Clients’ strict liability towards victims of sex-trafficking

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. ‘Why do you come here? Is it possible - is it possible you don’t understand how horrible it is? Your medical books tell you that every one of these women dies prematurely of consumption or something; art tells you that morally they are dead even earlier. Every one of them dies because she has in her time to entertain five hundred men on an average, let us say. Each one of them is killed by five hundred men. You are among those five hundred! If each of you in the course of your lives visits this place or others like it two hundred and fifty times, it follows that one woman is killed for every two of you! Can’t you understand that? Isn’t it horrible to murder, two of you, three of you, five of you, a foolish, hungry woman! Ah! isn’t it awful, my God!' (Anton Chekhov, A Nervous Breakdown).