Benefits Granted to Victims of A Severe Form of Trafficking Under the
Trafficking Victims Protection Act of 2000
Dr. Mohamed Y. Mattar, Co-Director, The Protection Project
Remarks delivered at Shared Hope International
Reception for Service Providers in Seattle, WA
Today is Friday October 25th, 2002. Three days from now, Monday, October 28th, 2002 we will celebrate together the second anniversary of the passage of the Trafficking Victims Protection Act. On the same day we will also celebrate the date of the first court case to be prosecuted under the Trafficking Victims Protection Act.
But we also have reasons to celebrate tonight. I am privileged to be a guest of my very good friend, Linda Smith, the founder and president of Shared Hope International. She always comes to visit us at The Protection Project in Washington, DC. So for a change, it is very nice to meet her here in Washington State.
The Protection Project, which I represent tonight, shares the vision of Shared Hope. I was present when Linda testified before the U.S. House Committee on International Relations hearing, entitled, "Foreign Government Complicity in Human Trafficking: A Review of the State Department's 2002 Trafficking In Persons Report."
She said, "I encouraged the administration to consider countries with legalized or tolerated prostitution as having laws that are insufficient…to eliminate trafficking." Linda, that's what we believe in at The Protection Project.
I am also privileged to talk to you in Washington State, which has been a leader in the war against trafficking in persons.
It is no surprise that Washington State is one of the few states that enacted an anti-trafficking in persons law, which became effective on the 13th of June, 2002 and established the Washington State Task Force Against the Trafficking in Persons.
Washington State has also passed an act related to international matchmaking organizations. This act became effective on the 1st of September 2002, imposing an obligation to inform residents of Washington State who utilize international matchmaking services for the purpose of establishing a relationship with those living abroad.
These are two important acts and I am sure that you have been discussing them here in great detail. The benefits granted to victims of a severe form of trafficking, in accordance with the Trafficking Victims Protection Act, is our issue for the evening.
Granting benefits to victims of a severe form of trafficking means that we shifted the whole anti-trafficking movement to a new and different phase.
The Act moved us to recognize a trafficked person as a victim.
Prior to the Act, I am not sure that was the case. But, for the first time, the Act is explicit in establishing the principle of non-criminalization of the conduct of a trafficked person.
So if you are a trafficker and you destroy, conceal, remove, confiscate or possess a travel document to keep the trafficked victim in a condition of servitude, they put you in prison for five years in accordance with the Act.
BUT this rule does not apply to the conduct of a victim of a severe form of trafficking, if that conduct is caused by or incident to that trafficking. The victim of trafficking is exempted from criminal liability.
The Act moved us from the Mann Act era where the focus was on criminalization. When you transport a person in interstate or in foreign commerce for the purpose of prostitution they put you in prison for ten years.
This was the Mann Act, 2423(a).
The Act moved us from the traditional immigration policy of deportation of the trafficked person to allowing such a person to stay, acquire a residency status, and even gain authorization to work in the country.
However, we have to recognize the limitations of the Act.
The Act is only limited to sex and labor. So, if your victim is trafficked for other purposes, then this is not your Act.
Therefore:
Baby trafficking, or sale of children in the name of intercountry adoption, is not part of the Act.
Bride trafficking, in the absence of a commercial sexual act or condition of servitude, is not part of the Act.
Organ trafficking, or removal of organs for improper financial gains, is not part of the Act.
Trafficking for the purpose of pornography, in the absence of a condition of servitude, is not part of the Act.
The Act is only limited to severe forms of trafficking. So if your victim was trafficked in the absence of force, fraud, coercion, then this is not your Act.
With these limitations, the question becomes, how would you be eligible to receive benefits under the Act?
First you have to prove that you are a victim of trafficking, AND
Second, you have to prove that you are a victim of a SEVERE form of trafficking.
The next question becomes, what are these benefits that a victim of a severe form of trafficking may be entitled to?
I like to think of these benefits in terms of rights.
Victims of trafficking must be entitled to fundamental rights. They must be treated with dignity, fairness, compassion and respect for their human rights.
The first benefit is the right to access information.
So if you want to inform your victim of their rights you have to be able to do it in simple language and in the victim's native tongue.
This is what Section 107(c)(2) provides.
"Victims of severe forms of trafficking shall have access to information about their rights and translation services."
The second benefit is the right to rescue.
So, a trafficked victim must be removed from exploitative situation and placed in an appropriate or special shelter.
This is what Section 107(c)(1)(a) provides.
