Friend of the Indiana appellate and post-conviction advocate

Human Trafficking 101 for the Criminal Defense Attorney

Two weeks ago I attended an excellent seminar, sponsored by the Indiana Public Defender Council, on human trafficking. Despite the huge impact human trafficking has on the practice of criminal defense, unfortunately only a handful of attorneys attended the training. So I decided to create a series of posts here to introduce the topic to attorneys.

Before researching this area of law, I believed human trafficking had no real impact on my practice, unless of course I was representing someone accused of committing a human trafficking offense. But as I hope to demonstrate through this series of posts, my initial belief was wrong. Many of our clients could be trafficking victims, and that can greatly affect the potential outcome of their criminal cases.

When people hear the term “human trafficking,” they often think of the scenario depicted in the movie “Taken,” where a young woman is forcibly abducted by strange men and sold in a high-stakes auction to become a sex slave.

Yet the reality of human trafficking often looks much different. What is human trafficking? Human trafficking is the use of force, fraud, or coercion to obtain labor or a commercial sex act. Each year, hundreds of people, including men, woman, and children, are trafficked here in Indiana. Most reported victims are Caucasian girls, some as young as 7 years of age.

There are four types of people involved in human trafficking: (1) the trafficker; (2) the recruiter; (3) the purchaser; and (4) the victim. In Indiana, a parent who sex trafficks his/her child faces the harshest punishment, as the offense is a Level 2 felony. See Ind. Code section 35-42-3.5-1.3. Non-parent traffickers and recruiters of both adults and children are treated the same, as the offense is a Level 4 felony. See Ind. Code section 35-42-3.5-1, -1.1, -1.2. If, however, the sex-trafficked/recruited child is under the age of 16, the offense is elevated to a Level 3 felony. See Ind. Code section 35-42-3.5-1.2.

Notably, however, a purchaser of anyone – adult or child – is treated the same, and the offense is only a Level 5 felony. See Ind. Code section 35-42-3.5-1.4.

Earlier I explained that human trafficking involves force, fraud, or coercion. But with respect to children, this is presumed under the law due to their tender age. Thus, the State is not required to prove any force, fraud, or coercion when the victim is a child.

Moreover, because children can never legally consent to a sexual act, particularly with an adult, Indiana law no longer recognizes the offense of juvenile prostitution. Now the law views children involved in the sex industry as victims…for the most part. But many human trafficking operations involve the trafficker using victims not just as a commodity to be sold but also as recruiters of more victims. While it is true prosecutors can no longer charge children for juvenile prostitution, many do still charge children for being a recruiter and/or a trafficker.

In the next post, I will talk about Indiana’s vacatur statute, a post-conviction remedy few are aware of that can not only provide help to trafficking victims dealing with the consequences of their prior convictions but also assist those who are currently facing charges.

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