A Public Awareness Program "Rescue and Restore"
Dr. Mohamed Mattar, Adjunct Professor of Law and Co-Director of the Protection Project at Johns Hopkins University School of Advanced International Studies
October 4, 2004 Portland, Oregon I am delighted to be here in Portland, Oregon. This is our first training program for this academic year and it comes at a time, which I think is exciting for those of us in the anti-trafficking movement. I say this for several reasons. I was excited to listen to President Bush not when he was debating senator Kerry this last Thursday, September 30th. I am referring to September 21st speech that President Bush made to the United Nations. On September 21, 2004, President George W. Bush addressed the issue of trafficking in his speech to the United Nations, saying: "Because we believe in human dignity, America and many nations have joined together to confront the evil of trafficking in human beings. We are supporting organizations that rescue the victims, passing stronger anti-trafficking laws warning travelers that they will be held to account for supporting this modern form of slavery. Women and children should never be exploited for pleasure or greed anywhere on Earth." Of course, what I like the most about that statement is the explicit reference to "passing stronger anti-trafficking laws warning travelers that they will be held to account for supporting this modern form of slavery." And this is really what I am supposed to be talking to you about today. Anti-trafficking laws. And in the United States there have been many of those. Recently the United States has adopted a number of federal laws that address trafficking in persons. The Trafficking Victims Protection Act (TVPA) was signed into law on October 28, 2000. It was amended on December 19, 2003 by the Trafficking Victims Protection Reauthorization Act. In April 2003 the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), Section 105 provided for penalties for sex tourism and amended the Child Sexual Abuse Prevention Act of 1994. The Inter-Country Adoption Act of 2000 enacted on October 6, 2000 implemented the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. The Racketeer Influenced and Corrupt Organizations Act (RICO) added "trafficking in persons" to the definition of a racketeering activity in its Section 1961. The significance of these legislative measures is that it expanded the rights of a victim of trafficking. To me, the federal law has expanded four main rights of a victim of trafficking: - the right to be heard in court
- the right to civil compensation
- the right to receive social and economic benefits
- the right to seek residency.
Today a victim of trafficking has more opportunities to be heard in court. To facilitate the prosecution of cases of trafficking, the Reauthorization Act made it clear that trafficking in foreign commerce shall be prosecuted as well as trafficking affecting interstate commerce. In addition, trafficking in persons may be tried as a racketeering case. The new Sex Tourism Act, while criminalizing travel with intent to engage in illicit sexual conduct also makes engaging in illicit sexual conduct in foreign countries a crime. Now a victim of trafficking is entitled to file a civil action asking for civil compensation and reasonable attorney’s fees. You may be familiar with a civil lawsuit filed in January 2004 in federal district court in New Orleans, where about 220 workers from Asia, mostly of Indian heritage, sought to recover damages amounting to $75,000 for being lured into virtual slavery in Louisiana. I spoke about the Louisiana case in our training program that took place on March 30, 2004 and one of the invitees raised his hand and told that he was the lawyer who tried the case. That was attorney Kent Felty. He will be speaking to us in Washington D.C. on November 1st, that is Monday, one day before the presidential elections. So mark your calendar for a seminar on filing a civil action on behalf of a victim of trafficking: - The issue of compensatory damages
- The issue punitive damages
No longer a victim of trafficking is limited to the criminal sanction of mandatory restitution, which may be limited and requires a strict standard of proof and is contingent upon a conviction No longer an alien is required to cooperate with a federal agent to be qualified for receiving benefits under the Trafficking Victims Protection Act. Now under the Reauthorization Act it suffices that she cooperates with a state or local law enforcement agent. A child under the age of 18 is no longer required to show willingness to assist in reasonable request to investigate and prosecute a case of trafficking before he is entitled to receive an immigration status in the U.S. However, it remains to be seen how courts will interpret the provisions of the federal law. A physical or legal coercion is no longer required. Any serious harm now suffices to establish coercion in accordance with the TVPA. How would courts interpret the coercion requirement after the TVPA has expanded the definition of coercion under U.S. v. Kozminski. When should we prosecute a case of trafficking under the Mann Act that does not require force, fraud or coercion? Would a victim of a case of trafficking that was prosecuted under the Mann Act, be entitled to the benefits granted under the TVPA that requires proof that the trafficked person has been a victim of severe form of trafficking? How would the courts define a commercial sex act? Is it limited to prostitution or does it include other forms of sexual exploitation, such as pornography? Would sex trafficking involve cases of mail-order brides, especially since the