Act 105, Pennsylvania’s recently enacted anti-trafficking legislation, includes a far-reaching civil cause of action for victims of human trafficking and victims of the sex trade. (Given the focused mission of the CSE Institute, this post will focus on causes of action available to victims of the sex trade, but note that the new law covers all forms of human trafficking.)
The civil cause of action for victims of the sex trade, codified at 18 Pa.C.S.A. § 3051(a)(2), et seq., provides three distinct claims for victims of the sex trade. First, a victim may bring a civil action against anyone one who recruits, profits from, or maintains the victim in any sex trade act. 18 Pa.C.S.A. § 3051(a)(2)(i). This first claim primarily targets those who directly engage in pimping/trafficking of the victim – but it also extends civil liability to those who profit from the victim’s sex trade by providing goods or services to the general public, provided they knowingly market or provide their goods or services to those directly engaged in pimping/trafficking. (See, 18 Pa.C.S. § 3051(b)(1)). Thus, this first claim creates a cause of action not only against pimps/traffickers – but also against providers of public goods/services that knowingly profit from the sex trade (such as strip clubs or hotels that knowingly allow the sex trade to occur within their walls and thus knowingly profit from the rental fees charged for the rooms).
Second, 18 Pa.C.S.A. § 3051(a)(2)(ii) allows victims of the sex trade to bring a civil action against anyone who abuses or causes bodily harm to the victim in any sex trade act. This claim can be used by victims of the sex trade to sue abusive pimps/traffickers and to sue abusive “clients.”
Finally, 18 Pa.C.S.A. § 3051(a)(2)(iii) creates a cause of action for victims of the sex trade against anyone who knowingly advertises or publishes advertisements for the purpose of recruitment into sex trade activity. While this cause of action seems designed to target defendants such as backpage.com, any such lawsuit would have to overcome the immunity provisions of the Communications Decency Act. (A case pending before the Washington State Supreme Court is addressing this issue, in the context of a lawsuit filed by three minor sex trafficking victims against Village Voice Media Holdings, d.b.a. Backpage.com. A decision is expected soon.)
Under the new civil cause of action, a “victim of the sex trade” is defined broadly, as any individual who has:
(1) been the object of a solicitation for prostitution;
(2) been the object of a transaction in a sex act;
(3) been intended or compelled to engage in an act of prostitution;
(4) been intended or compelled to engage in a sex act;
(5) been described or depicted in material that advertises an intent or compulsion to engage in sex acts; or
(6) in the case of obscenity or child pornography, has appeared in or been described or depicted in the offending conduct or material.
Three features of the new law are noteworthy. First, by extending civil liability to entities that provide goods or services to the general public, such as hotels, Pennsylvania’s civil cause of action for victims of the sex trade goes further than any comparable law in any other state. For example, compare the scope of liability for hotels in Pennsylvania under the new civil cause of action for victims of the sex trade, as compared to the scope of liability for hotels in Illinois, where the first such civil cause of action was enacted in the Illinois Predator Accountability Act in 2006. 740 ILCS 128/1, et seq. This Illinois version of the law precludes liability unless the hotel “knowingly markets or provides goods or services primarily to” those who would otherwise be liable under the section establishing the three forms of general liability discussed above. So, while in Illinois, it is possible for hotels and other general public service providers to be civilly liable to victims of the sex trade, the word “primarily” limits this possibility only to the most extreme cases – such as when a hotel rents rooms primarily to pimps/traffickers and not primarily to the general public. The Pennsylvania law, in contrast, omits the word “primarily” and thereby establishes a much wider scope of potential liability for hotels and other general goods/service providers. In sum, if Pennsylvania strip clubs, hotels, or other providers of goods or services to the general public, knowingly profit from any sex trade by providing goods/services to those who would otherwise be liable (e.g., pimps/traffickers/”clients”/etc.), then the strip club, hotel, or other entity can itself be liable to the victim of the sex trade.
Second, it is noteworthy that neither the first nor the third claims enacted in the civil cause of action (outlined above) require proof that the victim of the sex trade was subjected to any form of force, fraud, coercion, abuse, etc. Rather, the elements of the cause of action under 18 Pa.C.S.A. § 3051(a)(2)(i) merely requires the victim to prove: (1) that the defendant recruited, profited from, or maintained the victim in any sex trade act; (2) that this experience caused the victim to suffer damages. Similarly, under 18 Pa.C.S.A. § 3051(a)(2)(iii), the victim-plaintiff must merely prove: (1) that the defendant advertised or published advertisement of the victim for the purpose of recruitment into any sex trade activity; and (2) that this experience caused the victim to suffer damages. By broadening the scope of liability to cases that do not necessary amount to clear-cut sex trafficking cases, the Pennsylvania legislature wisely recognised that commercial sexual exploitation can cause serious and lasting damage to those who are bought and sold in the sex trade.
Finally, the new civil cause of action is noteworthy because, in 18 Pa.C.S.A. § 3051(j), it specifies a long list of considerations that do not counts as defenses.
Nondefenses.–It shall not be a defense to an action under this section that the following occurred:
(1) The victim of the sex trade and the defendant had a consensual sexual relationship.
(2) The defendant is related to the victim of the sex trade by blood or marriage.
(3) The defendant has lived with the victim of the sex trade in any formal or informal household arrangement.
(4) The victim of the sex trade was paid or otherwise compensated for sex trade activity.
(5) The victim of the sex trade engaged in sex trade activity prior to any involvement with the defendant.
(6) The victim of the sex trade continued to engage in sex trade activity following any involvement with the defendant.
(7) The victim of the sex trade made no attempt to escape, flee or otherwise terminate the contact with the defendant.
(8) The victim of the sex trade consented to engage in sex trade activity.
(9) The victim of the sex trade engaged in only a single incident of sex trade activity.
(10) There was no physical contact involved in the sex trade activity.
(11) As a condition of employment, the defendant required the victim of the sex trade to agree not to engage in prostitution.
(12) The defendant’s place of business was posted with signs prohibiting prostitution or prostitution-related activities.
(13) The victim of the sex trade has been convicted or charged with prostitution or prostitution-related offenses.
(14) The victim of labor trafficking made no attempt to escape, flee or otherwise terminate the contact with the defendant.
Most noteworthy in this list is (8), which provides that the victim’s consent to engage in the sex trade activity is no defense. The upshot of this provision is that, in Pennsylvania, those who suffer damages from their experience in the sex trade have a civil cause of action against not only their pimps and traffickers -but also the strip clubs and hotels that profited from their sex trade – and against any “clients” that abused them in the sex trade Even if the sex trade activity was consensual at the time, if the person who was involved in the sex trade suffered damages, s/he still has a civil cause of action against these exploiters.
While no lawsuits have yet been filed invoking this new civil cause of action for victims of the sex trade in Pennsylvania, this new law provides a powerful new tool to empower victims and hold perpetrators accountable. If you would like more information regarding Pennsylvania’s new civil cause of action for victims of the sex trade, please contact Shea Rhodes, Director of the CSE Institute.