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January 01, 2013

The State of State Human-Trafficking Laws

By Kelly Heinrich and Kavitha Sreeharsha

In September 2012, President Obama devoted an entire speech to the issue of human trafficking or modern slavery, speaking eloquently of forced labor and sex trafficking worldwide and at home. He said:

When a man, desperate for work, finds himself in a factory or on a fishing boat or in a field, working, toiling, for little or no pay, and beaten if he tries to escape—that is slavery. When a woman is locked in a sweatshop, or trapped in a home as a domestic servant, alone and abused and incapable of leaving—that’s slavery. When a little boy is kidnapped, turned into a child soldier, forced to kill or be killed—that’s slavery. When a little girl is sold by her impoverished family—girls my daughters’ age—runs away from home, or is lured by the false promises of a better life, and then imprisoned in a brothel and tortured if she resists—that’s slavery.

Just days before President Obama’s speech, public awareness events highlighted the issue of human trafficking as we celebrate the 150th anniversary of the Emancipation Proclamation. This past summer, the National Association of Attorneys General completed its year-long presidential initiative on human trafficking just as the American Bar Association began its own. And last year, the official count of states with human trafficking laws reached 49.

The anti-trafficking landscape appears impressive, particularly with the much-heralded state legislative efforts across the country. Beneath the surface, however, gaps in legislation and implementation reflect a different reality, one of underidentification and few prosecutions of human trafficking. This is why the vast majority of judges are not yet seeing human-trafficking cases in their courtrooms.

Recognition of a Modern Crisis

The recent national attention on human trafficking is both welcome and needed on an issue with a modern legal infrastructure that is only about 13 years old. Anti-trafficking efforts began in the United States in earnest with the enactment of the Trafficking Victims Protection Act of 2000 (TVPA). The TVPA solved a number of cumbersome federal prosecution issues. It modernized the involuntary servitude and peonage statutes originating from the Thirteenth Amendment that had been limited by the Supreme Court to physical coercion, which is far less prevalent in human trafficking than psychological coercion. It also created new offenses for forced labor, sex trafficking, and document withholding, which is a common tool used by traffickers to control their victims. The TVPA also made sentencing commensurate with other serious crimes, ranging from 20 years to life. Finally, the legislation included protections for trafficking victims. These protections included critical funding for services to victims after human trafficking and temporary immigration status so that foreign national victims—primary witnesses for the prosecution—would no longer be deported; remaining present in the United States means an increased likelihood of a successful prosecution. In addition, the law offered foreign-trafficking victims eligibility for public benefits, otherwise unavailable to many immigrants.

Progress and Challenges in Addressing Human Trafficking

These key statutory elements from the federal law help us understand and assess the wave of state statutes enacted over the last 12 years as well as their implementation. Today, every state but Wyoming has a human-trafficking or related criminal statute. However, the laws are as varied as the states themselves. The definitions of human trafficking and the elements widely differ. The TVPA and the UN Palermo Protocol define human trafficking to include both labor and sex trafficking. Yet some states include only sex trafficking and not labor trafficking, even though it is estimated that labor trafficking accounts for 78 percent of all trafficking globally. Some laws only address sex trafficking of minors. Others conflate smuggling and trafficking, which are in fact distinct crimes. The vast majority of state-trafficking laws do not include victim assistance, a private right of action, or protection from arrest based on offenses committed as a result of being victimized. Therefore, a substantive examination of state human-trafficking laws reveals that the many state laws are narrow in scope and not comprehensive in their response.

Beyond the criminal statutes, state laws vary in other respects as well. Some create a statewide task force to examine the issue within the state. Some establish a statewide coordination effort of state agencies and nongovernmental organizations. Others commission a study for statewide recommendations and action. A few mandate training through state law enforcement training academies.

