AuthorJohnson, Brendan V.

    Over the last decade, sex trafficking has received widespread attention throughout the country from policy makers, law enforcement, the media, and private activists. (1) In general, there is greater recognition today of what sex trafficking is, channels through which trafficking occurs, who the victims are, and how both buyers and sellers perpetuate a vicious and illegal cycle. (2)

    Sex trafficking is a significant problem in South Dakota. (3) Billboards across the state's prairie landscape call attention to sex trafficking. (4) South Dakota's remoteness, sparsely populated rural communities, concentrated pockets of poverty, and sprawling highways create an inviting habitat for traffickers. (5) The high rate of victimization among the state's large Native American population adds to the prevalence of sex trafficking. (6) As of 2015, Native American women accounted for about half of sex trafficking victims in South Dakota. (7) Victims who come from Indian country face high rates of poverty, addiction, and sexual abuse. (8) Finally, events such as the Sturgis Motorcycle Rally and hunting season bring additional sex trafficking activity to the state. (9)

    In recent years, state and federal law enforcement, motel owners, churches, service organizations, and tribal communities have stepped up to tackle the issue of sex trafficking in South Dakota. (10) But there are still misconceptions about what sex trafficking looks like in such a vast rural state. When people think about sex trafficking, many times they imagine people who are smuggled in from other countries--certainly a significant source of trafficking in some parts of the country. (11) In South Dakota, though, victims are less commonly people imported into the state as part of a major sex trafficking ring. Instead, many victims are young people already living in communities across the state. (12) Common risk factors making a person more vulnerable to the control of a trafficker--also referred to as a pimp or a seller--include a lack of community or familial support, lack of resources, homelessness, domestic abuse, and substance abuse. (13) Most victims are female, though males can be victims too. (14) Overall, many people who become sex trafficking victims within South Dakota are vulnerable individuals who are manipulated and exploited by traffickers in or near their home community. (15)

    Two high-profile prosecutions provide examples of how traffickers in South Dakota operate, who their victims are, and how they impact communities across the state. (16) This article explores how United States v. Jungers (17) and the development of federal law expanded opportunities for prosecutors to target buyers and thereby erode the demand that drives the sex trafficking industry. (18)



      Sex trafficking is a form of modern slavery and is an issue of human rights, criminal law, economics, and labor. (19) Ranking just behind trafficking of illegal drugs, sex trafficking is the second largest field of criminal activity in the world. (20) An estimated twenty-seven million people around the world are victims of sex trafficking. (21)

      Historically, sex trafficking was not a discreet area of criminal activity and consequently was not a priority for state and federal law enforcement. That began to change in 2000, when Congress passed the Trafficking Victim's Protection Act (TVPA), "the first anti-slavery legislation of the contemporary era[.]" (22) The TVPA outlined a four-prong approach to combat sex trafficking: prosecute traffickers, protect victims, prevent trafficking, and create partnerships among community stakeholders. (23) Congress first recognized the problem of domestic trafficking--that which occurs within the borders of the United States --in its 2005 reauthorization of the TVPA. (24) In South Dakota, the Legislature passed the state's first law dealing with human trafficking in 2011, (25) and in 2016 the legislature enacted a law that specifically addresses sex trafficking. (26)

      In the first decade of the TVPA and prior to the enactment of relevant state laws, there were zero convictions in South Dakota for commercial sex trafficking. (27) However, from 2010 to 2014, South Dakota saw more than twenty-five federal convictions and more than twenty state convictions for commercial sex trafficking. (28) Since 2010, three individuals in South Dakota have received federal life sentences for sex trafficking. (29)

      One notable change amidst the sharp increase in sex trafficking prosecutions is the way victims are portrayed. Previously, the victims of sex trafficking would have been charged with prostitution. (30) For example, in a situation where a person showed up at a hotel to pay for sex, law enforcement would have focused on the person who was there to receive payment in exchange for his or her sexual performance. Today, law enforcement increasingly regard the trafficked person as a victim and treat buyers and sellers as the perpetrators. (31) Essentially, what in the past was a prostitution prosecution now becomes a sex trafficking investigation. (32) While sex trafficking has long existed, these and other recent developments have reframed the discussion to provide victims with support and traffickers and their clients with criminal sanctions. (33)

    2. 18U.S.C. [section] 1591

      Sex trafficking is defined as "the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act." (34) Congress defines a commercial sex act as "any sex act on account of which anything of value is given to or received by any person." (35) The crime of sex trafficking of children, or sex trafficking by force, fraud, or coercion, is codified at 18 U.S.C. section 1591. (36) The statute states:

      (a) Whoever knowingly-- (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion... or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b). (c) In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or solicited, the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years. (37) The language of section 1591 is especially relevant to illustrate how prosecution of sex trafficking has evolved. Particularly, the requirement of force, fraud, or coercion distinguishes a person who is trafficked from a person who willfully engages in prostitution. (38) As a result, when law enforcement officers investigate sex trafficking cases, they examine whether the victim is acting under the control of another. Over time, Congress has added additional verbs to section 1591(a)(1) in order to expand the scope of activities that qualify as a violation of the law. (39)

      Individuals who are convicted or plead guilty to sex trafficking under section 1591 face a minimum sentence often or fifteen years...

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