Moore v. Rubin
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Opinion
24-2018-cv Moore et al. v. Rubin
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2024
(Argued: April 8, 2025 Decided: November 21, 2025)
Docket No. 24-2018-cv
AMY MOORE, MIA LYTELL, NATASHA TAGAI, EMMA HOPPER, BRITTANY HASSEN, BRITTANY REYES,
Plaintiffs-Appellees,
- against -
HOWARD RUBIN,
Defendant-Appellant. *
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Before: WALKER, CHIN, and PARK, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. Appeal from a judgment of the United States District Court for the
Eastern District of New York (Cogan, J.), following a jury trial, holding
defendant-appellant liable for sex trafficking under the Trafficking Victims
Protection Act and awarding six women compensatory and punitive damages
totaling $3,850,000. Defendant-appellant appeals on several grounds, including
the sufficiency of the evidence, purported errors in the district court's jury
instructions, and the availability of punitive damages under the statute.
AFFIRMED.
BRIAN J. ISAAC, Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY, for Plaintiffs-Appellees Amy Moore and Emma Hopper.
MATTHEW W. SCHMIDT, Schmidt Law Corporation, Tiburon, CA, for Plaintiff-Appellee Mia Lytell.
EDWARD A. MCDONALD (Benjamin E. Rosenberg and May Chiang, on the brief), Dechert LLP, New York, NY, for Defendant-Appellant.
CHIN, Circuit Judge:
In this case, defendant-appellant Howard Rubin, a successful bond
trader, recruited women from around the country to travel to New York and
-2- engage in sadomasochism with him in exchange for money. Rubin employed
assistants, whom he paid up to $15,000 per month, to lure women with promises
of cash, fancy dinners, and first-class airline tickets to travel to his New York
penthouse for sexual activity. Although some of the women knew that they
might have rough sex, including getting spanked or slapped during the
encounters, they were not aware that Rubin would -- against their will -- beat
them, gag them, verbally degrade them, insert objects inside them, assault them
in public, and shock them with electrical instruments.
Together, six plaintiffs 1 brought a civil action against Rubin and his
agents, asserting claims under the Trafficking Victims Protection Act (the
"TVPA") and state tort claims for assault, battery, false imprisonment, and
intentional infliction of emotional distress. A jury found Rubin liable under the
TVPA and awarded $500,000 in compensatory damages to each plaintiff. The
jury also awarded $120,000 in punitive damages to five of the plaintiffs and
$250,000 to one of them. Rubin appeals, arguing that there was insufficient
evidence to support plaintiffs' claims under the TVPA, the court delivered
erroneous jury instructions, and the TVPA does not authorize punitive damages.
1 Only three of the six women filed briefs in response to Rubin's appellate brief. -3- For the reasons set forth below, the judgment of the district court is
BACKGROUND
I. The Facts 2
A. The Parties
1. Howard Rubin
Rubin is a Harvard-educated bond trader with an extensive and
lucrative career on Wall Street, including most recently at the Soros Fund
Management in Manhattan. At the time of trial, he was sixty-six years old with a
net worth estimated to be upwards of $50 million. He was married and a father
of three children, although he was in the process of getting divorced. He
testified that he "personally derive[d] sexual pleasure from inflicting -- you
know, getting off, [from] inflicting physical pain and verbal abuse" upon women.
Id. at 1584.
2 On appeal following a jury verdict, we construe the evidence and draw all reasonable inferences in favor of the prevailing party -- here, plaintiffs. See Arlio v. Lively, 474 F.3d 46, 48 (2d Cir. 2007); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998). -4- 2. Plaintiffs
Six women -- plaintiffs Natasha Tagai, Brittany Reyes, Amy Moore,
Mia Lytell, Emma Hopper, and Brittany Hassen -- filed this action against Rubin.
Tagai met Rubin in 2009, when she was twenty-six years old. 3 She
engaged in encounters with him for approximately eight years. She was a
nightclub server and former model for Playboy and had attended one year of
college and a few months of cosmetology school.
Reyes met Rubin in 2016, after being introduced to him by a close
friend. She met Rubin for a single encounter and never returned to visit him.
She was an emergency medical technician who flew to New York from Las
Vegas, Nevada to meet Rubin and was living in Miami, Florida when the case
was filed. She did not graduate high school.
Moore met Rubin in 2016 after one of Rubin's agents recruited her.
Moore flew out to meet Rubin once more following their initial encounter. She
grew up in the foster care system and attained an eleventh-grade education
before dropping out of high school and becoming a Playboy model.
3 Although the record is unclear as to exactly when Tagai's son was born, she became a young, single mother around the same time she met Rubin. -5- Lytell met Rubin for the first time in 2016 during a visit with Moore.
Following their first encounter, Rubin paid Lytell to recruit her friends to engage
in sexual encounters with him. At the time, she was in a poor financial situation
and dependent on Xanax and Percocet. She visited Rubin two additional times
following their initial encounter.
Hopper, an esthetician in Atlanta, Georgia, was twenty-two years
old and employed at a strip club when she met Rubin in 2015. She had been
sexually abused as a child.
Hassen was a twenty-one-year-old model when she met Rubin in
2011. When they met for the first time, Rubin encouraged one of his assistants to
give her oxycodone. Hassen developed an addiction to the drug and became
financially dependent upon Rubin. She engaged in numerous encounters with
Rubin after 2011 but stopped after he brutalized her in an incident in 2014.
B. Rubin's Network, Penthouse, and Contracts
In or around the mid-2000s, Rubin developed an interest in
sadomasochistic sex. 4 He soon found and solicited women online to engage in
4 Sadomasochism is defined as "the derivation of sexual gratification from the
-6- BDSM in exchange for money. Rubin eventually became acquainted with a
"madam[e]" who found partners willing to engage in BDSM with him. Supp.
App'x at 1585. Rubin rented hotel rooms across New York City and "br[ought] a
duffle bag full of sex toys" for his various BDSM encounters. Id. at 1595.
In early 2007, Rubin met Jennifer Powers at a nightclub, and the two
entered into a romantic relationship. Throughout their relationship, Rubin and
Powers engaged in BDSM. Rubin and Powers eventually ended their two-and-a-
half-year affair, and Rubin continued engaging in BDSM with other women. To
keep up with his "secondary life," that is, a life separate from his family life,
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24-2018-cv Moore et al. v. Rubin
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2024
(Argued: April 8, 2025 Decided: November 21, 2025)
Docket No. 24-2018-cv
AMY MOORE, MIA LYTELL, NATASHA TAGAI, EMMA HOPPER, BRITTANY HASSEN, BRITTANY REYES,
Plaintiffs-Appellees,
- against -
HOWARD RUBIN,
Defendant-Appellant. *
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Before: WALKER, CHIN, and PARK, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. Appeal from a judgment of the United States District Court for the
Eastern District of New York (Cogan, J.), following a jury trial, holding
defendant-appellant liable for sex trafficking under the Trafficking Victims
Protection Act and awarding six women compensatory and punitive damages
totaling $3,850,000. Defendant-appellant appeals on several grounds, including
the sufficiency of the evidence, purported errors in the district court's jury
instructions, and the availability of punitive damages under the statute.
AFFIRMED.
BRIAN J. ISAAC, Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY, for Plaintiffs-Appellees Amy Moore and Emma Hopper.
MATTHEW W. SCHMIDT, Schmidt Law Corporation, Tiburon, CA, for Plaintiff-Appellee Mia Lytell.
EDWARD A. MCDONALD (Benjamin E. Rosenberg and May Chiang, on the brief), Dechert LLP, New York, NY, for Defendant-Appellant.
CHIN, Circuit Judge:
In this case, defendant-appellant Howard Rubin, a successful bond
trader, recruited women from around the country to travel to New York and
-2- engage in sadomasochism with him in exchange for money. Rubin employed
assistants, whom he paid up to $15,000 per month, to lure women with promises
of cash, fancy dinners, and first-class airline tickets to travel to his New York
penthouse for sexual activity. Although some of the women knew that they
might have rough sex, including getting spanked or slapped during the
encounters, they were not aware that Rubin would -- against their will -- beat
them, gag them, verbally degrade them, insert objects inside them, assault them
in public, and shock them with electrical instruments.
Together, six plaintiffs 1 brought a civil action against Rubin and his
agents, asserting claims under the Trafficking Victims Protection Act (the
"TVPA") and state tort claims for assault, battery, false imprisonment, and
intentional infliction of emotional distress. A jury found Rubin liable under the
TVPA and awarded $500,000 in compensatory damages to each plaintiff. The
jury also awarded $120,000 in punitive damages to five of the plaintiffs and
$250,000 to one of them. Rubin appeals, arguing that there was insufficient
evidence to support plaintiffs' claims under the TVPA, the court delivered
erroneous jury instructions, and the TVPA does not authorize punitive damages.
1 Only three of the six women filed briefs in response to Rubin's appellate brief. -3- For the reasons set forth below, the judgment of the district court is
BACKGROUND
I. The Facts 2
A. The Parties
1. Howard Rubin
Rubin is a Harvard-educated bond trader with an extensive and
lucrative career on Wall Street, including most recently at the Soros Fund
Management in Manhattan. At the time of trial, he was sixty-six years old with a
net worth estimated to be upwards of $50 million. He was married and a father
of three children, although he was in the process of getting divorced. He
testified that he "personally derive[d] sexual pleasure from inflicting -- you
know, getting off, [from] inflicting physical pain and verbal abuse" upon women.
Id. at 1584.
2 On appeal following a jury verdict, we construe the evidence and draw all reasonable inferences in favor of the prevailing party -- here, plaintiffs. See Arlio v. Lively, 474 F.3d 46, 48 (2d Cir. 2007); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998). -4- 2. Plaintiffs
Six women -- plaintiffs Natasha Tagai, Brittany Reyes, Amy Moore,
Mia Lytell, Emma Hopper, and Brittany Hassen -- filed this action against Rubin.
