The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The use of children in compelled, coerced, or forced criminal acts is unfortunately not a new or uncommon phenomenon. Forced criminality generally involves activities such as prostitution, drug smuggling, drug production, benefit fraud, theft, begging, exotic dancing, and other criminal acts induced by adults. The way our legal systems respond to children compelled to perform these acts, however, does not align with what we know about child and adolescent development, and it disregards human trafficking laws. The following case studies illustrate these points (names and identifying information have been changed to protect the identify of persons):
“Dana” was just 12 years old and living in a small town in Ohio when she started working for her stepfather delivering packages filled with marijuana, pills, and other drugs inside her school backpack. When she was 13, she helped forge documents for her stepfather in a scheme to illegally obtain public benefits. By 14, Dana was engaged in prostitution, with her stepfather as her manager and pimp. At 16 years old, Dana was arrested for prostitution and drug possession charges, and transferred to a juvenile justice facility.
“Nabil” was 15 years old when his aunt in the United States sponsored his journey from his West African home to a small town in Texas to be with his aunt and cousins. Instead of attending school, his cousin sent him on a Greyhound bus to Chicago to transport drugs to another family member. Nabil spent months traveling back and forth carrying drugs, before seeking assistance from a local church. The church referred him to a nonprofit immigration attorney. The attorney initially reached out to law enforcement to report the crime but quickly redirected her efforts when the police indicated Nabil could be charged with drug smuggling.
In both of these cases, the initial responses by our legal system were to penalize the child for the criminal acts the child performed for the financial benefit of an adult. Instead, these cases should have been viewed through the legal framework of human trafficking, specifically labor trafficking, forced labor, and involuntary servitude. Human trafficking, including trafficking for labor or services, is defined under international criminal law, international human rights law, and U.S. federal and state law criminal and civil legal systems. In addition to being exploited for labor, victims of labor trafficking are subjected to dangerous work in unsafe conditions and may also be sexually and physically abused. The United Nations (UN) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol), the UN Convention on the Rights of the Child (CRC), and the UN CRC Optional Protocol on the Sale of Children all address various types of child labor exploitation and trafficking. The U.S. Trafficking Victims Protection Act (TVPA) and its subsequent reauthorizations (TVPRA) also address contemporary forms of slavery, including forced labor.
The Palermo Protocol provides a legal framework for forced criminality as a form of human trafficking, defined as follows:
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Under this definition, three key elements must be present to constitute human trafficking: (1) an action, such as transportation or harboring; (2) a means, such as force, fraud, or coercion; and (3) a purpose, namely exploitation. Notably, the Palermo Protocol applies a separate definition for children under the age of 18 by making it unnecessary to show the means element when labor or sex trafficking involves a child, defined as a person under the age of 18. The United Nations Office on Drugs and Crime has noted that, under the Palermo Protocol, consent is not a defense, regardless of the presence or lack of force, fraud, or coercion, because “children lack legal capacity to consent to their exploitation.” In fact, they may not even be aware that that their actions are illegal.
Over the years, advocates and attorneys, both globally and domestically, have argued that (a) punishing trafficking victims who commit crimes in connection with their victimization and the conduct of their traffickers is unjust and (b) there is insufficient guidance in place to protect victims and to ensure they are not arrested, charged, detained, or prosecuted. As a result, the principle of non-punishment for criminal acts conducted during the course of trafficking has emerged.
The United Nations articulates the following reasons underpinning the non-punishment principle:
safeguarding the rights of victims, to ensure they are provided immediate access to necessary support and services and avoid subjecting them to further trauma or victimization[;] encouraging victims to report crimes committed against them and participate as witnesses in trials against traffickers without fear of being censured themselves[;] maintaining the interests of justice by ensuring that victims are not punished for conduct that they would not have otherwise committed but for their victimization[;] and ensuring that victims are not punished for the conduct of traffickers.
The way the U.S. systems treat children who are involved in crimes induced by the adults who control them often does not align with international and domestic anti-trafficking laws or policies. Labor trafficking is generally defined as the recruitment, harboring, transportation, provision, or obtaining of a person or services through the use of force, fraud, or coercion, for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery. A critical difference between U.S. law and international law, however, is that to prove labor trafficking, under U.S. law both children and adults are required to prove the “means” of trafficking or the “force, fraud, or coercion.” Unlike child sex trafficking victims, who are presumed to be unable to consent to their exploitation due to their age and development, child labor trafficking victims must still prove they were compelled to perform forced labor, including criminal acts.
This raises the question: Should these terms be analyzed analogously for children and adults? To put it another way, what does coercion look like for a 15-year-old? Or for any child who is not a fully developed adult? For example, when asked why she worked for her stepfather, Dana responded, “What else was I supposed to do? He lived with us and provided for us. He was a father-figure to me. I did what I was told to do.” Despite this vulnerability, child labor trafficking victims in the U.S., including victims of forced criminality, are often treated in the same manner as adults, without any additional protections in place to account for their unique needs.
