South Dakota: An Aggressive Prosecutorial Response
South Dakota is not the place one expects to find fourteen-year-old girls being sold for sex on the internet. The grim reality, however, is that sex trafficking is a growth industry and it has taken root even here in rural America. I became the United States Attorney for South Dakota in 2009, and at that time there had never been a case of sex trafficking prosecuted in the history of our state. Over the past four years in South Dakota, three men have received life sentences for sex trafficking in federal court, two more were sentenced to thirty years or more in prison, and more than a dozen men were prosecuted federally for attempting to purchase sex from a trafficking victim.
The economics of sex trafficking provide a clear illustration of the law of supply and demand. The traffickers profit from selling their victims to an eager market. Law enforcement has aggressively prosecuted the supply side of this equation, the traffickers, and in some areas this effort has produced significant results. But it is also important to address the demand side of the sex trafficking equation. In my experience, those who seek to purchase sex from trafficking victims often have a great deal to lose if they are caught by law enforcement, and thus we can significantly reduce the demand for trafficking victims in a community by also aggressively prosecuting these individuals. This article is a brief overview of our efforts to prosecute those seeking to purchase sex from trafficking victims in South Dakota.
The First Sting:
In 2011, South Dakota law enforcement set up an internet sting operation targeting men purchasing sex from children on the internet. Fictitious twin fourteen-year-old girls and an eleven-year-old girl were advertised on the internet as being available to perform sex acts for money. Three men responded to the advertisements and exchanged numerous emails and phone calls with an undercover agent, describing in great detail the sex acts they wanted to perform on the young girls. When they arrived at a local house with money in hand expecting to meet the trafficked children, the men were instead greeted by law enforcement.
Two of the defendants went to trial and were convicted by separate juries. The defendants subsequently filed motions with the trial court, asking that the convictions be dismissed. They argued that the federal sex trafficking statute they were charged with violating, 18 U.S.C. Section 1591, did not apply to “customers”. The district court was persuaded by the defendants’ arguments that the federal statute did not apply because the legislative history showed that Congress had failed to discuss the importance of prosecuting the demand side of a human trafficking enterprise. In fact, the legislative history revealed that Congress paid little attention not only to the demand side of human trafficking, but even to domestic sex trafficking generally when they passed the law in 2000. My office appealed the judgments of acquittal to the U.S. Court of Appeals for the Eighth Circuit. We argued that the plain language of the statute included those who seek to obtain sex from a trafficking victim, and that criminal trafficking enterprises cannot exist without both supply and demand. In a landmark decision released in January 2013, the appellate court reversed the district court and reinstated the convictions. This decision was a victory for law enforcement, as it is now clear under federal law that if you attempt to purchase sex with a trafficking victim that you are also a human trafficker.
Prosecuting Demand at the Sturgis Motorcycle Rally:
The South Dakota decision from the Eighth Circuit provided my office with an additional weapon to attack sex trafficking. Armed with this new tool, South Dakota law enforcement turned their focus to the 2013 Sturgis Motorcycle Rally in South Dakota. A coordinated team of state and federal authorities once again set up a sting operation targeting individuals interested in purchasing sex with children. Many men responded to the ads, nine men of whom we charged in federal court for responding to internet advertisements offering sex with girls between the ages of twelve and fifteen. One of the men even asked for a ten-year-old girl but settled for a twelve-year-old on the condition that he could take photos and did not have to use a condom. When this individual arrived at a gas station parking lot on his 2012 Harley Davidson expecting to pick up a child for sex, he was instead met by agents from the South Dakota Division of Criminal Investigation and arrested. He now faces a federal mandatory minimum sentence of fifteen years.
We conducted a similar law enforcement operation last month during the 2014 Sturgis Rally. The number of individuals who responded to the ads were down significantly, a good result, but we are still prosecuting five individuals in federal court who responded to the advertisements. It should also be noted that South Dakota law enforcement conducts these operations not only during the Rally, but throughout the year. Our federal prosecutions have included prominent members of the community, such as a physician and an air traffic controller. Our citizens are now well aware of the dramatic ramifications for trying to purchase sex from a trafficked child.
Conclusion:
There are good people deeply committed to ending sex trafficking who disagree with our approach in South Dakota. I want to be clear that we do not seek 10-year mandatory minimum sentences in all of our cases. In every case, we look at the criminal history of the defendant and the nature of his conduct during the commission of the crime to determine whether a mandatory minimum sentence is appropriate. I also recognize that other prosecutors, in areas much larger than mine, are devoting all of their resources to rescuing children from actual sex trafficking operations. I appreciate their budget constraints and commend the important work they are doing with limited resources.
I do not, however, accept the criticism that I often hear about South Dakota federal prosecutors acting like “vice cops”. Let me be clear, we prosecute individuals who are on the internet looking to pay money to a stranger in order to have sex with a young child in their care. I offer no apology for prosecuting that type of trafficker to the fullest extent of the law. This strategy works in South Dakota and it can work elsewhere.
Written by United States Attorney Brendan Johnson
Brendan Johnson was nominated by the President as the 40th United States Attorney for the District of South Dakota and was confirmed unanimously by the United States Senate on October 15, 2009. Johnson serves as South Dakota’s chief federal law enforcement officer and supervises the prosecution of all federal crimes and the litigation of civil matters in which the United States government has an interest. At the request of Attorney General Eric Holder, Johnson chaired the Native American Issues Subcommittee from 2009-2013 and was one of fifteen U.S. Attorneys selected to serve on the Attorney General’s Advisory Committee from 2012-2013. He has prioritized the prosecution of cases involving violence against Native American women and children and human trafficking. Johnson has overseen the prosecution of more than 25 human trafficking cases in five years, including three life-sentences and the federal prosecution of numerous men who attempted to purchase sex from trafficking victims. Brendan is married to Dr. Jana Johnson and they have four children. He is a fifth-generation South Dakotan and the son of United States Senator Tim Johnson and Barbara Johnson. He is a graduate of the University of South Dakota and the University of Virginia School of Law.