TVPA: U.S. Federal Law Responses to Human Trafficking

1. Criminal Justice System Responses Chapter 9

2. U.S. Federal Law:The TVPA • The Trafficking Victims Protection Act (TVPA) defines a severe form of trafficking as: • a) A commercial sex act induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or • b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery (TVPA, Section 103, 8a and 8b).

3. TVPA • The Trafficking Victims Protection Act takes a four-pronged approach including • prevention • protection • prosecution(known as the 3Ps) and • monitoring other nations’ anti-trafficking efforts

4. Prevention • Education and awareness (Rescue and Restore Coalitions, 42 Task Forces nationwide, trainings by DHS,DOT) • Targeted outreach to vulnerable populations (Posters with hotline for the National Human Trafficking Resource Center (NHTRC, Be Free Text Line, Partner with Polaris Project) • Strengthening penalties against buyers and traffickers • Efforts to address sex-trafficking of at-risk groups*

5. Prevention Critiques • Focused more on justice system efforts than social services/ diverts funding • Focus on “at risk groups” only includes Native people • Known high-risk populations are not consistently the focus – or even a focus at all – of outreach and prevention education. Black and Latina/os show the highest risk of sex trafficking, and are largely non-existent in sex trafficking prevention efforts • LGBTQ* youth are also known to be at heightened risk, yet prevention and outreach are extremely limited • Areas with high rates of homeless, runaway or truant youth, school student turnover, and drop-out rates—identified risk factors for sex trafficking—should be an obvious focal point of outreach and prevention education, but they are not.

6. Protection • Protection and assistance to survivors of trafficking • T-Visa • U-Visa

7. Criticisms • services to survivors are limited • the focus centers more upon identifying and prosecuting traffickers • child and adult trafficking survivors have been denied appeals for social services funding assistance • Cap on U visa • T visa is hard to get • Conditional on cooperation with prosecution, with some exceptions

8. Prosecution • Typically prosecuted on a federal level, although cases can also be prosecuted on a state/ county level as well. • If there is a strong case with sufficient evidence of force, fraud and coercion, or if the case involves a minor, and if there is a cooperating victim(s), the federal prosecutor’s office will generally take the case. • In states with weak anti-trafficking laws, less prosecutorial experience, and/or reduced capacity for investigating such cases, the preference is to refer to the federal level. • Cases that are prosecuted on a federal level are prosecuted by the U.S. Department of Justice’s U.S. Attorney’s Offices. • The United States is divided into ninety-four federal districts, each with their own federal district courts and federal prosecutor(s). • Federal prosecutions for sex trafficking remain relatively static, in the hundreds.

9. Prosecution • If there is insufficient evidence, or if a victim is unable or unwilling to testify, then the case is typically prosecuted on the state level, where the case may be charged as a lesser crime. • In some cases, the evidentiary burden may actually be less for a sex trafficking charge depending on the state law, so prosecution on a state level might be preferred in such circumstances. • Predict future rise in state prosecutions as legislation shifts on a state level.

10. Challenges to Prosecution • Time constraints • Conditional services tied to prosecution involvement • Have to see their trafficker in court, revictimizing • Survivor may not want to prosecute for varied reasons • Lack of services/ support • Trauma impacts survivor and testimony • Addressing language barriers • Deportation

11. Sentencing • mandatory minimum sentence for sex trafficking offenses ten years, fifteen in cases involving those under 14 years of age, • maximum sentence life in prison without parole • The federal sentence for transporting child pornography is between 15-30 years in prison. • The federal sentence for each count of possessing child pornography is 10 years in prison, and/or a fine of up to $500,000. • Federal sentences for producing pornography are generally 10-30 years.

12. Monitoring Other Nations’ Activities • Sets minimum standards • Countries submit reports to the United States indicating compliance/ noncompliance • Tier System • U.S. Sanctions Tier 3 countries

13. Critiques of Monitoring Other Nations’ Activities • Arrogance Arguments • Politicized • Predictably, nations like Cuba and North Korea do not submit reports and are placed as Tier 3 nations • Sanctions punish those who need the most help • Incentives to underreport or exaggerate efforts • Reflects global power dynamics

14. Reauthorizations • TVPRA 2003 • TVPRA 2005 • TVPRA 2008 • TVPRA 2013

15. State Law • Every state has criminalized sex trafficking • Wyoming was the last state to pass legislation in 2013 • Varies from state to state, definitionally as well as in implementation • Even within the same state, implementation may vary by jurisdiction • Education, Training and Awareness varies widely

16. Identification • Reactive policing • Proactive policing

17. Challenges to identification • Officer Attitudes, Stigma and Blame • Misreporting • Definitional Issues • Lack of further investigation in cases of co-occurring IPV, Rape & Sexual assault • Lack of education and training

18. Criminalizing Trafficking Survivors • Prostitution • Juvenile prostitution • Undocumented immigration • The Ideal Victim

19. Juvenile Justice System Responses • At times youth are charged with prostitution, resulting in jj system involvement • There is a high rate of chronic runaway status among DMST survivors, including running from juvenile facilities. • Often, individuals want to go back to their trafficker, because they think there is a love relationship there. • Used as Justification for lock-down care • Because of scarcity of sex trafficking services, placing trafficked youth in juvenile detention centers, in addition to foster care, remains a norm.

20. Juvenile Justice System Responses • Lock-down-care is contentiously debated • Proponents • Opponents • Alternatives

21. Juvenile Justice System Responses • Lack of appropriate therapy • They are mixed with juveniles in detention for varied reasons, such as anger management, drugs, or violent offenses • They may be treated for a condition they do not have, and not treated for effects from sex trafficking (more on psychological effects and treatments in chapter 10)

22. Safe Harbor Laws • Decriminalizes minors • Targets buyers • Expands services • Varies from state to state • Adult exclusion

23. Legislation supporting Adults • Diversion programming • Prostitution courts • Pipeline into services as opposed to incarceration • Some states also include eliminating felony prostitution charges from survivors’ criminal records. • Expunging records of trafficked adults • Limitations?

24. Critiques of Criminalization • Commercial-sex involved adults who are not coerced, forced or defrauded are criminalized • Criminal record of prostitution impacts ability to gain legal employment • How to pay the fines? • The system is designed to support high recidivism • Barrier to exiting commercial sex for those who wish to do so

25. Discussion Questions 1. How does your state rank? • a. Go to http://polarisproject.org/resources/2014-state-ratings-human-trafficking-laws click Download, and summarize what your state is doing well on, and what is in need of improvement. • b. Go to http://sharedhope.org/what-we-do/bring-justice/reportcards/2015-reportcards/and summarize what your state is doing well on, and what is in need of improvement. • c. Describe any discrepancies between these evaluation systems. What criteria are they using? What does this tell you? How would you design a state evaluation system, based upon the information provided in this chapter? (e.g., what criteria would you use?) 2. According to the U.S. TVPA, how is sex trafficking defined? What are some limitations to this definition? 3. List the four prongs of the U.S. TVPA, and the benefits and challenges associated with each.