only law that covers the issue of mail order brides is Section 652 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.. However, this is merely a disclosure law. It imposes 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. At least 200 matchmaking organizations are operating in the United States and between 2,000-3,500 men find brides through catalogues. I understand that personal freedoms and privacy rights, especially in the area of marriage and family relations must be protected and perhaps left unregulated. However, when brides are beaten, tortured and treated like slaves by their husbands or when they are forced to perform illicit sexual activities or placed in condition of forced labor, such instances of abuse must be confronted and a legal response must be developed to protect such victims. I was encouraged by the new bill on international marriage brokers. The bill amendments provide for regulations regarding international marriage brokers, changes in consular processing of fiancé visa application, criminal background check, etc. With regards to international marriage brokers, the proposal states that "an international marriage broker shall not provide any personal contact information about any foreign national clients [meaning a non-resident alien who utilizes the services of an international marriage broker], not including photographs, to any person [the broker] has provided the foreign national client with information in his or her native language that explains the rights of victims of domestic violence in the United States, including the right to petition for residence independent of, and without knowledge, consent, or cooperation of, the spouse." In addition, the proposal requires all international marriage brokers to require each client [meaning United State citizen or legal resident who makes a payment or incurs a debt in order to utilize the services of an international marriage broker] to provide information on their criminal record for homicide, rape, assault, sexual assault, kidnap, or child abuse or neglect, any court order restriction on physical contact with another person, marital history, the ages of any children younger then 18 years, all states in which a client has residency since the age of 18. The bill further provides for criminal background check of a petitioner for a visa under clause (i) or (ii) of section 101(a)(15)(K) of the Immigration and Nationality Act. An international marriage broker shall not provide any information about any foreign client to any client, until the client has been informed that he/she will be subject to a criminal background check should they petition for visa under clause (i) of (ii) of section 101(a)(15)(K) of the Immigration and Nationality Act and the foreign national client has been provided information on the criminal record of that client. You have a copy of the Marriage Broker Act. If you liked what I just said, send Congress a note of support. If you have a problem with it, we will also be happy to hear from you. Because I have a problem with the institution of the mail order bride altogether. I think, marriage buy catalogue is not the best way of getting married. What I understand, how dating services are perceived in this country, so I will not say anything more. I also have a problem with the sexually oriented establishments. Would we consider massage parlors, strip clubs and other sexually oriented establishments that may be involved in illicit sexual activities as forms of sexual exploitation? I understand that such adult expressions are protected as free speech under the First Amendment. I also understand that they are subject to zoning requirements. However, in many cases sexually oriented establishments have been used as fronts for houses of prostitution. Women are brought from foreign countries to the U.S. then transferred to various massage parlors and strip clubs across the U.S. where they end up working as prostitutes. Massage parlors and strip clubs and other sexually oriented establishments facilitate or create demand for trafficked persons. For example, in a 2002 case three persons were arrested in Brooklyn, New York for trafficking a dozen Russian women into the U.S. and forcing them to dance nude in New Jersey strip clubs. In another case involving four defendants, one of which, a Russian national, Virchenko, was sentenced in 2001 to 30 months in prison followed by deportation for trafficking adult women and under age girls from Russia into Alaska to dance nude in strip clubs. While pursuing such establishments through violation of zoning ordinances might be sufficient in some cases, what is more important is that states take steps to curtail the activities of the establishments that might facilitate trafficking. Last May, Arizona passed a new law that entered into force on July 1, 2004 and imposed stricter requirements on the massage industry. 