Massachusetts
One family scammed the lottery for $20 million. Then their luck ran out. – The Boston Globe
In less than a decade, the Jaafar family of Watertown managed to claim more than $20 million in lottery winnings from over 14,000 scratch tickets and other games — a stunning run of success that just didn’t add up.
An information technology expert at the lottery had run the math to show just how unlikely it was. An instant-win game called “$10,000,000 Big Money” had a 1 in 1,106.72 chance of producing a jackpot of $1,000 or more, he reported. Yet somehow, over a recent span of six months, the Jaafars had managed to claim nearly $2 million in winnings, the bulk of it from instant tickets like “$10,000,000 Big Money.” To win at that rate, the Jaafars would’ve had to purchase 22,859 such tickets every day, 952 tickets every hour, 16 tickets every minute. “Every minute of every day,” the official said. “Twenty-four hours a day.”
In lottery terminology, there was a name for this. The Jaafars were “high-frequency winners.” They were also breaking the law and the rules of the lottery itself by working with dozens of convenience store operators in an underground network where everyone was trying to avoid paying taxes on lottery prizes. In this network, everyone got cash under the table while the Jaafars got the winning tickets to claim as their own. A lot of them. In 2019 alone, the Jaafars claimed more than $3.2 million in winnings. Yousef was the sixth-highest ticket casher in the entire state that year, Mohamed was third, and their father topped the list.
It had all come to a head in recent months. The Lottery Commission had moved to suspend the Jaafars, the Jaafars had hired a lawyer, and everyone had landed in Suffolk County Superior Court, squabbling over the family’s right to play games for money.
But now, on a warm summer day in 2020, Yousef Jaafar was back. He was downstairs, with three winning tickets in his hand. The customer service agent was on the phone calling Dan O’Neil and O’Neil was on the elevator heading down to confront a man at the heart of what he now calls “the biggest money laundering operation that the lottery has seen.”
The conversation near the ticket windows did not go well. O’Neil informed Yousef that the lottery would not be cashing his tickets that day. Yousef, O’Neil recalls, became angry. He lashed out at the lottery, and seemed prepared to make a scene in the lobby because Yousef believed he was legally entitled to claim his jackpot. It was his business, the family business.
And if the whole thing looked curious, absurd, or even mathematically impossible, the Jaafars had a way of explaining it to make it sound plausible to people who didn’t know the odds, to people who didn’t understand the game.
The father told people that they were just lucky. The luckiest men in Massachusetts.
THE TALE OF THE JAAFARS — until the problems with the lottery — was best framed as an American success story. Ali was born in Lebanon in 1958 and had to overcome many troubles as a young man. His parents divorced. War broke out between heavily armed militias. Massacres on the streets became all too common, and sometime in 1975, just before Christian forces torched Muslim neighborhoods in Beirut, ultimately killing 1,500 people, Ali and his father made a choice: The boy wasn’t finishing high school in Lebanon. He was getting out.
Ali moved to live with his father — 3,500 miles away in Sierra Leone in West Africa — and for a time, he carved out a life for himself there, pious and gentle and, according to loved ones, hardworking. He met a young woman named Souraya. She knew immediately that she loved him. They married and had three children, and then, in the spring of 1991, Ali faced trouble again. Liberian rebels invaded Sierra Leone, throwing the country into chaos and forcing hundreds of thousands of people to flee.
For the second time in his life, Ali was looking to escape, and this time, Souraya was there to help. Her parents had somehow managed to immigrate to America a few years earlier. With their assistance, Souraya said later, she and Ali navigated the difficult process of obtaining US visas. They won what she described as “the visa lottery” and made their way to Massachusetts in 1992. A young family, safe at last.
They rented a home just off the interstate in Waltham, and in that moment, Ali felt grateful and looked for ways to give back. He saw himself as “a servant to Allah,” a relative later told the court, whose purpose was to help his community. And he seemed especially intent on helping his four children, including Mohamed and the new baby, Yousef.
As they all started over, Ali had just one goal in mind: “To provide for and give his children the best life growing up,” a relative said. “Everything that they needed to succeed in America.”
It wasn’t easy. Ali was in his mid-30s when he landed in Massachusetts. He had no high school diploma. He spoke limited English and had few job prospects. With most doors closed to him in his new country, Ali found employment at a service station pumping gas.