Tagai met Rubin in 2009, when she was twenty-six years old. 3 She
engaged in encounters with him for approximately eight years. She was a
nightclub server and former model for Playboy and had attended one year of
college and a few months of cosmetology school.
Reyes met Rubin in 2016, after being introduced to him by a close
friend. She met Rubin for a single encounter and never returned to visit him.
She was an emergency medical technician who flew to New York from Las
Vegas, Nevada to meet Rubin and was living in Miami, Florida when the case
was filed. She did not graduate high school.
Moore met Rubin in 2016 after one of Rubin's agents recruited her.
Moore flew out to meet Rubin once more following their initial encounter. She
grew up in the foster care system and attained an eleventh-grade education
before dropping out of high school and becoming a Playboy model.
3 Although the record is unclear as to exactly when Tagai's son was born, she became a young, single mother around the same time she met Rubin. -5- Lytell met Rubin for the first time in 2016 during a visit with Moore.
Following their first encounter, Rubin paid Lytell to recruit her friends to engage
in sexual encounters with him. At the time, she was in a poor financial situation
and dependent on Xanax and Percocet. She visited Rubin two additional times
following their initial encounter.
Hopper, an esthetician in Atlanta, Georgia, was twenty-two years
old and employed at a strip club when she met Rubin in 2015. She had been
sexually abused as a child.
Hassen was a twenty-one-year-old model when she met Rubin in
2011. When they met for the first time, Rubin encouraged one of his assistants to
give her oxycodone. Hassen developed an addiction to the drug and became
financially dependent upon Rubin. She engaged in numerous encounters with
Rubin after 2011 but stopped after he brutalized her in an incident in 2014.
B. Rubin's Network, Penthouse, and Contracts
In or around the mid-2000s, Rubin developed an interest in
sadomasochistic sex. 4 He soon found and solicited women online to engage in
4 Sadomasochism is defined as "the derivation of sexual gratification from the
-6- BDSM in exchange for money. Rubin eventually became acquainted with a
"madam[e]" who found partners willing to engage in BDSM with him. Supp.
App'x at 1585. Rubin rented hotel rooms across New York City and "br[ought] a
duffle bag full of sex toys" for his various BDSM encounters. Id. at 1595.
In early 2007, Rubin met Jennifer Powers at a nightclub, and the two
entered into a romantic relationship. Throughout their relationship, Rubin and
Powers engaged in BDSM. Rubin and Powers eventually ended their two-and-a-
half-year affair, and Rubin continued engaging in BDSM with other women. To
keep up with his "secondary life," that is, a life separate from his family life,
Rubin hired Powers to be his personal assistant to coordinate the logistics of
meeting women for his BDSM encounters. Id. at 1597-98. Powers agreed.
In 2011, Rubin rented a penthouse apartment to use as a base for his
BDSM encounters. Rubin covered the walls of his penthouse living room with
infliction of physical pain or humiliation either on another person or on oneself." Sadomasochism, Merriam-Webster, https://www.merriam-webster.com/dictionary/ sadomasochism [https://perma.cc/57LY-V8WM] (last visited Sep. 21, 2025). Throughout this opinion, we interchangeably refer to Rubin's encounters as either sadomasochistic sex or "BDSM," as the parties did below. See, e.g., Supp. App'x at 1582. BDSM refers to "a combination of the abbreviations of bondage and discipline (BD) and dominance and submission (DS) along with sadism and masochism (SM)" but covers a wide range of sexual activity. See generally Anouk Schori, Christian Jackowski & Corinna A. Schön, How Safe Is BDSM? A Literature Review on Fatal Outcome in BDSM Play, 136 Int'l J. Legal Med. 287, 287 (2022). -7- photos of different models. He converted one of the bedrooms into a "sex
dungeon," id. at 1597, borne out of his fixation with the movie Fifty Shades of
Grey. 5 Some of the plaintiffs referred to the dungeon as the "red room" because
Rubin painted the walls of the room red. Supp. App'x at 122. Rubin adorned the
walls of his dungeon with whips, chains, ropes, dildos, and sexual devices,
including a large X-shaped machine to which he tied women by their wrists and
ankles and a restraint device to which a woman could be affixed on all fours. As
detailed further below, Rubin subjected all the plaintiffs to the various torture
devices residing in the dungeon.
5 "The novel, selling more than 100 million copies, and the film, earning more than $500 million since its release, have spread recognition and attention towards BDSM behavior. Fifty Shades of Grey featured a recent college grad, Anastasia Steele, who engaged in a BDSM relationship with [the] older CEO of Grey Enterprises Holdings, Inc., Christian Grey. Christian, experienced with BDSM, attempted to negotiate a contract with Anastasia, who was inexperienced with BDSM." Andrea E. White, Note, The Nature of Taboo Contracts: A Legal Analysis of BDSM Contracts and Specific Performance, 84 U.M.K.C. L. Rev. 1163, 1167 (2016). The movie has been criticized as romanticizing intimate partner violence and abuse and control over women. See Megan K. Maas & Amy E. Bonomi, Love Hurts?: Identifying Abuse in the Virgin-Beast Trope of Popular Romantic Fiction, 36 J. Fam. Violence 511, 513-18 (2021) (describing how Fifty Shades of Grey depicts a man exhibiting control over women that is disguised by wealth or social status, stalking that is romanticized as wanting to protect women, threatened and/or physical violence that is romanticized as uncontainable emotion, manipulation disguised by grand gestures, a woman's loss of identity romanticized as sacrifice, and harm disguised as love conquering obstacles). -8- Over the years, Rubin escalated the frequency of his encounters, the
depravity of the BDSM acts, and his care in hiding his tracks. Rubin created a
separate bank account, of which his wife was unaware, to pay for his encounters
and Powers's salary. Rubin tasked Powers with handling the maintenance of the
penthouse, contacting women for the BDSM encounters, booking flights for
them, making dinner reservations, and coordinating payments. She often met
women before their encounters to provide a pretense of safety and placated
women after their encounters with Rubin. Rubin paid Powers $15,000 per
month, and she referred to him as "the boss man." Id. at 1705.
In 2014, Rubin, drawing more inspiration from Fifty Shades of Grey,
began prompting women to sign non-disclosure/consent agreements ("NDAs"),
which he apparently drafted with the aid of a lawyer. The NDAs stated: "In
return for the payment of an agreed upon fee, I have voluntarily agreed to
engage in sexual activity with (Rubin) including Sadomasochistic (SM) activity
that can be hazardous and on occasion cause injury to my person." App'x at 722.
The contracts provided that "[t]he activity in question may be undertaken on this
date, dates prior to this date and on dates in the future." Id. It also provided that
"I agree that damages sustained by any breach of this Agreement would be
-9- impractical or extremely difficult to determine. Therefore, I agree that in the
event that I disclose Confidential Information covered by this Agreement, I . . .
will pay Rubin an additional Five-Hundred Thousand (500,000.00) as a penalty."
Id.
Despite the contract stating, "I am not under the influence of drugs
or alcohol," Rubin (or Powers) often gave women the NDAs after they had
consumed multiple alcoholic beverages and had them sign the agreements
without lawyers or a chance to review the agreements separately from the BDSM
encounter. Id. None of the plaintiffs was given a copy of the NDA, but each
believed that speaking out about any of their encounters with Rubin would
result in hefty fines and legal action.
By the time Rubin began pushing the women to sign the NDAs, his
encounters had become increasingly violent. He often beat women so severely
that they sustained bruises for weeks, and some required hospitalization. When
a few of his long-time escorts used safe words, 6 screamed, or cried during their
encounters, he became enraged and grew more violent. On at least two
6 "[A] word previously agreed upon for use as a signal during sex, especially sex involving bondage, dominance, or sadism, to let one's partner know that they should stop what they are doing." Safe word, Dictionary.com, https://www.dictionary.com/ browse/safe%20word [https://perma.cc/RA76-FTXF] (last visited Sept. 21, 2025). - 10 - occasions, he continued assaulting women for an hour after they had begged him
to stop. Most of the plaintiffs testified that although they had consented to their
initial encounters, Rubin's later actions severely exceeded what they had agreed
to. All plaintiffs testified that they had grown afraid of Rubin's power and
influence.
C. The Sexual Exploitation of Plaintiffs
1. Natasha Tagai
In 2009, Tagai was contacted through a modeling platform by a
woman who told her she had a client looking for Playboy models to accompany
him at dinners. Tagai was told that the man lived in New York and would pay
for her to visit him. Tagai reported that she felt comfortable entertaining a visit
because a woman had reached out to her. Rubin eventually flew Tagai out to
meet him, and she described their initial encounter as "really nice." Supp. App'x
at 113. She engaged in consensual prostitution with Rubin six to eight times at
various hotels and locations around New York. Although they engaged in some
BDSM sex, all their encounters were consensual. Indeed, they discussed safe
words casually, but Rubin never assigned her one.
- 11 - On January 21, 2015, Powers organized a photo shoot with twelve
women to make a calendar for Rubin's birthday. Before the shoot, Powers
presented Tagai with an NDA to sign. This was the first time Tagai met Powers
in person. Tagai did not have much time to read the contract, was not able to
consult a lawyer, and did not receive a copy of what she signed. Tagai thought
the contract was a symptom of Rubin's proclivity for Fifty Shades of Grey because
a similar contract was portrayed in the movie. After Tagai signed the NDA, her
encounters with Rubin changed, and it was the incidents in and after 2015 that
led to her filing a lawsuit against him.
