A First Step in Reversing “A Troubling Trend”

A couple of weeks ago, we posted the first of our two part SJC review posts on political free speech in the Lucas case.  This week we are going to look at another important decision, Commonwealth v. Tyshaun McGhee, upholding Massachusetts’ 2011 anti-human trafficking law.

The case alleged that the defendants approached three women, took and posted pictures of them in online advertisements, drove them to various locations to have sex with men who responded to the ads, and retained some or all of the money the women received as payment.

The defendants filed a motion to dismiss the sex trafficking charges on the grounds that the trafficking statute is unconstitutionally vague and overbroad, both on its face and as applied to them, and that the definition of “commercial sexual activity” is also overbroad.  In addition, they argued that because the statute lacks an element of force or coercion there is a risk that it will be enforced arbitrarily.

The statute at issue criminalizes “sexual servitude, forced labor, and organ trafficking.”  The relevant portions for this case are codified at M.G.L. c. 265 §§ 49, 50 and state the following:

Section 50. (a) Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, …  another person to engage in commercial sexual activity, … or causes a person to engage in commercial sexual activity … or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be punished by imprisonment in the state prison for not less than 5 years but not more than 20 years and by a fine of not more than $25,000.

Section 49 defines “commercial sexual activity” as “any sexual act on account of which anything of value is given, promised to or received by any person.”

The SJC concluded that the statute is sufficiently clear and definite and the phrase “commercial sexual activity is “amply defined” (17).  The statute provides fair notice of the type of conduct it criminalizes, and it does not need to include an element of force or coercion to avoid vagueness as “the clear and deliberate focus of the statute is the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent” and “the Legislature has determined that whether a person being trafficked for sexual servitude has been forced or coerced into engaging in such activities is immaterial for purposes of ascertaining whether a criminal act has been committed.” (17 emphasis added).  In addition, the mens rea requirement signified by the use of “knowingly” in the statute provides sufficient protection against arbitrary enforcement of the statute (19).

The Court also reasoned that the statute is not overbroad because it only prohibits individuals from “knowingly undertaking specified activities that will enable or cause another person to engage in commercial sexual activity” (23).  It found no problem with the definition of “commercial sexual activity,” construing it with consideration of the plain language and legislative intent to refer to “any sexual act for value that involves physical contact” (25).

In the words of Alec Zadek, Mintz Levin, co-chair of the Human Trafficking Group of the BBA’s Delivery of Legal Services Section, this is “truly a fantastic result and affirms the hard work of everyone who worked on the legislation.”  Zadek has an active pro bono practice focusing primarily on survivors of sex trafficking and domestic violence, so he has seen firsthand the importance of this case.

Julie Dahlstrom, Clinical Legal Fellow in the Human Trafficking Clinic at Boston University School of Law and member of the BBA’s Immigration Law Section Public Service Committee, co-authored an amicus brief in the case on behalf of a number of domestic violence and human trafficking interest groups.

The brief explained the pervasiveness of the human trafficking problem and made many arguments echoed in the SJC holding defending the constitutionality of the Massachusetts statute.  She noted that the “case has tremendous implications for human trafficking survivors and the Commonwealth.  It means that those who knowingly harbor, recruit, and otherwise obtain women for sexual exploitation cannot operate with impunity.”

But this case is only a first step, in her view –

“The facts of this case bring to light a troubling trend. In Boston, there young women who are the fringes of our society – who are homeless and lack viable employment options. These women are exploited by men who seek to profit from and violently abuse them. The state human trafficking statute is an important tool in this fight. But we still need lawyers and others involved. Lawyers to play a key role to ensure that these women have effective representation, the protections they deserve, and the support necessary to exit commercial sexual exploitation.”

To that end, we encourage everyone to participate in our upcoming event, Justice for Trafficking Victims: Civil Litigation, Vacatur, Criminal Restitution and the Pro Bono Bar.  Dahlstrom will speak as will Martina Vandenberg from the Human Trafficking Pro Bono Legal Center on human trafficking and opportunities for pro bono attorney involvement.  With your help, we hope to shed light on human trafficking and hope that the McGhee case will serve as useful precedent.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association