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 to have 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. In Maryland, a bill concerning massage businesses licensing was introduced in 2001. Under this bill, an owner or manager of a massage establishment can allow a person of one gender to massage a person of another gender only "if a person who performs the massage is a State-certified massage therapist or registered massage practitioner." In addition, the bill conditions granting a license to a non-US citizen by submitting evidence proving "legal presence and legal employability in the United States." Distinguishing between massage and massage "with a special ending," a grand jury charged Roman Valdma with Importation of Aliens for Immoral Purpose (8 USC §1328), Transportation for Illegal Sexual Activity (18 USC § 2421), Persuading and Enticing Illegal Sexual Activity (18 USC §2422) and visa fraud. Valdma recruited women from Estonia and induced, enticed and/or coerced them to work in Valdma’s erotic massage parlors located in Massachusetts. In a case from Multnomah County in Oregon, Aurora Goodwin was found guilty of engaging in and promoting prostitution at her massage business called Broadway Massage. Goodwin was convicted based on her agreement to accommodate a request of an undercover police officer for a massage with a ‘hand finish." In 2002, the Oregon Court of Appeals upheld constitutionality of a law against promoting live sex show in a case of Charles Ciancanelli. Charles Ciancanelli paid women for performing sexual activities in "performance rooms" at his business establishment. In this case, the court stated that the conviction of the owner of an adult business for promoting illegal sexual conduct in a life show did not violate his constitutional right of a free expression. The court considered the law to be an "historical exception" to the right of free speech, because as the Judge Landau said "the framers of the Oregon Constitution did not understand (free expression rights) to provide protection against state regulation of public sexual intercourse and masturbation." Another interesting case is that of a local ordinance passed by Nyssa city, which requires nude dancers to stay 4 feet away from customers. This ordinance was challenged as an unconstitutional restriction of freedom of expression, because it allegedly bans dancers from effective delivery of an erotic message. It is encouraging that the Oregon Court of Appeals upheld this ordinance by concluding that nude dancing is not protected expression under the Oregon Constitution. In 2002, the Oregon Liquor Control Commission adopted a ban against underage entertainers, including underage strippers, performing in adults-only bars and taverns. However, it is discouraging that in March 2004 the Oregon Liquor Control Commission lifted this 15-month ban, which as a result allows young women under 21 years of age strip for drinking adults. 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 that is why I am encouraged by how the Department of Justice model state anti-trafficking criminal statute defining "services" to include not only commercial sexual activity, but sexually explicit performances as well. But of course, I have to say something bad about the model law before I say something good about it. First, regarding the terminology used in the model law. The law uses the term "trafficking of person," while the TVPA uses the term "trafficking in persons." You tell me whether there is a difference between trafficking of persons and trafficking in persons. Interesting enough, the explanatory notes, unlike the text of the model, uses the term "trafficking in persons." Second, that is the term used in the UN Protocol. And I do not understand why did the explanatory notes mention the Protocol definition of trafficking in persons after defining severe forms of trafficking in persons in accordance with the TVPA. This is confusing and it is also inaccurate, since the TVPA only recognizes two forms of trafficking, and these are sex trafficking and trafficking for labor and services, while the Protocol defines exploitation to include "at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs." Add to that distinction in the definition between the TVPA and Protocol, a distinction regarding illegal means. TVPA requires force, fraud, and coercion. The Protocol adopts broader concept that is satisfied with taking advantage of any "position of vulnerability." Third, the model state law uses the term commercial sexual activity, while TVPA makes reference to a commercial sex act. Is there any difference between commercial sex act and commercial sexual activity? Fourth, forced labor or services are defined as labor or services "that are performed or provided by another person and are obtained or maintained through an actor’s causing or threatening to cause serious harm to any person; physically restraining or threatening to physically restrain another person; abusing or threatening to abuse the law or legal process; knowingly destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person; blackmail; or causing or threatening to cause financial harm to [using financial control over] any person. However, it is not clear who the actor is. In addition, should we say "blackmailing" or "blackmail" as stated in paragraph (e)? Fifth, I also have a problem with the definition of services as "an ongoing relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor." What do you mean by "ongoing"? Sixth, I also have a problem with the definition of "sexually-explicit performance" as "a live or public act or show intended to arouse or satisfy the sexual desires or appeal to the prurient interests of patrons." Does a public act have to be live? How about massage parlors? Would they be included in the definition of "sexually-explicit performance"? Or we are talking here only about stripping? The explanatory notes state the following: "Section XXX.01(9) introduces the concept of "sexually-explicit performance." A number of recent federal cases have involved persons being held in servitude for purposes of sexually-explicit performances such as "exotic dancing." Unlike prostitution, which is typically illegal and involves commercial sexual activity, sexually-explicit performance may be legal, absent any coercion. Inclusion of sexually-explicit performance in this Model Law recognizes that such activity can have an impact on victims similar