The Offences of Human Trafficking and Procuring a Child for Sexual Activity in Australia

by Sonia Hickey & Ugur Nedim
Ghislane Maxwell

Former socialite Ghislaine Maxwell has been sentenced to 20 years in prison for helping deceased financier Jeffrey Epstein to sexually abuse young girls. 

In December 2021, Ms Maxwell was convicted of a range of offences, including:

  • Sex trafficking, 
  • Conspiring to entice individuals under the age of 17 to travel in interstate commerce with intent to engage in illegal sexual activity, 
  • Transporting an individual under the age of 17 with intent to engage in illegal sexual activity, and
  • Conspiring to commit sex trafficking of individuals under the age of 18.

The offences are roughly equivalent to the those of human trafficking, procuring a child for unlawful sexual activity and grooming a child for unlawful sexual activity in Australia

The sentence means the 60-year old will now spend most, if not all, of the rest of her life behind bars. 

Not punished as a ‘proxy’ 

Jeffrey Epstein committed suicide in 2019 while on remand, awaiting his own trial on sex trafficking charges. Two of the guards tasked with monitoring Mr Epstein at the Metropolitan Correctional Center are now facing federal charges for not properly supervising him before his death. 

Prior to sentencing, Ms Maxwell’s defence lawyers had argued for leniency, citing her own traumatic childhood (she is the daughter of media mogul Robert Maxwell). 

They also asserted their client was being unfairly punished because Jeffrey Epstein escaped trial. 

They had asked for a maximum of five years in prison, while prosecutors requested between 30 and 55 years.

In sentencing, Judge Alison J. Nathan said, “I find that the defendant’s criminal activity was extensive…. She also emphasised the point that although Jeffrey Epstein was central to this criminal scheme, Ms Maxwell is not being punished in place of Epstein or as a proxy for Epstein.” 

The judge called the crimes “heinous and predatory.”

Moments before she was sentenced, Maxwell apologised to the victims for the “pain” they experienced. 

“It is my sincerest wish to all those in this courtroom and to all those outside this courtroom that this day brings a terrible chapter to the end, to an end,” Ms Maxwell said in court. 

“And to those of you who spoke here today and those of you who did not, may this day help you travel from darkness into the light.” 

Victim impact statements

Several victim impact statements were made ahead of the sentencing hearing, including from one of Epstein’s most prominent accusers, Virginia Giuffre, who has recently reached a civil settlement with Prince Andrew whom she accused of sexual assault on three occasions when she was a teenager, at a time when he was friends with Jeffrey Epstein. 

Prince Andrew has agreed to pay an undisclosed sum to Ms Giuffre, as well as make a donation to her charity, which supports victims of abuse.

It will hopefully put an end to a very traumatic chapter of a number of women who were lured by Ms Maxwell for Jeffrey Epstein. 

It’s understood that at one point the ‘recruitment process’ was organised like a ‘pyramid scheme’ with young girls being given money, and gifts to lure friends into Epstein’s child sexual abuse ring, which has been rumoured to have involved a significant number of high profile men – including former US presidents, members of royalty, and wealthy businessmen. 

Ms Maxwell has been sent to the Federal Correctional Institution Danbury in Connecticut. It is considered a low security facility, and much ‘nicer’ than many of the other federal prisons in the US. 

Her criminal defence lawyers have indicated they will appeal both the conviction and sentence. 

The offence of human trafficking in Australia 

Eight separate offences relating to trafficking of persons, also known as human trafficking, are contained in section 271.2 of the Criminal Code Act 1995 (Cth) and apply across the nation.

In Australia, these offences relate to trafficking across the nation’s borders by use of threats, coercion or deception, or for sexual exploitation, and carry maximum penalties of 12 years in prison.

In terms of sexual exploitation, sections 271.2(2) and 271.2(2A) make it an offence to:

  1. Organise or facilitate the entry, or proposed entry, or the receipt of another person into Australia, or exit, or proposed exit of a person from Australia, and
  2. Do this by deceiving the other person about the fact his or her entry would involve:

(a) The provision of sexual services
(b) Exploitation, or
(c) Confiscation of travel or identity documents

‘Deception’ means to mislead as to fact, including as to the intention of any person, or as to law, and can occur by words or other conduct.

‘Exploitation’ is conduct causing the other person to enter into slavery, or a condition similar to slavery, or servitude, forced labour, forced marriage or debt bondage.

‘Slavery’ is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised including where such a condition results from a debt or contract made by the person.

‘Servitude’ is the condition of a person who provides labour or services if, because of the use of coercion, threat or deception:

  1. A reasonable person would not consider himself or herself to be free to:

(a) cease providing the labour or services; or

(b) leave the place or area where he or she provides the labour or services, and

  1. The person is significantly deprived of personal freedom in respect of aspects of life other than the provision of the labour or services.

‘Forced labour’ is the condition of a person who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person would not consider himself or herself to be free to:

(a) cease providing the labour or services; or

(b) leave the place or area where he or she provides the labour or services.

A marriage is ‘forced’ if either party entered it without freely and fully consenting due to:

(a) the use of coercion, a threat or deception, or

(b) a party being incapable of understanding the marriage’s nature and effect, or

(c) either party being under the age of 16 years.

‘Debt bondage’ is the condition of a person where 

1. The condition arises from a pledge:

(a) by the person for personal services, or

(b) by another person of the personal services of the person, and the person is under the other person’s control; or

(c) by person of the personal services of another person who is under the person’s control; and

  1. The pledge is made as security for a debt owed, or claimed to be owed, including any debt incurred, or claimed to be incurred, after the pledge is given by the person making the pledge, and
  2. Either:

(a) the debt owed, or claimed to be owed, is manifestly excessive

(b) the reasonable value of services is not applied toward the liquidation of the debt or purported debt, or

(c) the length and nature of services is not limited and defined

‘Coercion’ includes force, duress, detention, psychological oppression, abuse of power or taking advantage of the other person’s vulnerability.

A ‘threat’ includes that of any detrimental action unless there are reasonable grounds for that action in connection with the provision of labour or services by the other person.

The threat may be express or implied, conditional or unconditional.

‘Deception’ means to mislead as to fact, including as to the intention of any person, or as to law, and can occur by words or other conduct.

To ‘confiscate’ means to take possession of, whether permanently or temporarily, or to destroy.

Figures are not reliable because of the clandestine nature of human trafficking, but it is suggested that most human trafficking in Australia is done for the purposes of slavery (forced labour) sex exploitation and prostitution. 

Since 2014, around 30 people have been convicted of the offence. Only last year a Melbourne couple received individual sentences after being convicted of keeping a woman in forced labour at their Mount Waverley home in Melbourne for nearly nine years.

Also last year a Sydney man became the first person to be convicted of human trafficking by coercing a person to leave Australia.

It has been reported the man – whose name has been suppressed to protect the victim and child – purchased a one-way ticket for his Indian-born wife and Australian-born child to travel from Sydney to India in March 2017 – police say he threatened to kill his wife if she did not leave the country. He pleaded guilty to the charge and was sentenced to a 21month prison sentence.

The offence of procuring a child for unlawful sexual activity in New South Wales

Procuring a child for unlawful sexual activity is an offence under section 66EB(2) of the Crimes Act 1900 .

It carries a maximum penalty of 12 years in prison or 15 years if the child was under the age of 14 years.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were at least 18 years of age,
  2. You procured a child for unlawful sexual activity, and
  3. You did so intentionally.

‘Procure’ means to encourage, entice, recruit or induce, whether by threats, promises or otherwise.

Again, a ‘child’ is a person under the age of 16 years and the prosecution does not need to specify the type of procured activity.

The charge extends to procuring adults who pretend to be children, provided the prosecution proves you believed the adult was a child.

And once again, a defence to the charge is that you reasonably believed the other person was not a child.

Legal defences

Other legal defences to both human trafficking and procuring include:

  1. Duress
  2. Self-defence, and
  3. Necessity.

In the event that evidence is raised of any of these defences, the prosecution must then disprove the defence beyond a reasonable doubt.

If it cannot do this, the defendant is entitled to an acquittal.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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