Human trafficking is a modern-day form of slavery prevalent both domestically and abroad. The crime of child trafficking has recently gained more attention in our society via news reports, celebrity advocacy, and new outreach and advocacy campaigns designed to combat this heinous crime. The latest government estimates state that approximately 14,500–17,500 men, women, and children are trafficked into the United States each year to perform compelled labor or sexual services, with women and children representing the majority of victims. This figure does not include U.S. citizens, who may also be trafficked. Current estimates suggest up to 100,000 U.S. citizen children are trafficked in the Unites States each year. In 2000, the United States enacted the Trafficking Victims Protection Act (TVPA), which created new human trafficking crimes and provided protections, services, and benefits for human trafficking victims. While the terms "child trafficking" and "human trafficking" may be new legal terms, the phenomenon of children being commercially sexually exploited or compelled into performing labor or services is not new, even in the United States.
Child Trafficking—What Is It?
The term "human trafficking" is often misleading to those unfamiliar with the legal definition. "Trafficking" often elicits a mental picture of drugs, arms, and people being smuggled across international borders. While human trafficking may involve the movement of people across international borders, the legal definition does not limit cases to international movement, or even movement within national borders. Hence, anyone, including U.S. citizens, can be trafficked in the United States. The legal definition of human trafficking under the TVPA expanded on 13th Amendment involuntary servitude and related criminal statutes, and it includes a broader array of means that traffickers use to compel labor or services from victims. It also follows the general principals of international law, including the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (2000). The TVPA created new human trafficking crimes, including forced labor (18 U.S.C. 1589); Trafficking with respect to peonage, slavery, involuntary servitude, or forced labor (18 U.S.C. 1590); and sex trafficking of children by force, fraud, or coercion (18 U.S.C. 1591). Responses to human trafficking are not limited to federal initiatives. Currently, there are 45 states with sex trafficking criminal offenses and 48 states with labor trafficking offenses.
Under federal law, child trafficking is defined as the recruitment, harboring, transportation, provision, or obtaining of a child for labor or services through the use of force, fraud, or coercion. It also includes recruiting, enticing, harboring, transporting, providing, or obtaining a child for or benefiting financially from the commercial sex act of a child. The "transporting, providing, or obtaining" can happen anywhere—within counties, within states, or across state or international lines. Note that coercion can be psychological, physical, or financial. Child trafficking includes, but is not limited to, work in factories, restaurants, domestic service, agriculture, peddling, meat-packing plants, exotic dancing, and prostitution. In some cases, children can be trafficked for both labor and sexual services. The lines can often be blurred, as a trafficker may compel a child to perform a type of labor or service by exerting power and control via sexual abuse.
Child trafficking cases can occur in metropolitan areas, wealthy suburbs, and rural areas. Traffickers can be family members, acquaintances, intimate partners, or strangers. Child trafficking investigations have occurred in every state. Child trafficking cases may be single-victim cases, or they may involve multiple victims. Sometimes, multiple-victim cases involve groups of victims that include both minors and adults.
Here are a few case examples from the attorney general's Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons FY 2009.
United States v. Vasquez-Valenzuela, et al. (California)
Maribel Rodriguez and Gabriel Mendez, members and associates of an extended family, received terms of imprisonment ranging from 30 to 40 years for crimes involving the sex trafficking of children by force and importation and harboring of illegal aliens for purposes of prostitution. The co-conspirators were responsible for luring young Guatemalan women and girls to the Los Angeles area, where they were forced to perform commercial sex acts. The defendants used physical violence, including rape, and threats of violence against the victims and their families to gain compliance. The victims were held in captivity by the defendants and received little, if any, of the money they earned.
United States v. Paris, et al. (Connecticut)
Defendent Dennis Paris organized and facilitated a sex trafficking ring that victimized U.S. citizen minors and coerced multiple young women to engage in commercial sex acts against their will. Paris, one of 10 defendants convicted in this case, was previously convicted after trial on two counts of sex trafficking of minors, including a 14-year-old child; two counts of sex trafficking of adult women through force, fraud, or coercion; 13 counts of using interstate facilities to promote and conduct a prostitution ring; and conspiracy to use an interstate facility to conduct unlawful activity.
United States v. Afolabi (New Jersey)
Four defendants were charged in a multi-count indictment for holding young West African victims, some as young as 10 years old, in forced labor in the defendants' hair-braiding salons. The defendants told the victims' families that, while in the United States, the victims would be able to learn English and make money to send home; however, some of the young women were forced to work in hair-braiding salons six to seven days a week for eight to twelve hours per day. The victims had their pay withheld and were subjected to physical and sexual abuse.
Child pornography and child sex abuse are not necessarily considered human trafficking, but they are considered forms of commercial sexual exploitation of children (CSEC), covered by other criminal statutes. In some cases, child trafficking cases involve components of CSEC.
Identifying Child Trafficking Cases
Identifying child trafficking victims remains a challenge. While the U.S. government estimates that women and children comprise the largest percentage of human trafficking victims, children and youth currently represent the smallest victim class of human trafficking victims identified. Minors, including American children, are among the most vulnerable populations. Few, however, gain access to the services and protections available to them under the TPVA and other laws related to children who are victims of crime generally. Several issues contribute to the lack of identification of child trafficking cases in the United States.
