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A sentencing enhancement for committing a sexual act can be applied to child sex trafficking charges, the Ninth Circuit held on Tuesday. So can enhancements for undue influence, even if the victims entered into the arrangement voluntarily.
The case involved Tamrell and Tynisha Hornbuckle, sisters who ran a prostitution ring with both underage and adult women. They were eventually caught as part of an FBI sting and pled guilty to two counts of child sex trafficking. They challenged the application of the two enhancements to their sentences.
In district court, and on appeal, the sisters claimed that the undue influence enhancement could not be applied because the minors were willing participants. They also argued that applying the commission of sex acts by minors enhancement was double counting -- applying an enhancement for an act which was already an element of the crime.
Sexual Trafficking Presumes Future Sexual Activity
Is it possible to have sex trafficking without the sex? Yes, according to the Ninth Circuit. Sex trafficking of minors doesn't require that the victim actually engage in a sexual act. It's sufficient if the victim will be coerced into prostitution in the future.
The statute's criminalization of trafficking children who "will be caused to engage in a commercial sex act" indicates that the crime can be complete before any actual sexual acts have taken place. Therefore, the commission of a sex act enhancement is applicable. The Sixth, Fifth, and Eight Circuits have come to similar conclusions.
Undue Influence Can Be Found Even When Acts Are Voluntary
Extrapolating from the district court's analogy to statutory rape, the Hornbuckles had argued that the undue influence finding was based upon the faulty belief that minors were always incapable of consenting to sex. Under such logic, the Hornbuckles argued, an enhancement of undue influence would always apply when a minor is caused to engage in prostitution.
This, however, was not the basis for the court's determination, the Ninth found. The undue influence stemmed not from the victim's age, but from considerable evidence of the sisters' use of violence and intimidation to control the girls.
Even if the minors had been willing participants, that would not have prevented a finding of undue influence. Voluntary acts, the Ninth held for the first time, don't preclude a finding of undue influence, even if the victims had engaged in prostitution before or began working voluntarily.