To put food on the table, Ali worked long hours. “Hardly ever spending time at home,” Souraya observed later. But this wasn’t a complaint. Ali was working to support the family, anything for the family. Even when Ali was pumping gas, the Jaafars didn’t want for anything. Eventually, he saved up enough money to buy a taxi — Jaafar Cab Inc. — and invested in a product that seemed to have potential: prepaid phone cards.
It was the 1990s and phone cards were in high demand, especially at convenience stores frequented by immigrants such as the Jaafars. Shopkeepers knew to summon Ali whenever they ran low on cards and he would show up in his taxi and deliver them by the stack. The side business was apparently profitable enough that Ali could stop driving his cab. He started a new company — Assorted Phone Cards — and used his money to finance an important purchase.
In the fall of 1997, the Jaafars bought a home in Watertown for $206,000. The street was lined with modest ranch-style homes, but a friend of the Jaafar children remembers thinking that their home was bigger than most he visited in town. It had two stories and four bedrooms. More importantly, the house ensured that the four Jaafar children would be educated. They could attend Watertown High School and earn the one thing that had eluded their father: a diploma.
To Souraya, it all felt like a dream. They had never quit, they had persevered, and now here they were with the house in Watertown, the children in school. She didn’t mind saying that she felt blessed, even lucky. “I always felt lucky,” she’d say later in a letter to a judge.
Her second son, Mohamed, certainly gave her no reason to feel otherwise. Mohamed had expressive eyes, a warm smile, and a studious nature that was apparent to everyone from the moment he walked through the doors at Watertown High in the fall of 2004. Classmates recall a boy who worked hard, earned National Honor Society accolades, joined the student government, played varsity soccer, and made sacrifices for his faith and his family that other students wouldn’t forget, even years later.
Ramadan requires Muslims to fast from sunrise to sunset for an entire month, and during Mohamed’s senior year, the holy month fell during September, soccer season. Teammates recall that it would have been easy for Mohamed to eat crackers before the games or sneak sips of water on the bench. “But he never did,” says teammate Bijan Ghom. Mohamed had discipline. “Unusual discipline,” Ghom adds, “for a high school kid.”
College admissions officers noticed. After high school graduation in 2008, Mohamed attended Northeastern University, where he earned a bachelor’s degree in international affairs. He then went on to collect a master’s in business administration at Bentley University while building an impressive résumé of work experiences. Mohamed spent a year assigned to a committee at the Massachusetts State House, interned for then-Senator John Kerry, and served as a research assistant for a Bentley professor writing a book. It was the work of an ambitious student who seemed interested in a career in public policy or politics. But at least one former classmate in Watertown speculated that Mohamed might end up working with his father instead.
According to his résumé, Mohamed joined the phone card business as soon as he graduated from high school, and quickly moved up from customer sales representative to operations manager. He expanded his father’s customer base by personally visiting convenience stores and said he offered the highest level of customer service through “honest business practices.”
It was an odd choice of words, given what Mohamed knew by that point. His father was no longer just selling phone cards: He was engaging in what Mohamed himself would later call “the lottery scheme.”
The Jaafars’ scheme was built on a premise that’s been known to gamblers for decades: Some people prefer not to publicly claim their winnings, particularly if they want to hide money from the Internal Revenue Service.
At American racetracks since at least the 1960s, these reluctant winners have turned to “ten percenters” for help. In the shadows beneath the grandstands, ten percenters would pay cash for someone’s winning ticket, minus a 10 percent cut off the top and often even more — 15 or 25 percent. The real winner would walk away with cash in hand, off the books, tax-free, while the ten percenter would claim the full prize at the racetrack window and often avoid taxes by claiming large gambling losses at the end of the year or by submitting fake identification at the track.
It usually amounted to tax evasion and could have devastating ramifications: the government sometimes lost as much as $1 million a week in tax revenue at a single track. It was only a matter of time before a similar practice of ten percenting infected state-run lotteries. For any jackpot over $600, winners have to produce a valid ID and Social Security number, and pay taxes. Those who owe back taxes or child support have one more obstacle to clear: Massachusetts authorities will take that money before paying out any winnings.
In this world, someone holding a scratch-off ticket worth $1,000 can sell their prize to a convenience store operator for $750 or $850. The winner leaves with cash under the table. The convenience store clerk picks up the phone and calls a runner. This person shows up and buys the ticket for the discount price, minus a cut for the clerk — maybe $50. The runner then pretends to be the real winner and claims the ticket at a lottery office for its full value, scoring a profit of $100 or $200.
