Does the photo of a naked child used on a record album cover constitute sex trafficking?
That question is at the heart of a lawsuit filed this month by Spencer Elden, whose photo was on the cover of Nirvana’s chart-topping “Nevermind” album 30 years ago, against the band and the estate of Kurt Cobain, its lead singer.
According to the suit, the iconic 1991 album cover, which shows the four-month-old Elden underwater reaching for a dollar bill, constitutes a commercial sex act and a “sex trafficking venture,” under the definition of the Trafficking Victims Protection Reauthorization Act (TVPRA).
To put it charitably, many believe the case amounts to a quantum leap of logic.
Media outlets have aptly pointed out that, as recently as five years ago, Elden reveled in the attention he received from the photograph of him as an infant, by recreating it for 10th, 17th, 20th and 25th anniversaries of the album and having the album title, “Nevermind,” tattooed across his chest.
The case is one of several examples that should worry anyone concerned with stopping modern slavery and the scourge of sex trafficking, because these types of arguably specious claims may have negative consequences for actual victims.
Pop star Britney Spears, for example, recently compared her treatment under a court-ordered conservatorship to sex trafficking. Yet, despite the fact that a judge has been overseeing it the entire time and ultimately kept it in place, some anti-trafficking organizations actually agreed with Spears.
In addition to civil claims that arguably define trafficking beyond its logical limits, similar lawsuits are increasingly being filed against third-party businesses and individuals who unwittingly encounter bad actors on their platform or premises, regardless of whether they alert law enforcement as soon as this clandestine crime is identified.
Take, for example, the more than 100 cases filed nationally against brand hotelier franchisors beginning in late 2019, for alleged sex trafficking occurring on premise under the same statute. These cases gave way to more filings against Big Tech, namely Facebook, Twitter, Salesforce, and others.
The benefits of repackaging non-trafficking allegations as trafficking claims under the TVPRA are not hard to figure out.
Not only does it ensure media coverage, but it affords litigation advantages over other intentional assault type claims. If these same claims are pleaded as a trafficking offense, the statute of limitations under Section 1595 is ten years compared to some intentional tort statutes of a year or less.
The benefits of suing unwitting third-party businesses as opposed to actual traffickers are also relatively clear. Businesses have more assets, insurance coverage, and a reputation at risk. If a businesses was directly involved with trafficking, the insurance would likely deny the claim for coverage as an intentional tort.
This suggests to some that civil lawsuits filed under the TVPRA are straying further and further from the legislation’s objectives: to prevent human trafficking crimes, prosecute human traffickers, and protect victims of modern slavery.
And it raises the worrying prospect that litigation could in fact lead to a narrower definition of trafficking that excludes actual victims of forced labor or commercial sexual exploitation.
In the process, these lawsuits expose a larger problem. They exploit fundamental weaknesses in the original legislation, particularly the vague definition of trafficking.
The remedy should be clear.
As more and more people take liberties with the TVPRA statute and, arguably, exploit the attention it garners, we must redefine trafficking to ensure it’s limited to modern forms of slavery and enforced against actual traffickers―not unwitting third parties.
Pleading non-trafficking allegations as claims of modern slavery is more than simply “crying wolf” for a litigation strategy. It’s an affront to actual victims of forced labor and commercial sexual exploitation, and could potentially harm these individuals by restricting their avenues for redress in the future.
Editor’s Note: Elden has insisted that he was always uncomfortable about being associated with the image. The suit alleges that it has caused him “extreme and permanent emotional distress with physical manifestations, interference with his normal development and educational progress, lifelong loss of income earning capacity,” and “loss of enjoyment of life.”
Kimberly Mehlman-Orozco, Ph.D., serves as human trafficking expert witness in criminal and civil court and her award-winning first book Hidden in Plain Sight: America’s Slaves of the New Millennium is used to train law enforcement on human trafficking investigations.
Marisa A. Trasatti is a civil defense attorney in Baltimore, Maryland who has been defending hoteliers— from large chains to small franchised locations—involved in civil litigation arising from alleged human trafficking on premise since 2017.
Mehlman-Orozco and Trasatti are currently conducting research for their proposed book Innocent Villains and Guilty Heroes: The Truth Behind America’s Failing War Against Sex Trafficking.