[House Report 114-8]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-8
======================================================================
STOP ADVERTISING VICTIMS OF EXPLOITATION ACT
OF 2015
_______
January 27, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 285]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 285) to amend title 18, United States Code, to
provide a penalty for knowingly selling advertising that offers
certain commercial sex acts, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 4
Congressional Budget Office Cost Estimate........................ 5
Duplication of Federal Programs.................................. 5
Disclosure of Directed Rule Makings.............................. 5
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Changes in Existing Law Made by the Bill, as Reported............ 5
Dissenting Views................................................. 7
Purpose and Summary
H.R 285 clarifies that 18 U.S.C. Sec. 1591, which
criminalizes the knowing sex trafficking of minors and others
through force, fraud, or coercion, can be violated when a
defendant knowingly advertises a victim for a commercial sex
act. This provision requires the government to prove that
defendants accused of benefitting financially through the sale
of such advertising knew that the victim was a minor or a
victim of force, fraud, or coercion. The bill is technology
neutral and applies to both advertisements online, as well as
traditional advertisements.
Background and Need for the Legislation
Pimps and traffickers sexually exploit children through
street prostitution, in adult strip clubs, brothels, sex
parties, motel rooms, hotel rooms, and other locations
throughout the United States. The growth of the Internet and
other technological advances, including mobile smartphones, has
greatly facilitated the commercial sexual exploitation of
children by providing a convenient way to market these victims
to potential purchasers. Individuals can now use websites to
advertise, schedule, and purchase sexual encounters with
minors. According to the Polaris Project, U.S. law enforcement
has identified online advertisements as the primary platform
for buying and selling sex with minors, and an FBI study found
more than 2,800 minor victims were advertised on just one
online advertisement service in 2008.\1\ It is estimated that
revenue from online advertisements of prostitution generally
(not just involving minors) surpassed $45 million in 2012
alone.\2\
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\1\Polaris Project, Internet Based Human Trafficking, http://
www.polarisproject.org/
component/content/article/1-national-human-trafficking-hotline/257-
Internet-based.
\2\Aim Group, Online prostitution-ad revenue crosses Craigslist
benchmark, July 2013, available at http://aimgroup.com/2013/07/10/
online-prostitution-ad-revenue-crosses-craigslist-benchmark.
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H.R. 285 clarifies that the existing Federal sex
trafficking statute, 18 U.S.C. Sec. 1591, extends to
traffickers who knowingly sell sex with minors and victims of
force, fraud, or coercion through advertising, as well as
people or entities that knowingly benefit from such
advertising. The Supreme Court has repeatedly held that, when a
Federal statute contains an explicit mens rea provision, that
standard applies to every element of the offense.\3\ Under
current law, the government can show that a defendant either
knew or recklessly disregarded the fact that a victim was a
minor or involved through force, fraud, or coercion. H.R. 285
requires the government to prove beyond a reasonable doubt that
a defendant who benefits from the advertising of a trafficking
victim under 18 U.S.C. Sec. 1591(a)(2) knew that the
advertising involved a victim who the defendant knew was a
minor or a victim of force, fraud, or coercion.\4\
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\3\See, e.g., Flores-Figueroa v. United States, 556 U.S. 646
(2009); United States v. X-Citement Video, 513 U.S. 64 (1994).
\4\``Knowingly'' does not have a uniform Federal definition. The
Fifth, Tenth, and Eleventh Circuits define ``knowingly'' as meaning a
defendant committed a criminal act ``voluntarily and intentionally, and
not because of mistake or accident.'' Fifth Circuit Instruction 1.37;
Tenth Circuit Instruction 1.37; Eleventh Circuit Instruction 9.1A. The
Seventh and Ninth Circuits employ an instruction to the effect that
```knowingly' . . . means that the defendant realized what he was doing
and was aware of the nature of his conduct, and did not act through
ignorance, mistake or accident.'' Seventh Circuit Instruction 4.10;
Ninth Circuit Instruction 5.6. Other circuits have taken a case-by-case
approach to the definition of ``knowingly.''
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H.R. 285 clarifies that people who advertise sex
trafficking can face criminal liability. The bill is technology
neutral and applies to both advertisements online, as well as
traditional advertisements. Under current law, Section 1595 of
Title 18 extends the possibility of civil liability to
defendants who violate Section 1591. However, under Section 230
of the Communications Decency Act,\5\ online publishers of
third-party advertisements are generally immune from civil
liability for such advertisements.\6\ H.R. 285 does nothing to
disrupt or modify the civil immunity already provided by
Section 230.
