Whether you represent a child client in abuse and neglect (child welfare) proceedings or in some other capacity, you should recognize that child victims of other crimes may also be victims of human trafficking, and specifically domestic child sex trafficking. Often, the children may not view themselves as trafficking victims. It is therefore important for you to assess a case with a full understanding of applicable laws—both traditional laws and more recent anti-trafficking statutes.
What Is Human Trafficking?
Human trafficking generally involves use of power and control to extract labor or services from one party for the benefit of another, often but not always for financial or material gain. Movement between jurisdictions is not required, and the value gained does not need to be financial—anything of value may be exchanged, including food, drugs, labor, or a place to sleep. Both adults and children can be victims of various forms of trafficking, including sex and labor trafficking.
The Trafficking Victims Protection Act of 2000 (TVPA) defines “severe forms of trafficking in persons” as:
- sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
- the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. (TVPA, 22 U.S.C. § 7102 (8) (2008))
Under this definition, any child under the age of 18 engaged in commercial sex is a victim of a severe form of trafficking. Furthermore, a “commercial sex act” means any sex act for which anything of value is given to or received by any person—the child victim may receive a benefit such as a place to sleep or food, or a third party such as a pimp or trafficker may financially benefit.
Myths and Facts about Domestic Child Sex Trafficking
Very often, the public views child sex trafficking as something that only happens overseas to young girls, when, in fact, commercial sexual exploitation and sex trafficking happen every day across America. Its victims are both boys and girls who live in diverse geographic areas—cities, suburbs, and small rural towns (tinyurl.com/jg82hru). But it is often a crime that is hidden not only from its victims’ families and friends but also from the professionals who interact with the youth.
Many legal professionals and others who work with youth are unaware that sex trafficking occurs in their communities or, more significantly, lack the knowledge or training to identify and serve them. And even when a victim is identified, there are often too few resources to provide the specialized care trafficking victims require.
Identification of Victims
Attorneys representing youth have a unique opportunity to identify victims of trafficking among their clients. Certain characteristics make youth more vulnerable to trafficking, including their dependence on adults, homelessness, and justice-system involvement. Previous child abuse is also a common characteristic of youth who are sex trafficked. Children and youth involved with the child welfare system and placed in foster care are at high risk of trafficking resulting from the lack of stability in their lives, the separation and physical distance from friends and extended family, and the related emotional toll. Childhood trauma is a common characteristic within this population.
A 2013 California Child Welfare Council study found between 50 and 80 percent of commercial sexual exploitation victims were involved with child welfare at some point (tinyurl.com/gp7vgf9). Other studies support this connection; the Connecticut Department of Children and Families found that 86 of 88 children identified as sex-trafficking victims were involved with child welfare services in some capacity (tinyurl.com/gv4u9ef).
Involvement with juvenile justice is also common among trafficking victims. Arrests of minors for prostitution may be relatively low (1,130 nationally in 2009), but 65 percent of identified victims report being arrested for other offenses, including petty larceny, shoplifting, drugs, trespassing/loitering, or lack of identification (tinyurl.com/hrngorh).
Determining whether a child client has been a victim of trafficking can begin with identifying some of these risk factors. Additional identification and screening can help guide your approach to the case, as well as build a strong and trusting relationship with your client. Screening is generally conducted by the child welfare or other agency with which the youth is involved. However, attorneys can also ask questions to better determine whether a child is a trafficking victim (see the sidebar on page 26). Some indications of possible trafficking include unexplained absences from school, physical signs of abuse, withdrawn behavior, a significantly older boyfriend or girlfriend, or a sudden increase in expensive possessions.
Once a youth is identified as a potential trafficking victim, it is important to understand that his or her needs may be very different from other clients and may not be what you expect. In a recent national study, trafficked youth identified their top three needs as assistance with housing and utilities, employment and education, and food and money at the most basic level (tinyurl.com/hrngorh). Each of these was more important to them than receiving counseling. At the same time, the trauma victims’ experience must be appropriately addressed, both within the attorney-client relationship and to inform advocacy for appropriate, specialized services.
