SENATE, No.

2021

STATE OF NEW JERSEY

215th LEGISLATURE
INTRODUCED APRIL 9, 2013

Sponsored by: Senator ORLANDO R. RODRIGUEZ District 16 (Hunterdon, Mercer, Middlesex and Somerset)

SYNOPSIS Establishes offense of advertising commercial sexual abuse of minor. CURRENT VERSION OF TEXT As introduced.

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AN ACT establishing the offense of advertising commercial sexual abuse of a minor, supplementing chapter 13 of Title 2C of the New Jersey Statutes, and amending P.L.1994, c.133. BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: 1. (New section) The Legislature finds and declares that: a. There reportedly are more than 12 million victims of human trafficking and it estimated that this figure could actually be as high as 27 million; b. According to the National Center for Missing and Exploited Children, at least 100,000 human trafficking victims are American children who are an average age of 13 years old; c. Advertisements for selling the services of girls as escorts on Internet websites falsely claim that these girls are 18 years of age or older, when the girls actually are minors; d. The advertising of these escort services includes minors who are being sold for sex, which constitutes sex trafficking and commercial sexual abuse of minors; e. Responding to political and public outcry, the Internet website craigslist.com removed its escort section, but another website with an escort section, backpage.com, has to date refused to do so; f. The state of Washington recently enacted a law to require Internet websites, such as backpage.com, to maintain documentation that they have proved the age of the escorts advertised on their sites; g. The State of New Jersey criminalized human trafficking in 2005; and h. Sex trafficking of minors should be eliminated in conformity with federal laws prohibiting the sexual exploitation of children. 2. (New section) a. A person commits the offense of advertising commercial sexual abuse of a minor if the person knowingly publishes, disseminates, or displays, or knowingly

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causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor. b. degree. c. d. Nothing in this section shall preclude an indictment and conviction for any For the purposes of this section: other offense defined by the laws of this State. "Advertisement for a commercial sex act" means any advertisement or offer in electronic or print media, including the Internet, or a virtual private network, which includes either an explicit or implicit offer for a commercial sex act to occur in this State. "Commercial sex act" means any act of sexual contact or sexual penetration, as defined in N.J.S.2C:14-1, or any prohibited sexual act, as defined in N.J.S.2C:24-4, for which something of value is given or received by any person. Something of value can be anything deemed subjectively valuable for trade but for which the sex act would not occur. "Depiction" means any photograph or visual or printed matter. "Minor" means a person who is under 18 years of age. Photograph means a print, negative, slide, digital image, motion picture, or videotape, and includes anything tangible or intangible produced by photographing. Visual or printed matter" means any photograph or other material that contains a reproduction of a photograph. Know means a person acts knowingly or with knowledge when he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense. Indirect means someone such as a pimp causes a person to place the advertisement. Direct means the person placing the advertisement. A person who commits the offense of advertising commercial sexual abuse of a minor as established in subsection a. of this section is guilty of a crime of the third

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Implicit means that the advertisement implies an offer of sex in exchange for value instead of expressly stating that offer. Offer means a transaction does not have to consummated fro this statute to apply. 3. (New section) , c. , c. (C. (C. ) that the ) that the

a. It shall not be a defense to a violation of section 2 of P.L. b. It shall be a defense to a violation of section 2 of P.L.

defendant did not know the age of the minor depicted in the advertisement. defendant made a reasonable, bona fide attempt to ascertain the true age of the minor depicted in the advertisement by requiring, prior to publication, dissemination, or display of the advertisement, production of a document with a photograph such as a driver's license, in addition to a secondary form of identifications such as a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement and did not rely solely on oral or written representations of the minor's age, or the apparent age of the minor as depicted. c. d. The defendant shall prove the defense established in subsection b. of this The defendant shall maintain and, upon request, produce a record of the section by a preponderance of the evidence. identification used to verify the age of the person depicted in the advertisement. 4. 2. Section 2 of P.L.1994, c.133 (C.2C:7-2) is amended to read as follows: a. (1) A person who has been convicted, adjudicated delinquent or found not

guilty by reason of insanity for commission of a sex offense as defined in subsection b. of this section shall register as provided in subsections c. and d. of this section. (2) A person who in another jurisdiction is required to register as a sex offender and (a) is enrolled on a full-time or part-time basis in any public or private educational institution in this State, including any secondary school, trade or professional institution, institution of higher education or other post-secondary school, or (b) is employed or carries on a vocation in this State, on either a full-time

