34

My question is prompted by an episode of the TV show Law & Order, specifically the 6th-season episode titled "Slave".

In the episode, a couple of the lawyers state as fact that it is not illegal for a parent to sell their child. That seems clearly false, but I'm skeptical that the writers would write something that's obviously wrong. It makes me wonder if there's something I'm missing.

The prime suspect for a shooting in New York City is a 13-year-old boy.

The truth is that his mother, an impoverished crack addict, has "sold" her son to her drug dealer to settle a debt of $865, and to gain credit to acquire more drugs. The boy is guilty of the shooting, which he performed under direct orders from the dealer.

Once the prosecutors figure this out, they present their theory of the case to the boy and his attorney, hoping to deal for his testimony. He refuses to deal, and then his lawyer says:

Selling your kid may be despicable, but it's not illegal.

In the next scene, District Attorney Adam Schiff concurs:

She's right. No statute against selling your kid.

My question: is that accurate? More precisely, were those statements consistent with the law in New York City in April 1996 (when this episode aired)?


In case it matters, here's the bulk of what is revealed about the arrangement, elicited when McCoy examines the boy (Lonnie) on the witness stand. Of course, there's no formal legal agreement. None of the people I quoted earlier had this information when they made the quoted statements.

McCoy: Lonnie, tell these people why you didn't run away [from the whole situation with the dealer].
Lonnie: Because of my mom. She said I had to stay with Ross [the dealer] and do what he said.
McCoy: Why?
Lonnie: She owed him money and he was going to hurt her.
McCoy: How long were you with him before you were arrested?
Lonnie: I'm not sure. It was a lot of weeks.
...questions about his activities with the dealer...
McCoy: Did he pay you?
Lonnie: No, sir.
... questions about bad treatment
McCoy: How long were you supposed to stay with him?
Lonnie: I don't know.
McCoy: As long as your mother needed drugs?
Lonnie: I don't know.


I'm not sure whether it's appropriate to tag this with contract-law, property, employment, or even us-constitution (e.g. 13th Amendment).

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  • 12
    Interestingly, the Goofs page on the IMDB listing for that episode includes a factual error regarding the criminal charges against a character for possession of cocaine, but not in regards to the issue posed in this question. Mar 8 at 7:53
  • 8
    You can relinquish parental rights but a child is not an item that you posses. You can become a parent which has rights and responsibilities assiociated with it but you dont own a child
    – Neil Meyer
    Mar 8 at 8:44
  • 13
    Technically it is not illegal but it is not legal either because it is impossible. You cannot sell something you dont own.
    – Neil Meyer
    Mar 8 at 8:46
  • 4
    However, if B thinks that A had valid title, and that B now owns the car, and sells it to C, that is a sale, even though B does not have valid title. Mar 8 at 14:56
  • 6
    @Trish It may be a crime and a tort as well, but the law is quite clear that it is a sale nonetheless. Not every sale is legal, which is why we have crimes for selling drugs, buying votes, and insider trading.
    – bdb484
    Mar 8 at 16:16

4 Answers 4

48

I don't know of any crime specifically addressing the sale of a child, but a good prosecutor rarely needs such a narrowly tailored solution to bring charges against anyone.

In real life, I imagine a prosecutor who wanted to charge the mother would have relied on New York's coercion statute, which makes it a felony when a person:

compels or induces a person to engage in conduct ... or compels or induces a person to join a group, organization or criminal enterprise ... by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will cause physical injury to a person.

Here, the mother and the dealer have compelled the victim to engage in criminal activity and join the dealer's drug operation by threatening that the dealer "was going to hurt her" if he didn't cooperate in the criminal enterprise.

The coercion statute had been on the books for decades (at least) at the time this episode aired.

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  • 16
    Seems like a strong lock for child endangerment as well.
    – Joe W
    Mar 8 at 14:07
  • 5
    Oh, yes. Probably aiding and abetting the sale of drugs, as well. I mean, a creative prosecutor can always find something.
    – bdb484
    Mar 8 at 16:17
  • 3
    @bdb484 A modestly creative prosecutor in the US can usually find enough for 5-10 years even if what you did wasn't obviously criminal. If it actually was you're probably looking at life. See volokh.com/2013/01/14/aaron-swartz-charges and volokh.com/2013/01/16/… or kb.osu.edu/bitstream/handle/1811/73451/OSJCL_V11N2_701.pdf or many others.
    – DRF
    Mar 8 at 19:44
  • 4
    15 U.S.C. § 1584 specifically prohibits the sale of a person. Mar 8 at 21:14
  • 5
    +1 There is no law explicitly stating that you are not allowed to kill someone wearing a clown costume while riding a unicycle. Yet if you did so, there will be plenty of crimes under which you would be prosecuted.
    – vsz
    Mar 9 at 8:11
56

This is totally, flat out wrong. Quite frankly, it is immoral, although not illegal, for the producers to even cause some viewers to believe it is true.

