SCOPE OF THE PROBLEM

Statistics and Cases

The United States is a country of destination for women and children trafficked for purposes of commercial sexual exploitation.  The Central Intelligence Agency (CIA) estimates that between 50,000 and 100,000 women are trafficked into the United States each year.[1] Over the past decade, as many as 750,000 women have been trafficked into the Untied States.[2] Between 1990 and 2000, at least 38 separate instances of trafficking into the United States were documented that together involved at least 5,500 women.[3] Analysts from the U.S. Department of State suggest that a relatively equal number of trafficked women come from four main areas: Asia, Central and South America, Russia and the newly independent states, and eastern Europe.[4] Upon arrival into the US women and children may be trafficked onto numbers of various cities.  .

Traffickers initially brought women into the United States without making any transit stops. Prime examples of direct-route trafficking are the Atlanta case[5] and the Cadena case.[6] In the Atlanta case, starting in 1995, Snakeheads (an Asian crime syndicate) smuggled Asian women into Atlanta, Georgia. From there the syndicate would regularly trade the women between local and out-of-state brothels, both to avoid detection and because customers “got tired of the same women.”[7] The women lived in brothels described as “prison compounds” and suffered beatings, forced abortions, and isolation—one girl was kept in a closet for 15 days for trying to escape.[8] These 500 to 1,000 women from China, Korea, Malaysia, Thailand, and Vietnam were shuttled around the country from Atlanta to other brothels in Arizona, California, Colorado, Florida, Illinois, Indiana, Kentucky, Nevada, Ohio, Pennsylvania, Tennessee, Texas, and Washington, D.C.[9]

The Cadena smuggling ring trafficked women, some as young as 14, from Mexico to Florida. The victims were forced to prostitute themselves with as many as 130 men per week in a trailer park. Of the US$25 charged the Johns, the women received only US$3. The Cadena members kept the women hostage through threats and physical abuse. One woman was kept in a closet for 15 days for trying to escape. Some were beaten and forced to have abortions (the cost of which was added to their debt).[10] The women worked until they paid off their debts of US$2,000 to US$3,000. During their stay in the United States, the women were circulated among brothels in different cities in Florida. Sixteen men were indicted for importing aliens for immoral purposes; transporting women and minors for prostitution; subjecting them to involuntary servitude; and committing visa fraud, conspiracy, and violations of civil rights. The defendants’ sentences ranged from 2.5 years to 6.5 years, with the ringleader receiving 15 years’ imprisonment. The judge also ordered the ring to pay US$1 million in restitution. Several of the ringleaders had fled before the trial. Extradition proceedings are under way. The women are now in shelters in Florida and have received some compensation after the smuggling ring’s assets were seized.[11]

Additional trafficking activities have involved making transit stops before entering the United States. In 1997, Canadian police arrested more than 40 people in connection with an international sex-slave ring that involved the sale of hundreds of Asian women into North America. Women were recruited in Malaysia and Thailand, taken into Canada on visitor’s permits, and sold into prostitution. They were told they had debts of US$30,000 that they had to work off. Police said as many as a dozen women a week were brought into Canada and sold into prostitution.[12] They were continually exchanged among brothels in Canada, and some of the women were taken from Canada to San Jose and Los Angeles, California. Police arrested a madam in Canada and another in the United States on more than 135 prostitution-related charges.[13] The young women who were in prostitution had each accrued a “debt” of US$15,000 to a recruiter in their hometown and a debt of US$25,000 to a madam in the United States. They were not allowed to keep any money from their prostitution until they had paid off those debts.[14]

A similar network existed between Canada and Minneapolis, Minnesota. Asian women were brought to Canada before being trafficked into the United States. This ring benefited from lax border security between the United States and Canada as well as from various visa loopholes. Canada, for example, does not require that Korean visitors obtain tourist visas before entering the country. Some Korean women entered Canada legally before being moved into the U.S. prostitution circuit. After arriving in Minnesota, the women were moved around within the area to avoid detection.[15]