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or a part-time basis, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year, shall register in this State as provided in subsections c. and d. of this section. (3) A person who fails to register as required under this act shall be guilty of a crime of the third degree. b. For the purposes of this act a sex offense shall include the following: (1) Aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1 or an attempt to commit any of these crimes if the court found that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, regardless of the date of the commission of the offense or the date of conviction; (2) A conviction, adjudication of delinquency, or acquittal by reason of insanity for aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or (4) or subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); criminal sexual contact pursuant to N.J.S.2C:14-3b. if the victim is a minor; kidnapping pursuant to N.J.S.2C:13-1, criminal restraint pursuant to N.J.S.2C:13-2, or false imprisonment pursuant to N.J.S.2C:13-3 if the victim is a minor and the offender is not the parent of the victim; knowingly promoting prostitution of a child pursuant to paragraph (3) or paragraph (4) of subsection b. of N.J.S.2C:34-1; advertising commercial sexual abuse of a minor pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill); or an attempt to commit any of these enumerated offenses if the conviction, adjudication of delinquency or acquittal by reason of insanity is entered on or after the effective date of this act or the offender is serving a sentence of incarceration, probation, parole or other form of community supervision as a result of the offense or is confined following acquittal by reason of insanity or as a result of civil commitment on the effective date of this act;

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(3) A conviction, adjudication of delinquency or acquittal by reason of insanity for an offense similar to any offense enumerated in paragraph (2) or a sentence on the basis of criteria similar to the criteria set forth in paragraph (1) of this subsection entered or imposed under the laws of the United States, this State or another state. c. A person required to register under the provisions of this act shall do so on forms to be provided by the designated registering agency as follows: (1) A person who is required to register and who is under supervision in the community on probation, parole, furlough, work release, or a similar program, shall register at the time the person is placed under supervision or no later than 120 days after the effective date of this act, whichever is later, in accordance with procedures established by the Department of Corrections, the Department of Human Services, the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170) or the Administrative Office of the Courts, whichever is responsible for supervision; (2) A person confined in a correctional or juvenile facility or involuntarily committed who is required to register shall register prior to release in accordance with procedures established by the Department of Corrections, the Department of Human Services or the Juvenile Justice Commission and, within 48 hours of release, shall also register with the chief law enforcement officer of the municipality in which the person resides or, if the municipality does not have a local police force, the Superintendent of State Police; (3) A person moving to or returning to this State from another jurisdiction shall register with the chief law enforcement officer of the municipality in which the person will reside or, if the municipality does not have a local police force, the Superintendent of State Police within 120 days of the effective date of this act or 10 days of first residing in or returning to a municipality in this State, whichever is later; (4) A person required to register on the basis of a conviction prior to the effective date who is not confined or under supervision on the effective date of this act shall register within 120 days of the effective date of this act with the chief law enforcement officer of the municipality in which the person will reside or, if the municipality does not have a local police force, the Superintendent of State Police;

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(5) A person who in another jurisdiction is required to register as a sex offender and who is enrolled on a full-time or part-time basis in any public or private educational institution in this State, including any secondary school, trade or professional institution, institution of higher education or other post-secondary school shall, within ten days of commencing attendance at such educational institution, register with the chief law enforcement officer of the municipality in which the educational institution is located or, if the municipality does not have a local police force, the Superintendent of State Police; (6) A person who in another jurisdiction is required to register as a sex offender and who is employed or carries on a vocation in this State, on either a full-time or a part-time basis, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year, shall, within ten days after commencing such employment or vocation, register with the chief law enforcement officer of the municipality in which the employer is located or where the vocation is carried on, as the case may be, or, if the municipality does not have a local police force, the Superintendent of State Police; (7) In addition to any other registration requirements set forth in this section, a person required to register under this act who is enrolled at, employed by or carries on a vocation at an institution of higher education or other post-secondary school in this State shall, within ten days after commencing such attendance, employment or vocation, register with the law enforcement unit of the educational institution, if the institution has such a unit. d. (1) Upon a change of address, a person shall notify the law enforcement agency with which the person is registered and shall re-register with the appropriate law enforcement agency no less than 10 days before he intends to first reside at his new address. Upon a change of employment or school enrollment status, a person shall notify the appropriate law enforcement agency no later than five days after any such change. A person who fails to notify the appropriate law enforcement agency of a change of address or status in accordance with this subsection is guilty of a crime of the fourth degree.

