January 09, 2016

States Step Up the Fight Against Human Trafficking

Cynthia L. Cooper

In 2000, when the term “human trafficking” first made its way into public consciousness, Iryna M. was a 13-year-old teenager in New York. That was the year that the federal Trafficking Victims Protection Act of 2000, or TVPA (22 U.S.C. § 2201 et seq.), was signed into law—a watershed moment.

The federal law divides victims of trafficking in persons (TIP) into three groups: adults induced into commercial sex through force, fraud, or coercion; children under age 18 induced into commercial sex; and any person induced to provide labor or services through force, fraud, or coercion. With prevention, protection, and prosecution measures, the law created T and U visas to assist trafficked immigrants and strengthened law enforcement and services. More muscle was added in five reauthorizations and in the Justice for Victims of Trafficking Act of 2015.

Human trafficking hit Iryna’s world in 2006. “I am a domestic survivor of human trafficking,” she says. A common misconception of human trafficking is that it involves smuggling or moving people from place to place, but Iryna was exploited within U.S. borders through psychological manipulation and pressure. “I was exploited and sold for sex. Money never came into my hand. I’m not the only girl that this happens to,” says Iryna, who now campaigns against trafficking.

After the TVPA was passed, advocates realized more concerted efforts were needed, particularly at the state and local levels. In local communities, police and prosecutors are the first responders, not the Federal Bureau of Investigation or the U.S. Department of Justice.

“What has changed dramatically since the TVPA was passed is the attention paid to U.S. trafficking and trafficking of U.S. citizens,” says lawyer Jean Bruggeman, the Arlington, Virginia–based director of the Freedom Network, a coalition of service providers for trafficking victims.

Victims of human trafficking are “hidden in plain sight,” advocates say, working as domestic helpers or in restaurant kitchens, or peddled for sexual encounters on the Internet. Common scenarios involve traffickers luring vulnerable people—troubled youth in foster homes, people fleeing poverty or violence, and the homeless—to supposed jobs. Along the way, the victims encounter a bait-and-switch: the promised job on a construction crew or modeling gig turns out to be mining in a remote area or cleaning motel rooms.

Cindy Liou, an anti-trafficking expert in San Francisco, recalls a client who was coerced into working in a nursing home to pay off job “placement” fees, sleeping on a cot in a hallway. Other workers may be housed in assigned bunkrooms for which they are charged excessively, or encounter violence or threats against their persons or families.

Anti-trafficking advocates rallied state legislatures to fix real-world gaps. From 2003 to 2013, every state passed some form of labor and sex anti-­trafficking legislation, according to the National Conference of State Legislatures (NCSL), based in Washington, D.C.

More assistance is likely on the way. The National Summit on Human Trafficking and the State Courts drew 300 judges, legislators, and lawyers from 46 states, Washington, D.C., and four territories to New York in October 2015 to consider innovative responses.

“An incredible paradigm shift is taking place in terms of treating defendants who are appearing in a criminal context not as criminal offenders, but as victims,” said New York State Acting Supreme Court Justice Toko Serita.

Prompting States to Action

Chicago lawyer Laurel G. Bellows made human trafficking a ­priority during her tenure as president of the American Bar Association (2012–2013), although she prefers the term “modern-day slavery.” She explains: “In this case, we define slavery by fraud or deceit, as well as by force. So you might be a slave who doesn’t have a shackle—could walk, except by fear of violence, you don’t walk.”

At the ABA, Bellows initiated a multifaceted campaign with 20 ABA sections. One result: adoption in 2013 of the Uniform Act on Prevention of and Remedies for Human Trafficking by the Uniform Law Commission. Comprehensive in scope, it has 21 substantive provisions covering offenses and penalties, victim protection and remedies, and state coordination and education. The Uniform Act has already been adopted in seven states: Delaware, Louisiana, Montana, New Hampshire, North Dakota, Pennsylvania, and South Carolina.

Baskets of additional proposals—from specialized courts to business transparency—are circulating. Across the states, 31 pieces of anti-trafficking legislation were enacted in 2014 alone, according to NCSL.

Special Attention to Trafficked Minors

Minors who are victims of sex trafficking—sometimes called commercially sexually exploited children, or CSEC—are a particular focus of state legislatures. “There is no such thing as a child prostitute,” said Judge Stacy Boulware Eurie, presiding judge of the Juvenile Court for Sacramento, California, at the state courts summit.

In 2014, 530 bills related to domestic minor sex trafficking were introduced in 43 states and the District of Columbia, according to Shared Hope International, a policy organization in Vancouver, Washington.

What’s more, Safe Harbor laws are designed to help arrested minors, for example by diverting them from the criminal system to child protective services. “The Safe Harbor bills have arisen around the country to address that question of should we even be prosecuting children who don’t have the legal capacity to make these decisions,” says Kirsten Widner, a child advocacy attorney in Georgia, where a Safe Harbor law took effect in July 2015. “The way most state prostitution laws are written, kids who are below the age of consent could still be found delinquent for engaging in prostitution, even if they are doing it involuntarily,” she points out.

As of 2014, 28 states had adopted a Safe Harbor law, according to NCSL.

In November, Georgians were scheduled to vote on another key component—funding help to trafficked minors through a charge on adult entertainment businesses.

Sexually exploited children “are some of the most difficult and complex type of cases, and they need to be approached through a trauma-informed lens,” Eurie said at the state courts summit.

