Human Trafficking Around the World (6 page)

The Innocence Lost National Initiative, run by the DOJ and the Federal Bureau of Investigation (FBI), is a collaboration of federal and state law-enforcement authorities and victim assistance providers that targets child sexual exploitation. In 2008 the initiative led to the rescue of 245 children and the conviction of 148 offenders (U.S. Department of State, 2009c). In 2009 the initiative led to the identification of 306 children and the conviction of 151 traffickers in state and federal courts (U.S. Department of State, 2010). Under amendments to the TVPA in 2008, the FBI is tasked with incorporating human trafficking offenses in the annual statistics collected from police forces nationwide. This requirement should help to provide a more accurate picture of trafficking in the United States. Collection is expected to begin in early 2013 (U.S. Department of State, 2012).

While attorneys can turn to both the Fair Labor Standards Act (FLSA) and the TVPA to bring civil suit against traffickers, attorneys often utilize only the FLSA. Perhaps this is because the FLSA has been around far longer. Yet there is minimal disincentive to using both. If attorneys utilize both but are unable to satisfy the TVPA claim, the suit can still be won regarding the FLSA claim. It may be that attorneys believe that proceedings will drag on if they involve the TVPA. The difference, of course, between losses for defendants under the FLSA versus the TVPA is that of mere slaps on the wrist versus the stigma associated with human trafficking. Conviction solely under the FLSA seriously undermines the severity of the crime and does not adequately deter a company (and others) from repeating the crime.

Restitution is automatically part of the proceedings in criminal trafficking cases. In 2008 traffickers were ordered to pay more than $4.2 million to their victims (U.S. Department of State, 2009c). Also, in 2009, under 18 U.S.C. § 1593A, sentencing guidelines established equivalent sentencing in peonage, slavery, and trafficking-in-persons cases for whoever knowingly benefits, financially or by receiving anything of value, from participation in a trafficking venture. Under the guidelines the offender cannot simply plead ignorance. The individual is culpable if he or she knew or was “in reckless disregard” of the fact that the venture involved human trafficking (U.S. Department of State, 2010; U.S. House of Representatives, 2010b).

It is important to recognize the various factors that may alter and influence the language and meaning of new legislation, and consequently the sentencing that traffickers face. For instance, the New York State Anti-Trafficking Law contains an obvious discrepancy in its definitions of and penalties for sex versus labor traffickers. Enacted in 2007 under Eliot Spitzer’s administration, the New York anti-trafficking law makes it significantly tougher to prosecute labor traffickers than sex traffickers. Attorney Christa M. Stewart, the coordinator of the New York State Anti-Trafficking Program, says the agenda in creating the anti-trafficking law was to hinder prostitution but not necessarily human trafficking. “The anti-trafficking law is more aligned with New York State penal law against promoting prostitution,” Stewart said. “If someone is promoting prostitution by using a specific means—i.e., if he is benefiting from someone else’s commercial sex act and he also does X, Y, and Z (such as gives a material false statement) then he can be considered a trafficker in New York State.”
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The final language of New York’s anti-trafficking law was strongly influenced by a rift within the anti-trafficking movement and by the interests of agricultural lobbying groups and political figures. According to one social service provider, who wished to remain anonymous, the law reflects a clear connection that lawmakers wanted to make between prostitution and trafficking:

During the creation of this law there was a strong lobby to merge the two issues. While some advocacy groups pushed for tough laws against both sex and labor traffickers, there was an organized lobbying effort that wanted to curtail strict legislation against labor traffickers, both in definition and in penalties. Agricultural industries were particularly invested in making sure that prosecuting labor traffickers was difficult.