It’s a black market that has existed in Massachusetts since at least the late 1990s, according to state audits. A 2002 investigation identified at least 58 high-frequency winners who had claimed a total of $4.7 million the previous year and paid minimal taxes. By 2004, this pool had grown to at least 88 people, claiming $10 million in all. And a 2010 report sounded the alarm about “professional ticket cashers” one more time. “Our follow-up review,” the state auditor declared, “disclosed that this practice is ongoing and has become even more widespread.” Sometimes, store employees even cashed the tickets themselves, skipping the runner entirely. In one instance, an employee walked into a lottery office in Braintree and cashed 14 winning tickets in a single day.
How Ali Jaafar started ten percenting, or why, isn’t clear. But as a man who visited convenience stores for a living — phone cards in hand, conversations in the candy aisle — he wouldn’t have had to work very hard to hear whispers about easy money. And sometime in 2011, when Yousef was graduating from Watertown High and headed to Suffolk University — and Mohamed was finishing his junior year at Northeastern — their father made a choice that would change the trajectory of their whole family.
He cashed a lottery ticket. And then another. And then some more. In 2011, according to lottery records, Ali claimed 136 tickets worth $217,000. The next year, he claimed 214 tickets totaling $367,000. In 2013, he blew these numbers away, claiming 867 tickets worth almost $1.3 million. Then he exceeded that figure every year for the next six years.
Every spring during this stretch, Ali listed gambling losses on his tax returns that allowed him to avoid paying taxes, despite lottery winnings approaching $10 million. Some ten percenters claim casino losses at tax time; some grab handfuls of losing scratch-off tickets from trash bins at convenience stores, then bundle them together to keep should the IRS come calling. According to testimony from an accountant who worked for Ali, the father didn’t produce any such records. The losses and winnings just seemed to cancel out. Ali’s lottery ticket business kept growing until it became the family business. In 2013, according to state records, Mohamed and Yousef started claiming tickets, too.
In federal court later, Mohamed agreed to a set of facts about how it all worked. When a convenience store operator had a winning ticket of more than $600, the operator would call the Jaafars. The father or one of the sons would show up to buy the winning ticket for an agreed-upon price less than the actual prize. Usually, they’d never learn the real winner’s name. That person disappeared with cash in hand, here and gone. The convenience store operator got paid — perhaps $50 for a small jackpot, $100 for something larger — and the Jaafars went to a lottery office to claim the full jackpot. Once there, one of the Jaafars signed the ticket, as required, and certified that he was the “sole recipient” of the prize and not working to “assist another in the avoidance of financial obligations.” Then sometimes they posed for photos like any ordinary winner.
Because the Jaafars purchased the tickets for 75 or 85 percent of their value, they weren’t pocketing the full jackpots. But the money did add up. A lawyer for Ali and Yousef admitted in court documents that the family made at least $2 million off the scheme. Their system also resulted in more than $6 million in federal tax losses, according to the US attorney’s office in Massachusetts, and earned the Jaafars themselves more than $1.2 million in tax refunds. “From tickets they never won,” one federal prosecutor said later, “based on gambling losses they didn’t actually have.”
Mohamed knew he was on what he called a “dark path.” He should have never participated in the scheme, he said, and he should have protected his younger brother, Yousef. If he were stronger, Mohamed said, he would have stood up to his father and saved them both, and he wondered what it said about him that he didn’t, that he couldn’t. Mohamed worried that he was “naïve and weak” — or worse. “Pathetic,” he said.
In 2016, Mohamed pleaded guilty to a conspiracy charge in New Jersey connected to an alleged overseas money-laundering operation and, at some point, sought psychological counseling for depression. Still, he continued buying winning lottery tickets — at convenience stores in Melrose, Worcester, Chelsea, Charlestown, and beyond. Mohamed didn’t want his father to see him as the “bad son,” he said, and he couldn’t overcome his father’s pressure — ”substantial psychological pressure,” Mohamed’s lawyer John F. Palmer called it. Mohamed couldn’t stop, even when he tried.
In 2017, according to Palmer, Mohamed informed his father that he was done — he was finished doing this work. Ali, a man who had once crossed continents for his family, allegedly responded by kicking his son out of the house in Watertown. Mohamed was only allowed to return, the lawyer said, if he agreed to keep claiming lottery tickets.
