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Ignorance Is Not Bliss: Second Circuit Refuses to Read Additional Knowledge Requirement into Child Sex Trafficking Statute
United States v. Thompson, 896 F.3d 155 (2nd Cir. 2018)

By: JESSICA SKOCIK

On a summer night in Brooklyn, a little girl turned fourteen years old. Ten minutes later, NYPD officers arrested her for street prostitution on the “Penn Track”—a dangerous section of Pennsylvania Avenue in East New York—after she offered to have sex with them for $80.

This was one of many transactions, M1 (minor one) engaged in at the behest of Alvaun “Legit Pimp” Thompson after meeting him at the age of thirteen. Thompson, a 26-year-old committed to becoming the world’s best pimp, branded M1 with his first name on her left breast—a signal that she belonged to his “stable” of prostitutes.

Thompson’s “stable” also included fifteen-year-old M2, who was similarly branded with “L.P.”—which stands for “Love Pimpin”—on her face near her right eye. In addition to ordering the girls to solicit customers on the street, Thompson advertised them on Backpage.com, calling M1 “Kandi” and M2 “Chocolate.”

Between April 2013 and January 2015, Thompson controlled M1 and M2 with a combination of psychological and emotional manipulation, threats of violence, and physical abuse to coerce the girls to engage in prostitution in New York, Maryland, and Pennsylvania. Thompson used feigned romance as a tool to manipulate his minor victims, regularly having sex with M1 and M2 himself, sometimes recording the sexual acts on his cell phone and forcing them to declare their love for him. Thompson impregnated both girls and continued to prostitute them even while they carried his unborn children. Thompson beat M2 while she was five months pregnant, lacerating her lip so severely that it was still bleeding thirty minutes after police responded to the call.

Thompson Coerces Victims From Prison

The reach of Thompson’s “pimp hand” was indeed long; even while he was incarcerated on Riker’s Island for a home invasion robbery, he regularly telephoned M1 and M2 forcing them to prostitute themselves and deposit money into his commissary account at the jail. While Thompson was incarcerated, M1 told him over the phone that she was fourteen years old. Thompson continued to prostitute her, even coercing her into leaving a residential rehabilitation program for girls who have been victims of sex trafficking. With the help of a co-conspirator, Thompson used a ruse to contact M1 at the facility and lured her back to “get [him] money.”

Law Enforcement Shuts Down Trafficking Scheme

In December 2014, a nineteen-year-old woman who had been working as a prostitute for the defendant contacted law enforcement officers. The woman told the officers that Thompson was prostituting M1 and M2 from a motel in the Bronx and reported that he was beating them with a wire coat hanger. NYPD officers arrested Thompson in the motel, where they found him with M1 and M2, but soon released him after seizing his cell phone in connection with the arrest. On that phone, they found a video made earlier that month of M1 performing oral sex on Thompson. In January 2015, working with NYPD investigators, the FBI arrested Thompson on the federal charges that led to his conviction.

Thompson was charged and convicted in the Eastern District of New York on nine counts, including three counts of sex trafficking of minors and one count of sexual exploitation of a child through the production of child pornography. Thompson was sentenced to thirty years imprisonment, receiving an enhanced penalty for sex trafficking an individual who had not attained the age of fourteen years at the time of the offense under 18 U.S.C. §1591(b)(1).

What Did Thompson Have to Know?

On appeal to the Second Circuit, Thompson challenged his sex trafficking conviction under 18 U.S.C. § 1591(a) and (b)(1), arguing that because the indictment did not allege that he knew M1 was under the age of fourteen, his conviction should be reversed. The court, relying on principles of statutory construction, rejected Thompson’s challenge.

First, Thompson argued that applying the enhanced penalty established by section 1591(b)(1) requires proof not only that he knew that M1 was under eighteen years of age, but also that he knew or recklessly disregarded that M1 was under fourteen years of age. The court disagreed. Reading the text of the statute literally, the court found that section 1591(a) contains a single mens rea requirement regarding the age of the victim: “know[ledge], or … reckless disregard of the fact … that the person had not attained the age of 18 years.” “The text,” the court continued, “demands no additional mens rea to support the increased punishment imposed in section 1591(b)(1) for an offense concerning a victim under age fourteen. The indictment here alleged that one of the two minor victims was in fact under the age of fourteen and that Thompson knew she was under 18.” This, the court found, was sufficient to impose the enhanced penalty.

Second, Thompson argued that even if the statutory text of 1591(b)(1) itself did not require knowledge or reckless disregard of the fact that a victim was under the age of fourteen in order to trigger the fifteen-year mandatory minimum, the court, as it had in other criminal statutes, should read such a requirement into this statute. The Second Circuit declined Thompson’s invitation to do so. The court explained that because, section 1591 is subdivided with 1591(a) providing the substantive elements of sex trafficking and 1591(b)(1) mandating sentencing enhancements if certain conditions are met, 1591(b)(1) did not require knowledge that the victim was under fourteen. Thus, the court held that imposition of the sex trafficking statute’s enhanced penalty for trafficking victims under fourteen years of age requires proof that the defendant knew that the victim was under eighteen years of age, but not that the defendant knew or recklessly disregarded that the minor victim was under fourteen years of age. The mere fact that a victim is under fourteen is sufficient to trigger the fifteen-year mandatory minimum.

Further, the court found, consistent with prior Second Circuit opinions, that when a statute concerns the sexual exploitation of children, imposition of strict criminal liability with regard to the age of a victim is not out of the ordinary and held that such liability applied here. The court found no common law tradition that crimes involving sexual offenses against minors invariably require a specific mental state with respect to the victim’s age. As a result, the Second Circuit affirmed Thompson’s thirty-year sentence.

The Mandatory Minimum is Here to Stay

Despite traffickers like Thompson hunting for loopholes in the sentencing enhancements for trafficking minor victims, courts have consistently applied the fifteen-year mandatory minimum based solely on the fact that victims are under the age of fourteen, especially when traffickers have had a reasonable opportunity to observe them. Despite the controversy surrounding mandatory minimum sentences, courts seem to agree that the fifteen-year mandatory minimum for sex trafficking of children under the age of fourteen is here to stay.

About the author

Jessica Skocik

Jessica Skocik

Jessica is a third-year law student at Notre Dame Law School where she is pursuing a program of study in Global Law. Jessica holds bachelor’s degrees in Crime, Law, & Justice and Sociology from Penn State University where she graduated as a Schreyer Honors Scholar. At Notre Dame, Jessica is an Article Submissions Editor on the Journal of International and Comparative Law, a Fellow for the Center for Civil and Human Rights and competed as a Barrister on the Notre Dame Moot Court Trial Team. Before law school, Jessica served as an English Teaching Assistant in Johor, Malaysia as a member of the 2014 Fulbright Program, worked as an Adolescent Care Specialist with adjudicated youth in St. Louis, and volunteered as a Court Appointed Special Advocate. During law school, Jessica worked for the Community Activism Law Alliance in Chicago where she assisted clients on immigration-related issues and interned at the Department of Justice’s Criminal Division in the Child Exploitation and Obscenity Section. Jessica will continue to work with vulnerable populations as a Legal Extern with the National Immigrant Justice Center this fall. Her ideal legal job would involve removing barriers to restitution, improving human trafficking victims’ access to civil remedies, and influencing human rights policy through strategic litigation and advocacy.