The Protection Project - Overview of the Trafficking Victims Protection Act of 2000

Overview of the Trafficking Victims Protection Act of 2000, its Amendments and State Legislation

Dr. Mohamed Mattar, Adjunct Professor of Law and Co-Director of the Protection Project at Johns Hopkins University School of Advanced International Studies

The Protection Project Training for Service Providers Working With Victims of a Severe Form of Trafficking

Mesa, Arizona

May 17, 2004

I am delighted to be here in Mesa, Arizona, conducting the fourth training program on benefits granted to victims of trafficking in accordance with the Trafficking Victims Protection Act of 2000, as amended by the Trafficking Victims Protection Reauthorization Act of 2003.

Our first training program took place in Boston, the second was in Miami, the third one in New Orleans, and now we are here in Mesa.

Arizona is a special place to me, because this was the first place where I spoke publicly in the United States. Ten years ago, in 1994, I was a speaker at the Annual Conference of the Middle East Studies Association in Phoenix. But today, I am not going to speak to you about the Middle East, although maybe I should. The subject of my speech today will be the Reauthorization Act.

During the various training sessions today and tomorrow we will discuss the different aspects of the Trafficking Victims Protection Act and the various benefits granted to victims of trafficking under the Act, therefore I will confine myself to addressing the main policy changes made by the Act.

The Trafficking Victims Protection Act has changed U.S. policy in a very significant way.

The Act changed the criminal policy of the United States
The Act changed the immigration policy of the United States
The Act changed the human rights policy of the United States; and
The Act changed the foreign policy of the United States.

Four main changes in US Policy

This is a shift in the U.S. policy, and it is a significant shift in:

The area of crime and punishment
The area of immigration law
The area of human rights law; and
The area of foreign relations law.
The first is a criminal policy change.

Prior to the Act:

A person transporting another in interstate or foreign commerce with intent that such person would engage in prostitution or any other sexual activity was charged with a criminal offense under 2421, and if convicted, the punishment was 10 years imprisonment.
If that person was carrying away another with the intent that such other person be sold into involuntary servitude, if convicted, the punishment was no more than 5 years imprisonment, under 1583 and 1584, the U.S. statutes that prohibited involuntary servitude.

But that was prior to the Act. The Act changed all that in several ways.

For the first time the Act recognized trafficking in persons as a specific crime, a separate crime

For the first time the Act recognized trafficking in persons as a serious crime, and

For the first time the Act recognized trafficking persons as an organized crime.

The Act recognizes trafficking in persons as a separate crime, a specific crime whether sex trafficking or trafficking for labor or services.

But the Act does not confuse sex with labor, and does not make sex labor.

The Act does not treat prostitution or commercial sex acts as a form of exploitative labor.

I was in Turkey, and Article 215-b of the Turkish Criminal Code defines trafficking as exploitation for labor, but does not mention sex, because sex is considered a form of labor. Prostitution there is legalized. There are 3,000 prostitutes. You apply for license when you work as a prostitute.

But you have to be a citizen of Turkey, unlike, for example, Austria, where foreigners are allowed to apply for a prostitute visa.

These distinctions are clear under the Act and they reinforce the anti-prostitution laws in the different states in this country, including the anti-prostitution laws of the state of Louisiana.

What I would like to do is to talk about the Act but from an international and comparative perspective.

The Act is limited to

Sex trafficking; and
Labor Trafficking

While the Protocol covers

Trafficking for the purpose of prostitution
Trafficking for other forms of sexual exploitation
Trafficking for forced labor or services
Trafficking for servitude
Trafficking for slavery
Trafficking for practices similar to slavery; and
Organ Trafficking.

The Act covers sex trafficking, which is defined in section 103 as "the recruitment, harboring, transportation, provision or obtaining of a person for the purpose of a commercial sex act."

And commercial sex act is defined by the same section, as "any sex act on account of which anything of value is given to or received by any person."

Does "commercial sex act" include other forms of sexual exploitation besides prostitution?

Does the Act cover trafficking for the purpose of pornography?

Does the Act cover trafficking in the form of mail order brides?

Does the Act cover trafficking of children to be used by sex tourist?

I do not know. You tell me.

But the Mann Act is explicit in covering other forms of sexual activities including pornography. Does the Act follow the Mann Act? The Mann Act covered "prostitution and other forms of illegal sexual activities."