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\5\47 U.S.C. Sec. 230.
\6\Courts generally apply Section 230(c)(1) immunity where: (1) a
defendant is a provider or user of an interactive computer service; (2)
the defendant is being treated as a publisher or speaker of the
challenged content for liability purposes; and (3) the content at issue
is information provided by another information content provider. Courts
have overwhelmingly found that defendants that provide access to online
content are providers or users of an interactive computer service as
broadly defined by section 230, and accordingly immune from civil
liability. See Chicago Lawyers' Comm. for Civil Rights Under Law, Inc.
v. Craigslist, Inc., 519 F.3d 666, 668 (7th Cir. 2008).
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During markup, the Committee rejected an amendment to
exempt sex trafficking advertisers from the existing mandatory
penalties in Section 1591. The amendment would have provided
special treatment and potentially more lenient sentences to
those who traffic children through advertising, rather than
through other means. The trauma to the child is no less when
they are trafficked through advertising--in fact, it is
arguably worse, given that online advertising makes it easier
to sell these children even more frequently.
Hearings
The Committee on the Judiciary held no hearings on H.R.
285.
Committee Consideration
On January 21, 2015, the Committee met in open session and
ordered the bill H.R. 285 favorably reported by voice vote, a
quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H.R. 285.
1. Amendment #1, offered by Mr. Johnson. The amendment
exempts traffickers who committed their crime through
advertising from the existing mandatory minimum sentences in 18
U.S.C. Sec. 1591. Defeated 7 to 20.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................
Mr. Peters (CA)................................
------------------------
Total...................................... 7 20
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
With respect to clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives, an estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974 was
not submitted to the Committee before the of filing of the
report.
Duplication of Federal Programs
No provision of H.R. 285 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
No provision of H.R. 285 directs a specific rule making
within the meaning of 5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
285 clarifies that 18 U.S. C. Sec. 1591, which criminalizes the
knowing sex trafficking of minors and others through force,
fraud, or coercion, can be violated when a defendant advertises
such a victim for a commercial sex act.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 285 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title. This section cites the short title
of the bill as the ``Stop Advertising Victims of Exploitation
Act of 2015.''
Section 2. Advertising that Offers Certain Commercial Sex
Acts. This section expands 18 U.S.C. Sec. 1591 to include the
advertising of commercial sex acts involving a minor or an
individual engaged in such an act through force, fraud, or
coercion. Additionally, this section adopts a knowing standard
for those accused of benefitting financially or otherwise from
the sale of advertising depicting these individuals under 18
U.S.C. Sec. 1591(a)(2).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 77--PEONAGE, SLAVERY, AND TRAFFICKING IN PERSONS
* * * * * * *
Sec. 1591. Sex trafficking of children or by force, fraud, or coercion
(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, or
maintains 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, in an offense under paragraph (2),
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 described in
subsection (e)(2), 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).
(b) The punishment for an offense under subsection (a) is--
(1) if the offense was effected by means of force,
threats of force, fraud, or coercion described in
subsection (e)(2), or by any combination of such means,
or if the person recruited, enticed, harbored,
transported, provided, [or obtained] obtained, or
advertised had not attained the age of 14 years at the
time of such offense, by a fine under this title and
imprisonment for any term of years not less than 15 or
for life; or
(2) if the offense was not so effected, and the
person recruited, enticed, harbored, transported,
provided, [or obtained] obtained, or advertised had
attained the age of 14 years but had not attained the
age of 18 years at the time of such offense, by a fine
under this title and imprisonment for not less than 10
years or for life.
(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
or maintained, the Government need not prove that the defendant
knew that the person had not attained the age of 18 years.
(d) Whoever obstructs, attempts to obstruct, or in any way
interferes with or prevents the enforcement of this section,
shall be fined under this title, imprisoned for a term not to
exceed 20 years, or both.
(e) In this section:
(1) The term ``abuse or threatened abuse of law or
legal process'' means the use or threatened use of a
law or legal process, whether administrative, civil, or
criminal, in any manner or for any purpose for which
the law was not designed, in order to exert pressure on
another person to cause that person to take some action
or refrain from taking some action.
(2) The term ``coercion'' means--
(A) threats of serious harm to or physical
restraint against any person;
(B) any scheme, plan, or pattern intended
to cause a person to believe that failure to
perform an act would result in serious harm to
or physical restraint against any person; or
(C) the abuse or threatened abuse of law or
the legal process.