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(2) A person required to register under this act shall provide the appropriate law enforcement agency with information as to whether the person has routine access to or use of a computer or any other device with Internet or virtual private network capability. A person who fails to notify the appropriate law enforcement agency of such information or of a change in the person's access to or use of a computer or other device with Internet or virtual private network capability or who provides false information concerning the person's access to or use of a computer or any other device with Internet or virtual private network capability is guilty of a crime of the fourth degree. e. A person required to register under paragraph (1) of subsection b. of this section or under paragraph (3) of subsection b. due to a sentence imposed on the basis of criteria similar to the criteria set forth in paragraph (1) of subsection b. shall verify his address with the appropriate law enforcement agency every 90 days in a manner prescribed by the Attorney General. A person required to register under paragraph (2) of subsection b. of this section or under paragraph (3) of subsection b. on the basis of a conviction for an offense similar to an offense enumerated in paragraph (2) of subsection b. shall verify his address annually in a manner prescribed by the Attorney General. One year after the effective date of this act, the Attorney General shall review, evaluate and, if warranted, modify pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the verification requirement. Any person who knowingly provides false information concerning his place of residence or who fails to verify his address with the appropriate law enforcement agency or other entity, as prescribed by the Attorney General in accordance with this subsection, is guilty of a crime of the fourth degree. f. Except as provided in subsection g. of this section, a person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.

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g.

A person required to register under this section who has been convicted of,

adjudicated delinquent, or acquitted by reason of insanity for more than one sex offense as defined in subsection b. of this section or who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S.2C:14-2 or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation. (cf: P.L.2007, c.219, s.2) 5. This act shall take effect immediately.

STATEMENT This bill would make it a third degree crime to commit the offense of advertising commercial sexual abuse of a minor. A person is guilty of this offense if he or she knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor. Third degree crimes are punishable by a term of incarceration of three-to-five years, a fine of $10,000, or both. Under the bill, a person convicted of the offense of advertising commercial sexual abuse of a minor would be required to register as a sex offender under Megans Law. The bill defines an advertisement for a commercial sex act" as any advertisement or offer in electronic or print media, including the Internet and a virtual private network , which includes either an explicit or implicit offer for a commercial sex act to occur in this State. A "commercial sex act" is defined as any act of sexual contact, sexual penetration, or other prohibited act that can endanger a minor for which something of value is given or received by any person. A "depiction" is defined as any photograph or visual or printed matter. A "minor" is defined as a person who is

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under 18 years of age. A photograph is defined as a print, negative, slide, digital image, motion picture, or videotape, and includes anything tangible or intangible produced by photographing, and visual or printed matter" is defined as any photograph or other material that contains a reproduction of a photograph. The bill specifies that it is not a defense to the offense of advertising commercial sexual abuse of a minor that the defendant did not know the age of the minor depicted in the advertisement. But it is a defense that the defendant made a reasonable, bona fide attempt to ascertain the true age of the minor depicted in the advertisement by requiring, prior to publication, dissemination, or display of the advertisement, a production of a document with a photograph such as a driver's license, in addition to a secondary form of identifications such as a marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement, and that the defendant did not rely solely on oral or written representations of the minor's age, or the apparent age of the minor as depicted. The defendant must prove the defense by a preponderance of the evidence. To invoke the defense under the bill, the defendant is required to produce for inspection by law enforcement a record of the identification used to verify the age of the person depicted in the advertisement. This bill is intended to address the problem of escort services whose advertisements include minors who are being sold for sex. This constitutes a form of sex trafficking and commercial abuse of minors. It is hoped that this bill would assist in eliminating sex trafficking of minors in a manner in conformity with federal law prohibiting the sexual exploitation of children. This bill is modeled after a recently enacted Washington state law that establishes the offense of advertising commercial sexual abuse of a minor.

Legislative History Prostitution on the internet is exploding in the guise of escort services. Responding to political and public outcry, the Internet website craigslist.com removed its escort section1 but another website with an escort section, backpage.com, has to date refused to do so2. The financial incentive to companies like Village Voice Media, parent company of www.backpage.com3, are in the millions of dollars PER MONTH.4 Investigative evidence points to the fact that escort advertising is nothing more than thinly veiled advertising for prostitution. In Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1268 (W.D. Wash. 2012) Seattle Police Department detective Todd Novisedlak said He has never contacted any person, juvenile or otherwise, posting advertisements on the escorts section of Backpage.com who was advertising for legitimate escort services. This bill will place the welfare of our children ahead of any organizations quest for profits. Specifically this bill targets advertising mediums such as backstage.com that profit from the sex trafficking of minors.

