The Justice Department complaint against former Subway spokesman Jared Fogle fully reveals how he used his power and celebrity to exploit vulnerable children. But Fogle will only plead guilty to child pornography charges and to traveling to engage in illicit sexual contact with a minor. A recent Washington Post blog post in asked why Fogle wasn’t charged with rape. We have another question: Why wasn’t he charged with child sex trafficking?

According to his signed plea agreement, Fogle paid for sex with at least two minors and offered a finders fee to others if they could find him children as young as 14 to sexually abuse — which under federal law makes him a child sex trafficker. Certainly, Fogle’s crimes constitute rape, but Fogle was also an active participant in the child sex-trafficking marketplace. Indeed, the Fogle case is a classic example of child sex trafficking in the United States. He should have been charged accordingly.

The documents released by the U.S. attorney’s office show that Fogle used the Internet and social media to initiate contact with children. The Internet is consistently used for the recruitment and sale of children in the United States. Since 2009, in Cook County, Ill., alone, more than 50 arrests for sex trafficking were made using information found online.

Fogle then met his victims in luxury hotels. In New York, where Fogle traveled to meet his victims, 45 percent of commercial child sexual exploitation takes place in hotels, according to a 2008 analysis. Luxury hotels often act as if they are immune to this problem — that such crimes occur only at cheap hotels — but we know that any hotel can be used for solicitation of commercial sex with minors. When Fogle came to New York, he didn’t stay at some budget hotel near the airport; he stayed at the Ritz Carlton and the Plaza. And he had his victims meet him where he was staying.

The media have unwittingly engaged in victim-blaming in this case, dubbing the underage victims as “escorts” or, worse, “child prostitutes.” Even Tim Horty, a spokesman for the U.S. attorney’s office for the Southern District of Indiana, got it wrong, saying: “There is no federal statute for rape in this situation that would have applied.” This is not true. We have very strong federal laws against both child rape and child sex trafficking.

This is especially astonishing because in May, President Obama signed into law the Justice for Victims of Trafficking Act, which eliminated any doubt as to the application of human trafficking laws to buyers who knowingly seek sex with children. Under this federal law, if you knowingly patronize or solicit a person under 18 for a commercial sex act, you are subject to at least 10 years in prison. By Fogle’s own admission, according to prosecutors, “he repeatedly … engage[d] in commercial sex acts with victims he knew were underage minors.” But because those prosecutors did not charge Fogle with trafficking, he faces a minimum of only five years in prison. While the plea agreement ensures that Fogle will go to jail for his crimes and pay his victims restitution, charging him essentially with engaging only in interstate prostitution reinforces the false narrative that these children are willing participants in the sex trade, as opposed to victims of child rape and child sex trafficking.

Fogle was not charged with child sex trafficking because we still do not recognize the harm caused by buyers when they purchase children for commercial sex. But buyers of sex-trafficked children are as culpable for the crime of trafficking as the pimps who sell the children. Failing to charge Fogle with trafficking minimizes the role buyers play in the child sex-trafficking marketplace. The U.N. International Labor Organization estimates that, globally, the sex-trafficking industry generates profits as high as $99 billion a year. This is not surprising when you consider people such as Fogle are willing to pay not only to exploit children but also to recruit new children to exploit — “the younger the girl, the better,” as prosecutors say Fogle explained to one victim.

Like so many we have seen before, this case ends with Fogle avoiding human-trafficking charges. The only silver lining is that while Fogle may escape full accountability, he will be penalized for his actions that contributed to the child-trafficking marketplace thanks to a stopgap measure in the Justice for Victims of Trafficking Act. In addition to the restitution Fogle will pay his victims, he will be required to pay an additional $5,000 penalty per charge. This money will go into the Domestic Trafficking Victims Fund, which will help pay for victim-service programs and training for law enforcement — so that the next time a Jared Fogle is arrested, he will be charged as a human trafficker.


Faiza Mathon-Mathieu and Michelle Guelbart are, respectively, director of public policy and government relations and director of private-sector engagement for the anti-child-trafficking organization ECPAT-USA. They wrote this article for the Washington Post.