The oldest profession. The debate over whether prostitution should be legal or criminal has raged on for centuries. Some argue that it amounts to government interference with one’s own body and is based on a puritan view of sexuality. Advocates of legalized prostitution argue that when such conduct is criminal, sex workers are forced to work in the shadows, increasing the likelihood of physical and sexual violence, by pimps and patrons alike. Instead of criminalizing consensual sex work, the government should regulate the profession like alcohol or marijuana.

Others argue that the overwhelming majority of those who engage in prostitution are not engaging in such behavior consensually. Prostitution is inherently exploitive, demeaning, and contributes to the modern slave trade. Advocates of criminalizing prostitution recognize that it is simply the product of sex trafficking, which when perpetrated, violates basic human rights and deprives victims of every shred of personal freedom.

Alaska has taken the latter view.  Alaska law recognizes that both sex and human trafficking are forms of modern day slavery and should be punished as such. Prostitution, although illegal, is not the target of significant punishment. Prostitution is a class B misdemeanor, the lowest level crime available, and the law provides prostitutes with immunity from prosecution if the prostitute reports a violent crime (including sex trafficking) to law enforcement. AS 11.66.100(c).

Although some enter the prostitution profession voluntarily, Alaska law generally views those who engage in prostitution, especially children, as being trafficked, and as victims of a serious crime. See H.B. 359, 2012 Leg., 27th Sess. (Alaska 2012) (Governor’s letter of transmittal seeking passage of HB 359).

Prostitution

In the United States, all states prohibit prostitution except for Nevada. In Nevada, legal prostitution must follow specific guidelines and can occur only in a licensed house of prostitution (N.R.S. 201.354, 2011). Of course, Nevada is the exception, not the rule.

In Alaska, a person commits the crime of prostitution if they engage in, agree to, offer to engage in, or offer a fee for sexual conduct. AS 11.66.100(a). The gravamen of the offense is the offer or agreement to exchange sex for a fee. The actual payment of the fee is not required. See Garibay v. State, 658 P.2d 1350 (Alaska App. 1983).The act is complete when an offer is extended or an agreement is made. Although the fee is typically money, it can be anything that has value. Cash consideration is not required. See commentary, Senate Journal Supp. No. 47, at 109. (June 12, 1978); Muse v. United States, 522 A.2d 888, 891 (D.C. App. 1987).

Sexual conduct includes all forms of sexual intercourse, as well as cunnilingus, fellatio, and masturbation of one person by another. AS 11.66.150(3). The law is gender-neutral. Although prostitution laws historically criminalized only women who engage in prostitution, and not men, such laws violate equal protection and are unconstitutional. See Plas v. State, 598 P.2d 966 (Alaska 1979).

The crime itself is relatively minor. As noted, the crime is a class B misdemeanor. Provided that the prostitute is an adult, the statute punishes both the prostitute and the patron the same – up to 90 days in jail. AS 12.55.135(b). If the prostitute is a minor (under 18 years old), and the patron is at least 21 years old, the patron is guilty of a class C felony offense. AS 11.66.100(e). The law provides for an affirmative defense if the patron took reasonable steps to verify the prostitute was over the age of 18. AS 11.66.100(b). Note that this affirmative defense is similar to the affirmative defense available to a defendant charged with sexual abuse of a minor. AS 11.41.445(b).

Sex Trafficking

Although Alaska criminalizes both the act of selling sex and buying sex, the real focus is on commercial sexual activity. Modern criminal statutes recognize that many prostitutes are victims of sex trafficking and not eager, willing participants. Pretty Woman® is a Hollywood story, not real life. Alaska’s statutory scheme is designed to interrupt the commercial sex trade with a particular focus on persons who exploit children by inducing them to engage in prostitution. Alaska grades sex trafficking into four degrees, ranging from an unclassified felony for first-degree sex trafficking to a class A misdemeanor for fourth-degree sex trafficking.

Sex Trafficking in Alaska

Those who force others into the sex trade are guilty of a class A felony. Historically, this was referred to as pandering – the procuring or forcing another person to engage in prostitution. The panderer, the person who uses manipulation, violence, or threats to force another person to engage in prostitution against their will, was frequently referred to as a pimp. A pimp can also refer to a person who solicits or procures a prostitute for a patron. See Black’s Law Dictionary, Pimp (7th Ed. 1999). Although the terms may help identify the different actors of sex trafficking, the criminal code does not use them.