The first such incident occurred in Rubin's penthouse on October 1,
2015. Tagai met Rubin in the lobby of a hotel across the street from his
penthouse, where he was having drinks with an older gentleman and two
women. After a couple of hours, the five returned to Rubin's condo and played a
few rounds of pool. Eventually, the three guests left, and Rubin and Tagai
continued playing. Tagai was sitting on the pool table when suddenly Rubin
shoved a pool cue into her vagina with little warning. Tagai asked him to stop,
and Rubin did not; instead, he became upset and grabbed ropes from the
dungeon. He proceeded to tie her up with ropes, drag her by her feet to the red
- 12 - room, place a ball gag in her mouth, and slice her breasts with a pizza cutter-
shaped knife. Tagai was scared. He then penetrated her with a glass dildo,
cuffed her to his X-shaped cross device, whipped her, punched her in the face
and stomach, and called her a "stupid girl." Id. at 149. She was too afraid of
upsetting him to cry.
The hitting and punching lasted about forty-five minutes, but after
Rubin hit Tagai in the face, she squirmed on the cross to attempt to indicate for
him to stop. Rubin became upset that she was moving, untied her, and stormed
out of the apartment. Rubin texted her later that evening that she was "a cunt,
[who] wasted his time" and that he "could have been with anybody else." Id. at
151.
After the incident, Tagai texted Powers what had transpired because
it was the first time Rubin had seriously harmed her. Powers downplayed what
had occurred and stated that Rubin must have been drunk or dealing with other
issues. Tagai reported that she experienced bruising on her breasts, bleeding,
and a sore vagina "from being whipped over and over again." Id. at 154.
Tagai testified that although it "seems crazy" that she returned to
visit Rubin after that encounter, she agreed to visit him again because she cared
- 13 - for him and thought "he would go back to how he acted prior." Id. at 155. Tagai
also knew Rubin was a "very powerful, wealthy person" and was afraid of what
reporting her last encounter could lead to. Id. at 152. Indeed, she described her
next two encounters with Rubin as pleasant.
Then, in May of 2016, Tagai visited Rubin again. Tagai waited at his
penthouse for him to arrive, and when he did, he seemed to be in a "nice" and
"happy" mood. Id. at 157. After the two shared a bottle of wine, Rubin pushed
her to enter the dungeon, which she was afraid to enter after the prior incident.
Nevertheless, she agreed, and Rubin tied her to the X cross and placed a ball gag
in her mouth. When she could no longer speak, Rubin put clothes pins on her
breasts and took a photo of her tied up. Tagai stated that she began "zoning in
and out" and was trying to squirm to escape. Id. at 158. Rubin then tied her to
the X-cross machine and whipped her repeatedly. Tagai next remembered
waking up on the bathroom floor. Tagai surveyed the dungeon when she woke
up alone and was sickened by the state of it and what it indicated of a night she
could not remember. Tagai documented her injuries with a photo; she had not
consented to any of the things he did to her after she was gagged.
- 14 - Following this incident, Tagai did not visit Rubin for nearly a year.
Eventually, however, she did visit him again in March 2017, because she "felt like
[she] needed him to not be mad at [her]" and "wanted the times that [they] used
to share." Id. at 164. That visit was pleasant.
Tagai's following visit on June 13, 2017, gave rise to her next
nonconsensual encounter. Tagai voluntarily entered the dungeon and agreed to
Rubin's tying her up and placing a ball gag in her mouth. Once the gag was in
Tagai's mouth, however, Rubin brought out an electric device that he used to
penetrate and send electrical shocks into her. Tagai was gagged and restrained,
and she did not consent to his use of the device. Rubin, however, merely tied her
up to the X-cross and whipped her. He called her a "slut" and "a stupid girl" and
then slapped her in the face. Id. at 177. He eventually untied her and stormed
out. Tagai never visited Rubin again.
Tagai was diagnosed with PTSD, experienced trouble sleeping, and
visited a therapist weekly because of her encounters with Rubin. She never
reported Rubin to police because she was afraid that she would be liable for
$500,000 for breaching the NDA.
- 15 - 2. Brittany Reyes
In 2016, Reyes was contacted by a friend who told her that she knew
a man who would pay her to meet with him and that he had a dungeon. Reyes
agreed, and one of Rubin's assistants arranged her flight from Las Vegas to New
York. When she arrived at Rubin's penthouse, her friend was there, and the two
drank alcohol, smoked marijuana, and snorted cocaine provided by Rubin.
Rubin arrived shortly thereafter, presented Reyes with an NDA, and instructed
her that she would have to sign it or leave. Reyes signed the agreement without
reading it because she had nowhere else to go. She understood the agreement to
mean that she could not discuss what happened with others. After she signed
the agreement, Rubin discussed safe words with her and then led her to the
dungeon. Reyes stated that she entered the dungeon because she was misled
into believing that she and her friend would engage only in light spanking with
Rubin.
Once inside the dungeon, Rubin restrained Reyes's wrists behind
her back, positioned her face down, inserted a ball gag into her mouth without
asking, and placed a blindfold over her eyes. Rubin then hit her several times
and sexually assaulted her with a dildo while she was gagged and unable to
- 16 - speak. Reyes attempted multiple times to speak and use the safe word but was
unable to. When Rubin removed the ball gag, Reyes used the safe word, but he
ignored her and became angrier and more violent. He raped her for five to ten
additional minutes before stopping, and only after she spoke the safe word
multiple times. He then removed the restraints and let Reyes leave the red room
but stayed inside with Reyes's friend. While they remained in the dungeon,
Reyes cried and tried to calm herself down. Rubin eventually left the apartment,
and Reyes stayed the night because she was intoxicated and had no other
accommodation. Reyes never engaged in another encounter with Rubin.
After the encounter, Reyes texted her friend that she "felt bad . . .
[and] had bruises everywhere." Id. at 369. She was paid a few days later. Reyes
reported that she experienced PTSD, depression, trouble connecting with her
children, and anxiety as a result of this encounter with Rubin.
3. Amy Moore and Mia Lytell
a. Moore and Lytell's First Encounter with Rubin
In 2016, when both Moore and Lytell were modeling as "Playmates"
for Playboy magazine, they were contacted on Instagram by a woman who
worked for Rubin. The assistant messaged that she knew a "very nice" man who
liked to take photos and videos of Playmates and pay to fly out models for "light - 17 - fetish play." Id. at 431-32, 437. Moore was receptive to the pitch but asked to
speak with another reference first. The assistant then connected Moore and
Lytell with Powers, and the four women coordinated Lytell and Moore's visit
with Rubin. Moore understood that she would be paid to engage in some BDSM
sexual encounters with Rubin, her flight and transportation would be taken care
of, and she would be required sign an NDA. The assistant also connected Rubin
with Moore, and the two exchanged messages briefly over WhatsApp.
Powers arranged for Moore's flight from Florida to New York and
for a car to take her from the airport to Rubin's penthouse. Once Moore arrived,
Powers greeted her with wine and handed her a contract to sign. Powers
explained to Moore that the contract was an NDA, which Moore understood to
provide that she was not permitted to "t[ell] anybody about [Rubin] because he
was very high profile." Id. at 441. Moore did not read the NDA carefully before
she signed it and was not given a copy. She neither read nor was aware of the
clause that stated, "I have voluntarily agreed to engage in sexual activity with
Rubin, including sadomasochistic activity, that can be hazardous and on
occasion cause injury to my person." Id. at 442-43. Shortly thereafter, Lytell
arrived, and Powers rushed Lytell to sign the NDA.
- 18 - Once the women signed the NDAs, they walked over to a nearby
restaurant and bar to meet Rubin for the first time. The three shared several
drinks and appetizers and then walked back to the penthouse.
Once back at the apartment, Rubin made more drinks and then
instructed the women to adorn "fetish-style" lingerie, i.e., black bodysuits with
lace cutouts and leather features. Id. at 447-48. Both women were fairly
intoxicated by this point. While in the living room, Rubin slapped Moore across
the face. Moore grabbed her cheek and told Rubin not to hit her, but Rubin hit
her again.
Rubin then led them into the dungeon and directed Lytell to lay on
her stomach and Moore to sit on the floor next to Lytell. He tied Lytell's wrists
behind her back, taped her mouth shut, and bound both her and Moore's ankles
with rope. Rubin proceeded to climb on top of Lytell's buttocks as she lay on her
stomach. He then said to Moore, "I'm the daddy. You are the mommy. This is
the baby [referring to Lytell] and we need to beat our baby." Id. at 451. He yelled
at Moore to hit Lytell, but Moore hit herself on the leg instead, and Rubin became
angry and hit Moore. He also began punching Lytell in the back of her head. He
- 19 - then said to Lytell, "I am going to rape you like [I] rape my daughter." Id. at 453-
54; see also id. at 681.
Next, he flipped Moore over onto her stomach, bound her hands
behind her back, slapped her in the face, and called her a "cunt whore." Id. at 454
Afterwards, he penetrated Lytell from behind with a large dildo for
approximately ten minutes before discarding the object and penetrating her from
behind, while continuing to punch her in the head. Once he was done with
Lytell, he flipped Moore over again and punched her in her breasts so many
times she lost count. Throughout the ordeal, both women were crying, and
Lytell was screaming. Lytell was not moving when Rubin was done.
Once he finished, Rubin untied the women, retrieved cash from his
safe, and threw $10,000 in cash on the floor in front of them. He then left the
apartment entirely, and both women stayed until their arranged flights home the
following morning. Both women testified that they had not consented to what
transpired in the dungeon and that they were afraid of Rubin.
Rubin and Powers exchanged several texts with Moore and Lytell
following their initial encounter. Both Moore and Lytell thanked Rubin and
Powers for having them and stated that they had a good time and would like to
- 20 - "do it again." App'x at 810, 812; see also id. at 843-44. Lytell also texted Powers
that "last night was unreal crazy wild fun stuff," id. at 843, and left a note for
Rubin stating, "You are absolutely insane sexy, hot, wild, & Fun," id. at 853.