The United States criminal code (Title 18) in Chapter 77, prohibits all forms of slavery (except as punishment for a crime which New York State does not authorize) including the one described. It is not legal. This statute implements the 13th Amendment to the U.S. Constitution (abolishing slavery except as punishment for a crime) and was enacted under the enforcement authority provided by that statute. Those statutes have been in force for more than a century. For example, 18 USC § 1590 states:

(a)Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.

(b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a).

Similarly, 15 U.S.C. § 1584 is squarely on point:

(a)Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.

(b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties described in subsection (a).

It also would constitute criminal child endangerment, child abandonment, use of a child to commit a controlled substances offense, conspiracy to commit criminal coercion, conspiracy to have a child engaged in illegal child labor, etc.

Possession of controlled substances by the mother is also a crime, although that crime was committed before the mother tried to sell her child to pay her drug debt.

(I originally also included crimes like sex trafficking and pimping a child, but from the question it does not appear that the facts implicated those offenses.)

It would also constitute grounds to civilly terminate the parental rights of the mother for child abuse and/or neglect, because it violated laws in addition to criminal laws.

If the child had a living father whose parental rights had not been terminated (one can't tell from the question, but perhaps the full episode made it clearer), it would violate the father's right to custody of his child.

The child, though a guardian or as an adult, could sue the mother for intentional inflection of emotional distress/outrageous conduct, false imprisonment, failure to provide support, etc.

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  • 7
    "prohibits all forms of slavery" with the (explicit) exception of forced prison labor, although that is open to some argument about definitions.
    – origimbo
    Mar 8 at 17:25
  • 9
    @origimbo True, but irrelevant in the context of this question, since the child was not enslaved as punishment for a crime. It is common not to mention every possible exception not implicated by the question (likewise there might technically be an exception for a slave of a foreign ambassador who is physically within a foreign embassy and from a country that at the time permitted slavery when the U.S. did not, e.g. Kuwait in 1980, but that exception doesn't apply either.
    – ohwilleke
    Mar 8 at 17:34
  • 2
    Nitpick: Law & Order focuses on the New York State justice system, so federal law isn't what DA Adam Schiff would be focusing on. Mar 8 at 21:01
  • 14
    @Michael Seifert True, but Schiff wouldn't ignore Federal law and say something is "legal" that federal law prohibits. There is also NYS 260.10 (child endangerment) which pretty clearly would apply. Mar 8 at 21:41
  • 6
    @Acccumulation One of the spoiler portions states: "The boy is guilty of the shooting, which he performed under direct orders from the dealer." The boy was sold for the purpose of following any orders the dealer gave him with the understanding that it was to be a slave-master relationship in which the dealer's authority over the boy was absolute. Moreover, selling children as slaves is well established to be a crime even if they can't yet work.
    – ohwilleke
    Mar 9 at 0:29
12

Human Trafficking Laws

Since the date of the episode, the US Federal Government passed the The Victims of Trafficking and Violence Prevention Act (TVPA) which forms 22 U.S. Code Chapter 78 which makes it unlawfull to "traffic in" (buy or sell) human beings, particualrly for sexual purposes. According to "Human Trafficking State Laws":

In 2003, Washington became the first state to criminalize human trafficking. Since then, every state has enacted laws establishing criminal penalties for traffickers seeking to profit from forced labor or sexual servitude. The laws vary in several ways including who is defined as a “trafficker,” the statutory elements required to prove guilt in order to obtain a conviction and the seriousness of the criminal and financial penalties those convicted will face.

But none of those laws was in effect during the 1990s.

Thirteenth Amendment

Whether a prosecution could have been brought brought directly under the 13th amendment to the US Constitution is not entirely clear to me. Bailey v. Alabama, 219 U.S. 219 (1911) held that the 13th Amendment was self-executing:

[219 U. S. 240] Pursuant to the authority thus conferred [by section 2 of the 13th amendment], Congress passed the Act of March 2, 1867, c. 187, 14 Stat. 546, the provisions of which are now found in §§ 1990 and 5526 of the Revised Statutes, as follows:

SEC. 1990. The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in the Territory of New Mexico, or in any other territory or state of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or of any other territory or state, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

SEC. 5526. Every person who holds, arrests, returns, or causes to be held, arrested, or returned, or in any manner aids in the arrest or return, of any person to a condition of peonage, shall be punished by a fine of not less than one thousand nor more than five thousand dollars, or by imprisonment not less than one year nor more than five years, or by both.