Other criminal networks use Mexico as a transit country into the US. One ring, involving Ukrainian traffickers and women, brought women from Kiev, Ukraine, to Mexico City before driving or flying them to Los Angeles, California. While in Mexico, the women received training on how to look and act like Americans and how to say “United States citizen” without an accent.[16] Authorities uncovered the ring by happenstance when a misplaced videotape made by the traffickers ended up in the hands of the Federal Bureau of Investigation. In another instance, a couple recruited women from Moscow, Russia, and flew them to Mexico City. They then brought the women across the border to San Diego, California. The man bragged of his ties to organized crime as a way of keeping the women in line.[17] Mexico serves as a convenient transit stop because existing smuggling networks (coyotes) already have strong networks for illegal border crossing.              

Trafficking for purposes of sexual exploitation other than prostitution also occurs in the United States. Women from Russia have been smuggled into Alaska to work as exotic dancers.[18] Several Russian immigrants to the United States concocted a scheme of trafficking Russian women to Alaska to work as exotic dancers and began taking recruits. The recruiters only trafficked women they found to be attractive enough.[19] The traffickers lied to the women about job prospects in Alaska to convince them to emigrate to the U.S. When the women arrived in Alaska and were told to dance nude, they at first refused to cooperate and said that they wanted to go home. But traffickers had confiscated their passports and return plane tickets. The traffickers would not return these documents until the women had earned enough money dancing to pay for the cost of trafficking them into the country. The traffickers further isolated the women, threatened them, monitored their calls, confiscated their money, and kept all the earnings.

Women from Riga, Latvia, were also trafficked to Chicago, Illinois, for exotic dancing.[20] In this instance, the recruiter went to Riga to help the women obtain proper documentation. When the women arrived in Chicago, he took their documents, beat them, and threatened to murder their families in order to force the women into stripping.

Women from Japan have been trafficked to Hawaii to participate in nude chat rooms on Internet pornography sites.[21] In another instance, an American sex tourist in Mexico trafficked two boys, ages 16 and 15, to Denver, Colorado, to live with him.[22] Mail-order brides’ schemes and other scam marriage arrangements cover trafficking cases. One man trafficked a Chinese woman to become his wife in exchange for her acting as a sexual partner for his friends.[23] The man obtained the help of a former magistrate, who married the two in a van. That marriage allowed the Chinese woman to remain in the United States. In exchange, she was forced to have sex with his friends at least once a week. In a similar, well-publicized case, a high-powered landlord trafficked at least four girls from India into the United States for his sexual purposes.[24]

The documented instances of trafficking into the United States provide a grim picture of what the life of trafficked women is like. The traffickers use a variety of coercive techniques: false work opportunities,[25] illegal marriages,[26] and kidnapping.[27] Once here, the trafficked women suffer prison like conditions, beatings, rape, and forced abortions.[28] Women have had to pay off so-called debts as high as US$15,000 to captors before they will be released.[29]

Trafficking in children is also a significant problem in the United States. The bulk of this problem is exclusively a domestic one. Children are trafficked throughout the United States for purposes of commercial sexual exploitation. One couple from Dallas, Texas, kidnapped a girl from Milwaukee, Wisconsin, and forced her into prostitution. Tina, a 14-year-old from Dallas, has been trafficked to Atlanta, Georgia; New York, New York; Las Vegas, Nevada; Seattle, Washington; and Memphis and Nashville, Tennessee.[30] A Hmong gang in Fresno, California, kidnapped and enslaved girls between the ages of 11 and 14 for purposes of prostitution. The gang members would beat and rape the girls into submission.[31] Some of the girls would then take other girls across state lines to other Hmong communities.[32] In another case, for 17 years, men from St. Louis, Missouri, had recruited girls, mostly between 14 and 18 years old, from Wisconsin and Minnesota to work at massage parlors and escort services around the country.[33] Although the majority of these cases involved internal trafficking, in one case an 11-year-old girl from Portland, Oregon, was trafficked to Vancouver, Canada. After crossing the border under guise of being a couple’s child, the girl was forced into prostitution 12 hours a day.

