Provisions of Maine Sex Trafficking Bill Questioned

Apr 29, 2014

A new law that imposes higher fines and harsher penalties on those responsible for the crime of sex trafficking has been widely lauded by prosecutors and women's advocacy groups. But some Maine attorneys are questioning provisions of the law that impose mandatory minimum fines for offenders, as well as some of its underlying rationale that imposes a criminal justice solution to solve what could just as easily be defined as a social problem. A.J. Higgins has more.

Earlier this year, the suggestion that legislation was needed to address sex trafficking in Maine elicited more than a few skeptical reactions. In fact, even Eliza Townsend, the executive director of the Maine Women's Lobby, says she was among a large group of Mainers who needed more information to get up to speed on exactly how widespread sex trafficking is in Maine.

"It's not the image that we have of ourselves. It's not what any of us wants to believe. But it's here now and we need to deal with it," Townsend said.

Almost as soon as legislative leaders agreed to allow Republican Rep. Amy Volk's human trafficking bill into this year's session, there were more and more reports of sex trafficking cases reported in the state. And not just instances in which third parties -- or pimps -- were transporting women against their will across state lines to engage in prostitution -- and there were those -- but also other situations that were far more complicated.

There are cases involving new immigrants to Maine who were told by their sponsors that they must work off the costs of their relocation by entering the sex trade. And then, as Kennebec County District Attorney Meaghan Maloney says, there are the young women who enter into romantic relationships with men who are also drug dealers.

"Sex trafficking and the drug trade are often going hand-in-hand, and that the same organization that's selling heroin and crack cocaine is also selling women in prostitution," Maloney says. "And that's what's making it more prevalent - that as drugs explode, we're also finding that sex trafficking is exploding,"

The human trafficking bill signed into law by Gov. Paul LePage two weeks ago changes the ground rules for those charged with prostitution, and particularly those who would have been charged with promoting it. Now, women or men who can demonstrate that they were compelled to engage in prostitution as the result of being threatened or coerced by a third party can use sex trafficking as an affirmative defense to the charge of prostitution. This prevents victims of trafficking from being branded with a criminal conviction.

The law also increases the penalties for those convicted of Class D human trafficking, and imposes fines of $1,000 to $2,000. Additionally there is a mandatory assessment ranging from $500 to $1,000, a portion of which can be drawn by human trafficking victims as compensation.

State and county prosecutors say the new fines should discourage drug dealers from integrating sex trafficking into their patchwork of illegal activities. But Auburn criminal defense lawyer Leonard Sharon favors a different approach.

"There comes a point when we have to stop using the punitive aspect of the criminal justice system to treat addiction," Sharon says.

Sharon and the Maine Association of Criminal Defense Lawyers oppose the mandatory minimum fines. The lawyers association argued during a public hearing that the state would spend more money trying to recover the assessments from indigent clients than it would ever collect.

Sharon says the 40-year-old war on drugs has been an abject failure largely because of lawmakers trying to solve undesirable drug-related behaviors with tougher criminal penalties when the money would be better spent on drug rehabilitation efforts. In addition, Sharon says the law's new inclusion of duress or compulsion as an affirmative defense specifically for the act of prostitution seems misdirected.

"That could be available to anyone, to any victim who wants to shift the blame over," Sharon says. "The Legislature has always said duress is an extraordinary defense and we can't treat it lightly - you have to be in fear of death or serious bodily harm. And now what they've done is they've spelled out 15 or 20 different instances when duress - which would not normally be available - is available." But only in cases of sex trafficking, not when other types of crimes are committed.

Maine Attorney General Janet Mills says the nature of the circumstances that lead to a man or woman becoming victimized by a sex trafficker demands a broader definition for compulsion under the law.

"It changes the duress defense that is available to anybody charged with a crime, and broadens it to the kinds of compulsion now included in the crime of aggravated sex trafficking, which makes some sense," Mills says. 'There's a different kind of compulsion involved in prostitution and sex trafficking than in other kinds of crimes."

A proposed component of the original sex trafficking bill that would have defined a process for a sex trafficking victim to receive a governor's pardon for a prostitution conviction was scrapped, Mills said, due to constitutional concerns over the separation of powers.