Prostitute or Trafficking Victim — What’s the Difference in IL?

Human trafficking is a horrifying thing and years of advocacy and efforts to increase the public’s awareness of the problem have finally made it an issue that has captured people’s attention.

Still, there is some confusion about what difference there is legally between a sex trafficking victim and a prostitute.

If you’re unsure, then read on to find out more about the difference between trafficking and prostitution in Illinois, the Trafficking Victims Protection Act, and how trafficking victims can have their prostitution conviction vacated in court.

Prostitution in Illinois

Prostitution in Illinois is defined as offering, agreeing to, or performing sexual acts for something of value. It’s usually prosecuted at a Class A misdemeanor unless it is committed within the vicinity of a school, in which case it gets upgraded to a Class 4 felony. Being convicted a second time (or more) of prostitution is also a Class 4 felony.

If convicted the first time of felony prostitution, it’s up to the discretion of the judge to place the defendant on probation for up to 24 months. Probation conditions often include community service and drug testing.

If a minor is arrested for prostitution, then they will not be subject under Illinois law to prosecution. Instead, they will be placed in temporary protective custody as authorities investigate their circumstances and try to identify if they are a victim of abuse, neglect, or human trafficking.

Sex Trafficking vs. Prostitution: What is the Difference?

There’s a lot of misinformation out there about human trafficking – what it is and what it isn’t. Prostitution can be a part of sex trafficking but not every case of prostitution is considered sex trafficking. There are two factors that differentiate these two things. They are:

A Third-Party Beneficiary

Sex trafficking has to involve a third party who benefits from the transaction aside from the person receiving the sexual act. The third-party could be a pimp but it can also be a family member, friend, or boyfriend.

It Involves Force, Fraud, and Coercion

Sex trafficking, when it involves adults over 18, is done through force, coercion, or fraud. If the person found performing sex acts is under 18, then no force, coercion, or fraud is necessary. It’s not prostitution if a child is recruited, enticed, harbored, provided, transported, or obtained for the purpose of sex trafficking.

While prostitution is often used interchangeably with sex trafficking, it’s important to understand that those involved in trafficking have no choice. The term prostitution implies there is a choice, but the reality is that the victim had no choice at all.

The Illinois Trafficking Victims Protection Act

As of 2019, a new law in Illinois makes it easier for the victims of human trafficking to sue those responsible for trafficking them.

Victims of the sex trade are also allowed under this law to sue the person who recruited them and anyone who profits from sex trade activities as well as anyone who hurts a victim of sex trafficking.

Under this law, not only can the victim sue, but the agent, legal guardian, an organization, or court appointee can sue on behalf of the victim. The government is also allowed to sue.

If the case is won, then the victim is entitled to relief. That means that they can receive compensation for:

• Monetary loss
• Death, disease, mental and emotional harm, and personal injury
• Wages they are entitled to by law for work they performed

There is a 25-year statute of limitations to sue for harm under this law, starting from the date the perpetrator caused it. However, the clock won’t start ticking down on the statute of limitations until the victim is aware that what they suffered is abuse and also knows the identity of the perpetrator.

Vacating a Prostitution Conviction

Another thing available to those who have been trafficked is a motion to vacate a prostitution conviction. This allows for those who are victims of human trafficking to file a motion in court to have any previous convictions removed from their records.

When the court vacates a conviction, they are admitting that an error was made in the original conviction. To be successful in having a convicted vacated, the victim must show evidence that their conviction was the direct result of being trafficked.

Victims of human sex trafficking deserve justice and they also deserve a fresh start. A motion to vacate a prostitution conviction to keep it from following them paired with the Illinois Victims Protection Act allows those who have suffered through trafficking to have a real chance at starting their life anew and moving on to better things.

About the Author: Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes. His work has been recognized by Avvo, Expertise, National Trial Lawyers, and others, and he has been featured on countless news outlets for his experience and knowledge in criminal law.