In the summer of 2017, The Boston Globe, in collaboration with other newspapers and Columbia University’s Graduate School of Journalism, exposed the practice of ten percenting in states across the country. Massachusetts was identified as the state with the biggest problem in the nation, which finally sparked the response that the state auditor had been calling for since 2002.
Michael R. Sweeney, the lottery’s executive director at the time, promised better oversight. Within months, the Lottery Commission adopted a new policy authorizing the director to suspend high-frequency winners for claiming tickets deemed to be “factually or statistically improbable.” The commission held hearings in May 2019 to investigate the Jaafars. It quickly moved to suspend all three of them, plus two other players. The Jaafars tried to fight the ruling in Suffolk County Superior Court that September — a fight that proved unsuccessful — and that same month Sweeney hired a new director of compliance and security: Dan O’Neil.
A longtime investigator for the state inspector general’s office, O’Neil, 53, has close-cropped hair, a tight beard that’s neatly trimmed, and a steady demeanor that was obvious even when he was a teenager growing up in Merrimack, New Hampshire. O’Neil played quarterback in high school, led Merrimack High to an undefeated season as a senior, and helped rally his squad from a 13-point deficit in the state title game to win the 1987 Division II championship.
After getting hired at the lottery, O’Neil didn’t even bother decorating his small, windowless office; even now, four years later, there’s almost nothing on his walls. Instead, he dove right in. He met with Sweeney to discuss the problem of high-frequency winners and left the meeting asking himself questions about the people trying to cheat the system.
“How are we going to suspend them — first and foremost? And then how are we going to determine whether or not there is a criminality involved and get the proper law enforcement agencies involved?” O’Neil recalled recently. “My first day — this was my directive. There were a couple internal issues that I had to deal with, but the overall, general issue facing the lottery — in Michael Sweeney’s eyes — was ten percenters and the integrity of the game.”
While O’Neil’s team of investigators began to mine the data on the Jaafars’ operation, including the stores where they seemed to secure the most tickets, the Jaafars got creative, too. By October 2019, Yousef had enlisted two friends to cash tickets for him at the lottery office, so that he wouldn’t have to show his face there anymore. The two men, Ahmed Shikhalard and Nicholas Frankel, testified later in court that they did what Yousef wanted on several occasions in exchange for $200, gas money, or a little food.
But Yousef’s plan involving his friends wasn’t nearly as creative as it needed to be. By then, the Internal Revenue Service was on the case, too. On two occasions, an undercover IRS agent sold winning tickets to a convenience store clerk in Somerville, and somehow, the agent testified later, these two tickets ended up in the hands of Shikhalard and Frankel, providing the government with a direct link to the Jaafars. Shikhalard and Frankel stopped doing Yousef’s work shortly thereafter; a lottery investigator had confronted one of them.
On June 26, 2020, Yousef returned to lottery headquarters with those three winning tickets in hand, according to state records. He had that strained and angry conversation in the lobby with O’Neil, and less than two weeks later Mohamed showed up as well, only to be turned away, just like his younger brother.
The discussion with Mohamed that day was quieter, O’Neil recalls, perhaps because Mohamed knew what was coming next. At the end of that summer, federal agents searched the Jaafars’ home and began to question other people involved: the convenience store operators and Yousef’s friends. Frankel testified later how Yousef showed up unannounced at his workplace that weekend to coach him on what to tell authorities, and he recalled specifically how that interaction ended: “With Yousef saying this conversation didn’t happen.”
But Frankel, a young father, newly married, had never felt good about his dealings with Yousef — and the lottery. He worked out an immunity agreement with the government and, within months, federal prosecutors indicted the Jaafars — Ali, Mohamed, and Yousef — for conspiracy to defraud the United States, conspiracy to commit money laundering, and multiple counts of filing false tax returns. They had become the most prolific ten percenters in Massachusetts.
The Jaafar trial last winter at the US District Court in Boston lasted five days. But it only involved Ali and Yousef. In November, about a month before the trial started, Mohamed agreed to cooperate with federal prosecutors, struck a deal, and pleaded guilty to a single conspiracy charge. Mohamed didn’t have to worry when both Shikhalard and Frankel testified against his father and brother. He wasn’t there when jurors took less than two hours to convict them on all counts, and Mohamed didn’t have to stand in the courtroom last May when the federal judge handed down stiff sentences to both of them. Ali got five years in prison, Yousef got a little over four, and the men were ordered to pay the IRS $6 million in restitution.
