By: RENEE PIERSON
Eugene Wearing, a 55-year-old Wisconsin male, relied on the same tactics that many human traffickers use to manipulate a vulnerable teenage girl to engage in prostitution. In February of 2014, Wearing attended a basketball game at Superior Middle School in northern Wisconsin where he ran into KV, the 15-year-old daughter of a friend. Wearing knew that KV’s family was having financial problems and, as she was leaving the basketball game, he approached her with a business proposition: KV could earn some extra money for her family by providing sexual services to “dates” that Wearing would help to arrange.
KV was initially unsure about Wearing’s proposition, but he persisted. The next month, KV went to the waterpark with Wearing and his kids when he again broached the subject. This time, he also insisted that KV prove her skills to him before he would arrange for her to perform sex acts on other men for money.
That evening, Wearing took KV to a Superior hotel and she performedoral sex on him. Wearing also made preliminary arrangements for KV to have sex with a client at the hotel that same evening. However, after observing police at the hotel for an unrelated matter, Wearing and the client decided that it was too risky, and called off the “date” for that night.
A few days later, Wearing met KV to take partially-clothed photos of her that he later posted on Craigslist. On another occasion, Wearing picked KV up from school to show her an apartment in Superior where he planned to have her meet clients. Wearing arranged for another man to have sex with KV at the apartment, but the client did not show up.
During this time, Wearing sexually assaulted KV multiple times, telling her that he was testing her sexual skills. When KV indicated that she had changed her mind about participating in Wearing’s plan, Wearing threatened her and would not let her leave the apartment.
Arrest, Trial, and Sentence
KV, no longer wanting to participate in Wearing’s business venture, eventually told her mother what had happened, and they reported Wearing’s conduct to the police. Wearing was subsequently arrested and charged in state court with a host of crimes, including multiple counts of sexual assault of a child.
In December of 2014, Wearing was indicted in federal court on one count of human trafficking under 18 U.S.C. 1591(a). Following a stipulated bench trial, Wearing was found guilty of sex trafficking and sentenced to 15 years in federal prison.
No Commercial Sex Act Took Place
Wearing appealed his conviction under 18 U.S.C. 1591, arguing that the government was required to prove—and did not prove—that KV had actually engaged in a commercial sex act. In relevant part, § 1591 criminalizes the recruitment of a person knowing that they are a minor “and will be caused to engage in a commercial sex act.” Wearing and the Government argued over whether Congress’ use of the future tense of the passive voice in the phrase “will be caused to engage in a commercial sex act” implies that a completed sex act is a necessary element of the crime.
The Seventh Circuit joined numerous other circuits in affirming that § 1591 does not require the completion of a commercial sex act for the defendant to be found guilty.1 The court’s holding on this issue relied on both the language of the statute and case law from other circuits. According to the Seventh Circuit, Congress likely “used the passive voice as a way of signaling that the defendant was not entitled to a pass if, instead of personally causing the victim to engage in a sex act, the defendant allowed a client or a codefendant to do so.”2
Furthermore, the Seventh Circuit denied Wearing’s argument that the use of the future tense implied that Congress intended the completed act to be a necessary element of the crime. Instead, it found that the more logical reading of the future tense is that it describes the acts that the defendant intends to take. Thus, the crime is completed once the defendant knowingly recruits a minor knowing that he or she “will be caused to engage in a commercial sex act.” The court explained that there is no reason to believe that Congress intended a conviction to turn on the defendant’s success in carrying out a completed commercial sex act.
Wearing completed his role under the statute by recruiting KV to engage in a commercial sex act and the clients’ failures to show up for the scheduled transactions did not diminish Wearing’s criminal liability for his own actions.
Affecting Interstate Commerce
Wearing also argued that his conviction should be overturned because the government failed to prove that his recruitment of the victim (as opposed to the scheme as a whole) affected interstate commerce. He argued that within the structure of §1591, the adverbial phrase “in or affecting interstate commerce” modifies the list of specifically prohibited actions that follow.3 According to Wearing, the government must prove that the prohibited action (here, recruitment) was in or affecting interstate commerce.
The Seventh Circuit disagreed, finding that the commerce requirement is not linked to only one element of the offense, but to the scheme as a whole. As part of the trial, Wearing stipulated that the Craigslist advertisement—an integral part of his scheme to prostitute KV—affected interstate commerce. Thus, he could not successfully argue that the effect of his actions on interstate commerce is so distant from his illegal activity that his actions do not amount to a federal crime.
Upholding the Purpose of the Trafficking Victims Protection Act
On appeal, Wearing attempted to avoid conviction by parsing the words of the § 1591 in a way that would undermine Congress’ purpose in enacting the law. According to Wearing’s interpretation, he should have avoided conviction under the TVPA because his attempts to prostitute a minor did not result in a completed commercial sex act and because he recruited his victim in person, rather than online or via telephone. In this case, the 7th Circuit upheld the need to interpret a statute in a way that conforms to Congress’ goals in enacting the statute. Moving forward, Courts should continue to be mindful of the purpose behind the TVPA when addressing challenges to the statute’s language.
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1 See, United States v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 2014) (accepting evidence that defendant recruited victims “to engage in commercial sex acts,” even though those acts never materialized, as sufficient to support a section 1591 conviction); United States v. Willoughby, 742 F.3d 229, 241 (6th Cir. 2014) (concluding that section 1591 offense was complete when defendant left victim at client’s home knowing she would be caused to perform a sex act); United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) (reading section 1591 to require completed sex act as essential element “erases the meaning of ‘will be’ from” the statute); United States v. Jungers, 702 F.3d 1066, 1074 (8th Cir. 2013) (conviction under section 1591 does not require “engaging in a sex act”); United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010) (explaining that section 1591’s knowledge element means that, in committing offense, defendant plans to force the victim to engage in a commercial sex transaction); United States v. Corley, 679 Fed. Appx. 1, 6 (2d Cir. 2017) (rejecting contention that section 1591 requires government to prove victim actually performed commercial sex act).
2 Wearing, 865 F.3d at 556.
3 “Whoever knowingly [i]n or affecting interstate . . . recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person . . . [k]nowing, or in reckless disregard of the fact . . . that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act shall be punished.” 18 U.S.C. 1591(a).