In 1997, a ring that kidnapped and bought children from China was uncovered in Italy in transit to the United States.[34] That case involved a 12-year-old girl who was sold by her parents for US$40,000 to an international pedophile ring. She was transported from China to Bangkok, Thailand, and from there to Milan, Italy, where the traffickers were apprehended. She was on her way to Miami, Florida, where she was to be used in a prostitution ring.[35] Law enforcement officials said that the yakuza, or Japanese mafia, and Snakeheads, the Chinese triad that deals in the trafficking of drugs and illegal immigrants, were behind the ring that specialized in sending Chinese children to the United States.[36] The girl told the police that, during her stay in Bangkok, she saw 15 more children between 10 and 15 years of age who were in similar situations.[37]

Related Activities

The United States is one of the largest attractions in the world for trafficking activity.[38]  In a 2001 study, the Coalition against Trafficking in Women found a strong correlation between the ethnic makeup of a region and the “requested” makeup of the women in prostitution.[39] For example, in Florida, where there is a large Spanish-speaking population, several instances were found of women being trafficked from Mexico and other parts of Latin America.

 The United States is a major source of sex tourists to Africa, Latin America, and Southeast Asia. Costa Rican immigration and law enforcement officials recently announced a campaign to crack down on sex tourism in their country. The officials said that most of the tourists came from the United States and Canada. In addition, American tourists have traveled to Cuba to engage in sex with children. Cuba has experienced a surge in child prostitution not seen in the country since the 1950s.[40] U.S. sex tourists have also been reported in Asia. In one case, a well-known concert pianist was found guilty of child prostitution and faces extradition to the United States to confront extraterritorial charges.[41]

The U.S. Immigration and Naturalization Service reported increases in the number of visa applications by women from Russia and other former Soviet republics. According to the U.S. Department of State, more than 124,000 visas were granted to Russian citizens alone in the 1990s. Although estimating the number of visa applicants who will be forced into prostitution in the United States is difficult, the number is believed to be significant.[42]

Related Countries

Cases of trafficking have been documented from Russia and Ukraine; from Malaysia, the Philippines and Thailand; from Brazil, Costa Rica, and Puerto Rico; and from Cameroon, China, the Czech Republic, and India. In Los Angeles alone, trafficking instances have involved women from Burma, Cambodia, Canada, China, the Czech Republic, El Salvador, Guatemala, Indonesia, Korea, Laos, Malaysia, Mexico, Peru, the Philippines, Romania, Russia, Thailand, and Vietnam.[43]

Trafficking routes from China, the Philippines, and Thailand to the Northern Mariana Islands (a U.S. territory) have also been discovered. The U.S. Department of Justice reported on 5 October 1999 that three individuals pled guilty to luring women from China to the Northern Mariana Islands, where they were held in slavery and forced into prostitution.[44]

LAW AND LAW ENFORCEMENT

The U.S. Trafficking Victims Protection Act of 2000

In the United States, although various legislative enactments have prohibited commercial sexual exploitation of women and children,[45] prior to 2000, no comprehensive law existed that “penalize [d] the range of offenses involved in the trafficking scheme.”[46] The Trafficking Victims Protection Act of 2000[47] is the first comprehensive law to address the various aspects of trafficking.

Domestic Trafficking and International Trafficking

First, the 2000 act addresses international trafficking as well as domestic trafficking,[48] recognizing that “[t]rafficking in persons is a transnational crime with national implications.”[49] In fact, the act’s primary focus is “to deter international trafficking and bring its perpetrators to justice.”[50] International trafficking, unlike domestic trafficking, involves arranging a person’s legal or illegal entry from the country of origin to the country of destination. The act acknowledges that “[b]ecause victims of trafficking are frequently unfamiliar with the laws, cultures, and languages of the countries into which they have been trafficked, because they are often subjected to coercion and intimidation including physical detention and debt bondage, and because they often fear retribution and forcible removal to countries in which they will face retribution or other hardship, these victims often find it difficult or impossible to report the crimes committed against them or to assist in the investigation and prosecution of such crimes.”[51] Removal or deportation of victims of international trafficking is an immigration law issue[52] that the act addresses by amending existing immigration law.[53]

