AuthorBinder, Evan

INTRODUCTION 632 I. SEX TRAFFICKING INVESTIGATIONS 638 A. The Nature of Sex Trafficking 638 B. The Trafficking Victims Protection Act of 2000 and the "Victim-Centered" Approach 641 C. How Sex Trafficking Investigations Begin 646 II. THE WIDER SCOPE OF SEX TRAFFICKING 647 A. Those Involved in Financial Crime 648 B. Those Involved in Visa and Passport Fraud 651 C. Internet Providers 651 III. ANTITRUST DIVISION'S AMNESTY PROGRAM 653 A. Antitrust Division and Amnesty Program Overview 653 B. The Function of the Antitrust Amnesty Program 657 C. Philosophical Justification of the Amnesty Program 658 IV. AMNESTY PROGRAM PROPOSAL FOR SEX TRAFFICKING INVESTIGATIONS 660 CONCLUSION 663 INTRODUCTION

On July 8, 2019, the U.S. Attorney's Office for the Southern District of New York announced that it had indicted billionaire financier Jeffrey Epstein on one count of sex trafficking and one count of sex trafficking conspiracy. (1) The indictment alleged that over the course of four years, from 2002 through 2005, Epstein had "enticed and recruited... minor girls to visit his mansion... to engage in sex acts with him, after which he would give the victims hundreds of dollars in cash." (2) These sex acts typically took the form of one-off "massages," which in actuality were sexual abuse. (3) Epstein furthered the scheme by paying his victims to recruit additional minor girls to abuse. (4)

The indictment mentioned only the victims, (5) three anonymized employees, and Epstein himself. (6) While the conduct detailed in the indictment was more than sufficient to substantiate the sex trafficking charges against Epstein, it did not encompass the full range of allegations of sexual misconduct levied against the disgraced financier. The indictment also did not indicate all of the persons who may have been involved in the exploitation, such as other abusers, enablers, and victims. (7) Victims claimed they were transported around the world as Epstein's sex slaves, both for him and his powerful friends, ranging from British monarch Prince Andrew to former United States senator George Mitchell. (8) Epstein allegedly "loaned" girls to prominent American politicians, foreign presidents, and business executives, (9) and would film the sex acts on his properties for possible blackmail. (10) While none of these allegations served as the basis for criminal charges, the allegations revealed a world of illicit sex trafficking much wider than that alleged in the July 8, 2019 indictment. (11)

Epstein's case illustrates two realities about investigating sex trafficking: (1) sex trafficking schemes and organizations are frequently much more complex than just a trafficker and victim(s), yet (2) even with this complexity, sex trafficking cases are centered around victims testifying against their traffickers. While the nuances of Epstein's schemes may have been specific to him, the level of complexity of his conduct was not unique. In South Dakota, prosecutors convicted a doctor of giving fraudulent Oxycontin prescriptions to minor victims in exchange for sex, even though he knew they were being trafficked. (12) In southern California, street level traffickers earned cash by selling commercial sex acts with trafficked women and moved that cash all around the world through "mules" who hid the cash in objects such as clothing or toys. (13)

These examples only capture a sliver of the diversity of trafficking schemes currently operating today. While the methods of each scheme differ, they are all secretive and involve many individuals other than the victim and the lead trafficker. The secretiveness of sex trafficking stymies investigative efforts, as detecting such schemes is incredibly difficult. (14) However, because these schemes are wide in scope, due to the sheer number of people involved, many individuals have knowledge about them and are simply not coming forward to investigators with that knowledge. (15)

When investigating sex trafficking, investigators do not seem to acknowledge either of these realities. Instead of using proactive measures to detect sex trafficking rings, over half of all sex trafficking cases begin by a third-party tip to law enforcement. (16) Further, the law that sex traffickers are prosecuted under, the Trafficking Victim's Protection Act, puts victims at the center of investigations. (17) As a result, investigators become fixated on charging traffickers based on victim testimony at the expense of pursuing investigative avenues involving others in the trafficking scheme. (18) This strategy puts a great burden on the victim to provide enough evidence to convict her trafficker (assuming she is willing to participate) while ignoring other key sources of information and testimony. (19)