(3) The term ``commercial sex act'' means any sex
act, on account of which anything of value is given to
or received by any person.
(4) The term ``serious harm'' means any harm,
whether physical or nonphysical, including
psychological, financial, or reputational harm, that is
sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the
same background and in the same circumstances to
perform or to continue performing commercial sexual
activity in order to avoid incurring that harm.
(5) The term ``venture'' means any group of two or
more individuals associated in fact, whether or not a
legal entity.
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 285, the ``Stop Advertising Victims of Exploitation
Act of 2015,'' amends the Federal sex trafficking statute\1\ to
prohibit the advertising of certain commercial sex acts. We
agree with the bill's laudable goal of prosecuting those who
facilitate sex trafficking, but disagree with the bill's
expansion of mandatory minimum sentencing because of the
serious public policy concerns it presents. While the acts
prohibited by the legislation will often warrant long
sentences, mandatory minimum sentences are the wrong way to
determine the punishment under this or any other criminal
statute. Specifically, mandatory minimum sentencing distorts
rational sentencing, wastes taxpayer money, and often leads to
sentences that are not appropriate under the facts of
particular cases, even when as applied to serious offenses.
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\1\18 U.S.C. Sec. 1591 (2015).
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No matter how well-intentioned H.R. 285 may be, we do not
believe these significant public policy concerns can be
disregarded. An amendment rejected during the markup would have
ameliorated our concerns by clarifying that mandatory minimum
sentences would not apply to the new offense, while still
providing that offenders could be punished under the statute's
maximum penalty. Unfortunately, without this important change,
we are unable to support this legislation and accordingly we
dissent from the Committee views on this legislation.
DESCRIPTION AND BACKGROUND
H.R. 285 is primarily intended to prevent the advertising
of acts of commercial sex trafficking via the Internet. The
bill amends section 1591 of title 18 of the United States Code,
which deals with the Federal crime of sex trafficking, to
include advertising of certain commercial sex acts as a
punishable offense. Section 1591 currently prohibits conduct
such as recruiting, enticing, harboring, transporting, and
providing victims or benefitting financially from commercial
sex acts involving minors, or adults who are forced or coerced
into participating in the acts. H.R. 285 also amends section
1591 to include advertising in its penalty provisions, which
impose mandatory minimum sentences of 10 or 15 years, depending
on the circumstances of the crime.
For offenses under section 1591(a) of the current statute,
one may be punished for acting ``knowingly'' or ``in reckless
disregard'' of the fact that a victim is a minor or one whose
participation in the acts was forced or coerced. For instances
where one benefits from a sex trafficking venture in violation
of section 1591(a)(2) when the conduct of the venture in
violation of section 1591(a)(1) consists of advertising,
section 2(b) of the bill requires knowledge as to these facts
and the ``reckless disregard'' standard would not apply.
CONCERNS WITH H.R. 285
By adding advertising to the list of prohibited conduct
related to sex trafficking, H.R. 285 may subject a range of
communications providers and facilitators to mandatory minimum
sentences. Regardless of the nature and circumstances
surrounding the offense, the role of the offender in the
particular crime, and the history and characteristics of the
offender, H.R. 285 would require a judge to impose a 10- or 15-
year sentence. Even if everyone involved in a case--the
arresting officer, prosecutor, judge, and victim--believes that
the mandatory minimum would be an unjust sentence for a
particular defendant in a case, H.R. 285 would nevertheless
mandate that it be imposed.
The imposition of a mandatory minimum sentence of 10 or 15
years is particularly troublesome when one considers the
possible scope of defendants who could be prosecuted under H.R.
285. Notably, the prohibition on advertising does not
explicitly apply only to a sex trafficker who places an
advertisement, and could conceivably be applied to individuals
and entities who facilitate, but have a minor role in,
publishing the advertisement. Those who are employed by a
venture that benefits financially from the advertisement, but
whose role in the organization does not place them in the chain
of decision making with respect to acceptance or publishing of
illegal advertisements could also be prosecuted under the
bill.\2\ In the online context in which advertising networks
are often complex and automated, there may be circumstances in
which an employee of a communications company may be found
liable under the statute, but whose role in the offense is so
attenuated that it would not warrant a mandatory minimum
sentence of 10 or 15 years.
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\2\18 U.S.C. Sec. 1591(a)(2) (2015) subjects to liability ``whoever
knowingly--(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).''