The Act tells us those victims of a severe form of trafficking, while in the custody of the federal government "shall not be detained in facilities inappropriate to their status as crime victims."
The third benefit is the right to social assistance and economic self-sufficiency, including job counseling, skills training and education.
This is what Section 107(e)(4)(i)(2) provides.
The Act tells us that the victim is provided with an "'employment authorized' endorsement or other appropriate work permit."
The fourth benefit is the right to medical care, including physical and psychological treatment.
This is what Section 107(c)(1)(b) provides.
The Act tells us "victims of severe forms of trafficking while in the custody of the federal government, shall receive necessary medical care and other assistance."
The fifth benefit is the right to be heard in court, including the right to legal representation in cases prosecuted under the Act.
This is what Section 112 provides.
The Act tells us that a trafficker shall be punished by imprisonment of 20 years or for any term of years or life in cases involving forced labor, trafficking with respect to peonage, slavery, involuntary servitude or forced labor and sex trafficking of children or force, fraud or coercion.
When you prosecute a trafficker, you are giving a voice to the trafficked victim by allowing them to be heard in court.
And the more you prosecute cases of trafficking, the more voices are heard.
The sixth benefit is the right to mandatory restitution.
This is what Section 112 provides.
The Act tells us that the court "shall order restitution, and the order of restitution shall direct the trafficker to pay the victim the full amount of the victims' losses and that the full amount of the victims' losses shall include any costs incurred by the victim for:
· Medical Services
· Rehabilitation
· Transportation
· Housing
· Child Care Expenses
· Lost Income
· Attorney Fees
· And any other losses suffered by the victim as a proximate result of the offense
However, on a sad note, the Act does not provide a victim of trafficking with the right to a private civil action for compensation. I would have liked to see that right explicitly recognized by the Act so that victims of trafficking could sue their trafficker for not only actual damages, but punitive damages as well. Although the Act does prevent such possibility "under other civil or criminal penalty authorized by law."
On another sad note, the Act, although it provides for forfeiture of assets owned by the trafficker, I would have liked the Act to explicitly provide for the right of a victim of trafficking to be directly compensated from these assets.
The seventh benefit is the right to privacy and safety.
That is what Section 104(c)(1)(b)(i/ii) provides.
The Act tells us that victims of severe forms of trafficking, while in the custody of the federal government, shall be provided protection if a victim's safety is at risk or if there is danger of additional harm by recapture of the victim by a trafficker, including
· Taking measures to protect trafficked persons and their family members from intimidation and threats of reprisals and reprisals from traffickers and their associates
· And ensuring that the names or identifying information of trafficked persons and their family members are not disclosed to the public.
How did the Act do that?
The Act includes victims of trafficking in the Witness Protection Program covered by the Victim and Witness Protection Act of 1982.
The Act provides for protection of the witness in proceedings concerning an organized criminal activity or other serious offense. If "an offense involving [the] crime of violence directed at the witness…is likely to be committed."
For the purpose of applying this rule to victims of trafficking, the Act categorizes any trafficking offense as "an organized criminal activity" or "other serious offense."
The eighth and final benefit is the right to seek residency.
This is what Section 107(f) provides.
The Act tells us that a victim of a severe form of trafficking shall be entitled to a "T-Visa" IF, and this is a big IF, the victim meets FOUR requirements.
1. The trafficked person must be a victim of a severe form of trafficking.
2. He or she must be physically present in the United States due to trafficking.
3. He or she must comply with any reasonable request to assist in the investigation and prosecution of trafficking, or has reached the age of 15.
4. That such person would suffer extreme hardship upon removal.
That would entitle him or her to a temporary residency status that may be adjusted to a permanent residency status if such person has been physically present in the U.S. for a continuous period of at least three years.
And has been a person of good moral character and has complied with reasonable requests for assistance in the investigation or prosecution of acts of trafficking.
Or such person endured extreme hardship involving unusual and severe harm upon removal from the United States.
The Act was generous. It provided for 5,000 T-Visas during any fiscal year.
The Act was also generous by applying the derivative victim doctrine and extending the right to the T-Visa to the spouses, sons, daughters or parents of such victims of trafficking.
This year there were 115 applications for the T-Visas; however, only 9 T-Visas were granted. I'm not sure why so few were granted, but I promise to find out and get back to you.
On this note, I will end.
However, I will be back since The Protection Project is going to be conducting a training program with Shared Hope International in the spring of 2003 here in Seattle, WA. On behalf of The Protection Project, I would like to invite all service providers to participate in the program. |