Though much attention focuses on the enactment of these state laws, their implementation provides a much better barometer of anti-trafficking progress in the states. According to the U.S. Department of State, 3,969 human traffickers were convicted in 2011; the United States accounted for 151 of those 3,969 convictions at the federal level. The United States does not yet count state convictions, though the Department of State also indicated that the number of convictions under state-trafficking laws in 2011 was in the dozens.

Accessing closed human-trafficking cases, available law enforcement data, and law enforcement personnel, the Urban Institute and Northeastern University conducted a study entitled Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking Cases. The study primarily found that human trafficking is rarely prosecuted in the United States despite the proliferation of laws.

According to the study, many state prosecutors are reluctant to take on cases under an untested human-trafficking law. Many others are simply unaware of the law or the human-trafficking crime. Reportedly, state prosecutors lack the resources or support to take on time-intensive, lengthy, and sometimes multiple-state trafficking cases. They are not incentivized by leadership to take on trafficking cases. They defer to federal authorities on account of these challenges, though federal agencies cannot prosecute every human-trafficking case not pursued at the state level. The study also found that state prosecutors have no access to training to litigate trafficking cases under their state law.

The study also found that state and local investigators narrowly focus on sex trafficking of U.S. citizen minors, which represents 85 percent of the human-trafficking cases examined in the study. They lack the infrastructure, expertise, and initiative to investigate labor trafficking, whereas sex-trafficking investigations are carried out by vice units, which focus on prostitution-related crimes. The study describes law enforcement as reactive, rather than proactive, in attempting to uncover both sex trafficking and labor trafficking. Some investigators have biases and hold negative views of trafficked persons. Others lack the cultural and language skills, including an infrastructure to access interpreters and translators, to communicate with immigrant communities in order to carry out investigations, despite many having federal obligations under Title VI of the Civil Rights Act to provide meaningful language access to limited English–proficient persons. They too have insufficient resources for training.

The study reports that if state and local prosecutors are unwilling or unlikely to prosecute trafficking, then state and local investigators are equally unwilling or unlikely to bring them cases. Similarly, if investigators are not bringing cases to the prosecutors, the prosecutors have nothing with which to work. Across the board, human-trafficking cases are not prioritized at the state and local level, with just 7 percent of human-trafficking cases leading to a formal charge.

The study documents the consequences as well—trafficked persons are underidentified and traffickers are not brought to justice. Labor-trafficking victims in particular remain overlooked and invisible to state and local law enforcement. Foreign national victims typically are either without immigration status or hold temporary visas, which traffickers use to control their victims with the threat if you call the police, you will be deported. Local law enforcement policies and actions must therefore overcome these threats and demonstrate that victims who come forward will be protected and assisted without fear of deportation. Moreover, state labor departments have yet to step up their screening, identification, and proactive response to labor trafficking as well, meaning that labor trafficking largely occurs unabated. This means that labor-trafficked men, women, and children continue to be held against their will, sexually and physically assaulted, and threatened with deportation without knowing their rights.

Likewise, sex-trafficking victims continue to be classified and arrested as commercial sex offenders without screening and referrals for services that could result in proper identification and classification as victims. Some law enforcement officials identify victims but believe that the arrest of minors is the only way to mandate services and address the issue, not understanding the long-term impact this has on a minor’s life. The frequent arrest of sex-trafficking victims only reinforces what traffickers tell their victims—law enforcement will not help you. The study recommends training to remedy these issues and to overcome the challenges faced by state investigators and prosecutors.

Training is at the root of identification. After all, trafficking victims, whether found in labor or commercial sex, do not know enough about their rights to self-identify and identification is not accomplished with a list of indicators alone. Additionally, both making available victim assistance and working in conjunction with service providers are critical to rebuild trust with victims and ensure their cooperation in the criminal justice system. Law enforcement and other first responders must therefore be better trained on how to develop effective community responses and build trust with trafficking victims. Law enforcement agencies can effectively collaborate with service providers to design protocols that include immediate and sustained victim services. Immediate law enforcement referrals of possible victims to service providers offer victims immediate information about their rights and services and will only encourage more victims to come forward. Other services such as immigration protection, shelter, and other comprehensive and sustained long-term services will restore trafficking victims to a place where they can more effectively cooperate and testify for the prosecution of human trafficking at any level, state or federal.

Opportunities on the Road Ahead

Looking ahead, there are a number of developments that should bolster and augment state anti-trafficking laws and their implementation. First, the Uniform Law Commission since last year has been working toward a uniform human-trafficking law to help harmonize the broad variety among state laws. The three-year process will result in an agreed-upon uniform law, after which the members will urge its introduction, passage, and enactment. While not comprehensive, the uniform law’s primary focus on criminal provisions will correct existing laws and more accurately reflect the elements of human trafficking.

Second, the 2008 reauthorization of the TVPA required the FBI’s Uniform Crime Report to include human trafficking. Data collection from police departments is slated to begin in 2013 and training on collection has already begun. The U.S. Department of Justice currently collects human trafficking-case information provided on a voluntary basis by federal, state, and local law enforcement agencies participating in federally funded task forces in select cities and regions. In contrast to this small and selective dataset, the Uniform Crime Report will collect nationwide data. Additionally, the simple inclusion of human trafficking in the Report will likely be the impetus for some police departments to learn about human trafficking for the first time.

Third, new state anti-trafficking bills continue to improve upon existing anti-trafficking laws based on lessons learned. For instance, law enforcement is learning that victim assistance is necessary to stabilize traumatized victims so that they are physically and mentally able to assist investigators and prosecutors. As a result, states are reconsidering how to coordinate services and create eligibility for services. Government leadership is slowly learning that victims’ arrests and resulting criminal records for trafficking-related offenses thwart prosecutions and victims’ recovery; therefore, states are beginning to pass laws prohibiting arrest and providing for prior record expungement. Government leadership is also recognizing that identifying cases will only come through training, and so some laws now mandate that police academies include courses on human trafficking. Additionally, states now see that addressing human trafficking must be a comprehensive effort of multiple state agencies, and so laws now require the planning and participation of agencies responsible for health, services, labor, housing, and education.

State legislation is also expanding the anti-trafficking effort beyond the criminal law and its implementation to include, for example, improvements to the child welfare system to better identify trafficked children and prevent trafficking. Uniquely, California legislated that manufacturers and retailers must publicly disclose their efforts to maintain slavery-free supply chains. These newer efforts focused on protection and prevention indicate an expansion beyond a criminal justice response that still complements and bolsters the work of law enforcement.

The National Association of Attorneys General’s yearlong initiative also supported the passage of human-trafficking state laws and their implementation. The initiative raised the issue of human trafficking with states’ attorney general offices and identified the need for improved laws, training, and increased prosecutions. Though the national project has concluded, the Massachusetts attorney general’s office is continuing the initiative.

In another national effort, the American Bar Association has launched a yearlong anti-trafficking initiative under the leadership of President Laurel G. Bellows. She has created a specialized task force to encourage attorneys to expand their efforts to address human trafficking and to increase awareness in the general public about the critical roles of attorneys.

The 5/20 Campaign

Within and beyond the criminal justice system, basic awareness is not enough and effective training is scarce. Action-oriented, how-to training for investigators and prosecutors, educators, social services providers, corporations, and other professionals is essential. Through the 5/20 Campaign, the Global Freedom Center is training 5 million professionals by the year 2020 to identify and prevent human trafficking. Either in person or online, the Center offers custom trainings by profession and industry. Partnering with the Center offers the opportunity and ability to address some of the critical gaps that exist in identifying and preventing human trafficking.

On an issue of this magnitude and complexity, solutions are neither easy nor quick. State human-trafficking laws require improvements in both substance and implementation. However, recent leadership initiatives should aid the prioritization, amendments, and expansion required to more fully address human trafficking.