Chris Foresman, Craigslist shuts down adult services worldwide, Ars Technica, http://arstechnica.com/tech-policy/2010/12/craigslist-shuts-down-adult-servicesworldwide/ (last visited April 15, 2013) 2 Yasmin Vafa, Village Voice Needs a Reality Check, How Backpage is Anything But an Ally in the fight Against Human Trafficking, http://open.salon.com/blog/rights4girls/2012/05/15/village_voice_needs_a_reality_ch eck_how_backpage_is_anything_but_an_ally_in_the_fight_against_human_traffickin g (last visited April15, 2013) 3 Village Voice Media, http://en.wikipedia.org/w/index.php?title=Village_Voice_Media&oldid=517664851 (last visited Apr. 16, 2013). 4 From January till September 3, 2010, AIM Group estimated Craigslist had $30 million in adult services revenue. Annie Ross, An Illegal Rub?: Analyzing Craigslist's First Amendment Right to Host Adult Services Ads, 21 B.U. Pub. Int. L.J. 405, 445 (2012)

A Global Report on Trafficking in Persons launched by the United Nations Office on Drugs and Crime (UNODC) says the most common form of human trafficking (79%) is sexual exploitation, followed by forced labour (18%).5 Most egregious is the young ages of the victims, starting as young as 11. 6 The internet has compounded the problem. According to Atlantas Fulton County district attorney Paul Howard the internet has changed prostitution and law enforcement efforts: What we found is that there was a wholesale transformation from young girls standing on the streets to those same young girls being sold through Craigslist and other internet vendors . . . . That has put us in a terrible position, because much of the illegal sex activity now goes on almost undetected by the police. The numbers we believe remain the same, but what has happened is that they are now out of sight.7 Those that wish to prey on the children of our nation need not leave their house and expose themselves to law enforcement anymore. The harsh reality is that a simple click followed by a phone call, all from the safe confines of their home, is all that is required. By providing a forum for this interactive process internet sites like Backpage.com clearly facilitate prostitution, and as a result the sexual exploitation of children.
5

Kaieteur News Online, http://www.kaieteurnewsonline.com/2012/11/22/un-reporton-human-trafficking-exposes-modern-form-of-slavery/ (last visited April 9, 2013)(emphasis added). 6 According to a study conducted by Richard J. Estes and Neil Alan Weiner, Commercial Sexual Exploitation of Children in the U.S, Canada and Mexico, University of Pennsylvania (2001), available at http://caster.ssw.upenn.edu/~restes/CSEC.htm, the average age of entry into prostitution is 12 to 14 years for girls and 11 to 13 years for boys. 7 Annie Ross, An Illegal Rub?: Analyzing Craigslist's First Amendment Right to Host Adult Services Ads, 21 B.U. Pub. Int. L.J. 405, 413 (2012).

In a 2012 Rutgers Law Review note, Ione Curva proposes that consumers of prostitution, johns, be penalized as harshly as pimps. Her examination of states' prostitution laws shows a tendency against punishing consumers of prostitution, and it also demonstrates states' ignorance that demand drives prostitution and sex trafficking.8 Following this argument through, demand is facilitated through online advertising and those facilitators should be held accountable. This is not any different than someone who leases or otherwise permits someone to use a place for prostitution, which is a crime in New Jersey.9 The Washington bill that the New Jersey bill is modeled after passed unanimously in both state houses in 2012. The biggest hurdle to enforcement of this bill is the Communications Decency Act of 1996 (CDA), 509, 47 U.S.C.A. 230. In Backpage the court sided against the Washington statute stating that even distasteful protected speech is still protected. Id. at 1284. The primary goal of the CDA was to control the exposure of minors to indecent material.10 However, in an effort to promote the growth of the internet, Congress made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others.11 So while newspapers, television stations and radio stations may be liable for publication and distribution of obscene or defamatory third party material, internet computer services such as
8

Ione Curva, Thinking Globally, Acting Locally: How New Jersey Prostitution Law Reform Can Reduce Sex Trafficking, 64 Rutgers L. Rev. 557, 577 (2012) 9 N.J. Stat. Ann. 2C:34-1(a)(4)(g) 10 Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003) (citing Pub.L. No. 104-104, Title v. (1996)) 11 Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998)