Ali and Yousef’s lawyer, Valerie S. Carter, objected to these sentences last spring. In an email to the Globe at the time, she said convenience store operators — working to recruit people like the Jaafars and skimming their own money off the top — were the “major wrongdoers” here. Her clients, she said, had been used.
But O’Neil points out that lottery investigators, state authorities, and federal prosecutors haven’t just focused on the Jaafars. They’ve gone after other ten percenters, their runners, their clients, a Boston police officer who sold a $10,000 ticket on the black market to dodge detection, and the convenience store operators who have worked with them behind the scenes. Last spring, the Lottery Commission moved to revoke or suspend sales licenses at more than 40 locations.
“We’re just going down the line,” O’Neil says, “and now we have the tools. We have the precedent.” His team, he says, also has the support of high-ranking state officials, including state Treasurer Deborah B. Goldberg, who oversees the Lottery Commission, and the lottery’s new executive director, Mark William Bracken. “Do we want to be suspending players? Do we want to be removing agent licenses from communities? No, that’s the last thing I want to do,” Bracken says. “But we take this seriously — in order to protect the integrity of our games and maintain the confidence of our player base.”
It’s a player base that is unlikely to ever include one man again: Mohamed Jaafar.
He faced his own sentencing in US District Court in late July. Despite the significance of the day, and everything that was at stake, the 33-year-old son of Ali and Souraya showed up alone. Mohamed wore a fitted gray suit for the occasion. He paced outside, hands in his pockets. He waited for the proceedings to start, and he declined to speak for this story, both that day and later. Outside of statements made in court documents, none of the Jaafars has ever talked publicly about what happened with the lottery.
But when given a chance to explain himself at his sentencing, Mohamed spoke to the judge and began to cry. He admitted that what had happened was more than just a mistake; it was a crime, Mohamed said — ”a very gross and disturbing type of crime.” He took responsibility for it. He apologized “for not being a better citizen.” He promised to make amends. “I just want to live a modest and peaceful life,” he said. And though he could have blamed his father for what had transpired, he didn’t. “The only person to blame for seriously ruining my own future is myself.”
Judge Nathaniel M. Gorton told Mohamed that he appreciated the sincerity of his statement. “But you do need to suffer the punishment of jail time,” Gorton said, “not only to deter you from ever committing a similar crime, but to deter anyone else, generally, who thinks this ten percenting is something that we are going to tolerate.” It isn’t, Gorton said, not anymore, and he believed that this sentiment was reflected in the sentence he was about to impose: six months in prison, with an order to pay $964,000 in restitution and a two-year ban on any activities related to the lottery.
“Do you understand that?” the judge asked Mohamed.
“Yes, your honor,” he replied.
The court adjourned and Mohamed gathered himself to leave, moving slowly and looking broken. The sentence was harsher than what his lawyer had requested.
But in the finality of the moment, Mohamed felt something that he admitted to the judge was a little strange, a little odd. He felt relief, a certain calmness. “It feels like a dark cloud has floated away,” he said, “and I can finally see a clear path.”
It was almost like he was lucky.
Keith O’Brien, a former Boston Globe reporter, is author of several books including the forthcoming Charlie Hustle: The Rise and Fall of Pete Rose, and the Last Glory Days of Baseball. Send comments to magazine@globe.com.
Massachusetts
Video shows firefighters rescue man and dog from icy Massachusetts lake
WELLESLEY – A Wellesley father of three and his dog are home safe after first responders rescued them from a freezing lake on Sunday.
Dramatic drone video shows the daring rescue on Sunday as a first responder crawls on thin ice to help Ed Berger struggling in a frigid icy Lake Waban. But it wasn’t just Ed in the water, his 8-year-old Cockapoo Tommy had fallen in the lake first.
“Traumatic experience”
“It was definitely a pretty traumatic experience,” said Ed Berger. “I think anybody who owns a pet would do the same thing, I just knew I had to do something.”
It began on a walk when Tommy saw birds, then ran off, but tumbled into the freezing lake.
As fast as Ed could act, he grabbed a boat from Wellesley College, then went after Tommy, putting his Mass. Maritime cold-water training to the test.
“I did a couple of things right and I did a couple of things wrong because obviously becoming part of the problem was not my intention,” said Ed Berger. “I knew the first thing I needed to do was control my breathing and not panic and I had the boat.”
But boat tipped over. Within minutes, firefighters and police teamed up to first pull the father of three out of the water. Then they got Tommy out too.
