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.