OTLA Trial Lawyer Winter 2022

35 Trial Lawyer • Winter 2022 prostitution occurred at its property, but the hotel had no basis to know sex trafficking was occurring. This argument rings hollow. Such a defense will almost certainly ignore common red flags and indicators of trafficking. This highlights the need for adequate, specific training for all roles with hotels — as well as other sectors, such as OLCC licensees. It is a truism you cannot see what you are not looking for, and sex trafficking victims are often hidden in plain sight. It should be noted that while there are specific elements that must be proven to establish sex trafficking as a matter of law (namely the use of force, fraud, or coercion), differentiating between these two crimes factually is a murky proposition, given that both necessarily involve commercial sexual transactions. As federal judge Susan Brnovich wrote in a recent trafficking case: “Sex trafficking and child sex trafficking are, by definition, both forms of prostitution. Both are simply as subset of the crime.” (US v. Lacey, 2:18cr-00422-SMB, Order dated 05/07/21). Thus, it’s not a strong argument to assert a defendant was aware of prostitution but had no duty to take steps to prevent sex trafficking. Along this same line of reasoning, the defense is likely to argue a plaintiff is not, in fact, a victim of trafficking but merely a prostitute. Such arguments are often based in a fundamental misunderstanding of the nature of sex trafficking. In a recent case, defense counsel argued in a written filing the plaintiff had access to a cell phone to call her mother or the police and therefore clearly wasn’t being trafficked. Why should the defendant have any responsibility to notify law enforcement when the plaintiff was capable of doing so herself? This position betrays a complete ignorance of trauma-bonding and the essential dynamics of sex trafficking. After hearing from a qualified trafficking expert witness, a jury would certainly reject such an ill-informed position. But again, this highlights the importance of dispelling myths and misconceptions about sex trafficking so judges, juries and attorneys can understand the nature and value of sex trafficking civil claims. Until there is greater understanding of the realities of sex trafficking, victims will remain all but invisible. Presently, the resources that would allow sex trafficking victims to exit that life and rebuild their lives are severely lacking. They have suffered severe trauma and usually require long-term care and services. As we argue at the Trafficking Law Center, an important part of the continuum of care that is largely missing is access to legal services and civil justice. Trafficking survivors have strong claims for damages against those who facilitated and financially benefited from their trafficking. I encourage more attorneys to learn about this tragic form of exploitation and help clients pursue civil justice. Joel Shapiro specializes in representing victims of sex trafficking. Shapiro contributes to OTLA Guardians at the Sustaining Member level. He is a solo practitioner at the Law Office of Joel Shapiro, LLC, 1420 NW Lovejoy St., Ste. 631, Portland, OR 97209, as well as director of the Trafficking Law Center. He can be reached at joel@ joelshapirolaw.com or 971-999-1889. 1 U.S. Dept. of Justice, “Characteristics of Suspected Human Trafficking Incidents,” 20082010 (April 2011). 2 Compare ORS 163.266 to 18 U.S.C. 1959, which allows “a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter)[.]” 3 “A Systematic Review of the Correlates of Violence Against Sex Workers,” American Journal of Public Health, Vol. 104, May 2014 Unt i l there i s greater understanding of the realities of sex trafficking, victims will remain all but invisible.