to sexual abuse, and reflects federal experience in which international traffickers are increasingly placing their victims into strip clubs rather than prostitution. The proposed criminal statutes provide expanded coverage for minors who are held in sexual performance as opposed to prostitution." Seventh, but the real problem is with defining a commercial sexual activity as services. I still do not understand what was the need for such a definition? I understand, that the model law explicitly states that "nothing in this provision should be construed to legitimize or legalize prostitution." The same point was made in the explanatory notes which state that "section XXX.01(8), which defines "services," incorporates activities that are akin to an employment relationship but are in market sectors that are not legitimate forms of "labor." Notable in this area is commercial sexual activity, which is criminalized in almost every jurisdiction in the United States. Differentiation between "labor" and "services" makes it clear that this Model Law does not legitimize or legalize prostitution." There was no need for any of these explanations and there was no need for defining a commercial sexual activity as service. That is the approach taken by the TVPA that clearly distinguished between sex trafficking and trafficking for labor and services. Eight, but of course, unlike the TVPA, which limits sex trafficking to a commercial sex act, the model law and rightly so defines trafficking in persons more broadly to include not only a commercial sexual activity but sexually explicit performances as well. The model law defines "trafficking in persons for forced labor or services" as following: "Whoever knowingly (a) recruits, entices, harbors, transports, provides, or obtains by any means, or attempts to recruit, entice, harbor, transport, provide, or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services; or (b) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of Sections XXX.02(1) or (2) of this Title, shall, subject to the provisions of Section (4) infra, be imprisoned for not more than 15 years." Ninth, let us compare this definition to definition which has been adopted by states that already have anti-trafficking legislation or bending bills. The act of "Human Trafficking" was defined as " transporting, soliciting, recruiting, harboring, providing, or obtaining another person for transport" under chapter 787.06 (b) on the Kidnapping; false imprisonment; luring or enticing a child; custody offenses of the Florida state law. Texas Penal Code Ann. Sec. 20A.02 provides that: "A person commits an offense if the person knowingly traffics another person with intent that the trafficked person engage in: forced labor or services." The Washington statute defines trafficking in the first degree when a person: "recruits, harbors, transports, provides, or contains by means another person knowing that force, fraud, or coercion will be used to cause the person to engage in forced labor or involuntary servitude." A different definition of trafficking is provided by the Connecticut bill for Establishing an Interagency Task Force on Trafficking in Persons. It defines trafficking as "all acts involved in the recruitment, abduction, transport, harboring, transfer, sale or receipt of persons, within national or across international borders, through force, coercion, fraud or deception, to place persons in situations of slavery or slavery-like conditions, forced labor or services, such as forced prostitution or sexual services, domestic servitude, bonded sweatshop labor or other debt bondage." Arizona has also introduced Bill 1300 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. In September 2004, New Jersey has also introduced a bill creating the crimes of "forced labor or services," "trafficking of persons for forced labor or services," and "sexual servitude of minors." Under the proposed law, these offences would be crimes of the first degree punishable by imprisonment for 10 to 20 years and/or a fine of up to $200,000. Tenth, state legislation however, should not be limited to the criminalization of trafficking as a crime. Accordingly the creation of a task force that mobilizes efforts to combat trafficking in a particular state is imperative. Washington State has already embraced such a model, establishing in 2002 the Washington task force against trafficking in persons. Anyways, the model makes a lot of sense. The key issue, however, is always the customer, the client, the person who buys sex. If you were in Sweden, and you are buying sex, you may be put in prison for 6 months. If you are in Macedonia or Croatia and you are buying sex, with the knowledge that the woman in prostitution is the victim of trafficking, you may put in prison for 6 years. And if you are in the United States, buying sex is a crime. Every state legislation makes prostitution a crime, including the state of Oregon. I am referring here to the laws that criminalize sexual abuse, buying or selling a person less than 18 years of age, endangering the welfare of a minor, encouraging child sex abuse, using child in display of sexually explicit conduct, owing materials depicting sexually explicit conduct of a child, failing to report child pornography, promoting and compelling prostitution, as well as kidnapping of a person. Also, you might have heard about a 2001 case of three Oregonian who were charged child prostitution conspiracy. Three Portland-area defendants conspired to take an 11-year old girl to Vancouver, British Columbia in Canada, with the purpose of engaging her in prostitution. In February 2001, Denorval Gill was sentenced to imprisonment