“I kept telling the fire department, ‘I’m fine I’m totally fine go save the dog,’ but they said ‘no sir, people first, it must be people first,’” said Ed Berger.
Tommy was taken to the Veterinary Emergency Group where Dr. Allan Heuerman treated the dog.
“Our first concerns are hypothermia,” said Dr. Heuerman. “Tommy’s a fighter, that definitely helped him stay alive and breathing and fighting throughout this whole process, so definitely lucky.”
Ice warning
It’s a dangerous time on the ice that can lead to tragedy, like in Atkinson, New Hampshire where a 56-year-old mom fell through ice and drowned over the weekend.
In Wareham, first responders found a man clinging to a kayak after he had fallen through an icy pond.
“Even though we’ve had cold temperatures. We don’t really recommend going in there at all because you never know if the water is moving, if there’s a pocket of warmer water underneath,” said Wellesley Fire Chief Matthew Corda.
What could have ended in tragedy, became a happy ending for Ed and Tommy, and for that they’re so thankful to the first responders and medical staff who made it happen.
“The fact that they got me, and they got him was just absolutely amazing, so incredibly thankful,” said Ed Berger.
First responders say the lesson here is to keep your dogs on leashes and if they go out into the ice, don’t follow them, just call 911.
Massachusetts
Massachusetts insurance agent says rates could go up across country after California fires
NORWOOD – As harrowing images of homes burning to the ground come in day after day from California, Massachusetts homeowners are understandably questioning whether they are prepared and properly insured should a catastrophe hit our coast.
“There’s a ripple effect”
“Whenever you see catastrophic losses like they’re seeing in California right now, there’s going to be ramification, repercussions across the country, if not across the world,” explained local insurance agent and former chair of the Mass. Association of Insurance Agents, Patrick Dempsey of Norwood.
“That could mean rates go up for people across the country, even though it’s not happening in our backyard. It’s happening to a market that’s going to impact ours here. So, there’s a ripple effect for sure,” he said.
Dempsey explained that insurance companies are not equipped to cover sudden losses of hundreds of billions of dollars, and in a time like we’re seeing in California, they tap into their own insurance companies in the “reinsurance” industry.
Fortunately for now, Massachusetts doesn’t seem poised to experience fires like the West Coast does as weather intensifies worldwide. “[Fires] haven’t really been prominent here, although we did have some this past year in kind of the Milton Blue Hills area there. There were legitimate forest fire concerns,” he said.
One huge challenge in California right now, Dempsey explained, is that the state “has been noted to go through some struggles in the recent past with certain larger carriers kind of pulling back in large scale.”
Massachusetts safety net
Since insurance is governed on a state level, Dempsey feels Massachusetts residents should be comforted by our state’s safety net.
“I think it is a little bit of a feather in the cap for Massachusetts, that the Insurance Commissioner’s office and the companies work quite well together in the sense that they’re not taking aggressive rates that are unnecessary, but they’re keeping the companies in a way that they’re bringing enough premiums to pay out the claims. It’s a delicate balance,” he said. “Other states might be jealous of how well it’s being done right now, and I’m proud that that’s going so well in our state, so hopefully good things in the future.”
Dempsey’s advice to Massachusetts homeowners is likely not surprising, given that he is a local agent. He recommends staying local and using an agent to find the home insurance policy that’s right for you.
“When you deal with an agent, they can really take you through these steps, and they also know their backyard,” he said. “You know, if I’m writing a policy in Norwood, I’ll know when certain homes are going to be near, say, a brook or a stream that might put it in a flood zone.”
Massachusetts
Massachusetts court weighs whether all prostitution is sex trafficking
“So every John is a sex trafficker?” asked Massachusetts Supreme Judicial Court Scott L. Kafker in the courtroom last week.
“Yes, your honor,” replied Plymouth County Assistant District Attorney Julianne Campbell.
The case—Commonwealth v. Garafalo—represents the latest assault on civil liberties and basic language to be carried out in the name of stopping sex trafficking.
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Victimizing ‘A Fictitious Individual Created by Law Enforcement’
It’s long been a goal of certain radical feminists to define all sex work as sex trafficking. If you completely remove agency and free will from the equation—at least for women—then anyone who accepts money for sexual activity can be a victim and anyone who makes or facilitates this payment a criminal.
This paradigm is the basis for the “Nordic Model” of regulating prostitution, in which paying for sex is illegal but the basic act of offering sex for money is not. The Nordic model is established in many European countries, was adopted last year in Maine, and is gaining ground in the U.S. (where it’s sometimes, confusingly, called the Equality Model).
In keeping with this paternalistic mindset, some places have also started to raise penalties for prostitution customers, even elevating solicitation from a misdemeanor to a felony. Meanwhile, at the federal level, trying to pay for sex with someone under age 18 counts as sex trafficking even when the solicitor does not know the minor’s actual age.
Massachusetts may take these ideas one step further and declare anyone who tries to pay for sex at all to be a sex trafficker, thereby defining all prostitution, even between consenting adults, to be a form of sex trafficking.
A case that came before the Massachusetts Supreme Judicial Court (SJC) last week involves a prostitution sting conducted by Massachusetts state cops in 2021. The officers, posing as adult sex workers, posted ads online and arrested people who responded to the ads and attempted to meet up for paid sexual activity.
Regrettably, this type of sting is incredibly common in the U.S. It typically results in solicitation charges—still a misdemeanor in most places—for those ensnared. But in this case the state indicted those who responded to the sham ads on sex trafficking charges.
Massachusetts law says that anyone who “subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person to engage in commercial sexual activity, a sexually-explicit performance or the production of unlawful pornography” is guilty of trafficking of persons for sexual servitude—a.k.a. sex trafficking. The crime is a felony, punishable by at least 5 years in prison (without eligibility for probation, parole, or work release) and a possible 20 years, plus a potential fine of up to $25,000.
The five defendants in Garafalo, arrested in the 2021 sting and charged with trafficking of persons for sexual servitude, pushed back against the charges, filing a motion to dismiss them in 2022.
State Judge Maynard Kirpalani agreed to dismiss the charges. “The grand jury heard no evidence that there were any actual victims in the cases involving any of the Defendants, as the woman in the advertisements was a fictitious individual created by law enforcement, and there was no money and/or sexual services exchanged,” wrote Kirpalani. “Consequently, there was no evidence that any of the Defendants knowingly enabled or caused, or attempted to enable or cause, another person to engage in commercial sexual activity.”
‘We’re Going To Take Tvery Single John…and Put Them in Prison for Five Years?’
The state appealed, but the Appeals Court judge also sided with the defendants. So the state appealed again.
The Massachusetts high court heard oral arguments for the case on January 6.
Massachusetts’ position is that the state’s sexual servitude statute clearly captures paying for sex among its prohibited activities. It comes down to the word “obtain,” the state argued.
But at the same time the state legislature enacted a sex trafficking statute in 2011, it also raised the penalty for “soliciting a prostitute,” making this misdemeanor crime punishable by “a fine of not less than $1,000 and not more than $5,000” and up to two and a half years in jail.
“We’re going to take every single John, charge them with sex trafficking, and put them in prison for five years? I don’t think that was the intent,” defense attorney Patrick Noonan told Massachusetts Supreme Judicial Court justices last week. It would make the misdemeanor offense completely redundant.
It’s unclear when a decision will be issued, but “SJC cases are typically decided within 130 days,” the Boston Globe reports.
The Dangers of Exploitation Creep
This is an important case to watch for folks concerned with the inflation of human trafficking and sex trafficking—concepts that have undergone a massive case of what sometimes called “exploitation creep.” In recent decades, we’ve seen a series of attempts to expand the parameters of these crimes from truly heinous and coercive acts to much less serious offenses.
In many cases, this has involved roping in third parties—drivers, websites, hotels, social media platforms, sales software companies, etc—into liability for coercive or violent acts that did take place but of which they had only the most tangential and unwitting involvement. Another element of this impulse involves defining consenting adult sex workers as prima facie victims and anyone who pays them as a victimizer or trafficker.
If Massachusetts’ high court justices side with the state, it obviously won’t bind other states to similar interpretations of their own sex trafficking statutes. But plenty of police agencies and prosecutors across the country already refer to plain old prostitution stings as “sex trafficking operations” and the arrest of potential prostitution customers as a “human trafficking bust,” even when the only charges brought are misdemeanor solicitation charges. The authorities in many states would clearly welcome the opportunity to include attempting to pay for sex under the official rubric of sex trafficking.
If Massachusetts’ top court greenlights the state’s attempt to charge sex-work customers as sex traffickers, you can bet it will encourage authorities in other states to play faster and looser with their own definitions. If the court sides with the state here, I think we’ll be looking at a major escalation of an already dangerous trend.
Labeling people who want to pay a willing adult for sex as sex traffickers is certainly unfair to those people, and not just because they can be imprisoned for so much longer. It’s one thing to have a misdemeanor arrest on your record or to have to disclose a solicitation conviction; it’s quite another to have a felony record and have to tell people you’re a convicted sex trafficker.
And the negative consequences of this shift don’t stop with those convicted. Defining all prostitution as sex trafficking threatens to drive the industry further underground and to make customers less likely to engage in screening protocols and other safety measures, making the work more dangerous for adult sex workers and for adult and minor victims of sexual exploitation alike.
It also takes resources away from fighting crimes where there are actual victims, instead encouraging cops and prosecutors to conduct sure-thing stings where the only “victim” is an undercover cop.
And it does all this while letting authorities ratchet up sex trafficking arrest and conviction numbers, confusing the issue by conflating two very different things in public data. This spike in arrests and convictions can then be used to stoke public fear and build demand for more action. It’s can be used to justify raising police budgets, expanding surveillance power, suppressing online speech, and generally calling for more tough-on-crime policies. It can also be used to call for new regulations on businesses as diverse as massage parlors, hotels, and social media platforms.
Policies like these affect people far beyond sex workers and their clients, and they do nothing to help actual victims of sexual violence, coercion, and abuse. Let’s hope Massachusetts justices see the state’s ploy for what it is and make the right call here.
More Sex & Tech News
Things aren’t looking good for TikTok after a U.S. Supreme Court hearing last week considering a law that would force the platform’s parent company, ByteDance, to sell off its U.S. operations or be banned. Reason‘s Robby Soave has written a rundown of what transpired in court. “The Supreme Court appeared largely—though not entirely—unmoved by arguments that a federal ban on TikTok would violate the First Amendment rights of the app’s millions of American users,” writes Soave:
During oral arguments before the Court on Friday, the justices seemed inclined to agree with the federal government that a national security rationale was sufficient to force the app’s Chinese parent company, ByteDance, to sell to an American company…. President-elect Donald Trump opposes the ban and petitioned the Court to delay it until he takes office so that an alternative can be worked out. Shark Tank investor Kevin O’Leary and billionaire Frank McCourt have offered to buy the app for $20 billion, but ByteDance has insisted that it would sooner comply with the ban than sell the company. Supporters of the ban tend to see this as evidence that the Chinese government deems TikTok too useful for its nefarious propagandistic purposes.
Of course, even if it were true that the app is rife with Chinese propaganda, Americans enjoy the First Amendment right to consume such content. The justices seemed most skeptical of the government’s case to the extent it hinged on this point. Justice Elena Kagan likened the banning of TikTok to the Red Scare, in which the federal government violated the free speech rights of American communists due to their affiliation with the Soviet Union.
“That’s exactly what they thought about Communist Party speech in the 1950s, which was being scripted in large part by international organizations or directly by the Soviet Union,” said Kagan.
Several justices also seemed disturbed by the secretive nature of the government’s case against TikTok. National security experts have posited that TikTok poses a fundamental risk, but the evidence they showed to lawmakers has not been released to the public. Justice Gorsuch objected to “the government’s attempt to lodge secret evidence in this case without providing any mechanism for opposing counsel to review it.”
If it was just a matter of TikTok itself being banned, the justices would probably deem this an impermissible, content-based suppression of speech. Unfortunately, most of the Court seemed sufficiently persuaded that forcing ByteDance—a foreign company that does not itself enjoy First Amendment rights—to sell the app was not necessarily a content-based restriction on speech.
What is Tubi? You might find Tubi tucked away among the apps preloaded on your Smart TV. The free, ad-supported streaming service owned by Fox fields “the kind of movies you might have once found mindlessly flipping through the channels, back before streaming came along and algorithms began crafting our entertainment diets,” writes The Washington Post‘s Travis M. Andrews:
Tubi isn’t only filled with so-bad-they’re-good movies. It’s got a bit of everything. A Criterion movie here. A strange Rob Lowe-hosted game show there. “Bad Boys,” “Dances With Wolves” and every episode of “Columbo” and “The Magic School Bus” are neighbors on the streaming service. It’s like a T.J. Maxx or a Marshall’s: an awful lot of bargain-bin fare, not particularly organized—currently, you’ll find “Despicable Me 3” but not its predecessors—but also packed with diamonds in the rough if you’re willing to spend time sorting through the riffraff.
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