Criminalization of Human Trafficking Victims
By: Razan Farmand
Human trafficking is a devastating global issue. Despite its universal reach, human trafficking takes place locally— in nail salon or a favorite restaurant; in a neighborhood home or popular hotel; on a city street or urban farm. The United States government has passed legislation and executive orders to combat human trafficking globally by requiring U.S. contractors and subcontractors to act affirmatively to prevent human trafficking and forced labor when working abroad. Domestically, Congress enacted the Victims of Trafficking and Violence Protection Act in 2000; which established several methods of prosecuting traffickers, preventing human trafficking, and protecting victims and survivors of trafficking. Since its enactment, all fifty states have passed laws that criminalize human trafficking and many have task forces dedicated to implementing policies and procedures to combat it. The next step is for those fifty states to enact and implement laws that protect victims from criminal prosecution for acts they were forced to commit. Victims of modern slavery, whether children or adults, should not be held criminally responsible for their involvement in unlawful activities that are a direct consequence of their victimization.
For years, the Trafficking in Persons Report has detailed the importance of protecting victims of human trafficking throughout the law enforcement process. Traffickers often compel victims to engage in criminal activities such as prostitution, pick-pocketing, drug trafficking and even kidnapping by recruiting other victims. Law enforcement authorities often fail to properly screen and identify victims of human trafficking when they detain or arrest criminal suspects. The process of being arrested, detained and prosecuted creates an entirely new traumatic experience and can strengthen the victim’s attachment to the trafficker.
Although many states have made progress in passing legislation to protect victims from criminal prosecution after they have been arrested, there continues to be gaps in identifying victims and challenges in the implementation of these statutes. The criminal justice and delinquency systems are not designed to appropriately respond to sex trafficking victims. Our justice system is overwhelmed and most the time fails to consider individual circumstances. This allows these victim’s cases to fall through the cracks. In addition, the criminal legal system itself is not equipped to identify victims or offer them resources or assistance if identified. Cases are typically quickly resolved, usually by way of plea bargaining, in an attempt to address the constant stream of cases entering the criminal legal system. Foreign national victims face an additional risk since the likelihood of deportation significantly increases after a criminal arrest or conviction. Identifying victims is also challenging as they often distrust the criminal justice system and fear disclosure. In addition, “conflict between current trafficking legislation and existing criminal laws in some states creates a complex situation which ultimately harms the victim. Victims of sex trafficking can be simultaneously considered criminals under the prostitution law and victims under the trafficking law. When confronted with this tension, law enforcement officials may be more likely to label victims as criminals, largely due to the longstanding history of criminalizing prostitution, as well as the unfamiliarity with human trafficking laws. This approach may also occur in situations where law enforcement identifies a victim, but believes that the use of the criminal legal system is the only way to provide victims access to services. In some instances, law enforcement utilizes the criminal system as a way to detain victims to keep them away from traffickers and/or ensure they remain accessible in an ongoing investigation. A similar conflict occurs in labor trafficking cases where victims are compelled to commit crimes.”
Treating victims of sexual and labor exploitation as criminals has long term consequences. A criminal conviction puts the victim in a revolving cycle where they must rely more on their perpetrator. The ramifications impact their future and prevents them from getting a job, receiving medical care, furthering their education, receiving housing, applying for a loan or even obtaining immigration relief. While states continue to make progress in legislation providing protection for victims, it is critical that we build an infrastructure and fund programs to support and implement these laws. This begins with identifying victims early on. Comprehensive structures must be in place to effectively combat human trafficking, the best laws and policies will be ineffective if those most likely to come in contact with victims do not know how to identify them or are not empowered to assist them. Law enforcement officers, public defenders, prosecutors and even judges should be trained to identify and protect victims of modern slavery. Providing resources and safe havens in our communities as an alternative to incarceration is also important in creating a comprehensive victim-centered approach.
WI-HER supports organizations to comply with federal anti-trafficking and workplace protection policies and regulations including Executive Order 13627:Strengthening Protections Against Trafficking in Persons In Federal Contracts,Title XVII of the National Defense Authorization Act, Public Law 112-239: End Trafficking in Government Contracting Act, and the Trafficking Prevention in Foreign Affairs Contracting Act (H.R. 400). Ensuring employee awareness, training, and follow up promotes positive, healthy practices that result in the protection of organization staff and project beneficiaries, resulting in increased productivity and quality of performance. We have conducted trainings for field staff in East, South and West Africa as well as South East Asia. We have the expertise and capability to also provide trainings domestically in the U.S. to improve outcomes for trafficking victims.
[1]Trafficking in Persons Report. Retrieved from https://www.state.gov/documents/organization/282798.pdf
[2]Coppedge, S. Stop Criminalizing the Victims. (2016). Retrieved from https://www.cnn.com/2016/03/17/opinions/coppedge-freedom-project-new-lives/index.html
[3]American Bar Association. Post-Conviction Advocacy for Victims of Human Trafficking: A Guide for Attorneys. Retrieved from https://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/SRP/practice-guide.authcheckdam.pdf.
[4] ibid
[5] ibid
[6] ibid
[7] ibid
[8] ibid
[9]Emerson, J. (MD), Kroman, J., Mogulescu,K.,Sartori, L. (2014). Obtaining Post- Conviction Relief for Victims of Human Trafficking. Retrieved from https://www.americanbar.org/content/dam/aba/directories/pro_bono_clearinghouse/ejc_2014_182.pdf.