Paradigm Shift: Child as "Victim" Versus "Offender"
Unfortunately, many child trafficking victims continue to be viewed as offenders in various government systems, including juvenile justice and immigration systems, and subject to arrest, detention, and deportation. Police officers, ICE agents, and even child protection workers often view a child trafficking victim as a "juvenile prostitute" or an "illegal alien." There are still conflicts between federal and state law with respect to juvenile prostitution. While the TVPA defines any child under the age of 18 involved in a commercial sex act a victim of human trafficking, many states may charge a 16-year-old with juvenile prostitution. In fact, current research indicates that states are three times more likely to charge a juvenile with prostitution versus recognizing that child as a victim of a crime. Similarly, a non-U.S. citizen child engaged in prostitution may be perceived as violating both criminal and immigration laws, when in fact, the TVPA states that such a child should be treated as a victim of a serious crime and afforded protections and services as such. Only a few states, including New York, Illinois, Washington, and Connecticut, have passed "safe harbor" laws to address this issue and decriminalize juvenile prostitution.
Lack of Research
While the general public's knowledge of human trafficking has improved since the passage of the TVPA, the quality of data on the subject has not. The data and methodologies for estimating the prevalence of human trafficking, types of human trafficking, and specific patterns of how and why trafficking occurs is currently not well developed. While several statistics exist, many are only estimates based on varying forms of methodology, and they are often recycled by various organizations. Additionally, research on children is often subsumed under research analyzing "women and children" who are trafficked, without allowing for analysis of the unique situation and needs of children, including boys. Existing research focuses primarily on the sexual trafficking of children, with little to no research of labor trafficking. The lack of evidence-based data severely impacts how we can better identify and respond to child trafficking cases and inform better policies to address the issue.
Training and Protocols to Identify and Respond to Child Trafficking
While research is still limited, we do know that child trafficking victims often encounter at least one, if not several, systems that fail to identify them as victims of child trafficking. These systems include local, state, and federal law enforcement, child welfare and child protection, education, and social service providers. Not all of these systems have protocols in place to identify, track, and respond to child trafficking victims. While much more attention and training has been made available about the subject of child trafficking to various first responders, there has been little effort to assess the quality and effectiveness of these training programs. Similar to the current gaps in research, few training programs address the specific issues and needs of children. Additionally, because human trafficking is a complex issue and crime, or because of organizational missions and values, some training programs emphasize only one aspect of human trafficking or victim type—sex trafficking versus labor trafficking, women and girls versus boys, U.S. citizen or domestic trafficking versus trafficking of foreign national children, and so on. This is problematic, particularly for governmental agencies, as the U.S. criminal statutes do not make such distinctions and are often not reflective of the diversity and scope of human trafficking crimes and experiences of victims.
The Population Does Not Self-Identify
Child trafficking victims may be reticent to self-identify as a victim of a crime, and they might not even know what human trafficking is. Traffickers often threaten their victims with direct harm or harm to someone else, including family or friends, if they talk to anyone about their situation. Traffickers may tell victims that law enforcement and authority figures are not to be trusted, or children may have a previous experience with an adult figure (child protection, foster parent, law enforcement officer) that discourages them from trusting another adult figure. Some victims may exhibit symptoms of Stockholm Syndrome or "Trauma-Bonding" with their traffickers, and therefore may want to protect the trafficker. In many cases, children have been surviving trafficking situations, working, and living as adults. They may resent the term "victim" or "child" and object to a service provider or legal advocate trying to guide them toward child-appropriate services.
A review of successful child trafficking prosecutions over the last five years indicates that there is much diversity with respect to the type of victim, where the children come from, and types of labor or services children are trafficked for. Some cases are part of larger organized criminal networks; others are part of smaller family networks or individual cases. While there is no single victim profile in child trafficking cases, several risk factors that contribute to a child's vulnerability for trafficking have been identified for all children, regardless of origin. These factors include being "system" involved (such as foster care or residential care), homelessness, drug addiction, engagement in some form of child labor or seeking employment in the United States (especially for foreign nationals), and a history of sexual abuse.
Myths about child trafficking include the following:
Victims never get paid. Traffickers are smart and understand that it is often easier to control someone who is receiving some sort of benefit, even if it doesn't meet legal standards. Sometimes, gifts are provided in lieu of compensation.
Victims are always locked up or not allowed to attend school. While this may be the reality for some children, there have been cases where traffickers allow children to go to school for brief or extended periods of time. In fact, some children have been recruited from schools by their peers or acquaintances.
Victims are always kidnapped by strangers. While these stories receive the most media attention, in most cases, the trafficker is someone that the victim knows.
