For years, opponents of the adult entertainment industry have attempted to link pornography to sex trafficking. In 2015, the National Center on Sexual Exploitation (formerly known as “Morality in Media”) hosted a symposium pushing the narrative that pornography increases the demand for sex trafficking, child exploitation and violence against women. The following year, the Department of Justice commissioned a study that concluded consuming adult entertainment causes people to be dismissive of sex trafficking concerns. Since then, substantial federal funds have been allocated to bringing more sex trafficking prosecutions at the local, state and federal levels. Those who claim to be victims of sex trafficking can sue the perpetrators, and any websites involved (thanks to FOSTA), under state and federal law.
It has become increasingly clear that sex trafficking laws will be used against adult entertainment businesses. In fact, the first federal sex trafficking charges against an adult content producer have already been filed. Most content producers and performers react to this concern with disbelief. They have nothing to do with sex trafficking, so how could these laws ever be applied to their business?
Anti-porn advocacy groups, which previously opposed adult entertainment on moral grounds, have adopted the sex-trafficking rubric as a basis for their censorship efforts.
Understanding this issue starts with the definitions used in federal statutes. For purposes of this discussion, sex trafficking occurs when someone recruits, entices, solicits, transports or advertises an adult for a commercial sex act through force, fraud or coercion. The law also punishes anyone who attempts or conspires to engage in these activities, or who benefits financially from participating in a venture where such activities occur. The defendant need not intend that sex trafficking occur, if the defendant acts with reckless indifference. The punishment is severe: 15 years to life in prison. Unlike other crimes where the defendant is presumed to be entitled to a bond pending trial, the law presumes that accused sex traffickers should be detained until trial.
Sex trafficking laws can apply to those who are willingly recruited to engage in commercial sex acts. The elements of “force, fraud or coercion” have been interpreted quite broadly by the courts. Actual force is not necessary. A threat of force is sufficient. Any scheme or plan that causes a victim to believe that physical restraint or serious harm might occur will meet the test. Creating a climate of fear is enough to prove coercion. “Fraud” is a notoriously broad concept that can include any form of deception, such as false promises of fame and fortune. With that in mind, consider the following scenarios:
An amateur clip producer occasionally includes her live-in boyfriend in boy/girl clips. The boyfriend loses his regular job and can no longer contribute to paying rent. The content producer tells him that he must perform in more clips to supplement their income or move out. Is this “coercion” under the law?
A cam model promises performers that she can make them famous in the adult industry, but they must participate in some of her cam shows to help launch their careers. The performers agree and participate, but never become famous. Is this “fraud” under the law?
A professional video producer hires security guards on the set. A performer decides that she wants to stop filming and leave, but the security guards are stationed near the exits. Is this “force” through threat of physical restraint?
It is not difficult to imagine many circumstances where the facts can be manipulated to fit within the ambit of sex trafficking statutes. Those in charge of making these decisions may be politically opposed to adult entertainment or hold the belief that pornography fuels sex trafficking. In the case of a civil lawsuit, the plaintiff stands to benefit financially by making the claim.
Any allegation of sex trafficking is emotionally charged. There is an inclination to believe the victim. In many cases, that is the correct thing to do. However, the adult industry is now vulnerable to potential prosecutions and civil claims that are politically or financially motivated. Anti-porn advocacy groups, which previously opposed adult entertainment on moral grounds, have adopted the sex-trafficking rubric as a basis for their censorship efforts. We have seen numerous instances where run-of-the mill business disputes between producers and performers are starting to include claims of sex trafficking.
This is a sensitive issue. Sex trafficking is a horrific crime and perpetrators should be punished harshly. But the scope of the problem is up for debate since accurate statistics are notoriously hard to come by, and some of the numbers are overblown. As governmental entities and advocacy groups try to conflate issues of pornography, prostitution and sex trafficking, the industry must be on guard for misuse of these laws. Just as anti-porn advocates have previously attempted to smear the adult industry with claims of child pornography, there is an effort underway to suggest that adult content production implicates sex trafficking.
To help address these issues, both producers and performers are encouraged to adopt best practices that focus on disclosure and consent. All expectations should be identified in written agreements. Performers must be afforded an opportunity to read and understand such agreements before production. Compensation terms should be clear and unambiguous. Obviously, there is no place for threats or violence in the adult content production industry.
The Free Speech Coalition has issued a statement condemning the types of activities that were alleged in the recent sex trafficking charges against adult content producers. Its Code of Ethics encourages clear written performer contracts with sufficient time to review. Some large content producers and industry groups also offer a performer Bill of Rights that focuses on respect, clarity and consent. Efforts like these will go a long way towards eliminating the risks posed by misuse of sex trafficking laws as a weapon against the adult industry.
Lawrence Walters has represented the adult entertainment industry for over 30 years. He can be reached at firstamendment.com or @walterslawgroup. Nothing in this article is intended as legal advice.