Providing Trauma-Informed Advocacy
In 2014 the American Bar Association called for integrating trauma knowledge into daily legal practice as well as integrating and sustaining trauma awareness and skills in practice and policies (tinyurl.com/jrhpjmm). A traumatic experience for a child is one that threatens the life or physical integrity of the child or someone important to that child, such as a parent or sibling. The event causes an overwhelming sense of helplessness and terror and produces intense physical effects such as a pounding heart, rapid breathing, or dizziness.
A child’s reaction to trauma may best be understood as an adaptation to survive, and trauma reactions are often misdiagnosed or overlooked as symptoms of other mental illness. As part of trauma-informed legal advocacy, it is important to understand how a child’s trauma history may influence his or her behavior (tinyurl.com/hqerslz, tinyurl.com/z9gmtaf):
- Be aware of a child’s trauma triggers (reminders of a past traumatic event that make the person feel in imminent danger again).
- Understand that a child’s behavior is often a coping mechanism.
- Consider the child’s chronological and developmental age.
- Enhance resilience by helping the child find mastery or success.
- Build the child’s relational capacity—ensuring the child maintains or develops a deep emotional connection to at least one supportive adult.
- Focus on the child’s functional ability.
- Advocate for evidence-based treatments.
- Seek trauma-informed therapists.
Trauma may affect the attorney-client relationship and the ability of the child to trust his or her attorney.
Preventing Sex Trafficking and Strengthening Families Act of 2014
While the child welfare system is designed to protect and help children, up to 80 percent of youth who are currently or formerly in foster care become victims of sex trafficking (tinyurl.com/zmlkdyo), and still others come into the system as either known or hidden trafficking victims. In response, Congress passed and President Barack Obama signed into law the Preventing Sex Trafficking and Strengthening Families Act (the Act) on September 29, 2014 (Pub. L. No. 113-183 (2014)). Since then states have worked to implement required changes to the child welfare system’s response to domestic child sex trafficking. Many of the Act’s provisions relate to child welfare agency practice but also have implications for attorneys representing parents and children.
The Act imposes requirements on child welfare agencies to develop policies and procedures to identify, document, and determine appropriate services for child victims of sex trafficking and those children who may be at risk. Agencies are required to consult experts in law enforcement, juvenile justice, health care, education, and services for at-risk youth. As a result, agencies will benefit from the knowledge and expertise of other disciplines as well as inform and support their approach with data from other departments and service providers.
Specialized programs or courts may exist in your jurisdiction with a focus on specific types of cases, such as identifying and addressing child sex-trafficking dependency cases or multi-jurisdictional cases involving both juvenile justice and child welfare–involved youth. For instance, the Los Angeles County Board of Supervisors in 2015 dedicated nearly $7 million for sex-trafficking initiatives, including creating a specialized court for trafficked children in the child welfare system. This court, called the Dedication to Restoration Through Empowerment, Advocacy, and Mentoring (DREAM) Court, benefited from lessons learned by the Succeeding Through Achievement and Resilience (STAR) Court, which serves youth who have been trafficked and arrested. Among girls involved with the STAR court, nearly 80 percent had prior contact with the child welfare agency (tinyurl.com/gqwatas).
The Act also addresses the increased risk of trafficking among youth who run away from foster care. To better understand the number of children who run and to locate missing children more quickly, child welfare agencies must now report when children are missing from care to local law enforcement within 24 hours so the youth can be entered into the National Crime Information Center database at the Federal Bureau of Investigation. A report to the National Center for Missing & Exploited Children (NCMEC) must also occur within 24 hours. As the national clearinghouse on missing and exploited children, NCMEC provides support to social service agencies searching for children missing from care, including case management, poster distribution, onsite law enforcement technical assistance and outreach teams, and case analysis.
In addition to the reporting requirements, the Act requires child welfare agencies to develop policies to quickly locate youth who run or are missing. Agencies must also gather information to help inform future responses, including the primary factors that cause a youth to run and the child’s experiences while absent from foster care, including whether the child was a possible sex-trafficking victim.