"Prostitution," while the term is never used by the Act, is of course, the subject of a commercial sex act. Whether commercial sex act extends to pornography is not clear to me, but other forms of sexual exploitation are covered by other U.S. Acts.

Mail Order Brides, is covered by section 652. The INS section 652 Regulations, which imposes civil penalties, and I do not know how penalties can be "civil", in addition to other penalties on international matchmaking organizations violating the requirements of the section including providing information in the recruit’s native language regarding residency in the U.S. and relevant marriage issues.

Another form of trafficking which the Act does not cover is trafficking of babies or baby trafficking or sale of children for the purpose of illicit "intercountry adoption." The intercountry adoption is covered by the "Intercountry Adoption Act of 2000."

The Act provides for the "implementation by the United States of the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption" of 1993.

The point I am trying to make here is that the Act is limited – when compared to the Protocol – to sex trafficking and labor trafficking. Another limitation, by way of comparison besides "forms of trafficking" is the "means of trafficking."

The Act requires "severe forms of trafficking" if the trafficked person is not a child. You have to prove "force, fraud or coercion." I understand that the Act defines "coercion" broadly, moving away of the 1988 Supreme Court Kozminski test in United States v. Kozminski. No longer do you have to prove physical or legal coercion; any "serious harm" would do.

Nonetheless, the "illegal means" under the Act are strict compared to the Protocol. The Protocol talks about:

Threat or use of force
Or other forms of coercion
Of abduction
Of fraud
Of deception
But the Protocol talks also about:
the abuse of power
a position of vulnerability
the giving or receiving of payments or benefits to achieve the consent of a person having control over another person."

That is what article 3 of the Protocol tells us and is wide in scope and that makes consent "irrelevant" in most cases of trafficking.

This policy was reemphasized by the February 2000 Trafficking in Persons National Security Presidential Director which clearly stated that prostitution and related activities which are inherently harmful and dehumanizing contribute to the phenomena of trafficking in persons.

This is the administration’s policy which you also see in the United States Leadership Against HIV / AIDS, Tuberculosis, and Malaria Act of 2003. Section 2-23 makes it clear that "the sex industry, and sexual violence are additional factors in the spread of HIV / AIDS epidemic".

And Section 104 of the United States Leadership Against HIV / AIDS, Tuberculosis, and Malaria Act of 2003 explicitly provides that no funds made available to carry out this Act, or any amendment made by this Act, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.

And it is difficult to establish the link between trafficking and AIDS, and that is why I like the Trafficking Victims Protection Reauthorization Act. The TVPRA provides for funding for research that furthers the purpose of the TVPA and address the findings of the TVPA. This research includes:

Looking into the economic causes and consequences of trafficking.

Examining the relationship between trafficking in persons and global health risks.

But trafficking now, for the first time, is recognized as a specific crime.

And now, trafficking in persons is not only recognized as a crime but as a serious crime

The 10 became 20 and the 5 became 20 under the Act.

The 20 can be increased to any term of years or life.

If you are trafficking a child under the age of 14 the punishment is life imprisonment.

So, if we are addressing trafficking in children, special needs of children must be addressed including:

Special child protection centers
And, a witness protection program which make it possible for a child witness t
Testify outside the court,
Allow for the removal of the defendant from the courtroom,
Allow for a child to be questioned by a special youth examiner,
Be accompanied by an appropriate person

If you engaged in sexual activity with the person you are trafficking for labor or services you may also be imprisoned for life. And that is very serious.

So, how can you assess the seriousness of a crime in a legal system?

Well, compare the penalty for trafficking in persons with the penalty for drug trafficking
And secondly, look into the punishment for other sexual offenses, such as rape

And if you are traveling with the intent to engage in illicit sexual activity with a child, you commit a crime under the Section 105 of the Protect Act, which amended the 1994 Child Sexual Abuse Protection Act, Section 2423. The Sex Tourism Act is now part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, or "Protect Act", Section 105 "Penalties Against Sex Tourism," which was signed into law on April 30, 2003.

We had few cases decided under the 1994 law, perhaps.

That brings me to a famous case, United States v. Hersh of 1998.

In this case Professor Hersh traveled from Florida to Honduras to have sex with young boys from ages 8 to 16, and he brought back a boy, age 15, by doing a false passport, and claiming that the boy was his adopted son, and enrolled him in a school in Florida in the morning and had sex with him at night.

