Sex Trafficking Legislation Under the Scope of the Harm Principle and Moral Panic

Lesley Rae Hamilton

Volume 67, Issue 2, 531-64

On May 20, 2014 the House of Representatives passed the Stop Advertising Victims of Exploitation Act of 2014 (“SAVE Act”). The SAVE Act would have amended the federal criminal code to prohibit “advertising commercial sex acts involving a minor or an individual engaged in such an act through force, fraud, or coercion.” In so doing, the SAVE Act would provide grounds for legal action against Internet content hosts for crimes—like sex trafficking—resulting from the postings of third-party users.

This Note applies the social theories of the harm principle and moral panic to evaluate the means and ends proposed by the SAVE Act. Using multiple constructions of the harm principle, this Note argues that the SAVE Act is unjustified because it does not directly or indirectly prevent the harm of sex trafficking from occurring, it inappropriately places culpability on Internet content hosts for the criminal acts of others, and it creates new, additional harms to society. Through the lens of moral panic, this Note argues that the SAVE Act is an injudicious reaction to interest group driven moral panic surrounding the misplaced and exaggerated occurrence of sex trafficking through Internet classified sites.

This multi-tiered analysis is particularly important in evaluating legislation like the SAVE Act that seeks to broadly expand the reach of the federal criminal code in response to public outcry. In such cases, there is increased risk that the loud message of the wrong to the victims projected by politicians, activists, and the media will consume well-reasoned lawmaking. Rather than imposing unjustified criminal liability, this Note proposes to harness the innovative and collaborative potential of the Internet to crowd-source solutions to a better scheme for monitoring online forums and prosecuting sex traffickers. This solution contemplates deconstructing the ways criminals propagate harm through online forums and increasing the resources available to dedicate to the cause to devise an approach that actually minimizes sex trafficking and holds the proper actors culpable..

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