Moore testified that she was friendly over text because she wanted additional
compensation for the injuries sustained from her encounter. Lytell testified that
she remained friendly because she was in a bad financial situation, was taking
Xanax and Percocet, and was afraid to tell Rubin that she had been hurt. Moore
sustained lasting injuries to her breast, and Lytell sustained a broken or bruised
rib that caused her trouble with breathing.
b. Moore's Subsequent Encounter
A few months later, Moore agreed to see Rubin again because she
wanted additional money for her injuries sustained from the previous encounter.
She flew to New York and met him at the Russian Tea Room, but he was on his
phone during most of their encounter. Once back at the penthouse, she brought
up her injuries and additional compensation, but he stated that he did not
remember her.
Rubin began playing a pornographic video and pulled her into the
dungeon, which she did not want to go into at the time. Rubin tied her to a
cross, cuffed her wrists and ankles, and shoved a large dildo inside of her. He - 21 - then put a ball gag in her mouth. He proceeded to insert an electric device,
described as a "cattle prod," into her vagina before inserting himself inside of her.
Supp. App'x at 507. She was upset. When he finished, she brought up her
injuries and compensation, and Rubin became extremely angry with her. Moore
left the apartment and never saw Rubin again. She testified that after this
encounter, she wanted to take her own life.
c. Lytell's Later Encounters
Lytell continued to engage in explicit text messages with Rubin and
recruited other women to meet up with him. During this time, she was abusing
Xanax and Percocet and experiencing financial trouble. Rubin told her that if she
sent photos of other women to meet him, he would give her a "finder's fee" of
$2,000. Id. at 683. Lytell acquiesced and set him up with a friend.
Lytell and her friend were flown to New York where they met up
with Rubin at a restaurant, but the three got into a verbal altercation at dinner
that resulted in Rubin storming out. The women returned to the penthouse,
changed into comfortable clothes, and were packing up to leave when Rubin
came inside, dragged Lytell's friend into the bedroom, pushed her on the bed,
taped her mouth shut, and bound her hands, breasts, and ankles. He then
instructed Lytell to hit the woman, and Lytell obeyed, hitting her once on the - 22 - back. He instructed Lytell to hit her friend again, but she refused, and Rubin
punched her in the face. Rubin then cut her friend's jean shorts open and
penetrated her. The tape in her mouth became loose, and she bit Rubin.
Enraged, he punched her in the face. He then left the apartment altogether. He
paid both women $5,000 a few days later.
In October 2016, Lytell returned to New York with another friend
but was sick and anxious on the plane. When she arrived at the penthouse, she
asked Powers to call her an ambulance and was admitted to the hospital for a
few hours. When they returned from the hospital, Lytell and her friend fell
asleep in Rubin's bedroom but woke up to screams coming from inside the
apartment. They fell back asleep, and a few hours later, another friend came into
the bedroom and confronted Lytell, contending that Lytell had let her get raped
by Rubin. This escalated into a physical altercation, and her friend called the
police. Rubin was not present in the apartment. Lytell called Powers, who
instructed her to hide all the drugs located in the apartment, to lie to the police
that it was her apartment, and not to mention Rubin at all. Powers promised
Lytell that they would take care of her legal costs so long as she did not mention
- 23 - her or Rubin's name. Lytell did as she was told and was arrested. After this
incident transpired, she decided to file the lawsuit.
4. Emma Hopper
Hopper learned about Rubin through a coworker. Hopper was told
that Rubin was a very wealthy man who wanted to have BDSM sexual
relationships with young women and models. Hopper eventually connected
with Powers, who arranged for Hopper to meet Rubin. As with Lytell and
Moore, Powers arranged Hopper's flight, ordered her a car to his penthouse, and
produced an NDA to sign. Hopper skimmed the agreement and understood it to
mean she could not tell anyone about Rubin. She also did not receive a copy or
have an opportunity to review the contract in depth before signing.
Hopper proceeded to engage in a few separate BDSM encounters
with Rubin. During one of their earlier meetings, while they dined at a
restaurant before engaging in BDSM, Rubin had probed Hopper for details about
sexual abuse she had suffered as a child. During subsequent BDSM encounters,
he reenacted the abuse and would ask for further details during their sexual
encounters. Each of these earlier encounters followed a similar pattern: She and
Rubin dined together at a restaurant, shared drinks, went back to the penthouse,
- 24 - and engaged in BDSM in the dungeon. He would then pay her for these
sessions.
Hopper's fourth encounter with Rubin gave rise to her claim against
him. Like the other encounters, Rubin flew her out to New York, only this time
she arrived alone at the penthouse. Rubin directed her over text to drink wine,
and she complied. When he eventually arrived, he slapped her across the face
without saying a word. He dragged her into the dungeon by the arm, pulled her
clothes off, pushed her on all fours using his knee on her back, and forced
himself inside her. She began crying, and he called her a "whore" and a "stupid
slut." Id. at 1047. Hopper asked him to stop and said no multiple times, but he
continued penetrating her for an hour. She testified that this entire encounter
was not consensual.
Rubin scheduled another time to see Hopper after this encounter,
but she ended up not boarding her flight because she was afraid. Eventually she
rescheduled and visited again, citing financial dependence and a psychological
dependence because of their reenactment of her childhood abuse. On April 25,
2016, she met Rubin at a restaurant, and he gave her Vicodin. After taking the
pills and leaving the restaurant, she did not remember much but knew that they
- 25 - had an encounter. She texted Powers the next morning, "[I]t's my fault, I'm so
sorry." Id. at 1055. She then continued, "I need to be more responsible. I had no
idea how strong Vicodin is. I'm so sorry again. I cannot belie[ve] I did that to
H," referring to Rubin by his first name. Id. When asked why she apologized,
she testified that she did not remember but that "they made it feel like it was
[her] fault for . . . taking [the pills]." Id. Powers texted Rubin the next day, "No
one can drink for six hours straight then take two Vicodins. You were egging her
on." Id. at 1750. Rubin then responded, "You're right." Id.
Hopper agreed to engage in a few additional encounters, which she
testified were mostly consensual. She described one additional nonconsensual
encounter during which Rubin put clothes pins on her vagina and laughed at her
while she cried.
After the lawsuit was filed, Hopper reached out to Powers and said,
"Jen, what is going on? I am so worried about everyone. If you all need me to do
anything to help, like testify we agreed to everything happening, I will. . . . Is
this going [to] stop Howie from seeing us?" Id. at 63. Hopper also texted Rubin
after she joined the lawsuit, "Howie, I’m yours" and "I’m your little slut girl for
- 26 - life." Id. at 1065. She stated she texted them because she was afraid that Rubin
would think she had filed the lawsuit.
5. Brittany Hassen
In 2011, Hassen was contacted by one of Rubin's assistants about
meeting a man who was wealthy and "over the top." Id. at 1218. The assistant
told Hassen that the man was into "fetish-style" pictures and bondage sex but
that Hassen would not get injured. Id. at 1219. Before putting her and Rubin in
touch, the assistant instructed Hassen to "just say yes to everything," and Hassen
was under the impression that her communication with Rubin played into his
fantasy. Id. at 1220. Rubin and Hassen began emailing, and Rubin stated,
I love to be with girls that love being dominated and enjoy both physical and verbal humiliation. It's a very intense experience. Most girls I've been with seem to love it, but I want you to understand completely before we get together. There's bondage, spanking, your ass, pussy, tits, use of whips and paddles, vibrators and dildos, nipple and clit clamps. I can guarantee, though, you will feel safe. I always use a safe word and I will always slow down/stop if it's too intense for you.
Id. at 1222-23. He then stated that "I've been with a lot of girls, including two
Playmate centerfolds, Penthouse pet, Playboy lingerie cover girl, Maxim model
of the year, Hustler cover girl, and Maxim and Playgirl and FHM models." Id. at
- 27 - 1224. Hassen testified that she became more interested in visiting Rubin because
she thought "he could help [her] career." Id.
Hassen was flown to New York and met Rubin in a hotel with two
other women, and they ordered drinks. Rubin asked her if she had been
"molested as a child." Id. at 1230. She and the other women all answered yes.
That conversation lasted an hour, during which Rubin instructed one of the other
women to give Hassen "something to take the edge off." Id. at 1231. The woman
brought out a pill of oxycodone, 7 crushed it with her lighter, put the powder in
Hassen's drink, and handed Hassen the drink, which Hassen consumed because
"everybody was . . . high." Id. at 1232. She started to get extremely itchy and next
remembered Rubin tying her up with tape. Hassen was high and inebriated at
this point, and she next remembered being face-down on the bed with Rubin
penetrating her repeatedly. Hassen was crying, and Rubin became unhappy
with her; he gave her $5,000 and instructed her to leave. Hassen testified that she
did not consent to what had transpired.
Nearly two years passed before Hassen reached out to Rubin in
August 2013. She had developed an addiction to oxycodone, and she reached
7 Hassen had never before consumed oxycodone. - 28 - out to Rubin to get together. Hassen cited her addiction to pills and financial
desperation as the reason for her reaching out. She told him she was "really
desperate by this point . . . . [and] willing to do whatever [she] had to do." Id. at
1246. Rubin responded that he had "gotten more intense than when [they] were
together" and that he had bought a condo and had a rotation of eight to ten
"steady girls." Id. at 1246-47. Rubin texted that "[i]n addition to clamps . . . I slap
you hard all over your body. . . . I use whips and paddles and sometimes electric
shock." Id. at 1247. He then stated, "I don't want to run into the same problems
as we did the last time." Id. Hassen chose not to meet up with him after this
email.