Experiences in children’s law practice and research have shown that there are three overarching and intersectional barriers for child victims of forced criminality:
- Children engaged in forced criminality are frequently misidentified as perpetrators instead of victims of crime and are subsequently punished contrary to both international and domestic laws that explicitly provide for protecting child trafficking victims compelled to commit criminal activities. In addition to the examples described earlier, juvenile gang members are often overlooked as possible labor trafficking victims, despite recognition that gang and drug activities can be perpetuated by trafficking victims and despite literature and research identifying similarities between child gang members and child soldiers, the latter being a recognized class of child trafficking victims.
- U.S. laws and protections available to child victims of labor trafficking are not child-centric and, for that reason, do not account for the unique needs of children. To be identified as a labor trafficking victim in the U.S., a child must meet the same burden of proof as an adult victim—that there was “force, fraud, or coercion” present—with no regard for the developmental differences in how these terms may apply to children as compared with adults. For example, when former clients were asked why they committed a crime, they would often say, “Because they [the adult] told me to do it.” While this may seem far from our conventional understanding of “force” or “fraud” or “coercion,” we must not forget that children and youth are often completely dependent on adults for their survival—emotionally, economically, spiritually, and physically. Moreover, research shows it is especially common for children to “normalize” exploitative behavior as a strategy for coping with the trauma and harm of abuse, exploitation, and trafficking.
U.S. law has long recognized the scientific research that shows children have a diminished decision-making capacity compared with that of adults. Individuals under the age of 18 cannot vote or make legally binding decisions, such as entering into a contract and, in most states, marriage. Similarly, the Supreme Court of the United States has held that children are categorically less culpable than the average adult. Research on the development of the human brain demonstrates that the brains of children are significantly different than the brains of adults, making them more susceptible to traffickers’ manipulation and abuse. Traffickers often target children to perform illegal tasks because of their age, vulnerability, and the perceived willingness to follow orders and be more easily manipulated.
- There is a lack of consistency in training, policies, and implementation of anti-trafficking laws as they relate to forced criminality, including the principle of non-punishment. There is no uniform response to forced criminality as a form of human trafficking by governmental agencies. The U.S. State Department has published a brief on forced criminality that states, “Victims of trafficking should not be held liable for their involvement in unlawful activities that are a direct consequence of their victimization,” citing international examples of children engaged in forced criminality, including drug smuggling, peddling, prostitution, and even murder. Yet, many applications for humanitarian visas are denied to migrant children who were engaged in forced criminality, including forced gang recruitment and activities. U.S. citizen children—like Dana—are often punished for the criminal acts they were compelled to perform.
The U.S. penal code also recognizes that trafficking victims forced to commit crimes should not be punished. However, the non-punishment principle is applied only when a child who has been arrested or charged with a crime is identified as a labor trafficking victim, and unfortunately, there are a number of barriers to identification, including an overall lack of prioritization of child labor trafficking cases.
To date, there are few prosecutions of labor trafficking cases involving forced criminality. The term “forced criminality” is rarely included in trainings on human trafficking. Children in the U.S., both migrant children and U.S. citizens and both boys and girls, who are victims of forced criminality are treated inconsistently by the U.S. legal systems, with some offered protection as victims of crime (e.g., child prostitution or child sex trafficking), while others engaging in forced criminal acts are treated as perpetrators of crime (e.g., children forced to smuggle drugs within and across the border). For example, Nabil’s attorney was able to obtain a T visa for him as a victim of labor trafficking from the U.S. Department of Citizenship and Immigration Services, while another part of the justice system threatened to arrest him.
Conclusion and Recommendations
Our anti-trafficking laws, policies, and practices should apply a consistent, developmentally informed approach to protecting the rights of children. U.S. anti-trafficking criminal laws should be amended to explicitly recognize forced criminality as a form of child labor trafficking. Relatedly, the federal government and state governments should require every stakeholder who is likely to interact with children to receive training on labor trafficking and forced criminality as a form of human trafficking.
The U.S. government should apply equal protections to both child sex trafficking and labor trafficking victims, including victims of forced criminality. Either the requirement of fraud, force, or coercion should be removed from the labor trafficking definition for children, or rules and regulations should explicitly guide decision makers to apply a child-centric analysis in interpreting these terms in both the identification and adjudication of these cases. A paradigm shift, like the paradigm shift that moved us away from the term “juvenile prostitute” to “child sex trafficking victim,” is needed: We should encourage both child protection and justice sector actors to advance the principle of non-punishment and protect victims of child forced criminality from being penalized for criminal acts they commit as part of their exploitation and trafficking by an adult.
Katherine Kaufka Walts is the director of the Center for the Human Rights of Children at Loyola University Chicago School of Law in Chicago, Illinois. Meghan Scholnick is a recent graduate of Loyola University Chicago School of Law (2023) and is a staff attorney the National Immigrant Justice Center in Chicago, Illinois. Joanne Curley is a Loyola University Chicago School of Law graduate (2022) and is Justice for Victims Fellow at Villanova Law Institute to Address Commercial Sexual Exploitation in Villanova, Pennsylvania.
Copyright © 2023, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).