Ninth Circuit Dismisses Nevada Anti-Brothel Lawsuit

SAN FRANCISCO—The appeal of the long-running lawsuit filed by the National Center on Sexual Exploitation (NCOSE) on behalf of three women who claim they were forced into prostitution in Nevada brothels, and that those brothels, which are legal in several Nevada counties, should be shut down as both violations of the federal Mann Act and the anti-slavery amendment to the U.S. Constitution, has just been dismissed by a three-judge panel of the Ninth Circuit Court of Appeals, which agreed with a lower court that the plaintiffs all lack standing to sue. The prime mover behind the suit has been Rebekah Charleston, who claimed that not only was she held captive by a man acting as a pimp and forced to supply sexual services in "one of Nevada's most famous brothels," but that because such brothels continue to exist (though all are now under lockdown due to the pandemic), she and her fellow appellants are "under threat of an actual and imminent injury" and suffer an "exponentially  higher risk of revictimization" because, according to them, "people typically re-enter commercial sexual exploitation multiple times before permanently leaving." Trouble was, the appeals court noted that it must be the appellants themselves who suffer that "higher risk of revictimization" and are "at risk of 'actual and imminent' harm" in order to have standing in the case, not random women working in the brothels for whatever reason. Moreover, the court dismissed the appellants' claim that they suffer ongoing injury (which would be one basis of standing) because "the physical and psychological effects of sex trafficking and prostitution endure long after victims escape from their... exploitation," because the U.S. Supreme Court has previously ruled that "[t]he emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant"—and it's clear that none of these appellants are in any danger of future harm by the mere existence of legal brothels. The appeals panel also declined to recognize the appellants as representatives of any third parties (presumably, the prostitutes who continue to work in Nevada's brothels), since although attorney Neal Kuman Katyal argued in a 1993 Yale Law Journal that, "Third-party standing may be the only practical way to assert the rights of enslaved human beings," the court declined to read the appellants' arguments as invoking third-party standing "because they neither expressly do so nor cite any relevant cases." Curiously, a footnote to the opinion reads, "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3," which states that "Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion," though such dispositions issued after January 1, 2007 "may be cited to the courts of this circuit in accordance with [Federal Rules of Appellate Procedure] 32.1." What that likely means is that the disposition dismissing the Charleston, et al case is not likely to be cited in any subsequent case of a similar nature unless the same claims or issues are presented. The details of the lawsuit may be found here. The dismissal of the lawsuit at the district court level has been covered here.