Arizona Governor Jan Brewer quietly signed House Bill 2454 into law on April 22, 2014. The intent of the bill is to add human trafficking to offenses that can be pursued under racketeering and makes some changes to the current law on child prostitution.
Human trafficking is a problem in Arizona. Simply, human trafficking is the trade of persons for the purpose of forced prostitution and labor, or for the extraction of organs. Since Arizona is a border state, and has three of the fifty most populous cities in the United States (Phoenix, Mesa and Tuscon); it is is ripe for smuggling people in and forcing them into servitude. Human smuggling is a an enormous problem in Arizona for both forced prostitution and labor.
The Phoenix Police Department see it as a large problem, as indicated in this presentation: Sex Trafficking in Arizona. In the presentation are recommendations made by the Vice Unit, which is interesting because of their street side view of the situation.
Before we look at where we are currently with sex trafficking laws in Arizona, let’s see where we came from.
Human Trafficking Historically in Arizona
A year after Arizona entered the union as a new state in February 1912 the first statutes in Arizona were officially codified as the Arizona Revised Statutes. This is the closest law I could find to a human trafficking law on the books, way back then.
Any person. or persons, transporting or attempting to transport, by any railroad, steamboat, railway, or by any other means of conveyance, through or across this state, any woman or child for the purposes of prostitution or concubinage, or for any other immoral purposes, may be prosecuted, informed against, indicted, tried and convicted in any county or city in which the said offender may he apprehended, and on arrest shall be taken to any court of competent jurisdiction in any such county or city and the said prosecution, information, indictment, and trial, shall be had in the same county, or city, in which the arrest occurs.
— Ariz. Rev. Stat. ch. I. Rape, Abduction, Carnal Abuse of Children, and Seduction § 247 (1913).
The law goes on to state a woman who was trafficked would act as a witness to testify for the state. A violation would be classified as a misdemeanor, and upon conviction the punishment would be less than $100 or by imprisonment in the county jail for six months, or both.
An interesting distinction, the historic law does not require a use of force. The law merely states bringing a woman or child across state lines for prostitution or other immoral purposes is a prosecutable offense. In fact, there are not many limitations that the law imposes at all — jurisdictionally, state of mind for the accused, or the intent of the law. It is a very broad encompassing law.
The language is very similar to the current federal human trafficking law, 18 U.S.C. § 2421.
What are Racketeering Laws?
Racketeer Influenced and Corrupt Organizations (RICO) acts are a tool for prosecutors to handle the complexities of organized crime activities. Organized crime “weaken[s] the stability of the Nation’s economic system, harm[s] innocent investors and competing organizations, interfere with free competition, seriously burden[s] interstate and foreign commerce, threaten[s] the domestic security and undermine[s] the general welfare of the Nation and its citizens.” Andrew J. Melnick, A ‘Peep’ at RICO: Fort Wayne Books, Inc. v. Indiana and the Application of Anti-Racketeering Statutes to Obscenity Violations, 69 B.U. L. Rev. 389, 392 (quoting Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 1, 84 Stat. 922, 923).
Arizona’s racketeering laws, Ariz. Rev. Stat. § 13-2301 et seq., are based upon their federal counterparts, 18 U.S.C. § 1961 et seq. State v. Feld, 745 P.2d 146, 149 (Ariz. Ct. App. 1987). Since there is more written about the federal racketeering laws I will use those sources as my base to explain racketeering.
The federal Racketeer Influenced Corrupt Organization statute (RICO) was intended to help prosecutors in their cases against organized criminals. John Dombrink and James W. Meeker, Racketeering Prosecution: The Use and Abuse of RICO 16 Rutgers L. J. 633, 634. Prosecutors first tried to focus their attention and resources to receiving a conviction for the head of the organization — this was known as the “attrition” strategy. Id. at 635. After a while the lesson was learned that targeting just the leaders of criminal organizations had little impact because the leaders could be replaced with relative ease. In response, Congress passed the Organized Crime Act of 1970, which included the RICO statute.
One of the changes from the past to RICO is the concept of a “criminal enterprise,” and not just looking at an individual. Conspiracy law was available before RICO, but sometimes proving a conspiracy was difficult with the wide array of criminal activity by unrelated individuals. “RICO applies to those who participate directly and indirectly in the enterprises’ affairs, and can be used to prosecute those who are even peripherally involved.” Id. at 638. The flexibility of RICO can be both good and bad.
The breadth of RICO statutes gives prosecutors the discretion they need but didn’t have previously. On the other hand, with so much discretion for the prosecutors to choose which cases to prosecute it can be easily abused.
In Arizona, racketeering is applied to two different categories: terrorism and things done for financial gain (money). There are thirty acts listed, when done for financial gain, can be considered racketeering, including obscene acts. Ariz. Rev. Stat. 13-2301(D)(4)(b).
State v. Feld, 745 P.2d 146 (Ariz. Ct. App. 1987).
The defendants were charged with showing obscene films in combination with individual defendants and a C.A.T. Inc. dba Erotica Motel. The trial court dismissed the the obscenity count on the indictment, finding it unconstitutional to apply obscenity charges to Arizona RICO laws because of several enumerated reasons, including: impermissible prior restraint, the post-conviction remedies stated are inappropriate for obscenity cases, and several sections of the law are not constitutionally compatible with each other.
