Robert Kraft—the billionaire owner of the New England Patriots—was recently charged with two misdemeanor counts of soliciting prostitution as part of a sweeping human trafficking investigation in Florida. Kraft was charged alongside other high-profile defendants, including the founder of a private equity firm and a former CFO of Citigroup. These pending prosecutions have drawn significant media coverage, which helps to shine a light on a dark secret facing our country—the commercial and sexual exploitation and trafficking of women and children.
Such high-profile defendants have also raised debate about where fault lies when it comes to human trafficking. Certainly, the traffickers are culpable. What about the johns? What about businesses and venues that turn a blind eye? What can this country do to effectively combat human trafficking?
Human Trafficking: The Facts
In the United States, the Trafficking Victims Protection Reauthorization Act of 2003 (“TVPRA”) defines human trafficking as (1) “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age,” or (2) “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion” for the purpose of involuntary servitude or slavery. It is important to note that a victim need not be physically moved from one location to another to fit the definition of trafficking.
According to the International Labor Organization (“ILO”), there are more than 24.9 million modern-day slaves worldwide. In fact, there are more people in slavery today than during the entirety of the trans-Atlantic slave trade. One in four people in slavery today are children, and 71 percent of slavery victims are women and girls. Human trafficking is now the third-most profitable business for organized crime behind drugs and arms, and it is the fastest growing form of international crime. The ILO estimates that traffickers earn $150 billion per year in profits with $99 billion of annual profits attributable to commercial sexual exploitation.
Domestically, Americans like to believe that human trafficking does not occur here. However, a 2016 study by the Institute on Domestic Violence and Sexual Assault at the University of Texas estimated that there are 79,000 minor victims of sex trafficking in Texas. Despite that, in 2016, the U.S. Department of Justice only convicted 439 human traffickers nationwide. If the criminal justice system cannot adequately tackle this problem, can the civil justice system help?
Texas Civil Practice and Remedies Code § 98
Passed in 2009, Section 98 of the Texas Civil Practice and Remedies Code provides trafficking victims with a direct cause of action against anyone “who engages in the trafficking of persons or who intentionally or knowingly benefits from participating in a venture that traffics another person ….” In adopting this section, the Texas Legislature noted that it should be “liberally construed and applied to promote its underlying purpose to protect persons from human trafficking and provide adequate remedies to victims of human trafficking.”
If used properly, Section 98 may be a game-changer for combating human trafficking in Texas. It provides for joint and several liability, and courts can award plaintiffs actual damages, including mental anguish; court costs; and reasonable attorney fees. Going even further, Section 98 expressly allows for the piercing of the corporate veil to award damages against individual members and shareholders of an entity involved in trafficking, and it prohibits defendants from using an acquittal or the lack of a criminal prosecution as a defense.
Pioneering Civil Lawsuits
Currently, there are several civil cases pending in Texas that will test Chapter 98’s effectiveness as a new tool to combat human trafficking. Beginning in early 2018, multiple lawsuits were filed by survivors and victims of human trafficking against major corporations that operate websites, motels, hotels, truck stops, and other businesses, alleging that they each turned a blind eye to human trafficking.
For example, U.S. law enforcement agencies seized the website Backpage.com shortly after a civil lawsuit was filed against it in Texas alleging that it was used to facilitate sex trafficking. In Texas, other lawsuits have been filed against businesses in the hospitality industry alleging that, “despite the constant flow of male customers,” these businesses “refused to take any steps to alert the authorities, properly intervene in the situation, or take reasonable security steps to improve awareness of sex trafficking and/or prevent the sexual exploitation of minors at their properties.” If successful, these pioneering lawsuits may prove to be the most effective method discovered yet to eradicate trafficking statewide and nationally.
Other Potential Civil Claims
On the federal level, the TVPRA provides a similar private right of action for damages and attorney fees. In the future, other civil lawsuits could employ civil RICO and RICO conspiracy claims to go after trafficking organizations. These statutory claims provide for treble damages and attorney fees; however, civil RICO claims are notoriously difficult to plead and prove in federal court.
In addition, some federal courts have recognized an implied private right of action under the 13th Amendment, which may provide relief for trafficking victims. The Alien Tort Claims Act (“ATCA”) also provides federal jurisdiction for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” and U.S. courts have recognized slavery, forced labor, and human trafficking as violations of international law, which would qualify under the ATCA.
A Fight Worth Fighting
Both Texas law and federal law provide a road map and game plan for the civil justice system to play an integral part in fighting human trafficking. This is not a problem that only exists in Hollywood movies or third-world countries. Women and children are being trafficked in Texas cities and towns every day. It is worth the time and effort for lawyers in Texas to explore whether they can protect the most vulnerable among us by utilizing the various statutory and common law claims that exist to hold those profiting from trafficking accountable.
Chip Brooker is a trial lawyer with Brooker Law, PLLC, in Dallas. Mr. Brooker’s practice focuses on wrongful death and serious personal injury claims, and he and his wife actively support Operation Underground Railroad (www.ourrescue.org) and its efforts to combat human trafficking.