On May 19, 2014, Hassen was dining in a restaurant when she
encountered Rubin dining with a few Playboy models. Hassen had a pleasant
interaction with everyone at the table and began to doubt her initial impression
of him. Around this time, Hassen had gone to rehab, "was completely clean" of
drugs, and wanted to get into modeling again. Id. at 1255.
A few weeks later, Rubin and Hassen began exchanging messages.
Hassen texted Rubin, "I know we didn't hit it off last time, but honestly I'm
desperate right now. . . . I'm willing to be submissive and whatever you wish."
- 29 - Id. at 1254. She also said, "I will take a Valium and I'll be fine." Id. at 1255.
Hassen then texted again, "I'm willing to do it, please, I need the money Howie.
My life is crazy right now, and I need help." Id. at 1256. Rubin agreed, and they
arranged a visit.
Rubin met up with her and another woman at his penthouse, and
the three split a bottle of wine. Hassen immediately began to feel woozy and
sleepy and suspected Rubin had put Valium in her drink. The next thing Hassen
remembered was waking up naked, gagged, and restrained on the X-shaped
cross with no memory of how she was taken there. Rubin was whipping her all
over her body and called her "fat" and a "stupid girl." Id. at 1267. He also used a
suction-cup and electrical device all over her body without consent. She
remembered the abuse going on for a long time, blacking out, and eventually
coming to in a cab.
Shortly afterwards, Hassen was still financially desperate and now
wanted additional funds to help with her schooling and the pain and injuries she
was suffering. She sought out Rubin for money for additional encounters. The
woman who was present at her last encounter instructed her to "beg Howie
again, like you're desperate for money." Id. at 1319. Hassen texted Rubin, "I
- 30 - could really use the work right now. . . . I'll take the bigger beating this time I
promise." Id. at 1318. They met up, and after drinking Rubin tied her up and hit
her in the face. Hassen eventually fainted and woke up in a cab.
Later that year, Hassen agreed to meet up with Rubin for another
encounter. This time, Rubin gave her the NDA to sign. Like the other women,
she did not read the contract, was not provided a copy, and was unable to
consult a lawyer. After she signed the contract, Rubin took her and his friends to
a private room in a strip club, undressed her in front of other people, and
handcuffed her. He then called her a "stupid girl" and berated her by stating that
her breasts were much smaller than those of the other women present and that
she was "so ugly" compared to them. Id. at 1331. Rubin started to beat her with
his fists and then began penetrating her. A waitress entered the room a few
times and asked if Hassen was okay, and eventually she and Rubin were asked
to leave due to Rubin's behavior.
As a result of her encounters with Rubin, Hassen sustained lasting
injuries to her body, developed nightmares, and relapsed into drug use. She also
testified that she lost her ability to taste and sing due to his use of the ball gag,
which he had cleaned using pool cleaner. Eventually, she started using heroin
- 31 - because she no longer had access to oxycodone. She had an ongoing fear of
retaliation due to Rubin's status and influence.
II. Proceedings Below
Plaintiffs commenced this action in November 2017. Their fourth
amended complaint, filed November 11, 2019, alleged that Rubin, Powers, and
his other assistants had conspired together in a sex trafficking venture. Plaintiffs
brought multiple claims, including violation of the TVPA, 18 U.S.C. § 1591, and
assault, battery, false imprisonment, and intentional infliction of emotional
distress. Plaintiffs sought compensatory and punitive damages, as well as a
permanent injunction enjoining defendants from continuing their venture. See
Fourth Amended Complaint at 88, Moore v. Rubin, 724 F. Supp. 3d 93, 98
(E.D.N.Y. 2024) (No. 17-cv-6404). 8
Trial commenced on March 21, 2022. Over the course of seven days,
the jury heard testimony from all six plaintiffs, Rubin, and Powers. After
deliberating for one day, the jury returned a verdict in favor of plaintiffs and
found Rubin liable to each of them under the TVPA. The jury awarded each
8 Rubin's assistants, except for Powers, were dismissed as defendants earlier in the litigation. See Rubin, 724 F. Supp. 3d at Dkt. No. 105. - 32 - plaintiff $500,000 in compensatory damages. The jury found Rubin not liable for
the tortious actions brought by plaintiffs, except for Moore's single claim of
battery in December 2016. 9 The jury did not find Powers liable for any claims.
Trial then continued as to the issue of punitive damages. The jury
awarded plaintiffs Tagai, Reyes, Hassen, Hopper, and Lytell each $120,000 and
Moore $250,000 in punitive damages under the TVPA. Rubin moved for
judgment as a matter of law or, alternatively, for a new trial pursuant to Federal
Rules of Civil Procedure 50 and 59. Rubin, 724 F. Supp. 3d at 97. On March 20,
2024, the district court denied Rubin's motion in both respects. Id. at 107.
This appeal followed. 10
DISCUSSION
On appeal, Rubin argues that (1) there was insufficient evidence to
support the jury's finding of liability under the TVPA; (2) the jury instruction
regarding the required mens rea under the TVPA was erroneous; and (3) the
TVPA does not authorize punitive damages. We address each argument in turn.
9 The jury did not award any damages for Moore's battery claim. 10 On September 17, 2025, the government indicted Rubin and Powers on charges of sex trafficking under the TVPA and Mann Act violations and Rubin for bank fraud as well. See Indictment, United States v. Rubin, No. 25-cr-281 (E.D.N.Y. Sept. 17, 2025), Dkt. No. 1. - 33 - I. Sufficiency of the Evidence
Rubin argues that the evidence was insufficient to prove his liability
under the TVPA because plaintiffs did not prove that (1) he knew or recklessly
disregarded the fact that force or coercion would be used, and (2) the encounters
were nonconsensual. We are not persuaded.
A. Standard of Review
We review challenges to the sufficiency of the evidence in support of
a jury's verdict in the light most favorable to the prevailing party and draw all
reasonable inferences in that party's favor. Chin v. Port Auth. of N.Y. & N.J., 685
F.3d 135, 150-51 (2d Cir. 2012). A party challenging the sufficiency of the
evidence bears a heavy burden. We overturn a verdict "only if there is 'such a
complete absence of evidence supporting the verdict that the jury's findings
could only have been the result of sheer surmise and conjecture'" or if a
reasonable juror could not arrive at the verdict in light of the "overwhelming
amount of evidence in favor of the" losing party. Chin, 685 F.3d at 151 (quoting
LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995)).
Construing the evidence in the winning party's favor means that "we
cannot consider evidence favorable to appellant that the jury need not have
- 34 - believed." Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005). Even if, "as the
factfinder, we might well have found in favor of the [losing party,] . . . it is not
our task to retry the case or reweigh the evidence" as an appellate court. Id.; see
also United States v. Robinson, 702 F.3d 22, 36 (2d Cir. 2012) (noting in assessment
of 18 U.S.C. § 1591 criminal case that "our role in reviewing sufficiency
arguments is exceedingly deferential, because it is the task of the jury, not the
court, to choose among competing inferences" (citation modified)).
We review questions of statutory interpretation de novo. See United
States v. Koh, 199 F.3d 632, 636 (2d Cir. 1999); see also United States v. Jungers, 702
F.3d 1066, 1069 (8th Cir. 2013) (interpreting § 1591) ("When a sufficiency
argument hinges on the interpretation of a statute, we review the district court's
statutory interpretation de novo." (citation modified)).
B. Applicable Law
1. Section 1591
In 2000, Congress passed § 1591 of the TVPA "[t]o combat trafficking
in persons, especially into the sex trade, . . . to reauthorize certain Federal
programs to prevent violence against women, and for other purposes." Pub. L.
No. 106-386, 114 Stat. 1464 (2000) (codified at 22 U.S.C. § 7101). Congress
- 35 - recognized that the sex industry, involving the "sexual exploitation of persons,
predominantly women and girls, [for] activities related to prostitution,
pornography, sex tourism, and other commercial sexual services," had "rapidly
expanded over the past several decades." 22 U.S.C. § 7101(b)(2). The statute was
enacted to "ensure just and effective punishment of traffickers, and to protect
their victims." Id. at § 7101(a).
Section 1591 is broad and punishing by design. The criminal statute
imposes a mandatory minimum term of fifteen years' imprisonment and a
maximum of life imprisonment. 18 U.S.C. § 1591(b)(1). "Since enacting the
TVPA in 2000, Congress [has] amended it multiple times and reauthorized it in
2003, 2005, 2008, 2013, and 2017. Several of these additions created openings for
expanded liability under the TVPA." Heather Odell, Accountable to None?
Challenging Sovereign Immunity Through the Trafficking Victims Protection Act, 63
B.C. L. Rev. 1517, 1524 (2022) (citation modified). For instance,
In 2008, Congress . . . expanded the criminal and civil liability for individuals beyond that of the mere perpetrator. The reauthorization extended liability to anyone who financially benefitted from the act of sex trafficking and was aware of such benefit. The reauthorization also added a conspiracy charge, which extends culpability to those uninvolved in the physical act itself and to circumstances where the conduct does not culminate in a sex act.
- 36 - Abigail W. Balfour, Where One Marketplace Closes, (Hopefully) Another Won't Open:
In Defense of FOSTA, 60 B.C. L. Rev. 2475, 2488 (2019) (emphasis added).
In 2015, Congress again expanded the TVPA to apply not only to the
traditional suppliers of commercial sex acts, but also to consumers and purchasers
of forced commercial sex. See 161 Cong. Rec. H3266-01, H3269 (May 18, 2015)
(Congress intended for § 1591 to broadly apply to "persons who purchase illicit
sexual acts"). Congress "add[ed] the words 'solicits or patronizes' to . . . mak[e]
absolutely clear for judges, juries, prosecutors, and law enforcement officials that
criminals who purchase sexual acts from human trafficking victims may be
arrested, prosecuted, and convicted as sex trafficking offenders." Id. Compare 18
U.S.C. § 1591(a) (effective Dec. 23, 2008), with 18 U.S.C. § 1591(a) (effective May
29, 2015).
