OTLA Trial Lawyer Winter 2022

32 Trial Lawyer • Winter 2022 anytime a minor is involved in a commercial sexual transaction, it constitutes sex trafficking without the requirement to prove that force, fraud or coercion was used. The victims Human trafficking is an umbrella term that encompasses two distinct crimes: sex trafficking and labor trafficking. While the legal definitions are similar, these two enterprises are very different in how they occur and — as the statistics above suggest — who the victims are. (The remainder of this article will focus on sex trafficking rather than labor trafficking.) Victims of trafficking span a wide range in age, race and geography, and can be of any gender and sexual orientation. However, there are certain demographic characteristics that are more prevalent. The majority of sex trafficking victims are vulnerable teenage girls. In fact, many victims are recruited in their early teens. In Oregon and across the country, BIPOC individuals are disproportionately represented. Other common risk factors include prior sexual abuse, living in foster care, identifying as LGBTQ+, homelessness, as well as a family history of substance abuse, mental illness, violence and poverty. But some victims come from intact families with none of these disadvantages. Traffickers are very adept at finding the buttons to push in recruiting potential victims. Perhaps the greatest risk-factor of all is low self-esteem. How it happens Sex trafficking can take many forms and guises. Although there are commonalities, no trafficking case will hit every indicator or match every pattern. Sex trafficking isn’t a cookie-cutter, one-sizefits-all enterprise. The truth is traffickers, victims and trafficking schemes are diverse and creative ventures. Nonetheless, many organizations have developed materials to help employees in various industries identify victims of sex trafficking. In fact, earlier this year the Oregon Legislature passed a bill to mandate that all OLCC licensees begin reporting all potential instances of sex trafficking identified at their premises. It is worth noting sex trafficking of minors is a form of sexual abuse that falls with the mandatory reporting requirements for lawyers. There are many excellent resources on indicators of sex trafficking, and I encourage all attorneys to learn about those warning signs and to gain a basic understanding of the dynamics of sex trafficking. Trafficking generally begins with a “grooming phase” during which the trafficker showers a potential victim with love and attention. The trafficker convinces the victim he is her boyfriend, he will take care of her, and he will meet all of her wants and needs. Once the young, naïve victim has fallen in love with the trafficker, the “breaking phase” occurs, and the relationship quickly becomes violent and exploitative. (Again, not all sex trafficking follows this pattern.) After the victim has engaged in sex for money, they usually must meet a daily financial quota. At this point, the trafficker asserts “dominion and control” over the victim through a combination of tactics including: affection, violence, drugs, fear, shame, isolation and financial power. Trafficking victims are controlled through psychological manipulation known as trauma-bonding. Awareness of this phenomenon helps in understanding another common misconception. Trafficking victims are generally not subjected to physical restraint. Many people imagine a victim of trafficking chained to a radiator or locked in a bedroom. In fact, most trafficking victims move freely through their community. They go to grocery stores, restaurants, doctor’s offices and hotels. Trafficking victims don’t leave their traffickers because of psychological ties, not physical restraints. And they are not seeking help from police officers both because they are engaging in criminal activity and fear arrest, and because they simply don’t want to leave their trafficker. This is true not only because they are in love with their traffickers, but also because they are ashamed to return to their families, friends or schools, or fear the threatened violence against themselves or their family that their trafficker has vowed if they flee. Statutory framework Prostitution may be the world’s oldest profession, and compelled prostitution is certainly nothing new. But our understanding of this dynamic, the harm it causes, the terminology used and legal frameworks have all developed only recently. Congress passed the Trafficking Victims’ Protection Act (TVPA), the first major legislation to deal with human trafficking, in 2000. At that time, the focus was on international victims of human trafficking. Utilizing model state legislation disseminated by the U.S. Department of Justice following the 2005 reauthorizat i on o f the TPVA, the Oregon Legislature, in 2007, enacted statutes establishing the crimes of Trafficking In Persons and Involuntary Servitude. Importantly, the Legislature also created a civil claim for trafficking victims. This statute, ORS 30.867, provides a six-year statute of limitations, punitive damages and prevailing plaintiff attorney fees. Although the sex trafficking civil remedy has been on the books since 2007, it has been little used. As a result, judges and defense attorneys have very limited familiarity with the issues presented in sex trafficking civil claims. Asserting a statutory sex trafficking claim is also complicated because the civil remedy is predicated on establishing a violation of the criminal trafficking statutes. Having to piece together two statutes can create confusion, in particuHuman Trafficking Continued from p 31