State urges Supreme Judicial Court to revive trafficking charges against men who answered sex ads

The Commonwealth asked the Supreme Judicial Court on Monday to vacate the Superior Court's allowance of motions to dismiss indictments charging multiple men under the state's human-trafficking statute, arguing the grand-jury evidence showed probable cause that the defendants "attempted to hire a person for commercial" services.

The request came during oral argument in SJC No. 13652, Commonwealth v. Brendan J. Garofalo and nine companion cases, where prosecutors told the court the trafficking statute's phrase "recruit, entice, or obtain by any means" should be read to reach purchasers who responded to online advertisements and negotiated payment and services with undercover officers. "I'm here today asking that this court vacate the superior court's allowance of the defendant's motions to dismiss," Commonwealth attorney Julianne Campbell said at the start of her argument.

The issue matters because convictions under the trafficking statute carry a higher mandatory sentence than the separate statute commonly used to punish buyers of commercial sex. Counsel and several justices focused on whether the ordinary meaning of "obtain" and the statute's context permit treating an individual who answers an advertisement and offers payment as a trafficker.

During argument, Campbell relied on this court's prior case law defining "recruit" as "to hire for services," and said that, "in the light most favorable to the Commonwealth, the evidence here, at a minimum, established that these defendants attempted to hire a person for commercial" services. She told the court the indictment and the impounded record—containing the advertisements at issue—showed defendants specified terms, time, and payment in negotiations with undercover officers.

Defense counsel Patrick Newton, appearing for Brendan J. Garofalo and other appellees, argued the appeals court correctly read "obtain" in context and urged the SJC to construe the statute narrowly. Newton said earlier trafficking cases involved classic "supply-side" conductrecruiting, harboring, transporting and providing victimsand that "obtain" in that company requires more than responding to an advertisement. He told the court the appeals court's reading avoids casting "such a wide net to get every single" purchaser as a trafficker.

Several justices questioned whether the legislature intended the trafficking statute to cover buyers. One justice asked whether applying the statute to a purchaser would effectively make "every John a trafficker," noting the trafficking statute carries a five-year mandatory minimum while the prostitution-for-a-fee statute was amended to raise penalties for buyers to about two-and-a-half years. The court also pressed whether the statute's words should be judged by the company they keepwhether the specific verbs preceding the generic term "obtain" narrow its meaning.

The attorneys debated several subsidiary issues raised in the appeals court: (1) whether the appeals court improperly imported a "predisposition" element into the statute, (2) whether an attempt conviction is barred by factual impossibility (for example, when an alleged "victim" is an undercover officer), and (3) whether the rule of lenity should apply because "obtain by any means" is ambiguous. The Commonwealth urged the court not to read additional elements into the statute and said factual impossibility is not a defense to attempt under the court's precedents.

No decision was announced from the bench during argument. The Commonwealth asked the SJC to vacate the Superior Court's allowance of the motions to dismiss and reinstate trafficking counts; defense counsel urged affirmance of the appeals court's narrowing construction. The court's ruling will determine whether purchasers who respond to advertisements and negotiate payment can be prosecuted under the trafficking statute or must be charged under the separate prostitution-for-a-fee provision.

For now, the indictments at issue remain subject to appeal; the transcript of the argument shows the court focused on statutory interpretation, legislative history, and doctrinal tools such as the "company they keep" canon and the rule of lenity as means to resolve whether "obtain" reaches buyers.

Details from argument: the case caption is Commonwealth v. Brendan J. Garofalo and nine companion cases, the Commonwealth cited prior SJC decisions including ones named in argument (for example, the court's treatment of "recruit" in earlier cases), and defense counsel flagged appellate decisions the defense says support a narrower reading. The advertisements the Commonwealth referenced are in the impounded record appendix, according to the prosecutor's statement.

The court heard arguments from Julianne Campbell for the Commonwealth and Patrick Newton for the defendants, with co-counsel Sabrina Bohano seated with Newton. The SJC heard the argument but took no immediate action on the motions during the oral session.