In its present form, the TVPA provides, in pertinent part:
Whoever knowingly . . . in or affecting interstate or foreign commerce . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person . . . knowing, or, . . . in reckless disregard of the fact, that means of force, threats of force, fraud, coercion . . . , or any combination of such means will be used to cause the person to engage in a commercial sex act . . . shall be punished . . . .
18 U.S.C. § 1591(a)(1)-(2).
- 37 - A "commercial sex act" is "any sex act, on account of which anything
of value is given to or received by any person." Id. § 1591(e)(3).
Coercion is defined as:
(A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of law or the legal process.
Id. § 1591(e)(2). 11
"Serious harm" is defined as "any harm, whether physical or
nonphysical, including psychological, financial, or reputational harm, that is
sufficiently serious, under all the surrounding circumstances, to compel a
reasonable person of the same background and in the same circumstances to perform or
to continue performing commercial sexual activity . . . to avoid incurring that
harm." Id. § 1591(e)(5) (emphasis added).
Thus, under the TVPA, a defendant engages in trafficking when he
recruits, transports, solicits, or patronizes a person knowing or recklessly
11 "The term 'abuse or threatened abuse of law or legal process' means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action." Id. § 1591(e)(1). - 38 - disregarding the fact that he will use force, fraud, or coercion to cause the person
to engage in a sex act for payment.
2. Section 1595
In 2003, Congress expanded the TVPA to "enhanc[e] provisions on
prevention of trafficking, protections of victims of trafficking, and prosecution of
traffickers." H.R. Rep. No. 108-264, pt. 1, at 8 (2003). The amendment authorized
victims of the conduct proscribed in § 1591 to bring a civil action against their
perpetrators. See 18 U.S.C. § 1595(a). This civil remedy "expand[ed] the current
federal crimes relating to trafficking in persons" by subjecting the perpetrators to
liability for civil damages. H.R. Rep. No. 108-264, pt. 1, at 13.
C. Application
Rubin makes two sufficiency arguments. First, Rubin argues that an
individual does not violate the TVPA unless, at the time he is recruiting the
victims, he knows or recklessly disregards the fact that force or coercion will be
used to cause the victims to engage in commercial sex acts. He contends that here
the evidence did not prove that when he recruited the plaintiffs he knew or
recklessly disregarded the fact that force or coercion would be used to compel
- 39 - them to engage in commercial sex acts. Second, Rubin contends that the
plaintiffs did not prove at trial that the encounters were nonconsensual.
1. Mens Rea
Rubin is correct that the plain language of the TVPA -- providing
that a perpetrator know or recklessly disregard the fact that force, fraud, or
coercion will be used to cause a person to engage in a commercial sex act --
indicates that some degree of awareness or recklessness prior to the forced sex act
is required. See 18 U.S.C. § 1591. The phrase "will be used" indicates that the
mens rea element must develop at some point before the forced sex act has
occurred, that is, typically when the defendant is recruiting, enticing, or
transporting the victim. 12
This temporal component, however, may also be satisfied during the
course of a sexual encounter. The statute covers a defendant who patronizes or
maintains a person with reckless disregard that a means of force will be used to
12 See United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) ("The future verb tense of the phrase 'will be caused -- which precedes 'to engage in a commercial sex act' -- indicates that a sex act does not have to occur to satisfy the elements of [§ 1591]. To conclude otherwise erases the meaning of 'will be' from the statutory text."); United States v. Jungers, 702 F.3d 1066, 1073 (8th Cir. 2013) ("In many, if not all cases, the commercial sex act is still in the future at the time the purchaser . . . [is] in violation of § 1591."); see also United States v. Wilson, 503 U.S. 329, 333 (1992) ("Congress' use of a verb tense is significant in construing statutes."). - 40 - cause the person to engage in the commercial sex act. 18 U.S.C. § 1591.
"Patronize" and "maintain" are contemporaneous terms. See Patronize, Merriam-
Webster, https://www.merriam-webster.com/dictionary/patronize
[https://perma.cc/65SQ-9JPR] (last visited September 9, 2025) ("[T]o be a frequent
or regular customer or client of"); Maintain, Black's Law Dictionary (12th ed.
2024) ("To continue (something)"; "To continue in possession of (property, etc.)";
and "To support (someone) financially."). This language makes clear, on its face,
that an individual is liable if he decides, while "patronizing" a victim, that he will
use force or coercion to cause the victim to further engage in a commercial sex act
against her will. Likewise, the statute covers a defendant who repeatedly
patronizes a person, where force and coercion were regularly used in the past, as
such a defendant would have an awareness that force and coercion will be used
in the future based on prior interactions.
Although § 1591 requires that a defendant must know or recklessly
disregard the fact that force will be used to cause a person to engage in a
commercial sex act, the mens rea does not require factual certainty about future
events. Indeed, a defendant cannot know for certain that a forced sex act will
occur in the future. See United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010)
- 41 - ("What [§ 1591] requires is that the defendant know in the sense of being aware of an
established modus operandi that will in the future cause a person to engage in
prostitution." (emphasis added)). As the Ninth Circuit has explained:
What [§ 1591] means to describe, and does describe awkwardly, is a state of mind in which the knower is familiar with a pattern of conduct. If 'to know' is taken in the sense of being sure of an established fact, no one 'knows' his own or anyone else's future. . . . [N]othing is completely stable, no plan is beyond alteration. When an act of Congress requires knowledge of a future action, it does not require knowledge in the sense of certainty as to a future act.
Id. Where, as here, a defendant has a modus operandi -- i.e., an established pattern
of behavior involving some means of force, fraud, or coercion -- the mens rea
element is met. See Noble v. Weinstein, 335 F. Supp.3d 504, 517-18 (S.D.N.Y. 2018)
("The plain language of Section 1591(a) requires Plaintiff to plausibly allege
knowledge, or a modus operandi, associated with above-described 'enticement,'
that Defendant enticed Plaintiff with knowledge that means of force or fraud
would be used to cause a commercial sex act to take place."); see also United States
v. Maynes, 880 F.3d 110, 114 (4th Cir. 2018) ("[T]here is no such requirement [in
§ 1591 that fraud in fact caused a commercial sex act]; the crime is complete
when the defendant recruits, entices, harbors, etc., the victim with knowledge
- 42 - that the prohibited means will be used in the future to cause them to engage in
commercial sex acts.").
To the extent Rubin argues that there was insufficient evidence that
he possessed the requisite mens rea to be liable under the TVPA, the evidence
presented at trial makes clear that a reasonable jury could have found by a
preponderance of the evidence that Rubin knew or recklessly disregarded the
fact that force and coercion would be used to compel plaintiffs to perform sexual
acts to which they did not and would not consent. The record is replete with
evidence that Rubin developed a sophisticated operation to solicit and recruit
various women, inform them that some degree of sadomasochism would take
place, provide them a combination of alcohol and drugs like Vicodin and
oxycodone, and then grossly exceed the parameters of the activity he told them
to expect. He would then pay the women for the encounter after he finished.
The evidence established that he had a modus operandi. Many plaintiffs testified
that, although they were aware they would engage in some form of rough sex,
they were not aware that Rubin would insert pool cues into them, deploy
electrical devices, or escalate encounters after they were rendered incapable of
objecting because he had bound and gagged them. And on many occasions,
- 43 - even when they were able to protest and plead for him to stop, Rubin continued
to rape or abuse them. Accordingly, the jury could have reasonably found Rubin
liable under the TVPA for recruiting, soliciting, transporting, and patronizing
women while knowing or recklessly disregarding the fact that he would subject
them to violent abuse to which they had not consented.
Although this may not be the typical sex trafficking case originally
contemplated by the TVPA, Congress has expanded the TVPA to encompass
conduct such as Rubin's -- the soliciting, enticing, transporting, and patronizing
of women to engage in sex acts for money and using force, for one's own sexual
gratification. 13 Rubin contends that, even if he exceeded a plaintiff's consent, the
TVPA was not intended to cover this conduct, which he argues is better
addressed by the tort of rape. We reject the argument. Indeed, the TVPA was
13 "There are 'three broad categories of techniques used by . . . traffickers to exploit victims.' The first and most rare method is kidnapping a victim and enslaving her through force or threats. The second method is 'using fraud to gain access to a victim and then providing drugs and alcohol to incapacitate them.' The trafficker then 'leverages the psychological impact' of the initial sexual assault to force the victim into other sex acts. The third, and most common method used by domestic sex traffickers, is known as 'grooming.' This method involves traffickers exploiting the vulnerabilities of their victims, often through a romantic relationship, by convincing them that they are in love. This relationship eventually turns violent as the pimp convinces the victim to engage in commercial sex acts out of 'love' and 'devotion.'" Allison J. Luzwick, Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, 112 Nw. U. L. Rev. 355, 366 (2017). - 44 - passed because "[e]xisting legislation and law enforcement in the United States
. . . [were] inadequate to deter trafficking and bring traffickers to justice, failing to
reflect the gravity of the offenses involved." 22 U.S.C. § 7101(b)(14). That there
may be other laws that also cover some of Rubin's conduct does not render the
TVPA inapplicable. Jungers, 702 F.3d at 1074 ("As for any overlap within the
TVPA or with other criminal statutes, redundancies across statutes are not
unusual events in drafting, and so long as there is no positive repugnancy
between two laws, a court must give effect to both." (citation modified)). We
conclude that the TVPA covers the scope of Rubin's conduct.