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Mandatory minimum sentences are the wrong way to determine
punishment under the Federal sex trafficking statute, or any
other statute. Mandatory minimums not only lead to unjust
outcomes for individuals, but also have serious systemic
consequences by contributing to the problem of
overincarceration. As of September 2010, 75,579 Federal
prisoners--more than one-third (39.4%)--were serving mandatory
minimum sentences.\3\ This represents a 155% increase from the
number of Federal prisoners serving mandatory minimum sentences
in 1995 (29,603).\4\ Since Congress enacted harsh mandatory
minimums in the 1980s, the Federal prison population has
exploded by over 800% to more than 216,000 inmates today.\5\
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\3\United States Sentencing Commission, Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal System, at 148
(Oct. 2011), available at http://www.ussc.gov/sites/
default/files/pdf/news/congressional-testimony-and-reports/mandatory-
minimum-penalties/201110
31-rtc-pdf/Chapter_07.pdf.
\4\Id. at 81, available at http://www.ussc.gov/sites/default/files/
pdf/news/congressional-
testimony-and-reports/mandatory-minimum-penalties/20111031-rtc-pdf/
Chapter_04.pdf.
\5\Bureau of Prisons, Historical Information, at http://
www.bop.gov/about/history/ and Inmate Statistics: Offenses, at http://
www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.
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In addition, higher than warranted sentences resulting from
mandatory minimum sentencing strain public finances. For
example, the average cost of incarceration for a Federal inmate
in fiscal year 2011 was $28,893.40.\6\ In fact, the U.S.
Department of Justice has referred to the increased year-to-
year spending on Federal prisons as ``unsustainable'' and a
threat to public safety.\7\ For fiscal year 2014, close to a
third (28.8%) of the Justice Department's $27.7 billion budget
was earmarked for Federal prisons and detention.\8\ Every
dollar expended on lengthy mandatory minimum incarcerations is
a dollar that cannot be spent on crime prevention, victim
services, training, investigation, and prosecution.\9\ Absent
smarter sentencing policies and reformation of mandatory
minimum sentences, prison populations and their associated
costs will continue to escalate.\10\ We need to take steps to
ensure that sentences are appropriately severe, but are not set
beyond levels that no longer serve legitimate criminal justice
purposes.
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\6\Bureau of Prisons, Annual Determination of Average Cost of
Incarceration, 78 Fed. Reg. No. 52 at 16711 (Mar. 18, 2013), available
at http://www.gpo.gov/fdsys/pkg/FR-2013-03-18/pdf/2013-06139.pdf.
\7\Michael E. Horowitz, Inspector General, Top Management and
Performance Challenges Facing the Dep't of Justice--2013, at http://
www.justice.gov/oig/challenges/2013.htm.
\8\U.S. Senate Committee on Appropriations, Summary: Fiscal Year
2014 Omnibus Appropriations Bill 5-7 (Jan. 13, 2014), at http://
www.appropriations.senate.gov/news.cfm?
method=news.view&id=5aa8e660-f52e-4074-945f-9618eb963ae9.
\9\Id.
\10\Horowitz, supra n.7.
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An amendment offered by Representative Henry C. ``Hank''
Johnson, Jr. (D-GA) that would have addressed these significant
concerns was defeated by a vote of 7 to 20 during the markup.
The amendment would have removed application of the statute's
mandatory minimum prison sentences to advertising and instead
allow a judge to apply an appropriate sentence under the
circumstances of the case up to the statute's existing maximum
penalty of life in prison. Given the complicated nature of
internet communications networks and other forms of
advertising, which would be affected by this bill, the role of
the judge in evaluating each case is particularly important.
While long sentences may be appropriate under the facts of a
particular violation of law, Congress cannot know the facts of
every case in advance. Removing mandatory minimums while still
permitting the lengthy statutory maximum penalty of life
imprisonment, as Representative Johnson's amendment would have
done, would provide the appropriate spectrum of sentences for
culpability and proportionate punishment.
CONCLUSION
We must do more to combat sex trafficking by taking steps
such as strengthening our laws and providing additional
resources for law enforcement and victim services. In our haste
to combat this tragic crime, however, we must also consider the
public policy implications of our legislative actions.
Unfortunately, the expansion of mandatory minimum penalties
resulting from H.R. 285 would make it an inflexible and often
inappropriate means of addressing the range of those who could
be prosecuted under the statute.
For the foregoing reasons, we must respectfully dissent.
Mr. Conyers, Jr.
Ms. Jackson Lee.
Mr. Johnson, Jr.
Mr. Gutierrez.
[all]