While worlds apart, antitrust prosecutions offer a useful alternative model for pursuing sex trafficking organizations. The federal government's antitrust enforcement powers focus on schemes, called "cartels," between market competitors (for example, Virgin Atlantic versus British Airways (20)) to fix prices, rig bids, or artificially manipulate the market for their own financial gain. (21) Like sex trafficking, these crimes are highly complex, as they involve coordination between multiple participating parties, and are highly secretive. (22) Cartel work is known to and facilitated by multiple people all sharing the same incentive to stay silent. (23) Cartel and sex trafficking investigators primarily rely on tips and self-reporting from those with knowledge of the criminal activity. Neither focus on proactive methods of detection. (24)

Recognizing that antitrust crimes are difficult to detect but involve many persons that can serve as possible witnesses or sources of evidence, the Department of Justice's Antitrust Division created a leniency program for cartel participants to come forward to alert government authorities about ongoing antitrust conspiracies. (25) Anyone with knowledge of or who participated in a cartel can bring evidence to the government in exchange for complete immunity from criminal charges. (26) From the government's perspective, leniency allows investigators to learn about criminal cartels they otherwise would have no idea existed. (27) For cartel members, it allows companies and individuals to report wrongdoing without the fear of exposing themselves to charges. (28) Since its inception, the leniency program has been a resounding success, as over 90% of criminal antitrust investigations involve a leniency applicant. (29)

Given the similarities between sex trafficking and antitrust crimes, this Comment proposes that a Department of Justice, Antitrust Division-style leniency program should be adopted for sex trafficking investigations. Like antitrust crimes, authorities have difficulty identifying sex trafficking and those with a desire to come forward may be reluctant to expose themselves to charges. Therefore, a leniency program for sex trafficking prosecutions demonstrates potential for identifying cases that would otherwise go undetected. Thus, this Comment will show how sex trafficking investigations would benefit from such a program. Part I scrutinizes how sex trafficking rings operate and how they are currently prosecuted. Part II examines the wider scope of sex trafficking, departing from the traditional model employed by prosecutors and investigators. Part III explores how such cases are investigated and identifies the many actors who could qualify for immunity for their testimony and details the creation and success of the Antitrust Division's Amnesty Program. Part IV argues that because of their similarities and the remarkable success of the program for the Antitrust Division, offices investigating sex trafficking should implement their own version of the Amnesty Program.


    This Part will explore sex trafficking and how it is investigated and prosecuted. Part I is divided into three sections exploring both how sex trafficking currently operates in the United States and how authorities investigate and prosecute offenders. The first section will detail the traditional three-part model that investigators rely on in defining sex trafficking. Next, the Comment will analyze developments in federal statutes addressing sex trafficking. Finally, within this legal framework, the final section examines the ways in which sex trafficking investigations originate.


      In the early 20th century, organized prostitution and sex trafficking frequently took place at a central location, most commonly called a brothel. (30) However, the enterprise, and the involved criminal activity, has modernized, increasing its complexity and secretiveness. Through technological development and greater avoidance of law enforcement, sex trafficking takes place at various locations through various forms. (31) Common to all locations is their secretiveness. Traffickers go to great lengths to keep their victims out of sight of those likely to take notice and alert authorities. (32) This secretiveness both furthers the enterprise and makes detection even more difficult. (33)

      In the traditional framework of trafficking schemes, sex trafficking consists of three types of actors: the traffickers, the victims, and the clients. (34) Under this traditional model, the trafficker is the organizer or operator of the trafficking ring and plays an active role in the control over their victims. (35) While any person who aids or abets a sex trafficking scheme could be considered a perpetrator, under the traditional model, the individual who exerts force over the victims and leads the trafficking ring is considered the perpetrator. (36) Traffickers gain control over victims by establishing their subservience through many means, ranging from cultivating a false romantic relationship to physical violence. (37) While the techniques may vary, the trafficker is the primary criminal facilitator. Without...

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