2. Consent
Rubin asserted, as an affirmative defense, that plaintiffs consented to
engage in the forced commercial sex acts and that even if they withdrew their
consent, he was unaware they did so. For the following reasons, we affirm the
jury's finding that Rubin failed to prove the affirmative defense of consent. See
Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 7 F.4th 50, 63 (2d Cir. 2021)
("An affirmative defense is a defense that will defeat the plaintiff's claim, even if
all allegations in the complaint are true, rather than an attack on the truth of the
allegations, or a rebuttal of a necessary element of the claim." (citation
- 45 - modified)); Red Tree Invs., LLC v. Petróleos de Venezuela, S.A., 82 F.4th 161, 171 (2d
Cir. 2023) ("The burden of proof to establish an affirmative defense . . . falls on
the defendant.").
Rubin argues that the NDAs sufficiently rebut plaintiffs' contention
that he was aware they did not consent to the various BDSM encounters. We are
not persuaded. Even if, as Rubin argues, the NDAs indicated that he believed
plaintiffs were aware of what could transpire during their BDSM encounters, it is
not our task on appeal to reweigh evidence presented to the jury. Gronowski, 424
F.3d at 292. Rubin cross-examined plaintiffs as to their awareness of what could
transpire based on the NDAs and testified himself as to what he perceived based
on plaintiffs' representations to him. A rational juror could very well find that
plaintiffs did not consent to the particularly violent acts to which they were
subjected; instead, the NDAs indicate that Rubin used the penalty clause to
intimidate women from speaking out, prevent them from taking legal action
against him, or make them believe that to receive the agreed-upon payment they
had no choice but to subject themselves to conduct beyond that to which they
had consented.
- 46 - Moreover, Rubin often rushed the plaintiffs, most of whom did not
graduate high school, to sign the contracts, and often after they had consumed
alcohol or drugs. None were given a meaningful opportunity to review the
contract, modify its terms, or keep copies. Certainly, these contracts alone do not
establish, as a factual matter, plaintiffs' consent to the acts Rubin had planned for
them. If anything, the contracts exemplify the disparity in bargaining power
between Rubin and the plaintiffs. Cf. 22 U.S.C. § 7101 ("The low status of women
. . . has contributed to a burgeoning of the trafficking industry.").
Rubin further argues that plaintiffs' text conversations with him and
their willingness to return for additional encounters indicate their consent, such
that the jury could not have found that he possessed the mens rea required for
liability under the TVPA. We reject the argument.
First, on top of consistently supplying cocaine, alcohol, Vicodin,
Percocet, and oxycodone to plaintiffs, Rubin subjected the plaintiffs to significant
psychological and physical abuse. He actively recruited women who were
uneducated, financially dependent, and victims of childhood abuse. Rubin
wanted to cultivate sexual relationships with women of his choosing, young
women who were vulnerable and inexperienced. Rubin’s victims also depended
- 47 - on him in various ways. For instance, Rubin exercised psychological control
over Hopper after reenacting her childhood abuse, Hassen developed an
addiction to oxycodone, and Lytell continued to send her friends to Rubin,
despite her severe injuries, because she needed money. Under these
circumstances, a rational factfinder could conclude that these women would be
less likely to vocally object or complain if Rubin did exceed their consent or that
they might return to see him after a nonconsensual encounter. See, e.g., United
States v. Rivera, 799 F.3d 180, 186-87 (2d Cir. 2015) (holding that, in determining
whether a victim would feel coerced, a "jury [may] consider the particular
vulnerabilities of a person in the victim's position").
Second, it was neither incredible nor against the weight of the
evidence for the jury to conclude that plaintiffs were coerced to engage in certain
commercial sex acts against their consent, even though in some instances they
made return visits to see Rubin. 14 Indeed, the record established that Rubin often
14 See United States v. Pollok, 139 F.4th 126, 137 (2d Cir. 2025) ("Insofar as [the defendant] contends that, based on the trial evidence, the jury should not have concluded that [the victim] was recruited, solicited, or enticed into commercial sex work, but instead should have found that [the victim] participated in this conduct voluntarily, that argument is unavailing. The evidence of sex trafficking presented to the jury was not incredible on its face, and thus it was reasonable for the jury to infer that the victim was coerced into engaging in commercial sex acts." (citation modified)). - 48 - changed his behavior and the depravity of his acts seemingly on a whim. For
instance, Tagai and Hopper engaged in consensual prostitution with Rubin for a
long period of time. Their earlier encounters followed a predictable pattern of
sharing dinner and wine on dates before engaging in some degree of light-
BDSM-style sexual intercourse. Only years into their encounters with Rubin did
he spring violent behavior upon them, including shoving a pool cue into Tagai
and wordlessly entering his penthouse and throwing Hopper down, penetrating
her, and raping her after she started crying and begging him to stop. The jury
could reasonably find that Rubin planned to escalate his encounters only after
plaintiffs grew comfortable and financially dependent upon him and that many
did not engage in this later conduct voluntarily despite consenting to earlier
commercial sex encounters. See United States v. Frey, 736 F. Supp. 3d 128, 139
(E.D.N.Y. 2024) ("Indeed, [the victims'] initial consent to commercial sex 'does not
mean that they therefore consented to being threatened or coerced into
performing sexual acts they did not wish to perform' . . . ." (citation modified)). 15
15 "The acts of recruiting and obtaining can be exceptionally deceptive and make a situation of human trafficking look like another crime, such as domestic violence. Traffickers may seduce their victims for an intimate relationship or marry their victims, thereby obtaining them. The trafficker's characterization as an intimate partner or
- 49 - Finally, even assuming a person can consent to the extreme physical
and psychological abuse to which Rubin subjected these plaintiffs, the jury could
have found that, notwithstanding their initial consent, they did not consent to the
later, more abusive conduct. Rubin maintains that he "informed each plaintiff
that the encounters would consist of sadomasochistic acts," but he never
delineated, except to some extent with Hassen, 16 that those acts included sexual
restraint devices, cattle prods, electrical instruments, and forcing women to beat
other women. Appellant's Br. at 1. And several plaintiffs testified that Rubin
continued to sexually abuse them against their will well after they had instructed
spouse creates a perception of consent, causing confusion not only to the victim, but also to bystanders." Jessica Visage, A Labor of Love: The Intersection of Domestic Violence and Human Trafficking and Why Attorneys Have A Duty to Understand the Difference, 49 S. Ill. U. L.J. 541, 552 (2025); see also Marisa Silenzi Cianciarulo, What Is Choice? Examining Sex Trafficking Legislation Through the Lenses of Rape Law and Prostitution, 6 U. St. Thomas L.J. 54, 75 (2008) ("Even 'willing' prostituted women who may have consented to sex work are forced to engage in prostitution under conditions to which they did not consent."). 16 With respect to Hassen, a jury could reasonably find that on at least one occasion, Rubin knew or recklessly disregarded the fact that she would be coerced into performing certain acts. Indeed, although he warned her that she would get slapped hard or whipped, he also explicitly promised that she would feel safe the entire time. Instead, Hassen was pressured into taking oxycodone, was beaten in a public place, and blacked out on multiple occasions. Certainly, after she cried throughout the first encounter, fainted during a different encounter, and later became addicted to oxycodone, a rational factfinder could find that Rubin continued to solicit and patronize her in reckless disregard of the fact that she did not reasonably consent to the BDSM in which he planned to engage. - 50 - him to stop. A reasonable jury could therefore have found that Rubin was aware
of his own BDSM pattern and recklessly disregarded how his use of force could
and would compel plaintiffs to continue engaging in commercial sex acts to
which they did not consent.
On a sufficiency challenge, it is not our task to choose between
competing inferences. Here, the jury was permitted to reject Rubin's argument
that he reasonably believed that plaintiffs' return to engage in subsequent
encounters indicated they consented to the later, more violent actions. 17 It was
the factfinder's task to weigh Rubin's testimony that he believed plaintiffs
consented to his encounters against their testimony that he coerced them into
those encounters. Accordingly, Rubin's argument that the bulk of plaintiffs'
testimony was simply "not credible" on the issue of consent bears little weight on
a sufficiency challenge. See Robinson, 702 F.3d at 36. We reject Rubin's
sufficiency claim.
17 Cf. Rivera, 799 F.3d at 185-86 ("[Defendants] wanted to suggest that having already been a prostitute she would not have been deceived by [Defendant] and therefore her testimony that she was coerced into working for him . . . should be disbelieved. . . . Even if no promises were made to [the victim], this would not be evidence that she consented to be beaten and to receive no share of the fees paid by the johns she serviced.") (quoting United States v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012))). - 51 - II. The Jury Instructions
Rubin challenges the district court's jury instructions on the grounds
that the court misstated the TVPA's mens rea requirement. We conclude that the
district court did not err in its instructions and that, even if it did, any error was
harmless.
We review preserved challenges to a district court's jury instructions
de novo. See Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 147 (2d Cir. 2025). 18
"We will overturn a verdict on a challenge to jury instructions only if (1) the
instructions were erroneous, and (2) the error was prejudicial." Id.
"Jury instructions are erroneous if they mislead the jury or do not
adequately inform the jury of the law, and error is prejudicial where the
appellant can show that the error, in light of the charge as a whole, improperly
influence[d] the jury's verdict." Id. (citation modified) (alterations adopted).
