Bill Description: House Bill 118 would expand the definition of "sex trafficking" in a manner likely to ensnare individuals engaged in consensual (and currently lawful) conduct.
Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
Current Idaho law defines "sex trafficking" as a type of "human trafficking" in which "commercial sexual activity is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained eighteen (18) years of age."
This definition serves to protect minors and to recognize that "force, fraud, or coercion" are distinctly different from voluntary activity.
House Bill 118 would amend numerous sections of Idaho Code to expand the definition of sex trafficking in a manner that is likely to ensnare individuals engaged in consensual (and currently lawful) conduct.
Current law says "interstate trafficking in prostitution" happens when a person "imports persons into this state, or who exports persons from this state, for the purpose of prostitution. …"
House Bill 118 would expand this definition to apply to any case where a person "imports a person or persons into this state, or who exports a person or persons from this state, for the purpose of prostitution or engaging in commercial sexual activity as defined in section 18-8602, Idaho Code. …"
It should be noted that "imports" would apply to simply giving someone a ride or purchasing a bus or airline ticket, so giving someone a ride can now constitute "interstate trafficking in prostitution." In addition, the reference to "commercial sexual activity" expands the scope of the prohibition far beyond actual prostitution.
"Commercial sexual activity" is defined as "sexual conduct or sexual contact in exchange for anything of value, as defined in section 18-5610(2)(c), Idaho Code, illicit or legal, given to, received by, or promised to any person."
Section 18-5610(2)(c), Idaho Code, says, "'Anything of value'" includes, but is not limited to, a fee, food, shelter, clothing, medical care or membership in a criminal gang. …"
With these definitions in mind, we must look back at what the change proposed by House Bill 118 could mean:
If a young man gave a young woman a ride from Ontario, Oregon, to Boise, Idaho, ("imports a person into this state"), bought her lunch ("anything of value"), and they ended up having sex ("sexual conduct or sexual contact"), he could be charged with "interstate trafficking in prostitution," which is "a felony punishable by imprisonment for a period of not less than two (2) years nor more than twenty (20) years."
Using the broad definitions currently applied to "commercial sexual activity," it is quite possible that the term could include actions such as a nude model using a platform like OnlyFans, where subscribers pay for access to content. Is this not potentially "sexual conduct" in exchange for "a fee"?
This would certainly be the case under House Bill 118, because it would amend Section 18-8602, Idaho Code, to define a "sexually explicit performance" as "an act or show, whether public or private, that is live, live-streamed, photographed, recorded, or videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest."
Idaho law says "'sex trafficking' includes all forms of commercial sexual activity, which may include … sexually explicit performance."
Under this definition, paying a fee to view a "sexually explicit performance" voluntarily uploaded to an online content distribution platform, would potentially be "sex trafficking" under Idaho law.
One example of this is House Bill 118 amending Section 18-5602, Idaho Code, so it would say, "Any person who induces, compels, entices, or procures another person to engage in acts as a prostitute or in commercial sexual activity as defined in section 18-8602, Idaho Code, shall be guilty of a felony punishable by imprisonment for a period of not less than two (2) years nor more than twenty (20) years."
The verbs used in this paragraph are not at all equivalent. According to the Merriam-Webster dictionary, "compel" means "to drive or urge forcefully or irresistibly" or "to cause to do or occur by overwhelming pressure." "Entice," on the other hand means "to attract artfully or adroitly or by arousing hope or desire." The first term carries a connotation of compulsion while the latter does not.
Remembering that "commercial sexual activity" can include posting a nude video to an OnlyFans account, this statute would make it a felony for someone to artfully encourage the posting of such a video.
We see a similar problem with how House Bill 118 would amend Section 18-5603, Idaho Code. Here it would say, "Any person who knowingly receives money or any object of value to procure a prostitute or engage in commercial sexual activity as defined in section 18-8602, Idaho Code, shall be guilty of a felony punishable by imprisonment for a period of not less than two (2) years nor more than twenty (20) years."
In other words, "Any person who knowingly receives money or any object of value" to post a nude video to an OnlyFans account would potentially be guilty of a felony.
There are other similar issues with the language used in existing Idaho Code and the ways in which these problems would be compounded by House Bill 118. It is already a crime to force or coerce someone into having sex. It is already a crime to force or coerce someone into performing provocatively on video.
House Bill 118 would broaden the definition of "sex trafficking" to such an extent that voluntary, consensual, and currently legal activity would be swept under the term, and innocent people could be harmed in the process.
We must never assume that government will use the authority we grant it wisely or judiciously. Rather, we must always be on guard against the possibility of government overreach. House Bill 118 would create a scenario ripe for overreach and the prosecution of individuals whose behavior was neither coercive nor exploitative.