BILL NUMBER:  S6894

 TITLE OF BILL :  An act to amend the penal law, in relation to sex
trafficking of persons less than eighteen years old

 PURPOSE :

To eliminate the requirement to prove force, fraud or coercion in
prosecutions for sex trafficking

 SUMMARY OF PROVISIONS :

Section one amends paragraph (h) of subdivision 5 of section 230.34 of
the penal law, as added by chapter 74 of the laws of 2007, and adds a
new subdivision 6 to provide that a person who intentionally advances
or profits from prostitution by knowingly advancing prostitution of a
person less than eighteen years old is guilty of sex trafficking.

Section two provides the effective date.

 JUSTIFICATION :

Since 2007, New York State has taken significant steps to hold both
sex and labor traffickers accountable. In 2015, New York strengthened
its criminal justice response to trafficking with the Trafficking
Victims Protection and Justice Act ("TVPJA," Ch. 368 of 2015),
              

comprehensive legislation that increases accountability of
traffickers, patronizers and other exploiters, while providing
necessary protection to victims.

Although we have enacted legislation to ensure that those who
devastate the lives of children by promoting them in the sex
trafficking industry are held accountable, the law must go further to
hold these traffickers accountable just as they are under federal law.

Under federal law, the crime of sex trafficking is made when a sexual
act is induced by force, fraud or coercion, or when the person induced
to perform such act is under 18. Accordingly, a prosecutor need not
articulate or prove force, fraud or coercion to prosecute a trafficker
who exploits a child under 18. Instead, under federal law, any child
under the age of 18 who engages in commercial sex is considered a
victim of sex trafficking and any person who promotes and benefits
from exploiting such child is considered a sex trafficker.

Under New York law, however, the prosecution must prove that a person
used force, fraud or coercion to find such person guilty of sex
trafficking, even if the child is under 18.

Recently, Manhattan District Attorney Cyrus Vance, Jr. in announcing
the conviction of an operator of a sex trafficking ring, which
included the prostitution of a 15-year old, on Super Bowl weekend in
2014, called on the Legislature to amend our penal code. "In 46 states
across the country, simply proving that a child was sold for sex would
have been proof of Sex Trafficking. In New York, however, even though
this 15-year-old was too young to legally engage in sexual activity
with grown men, my Office still had to prove that she was forced to do
so by the defendant under the threat of violence to secure this
conviction."

Prosecutors, advocates and service providers see the restrictions the
law imposes on a frequent basis. Another case is illustrative.

Fourteen-year old Jennifer was lured into prostitution by her 40-year
old boyfriend, Mac. For months Jennifer was sold online for sex and
was required to make a quota set by Mac. Although Mac deceived
Jennifer repeatedly and at times used force to ensure Jennifer's
obedience, Jennifer believed that Mac loved her and refused to testify
against Mac. This refusal to accept that they are being victimized by
an older exploiter is especially common with victims of human
trafficking as they are often traumatically bonded to their exploiter,
who can alternate between acts of affection and violence.

Under federal law, prosecutors could bring an action for sex
trafficking against Mac based on the fact that Jennifer is under 18,
without a showing of force, fraud or coercion. In New York, however, a
prosecutor would be required to prove that Mac used force, fraud or
coercion in order for the court to find Mac guilty of sex trafficking.
Requiring such proof most often obligates a victim to testify against
her trafficker. Yet requiring anyone, especially a minor, to testify
against her trafficker can retraumatize an already highly traumatized
victim. Moreover, a minor may be unwilling to testify against her
trafficker because she is convinced she is in love with him. And if
she does testify, she may state that she engaged in sex out of love
for her trafficker, not by force, fraud or coercion. If the minor does
not testify against her trafficker, no case can be made. The child
returns to her trafficker, with the trafficker free to continue his
commercial sexual exploitation of the child.

When we passed and had signed into law the TVPJA and legislation to
treat 16-and 17-year olds as Persons in Need of Supervision (Ch. 555
of 2013), we reaffirmed our conviction that prostituted individuals
under the age of 18 are sexually exploited youth. And in our statutory
rape laws we have long recognized the fact that children do not have
the legal, psychological, or emotional capacity to consent to sexual
activity. This principle should not be discarded merely because there
is an exchange of money.

By amending the Penal Law to eliminate proof of force, fraud or
coercion where a child under 18 engages in commercial sex, this
legislation will also align the Penal Law with the Family Court Act,
which creates a presumption that a minor charged with prostitution, is
a sex trafficking victim. Federal law, the Federal Trafficking Victims
Protection Act, already establishes that all prostituted children are
trafficking victims.

Eliminating proof of these elements in cases of children under 18 will
enable us to hold traffickers accountable and prevent returning these
young girls and boys to lives of abuse and exploitation at the hands
of their predatory traffickers.

 LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS :

None to the State.

 EFFECTIVE DATE :
This act shall take effect on the ninetieth day after it shall have
become a law.