As an attorney representing youth within the child welfare system, you can help enforce the provisions of the Preventing Sex Trafficking and Strengthening Families Act by ensuring reporting systems are in place and the required data is collected. If you represent a child who has run from care, you can confirm that the agency has made a report and is using all available information to locate your client or request judicial oversight of the agency’s progress in attempting to locate a missing child.
In addition, when a child client returns to care, you can advocate for appropriate screening for sex trafficking and ensure any identified services and interventions are provided (see the section “Questions to Ask at Hearings: Youth Who Run Away from Care” in the ABA’s The Role of the Court in Implementing the Older Youth Provisions of the Strengthening Families Act). Attorneys play a significant role in determining how to address the factors that led a child client to run and how those circumstances should be adjusted to stabilize the youth in the least-restrictive, most family-like placement.
Trafficked Youth Are Victims, Not Offenders
The Preventing Sex Trafficking and Strengthening Families Act’s requirements to provide appropriate services for trafficked youth align with the legislative trend to provide safe harbor protections so youth receive services rather than enter the criminal or juvenile justice systems as a result of charges for prostitution or other commercial sex acts. Although state statutes vary, safe harbor generally refers to a continuum of state law provisions that may include:
- classification of trafficking victims as abused or neglected children;
- training to identify child victims of trafficking;
- diversion programs or immunity from prosecution for child victims of sex trafficking;
- specialized services for victims;
- funding for services;
- establishment of a task force or commission;
- public awareness efforts;
- in-court protections;
- expungement of any criminal offenses; and
- establishment of a trafficking victim compensation fund. tinyurl.com/ja73mbf
Some states are amending their statutes to include some safe harbor law provisions, which may be scattered throughout the statutory code or found together in one act. They aim to treat youth who are trafficked as victims rather than offenders and to serve victims within the child welfare system while avoiding criminal or juvenile justice involvement when possible. The Justice for Victims of Trafficking Act of 2015 (Pub. L. No. 114-22) also requires that states amend their statutes to define trafficking of minors as child abuse and neglect.
Representing victims of trafficking—from identification of youth at risk to trauma-informed legal advocacy—provides attorneys the opportunity to positively affect the circumstances of children and youth for whom they work. Knowledge of human trafficking can help attorneys fully address their clients’ needs.
Potential Questions to Identify Trafficking Victims
- Were you told to do anything you did not want to do?
- Did anyone promise you something if you did? Who?
- Were you paid? Did you get to keep the money?
- Were you ever hurt?
- Did anyone say he or she would hurt you, your friends, or your family?
- Were you ever afraid? If yes, why?
- Were you able to talk with family and friends?
- Where did you sleep? Was it in the same place every night?
- Did you travel to different places?
- What did you do at night?
From Katherine Kaufka, “T Nonimmigrant Visas and Protection and Relief for Victims of Human Trafficking: A Practitioner’s Guide,” Immigrant Briefings, September 2006. Reprinted with permission.
ABA Center on Children and the Law and the Juvenile Law Center, In Issue Brief: The Role of the Court in Implementing the Older Youth Provisions of the Strengthening Families Act, February 2016.
Center for Court Innovation, Youth Involvement in the Sex Trade.
Gluck, Elliott, and Rricha Mathur, Child Sex Trafficking and the Child Welfare System (State Policy Advocacy and Reform Center, July 2014).
Klain, Eva, and Amanda Kloer, Meeting the Legal Needs of Child Trafficking Victims: An Introduction for Children’s Attorneys & Advocates (ABA, 2009).
National Council of Juvenile and Family Court Judges, National Center for Missing & Exploited Children, and Office of Juvenile Justice and Delinquency Prevention, Missing Children, State Care, and Child Sex Trafficking.
National Research Council and Institute of Medicine, Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States.
Vera Institute of Justice, Out of the Shadows: A Tool for the Identification of Victims of Human Trafficking.