...

[219 U. S. 241] The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude.

While the Amendment was self-executing so far as its terms were applicable to any existing condition, Congress was authorized to secure its complete enforcement by appropriate legislation. As was said in the Civil Rights Cases 109 U.S. 20:

By its own unaided force and effect, it [the 13th amendment] abolished slavery and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character, for the amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.

Peonage Abolition Act of 1867

The Court in Bailry cites the The Peonage Abolition Act of 1867 which made it a crime to hold any person in "voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise" This law would, it seems to me, have been able to be applied to the case described in the question, but it was more usually applied to agricultural labor, and it might well be that no one would have thought to apply it. The first part of this law became 42 USC 1994 and the second 18 USC 1581.

Findlaw's page on the 13th Amendment also quotes the Civil Rights Cases 109 U.S. 3, 20 (1883):

This Amendment is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom.

The Findlaw page goes on to say that:

The force and effect of the Amendment itself has been invoked only a few times by the Court to strike down state legislation which it considered to have reintroduced servitude of persons, and the Court has not used section 1 of the Amendment against private parties. In 1968, however, the Court overturned almost century-old precedent and held that Congress may regulate private activity in exercise of its Section 2 power to enforce section 1 of the Amendment.{Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968) [in Fiindlaw's footnote 27]}

The Peonage Abolition Act was also extensively refereed to in Pollock v. Williams 322 U.S. 4 (1944) where the Court wrote, in section 22 of the opinion:

he undoubted aim of the Thirteenth Amendment as implemented by the Antipeonage Act was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. ... Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service.

Mann Act

The Mann Act (18 U.S.C. § 1581) prohibited transporting people across state lines for prostitution (originally only women), but no state line is stated to have been crossed in the question. Nor does it seem that selling a child for non-sexual labor fit the terms of the Mann Act.

Child Endangerment Law

The New York State Penal Law Article 260, Section 260.10 provides that:

A person is guilty of endangering the welfare of a child when:

  1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health; or
  2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he or she fails or refuses to exercise reasonable diligence in the control of such child to prevent him or her from becoming an "abused child," a "neglected child," a "juvenile delinquent" or a "person in need of supervision," as those terms are defined in articles ten, three and seven of the family court act.

It would seem that in the circumstances discussed in the question, the drug dealer could have been prosecuted under 260.10(1) and the mother under 260.10(2). It is hard to see how an experienced prosecutor would have overlooked this law.

0

Slavery, trafficking, that's all hard to prove and make a compelling case from. What really gets you are the books, worker protection and anti discrimination laws.

  1. Tax evasion. A federal crime. Mom didn't file the gains from the transaction as income.
  2. There were other moms with disabled children whose offers were denied. This violates ADA SEC. 12112: "No covered entity [like this drug dealership with more than 15 employees] shall discriminate against a qualified individual on the basis of disability in regard to [...] the hiring [...]".
  3. The boy was white and was preferred over other mom's offers of their black children, a violation of Title VII of the Civil Rights Act of 1964, SEC. 703:
    "(a) It shall be an unlawful employment practice for an employer
    (1) to fail or refuse to hire [...] any individual [...] because of such individual's race, color [...]."
  4. The employer violated the OSHA regulations:
    1. His bathroom breaks were unreasonably delayed.
    2. There was in inadequate number of bathrooms: "toilet facilities, in toilet rooms separate for each sex, shall be provided" (OSHA regulation 1910.141(c)(1)(i)); for a business with more than 15 employees there must be at least 2 bathrooms. There must be a bathroom for each sex; an exemption exists "where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet". Since the locks were frequently broken, the exemption condition was not met and the business was in violation. The 13 year old exposed signs of PTSD after a female employee walked in at him defecating.
  5. New York State's ARTICLE 28-F, Crohn's and Colitis Fairness Act, Section 492 requires all "businesses open to the general public for the sale of goods or services" — like an established drug dealership — to allow "any individual who is lawfully on the premises [...] to use that toilet facility " provided they have "an eligible medical condition or utilize[s] an ostomy device". If no witness can be found who was denied access, or if they have died in the meantime, a suitable undercover sting operation should be easy to stage.
1
  • An interesting take, but does the drug dealer's business have 15 or more employees?
    – nick012000
    Mar 10 at 13:57

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