Professor Hersh was sentenced to a total of 105 years imprisonment.

On the day following President Bush’s speech to the United Nations on September 23, 2003 on Iraq and Sex Tourism, Michael Lewis Clark, a 69 year old retired United States army sergeant, was charged with sex tourism in one of the first indictments under the new law. Clark was indicted by a Seattle Grand Jury on two counts: traveling to via foreign commerce to Cambodia, engaging in illicit sexual conduct with a minor. He paid two young homeless boys, aged ten and thirteen, two dollar each to have sex with them.

You may also be familiar with the case of Jean Succar Kuri, who was arrested this February near Phoenix and is currently awaiting extradition to Mexico from Arizona. He has been charged with statutory rape, child pornography and corruption of minors. Mr. Succar is a naturalized citizen of Mexico (originally from Lebanon) and a resident of California. He is a successful businessman, investing in retail shops, restaurants and hotels in Cancun. However, for many years, Mr. Succar was engaged in child sex tourism, when he traveled to Cancun and engaged in sexual conduct with teenage girls ages 13 to 17, giving them some money, perhaps $10 a day, and buying them new clothes in exchange for sex. Mr. Succar also asked older girls to bring over the younger ones, some as young as 6, whom he called "fresh meat." He took pornographic photographs and videos of the girls, and threatened to separate them from their families if they told anyone about being abused.

The new Sex Tourism Act, while criminalizing travel with intent in illicit sexual conduct also makes engaging in illicit sexual conduct in foreign places a crime.

It also increases the penalty to 30 years of imprisonment. And it applies US law on extraterritorial basis.

And it does not require double criminality, or double jeopardy.

So, you can indict a person for sex tourism although the act is not considered as a crime in the place it was committed.

And you can indict that person regardless of the punishment specified for the crime in the foreign place where it was committed.

And that is why I like the Trafficking Victims Reauthorization Act when it addressed sex tourism specifically, in the area of prevention and called for the development and dissemination of materials to inform travelers about sex tourism, its dangers and the criminal penalties that may be imposed for the crime of sex tourism.

And this is a step further, since the TVPA mentions sex trafficking only in defining sex industry in Article 102, and in defining the main duties of the Interagency Task Force. One of these duties is to inquire into the role of sex tourism in trafficking.

But the Act does not stop there. The Act does not only impose a harsh criminal sanction of imprisonment, the Act punishes the trafficker in several other ways.

The Act says when the judge orders the sentencing, the judge shall also order mandatory restitution to compensate the defendant victim to the full amount of the victims losses.

The Act goes after the traffickers assets by providing for forfeiture of assets, any property of the trafficker, real property or personal property.

The TVPRA amends the existing T-Visa regulations and allow for trafficking victims under the age of 18 to apply for a T-Visa without the requirement of compliance with reasonable requests to assist in the investigation and prosecution in a trafficking case. It also extends the T-Visa to a victim’s unmarried siblings under the age of 18.

So, why file for a civil action when you will get restitution:

You may not have a conviction, and you still can go for the civil action
And the standard of proof in civil action is less strict

And the civil action will allow you punitive damages, which you won’t get under mandatory restitution More importantly, the Act makes proof of a trafficking case a little easier by adopting a more expansive view of what constitutes coercion.

Prior to the Act, and in accordance with the Supreme Court’s Kozminski Test, you had to prove physical or legal coercion. Now under the Act any psychological coercion will do.

The Act talks about serious harm, and such harm may be directed the victims themselves, or against any other person, such as members of their family or someone close to them.

This is an application of the derivative victim doctrine. Coercion against a person who is an extension of the victim is coercion under the Act.

But the Act does not only recognize trafficking as a serious crime, it also recognizes trafficking as an organized crime.

Why?

So that the Victim and Witness Protection Act of 1982 can apply to the trafficking victim.

The Witness Protection Program under the 1982 Act only covers organized crime or other serious crimes.

Trafficking in persons is now considered an organized crime or a serious crime.

That would definitely encourage the trafficking victim to come forward and report on their trafficker. The law would guarantee the victims’ identity to be concealed, which will help in the prosecution of more cases of trafficking.

All that constitutes a significant shift in the criminal law policy.

