriateness of Group Culpability ................................. 180
B. Theories of Punishment ........................... 181

VI. Judicial and Legislative Intervention .................. 186

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A. Until Congress Intervenes, the District Courts Are Perfectly Situated to Make the Registry Decision After a Sentencing Hearing Where the Issue is Fully Vetted ...................................... 187
B. Sex Offender Registry as a Penalty for Obstruction Under § 1591 ...................................... 192
C. The Consequences of Sex-Offender Registration for Sex-Trafficking Crimes ............................ 194
D. Legislative Intervention Needed ................... 195
E. Practical Considerations ........................... 195

VII. Conclusion ............................................ 196

I. INTRODUCTION

As a matter of statutory interpretation, it is unclear whether criminal defendants who obstruct federal sex-trafficking prosecutions must register as sexual deviants on the national sex offender registry when the defendants do not directly engage in sex trafficking. This unresolved legal question presents a tangled web of statutory construction. At best, the anomaly results from a congressional drafting oversight in the Sex Offender Registration and Notification Act (SORNA).(fn1) At worst, requiring defendants to register as sex offenders where they have solely engaged in obstruction may reflect a legislative and prosecutorial overzealousness emblematic of the War on Crime and the War on Drugs,(fn2) which have made the United States the most carceral nation in history(fn3) and which may undermine the very pur-

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poses of SORNA. The overuse and abuse of SORNA, embodied in mandating obstructionist registration, unmoors SORNA from its legitimate concerns, purposes, and justifications. No court has addressed the issue. Ultimately, congressional intervention is fundamentally necessary to address the anomaly of obstructionist sex-offender registration.

The crux of the problem lies at the intersection of SORNA and the federal sex-trafficking statute, 18 U.S.C. §1591.(fn4) In its plain language, SORNA mandated sex-offender registration for anyone who violates § 1591.(fn5) Section 1591, however, has two prohibitions: (1) a sex-trafficking provision under § 1591(a) and (2) its own obstruction provision under § 1591(d).(fn6) Consequently, SORNA's plain language mandates that a defendant who is guilty of obstructing a federal sex-trafficking prosecution but has not engaged in actual sex trafficking or even a sexual offense must register as a sex offender under the national sex offender registry.

The legislative history of SORNA further complicates the anomaly of obstructionist registration. In 2006, when Congress enacted SORNA and when SORNA mandated registration for a § 1591 conviction, § 1591 only encompassed sex trafficking. In 2008, Congress expanded the scope of criminal liability under § 1591 beyond sex trafficking to include obstruction by enacting § 1591(d). Congress, however, has never amended SORNA to clarify whether registration is mandated when a defendant merely engages in obstructive conduct. This uncertainty can be resolved by two possible arguments. On the one hand, Congress may have been aware of SORNA's registration requirement when it enacted § 1591(d); therefore, Congress might have intended in the statute's plain language to mandate obstructionist re-

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gistration. Put differently, when Congress enacted § 1591(d), it might have been fully aware of SORNA's registration requirements and deliberately failed to amend SORNA because it intended to subject pure obstructionists to registration. On the other hand, because SORNA's mandatory registration under § 1591 originally applied to criminals actively engaged in sex trafficking only, Congress may have inadvertently overlooked the penal consequences of enacting § 1591(d) unconditionally into SORNA. This provision, which did not exist when Congress required mandatory registration for § 1591(a) sex-trafficking violators, is now included in the mandatory-registration requirements. Therefore, regardless of the possible due process and overlapping-enactment issues, the plain language of SORNA mandates obstructionist registration. If plain language prevails, registration is mandatory and not discretionary at sentencing.

Requiring obstructionist registration, however, creates an absurdity. Such penalty undermines the basic purposes of the sex offender registry, specifically the desire to protect the community from the compulsive nature of certain sexual offenders, reducing recidivism, and subjecting defendants guilty of offensive sexual conduct to public shaming.(fn7) Mandating that pure obstructionists register as sex offenders is a dire consequence for defendants who have not engaged in any sexually offensive behavior, let alone trafficking, and yet must nationally identify as sexual offenders. Moreover, irrational consequences flow from mandating obstructionist registration. Abuses of prosecutorial discretion are a primary example of such irrationality.(fn8)Such registration can empower an overzealous prosecutor to threaten certain sex-trafficking victims with sex registration when they obstruct prosecutions by refusing to testify against their traffickers or "pimps."(fn9) In other words, mandating obstructionist registration can create an occurrence where a sex-trafficking victim refuses to testify

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or release information about sex trafficking, is subsequently charged and convicted of obstruction, and then has to register on a national registry of sex offenders. This result may ultimately undermine the integrity of both the federal sex-trafficking statute and SORNA by subjecting each to scathing criticisms, which are laced with gender bias, both explicit and implicit, for overreaching and misuse.

Moreover, mandating registration for sex-trafficking victims who fail to cooperate in sex-trafficking investigations or prosecutions contravenes the legislative history of § 1591(d)'s obstruction provision. Section 1591(d) clearly reflects Congress's preoccupation with protecting sex-trafficking victims from retaliation from their pimps and traffickers when victims cooperate in sex-trafficking prosecutions. Therefore, it is unlikely that Congress intended to arm prosecutors with the potential weaponry of sex-offender registration to coerce sex-trafficking victims into cooperating in prosecutions, thereby forcing victims to trade their sex traffickers for new pimps-the prosecutors themselves.

This Article argues that SORNA's plain language as it applies to § 1591 creates, at best, a congressional oversight or, at worst, an irrational overzealousness. In order to protect the integrity of both SORNA and the federal sex-trafficking statute, and to adhere to the canons of statutory construction, pure obstructionists should not be compelled to register as sex offenders. Although facially SORNA's plain language may dictate a mandatory registration scheme for pure obstructionists, this result contravenes a basic premise of statutory construction-that is, the precept that requires courts to read an ambiguous statute as a whole within its full structural context. The full context of both SORNA and § 1591 mitigates against obstructionist registration. Courts may well reject mandating registration for pure obstructionists after finding ambiguity in SORNA and therefore refuse to impose registration at sentencing. As another interim solution, however, and until Congress intervenes, the sentencing court is in a privileged position to weigh the evidence, which is often nuanced, in order to make case-by-case determinations about whether an obstructionist has engaged in a sexual offense within the meaning of SORNA. In keeping with the United States v. Booker(fn10) trend, bestowing

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greater sentencing discretion on the courts, sentencing courts can sift through often nuanced evidence and determine whether obstructionists have actually engaged in conduct worthy of sex-offender registration as a penalty or protection for the community. Furthermore, prosecutors who want to penalize obstructionists with registration should consider charging them with conspiracy. The Racketeer Influenced and Corrupt Organizations Act (RICO) provides another alternative in which the evidence supports the charges.(fn11) Ultimately, the doctrinal anomaly SORNA creates for pure obstructionists under § 1591(d) demands legislative intervention by amending SORNA to make clear that defendants who engage only in obstruction are not required to register.

At its core, this problem...