Legal Advocacy and Protections for Survivors
Because human trafficking is complex, it often touches a variety of legal systems in both governmental and nongovernmental sectors at various points, from the initial identification of a case to legal advocacy on behalf of a child trafficking survivor. The legal actors involved may be prosecutors, public defenders, guardians ad litem, judges, and attorneys and service providers working various legal systems, including family law, child welfare and protection, labor/employment law, immigration, juvenile justice, criminal justice, and civil litigation. For any legal professional working with children who may come into contact with a child trafficking survivor, it is important to know what legal protections and services are available to child trafficking victims.
The TVPA states that anyone working with child trafficking victims must treat victims of human trafficking with a "victim-centered" approach. This includes a provision that "victims of trafficking should not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked." (TVPA 2008, Sec. 102(a)(19)). Under the TVPA and subsequent reauthorizations, children are entitled to protections under three legal systems: the criminal justice system (both U.S. citizen and foreign national), immigration (foreign national), and civil (both U.S. citizen and foreign national). Child trafficking victims are legally entitled to:
- Safety
- Privacy
- Information about their case
- Legal representation
- A chance to be heard in court
- Medical attention
- Access to appropriate services
- Compensation for damages (restitution)
- Repatriation (return home for foreign victims)
- A chance to seek residence (stay in the United States for foreign victims)
- Short- and long-term relief are available under the TVPA to allow trafficked children to remain in the United States legally.
- Children may also petition for qualifying family members to join them in the United States.
Child trafficking victims are often the targets of other forms of maltreatment, such as child abuse, sexual assault, battery, and domestic violence, that are part of the trafficking scheme. Whether in conjunction with other crimes or as part of a human trafficking case, advocates should consult with state and federal guidelines and policies regarding the rights of victim-witnesses, including the Victims of Child Abuse Act (42 U.S.C. § 13001 et seq), the Attorney General Guidelines (18 U.S.C. § 2509), and Crime Control Act of 1990, Child Victims' Rights (18 U.S.C. 403 § 3509).
Survivors of human trafficking endure a multitude of abuses—physical, psychological, and financial—as a result of trafficking. Subsequent reauthorizations of the TVPA allow child trafficking victims to file civil suits to receive monetary damages for their injuries. A civil suit may be filed during an ongoing criminal investigation and prosecution. Prosecutors may intervene to stay the civil proceedings until the end of their investigation and prosecution.
Practice Pointers
Protection does not equal prosecution. Traffickers do not need to be charged or convicted of a human trafficking crime for a victim to receive appropriate protections or services.
Trafficked children, whether U.S. citizens or foreign nationals, should be informed of their rights, both under the TVPA and relevant state and federal child abuse and victim-witness statutes.
Trafficked children are eligible for certain public-assistance programs. Foreign national children must receive a letter from the Department of Human Services/Office of Refugee Resettlement to be eligible for certain federally funded benefits and services. Requests may be submitted via email [email protected] or by fax to 202-401-5487. An HHS/ORR Child Protection Specialist will respond to requests and may be reached by phone at 202-205-4582.
Foreign national victims should always be referred to competent immigration counsel as soon as possible.
Under the most recent reauthorization of the TVPA, federal, state, and local government officials are required to notify HHS within 24 hours of discovering a child who may bea foreign victim of trafficking to facilitate the provision of assistance. Note: a conclusive assessment about victim status is not required.
Ongoing Advocacy
While the TVPA provides enhanced protections for victims of child trafficking, several systemic gaps still remain to both prevent child trafficking and protect victims. As mentioned earlier, children are still falling through the cracks due to lack of training, lack of protocols, and inconsistent policies and laws between federal and state crimes, especially around the issue of juvenile prostitution. Incremental progress has been made in this area with some state laws, but much more needs to be done. While child welfare systems are tasked with responding to abused, neglected, and abandoned children, most states do not have formalized identification or response mechanisms to child trafficking cases for U.S. citizen and foreign national children, including the training of mandatory reporters.
Additionally, while the TVPA states that all human trafficking victims should have access to legal representation, it is not required. For foreign national children, programs to provide referrals to public interest and pro bono legal advocates exist; however, the U.S. government is not obligated to provide legal counsel to children. Thus, many children go through immigration proceedings without counsel and via the same procedures as adults. This severely compromises the ability to identify potential child trafficking cases.
In addition, there is a critical lack of specialized services available to child trafficking survivors, as well as to vulnerable children more generally in the United States. For example, one of the risk factors for children is homelessness. The lack of safe, long-term housing increases the likelihood of being re-trafficked, social isolation, substance abuse, and exploitation. Adolescents in particular have more limited access to various services, including educational and vocational services, both in and out of formal systems, creating additional vulnerabilities for this population. Sub-groups of child trafficking survivors are frequently underserved in both government systems and existing programs designed to assist human trafficking victims, including boys and lesbian, gay, bisexual, and transgender (LGBT) populations.
Addressing these challenges will requires advocacy and expertise from a variety of disciplines and both governmental and nongovernment sectors. It should also include the input of child trafficking survivors, whose resilience and courage in the face of their trafficking experience should inform initiatives to prevent and protect children. While the task may seem daunting, it can also be exciting and incredibly rewarding.
Keywords: litigation, children's rights, child trafficking, human trafficking, forced labor, sex trafficking