Suzanne B. Seltzer, a partner at Klasko Rulon Stock & Seltzer, LLP, asserts that the original definition of human trafficking, when Spitzer was attorney general, was indentured servitude. Then, when Spitzer became governor, the legislation suddenly had an anti-prostitution emphasis. “We felt that he [Spitzer] turned his back on us,” Seltzer said. “The reality is that trafficking is indentured servitude and forced labor—regardless of the type of work. Labor trafficking is as horrible as sex trafficking.”
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The ultimate success of pressure from the various interest groups is reflected in the vastly disparate penalties for sex trafficking versus forced-labor trafficking. “Under the New York State law, sex trafficking is a class B felony with a maximum sentence of 25 years’ imprisonment,” Stewart said. “Additionally, the patronizing a prostitute offense was increased from a class D misdemeanor to a class B misdemeanor. On the other hand, labor trafficking is a class D felony with a maximum sentence of seven years.”
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Division within the anti-trafficking movement, says Seltzer, also obstructed a consensus on the language used in the New York anti-trafficking law. “Within the anti-trafficking community, there are those of us who believe labor trafficking is as significant as sex trafficking, and there are others whose primary interest is [eliminating] sex trafficking,” Seltzer said. “We sat down together to try to get on the same page as to what should be included in the legislation, but it was a nightmare. We were not able to communicate—it was very tense.” Seltzer believes that one reason for the disunity within the anti-trafficking movement is a lack of understanding of the realities of labor trafficking: some people just don’t believe, or don’t want to believe, that labor trafficking is a real problem:

Since the general activities—domestic work, farming, factory work, or restaurant work—are all legal activities, there is a perception that “it’s not as bad as sex trafficking,” because in sex trafficking people are being forced into an illegal activity. I think the opposite is true—that because these activities themselves are legal, those forced into these situations fall under the radar. No one is raiding a factory looking for trafficking victims; they are looking for illegal immigrants.

Seltzer believes sex trafficking is the hot issue because it represents “the sexy topic” targeted by the media:

The general perception that human trafficking is solely for the purposes of sexual exploitation has an unfavorable effect on the overall anti-trafficking movement. People don’t think about how the definition of sex trafficking is narrow and that there may be types of work that you would consider sex trafficking but don’t fall under the definition, such as strippers, exotic massage, and cocktail waitresses in topless bars. Additionally, you see sexual abuse in labor trafficking scenarios.

Seltzer points out that use of the anti-trafficking movement to eradicate prostitution and violence against women is disadvantageous. “Violence against women is a terrible thing, but it is not always trafficking, and when conflated with trafficking you hurt both issues,” Seltzer said. “This type of agenda hurts the anti-trafficking movement because it ignores many of the people being trafficked—such as victims of labor trafficking and male victims of trafficking—and it harms female victims of violence because it does not address the actual causes of violence against women.” Seltzer stresses that society and lawmakers seem to have difficulty understanding the subtleties of labor trafficking. Even people smuggled into the United States of their own volition can face a trafficking experience. “Someone may pay to sneak into the country, but it becomes trafficking when the person helping starts to exploit them,” Seltzer said. “It seems that in these instances victims are often seen as culpable.”
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INTERNAL EFFORTS TO DECREASE TRAFFICKING

In response to the increasing number of trafficking cases, the federal government began an anti-trafficking campaign in 2005. Laws that prohibit trafficking are important, but it is critical that they be implemented and enforced. The U.S. government spent $25 million in 2005 toward enforcement of anti-trafficking laws, raising awareness, and identifying and protecting victims of trafficking (U.S. Department of State, 2009c). The first federal law focused on eliminating human trafficking was the TVPA in 2000. The act requires the U.S. State Department to create an annual
Trafficking in Persons Report
. The report rates each country by way of tiers indicating its efforts and success rates in combatting human trafficking. Countries rated lowest, in Tier 3, face possible U.S. sanctions, such as the withholding of non-trade-related, nonhumanitarian assistance (U.S. Department of State, 2005a, 2009c). The United States did not rank itself in the report until 2010, when it gave itself Tier 1 status, defined as countries whose governments meet all the TVPA’s minimum standards (U.S. Department of State, 2010).

In compliance with the TVPA mandate, then-president Bush created the President’s Interagency Task Force (PITF) in 2002, whose members include the secretary of state (chair), the director of the CIA, and the attorney general. The objective of the task force is to monitor and combat trafficking in persons and to coordinate the anti-trafficking activities of critical U.S. governmental agencies (U.S. Department of State, 2009b). The Senior Policy Operating Group (SPOG) was created in 2003 to follow up on PITF initiatives and to implement anti-trafficking guidelines and policies. The SPOG also reviews proposed anti-trafficking grants in order to facilitate coherence among the agencies’ anti-trafficking programs (U.S. Department of State, 2005a, 2009b).