Figure 13.2 – Alaska Criminal Code – AS 11.66.110(a)

Alaska largely codifies pandering as sex trafficking in the first degree. See Figure 13.2. First-degree sex trafficking prohibits a person from inducing or causing another person to engage in prostitution through the use of force. AS 11.66.110(a). Recall that force requires some sort of violence, coercion, or the threat of violence. AS 11.81.900(28). Thus, a defendant must use violence (physical or sexual), restraint, or confinement, or the threat of violence, restraint, or confinement to be guilty of first-degree sex trafficking. The crime is a class A felony offense, punishable by up to 20 years imprisonment. AS 11.66.120(c).

If the trafficked person is younger than 20 years old, the inducement need not involve force or coercion. If a person causes a person under the age of 20 to engage in prostitution, regardless of force, the person is still guilty of first-degree sex trafficking. AS 11.66.110(a)(2). Sex trafficking under this provision is aggravated to an unclassified felony offense. AS 11.66.120(d). Thus, a pimp who causes a 19-year-old to engage in prostitution using drugs, alcohol, or psychological manipulation (as opposed to physical violence) faces up to 99 years imprisonment. AS 12.55.125(i). This section is one of strict liability. Unlike the misdemeanor crime of prostitution (where a patron may assert a reasonable mistake of age affirmative defense), there is no reasonable mistake of age defense to first-degree sex trafficking.  AS 11.66.110(b); Bell v. State, 668 P.2d 829 (Alaska 1983).

Individuals under the legal custody of another person (a ward or an incompetent person) are treated similar to young victims; a person who causes a person in their legal custody to engage in prostitution, irrespective of force, is guilty of first-degree sex trafficking. AS 11.66.110(a)(3). This provision is intended to reach persons who induce legal wards, incompetent persons, or others in their legal custody to engage in prostitution.

Finally, although a sex-trafficker likely forces a victim to engage in prostitution to make money, compensation is not a required element of the offense. The panderer’s motivation for engaging in sex trafficking is irrelevant for purposes of sex trafficking. The government is not required to prove the defendant received payment, compensation, or something of value from the prostitute.

Prostitution Enterprise

Sex trafficking in the second degree prohibits anyone from owning, managing, or supervising a prostitution enterprise. It also includes the surrounding conduct related to a prostitution enterprise. AS 11.66.120. A prostitution enterprise is an arrangement in which two or more persons agree to engage in a prostitution business – that is, a business designed to render sexual conduct in return for a fee. AS 11.66.150(a). The statute targets the organized prostitution apparatus, but does not include a “place of prostitution,” which is discussed below. The arrangement need not be formal. It can be simple consensual arrangements between a pimp and a prostitute, an agreement between two prostitutes, or larger-scale activities. See commentary, Senate Journal Supp. No. 47, at 108. The enterprise need not be established as an ongoing enterprise. See Gariby v. State, 658 P.2d 1350 (Alaska App. 1983). “Start-up” prostitution businesses qualify. See id.

The law also punishes those who facilitate the enterprise. Those who directly solicit patrons for a prostitute (e.g., a pimp) are punished to the same extent as those who operate or manage the enterprise. AS 11.66.120(a)(2). Those who facilitate travel for prostitution are equally guilty.^[1] AS 11.66.120(a)(3). This last provision is intended to specifically target the sex tourism industry in Alaska. See S.B. 12, 2006 Leg., 24th Sess. (Alaska 2006).

Those who enable, assist, or facilitate the prostitution enterprise, but who are not involved in the direct solicitation of patrons or sex tourism, are guilty of a low-level felony – sex trafficking in the third degree. AS 11.66.130(a)(4). A person’s assistance must be done with the intent to promote prostitution. This protects the cab driver who unwittingly drives a person to a brothel. The cab driver would not be acting with the intent to promote a prostitution enterprise. On the other hand, if the cab driver receives a kickback for each person brought to the brothel, knowing it was a prostitution business, then the cab driver is guilty of sex trafficking. The cab driver acted with the intent to promote prostitution and engaged in conduct that facilitated a prostitution enterprise. See commentary, Senate Journal Supp. No. 47, at 108.