The Arizona Court of Appeals looked at the issue whether the trial court erred by finding that the Arizona organized crime and fraud statutes (RICO) unconstitutional as applied to obscenity proceedings.
At the time the only other court to look at whether obscenity could be applied to RICO was the Indiana State Supreme Court. The Indiana Court of Appeals found there was a constitutional violation because the government used prior restraint. In a bookstore where some obscene materials were sold, the government locked -up the entire building, including some constitutionally protected materials. The court found it was a violation of the First Amendment because the good was locked up with the bad before the trial.
In interpreting Arizona statutes dealing with obscenity, this court has, when possible, given the questioned statute a constitutional construction. State v. Feld, 745 P.2d 146, 153 (Ariz. Ct. App. 1987).
[W]e have construed the RICO statutes as they relate to a criminal prosecution involving obscenity, such that they pass constitutional muster and do not have a chilling effect on protected rights.
State v. Feld, 745 P.2d 146, 156 (Ariz. Ct. App. 1987)
So in Arizona a criminal enterprise can deal with obsencity and be charged under the state RICO statutes. The Court did acknowledge that it did not agree with an all-or-nothing approach to interpreting the statute. This suggests that in some contexts the court may find the state RICO statute applied to obscenity as unconstitutional. Racketeering laws are really broad and give the prosecutor a lot of leeway in what situations she wants to prosecute.The breadth of the existing RICO law in Arizona is staggering. However, that is a subject left for another blog post. This post will just focus on the new additions.
The New Arizona Law – House Bill 2454
House Bill 2454 is really long and contains a lot of changes to the law. Please read along of the full law with all of the changes, as I try to walk through it. Arizona House Bill 2454 – Human trafficking; Prostitution.
The first change that was made is non-criminal. It adds a completely new civil statute to the law defining an escort agency. Ariz. Rev. Stat. § 9-500.10. “Escort and escort agency advertising requirements; civil penalty; definitions.” It may be surprising, in light of the tough laws against prostitution, but escorts and escort services are legal in the state of Arizona. For example, the city of Phoenix has in the past, regulated escorts within the city limits. Phoenix also has its own ordinances for escort services (I couldn’t find an official site for the ordinance, sorry). Not every city or town in Arizona had licensing set up to accommodate this. This definition does not go as far as what the city of Phoenix does to regulate its escorts, but I think it is a good first step.
Largely the same language is added in Ariz. Rev. Stat. § 32-4255, as mentioned in the previous paragraph, except for this time it applies to massage therapists. This definition in the Profession and Occupations is to clarify the rules for massage therapists, as a professional
A special human trafficking victim’s fund will be created with Ariz. Rev. Stat. § 41-113. This appears to be different from the other victim’s fund created under the criminal, which is more broad serving many types of organizations.
The majority of the changes happen in the criminal code.
The felony sentence of imprisonment law, Ariz. Rev. Stat. § 13-701, will more clearly define when sex trafficking is a felony or can be an aggravating factor to a charge when a person is is charged with Ariz. Rev. Stats. §§ 13-1307 (Sex Trafficking Classifications) and 13-1308 (Trafficking of Persons for Forced Labor or Services).
Three new categories will be added to the racketeering definition: child prostitution, sex trafficking, and trafficking of persons for forced labor or services. Ariz. Rev. Stat. § 13-2301(D)(4). There were already thirty categories of racketeering under the old definition, but I think these new ones follow in the spirit of organized crime and are a good addition.
The new law clarifies that any money seized as a result of forfeiture will go into a fund for programs that serve the offense listed. Ariz. Rev. Stat. §§ 13-2314.01, 13-2314.03.
Next the law changes some of the language related to prostitution. Ariz. Rev. Stat. § 13-3209. Language will be changed to further define what it takes to encourage someone into prostitution. Ariz. Rev. Stat. § 13-3209(A)(2),(4).
Additionally, language is strengthened for child prostitution. It is not enough anymore for a person to know, but that she/he should have known, that the prostitute is a child under the age of eighteen. That lowers the barrier for prosecution significantly. Ariz. Rev. Stat. § 13-3212(B)(2). A new section is added later in the law making it a class 2 felony if the child prostitute is fifteen, sixteen or seventeen years of age. It also lists the presumptive and maximum sentences. Ariz. Rev. Stat. § 13-3212(G).
A new affirmative defense was created for prostitutes, if the act of prostitution is because of being trafficked. Ariz. Rev. Stat. § 13-3214(D). An affirmative defense is where the defendant acknowledges they committed the act, but says they had a legitimate reason to do so (self-defense is a good example of this).
Creates the definition of ‘advertising’ or ‘advertisement.’ Ariz. Rev. Stat. § 13-3551(1). This will probably work hand-in-hand for the newly created laws on escorts and massage therapists, both of which have sections on advertising and advertisements.
Any advertisements that depict children for purpose of prostitution. Ariz. Rev. Stat. § 13-3552(5). Interestingly, this new language creates immunity for internet service providers and websites who allow third parties to post on them. For example, if FicticiousWebSite.com hosts advertisements (for jobs, dating, used goods, etc.) where anyone can post to their website to place an advertisement, they are immune from criminal prosecution if an advertisement depicting a child for prostitution ended up on their website.
The changes in the law also strengthen the victim’s right to privacy. Ariz. Rev. Stat. § 13-4434. There are several additions, you can read the changes to see all of the victim privacy enhancements.