Massachusetts’ Law Criminalizing Sex Trafficking is Constitutional, But Questions About Its Scope Remain Unanswered

Last week, in Commonwealth v. McGhee, the Massachusetts Supreme Judicial Court (“SJC”) addressed, for the first time, the constitutionality of the Massachusetts sex trafficking statute. Massachusetts criminalized sex trafficking in 2011. The state law bars “subject[ing], or attempt[ing] to subject, or recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing] or obtain[ing] by any means . . . another person to engage in commercial sexual activity . . . or caus[ing] a person to engage in commercial sexual activity,” or benefitting financially from any such conduct. G.L. c. 265, § 50(a). “Commercial sexual activity” is defined as “any sexual act on account of which anything of value is given, promised to or received by any person.”

In the case before the SJC, the allegations were that the two defendants had approached three women, taken photographs to advertise the women’s services on the website Backpage.com, and then driven the women to various locations to have sex with men. The defendants kept some or all of the money that the women received in exchange for engaging in sex acts. Both defendants were found guilty of trafficking persons for sexual servitude. (One defendant was also found guilty under a separate state law of deriving support from the earnings of a prostitute.)

On appeal, both defendants argued that the trafficking statute was unconstitutionally vague and overbroad. Due process requires that a criminal statute be sufficiently clear so that an ordinary person can understand what conduct is prohibited. A vague statute also raises constitutional concerns because it may permit arbitrary arrests and prosecutions. On the other hand, a court will generally seek to avoid invalidating a statute on constitutional grounds if it can find a reasonable way to interpret the statute that avoids raising due process concerns.

In McGhee, the defendants argued that because the state trafficking statute does not include a requirement of force or coercion (a requirement contained in the federal sex trafficking statute), it penalizes any assistance to a consenting adult prostitute. The SJC easily rejected this argument, observing that the statute requires “knowing” conduct by the perpetrator and therefore focuses not on the means used (e.g., force or coercion), but on the perpetrator’s intent. The Court held that this intent requirement made the statute sufficiently clear to avoid the risk of arbitrary arrests and prosecutions. The SJC likewise rejected the defendants’ claim that the statute criminalized free association between prostitutes and family members or friends; the SJC noted that the statute only bars “undertaking specified activities that will enable or cause another person to engage in commercial sex activity,” and that such conduct is outside the free association protections of the First Amendment. Finally, the SJC concluded that the term “commercial sexual activity,” which the defendants had argued was unconstitutionally overbroad, refers to “any sexual act for value that involves physical contact.”

The decision in McGhee does not spend a lot of time wrestling with the nuances of these difficult constitutional issues. In responding to each challenge, the decision recites basic legal principles and then quickly declares that the statute is sufficiently clear to overcome due process concerns. It is perhaps notable that when the SJC invited additional briefing on whether the statute was constitutional, no one – other than the defendants – stepped in to argue that the statute should be struck down. Instead, both the Attorney General’s office and a coalition of organizations committed to eradicating trafficking and commercial sexual exploitation submitted briefs in support of the statute. And, indeed, as the one of the amicus briefs points out, Massachusetts was late to adopt a specific state criminal law prohibiting human trafficking. The SJC’s cursory analysis is consistent with an awareness that questions about these statutes have already been resolved by the many other state with analogous laws on the books.

Future defendants can still raise specific vagueness challenges, arguing that the statute is vague as applied to their conduct. The prohibitions on “transporting” and “harboring” individuals for the purpose of engaging in commercial sexual activity seem particularly ripe for further challenges. For example, does the prohibition on knowingly “transporting” someone for the purpose of engaging in commercial sexual activity preclude giving a ride to an adult friend who is a prostitute when she is on her way to work? Does the prohibition on “harboring” someone for purpose of engaging in commercial sexual activity convert some “johns” into traffickers, therefore exposing them to the harsher penalties of the trafficking statute? These and many other questions remain unanswered. For now, the SJC has answered only the most basic question: the state trafficking statute is, as a whole, constitutional.