Backpage.com may avoid that same liability.12 But as the dissent in Batzel asserts, CDA immunity should depend not on how a defendant's technology is classified, but on the defendant's conduct.13 Here the financial incentive to disregard the underlying trafficking of minors for prostitution is too great to not warrant an exception to the CDA. In addition to encouraging the growth of the internet, Congress wanted to encourage self-policing of the internet.14 It is clear from the investigations discussed in Backpage that the efforts to self-police are having little to no substantial effect.15 The court in Backstage, in interpreting the statute, found fault with the ambiguity of the word knowingly and whether it modifies the causing clause.16 Although that court searched legislative history to resolve the problem this bill has been modified accordingly on line 31, page 1 for purposes of clarity. Additionally, definitions of certain words at issue in Backstage have likewise been added in the definitions section of this bill. Indeed the court stops just sort of providing a clear instruction for the defendants in that case to do so.17 Requiring the collection of identification for the purpose of placing a classified ad in an adult section is not unreasonable. The main difficulty is to narrowly tailor the statute so as not to affect protected speech. But the act of
12 13

Id. Batzel, 333 F.3d 1018 at 1040 14 Id. at 1028 (citing 47 U.S.C.A. 230(b)(4)); See TELECOMMUNICATIONS ACT OF 1996, PL 104104, February 8, 1996, 110 Stat 56 15 Although Backpage.com screens adult ads prior to posting, ads depicting minors still appear online. Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1267 (W.D. Wash. 2012) 16 Backpage, 881 F. Supp. 2d at 1276 17 Id. at 1280 ([T]he statute might find itself on better constitutional footing if the statute included the definitions proffered by Defendants.)

collecting the identification is not a new concept. If a student wants to purchase software and even hardware that has been made available to students at www.academicsuperstore.com, for instance, s/he must provide proof of his/her academic status through fax or email. For purposes of this bill, requiring a photo identification to match against the depiction in the advertisement would be an important factor. While an advertiser can decide not to post a picture and provide a false identification document, it is reasonable to believe that a posting without a picture would be less profitable and would thus create some deterrence. Biometrics is another way to identify the age of an advertiser. Requiring fingerprints would be a sure way to deter underage sex trafficking. Fingerprints can be matched against a national database of missing and exploited children. Of course this crosses a Constitutional privacy line that may not be worth the cost or the time to defend. The only sure way to implement this option would be for the companies that sell the advertising to voluntarily implement it. The problem there is that one company will most assuredly always provide less stringent barriers to use their service because of the incredible financial incentive to do so. Legalizing prostitution could be an answer. If prostitutes are licensed and afforded protection of the law the power of the pimp and even the john is gone.18 Prostitutes cannot seek the protection of a police officer when a pimp or john has physically abused her for economic reasons: she needs the money. Legalizing the trade would open up the availability of all applicable labor laws, namely protection

18

Ione Curva, Thinking Globally, Acting Locally: How New Jersey Prostitution Law Reform Can Reduce Sex Trafficking, 64 Rutgers L. Rev. 557, 584 (2012)

against coercive employment relationships19 and of course child labor laws. In theory this all sounds like a panacea but in practice the facts are depressingly opposite. In the Netherlands, where supporters of legalized prostitution included womens organizations and social workers20, legalization has resulted in an increase of trafficked women due to the increase in demand.21 In Nevada the brothel owners have replaced the pimp with the added power that comes with the full protection of the state behind them.22 Worst of all, the illegal industry seems to have grown in states and countries that have legalized prostitution.23 In regulating the legal sale of dangerous substances like dynamite and deadly chemicals, or even alcohol, there is always the risk of illegal activity or of the regulated product falling into the hands of a child.24 But the balance between the good and bad to society weighs in favor of allowing the sale of these dangerous substances.25 In the case of prostitution advertising, and more specifically the dangers posed to minors in the form of sex trafficking, the bad outweighs any debatable good that comes from an argument from companies like Backpage touting

19 20

Id. at 585. Id. 21 Id. at 587. 22 Id. 23 Id. at 586. 24 Christopher Reynolds, Dynamite falls off back of transport truck, Vancouver Sun, http://www.vancouversun.com/Dynamite+falls+back+transport+truck/6949269/story. html (last visited April 19, 2013) 25 Jason Mick, Study: Alcohol is Deadliest Drug, More Dangerous Than Heroin, Daily Tech, http://www.dailytech.com/Study+Alcohol+is+Deadliest+Drug+More+Dangerous+Th an+Heroin/article20038.htm (last visited April 19, 2013)

the ability to better tackle the illegality through greater exposure through their advertising pages.26

26

Yasmin Vafa, Village Voice Needs a Reality Check, How Backpage is Anything But an Ally in the fight Against Human Trafficking, Salon, http://open.salon.com/blog/rights4girls/2012/05/15/village_voice_needs_a_reality_ch eck_how_backpage_is_anything_but_an_ally_in_the_fight_against_human_traffickin g (last visited April15, 2013)