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Friday, July 19, 2024 | Back issues
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Sex Trafficker May Have to Pay Punitive Damages

(CN) - An Alaska woman can seek $20 million in punitive damages from the man she says used crack cocaine to ply her into the sex trade when she was just 15, the 9th Circuit ruled on Monday.

Josef Boehm pleaded guilty in 2004 to conspiracy to engage in human trafficking, admitting that between 2001 and late 2003 he had recruited several minors into prostitution by giving them crack. One of Boehm's victims, Miranda Ditullio, later sued him in Anchorage federal court, seeking more than $5 million in compensatory damages and up to $20 million in punitive damages under the Trafficking Victims Protection Act (TVPA).

Ditullio claimed that Boehm gave her crack every day in the fall of 2002. Thereafter the 15-year-old lived with Boehm, and he regularly "enticed her with drugs to perform sexual acts on others, including his co-conspirators and other female victims."

"Ditullio also claims that she became pregnant in 2003, and that Boehm could be the father of the child (who was taken into state custody due to Ditullio's drug addiction)," according to the ruling. (Parentheses in original.)

Passed by Congress in 2000, the TVPA is meant to "ensure just and effective punishment of traffickers, and to protect their victims," but the District Court disagreed with Ditullio's argument that it also permits those victims to recover punitive damages.

In an interlocutory appeal to the 9th Circuit, U.S. District Judge John Sedwick sent that and a related question as to whether the TVPA's civil action provision applies retroactively.

Ruling 2-1 on the issue of first impression Monday, the federal appeals court in Anchorage found that victims can seek punitive damages from sex traffickers, but that the provision "cannot be applied retroactively to conduct that occurred before its effective date."

Accepting Ditullio's expansive reading of the TVPA based largely on the abhorrent nature of the crime, a three-judge panel of the 9th Circuit remanded the case for trial.

"Punitive damages are generally appropriate under the TVPA civil remedy provision because it creates a cause of action for tortious conduct that is ordinarily intentional and outrageous," Judge Betty Fletcher wrote wrote for the panel. "A plaintiff bringing a civil action under the TVPA must prove that the defendant has engaged in human trafficking, which Congress described as 'a contemporary manifestation of slavery.' Such conduct obviously meets the common law standards for award of punitive damages because it is both intentional and outrageous. Moreover, permitting punitive damages is consistent with Congress' purposes in enacting the TVPA, which include increased protection for victims of trafficking and punishment of traffickers.

"We therefore hold that punitive damages are available ... Ditullio should be permitted to present her case for such damages before a jury."

If the case does go to a jury, Ditullio will only be able to talk about a few days of her year-long ordeal. The civil remedy provision of the TVPA became law on Dec. 19, 2003. Boehm was arrest on Dec. 22, 2003.

To apply the provision to Boehm's conduct prior to Dec. 19, 2003 would wrongly "impose new burdens and consequences on Boehm for pre-enactment conduct," the court found.

"Whether Boehm engaged in conduct with Ditullio that violates the TVPA after December 19, 2003 is a factual question to be resolved on remand," Fletcher wrote.

In a partial dissent based on a close reading of the TVPA's legislative history, Judge Consuelo Callahan argued that the act does not allow for punitive damages, and that the majority had overlooked the fact that Congress had "considered and declined to adopt language authorizing punitive damages."

"I dissent because, regardless of the desirability of allowing for punitive damages under [the act] Congress chose not to do so, and we should abide by its decision," Callahan wrote.

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