The Protection Project - Conference on Modern-Day Slavery

An International and Comparative Perspective
Dr. Mohamed Mattar, Co-Director, The Protection Project

Trafficking in Persons: Conference on Modern-Day Slavery.

Global, National and Local Perspectives for Prevention, Protection and Prosecution

Dallas, Texas

Many aspects of the Trafficking Victims Protection Act of 2000 are being addressed in this very important conference, which I am honored to be part of. What I would like to do is to talk about the Act but from an international and comparative prospective.

On the international level, and if one takes into consideration the latest international conventional law i.e. the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, one realizes that the Act is narrower in scope than the Protocol when it comes to

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?

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.

The Sex Tourism Improvement Act of 2002, which was passed by the House, amends section 2423, and prohibits "travel with intent to engage in illegal sexual conduct" and "engaging in illicit sexual conduct in foreign places."

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

Of 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.

And by way of comparison between the Act and other acts designed to combat trafficking, the American model is a very good one. There are a lot of good things about the Act.

One is that the Act treats the trafficked person as a victim who is entitled to basic rights. The Act talks about the:

Right to access information
Right to rescue and be removed to the appropriate shelter
Right to social assistance including job training
Right to medical care
Right to be heard in court
Right to mandatory restitution
Right to privacy and safety
Right to seek residency
And right to return.

All that is good, also good is the implementation of the Act of the principle of noncriminalization of the acts of a trafficked victim. The principle is clearly stated in section 8 of the United National Kosovo Regulation No 2001 on the Prohibition of Trafficking in Persons which provides: "a person is not criminally responsible for prostitution or illegal entry, presence or work on Kosovo if that person provides evidence that supports a seasonable belief that he or she was the victim of trafficking."

The Act requires that victims of trafficking " are repeatedly punished more harshly than the traffickers themselves." And that they 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.

On this basis the Act punishes the traffickers who falsify documents with five years imprisonment then explicitly states 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."

The Act enhances the penalty for trafficking to 20 years, or even life in aggravated circumstances. That is a harsh sentence and it is longer than sentences imposed in European countries in cases of trafficking. One reason for this difference among the American legal system and European legal systems is that plea bargaining, which is absent in European legal systems, provides for a more realistic sentence in the U.S. But regardless of the length of the sentence which should be left to the individual country we would like for all countries to recognize trafficking as a "serious crime." The U.N Convention against Transnational Organized Crime defines a "serious crime" as any crime the punishment for which is four or more years in prison.

So, the U.S. Act is serious about trafficking. Trafficking under the Act is a "serious crime." Again, talking about punishment the Act does not only provide for the 20 years imprisonment, it also provides for forfeiture of the assets of the trafficker. So, the court in imposing the sentence on the trafficker shall also order the confiscation of the property of the trafficker. But, and here is another, but the Act does not go a step further and allow the victim of trafficking to recover from this property. I mean, to receive compensation from these confiscated assets.

Other laws provide for such possibility which is really what the U.N. parent convention, the Convention against Transnational Organized Crime provides for and some countries take that step forward by providing for the use of these confiscated assets to start and initiate programs to assist victims of trafficking and that is the Italian Model.

The Italian Model is also different from the American Model when it comes to the "residency status" The U.S T-Visa is contingent upon the victim of trafficking providing law enforcement assistance in the prosecution or investigation. I understand that the Act talks about "willingness" on the part of the victim of trafficking and "reasonableness" of the part of law enforcement.

But, and here is another but, the Italian law provides for allowing the victim a residency status merely on "humanitarian basis" and regardless of the issue of assistance something similar to the U.S. position when the trafficked person is a child under the age of 15.

5000 visas
A temporary residency status which may be adjusted to a permanent residency status

That is very generous. And that tells us something about what is really good in the American model of combating trafficking when it comes to assisting and protecting victims of trafficking.

Another criminal sanction besides imprisonment and forfeiture of assets is "mandatory restitution" the court shall order to pay the victim "the full amount of the victim’s losses." That is good. The Act also does not preclude civil remedies under laws such as

The act does not explicitly provide the victim of trafficking with the right to file for a civil action for damages.

Some other laws of foreign countries provide for such a possibility. For instance the 2000 Cyprus Law on Trafficking and sexual Exploitation of Children provides that

"The court may award punitive damages when the degree of the exploitation or the degree of relationship or the dominating position of the offender with regard to the victim so require."

This is Article 8(3) of the "2000 Combating Trafficking in Persons and Sexual Exploitation of Children Law of Cyprus" and that is the exact title of the law.

But again, let me be clear that is a possibility, which may be pursued by a victim of trafficking although not under the 2000 Act.

This is about sanctions. Sanctions of the traffickers or sanctions against the traffickers. But the act talks about any type of sanctions, sanctions against countries not individual and this is a fascinating concept. You go not only after the trafficker, but after the country that aids the trafficker or does nothing about trafficking.

The question becomes when do you consider a country an "F" country or a "D" country or in the language of the Act a "Tier 3 Country?" Well, the act is clear. Go back to section 108 and the four standards and the seven criteria which the act adopts in determining whether a country is not exercising any efforts to eliminate trafficking. But that is not the forum for a discussion of the TIP report and the sanctions. Some argue that you should not impose sanctions on countries in Tier 3 because they are the countries that need the most help.

But let me conclude by saying that although "sanctions" is an option under the Act, and this may sound bad we must also emphasize the good in the Act, in addition to sanctions, which are discretionary in nature talk about assistance. This is section 109, "The President is authorized to provide assistance to foreign countries directly, or through nongovernmental and multilateral organizations, for programs, projects and activities designed to meet the minimum standards for the elimination of Trafficking…"