by Jim Smithwick
On Thursday, March 27, 2014, the Colorado Court of Appeals reversed the conviction of Dallas Cardenas for trafficking in children because the evidence submitted at trial, upon review, was deemed insufficient to satisfy the elements of the crime of trafficking in children (18-3-502). The Court’s decision will not impact the time Cardenas will serve in Colorado’s Department of Corrections as he is serving time for additional convictions concurrently.
The Court of Appeals decision looms large for Colorado’s anti-trafficking laws. The crimes of trafficking in adults (18-3-501) and trafficking in children (18-3-502) have been charged 38 times since their creation in 2006 – only twice successfully (CCJJ 2013). The Court’s recent decision to reverse the trafficking in children conviction for Cardenas therefore leaves the number of successful utilizations of these laws to one. The rationale for the Court’s decision is largely due to the way in which the State of Colorado defined the crimes of human trafficking in children and adults. In order to commit human trafficking in Colorado, one currently needs to sell, barter, lease, or exchange an adult or child. The Court opined that, as written, the human trafficking in children statue would require, “…a transfer of the physical and legal custody of a child for money” (Colorado v Cardenas, p. 17). Dallas Cardenas arranged for the seventeen-year-old victim to provide sexual services; he did not sell, barter, lease, or exchange the victim, only her services. As such, given the evidence presented at trial and based on the Court’s interpretation of the trafficking statute, Dallas Cardenas did not commit human trafficking in children. The Court also pointed out that Colorado’s anti-trafficking statutes differ dramatically from the majority of other states in its definition. “Most of these statutes prohibit a person from ‘recruiting,’ ‘enticing,’ ‘soliciting,’ ‘inducing,’ threatening,’ or ‘transporting’ a child (or adult) for sexual purposes, or otherwise ‘benefitting from’ any of those acts if they were committed by another” (Colorado v Cardenas, p. 19).
Following this decision, Colorado’s current anti-trafficking laws are now even more limited in scope and, arguably, of even less utility for prosecutors throughout the state.
Prior to the Court of Appeals decision, many in Colorado’s anti-trafficking movement had been advocating for changes to our human trafficking statutes; the importance of these efforts is underscored by the Cardenas reversal. In 2013, the Laboratory to Combat Human Trafficking created a set of Policy Recommendations based, in part, on a three-year research project entitled, The Colorado Project to Comprehensively Combat Human Trafficking. The Colorado State Legislature is currently considering Representatives Beth McCann (D- Denver) and Jared Wright’s (R- Fruita) CO HB 14-1273, a bill that will significantly improve our state’s ability to respond to situations of human trafficking and provide prosecutors a broader, stronger definition of what constitutes human trafficking. This proposed legislation reflects much of what LCHT outlined in our Policy Recommendations and is something that we are actively supporting.
Specifically, CO HB 14-1273 would:
- Bring Colorado’s definition of human trafficking in children and adults more in line with the majority of the rest of the country;
- Eliminate the affirmative defenses that a minor consented to a given act and that the defendant did not know the minor’s age;
- Extend Rape Shield Act protections to victims of crimes of human trafficking;
- Would make sex trafficking of a minor a sex offense in Colorado;
- Provide for greater access to restitution for survivors of human trafficking;
- Create a statewide human trafficking council to help guide Colorado's response to situations of human trafficking.
As of April 10, 2014, CO HB 14-1273 passed out of both the House Judiciary Committee and the House Appropriations Committee; it is now headed to the Senate Judiciary Committee and is scheduled to be heard on Wednesday, April 16th at 1:30pm. Please reach out to your elected local official and urge him/ her to support CO HB 14-1273.