Expanding Liability: Customer as Sex Trafficker under Nevada NRS 201.300(2)(a)(1)

Introduction

This commentary examines the Nevada Supreme Court’s decision in O’GORMAN (KEVIN) v. STATE, 2025-Nev-Supreme, No. 87962 (Apr. 4, 2025). Appellant James O’Gorman was convicted by a jury of sex trafficking of a minor and use of a minor in a sexual performance after entering a “sugar daddy” arrangement with a seventeen-year-old, S.B. This case presented key issues concerning the scope of Nevada’s sex-trafficking statute (NRS 201.300), the distinction from pandering and solicitation, and the evidentiary bounds of prior bad-act proof and jury instructions. The Supreme Court affirmed, clarifying that a customer—even one who pays rather than profits—can be guilty of sex trafficking of a child, and that coercion or profit requirement is inapplicable where the victim is a minor.

Summary of the Judgment

The Court affirmed O’Gorman’s convictions on two counts:

Sex trafficking of a minor (NRS 201.300(2)(a)(1));
Use of a minor as the subject of a sexual portrayal in a performance (NRS 200.710).

The Court held: (1) evidence was sufficient to prove “inducing,” “transporting,” and “maintaining” the minor for prostitution, without need for violence or coercion; (2) paying the minor does not remove the defendant from liability—unlike the pandering statute, NRS 201.300(1), which excludes customers; (3) repeatedly requesting nude images sufficed under NRS 200.710 to “encourage” or “permit” a sexual performance; (4) the district court properly admitted six prior “sugar dating” chats under NRS 48.045(2) (nonpropensity purposes) after a Petrocelli hearing; and (5) trial court did not err in rejecting a fact-argument jury instruction or admitting victim’s psychological evidence for its relevance to harm.

Analysis

Precedents Cited

Jacobs v. Virginia, 443 U.S. 307 (1979) and Koza v. State, 100 Nev. 245 (1984) – framed the sufficiency-of-evidence standard.
Stanifer v. State, 109 Nev. 304 (1993) – distinguished pandering (recruiting/providing prostitutes) from solicitation; O’Gorman mis-invoked it to challenge a sex-trafficking conviction.
Petrocelli v. State, 101 Nev. 46 (1985) – established procedure for admission of prior bad‐act evidence under NRS 48.045.
Bigpond v. State, 128 Nev. 108 (2012) and Tinch v. State, 113 Nev. 1170 (1997) – refined the three-part test (relevance, proof by clear and convincing evidence, probative value vs. unfair prejudice) for nonpropensity evidence.
Milton v. State, 111 Nev. 1487 (1995) and Brooks v. State, 103 Nev. 611 (1987) – addressed the right to a “theory of the case” jury instruction.
United States v. Streett, 83 F.4th 842 (10th Cir. 2023) – federal analogue on nude-photo statutes, nonbinding but discussed by appellant.
Jackson v. State, 117 Nev. 116 (2001) – standard of review for jury instructions; and Jeremias v. State, 134 Nev. 46 (2018) – plain error review.

Legal Reasoning

1. Sufficiency of Evidence for Sex Trafficking
O’Gorman argued that without recruiting others for prostitution (pandering), he could only be a customer (solicitation). The Court rejected this: sex trafficking under NRS 201.300(2)(a)(1) covers anyone who “induces, causes, recruits, harbors, transports, provides, obtains or maintains a child to engage in prostitution.” Legislative amendments in 2013 removed any customer-exclusion for trafficking of minors and omitted a coercion/violence element for child victims. O’Gorman’s actions—transporting S.B., maintaining a paid-for sex arrangement, inducing her to send nude images—met these statutory elements.

2. Use of a Minor in a Sexual Performance
Under NRS 200.710, knowingly using or encouraging a minor to engage in sexual conduct to produce a performance is criminal. The Court held that repeated requests for explicit photos and videos—coupled with payments and promises—satisfied this standard without requiring additional physical or psychological force beyond “encouragement.”

3. Admission of Prior Bad Acts
After a Petrocelli hearing, the district court admitted six online “sugar dating” chats to show motive, plan, opportunity, and knowledge. Applying the Tinch/Bigpond factors, the Court concluded the evidence was (a) relevant to rebut the “affectionate boyfriend” defense, (b) proven clearly on O’Gorman’s devices, and (c) more probative than prejudicial, especially in its limited scope.

4. Jury Instruction and Victim’s Psychological Evidence
The proposed “theory of the case” instruction was a factual argument, not a statement of law, and thus properly rejected. Evidence of S.B.’s psychological conditions, although eliciting sympathy, was also relevant to the harm element of the uncharged child-abuse count. No plain error was shown.

Impact

This decision clarifies several critical points for Nevada practitioners and future litigants:

Under NRS 201.300(2)(a)(1), a defendant who pays a minor for sex can be both customer and trafficker; no coercion or personal profit is required where the victim is a child.
Solicitation and pandering principles cannot be conflated with sex trafficking of minors; legislative amendments target child victims as per se vulnerable.
Defense arguments downplaying transactional intent in close relationships will face rebuttal through targeted introduction of prior “sugar dating” communications under Petrocelli.
Requests for explicit imagery alone can constitute “use” or “encouragement” under NRS 200.710 when supported by financial inducement.

Complex Concepts Simplified

Sex Trafficking (NRS 201.300(2)(a)(1)) – In Nevada, it is illegal to “transport, maintain, or induce” any person under 18 to engage in prostitution. Unlike adult trafficking statutes, child trafficking requires no proof of force or profit.
Pandering vs. Trafficking – “Pandering” (NRS 201.300(1)) deals with recruiting or setting up someone in prostitution, but expressly excludes customers. “Trafficking of a minor” includes customers who pay children for sex.
Prior Bad-Act Evidence (Petrocelli Hearing) – Before introducing a defendant’s unrelated misconduct, the court holds a hearing to ensure relevance (motive, plan, etc.), clear proof, and that it won’t unduly prejudice the jury.
Theory of the Case Instruction – A jury must be instructed on the legal elements and defenses, not on a narrative of facts arguing innocence.

Conclusion

The Supreme Court of Nevada’s decision in O’Gorman v. State establishes that under the amended trafficking statutes, financial arrangements with minors automatically expose payors to sex-trafficking liability, irrespective of profit or coercion. It reinforces robust admissibility standards for prior related misconduct and underscores the precise scope of permissible jury instructions. This ruling will guide prosecutors in framing child-trafficking charges and defense counsel in anticipating and contesting evidentiary strategies in “sugar dating” contexts and beyond.