Combating international trafficking requires cooperation of the countries of origin, transit, or destination. The act promotes cooperation among countries and sets minimum standards for the elimination of trafficking that these countries must satisfy, offers assistance to foreign countries to meet these minimum standards,[54] and provides for actions to be taken against governments failing to meet minimum standards including withholding of nonhumanitarian, non-trade-related assistance.[55]

By addressing the issue of international trafficking as it affects interstate commerce, the 2000 act fills a gap in existing U.S. law. Although the Mann Act was designed to apply to cases of “interstate or foreign commerce,”[56] it was seldom used in cases of international trafficking.[57]

Sex Trafficking and Labor Trafficking

Second, the 2000 act is comprehensive in its definitional approach to the problem of trafficking in persons. It addresses not only sex trafficking but also labor trafficking. The act recognizes that “[t]rafficking in persons is not limited to the sex industry. This growing transnational crime also includes forced labor.”[58] Consequently, the act defines trafficking in persons to mean “(a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion or in which the person induced to perform such act has not attained 18 years of age, or (b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt-bondage, or slavery.”[59]

The 2000 act broadly defines sex trafficking to mean “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.”[60] A “commercial sex act” means “any sex act on account of which anything of value is given or received by any person.”[61]

Does the 2000 act require coercion as an element of sex trafficking? The act draws a distinction between sex trafficking and severe forms of sex trafficking. Whereas sex trafficking means “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act,”[62] if such an act is “induced by force, fraud, or coercion,” it is considered a severe form of trafficking.[63] If the person induced to perform such an act has not attained 18 years of age, the trafficking of that person is also considered of a severe form, even in the absence of any “force, fraud, or coercion.”[64] Only severe forms of sex trafficking trigger the application of the enforcement provisions of the 2000 act.

The act adopts a broad definition of labor trafficking as well. Congress recognized that the existing judicial interpretation of the involuntary servitude statutes, which requires use or threatened use of physical or legal coercion, “exclude[s] other conduct that can have the same purpose and effect.”[65] This narrow test was articulated by the U.S. Supreme Court in United States v. Kozminski,[66] where the Supreme Court held that the term “involuntary servitude” does not extend beyond the use or threatened use of physical or legal coercion.[67]

The 2000 Act defines “involuntary servitude” as any “condition of servitude induced by means of (a) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint, or (b) the abuse or threatened abuse of the legal process.”[68] Consequently, under the act, physical coercion is not always required in cases of involuntary servitude. Any “serious harm”[69] would suffice. Also sufficient is the defendant’s “state of mind” or a belief on the part of the trafficked person that he or she would suffer serious harm or physical restraint in the event of refusal to enter into or continue the condition of servitude.[70] Moreover, although the threat of harm or physical restraint is very often directed at the trafficked person, the condition of involuntary servitude also exists if such action is directed at “another person,”[71] such as a member of the trafficked person’s family.

Forced labor is similarly defined to include providing or obtaining the labor or services of a person “(1) by threats of serious harm to, or physical restraint against, that person or another person; (2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process.”[72] Thus, the 2000 act recognizes forced labor as a form of labor trafficking different from sex trafficking, although sex trafficking very often involves the elements of forced labor.[73]

Prevention, Protection, and Prosecution

Third, the 2000 act is also comprehensive in addressing the various means of combating trafficking, including prevention,[74] protection,[75] and prosecution.[76] Unlike the Mann Act, whose aim is to criminalize the behavior of the prostituted woman,[77] the 2000 act focuses on the protection of victims of trafficking in addition to ensuring “just and effective punishment of traffickers.”[78] The 2000 act recognizes that victims of trafficking “are repeatedly punished more harshly than the traffickers themselves”;[79] that “victims of severe forms of trafficking should not be inappropriately incarcerated, fined, or otherwise 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”;[80] and that trafficking is combated “by prescribing appropriate punishment, giving priority to the prosecution of trafficking rather than punishing the victims of such offenses.”[81]

