At least for now. I had not been following Commonwealth v. Garafalo, but it is an interesting case in the latest battles over "trafficking creep" and the Massachusetts Supreme Court recently weighed in. As Janie Chuang explained trafficking creep (along with exploitation creep) back in 2014:
The vagaries of this expansive definition have allowed diverse advocates to opportunistically appropriate the “trafficking” label, such that what trafficking is – is very much in the eye of the beholder. The definitional muddle has also inspired promiscuous conflation of legal concepts, heated battles over how best to address the problem, and an ever-changing landscape of actors sharing in the fervor to abolish that thing we call “trafficking.”
The defendants in Garafalo responded to an online advertisement ostensibly offering sexual services for a fee (the advertisements were actually part of a sting operation). Interestingly, the advertisements went to great pains to depict the offerors as adult women not being trafficked. For example, the ads contained photos of adult women and described the women as "independent", "meaning — as clarified in one text message exchange between the ostensible sex worker and one of the defendants — that the woman was not affiliated with a "pimp" or "boyfriend.""
In addition, the ads contained a "legal disclaimer" (!), which reserved each woman's "right not to enter into any arrangement . . . for any . . . reason at [her] sole discretion."
A grand jury returned indictments charging each defendant with engaging in sexual conduct for a fee and with trafficking of persons for sexual servitude, under the sex trafficking statute. The defendants filed motions to dismiss the sex trafficking charges. A superior court judge allowed the motions and the Appeals Court affirmed. The state supreme court affirmed the dismissal of the trafficking charges and remanded for further proceedings on the remaining charges.
As stated by the court:
This case presents the question whether an individual who responds to an advertisement for commercial sexual services ostensibly from an adult sex worker purporting to be acting independently, selects from among the types of sexual services offered by the sex worker, agrees to pay the price set by the sex worker for the selected services, and goes to a location determined by the sex worker has engaged in "the crime of trafficking of persons for sexual servitude" in violation of G. L. c. 265, § 50 (sex trafficking statute or statute). We conclude that such an individual has not.
Over at Reason, Elizabeth Nolan Brown has some excellent commentary:
“That this was even a matter of debate shows how absurdly expansive the definition of "sex trafficking" has become. When US states started passing laws against sex trafficking, the idea was to stop criminals from coercing people into prostitution. States already had laws against things like pimping, pandering, facilitating prostitution, & brothel keeping that allowed authorities to go after sex-trade middlemen. even when no force or coercion was used. They also already had laws that barred paying for sex. No one needed new sex trafficking laws to go after any of these things. But in the past 25 years, we've seen expansion after expansion of these laws”.