The second important shift is in the immigration law policy of this country.

Traditional U.S. Immigration Law treated the trafficked person as a criminal who was subject to deportation. So you apprehend her, detain her and deport her.

Apprehension, detention and deportation are now history. Or is should be history.

The Act explicitly provides that "victims of severe forms of trafficking, while in the custody of the federal government…shall not be detained in facilities inappropriate to their status as a crime victim."

And they may stay, if they would like to stay. A trafficked victim may apply for a T-Visa as long as

The trafficked person is a victim of a severe form of trafficking
Present in the United States
Willing to assist in a reasonable request for investigation or prosecution, she does not have to testify
And would face extreme hardship upon removal from the United States.

How would you prove "extreme hardship"?

You may have to prove:

That the medical status of the victim of trafficking, including any physical and/or mental condition, requires medical care not available in her country of origin.
That denying the victim access to the U.S. legal system would leave her without any remedy.
That it is most likely that the victim shall be subject to punishment because her country of origin penalizes the trafficked victim.
That it is most likely that the victim will be re-victimized, especially in the absence of any assistance to her in her country of origin

And that the victim most probably would become subject to reprisal from her traffickers, and thus her safety is not guaranteed.

What documents do you have to submit?

A personal statement
Any documents that document the status of severe forms of trafficking in her country of origin
State Department country reports
State Department TIP report
News articles
Letters from family members or friends in her country of origin
Physician/therapist/medical records
Statement of witnesses
Statement of advocates

A notable change is that in certifying victims of trafficking in persons, the Department of Health and Human Services will consider statements from local and state law enforcement officials that the victim of trafficking has been willing to comply with reasonable requests for assistance in the investigation and prosecution of cases of trafficking in persons. Benefits available to certified victims are also extended to minor dependent children of victims of trafficking.

The TVPRA allows for a victim of trafficking to file a civil action against their trafficker and recover damages and attorney’s fees. However, any civil action filed during a criminal proceeding must wait until there is a final verdict in the case.

The 200 organized crime and the 50 terrorist S Visas are only available to aliens who possess "critical, reliable information concerning a criminal organization or enterprise" and who are "willing to supply or has supplied such information to a federal or state court."

The 5,000 T-Visas are not for the criminals who have knowledge of a crime. They are for the victims who are willing to assist in the investigation and prosecution of such crime.

That is a huge difference. The T-Visa is for victims.

Another difference between the S and the T is that under the S the law enforcement official must sponsor the informant or the witness. That is no longer a requirement under the T-Visa.

A third difference between the T and the S is that a child victim of trafficking would not have been qualified to receive an S-Visa, while under the T-Visa he is ok.

Not only would he be entitled to a T-Visa, but the child victim may also apply for a T4-Visa, to bring his parents to the United States. And the adult victim applying for a T1-Visa, may also apply for a T2 to bring her spouse, and a T3 to bring her children.

This is another application of the derivative victim doctrine.

It reflects a generous immigration policy and that is a significant shift from the traditional immigration policy of this country.

The third shift, and is a very important one, is the change in the human rights law of this country. Trafficking in persons is recognized under the Act, not only as a crime, and not only as an immigration law concern, but also as a human rights violation.

Trafficking in persons is a human rights violation.
Trafficking in persons violates the right of the victim to be free from slavery or servitude
Trafficking in persons violates the right of the victim to freedom of movement
Trafficking in persons violates the right of the victim to life
Trafficking in persons violates the right of the victim to health
Trafficking in persons violates the right of the victim to free choice of employment

Basically trafficking in persons violates the basic human rights of a person as have been declared by the 1948 Universal Declaration of Human Rights.

That is why the ICC considered trafficking in persons as a form of enslavement and as such a crime against humanity.

So, a trafficked person is now a "crime victim" and has basic rights. To me, the Act talks about ten fundamental rights including

The right to access information "about their rights and translation services"
The right to rescue and be removed to the appropriate shelter, and not be detained in facilities inappropriate to their status as "crime victims."
The right to medical care
The right to social assistance, including job counseling, skills training and education
The right to be heard in court
The right legal representation
The right to mandatory restitution
The right to privacy and safety
The right to seek residency
The right to return

That is a significant shift from a "criminal" to a "crime victim" who is entitled to basic rights.

These rights are guaranteed to both

Victims of international trafficking
And victims of domestic trafficking

The Act applies to both.