Preventive Measures

On the preventive level,[82] the 2000 act encourages international initiatives that provide economic alternatives for potential victims of trafficking, including micro-credit lending programs, job training and counseling,[83] educational programs,[84] promotion of women’s participation in economic decision making,[85] advancement of their roles in their countries,[86] and public awareness programs “of the dangers of trafficking and the protections that are available for victims of trafficking.”[87] Protection and assistance for victims of trafficking in other countries under the 2000 act[88] include establishing programs and initiatives in foreign countries “to assist in the safe integration, reintegration, or resettlement, as appropriate, of victims of trafficking”[89] and enhancing cooperative efforts among foreign countries to achieve those objectives.[90]

The act makes victims in the United States who are subject to severe forms of trafficking in persons[91] eligible for benefits and services under federal or state programs regardless of their alien status.[92] The act provides for protection of the trafficked persons while they are in custody of the federal government. This protection includes providing shelter, medical care, and confidentiality of their identity.[93]

A New Visa Status for the Trafficked Person

More significantly, the act allows victims of severe forms of trafficking who may be potential witnesses to such trafficking to become temporary residents of the United States.[94] It also permits up to 5,000 victims of trafficking a year to receive permanent resident status after 3 years from issuance of their temporary residency visas,[95] provided that they would “suffer extreme hardship involving unusual and severe harm upon removal from the United States.”[96]

This new visa status for a trafficked person is important because the victim does not have to satisfy the strict conditions for asylum set by U.S. courts.[97] It also signifies a shift in the immigration law policy, which traditionally treats a trafficked person as an illegal alien who is subject to deportation.[98] The 2000 act also prohibits admission of an alien to the United States if “there is a substantial reason to believe that the alien has committed an act of a severe form of trafficking in persons” as defined by the act.[99]     

Witness Protection

The 2000 act adds victims of trafficking to the witness protection program regulated by the Victim and Witness Protection Act (VWPA),[100] which provides protection to a witness in proceedings concerning “an organized criminal activity or other serious offense”[101] if “an offense involving [a] crime of violence directed at the witness with respect to [such] proceedings, … is likely to be committed.”[102] For the purpose of applying this rule to victims of trafficking in persons, the 2000 act considers any trafficking violation under the act “an organized criminal activity or other serious offense.”[103] Protection under the VWPA covers financial assistance[104] such as housing,[105] living expenses,[106] employment,[107] and “other services necessary to assist the person in becoming self-sustaining.”[108] Protection also includes ensuring confidentiality of the witness’s identity[109] in consideration for that person’s testimony.[110]

Criminalization and Penalties

The 2000 act strengthens prosecution and punishment of traffickers. Section 112 increases the penalty for the crimes of peonage,[111] enticement into slavery,[112] and sale into involuntary servitude[113] from 10 years to 20 years,[114] which may be increased to any term of years or life in cases involving aggravated circumstances, including death, kidnapping, an attempt to kidnap, aggravated sexual abuse, the attempt to commit aggravated sexual abuse, or an attempt to kill.[115]

The act creates new criminal offenses[116] including forced labor; trafficking with respect to peonage, slavery, involuntary servitude, or forced labor; sex trafficking of children or trafficking by force, fraud, or coercion; and unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labor.[117]

The punishment for labor trafficking under the act is a fine or imprisonment for not more than 20 years, or both. The imprisonment may be increased to any term of years or life in cases of aggravated circumstances, such as if death results from trafficking or if trafficking includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill.[118]

The punishment for sex trafficking, in the absence of force, fraud, or coercion, or if the person transported had attained the age of 14 years at the time of commission of such an offense, is a fine, imprisonment for not more than 20 years, or both. The imprisonment increases to any term of years or life if the trafficking was effected by force, fraud, or coercion, or if the person transported is a minor who is under the age of 14 years at the time of the commission of the offense.[119]