"Moreover, in determining whether a jury instruction was so prejudicial as to
18 Rubin properly preserved his challenge to the jury instruction. See Supp. App'x at 2007 (district court stating: "[Y]ou have fully preserved your rights on those issues by having submitted the proposed jury instructions and having the arguments that you've made rejected."). - 52 - warrant overturning the verdict, we must examine the jury charge 'in its
entirety,' rather than 'scrutinize it strand-by-strand.'" Id. (citing Warren v. Dwyer,
906 F.2d 70, 73 (2d Cir. 1990) (alterations adopted)). "And, though our review is
de novo, we emphasize that 'a trial court has discretion in the style and wording
of jury instructions, so long as the instructions . . . do not mislead the jury as to
the proper legal standard.'" Id. (citing Parker v. Sony Pictures Ent., Inc., 260 F.3d
100, 106-07 (2d Cir. 2001)).
Rubin challenges only one aspect of the charge: the district court's
instructions on consent, and, more specifically, the withdrawal of consent. After
outlining the elements of the TVPA charge, the district court instructed the jury
on Rubin's affirmative defense of consent:
If you find that plaintiff consented to a commercial sex act, then the defendant doesn't have the requisite knowledge for liability under this sex trafficking law. In other words, if the plaintiff you're considering consented to engage in a commercial sex act about which you've heard evidence, then her claim under this cause of action fails. That is, consent is a complete defense to this cause of action.
Consent isn't permanent; if a person willingly agrees to engage in a commercial sex act, but later changes her mind, and then is forced to continue to engage in a commercial sex act against her will by force, threat of force, fraud or coercion, then a commercial act becomes
- 53 - involuntary, not with consent.
Supp. App'x at 2080-81. The court further instructed on BDSM:
Now, throughout the trial you heard evidence about practices called bondage, discipline, domination, submission, sadism, masochism or BDSM, that may involve the use of force or actual physical restraint, as well as the infliction of physical pain. The fact that force or physical restraint was used during the course of a BDSM act does not, by itself, mean that the statute was violated. Moreover, if you find that the plaintiff you are considering consented to the BDSM act, then by definition, neither force nor coercion were used.
Id. at 2081-82.
During deliberations, the court received a note asking: "Sex
Trafficking. If a person is not present when consent is withdrawn, is consent still
a defense for that person?" Id. at 2122. The court consulted with both parties and
issued the following note to the jury:
Where consent has been given and then a person is not present when the consent is withdrawn, the person who is not present must know, or recklessly disregard, the withdrawal of the consent during the commercial sex act to be liable for that act of sex trafficking.
Id. at 2133; see also Rubin, 724 F. Supp. 3d at 103. 19
19 The instruction is awkwardly phrased, but the district court was instructing the jury that a defendant who was not present when consent was withdrawn during a sex act is not liable unless he or she knew of or recklessly disregarded the withdrawal of consent. - 54 - Rubin argues that the court erred by failing to instruct the jury that
he had to know or recklessly disregard the fact that consent had been withdrawn
to be held liable under the TVPA. The argument fails.
First, as an initial matter, it is apparent that the jury's question
concerned Powers, who was not present during the commercial sex acts in
question and thus was not present if and when consent was withdrawn during
the course of those acts. The jury's question -- and the district court's response --
did not directly relate to Rubin, who obviously was present during the
commercial sex acts and therefore was present if and when consent was
withdrawn. For this reason, Rubin's reliance on the jury's note is misplaced.
Second, to the extent Rubin argues that the district court failed to
instruct the jury that he had to know or recklessly disregard the fact that consent
had been withdrawn, the argument fails because the jury very well could have
concluded, and likely did conclude, that there was no consent to withdraw, for
the evidence showed that plaintiffs never consented to the later, more violent
and vicious acts. As discussed above, construed in plaintiffs' favor, the evidence
established that even though plaintiffs initially consented to having sex, even
- 55 - sadomasochistic sex, they did not consent to the much more extreme and violent
conduct that actually occurred.
Third, even assuming the court should have explicitly instructed the
jury that Rubin had to know or recklessly disregard the fact that the plaintiffs
withdrew their consent -- and we are not persuaded that it should have -- any
error in excluding the language was harmless and nonprejudicial. Consent is not
a separate element that must be proved to the jury; it merely rebuts the evidence
that a defendant possessed the requisite mens rea with respect to force or
coercion. And the court clearly stated at the beginning of the instruction that the
defendant must "know[] or recklessly disregard[] the fact that force, the threat of
force, fraud or coercion, will cause the plaintiff to engage in a commercial sex act
in which the plaintiff would not otherwise have willingly engaged." Supp. App'x at
2075-76 (emphasis added).
Rubin now argues that the district court should have instructed the
jury that he was liable only if he "knew or recklessly disregarded that each
[p]laintiff withdrew her consent at some point during her encounter."
Appellant's Br. at 29. But Rubin did not request this withdrawal-of-consent
charge at trial. Instead, he requested that the district court instruct the jury that
- 56 - Rubin was not liable if he "reasonably believed . . . that the plaintiff consent[ed]."
Supp. App'x at 2231. It is true, as Rubin argues, that, in its instructions on the
TVPA, the district court did not give this specific instruction to the jury. But the
district court's detailed instructions on consent were sufficient, as the court
charged the jury that "consent is a complete defense to this cause of action" and
provided ample guidance on the question of consent, including, in addition to
the instructions quoted above, that consent is:
[s]imply the willingness for conduct to occur. It may be manifested by words and also by action . . . . In determining whether a plaintiff's words, silence, or conduct manifests consent, you have to consider the surrounding facts and circumstances, including subsequent conduct and statements. Consent, whether expressly given or implied in fact, is not a defense if such consent is obtained by fraud or duress. Additionally, consent can be deemed invalid for numerous reasons, including the lack of capacity to consent or coercion or mistake. Consent has boundaries. A person can give consent as to certain type of activities or touching and not as to others that might occur during the same encounter.
Id. at 2080-81. In our view, these instructions adequately conveyed the notion
that consent had to be reasonably conveyed by the plaintiffs and understood by
Rubin to defeat liability under the TVPA. Taking the charge as a whole, the
district court made clear to the jury that consensual BDSM activities alone could
not form the basis for a valid claim under the TVPA.
- 57 - Accordingly, the district court's jury instruction provides no basis
for overturning the jury's verdict.
III. Punitive Damages Under the TVPA
Rubin contends that the TVPA does not authorize punitive damages
and that the district court erred in permitting the jury to award punitive
damages for the plaintiffs. We disagree.
We review de novo a district court's determination of the availability
of punitive damages awards under a statute as a matter of law. See Ditullio v.
Boehm, 662 F.3d 1091, 1096 (9th Cir. 2011) ("The availability of punitive damages
is reviewed de novo."); Francisco v. Susano, 525 Fed.Appx. 828, 829 (10th Cir.
2013) (noting that rulings on punitive damages are legal determinations); Gaffney
v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 458 (7th Cir. 2006) ("As a question of
law, we review this conclusion [on the availability of punitive damages under a
federal statute] de novo."); see also United States v. Coppola, 85 F.3d 1015, 1019 (2d
Cir. 1996) ("[W]e review all conclusions of law . . . de novo.").
- 58 - B. Applicable Law
"[A]bsent clear direction to the contrary by Congress, the federal
courts have the power to award any appropriate relief in a cognizable cause of
action brought pursuant to a federal statute." Franklin v. Gwinnett Cnty. Pub.
Schs., 503 U.S. 60, 62-63 (1992). The TVPA allows any individual who is a victim
to "recover damages and reasonable attorneys fees." 18 U.S.C. § 1595(a). When
Congress amended the TVPA in 2003 to add the civil remedy, an earlier draft of
§ 1595 provided that courts could "award actual damages, punitive damages,
reasonable attorneys' fees, and other litigation costs reasonably incurred." H.R.
Rep. No. 108-264, pt. 2, at 6 (2003). As referenced above, the final version
omitted the terms "actual," "punitive," and "other litigation costs reasonably
incurred."
The Second Circuit has yet to consider whether the TVPA authorizes
punitive damages, but the Ninth Circuit in Ditullio v. Boehm found that "[b]ecause
the TVPA civil remedy provision creates a cause of action that sounds in tort, . . .
punitive damages are available." 662 F.3d at 1096. Every other circuit to
consider the issue has agreed that the TVPA authorizes punitive damages. See
Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 206 (5th Cir. 2017); Francisco,
- 59 - 525 F. App'x at 834; Warfaa v. Ali, 1 F.4th 289, 293-96 (4th Cir. 2021) (affirming
without discussion award of punitive damages on TVPA claim); see also
Paguirigan v. Prompt Nursing Emp. Agency, LLC, No. 17-cv-1302, 2019 WL 4647648,
at *18 (E.D.N.Y. Sept. 24, 2019).
Rubin contends that the TVPA does not authorize punitive damages
because Congress considered adding punitive damages into the statute but
ultimately opted not to. He argues that the TVPA's silence on punitive damages
indicates a direction by Congress to exclude punitive damages from the statute.
We hold that punitive damages are available under the TVPA.
Rubin's examination of legislative history is flawed because
Congress deleted specific references to both actual and punitive damages and
replaced them with the more generic term "damages." Had Congress intended to
eliminate punitive damages under the TVPA, it could have retained the word
"actual" in the final version of the statute. The Ninth Circuit's reasoning that
courts should apply principles of common law to determine whether punitive
damages are an appropriate remedy under federal statutes authorizing private
actions grounded in tort law is persuasive. Ditullio, 662 F.3d at 1096-98. We
- 60 - agree that the tortious conduct in which Rubin engaged is precisely the type of
outrageous conduct and behavior against public policy targeted by increased
damages awards. See Francisco, 525 F. App'x at 833-34 ("[T]he TVPA addresses
tortious conduct -- indeed, conduct so reprehensible Congress made it criminal
even before adding the civil remedy in 2003."). Accordingly, we hold that the
TVPA authorizes punitive damages and that the award of punitive damages here
was appropriate. We see no error here.
CONCLUSION
For the reasons set forth above, the district court's judgment is
- 61 -
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