The Act does not distinguish between foreign victims of trafficking and domestic victims of trafficking in defining victims of a severe form of trafficking.

Domestic cases of trafficking, whether sex trafficking or labor trafficking, may be prosecuted under the Act
And foreign victims of trafficking are entitled to benefits regardless of whether the case of trafficking has been prosecuted under the Trafficking Act or the Mann Act

Victims of domestic trafficking are able to receive benefits under the existing law.

However,

The provisions of the Act regarding the certification process and application for residency status do not apply to victims of domestic trafficking.

Another related premise is shifting the focus from criminalizing the behavior of the trafficked person to punishing the trafficker. The Act does that in several ways.

First, by applying the principle of noncriminalization of the acts of the victim to the trafficked person. Congress recognizes that "victims of severe forms of trafficking should not be…penalized solely for unlawful acts committed as a direct result of being trafficked, such as

Using false documents
Entering the country without documentation
Or working without documentation"

The Act applies this principle by providing for 5 years imprisonment for the trafficker who falsifies immigration documents and explicitly provides that this rule "does not apply to the conduct of a person who is or has been a victim of a severe form of trafficking in persons…if that conduct is caused by, or incident to, that trafficking."

Thus, according to the draft of the TVPA as was introduced in the House of Representatives, victims of trafficking could not be imprisoned, fined or otherwise penalized merely because they were trafficked.

However, under the TVPA as passed by the Senate and signed into law by the President, victims are not to be detained in facilities inappropriate to their status as crime victims. It was concluded that the "House provision with respect to … penalizing victims of serious crimes on account of their status as crime victims or on account of conduct committed under duress incident to such status restates existing criminal law and is therefore unnecessary."

Another important application of the principle is what section 107 provides for in relation to protection and assistance for victims of trafficking, which is to "expand benefits and services to victims of severe forms of trafficking in persons in the United States, without regard to the immigration status of such victims."

This is a significant shift in the human rights law of this country and that brings me to the fourth and last shift. The shift in the foreign policy of the United States.

The Act makes trafficking in persons as important as nonproliferation of weapons of mass destruction.

The Act makes trafficking in persons as important as fighting terrorism.

The Act makes trafficking in persons as important as the war on drugs.

Human rights have been an important foreign policy objective of the United States, and the Foreign Assistance Act of 1961 prohibited economic assistance to any government who engages in "a consistent pattern of gross violations of internationally recognized human rights." The 1961 Act made the promotion and the encouragement of increased respect for human rights and fundamental freedoms a foreign policy objective.

The Act adds trafficking in persons as a new foreign policy objective of the United States. The Act calls upon the United States to lead the fight against trafficking in persons.

The Act mandates that the United States monitors the status of severe forms of trafficking in foreign countries and the Act does that in three ways.

The Department of State is required by the Act to issue an annual Trafficking in Persons Report making a statement of condemnation of human rights violations in the context of trafficking. But the Act does not stop there.

Secondly, the Act also requires naming names by classifying countries into different categories depending on government efforts to combat trafficking through the 3 tier model.

Thirdly, the Act calls for taking action, that is to say imposing sanctions, against governments that do not recognize the magnitude of the problem, are not serious about initiating programs to protect victims of trafficking, and lack the political will to punish the traffickers.

And the U.S. Department of State's Office to Monitor and Combat Trafficking in Persons keeps the pressure on countries to do something about trafficking.

In order to strengthen the foreign policy objectives of the Trafficking Victims Protection Act of 2000, the TVPRA has created three additional minimum standards for the elimination of trafficking. The Department of State Office to Monitor and Combat Trafficking rate countries according to whether or not foreign countries comply with the minimum standards for the elimination of trafficking. The new minimum standards include:

Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant.

Whether the government of the country, consistent with the capacity of such government, systematically monitors its efforts to satisfy the criteria described in paragraphs (1) through (8) and makes available publicly a periodic assessment of such efforts.

Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year.

The new amendments also stipulate that a country that does not provide data regarding investigations, prosecutions, convictions and sentences of trafficking to the Department of State after reasonable requests, will be presumed that the country has not investigated, prosecuted, convicted or sentenced cases of trafficking.

The TVPRA also creates a special watch list that includes a list of countries that require "special scrutiny."

