Restitution for Victim of Human Trafficking?

In Solano County Superior Court, Lamar Deshawn Hall pleaded no contest to human trafficking (Penal Code § 236.1(a)) and pimping (Penal Code § 266h(a)).

The victim, H.B., then requested restitution of $31,336 for stolen Social Security payments and damage to her credit score. She further requested $340,500 for money she received and had taken from her for acts of prostitution Mr. Hall forced her to commit. She also requested interest on both sums.

According to H.B.’s declaration in support of her request for restitution, Mr. Hall began “exploiting” H.B. “soon after” he met her, “mentally and physically” abusing H.B. “every day [she] was under his control for over [three and a half years].” During that period, Mr. Hall made H.B. “work for him,” providing “sexual services to customers” and charging “anywhere from $80 to $1,000 per customer.” She “earned approximately $300 daily” for that labor, but Mr. Hall “took all of this money.”

The trial court judge granted restitution to H.B. as to the financial losses, but denied restitution as to the earnings she had from acts of prostitution on the ground that Penal Code § 1202.4(p) does not expressly authorize restitution for a victim’s labor where that labor is itself proscribed by law.

The ruled explained, in denying such restitution for sexual services, “I can see the public policy arguments on both sides, and frankly, I think the public policy argument favor H.B.’s position, but his Court of the fact that I’m a judge, not a legislator, and public policy decisions are for the legislature, and I do not want to cross the lines, as it relates to separation of powers.”

H.B. then filed a petition for a writ of mandate in the California Court of Appeal for the First District in San Francisco (H.B. v. Superior Court of Solano County) to challenge this order, arguing that subdivision (p) of § 1202.4 requires restitution for the illegal labor Mr. Hall forced her to perform.

The First Appellate District agreed with H.B. because Mr. Hall took all of the money H.B. earned from the acts of prostitution Mr. Hall forced her to undertake, so she suffered an economic loss as a result of Mr. Hall’s conduct.

The appellate court noted that Mr. Hall did not contest the accuracy of the amount H.B. sought, he argued that she could not be compensated for illicit activity.

The First Appellate District Court did not seem to address the issue of whether H.B. can then keep the money, but instead focused simply on the fact that Mr. Hall gained about $340,000 from H.B. as a result of committing a violation of human trafficking and pimping her. He certainly should not be able to keep it just because H.B. should not have been paid this.

The appellate court noted that there is no statutory prohibition against recovery of restitution for illicit activity. Instead, the statute requires that the order be based on the greater of the gross value of the victim’s labor in the market, the value of the labor as guaranteed under law, or the actual income derived by the defendant from the victim’s labor. The appellate court even pointed out that in the legislative history of § 1202.4(p), earnings such a prostitution proceeds were considered and the legislature favored restitution to the victim of such money if it was through forced prostitution.

Here, Mr. Hall was convicted of human trafficking, so his victims suffered economic loss due to his conduct and they were entitled to restitution from him. Mr. Hall forced H.B. to engage in sex work against her will, and he took all the money earned for himself, resulting in an economic loss to H.B.

As the reader of this summary may wonder, what happens next? Will the Internal Revenue Service and the state Franchise Tax Board tax H.B. on this amount of income, plus interest, and assign penalties for her delay in paying taxes? We think this may take place.

Will the district attorney prosecute her for engaging in prostitution and she’ll have to defend herself with a necessity defense based on Hall’s threats? We hope not.