Texas set to become first state to make buying sex a felony

On September 1, Texas will become the first state to make buying sex from prostitutes a felony. This is a shift away from blaming the prostitutes and putting the focus on “johns” in an attempt to mitigate human trafficking. The law makes the crime a state jail felony.

House Bill 1540 passed the House and Senate unanimously during the spring legislative session. It is the first state law in the country that makes it a felony to buy sex from an adult. The bill also expands the definition of human trafficking which is a first-degree felony in Texas. It includes those who recruit trafficking victims from places like residential treatment centers. Adults exploit homeless minors and foster children in these facilities who are being treated for violence and assault. They prey on the most vulnerable. The bill is an attempt to deter human trafficking. Sex trafficking remains a big problem in Texas, particularly in Houston, even during the pandemic.

Though the Legislature has adopted a number of measures in recent sessions aimed at reducing sex trafficking, the illegal trade remains prevalent in Texas, particularly Houston. Sex trafficking has spiked in Texas during the COVID pandemic, according to the Polaris Project, a nonprofit that recorded a 40 percent uptick in calls to its sex trafficking hotline last year compared with 2019.

Thompson’s bill included several recommendations from the Texas Human Trafficking Prevention Task Force, a group formed by the Legislature in 2009 that includes members from more than 50 agencies and organizations and is run by the attorney general.

Among the provisions that will take effect next month is one that allows state officials to deny a liquor license to establishments that practice so-called drink solicitation, when employees such as bartenders charge marked-up prices for drinks in exchange for spending time with a customer.

The practice is considered a gateway to sex trafficking and other crimes.

The law also establishes a Class A misdemeanor charge — punishable with up to a year in jail — for those who trespass on treatment center properties. The task force notes a need for more protection for minors at treatment facilities. It says pimps freely approach minors on the grounds of treatment centers and sell them drugs.

Jamey Caruthers, an attorney for the Houston nonprofit Children At Risk, noted during the March committee hearing that the provisions of the bill that heighten penalties for drug crimes at residential treatment centers apply only to those 18 and older, meaning minors are exempt.

“These are kids with severe emotional problems, behavioral problems and substance abuse problems,” Caruthers said. “What we’re really after here are the pimps that are in the parking lot with a bag of weed waiting for a kid to come out, offering a ride. The next time that child is seen will probably be on a website … where ads are posted for buyers to purchase victims.”

House Bill 1540 is receiving attention, not just because it provides more protection for minors in treatment centers but also because the johns will receive harsher penalties as a determent against buying or soliciting sex. The maximum sentence for a first offense is doubled from one to two years and it becomes a third-degree felony for those previously convicted of the crime. Third-degree felonies carry sentences of 2-10 years in prison. State jail felonies carry a penalty of 180 days to 2 years.

Will this approach actually help ease the problem of human trafficking? The opinions from people who work in the justice system and with victims are mixed. Most agree it makes sense to punish the people buying sex, perpetuating a demand, rather than the prostitutes, who are often in the situation because of a vulnerability that led them into the world of human trafficking. The idea is to offer rehabilitation to those who are trafficked and help in getting their lives on track instead of focusing on legal punishment.

“This law is a rethinking of the traditional supply side in prosecutions that tended to target the women who were involved in these activities and not the buyers,” said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law School. “It’s also coming from a growing awareness that oftentimes, those involved are from a vulnerable class.”

She said the law also aligns with similar approaches around the country like offering sex workers pretrial diversions, which allows them to go through alternative sentencing options rather than spending time in jail or prison. The intent is to focus on rehabilitation rather than on the punishment, she said.

“It’s really unfair to someone who is a victim to prosecute them rather than try to help them escape their situation and get their lives back on track,” she said, adding that the law could serve as a model to other states that may be considering similar measures.

Instead of a slap on the wrist and a fine for pimps, the law will allow it to be a state felony that carries jail time. An opposing view is that arresting johns does nothing for those who are sex trafficked. It may tie up victims in court and it reduces the resources they need. A professor at Loyola Marymount University Law School says the law may be well-intentioned but it actually harms the victims.

“Putting individual ‘johns’ in jail will do absolutely nothing for victims of trafficking,” she said. “In fact, it harms them because evidence demonstrates that the more resources that go into law enforcement approach, the more that victims lose because resources that ought to be going towards things like victim benefits, social services support, and legal advocacy, is still unavailable and maybe even diminished because more resources are going toward a dominant criminal enforcement approach.”

Kim said what often plays out in practice is that survivors are “rounded up” in the same operations as those buying sex, and either become criminalized themselves or enmeshed in investigations as witnesses, which often re-traumatizes and re-exploits them.

One way to improve the law could be to add a provision in the bill or additional law that promises blanket immunity for the providers of the sex services from any kind of arrest or legal charge and does not compel other participation unless they themselves want to, she said, adding that anti-trafficking efforts can only work if victims feel safe around law enforcement.

The oldest profession in the world is still around because there is a demand for it. Whether or not increasing penalties will affect the demand is questionable. Sex trafficking is a billion-dollar business. It is being aided by our open southern border. Prostitution isn’t a victimless crime, certainly not for the women and children being exploited.