01/31/19 -- HCS HB 397 -- Provide Affirmative Defense to Prostitution for Minors
HCS HB 397, sponsored by Mary Elizabeth Coleman (Republican - District 97), should have been an easy "yes" vote for me. Instead, it was a reluctant one. This bill's primary stated purpose was to assure that victims of sex trafficking are treated as victims, not offenders. That's a principle I can easily get behind. However that's not all this bill does, and that made the choice more difficult.
Prior to this bill, Missouri law indicated that a person under the age of 18 could assert an affirmative defense to the charge of prostitution if they could demonstrate they were acting under coercion. Unfortunately, many victims of sex trafficking cannot prove such coercion. This bill changes the standard, and allows an affirmative defense to prostitution simply if one can demonstrate they were under age at the time. This is a very good improvement. In addition, this bill specifies that coercion is also an affirmative defense for those over the age of 18, recognizing that not all victims of trafficking are children. If the bill had stopped there, this would have been an easy "yes" vote for me, with no reservations or major concerns. But it didn't.
In addition to the good provisions mentioned above, this bill also adds several more elements to the definition of a "criminal street gang," with the intention of using the enhanced penalties for gang activity to target sex trafficking rings. Given that many of the ringleaders of such trafficking rings are hard to prosecute directly due to lack of evidence, using street gang laws against them would make it easier to go after them. Unfortunately, that flexibility comes with severe unintended consequences.
By changing the definition of "criminal street gang" to include such offenses as promoting prostitution, the bill leaves open the very real possibility of sex trafficking victims being subject to being labeled members of a street gang -- the very organization that has been exploiting them. As a result, tough on crime prosecutors could use the threat of these new enhanced penalties to twist the arms of trafficking victims to testify against their abusers. That's not something I want to encourage.
Furthermore, the new provisions could allow prosecutors to define groups of people as criminal street gangs when it is clearly inappropriate - for example three college kids visiting a brothel while wearing fraternity colors could get the entire fraternity labeled as a gang. That could subject any member of the frat with enhanced penalties for any crimes they might at some point be charged with, even if completely unrelated to sex trafficking or the original three members.
During bill perfection, Representative Deb Lavender (Democrat - District 90) introduced amendment 0962H02.05H to address such issues. That amendment simply removes the additional sections relating to criminal street gangs and left the remainder of the bill intact. Many other Democrats spoke in favor of the amendment, but the bill sponsor was not convinced that the concerns regarding potential prosecutorial abuse were warranted, and refused to support removing the gang provisions. While I did not speak about it on the floor, I did speak directly with a few of my Republican colleagues about the issue, and found that I was not completely alone in supporting the amendment. Unfortunately, while a few of us did vote in favor of the amendment, support mostly came from Democrats, whose numbers were insufficient to prevail. The amendment failed on a voice vote.
Also during perfection, a few Democrats expressed concern with a different amendment offered by Representative Phil Christofanelli (Republican - District 105) that would remove an exception from the "criminal street gang" definition currently applied to members of a labor union. While I maintain there are many serious problems with the street gang statutes, I did support that amendment (0962H02.03H) as I do not believe it is appropriate to carve out an exception in a criminal law for members of a particular type of organization. The law should always be applied as equally as possible.
Unfortunately, the remainder of the perfection process concluded without any other changes to the street gang provisions of the bill. That left us with the choice of an up or down vote. As I stated previously, had the bill simply been about providing affirmative defenses, this would have been an easy choice. But with the addition of the troublesome language regarding gangs, the choice became much tougher. I very nearly voted against the final bill.
Ultimately, however, I had to weigh the real-world impact of this bill as a whole. While I have no doubt that the gang provisions will be abused by overzealous prosecutors, the number of people negatively effected by such abuse is likely to be fairly low, probably amounting to a handful of isolated incidents. It is also something that can be adjusted fairly easily with future legislation, or over in the Senate when they discuss the bill on their end. So while I am not pleased that these provisions remain, I don't believe their potential negative impact will exceed the measurable good provided by the affirmative defenses this bill allows. If this bill becomes law, there will be fewer people convicted of non-violent offenses, and fewer young people will have their lives negatively effected by the criminal justice system. For these reasons, I ultimately voted "yes" on this bill.