A Place of Prostitution

Unlike sex trafficking in the second degree, a person commits the crime of sex trafficking in the third degree if the person receives compensation for running a place of prostitution. AS 11.66.130(a)(2)(A). The legislative commentary indicates the provision is aimed primarily at the “Madam” but applies to any person who maintains a place of prostitution.  A place of prostitution means “any place where a person engages in sexual conduct in return for a fee.” AS 11.66.150(2). The term includes physical locations like a bawdy house, a brothel, or an apartment, but also includes such places as a boat, trailer, or van. The structure need not be affixed to the land, nor be part of a prostitution enterprise. See commentary, Senate Journal Supp. No. 47, at 108.

An essential element of the crime is that the defendant received compensation from a prostitute. The prostitute must pay something of value to the defendant for their service. Compensation does not include any payment of reasonably apportioned shared expenses. AS 11.66.145(1). This definition protects prostitutes who may live together and share living expenses. See S.B. 54, 2017 Leg., 30th Sess. (Alaska 2017).

The defendant must also act with the specific intent to promote prostitution. Recall, as a specific intent offense, the defendant must have the conscious objective to bring about the result (prostitution). AS 11.81.900(a)(1). This protects the unsuspecting landlord who unwittingly rents an apartment to a prostitute or pimp. Further, even if the landlord knew the tenant was a prostitute, the landlord is only liable if the government can prove that they acted with the intent to facilitate unlawful sexual activity. See commentary, Senate Journal Supp. No. 47, at 108.

Third-degree sex trafficking also prohibits a person who causes another person over the age of 20 to engage in prostitution. Evidence that the defendant used force to cause the victim to engage in prostitution is not required. AS 11.66.110(a)(2). The statute expressly excludes the patron of the prostitute. (Of course, if the patron causes the prostitute to engage in sexual activity without their consent, the patron is guilty of sexual assault, not sex trafficking.) In essence, this provision covers all non-forcible sex trafficking of adults – when the victim is induced into prostitution through manipulation, not violence or threats.

Those who receive compensation knowing that the money was derived from prostitution are guilty of third-degree sex trafficking if it was received with the intent to promote prostitution. AS 11.66.130(a)(3). This would cover a person who receives money from a prostitute knowing that the money was derived from prostitution. The purpose of the provision is to inhibit the economic, not sexual, aspects of prostitution. See e.g., Johnson v. State, 501 P.2d 762, 767-68 (Alaska App. 1972) (interpreting former statute AS 11.40.300).

Misdemeanor sex trafficking (sex trafficking in the fourth degree) prohibits a person from receiving compensation for knowingly aiding or facilitating a prostitute (as opposed to a prostitution enterprise). This prohibits a cab driver who knowingly directs patrons to an individual prostitute for compensation or a hotel clerk who assists a guest in finding an individual prostitute. See generally S.B. 157, 2007 Leg., 25th Sess. (Alaska 2007) (minutes from May 4, 2007 Senate Judiciary Committee hearing). This statute targets those who assist the prostitute and not the prostitution enterprise. Although still criminal behavior, it is penalized as a misdemeanor, similar to the crime of prostitution. Compare AS 11.66.135(b) and AS 11.66.100(b).

Human Trafficking

Human trafficking is a form of modern-day slavery. It involves the exploitation of people through force, coercion, threats, and deception. It not only includes sexual exploitation but also labor exploitation. The Alaska Legislature has enacted two degrees of human trafficking: first- and second-degree.

Human trafficking in the first degree occurs if a person induces or causes another person to engage in sexual conduct, adult entertainment, or labor by force or deception. AS 11.41.360. Sexual conduct includes any sexual activity and is largely duplicative of sex trafficking. AS 11.41.360(b)(3). Adult entertainment includes sexually explicit performances, such as performing in a strip club or exotic dancing. AS 23.10.350(f)(1)-(3). A person who is forced to engage in exotic dancing against their will is the victim of human trafficking. AS 11.41.360(a). Finally, the law prohibits labor exploitation. Labor exploitation includes domestic servitude, restaurant work, janitorial work, sweatshop factory work, and similar menial labor.