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Keren-Paz & Levenkron on Strict Liability of Clients to Victims of Sex-Trafficking

By Lawrence Solum

Tsachi Keren-Paz and Nomi Levenkron (Keele University, School of Law) have posted Clients' Strict Liability Towards Victims of Sex-Trafficking (Legal Studies, Vol. 29, pp. 438-463, 2009) on SSRN. Here is the abstract:

In this paper, we argue that clients who purchase commercial sex from victims of forced prostitution should be strictly liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. Fairness and equality demand that clients would compensate victims, even if one refuses to acknowledge that purchasing sex from a prostitute who might be a victim is a faulty behaviour. Clients profit from the activity of purchasing commercial sex, so fairness demands they will bear the costs they impose on victims who are unable to refuse the contact. Strict liability will bring about desirable distributive results along the lines of sex, class and race. Imposing strict liability will ensure consistency of the English law of trespass and it is supported by several instrumental considerations.

Such strict liability could be grounded in battery, despite the appearance of apparent consent by the victim to sell sexual services to the client. This is so for two main reasons. First, the extreme coercion operated on the victim renders her consent void so that an innocent third party cannot rely on the appearance of consent. Secondly, the client should be considered as having constructive notice with respect to the trafficker?s coercion. Our argument is supported by ? but does not hinge upon accepting ? the insight that the client?s behaviour is ultimately faulty.

Full post as published by Legal Theory Blog on July 15, 2010 (boomark / email).