In a special CSEC court in Sacramento, all but two of 155 youth have been girls. Teams from an array of fields—prosecution, defense, mental health, and schools—create a multidisciplinary treatment plan for each person, Eurie noted.

Conflicting Views on Buyers of Sex

If there is general agreement on addressing sex trafficking of minors, a vast schism exists on the legal framework for adults engaged in commercial sex. Even the language is in dispute: Is it “sex work” or “prostitution,” or something else?

“End demand” policies focus on the “johns” and support more arrests and increased penalties for the buyers of sex and pimps. “Trafficking is a violent felony. Demand is a key component,” says Taina Bien-Aimé, executive director of the Coalition Against Trafficking in Women (CATW) in New York City. “Sex trafficking is inextricably linked to prostitution. We don’t see prostitution as a form of work. We reject that. As women’s rights advocates, we look at the perpetrators.”

States are increasingly leaning toward “end demand” policies, and laws creating “john schools”—diversion programs for persons arrested for soliciting the services of a prostitute, or another related offense—have been passed in at least eight states, according to NCSL.

The “end demand” approach is countered by equally articulate human rights advocates who favor decriminalizing commercial sex when consenting adults are involved. “Currently, in our law, buying commercial sex and trafficking have different definitions,” says anti-trafficking expert Liou, who contends that heightened prosecution of sex buyers endangers the safety and health of adults who engage in commercial sex without force or coercion.

“Some people are realizing that criminalizing and being really oppressive toward people in the sex industry is not really helping,” Liou adds. Hers is a perspective shared by many sex worker coalitions.

The two sides sparked debate in August 2015 when Amnesty International voted to support worldwide decriminalization of the buying and selling of sex by consenting adults and rejected calls from “end demand” activists, Iryna among them.

Problem-Solving Courts Test the Waters

The first Human Trafficking Intervention Court (HTIC) opened in 2008 in Queens, New York. Under the guidance of Judge Serita, people arrested for prostitution are eligible for an adjournment of the charges after completing a several-week program of training, counseling, and services. New York State opened an additional 10 trafficking courts, and jurisdictions as varied as Franklin County, Ohio; New Castle County, Delaware; and Travis County, Texas, are using problem-solving courts or specialized dockets to assist victims, especially of sex trafficking, when they are brought into the criminal justice system.

Despite the good intentions, some advocates for survivors see the process as flawed. “It’s a step forward and an improvement. But when you are in a situation where you need help, an arrest and being funneled through the courts are not going to get to your needs,” says Juhu Thukral, a founder of the NY Anti-Trafficking Network and former director of the Sex Workers Project at the Urban Justice Center in New York City. A better approach? “Not arresting people who are survivors of trafficking,” she says.

Labor Trafficking Accountability

California has been at the forefront of addressing labor trafficking. “The most cutting edge is the passage in 2010 of the Transparency in Supply Chains Act,” says Stephanie Kay Richard, policy and legal director at the Coalition to Abolish Slavery and Trafficking (CAST) in Los Angeles. As preventive legislation, the law requires companies with more than $100 million in annual revenue to publicly post what they are doing to evaluate and address risks of trafficking and slavery among suppliers.

Another piece of legislation, the California Foreign Labor Recruitment Law, requires foreign labor contractors to protect workers from ­intimidation and exploitation. “We’re trying to engage companies in a dialogue,” Richard says. “I don’t think we can end trafficking. But I’d like to take a big chunk out of it in California.”

In addition, the ABA Business Law Section also shares contract templates and principles on trafficking, Bellows notes.

Aiding Victims

Survivors of trafficking need help with family law, housing, medical care, education, employment law, civil recovery, financial aid, and more. Some of the most successful state laws offer concrete aid, such as the following:

Vacatur. Advocates in New York passed a provision in 2010 to permit the expungement of the criminal records of trafficking survivors. “Certain employers will run background checks. Also, it’s important for people’s peace of mind. To think that they have a record when someone forced them to do something—you carry that around for life,” says Suzanne Tomatore, director of the Immigrant Women and Children Project at the New York City Bar Justice Center.

An additional 17 states followed suit, according to the Polaris Project, a Washington, D.C., advocacy organization that monitors state anti-trafficking legislation.

Victim services. Helping victims rebuild their lives through services is critical, advocates say. Thirty-eight states provide victim assistance or fund programs to aid trafficking survivors, according to Polaris.

Hotline postings. Laws encouraging or requiring the posting of a hotline number, passed in 25 states, should be a priority, says Audrey Roofeh, director of advisory services at Polaris, which runs the National Human Trafficking Resource Center Hotline. “This is a model that works really well,” she notes. “We’re able to connect victims with services, and we are able to identify trends.”

There is a great deal more left to do. “Where workers are being beaten if they don’t work, I think people understand—that’s trafficking,” says Freedom Network’s Bruggeman. “But we still haven’t gotten to the point where we really understand the more subtle forms of trafficking, of psychological coercion. That’s starting to change. You know it takes a lot of time to educate an entire nation about something that hasn’t been discussed previously.”

Resources on Human Trafficking and the Law

Human Trafficking and the State Courts Collaborative

Polaris Project

Human Trafficking Legal Access Center

American Bar Association Center for Human Rights

National Human Trafficking Resource Center Hotline

What Is Trafficking in Persons?

Office for Victims of Crime Training and Assistance Center, Office of Justice Programs

Cynthia L. Cooper

Cynthia L. Cooper is an independent journalist and author in New York City and a former practicing lawyer.