Where a person “destroys, conceals, removes, confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person in furtherance of trafficking,” the punishment is a fine, imprisonment for not more than 5 years, or both.[120] However, this punishment does not apply to victims of trafficking.[121]

Conviction of any of these new criminal offenses would subject the convicted person to forfeiture of his or her assets.[122]

Civil Remedy: The Right to Compensation

Does the trafficked victim have a civil remedy under the 2000 act? It has been suggested[123] that a victim of trafficking should have a civil remedy under the Racketeering Influenced and Corrupt Organization Act (RICO).[124] RICO requires a “pattern of racketeering,” which may be difficult to prove in the absence of organized trafficking. It also requires an injury to the person’s “business or property,” a requirement that is hard for a trafficked person to satisfy.[125]

It has also been argued[126] that a victim of trafficking should be permitted to bring a suit under the Alien Tort Claims Act (ATCA).[127] ATCA gives federal courts jurisdiction over any civil action filed by an alien that is based on a tort “committed in violation of the law of nations or a treaty of the United States.”[128] However, ATCA was never used in cases of trafficking of persons. The 2000 act recognizes the right of the trafficked victim to a court order of restitution to compensate such a victim “the full amount of the victim’s losses,”[129] in addition to any other civil sanctions authorized by law.[130]

Effective Implementation: The Establishment of a New Task Force

The 2000 act provides for effective implementation mechanisms. First, it calls for the establishment of an interagency task force to monitor and combat trafficking,[131] as well as an office within the U.S. Department of State to provide support for the task force.[132] The task force will be responsible for coordinating the implementation of the act;[133] evaluating the progress of the United States and other countries in prevention, protection of victims of trafficking, and prosecution of traffickers;[134] collecting data regarding domestic and international trafficking;[135] enhancing cooperation among countries of origin, transit, and destination in combating trafficking;[136] examining the role of sex tourism in the exploitation of women and children;[137] and engaging in consultation with governmental and nongovernmental organizations to advance the purposes of the act.[138]

An Annual Report: The Status of Trafficking in Persons

Second, the 2000 act requires the secretary of state to submit an annual report[139] to Congress detailing the status of severe forms of trafficking in persons in the different countries and their compliance or efforts of compliance, if any, with the minimum standards for the elimination of trafficking as stipulated in section 108 of the act.[140] Section 108 sets four standards a government should achieve: (1) prohibiting severe forms of trafficking and punishing of acts of trafficking;[141] (2) prescribing the appropriate punishment of acts of sex trafficking that involve aggravated circumstances such as force, fraud, coercion, rape, kidnapping, or death, or that are directed against a minor;[142] (3) prescribing punishment of any act of a severe form of trafficking in persons that is sufficiently stringent to deter the offense;[143] and (4) taking efforts to eliminate severe forms of trafficking in persons.[144]

In determining whether a government of a particular country does not meet minimum standards, several factors should be considered including (1) whether the government of the country investigates and prosecutes acts of trafficking in persons in its territory,[145] protects and assists victims of severe forms of trafficking,[146] adopts preventive measures to deter severe forms of trafficking,[147] cooperates with other governments in combating severe forms of trafficking,[148] and extradites persons charged with severe forms of trafficking;[149] (2) whether the law enforcement agencies of the country effectively respond to the problem of trafficking;[150] and (3) whether public officials who participate in or facilitate trafficking are investigated and prosecuted.[151]

By addressing the various forms of trafficking in persons, prescribing effective measures to combat trafficking, strengthening the punishment of traffickers, and protecting the victims of trafficking, the Trafficking Victims Protection Act of 2000 provides a comprehensive legislative enactment that can serve as a model for other legal systems considering drafting laws to prevent, suppress, and punish trafficking in persons, especially women and children.

International Conventions

The United States has ratified the International Labor Organization (ILO) (105) on the Abolition of Forced Labor; the ILO Convention (182) to Eliminate the Worst Forms of Child Labor; and the UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.  The United States has signed the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children.

However, the United States has neither signed nor ratified the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families or the Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography.