Did Judge Garaufis Change the Legal Definition of ‘Commercial Sex’ By His Jury Instruction in US v. Raniere?

The sex trafficking of Nicole was Count #6 in the conviction of Keith Alan Raniere. Sex trafficking was charged against Raniere and Allison Mack pursuant to 18 U.S.C. §1591.

The charges arose from an incident on May 31, 2016, when Nicole, blindfolded and tied to a table, was accosted by a woman, later identified as Camila, a first-line DOS master, who performed oral sex on her as Raniere watched.

Mack was the alleged commercial beneficiary of the sex trafficking. She arranged the rendezvous with Nicole and Raniere.

Section 1591 normally involves sexual exploitation for commercial or financial value.  In this case, no money changed hands. According to the prosecution’s theory, the commercial benefit was Mack’s elevated status with Raniere.

In his pending appeal, Raniere’s attorneys have argued, in effect, that Judge Nicholas G. Garaufis committed a “prejudicial error of law” when he gave the jury a wrongful instruction on commercial sex, over the defendant’s objection, which allowed the jury to find commercial sex without finding that something was given of commercial or financial value in exchange for the sex act.

Raniere’s defense wanted the judge to use the standard or federal “pattern instruction” for commercial sex, as published in Modern Federal Jury Instructions, by Leonard Sand. According to an online publication of the US governement, “Pattern jury instructions are formulated by committees of judges and practicing lawyers and approved by the circuit for use in criminal cases.”

The pattern instruction for commercial sex, as published in Modern Jury Instructions, by Sand, states, “A ‘commercial sex act’ is any sex act on account of which anything of value is given to or received by any person.”

The US Attorney for the Eastern District of New York wanted a non-pattern jury instruction that read, “A commercial sex act is any sex act of which anything of value is given to or received by any person because of such sex act…  A thing ‘of value’ need not involve a monetary exchange and need not have any financial component.”

The changes from the pattern instruction were twofold.

The definition of commercial sex act changed from “on account of’ to “because of’.

Added to the pattern instruction was “need not involve a monetary exchange and need not have any financial component.”

The defense wanted the judge to instruct the jury as follows:

“A ‘commercial sex act’ is any sex act ON ACCOUNT OF which anything of value is given to or received by any person.”

The prosecution wanted the judge to say:

“A ‘commercial sex act’ is any sex act of which anything of value is given to or received by any person BECAUSE OF such sex act….  A THING ‘OF VALUE’ NEED NOT INVOLVE A MONETARY EXCHANGE AND NEED NOT HAVE ANY FINANCIAL COMPONENT.”

The judge agreed with the prosecution and gave the non-pattern instruction to the jury:

The Law

The Trafficking Victims Protection Act (“TVPA”) addresses sexual exploitation for profit as an economic activity.  In enacting §1591, Congress recognized that human trafficking, particularly of women and children in the sex industry, “is a modern  form of slavery, and it is the largest manifestation of slavery today.”

The sex trafficking legislation was intended to address sexual exploitation for profit, not merely the mistreatment of women and children.

The law itself uses the language “on account of: “Commercial sex act” is defined in the law [section 1591(e)(3)] as “any sex act on account of which anything of value is given to or received by any person.”

Raniere’s attorneys argued that by giving a limitless definition of “value” without cause and effect, or a causal relationship, between the thing of value received for the sex act and the sex act, the court misled the jury in a prejudicial way.

Sex trafficking changed from a sex act for money or some definite commercial profit to a law where if anyone, anywhere, gets anything of value, it is sex trafficking.

The prosecution argued that because the sex act in question involved first-line masters (Mack and Camila), made Raniere happy, and advanced Mack’s status, it was, therefore, a commercial sex act.

The prosecution argued that an email exchange between Mack and Raniere written before the sex trafficking of Nicole, about another “slave” of Mack’s, India Oxenberg, established the cause and effect for Nicole’s sex trafficking act.

Raniere’s defense argued that the sex trafficking law was intended to regulate an economic class of activities. Commercial sex acts are economic in nature. Nicole’s sexual incident was not an economic activity.

Nicole Story

Mack recruited Nicole into DOS in early 2016. Nicole’s collateral included an untruthful letter claiming that her father sexually abused her, a damaging letter about an ex-boyfriend, a sexually explicit video, and numerous nude photos.

Mack told Nicole about DOS, explaining membership involved a lifetime vow of obedience and that women would get branded. Mack did not disclose that Raniere was the leader of DOS.  Nicole was a member for 14 months.

Mack ordered Nicole to initiate contact with Raniere. On May 31, 2016, Nicole went to see him at Mack’s command.  He brought Nicole to a house, blindfolded her, then brought her by car to another house, restrained her on a table, and spoke to her, as another unknown person [Nicole later learned it was Camila] performed oral sex on her.

Raniere did not use physical force to coerce Nicole into this sex act. Nicole testified that she complied because she feared the release of her collateral. Afterwards, Nicole had a sexual relationship with Raniere for about a year.  Mack did not know about her relationship because Raniere said it would make Mack jealous, Nicole testified.

The government argued that the May 31 incident was commercial because Mack received certain privileges such as “maintaining a spot in the first line” by soliciting women into DOS.

The defense argued that “maintaining a spot in the first line of DOS cannot qualify as a ‘thing of value’ in the context of commercial sex services….  it does not follow that Mack received ‘anything of value’…  on account of Nicole’s sexual encounter…  on May 31, 2016. The government conflated the supposed benefits that Mack received as a result of being a first line DOS master with economic benefits that must be shown to have flowed directly from the May 31st sex act.,,, Any benefits Mack received as part of DOS were not directly or indirectly related to the May 31, 2016 episode.”

The government offered evidence that Nicole engaged in the May 31 sex act as a result of coercion or force, including a fear that her collateral would be released if she refused to submit.

The defense, on appeal, argued that she was not coerced since “immediately after the May 31st incident, Nicole wrote a journal entry that signaled no regrets about her sexual experience with ‘Keith,’ declaring that she was done ‘fighting the growing process’ and was ‘excited about embracing the vow and working with Keith.’”

The defense further argued that Nicole complained about many things, but did not complain about the May 31 sexual incident.

Nicole’s emails with Mack, which were made available in the case, do not suggest Nicole felt coerced into sexual acts or convey concern about the release of her collateral if she declined sexual activity with Raniere.

The defense argued that a nearly 30-year-old woman would not have remained silent about an incident where she was “allegedly taken against her will, blind-folded, tied down, and subjected to non-consensual oral sex at the direction of her friend and mentor [when]… she regularly complained to Mack about…  less consequential matters. Nicole’s subsequent lengthy and private [intimate] relationship with [Raniere] belies the government’s claim that she feared ‘serious harm.'”

While Nicole testified at trial that she feared the release of her collateral if she left DOS, she did not testify that she feared the release of her collateral if she did not engage in sexual activity with Raniere.

The defense argued that the judge’s jury instruction “diluted the causal relationship between act and value and that the jury was left with “colloquial definitions of ‘because of’ rather than the legal standard of a causal relationship.”

Raniere’s appellate attorney, Joseph Tully, tried to show the difference between “on account of,” which is the language in the law, and “because of.”

Tully wrote, “while it is not incorrect to say, ‘because of the rain, the man wore a hat,’ the rain cannot…  did not have a quid pro quo relationship with the man putting on the hat.”

“On account of,”  underscores a quid pro quo relationship. ”Because of,” means only a “connection to,”

Tully wrote “Under the instruction the court gave, if a husband has sexual relations with his wife and, as a result of being contented and happy because of the experience, treats his work staff to lunch the next day, then the act between husband and wife the night prior is a ‘commercial sexual act’ because the employer’s staff received the value of lunch ‘because of’ the sex act the employer had with his wife…

“if the husband goes to work the next day and… merely gives his secretary a compliment, his HR director a ‘high five,’ or gave a nice, reassuring smile to his administrator, indicating some level of favor, the sex act from the night before with his wife would still be a ‘commercial sexual act’ because of the obviated quid pro quo between the sex act and anything received by anyone…”

“It is not the vagueness of the concept of value that is disputed here, it is the vagueness of the required causal relationship.”

By making the instruction on ‘value’ ignore any requirement for a quid pro quo or to require any connection to the value someone received to the sex act, the judge’s “instruction amounted to a mandate to the jury to convict on this count.”

In short, the defense’s argument is that the judge’s non-pattern jury instruction allowed the jury to find commercial sex without finding that something was given of commercial or pecuniary value in exchange for the sex act.

During the government’s summation, the prosecution used the non-pattern instruction to craft a narrative of what could be considered commercial sex. Knowing in advance that the judge was going to use their version of the definition of commercial sex, over the pattern jury instruction approved by the judiciary, the prosecution was able to argue that sex in exchange for a hope of social advancement was commercial sex because social advancement has value.

Raniere is seeking the verdicts concerning sex trafficking be reversed.

If it is not reversed, is this case a precedent that can be used in the future to expand the prosecution of sex activities as sex trafficking, by eliminating the need for sex trafficking to be economic in nature and that it only need be less definite, even vague benefits enjoyed by anyone?

For instance, Mack supposedly received a benefit by making Raniere happy. But could it be argued that Mack herself was a victim of Raniere, having produced collateral herself and that her actual benefit was that her own collateral was not released. In other words, she acted out of coercion precisely the same as Nicole.

It might be extortion, it might be assault, but absent a financial benefit, is it really sex trafficking?

This is the question and the US Court of Appeals for the Second Circuit will get to decide.

Stay tuned.