But the Act, while calling for the possibility of sanctions, opens the door for constructive engagement, working with foreign governments in combating the problem of trafficking in persons.

To me constructive engagement and not imposing sanction is really what it will take to get countries to do something about the problem. And if so one of the main objectives of the foreign policy of the United States will be achieved.

And last month, I traveled to Vienna to talk about trafficking as a threat to human security. There is a shift today from state security to human security.

If you add that achievement to the significant progress made in the criminal law policy, the immigration law policy and the human rights law policy, you would feel very good about what the U.S. is doing.

You would also feel good if you take a look at what has been accomplished since the 28th of October 2000.

The Trafficking Victims Protection Act of 2000 establishes a federal crime. A number of states have proposed state laws making trafficking a crime.

One is Texas. The Penal Code will make "trafficking of persons" a felony. That includes trafficking for labor or services and trafficking of children for prostitution. I am referring here to Title 9 of the Penal Code, and the proposed amendment is to add chapter 44.

Another is Washington State. Bill 1175 provides for crimes relating to trafficking of persons, whether for sex or labor.

Arizona has also taken a lead in combating trafficking, when a Bill 1300 was introduced in the Senate this year. The bill provides for establishment of the Trafficking Victims’ Task Force consisting of the state’s Attorney General, the Director of the Department of Health Services, the Director of the Industrial Commission, and the Director of the Criminal Justice Commission. The Task Force is charged with tasks that include:

Collecting research and information on victims of trafficking
Evaluating various approaches used by the state and local governments to increase public awareness of the issue of trafficking
Reviewing the services and facilities that provide assistance to victims of trafficking
Developing a plan for combating trafficking in persons within Arizona
Coordinating the support services to victims of trafficking

And presenting an annual report of its findings and recommendations to the Governor, the Speaker of the House of Representatives, and the President of the Senate.

However, Arizona does not have a specific anti-trafficking provision in its law or a comprehensive anti-trafficking law. But it does have a number of other laws that may be used against the traffickers, including:

Prostitution, which is class 1 misdemeanor punished by a fine of up to $2,500 and/or imprisonment of up to six months

Various prostitution-related activities, such as:

Enticement for prostitution
Procurement for the purpose of prostitution by any false pretenses, false representations or other fraudulent means
Procuring or placing persons in a house of prostitution for the purpose of receiving money or other valuable for this
Receiving money or other valuables from the earnings of prostitute
Causing one’s spouse, by means of force, fraud, intimidation or threat, to live in a house of prostitution or to lead a life of prostitution
Detaining a person in a house of prostitution under the pretense of unpaid debt
Operating or maintaining a house of prostitution
Pandering, which includes placing a person in a house of prostitution or in the custody of another for the purpose of prostitution, and compelling, inducing or encouraging a person to lead a life of prostitution
Transporting a person through or across the state of Arizona for the purpose of prostitution, concubinage, or other immoral purposes

Most of these offenses are class 5 felonies, punishable by imprisonment from 9 months to 2 years. However, enticement for prostitution and procurement by false pretenses are class 6 felonies, punishable by imprisonment from 6 months to 1.5 years.

The law also provides strong protective measures against sexual exploitation of children. For example, the following acts are prohibited:

Unlawful sale or purchase of children, including offering to sell or buy a child for money or other valuable consideration, which is a class 5 felony.
Engaging in sexual intercourse or other sexual conduct with a minor under the age of 18. This is a class 6 felony if a minor is between the ages of 15 and 18.
Taking a child away from his parents for the purpose of prostitution, which is a class 4 felony punishable by imprisonment of 1.5 to 3 years.
Child prostitution, which includes the following offenses:
Causing a minor to engage in prostitution
Using a minor for the purposes of prostitution
Permitting a minor in one’s custody to engage in prostitution
Procuring or placing a minor for the purpose of prostitution
Receiving any benefit from an agreement to participate in the proceeds of prostitution of minor
Financing, managing, supervising, controlling or owning a prostitution enterprise using minors
Transporting or financing the transportation of minor within the state of Arizona for the purpose of prostitution

Commercial sexual exploitation of minors, which includes producing any visual depiction or live act depicting explicit sexual conduct involving a minor, as well as using, persuading, enticing, inducing or coercing a minor into child pornography and transporting or financing the transportation of minor for such purposes within the state of Arizona.

Sexual exploitation of a minor, which including distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing, or exchanging any visual depiction of a minor engaged in exploitative exhibition or other sexual conduct

Luring a minor for sexual exploitation, the presumptive term of imprisonment for which is 10 years

Most of the offenses involving sexual exploitation and prostitution of children are class 2 felonies, punishable by imprisonment of 4 to 10 years. In addition, if a child is under the age of 15, these offenses are classified as dangerous crimes against children, for which the law provides even harsher penalties.

So, if a child is under the age of 12, the perpetrator shall automatically be sentenced to life imprisonment and is not eligible for pardon or release from confinement until he or she has served 35 years of the sentence

And if a child is between the ages of 12 and 15, the presumptive term of imprisonment is 20 years

And the presumptive term of imprisonment for sexual exploitation of minors, commercial sexual exploitation of minors, and child kidnapping is 17 years, and the sentences must run consecutively

Finally, the law in Arizona prohibits offenses that interfere with a person’s freedom of movement, such as kidnapping, which includes kidnapping for the purpose of involuntary servitude, with the intent of committing sexual offense against a victim, to aid in the commission of a felony, or to place a victim in reasonable apprehension of imminent physical injury. This is a class 2 felony, and if the victim is under the age of 15, the punishment is imposed in accordance with the provision for dangerous crimes against children.

Arizona also has a very tough law against the possession of child pornography, which falls under the section against sexual exploitation of minors. Arizona’s law provides for sentences from 10 to 24 years for each count of selling, buying, or downloading child pornography, and the sentences must be served consecutively. This is the harshest law against child pornography in the whole country; the next-harshest state is Texas, with sentences from 2 to 10 years of imprisonment.

Most of you are familiar with the case of Morton Robert Berger, a 51-year-old former history teacher at Cortez High School. In 2003, he was sentenced to 200 years of imprisonment, the minimum possible sentence for 20 counts of possessing child pornography materials. Mr. Berger had turned down a plea bargain offering him a sentence of 17 to 36 years imprisonment. And Mr. Berger’s "collection" contained not just 20 photographs, it had thousands of sexually explicit and exploitative images of children, and according to prosecutors, it was the biggest child pornography collection they had ever encountered.

And in 1999, Arthur Stanley Jones was sentenced to 408 years, which is the maximum sentence for downloading 17 pictures containing child pornography.

You may think that this is a very tough penalty for simply viewing the pornographic pictures. However, a research of 62 men convicted of computer crimes involving children, which was conducted in 2000 in a federal prison, determined that 76 percent of these men also were involved in sexual conduct with the children.

Finally, Arizona’s law provides for special evidence rules in cases involving female victims of rape, abduction, seduction, pandering, receiving earnings of a prostitute, transporting women for immoral purposes, forcing women to marry, and enticing a woman into a house of prostitution or to have illicit carnal relation with a man. In all these cases, the woman is specifically made, by law, to be competent to testify regarding all matters, including her conversations with the accused.

Arizona has a high rate of trafficking, as well as California, Florida, Texas, New York, Washington, Washington, DC, and Hawaii.

Where did I get this information from? Thanks to Alex Acosta and the US Department of Justice.

Between the years of 2001-2003 the Department of Justice prosecuted 106 cases of trafficking, 74 of them sex trafficking, and 72 cased resulted in convictions and guilty pleas. Of those cases 54 were convicted on sex-trafficking charges.

In 2004 there are trafficking prosecutions going against at least 9 defendants, 7 of those already resulted in pleas and convictions.

At least 20 cases involving 58 traffickers were prosecuted under the TVPA, and 13 of those cases involved sex trafficking.

My reading of these cases suggests the following:

More victims of trafficking come from Mexico, but people are also trafficked from Korea, Nigeria, India, Russia, Uzbekistan, Tonga (men forced for labor in Hawaii), Honduras, Guatemala, Cameroon, Saudi Arabia (Bangladeshi woman), India and Indonesia.

And these people are trafficked to the following states:

NY, Georgia, Texas, California, Hawaii, Alaska and Florida.

Where does Arizona fit in terms of the trafficking routes in the US? Arizona is mainly a transit state for trafficking in persons – which often goes hand in hand with smuggling of aliens. Because of its large border with Mexico, Arizona is one of the major corridors for illegal immigration into the United States. And because it is becoming more difficult to cross the border in Texas and California, more migrants are traveling through Arizona. Victims are trafficked through Arizona to various destinations throughout the country, for example New York and Florida.

You must be familiar with the case of Maria Garcia and her family, which is now pending in the federal district court in Buffalo, New York. The case involves six defendants, who conspired to recruit move than three dozen undocumented Mexican boys and men from Arizona and transporting them for the purposes of forced labor in the farms in Orleans and Genesee Counties in western New York. The victims were held in crowded and unsanitary labor camps, were verbally abused and threatened with physical harm, deportation and arrest. The workers were paid approximately $30 a week for 60 hours of work, as the traffickers took large deductions for transportation, food, housing and other expenses. The victims were told that they could not leave until they paid off the smuggling fee of approximately $1,000, and the guards were used to monitor their movements.

And in another case, migrants from Mexico and Guatemala were recruited in Chandler and Marana, Arizona, and trafficked to Florida to work in slave-like conditions picking tomatoes and citrus. Victims were guarded by armed guards and paid $40-50 a week, with the rest being taken away to repay the smuggling fee.

And Arizona is also a destination country for numerous undocumented workers, mainly from Mexico, some of whom may be victims of trafficking. Many of these workers are employed at Arizona’s hotels and tourism industry, in agriculture and the copper mines, in health care sector, and as domestic servants. Many victims are recruited by the headhunters with promises of good jobs in Phoenix, Tucson, and Flagstaff. And there are also reports of numerous Vietnamese women being trafficked to Phoenix to work in massage parlors.

The Department of Health and Human Services has issued 388 certifications. 174 of these were workers from China and Vietnam who were recruited to work at the Daewoosa Samoa garment factory in American Samoa. 388 victims of trafficking have been issued certifications entitling them to benefits and services.

We need more certifications that entitled victims of trafficking to benefits under the Act.

As of 2004, 368 T-Visa applications have been received, 60 approved, only 4 denied and 284 are pending.

We need to find more victims of trafficking and we need to file more applications to the T-Visa.

Identification of victims of trafficking is the real challenge that we face today.

And that is why we should go after not only the natural person, but the legal person, the corporate person, and if such person is involved in illicit sexual activities and is trafficking women to perform such activities, such person should be fined, his business license revoked, and his business enterprise shut down.

And we also have to do something about the facilitator:

the strip club
the escort service
the taxi driver
the advertisement agency
the employment agency
the adoption agency
the matchmaking organization
the massage parlor

And Arizona is taking some steps in this respect. For example, many cities in the state have a problem with illegal massage parlors. In Scottsdale, a major tourist, resort and spa city, as many as 15 to 20 percent of massage facilities offer illegitimate sexual services. Last May, Arizona passed a new law imposing stricter requirements on massage industry, and the law will come into full effect on July 1, 2004. Thus, the new law requires all massage therapists to obtain a license. Among the requirements for license is that a masseuse or masseur has to be a citizen or legal resident of the United States and has not been convicted of a felony or other crime involving moral turpitude, or prostitution or solicitation in the past five years. The law also explicitly prohibits for massage therapists to engage in any kind of sexual activity with a client.

And individual cities, such as Scottsdale, started following the lead and introducing even stricter restriction on the operation of massage parlors. Scottsdale authorities are also taking effective steps to enforce the new massage regulations. Thus, during the first month following the adoption of the new regulations in July 2003, the police conducted more than 100 inspections and 7 massage parlor raids, which resulted in five prostitution-related arrests.

In addition, this April, Golden State Transportation, a commercial bus company, pleaded guilty to six counts of felony charges which include smuggling and money laundering. The penalty imposed was $3 million fine and confiscation of a $2 million bus terminal in Phoenix. The company was involved in a massive smuggling operation from Mexico through Arizona to various destinations around the country. Smugglers worked together with the bus company managers and employees (a total of 30 individual defendants, most of them from Arizona), buying blocks of tickets for undocumented migrants, who were put on special charter buses and taken from Tucson through Phoenix to destinations including Las Vegas, Los Angeles, Denver, and Yakima, Washington. During the last two years of its operations only, Golden State Transportation transported over 42,000 illegal migrants (up to 300 persons daily), generating over $3.1 million in profits.

We have to do something about the customer, the client, the one who is buying sexual services.