for more than 12 years for compelling and promoting prostitution in more than 40 cases. In one of the cases, he wood a 19 year old girl he met at a bus terminal in Los Angeles to Portland where he forced her to make $500 a day by prostituting herself. I would like to applaud to an initiative of the Multnomah County Court system, called the Portland Prostitution Offender Program, which started in August 2003. This program, also called as "john school," offers a course for men caught buying sex from prostitutes. After completing this program, for which offenders pay $ 82.50 for themselves, the amount of court –ordered community service is reduced form the standard 24 hours to 16 hours. I would also like to applaud the bill pending in the United States Congress is the proposal of the Domestic Trafficking Victims Protection Act. As stated in the proposal, one of the main purposes of this Act is "to support the development of more effective means of combating unlawful commercial sex activities by targeting demand." The proposal provides for grants "to establish model law enforcement programs that promote the effective prosecution of purchasers, exploiters, and traffickers of commercial sex acts." The grants may be used for prosecution against purchasers of unlawful commercial sex acts through educational programs instructing first-time purchasers of unlawful commercial sex acts on the devastation caused by such offence and through the publication of names and addresses of purchasers. The grants may be further used for prosecution against traffickers and exploiters of unlawful commercial sex acts, through surveillance of places of business engaged in unlawful commercial sex acts, tax evasion prosecutions against exploiters and traffickers, civil actions against traffickers and exploiters to recover income obtained from unlawful commercial sex activities, including restitution provision to supplement public financing of shelters and social services for victims of unlawful commercial sex acts. In addition, grants may be used for social service programs operated by non-governmental organizations with expertise in assisting victims of commercial sex activities offering protection, education, food, and shelter for the victims. If the customer is a tourist, the Reauthorization Act now requires developing and disseminating materials to alert travelers to foreign destinations where sex tourism is significant, that sex tourism is illegal and will be prosecuted. In April 2004, the United States District Court for the Western District of Washington decided the case of Michael Lewis Clark, a 69 year old retired United States army sergeant, who lived in the Puget Sound area in Portland, Oregon. Clark was indicted by a Seattle Grand Jury on two counts: traveling via foreign commerce to Cambodia, and engaging in illicit sexual conduct with a minor. He paid two young homeless boys, aged ten and thirteen, two dollars each to have sex with them. After pleading guilty to both of these charges, Clark challenged the legality of the PROTECT Act. However, the Court dismissed Clark’s argument that the PROTECT Act "did not apply to him because he was not a ‘sex tourist,’ having lived in Cambodia for five years." The Court further upheld the reasonableness of the extraterritorial application of the PROTECT Act reasoning by the existence of "a strong connection between the United States and its citizens (and resident aliens) who commit the illicit activity," desirability and wide acceptance of "the prohibition against sexual activity with young children" and "very little likelihood of conflict with regulation of other states." And if the customer is a US military officer, he should also be a subject to the law. I am encouraged by the September 20, 2004 memo addressed to military commanders and Pentagon contractors, United States Defense Secretary Donald Rumsfeld expressed his concern with sex exploitation and labor trafficking practices in areas neighboring U.S. bases overseas. Also, he warned military commanders and Pentagon contractors against supporting prostitution and human trafficking. As a part of a US fight against trafficking in persons, President Bush in 2002 declared a "zero tolerance" policy for the US employees and contractors engaging in trafficking abroad. In consistence with this policy, Pentagon suggested addition of an anti-prostitution charge to the Uniform Code of Military Justice. Under this proposal, members of the US troops could be penalized by 1 year imprisonment and a dishonorable discharge if found guilty for paying for sexual services. I was driving home the day that memo was published and I was listening to the Chris Core show. I am not sure whether you can get it here or whether it is one of the Washington, DC things. And I was surprised, or maybe not surprised, that the majority of the callers did not think there is a link between prostitution ad trafficking and why should US government interfere in something private such as having sex with a prostitute, especially when the officer is off duty. My favorite caller was the one who said that prohibiting US officers from having sex with prostitutes may increase the rate of pregnancy among US female officers. That is why I think that what we are doing today is important. We have to educate people on the issue, so that they understand - The link between prostitution and trafficking
- The link between prostitution and trafficking and HIV/AIDS
- The link between trafficking and slavery
We also must really do something about identifying victims of trafficking. I believe that is the main challenge that we face today.
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