OTLA Trial Lawyer Winter 2022

33 Trial Lawyer • Winter 2022 lar, as to the mens rea requirement for a civil defendant. The civil statute by itself is straight forward and very broadly cast, stating that “a person injured by a violation of [a trafficking criminal offense] may bring a civil action for damages against a person whose actions are unlawful[.]” Having such an expansive cause of action begs the ques t ion — who i s a viabl e defendant? Despite the clear incentive it would provide jurors to award a massive judgment, the trafficker cannot be the defendant for the obvious reason of collectability. Fortunately, the criminal statute for Trafficking In Persons, ORS 163.266, also provides broad liability. The statute holds accountable not only those directly responsible for trafficking but also states: “A person commits the crime of trafficking in persons if the person knowingly benefits financially or receives something of value from participation in a venture that involves an act prohibited” by the statute. This provision — establishing liability for any person who “knowingly benefits financially” — means that any business that facilitates sex trafficking is a potential defendant. This can include strip clubs, illicit massage parlors, transportation providers, and especially hotels and motels. Ensuring judges correctly apply the mens rea standard in ORS 163.266 will require cogent briefing on the statute’s wording. Civil liability attaches when a defendant knowingly benefits financially from participation in a venture that includes an act prohibited by the criminal statute. However, as opposed to the primary actor — who must commit the prohibited act “knowingly” — a close reading of the statute reveals a financial beneficiary need not knowingly participate in the trafficking venture, but only knowingly receive a financial benefit. If a motel, for example, accepts payment for a room used for sex trafficking, the motel has knowingly benefited financially from participating in a venture that includes a prohibited act.2 In addition to a statutory claim, if a trafficking case can be filed within the standard two-year statute of limitations, a common law negligence claim should be asserted. This approach offers the distinct advantage of triggering potential insurance coverage. Depending on the level of knowledge or complicity of a defendant’s agents, careful pleading of the facts is necessary to avoid various exclusions that may vitiate coverage. Hotel and motel liability Hotels and motels have emerged as the focal point for sex trafficking litigation. It should be readily apparent that a failure to take reasonable steps to prevent prostitution and sex trafficking is negligent conduct. This is true because sex work -- whether prostitution or sex trafficking -- has long been associated with dangerous levels of violence3. Similarly, the persistence of sex trafficking at hotels is well documented. Still, many hotel managers, like Captain Renault in “Casablanca,” will claim to be shocked, shocked that sex trafficking is going on at their hotels. Yet, it was as far back as 1996 that ECPAT, a leading anti-trafficking organization, developed The Code — a set of six principles that hospitality and travel companies should implement to prevent sex trafficking. A survey of sex trafficking survivors by the Polaris Project found that 80% had engaged in commercial sex acts in hotels. There can be no argument that hotels are the epicenter of sex trafficking. But there is great financial incentive to turn a blind eye to sex trafficking. Commercial sexual transactions are a lucrative line of business for hotels. Policing this activity closely would undoubtedly reduce revenues. Like too many other business sectors, for too long the hospitality industry has chosen profits over protecting its customers — in this case, a particularly vulnerable population that is routinely subjected to violence, exploitation, severe trauma and emotional distress. This is all the more reason why hotels and motels should be held accountable through civil lawsuits if they fail to implement known safeguards to prevent sex trafficking. And awareness within the industry and among the public has continued to grow. Feigning ignorance of the problem is no longer plausible. Arguing there’s no reason the defendant “should have known” of the need to take steps to prevent sex trafficking at a hotel is simply not a viable defense. I often explain this would be like a bar owner arguing they weren’t aware that over-serving patrons was a liability risk, or a restaurant owner claiming they didn’t know their kitchen needed to be trained to take precautions against salmonella. Certain risks are simply inherent to particular industries. So while many in the hospitality industry have tried to put their heads in the sand, the era when this strategy could work is over. In 2019, the State of California passed legislation requiring all hotel employees to complete training on identifying sex trafficking. That same year, the American Hotel & Lodging Association (AHLA) rolled out “No Room for Trafficking” — an industrywide campaign designed to train every hotel employee in the United States. Upon launching that effort, Chip Rogers, the CEO of AHLA, stated, “As an industry we recognize the severity of this problem,” and proclaimed, “Every major U.S. hotel brand along with thousands of independent hotels have already begun training their employees[.]” Rogers announced more than a million hotel employees had already been trained as of the end of 2019. Don’t hold me to that We’ve already seen, however, that projecting concern and commitment to preventing sex trafficking may only be lip service. Hotels, particularly the See Human Trafficking p 34