Despite the nation’s historical emphasis on sex trafficking, the U.S. government has taken measures to address labor trafficking. In 2008, 18 U.S.C. § 1351 criminalized fraud in foreign labor contracting. The statute prohibits persons from knowingly (and with intent to defraud) recruiting, soliciting, or hiring a person outside the United States—or attempting to do so—to work on a government contract performed on government facilities outside the United States by means of materially false or fraudulent pretenses, representations, or promises regarding that employment. Offenders face a fine, imprisonment for not more than five years, or both (U.S. House of Representatives, 2010a). In February 2010 the PITF pledged to uphold a system that provides for all trafficking victims, regardless of whether they have lost their freedom through sex trafficking or labor trafficking and regardless of age, gender, or immigration status (U.S. Department of State, 2010).

The Rescue and Restore Victims of Human Trafficking public awareness campaign, established by the HHS Office of Refugee Resettlement, has created anti-trafficking coalitions in 24 cities, regions, and states throughout the United States. The coalitions, which raise awareness and develop local anti-trafficking networks, are made up of law enforcement, social service providers, students, and academics. The Department of Health and Human Services also funds the National Human Trafficking Resource Center, a free calling center (888-373-7888) where social service providers, law-enforcement personnel, community members, and victims can report trafficking incidents and receive referrals and technical assistance (Clawson et al., 2009, p. 28). Of course, accessibility remains an obvious problem. Victims are typically isolated, with no access to a phone, let alone anti-trafficking materials that would alert them to their options. Language barriers can also be a hindrance, though interpreters are available in 170 languages. In 2009 the center received a total of 7,257 phone calls. The calls included 1,019 tips, which resulted in 300 referrals to law enforcement and 697 requests for victim care referrals (U.S. Department of State, 2010). In order to address international trafficking, U.S. agencies between fiscal years 2001 and 2009 obligated an estimated $686 million to international anti-trafficking in persons assistance. Among the giving agencies are the Department of Labor, the Department of State, the United States Agency for International Development, the Department of Justice, and the Department of Health and Human Services (Siskin & Wyler, 2010, p. 7). In support of efforts by nongovernmental organizations and foreign governments to combat human trafficking, in 2005 the U.S. government distributed $95 million to fund 266 programs in 101 countries. In 2009 the State Department’s Office to Monitor and Combat Trafficking in Persons awarded more than $26 million to 93 anti-trafficking programs worldwide (U.S. Department of State, 2005b, 2009a; U.S. Department of Justice, 2006a). The U.S. government appropriated at least $231.3 million to domestic anti-trafficking in persons programs between fiscal years 2005 and 2009. The amount the U.S. government obligated to domestic anti-trafficking in persons decreased from fiscal year 2008 to fiscal year 2009; it dropped from $23.2 million to $19.7 million, respectively. This amount increased to $24.2 million in 2010. This amount does not include the cost of related law enforcement investigations or the cost of administering trafficking-in-persons operations (Siskin & Wyler, 2010, p. 7; Siskin & Wyler, 2012, p. 5).

One hurdle for the United States in its anti-trafficking efforts is the conflict between its anti-trafficking and immigration agendas. This is illustrated in a case in which ICE knowingly targeted alleged trafficking victims. The agency began surveillance on 23 alleged victims in North Dakota after being informed by the workers’ employer, Wanzek Construction, that there were anomalies in the workers’ employment paperwork. Suspecting the workers of obtaining and using false documents, ICE staged a sham staff meeting in order to arrest them even though ICE knew that the persons detained in the raid were cooperating in a federal investigation against their alleged trafficker, Signal International, LLC.
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The raid and arrest took place on October 28, 2008, seven months after the trafficking victims had filed suit against Signal in federal court (NOWCRJ, 2008; Springer, 2008a, 2008b). Barry Nelson, executive director of the Metro Youth Partnership in Moorhead, Fargo, and West Fargo, says the Cass 23 (so called because they were held at Minnesota’s Cass County Jail) were in dire financial straits while they waited out the lawsuit against Signal: