Disparate Impact Considerations in Human Trafficking Cases

The federal government defines sex trafficking as the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purposes of a commercial sex act induced by force, fraud, or coercion, or induced in one under 18. The Black's Law Dictionary definition does not fully illustrate the human cost. In 2019, 14,597 victims of sex trafficking sought relief from the U.S. National Human Trafficking Hotline. The numbers grew in 2020; the hotline estimates crisis trafficking situations have worsened by about 40 percent since the COVID-19 pandemic began. Understanding the problem requires starting with our juvenile justice system. Many of the children ultimately trafficked have had contact with the system, including through foster care, when labeled as truant or delinquent because of difficulties in school, or when held as a child in need of assistance due to abuse or neglect.

Girls and women of color are especially vulnerable to and disproportionately victimized by sex trafficking. As a society, there is a tendency to perceive Black girls as more adult and less innocent than white girls in school and other environments. This bias may help to explain an increased use of discipline against Black girls by teachers, law enforcement, and other authority figures. Black females represent 40 percent of those victimized by sex trafficking, disproportionate to their representation of 13.4 percent in the general population. Victims are often young, and one Chicago study found that 61.7 percent of victims were first trafficked as children. Nearly 60 percent of all juvenile prostitution arrests are of Black girls. Yet, our criminal justice system often lacks the capacity to respond appropriately. Black victims of sex trafficking often get longer sentences and pay more restitution than their white counterparts. Law enforcement is less likely to see Black sex trafficking victims as victims and more as co-conspirators or sex workers. Too often, symptoms of trauma and exploitation are criminalized instead of treated. Truancy, vandalism, or petty theft could all be symptoms of a larger illness, but the current system treats them as purely criminal acts instead.

Human trafficking is a scourge on all of humanity. It is the modern-day form of slavery, but it is not a new phenomenon. It relies on systems of dehumanization and exploitation. The practice and the mechanisms that enable trafficking have, unfortunately, been part of the history of our country, with the institution of slavery being both "legally protected and culturally accepted." While strides have been taken and persons of color are no longer considered three-fifths of a person constitutionally or "legal chattel," the imprint of inequity, devaluing, and dehumanization of persons of color still exists today.

By understanding history, we can better understand the context it creates in our current environment. Trafficking is one of the fastest-growing forms of organized crime. The trade earns more than $32 billion per year. It is used by gangs that have turned from drug sales, which are single transactions of selling a consumable good, to the use of trafficking, which can exploit the victim hundreds of times and may also consist of trading victims to other traffickers. Unfortunately, for more than two decades, the increased use of the internet and social media has enabled predators to both find and groom vulnerable victims and ultimately advertise and sell individuals for commercial sex.

On the national legislative front, many jurisdictions have adopted the recommendations outlined in the Uniform Act on Prevention of and Remedies for Human Trafficking, written by the National Conference of Commissioners on Uniform State Laws. Some of those recommendations include restitution and forfeiture of assets for those engaged in trafficking as well as immunity for minors, affirmative defenses, and the opportunity for vacating and expungement of records. In addition, the recommendation for states to create Councils or Task Forces on Human Trafficking has been widely adopted throughout the country.

It is important to note that when we criminalize the status and acts of victims, we fail to address sex trafficking's root causes, including trauma, hunger, addiction, and housing instability. Most trafficked girls have experienced coercion, rape, and violence. Traffickers loom over victims with the constant threat of violence. As members of the bench, we must strive to make trauma-informed decisions and treat fairly every person in our courtroom. By bringing attention to those who are sex trafficked, and the disparities within, we can make judicial decisions with a fuller appreciation and understanding of those standing before us.

It is important to understand the power and control wheel that is used to conceptually describe the relationship in domestic violence matters is also applicable in trafficking matters. These include physical abuse, emotional abuse, sexual abuse, isolation, intimidation, and use of children, all in an effort to gain control and power over a trafficked person.

The question remains as to what we can do as judges to address the disparate impact involving trafficking cases. I would suggest first that you read up on the topic and that you recognize the many possible indicators of sex trafficking and explore the practical and proactive ways to address the issue when it comes before you. We must be mindful of our own individual implicit bias and refrain from the notion of the "good victim" or "bad victim." This notion has led first responders, law enforcement, and social services providers to fail to see victims as victims--victims may be homeless or teenage runaways, they may be people with prior arrests, and they may be children with behavioral problems. We must recognize that victims may often appear nonchalant, nonresponsive, and even disrespectful; nonetheless, they are victims.

The recommendations below come from organizations that research, understand, and appreciate the issue of sex trafficking directly. I encourage the use of these resources as well for an even stronger understanding.

The following may indicate the presence of human trafficking:

• Some of the more common crimes a trafficking victim may be forced to commit include prostitution, theft, peddling, and drug sales.
• Cases involving child abuse or neglect, delinquency, gang activity, and drug use may also involve victims.
• Where there are multiple reports of running away or unexplained absences from school, be aware that this may be a symptom of exploitation and not a character flaw.
• Report or observation of disconnection from family or caregivers, a sudden change in behavior, excessive internet activity, or a loss of interest in age-appropriate interests are also red flags.
• An exploited person's physical appearance may indicate trafficking--a change in appearance; the presence of brands or scarring on the skin, including tattoos, indicating ownership; general exhaustion; and drug or alcohol use are things to be aware of, as are the presence of large amounts of money or new possessions with no explanation, especially the presence of multiple cell phones.

The following is a list of actions we can take as jurists:

• Become aware of the resources in your jurisdiction--whether it is referring a party to a provider or making counseling a condition of probation.
• Know which findings preclude victims from services and which could provide services. A sex work-related charge can make it hard to find housing or non-sex work employment.
• Understand that probation may give a trafficker more control over the victim. Similarly, recognize that a trafficker may be in the courtroom and that asking for the answer to certain questions may endanger the victim.
• Identify cases where the prosecution's evidence indicates an act was committed under coercion--that negates criminal intent.
• Permit the defense time to investigate resources and to present evidence that a crime was committed because of victimization, or where it may provide an affirmative defense or mitigation.
• Be aware of language. Choose humanizing words and those that acknowledge the true power dynamic. For example, refer to a sex trafficking victim as a sexually exploited child or person. When we refer to someone as a "prostitute," it implies a person has made a conscious choice to enter the sex trade. Often, the person was too young to make that choice. "Prostitute" defines someone by their profession and criminal status instead of recognizing that sex work is just one facet of their life. Further, it denies the responsibility and accountability of those exploiting the person. It ignores the active, primary role traffickers play in the criminal activity.
• Many states have multidisciplinary teams of agencies and organizations that are addressing trafficking with the collaboration and coordination of law enforcement, legislators, Homeland Security, local prosecutors, and the judiciary. Make sure you are aware of the resources in your jurisdiction.

It takes knowledge, effort, and compassion by the sentencing judge for a victim of sex trafficking to become a survivor and successful probationer. Traditional methods of incarceration or purely punitive sanctions may not be the most effective means to achieve that end. Similar to the approaches we implement in our problem-solving courts, understanding and appreciating the whole person enable us to give appropriate and effective sentences.