Did Georgia Accidentally Decriminalize Prostitution?

Oct. 9, 2015 (Mimesis Law) — In Georgia, it is an absolute defense to a charge of prostitution that the defendant was being sexually trafficked.

A person shall not be guilty of [prostitution] if the conduct upon which the alleged criminal liability is based was committed by an accused who was: … (2) Acting under coercion or deception while the accused was being trafficked for sexual servitude…

But the law is so broad that virtually any exchange of sex for something of value which also includes “coercion or deception” is sex trafficking.

In 2011, in response to intense pressure to do something about Atlanta’s status as the sex trafficking capital of the country, Georgia’s General Assembly passed one of the toughest sex trafficking laws around. In 2015, it was amended again to make it even tougher. And to keep anyone from slipping through the net, the legislature made sure the law was written as broadly as possible.

Before going further, we have to parse this confusingly written law.

A “person commits the offense of trafficking a person for sexual servitude when that person knowingly subjects another person to or maintains another person in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude.”

Okay, so this part is easy. If you do something to get someone into sexual servitude, you’re committing the crime.

Sexual servitude means

[a]ny sexually explicit conduct or performance involving sexually explicit conduct for which anything of value is directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception

Okay, so this makes sense so far. If you try to get someone to do something sexually explicit in exchange for something of value, whether they get it or someone else gets it, you’re two thirds of the way to sexual trafficking.

All that’s left is that you have to coerce or deceive the sex traffickee. And it’s here where things start to fall apart. The definitions of coercion and deception are so broad that virtually any prostitute can make a credible claim to being trafficked.

Coercion can mean threats of “bodily harm,” but it can also mean “threatening to expose… information… that if revealed would tend to subject to…. ridicule,” “providing a controlled substance,” or “threatening financial harm.”

So a prostitute who accepts crack cocaine in exchange for his services meets all the elements of the statute. Someone has provided him a thing of value, crack, which is also a controlled substance, and did it in exchange for sexually explicit conduct.

Or let’s say a prostitute has a discussion with a john. The prostitute asks the john for $40, and the john declines, saying it will be either $30 or nothing. Now there’s a threat of financial harm.

Deception is even broader. It can include promising a benefit or service, then not delivering. Or “[c]reating or confirming another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false.”

In one appellate opinion, a Georgia court ruled that even telling someone that you need him to sell his body for bail money, when that is not true, satisfied the deception necessity.

Arguably, the deception prong might even apply to police officers making undercover busts. A police officer offers a prostitute $40 for a sex act, with no intention of paying it, and does not mention that he is a police officer, is “confirming another’s impression of an existing fact.” In other words, that old myth about telling a prostitute that you’re a police officer might now really be true.

That last example is a bit optimistic, of course. The officer could always argue that he didn’t have the intent to sexually traffick the prostitute, and so she can’t raise the defense. But it goes to show just how far this exemption stretches, and how a good idea (let’s not further victimize sex trafficking victims) can lead to unintended consequences. So far, there have been no cases reported in Georgia where someone has raised an affirmative defense of being trafficked. It could be because very few prostitution cases ever make it to trial, or it could be that prosecutors are exercising great restraint in charging the crime.

But the ironic effect of all this is that any prostitute worth her salt would be wise to acquire a pimp. Not as a bodyguard, negotiator, or middleman, but as a living, breathing affirmative defense that can be used at will.

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