| | | In the United States, although various legislative enactments have prohibited commercial sexual exploitation of women and children,[1] prior to 2000, no comprehensive law existed that “penalize [d] the range of offenses involved in the trafficking scheme.”[2] The Trafficking Victims Protection Act of 2000[3] 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,[4] recognizing that “[t]rafficking in persons is a transnational crime with national implications.”[5] In fact, the act’s primary focus is “to deter international trafficking and bring its perpetrators to justice.”[6] 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.”[7] Removal or deportation of victims of international trafficking is an immigration law issue[8] that the act addresses by amending existing immigration law.[9] 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,[10] and provides for actions to be taken against governments failing to meet minimum standards including withholding of nonhumanitarian, non-trade-related assistance.[11] 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,”[12] it was seldom used in cases of international trafficking.[13] 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.”[14] 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.”[15] 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.”[16] A “commercial sex act” means “any sex act on account of which anything of value is given or received by any person.”[17] 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,”[18] if such an act is “induced by force, fraud, or coercion,” it is considered a severe form of trafficking.[19] 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.”[20] 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.”[21] This narrow test was articulated by the U.S. Supreme Court in United States v. Kozminski,[22] where the Supreme Court held that the term “involuntary servitude” does not extend beyond the use or threatened use of physical or legal coercion.[23] 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.”[24] Consequently, under the act, physical coercion is not always required in cases of involuntary servitude. Any “serious harm”[25] 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.[26] 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,”[27] 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.”[28] 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.[29] Prevention, Protection, and Prosecution
Third, the 2000 act is also comprehensive in addressing the various means of combating trafficking, including prevention,[30] protection,[31] and prosecution.[32] Unlike the Mann Act, whose aim is to criminalize the behavior of the prostituted woman,[33] the 2000 act focuses on the protection of victims of trafficking in addition to ensuring “just and effective punishment of traffickers.”[34] The 2000 act recognizes that victims of trafficking “are repeatedly punished more harshly than the traffickers themselves”;[35] 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”;[36] and that trafficking is combated “by prescribing appropriate punishment, giving priority to the prosecution of trafficking rather than punishing the victims of such offenses.”[37] Preventive Measures On the preventive level,[38] the 2000 act encourages international initiatives that provide economic alternatives for potential victims of trafficking, including micro-credit lending programs, job training and counseling,[39] educational programs,[40] promotion of women’s participation in economic decision making,[41] advancement of their roles in their countries,[42] and public awareness programs “of the dangers of trafficking and the protections that are available for victims of trafficking.”[43] Protection and assistance for victims of trafficking in other countries under the 2000 act[44] include establishing programs and initiatives in foreign countries “to assist in the safe integration, reintegration, or resettlement, as appropriate, of victims of trafficking”[45] and enhancing cooperative efforts among foreign countries to achieve those objectives.[46] The act makes victims in the United States who are subject to severe forms of trafficking in persons[47] eligible for benefits and services under federal or state programs regardless of their alien status.[48] 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.[49] 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.[50] 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,[51] provided that they would “suffer extreme hardship involving unusual and severe harm upon removal from the United States.”[52] 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.[53] 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.[54] 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.[55] Witness Protection The 2000 act adds victims of trafficking to the witness protection program regulated by the Victim and Witness Protection Act (VWPA),[56] which provides protection to a witness in proceedings concerning “an organized criminal activity or other serious offense”[57] if “an offense involving [a] crime of violence directed at the witness with respect to [such] proceedings, … is likely to be committed.”[58] 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.”[59] Protection under the VWPA covers financial assistance[60] such as housing,[61] living expenses,[62] employment,[63] and “other services necessary to assist the person in becoming self-sustaining.”[64] Protection also includes ensuring confidentiality of the witness’s identity[65] in consideration for that person’s testimony.[66] Criminalization and Penalties The 2000 act strengthens prosecution and punishment of traffickers. Section 112 increases the penalty for the crimes of peonage,[67] enticement into slavery,[68] and sale into involuntary servitude[69] from 10 years to 20 years,[70] 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.[71] The act creates new criminal offenses[72] 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.[73] 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.[74] 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.[75] 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.[76] However, this punishment does not apply to victims of trafficking.[77] Conviction of any of these new criminal offenses would subject the convicted person to forfeiture of his or her assets.[78] Civil Remedy: The Right to Compensation Does the trafficked victim have a civil remedy under the 2000 act? It has been suggested[79] that a victim of trafficking should have a civil remedy under the Racketeering Influenced and Corrupt Organization Act (RICO).[80] 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.[81] It has also been argued[82] that a victim of trafficking should be permitted to bring a suit under the Alien Tort Claims Act (ATCA).[83] 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.”[84] 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,”[85] in addition to any other civil sanctions authorized by law.[86] 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,[87] as well as an office within the U.S. Department of State to provide support for the task force.[88] The task force will be responsible for coordinating the implementation of the act;[89] evaluating the progress of the United States and other countries in prevention, protection of victims of trafficking, and prosecution of traffickers;[90] collecting data regarding domestic and international trafficking;[91] enhancing cooperation among countries of origin, transit, and destination in combating trafficking;[92] examining the role of sex tourism in the exploitation of women and children;[93] and engaging in consultation with governmental and nongovernmental organizations to advance the purposes of the act.[94] An Annual Report: The Status of Trafficking in Persons Second, the 2000 act requires the secretary of state to submit an annual report[95] 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.[96] Section 108 sets four standards a government should achieve: (1) prohibiting severe forms of trafficking and punishing of acts of trafficking;[97] (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;[98] (3) prescribing punishment of any act of a severe form of trafficking in persons that is sufficiently stringent to deter the offense;[99] and (4) taking efforts to eliminate severe forms of trafficking in persons.[100] 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,[101] protects and assists victims of severe forms of trafficking,[102] adopts preventive measures to deter severe forms of trafficking,[103] cooperates with other governments in combating severe forms of trafficking,[104] and extradites persons charged with severe forms of trafficking;[105] (2) whether the law enforcement agencies of the country effectively respond to the problem of trafficking;[106] and (3) whether public officials who participate in or facilitate trafficking are investigated and prosecuted.[107] 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.
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[1] See, for example, Mann Act, Statutes at Large 36 (1910): 825, as amended, U.S. Code, vol. 18, sec. 2421 (1994 Supp.); Protection of Children against Sexual Exploitation Act of 1977; Child Pornography Prevention Act (CPPA) of 1996; Communications Decency Act of 1996; Children’s Online Privacy Protection Act of 1998; and INS section 652 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) regarding Mail-Order Bride Business. Under the last section, “each international matchmaking organization doing business in the United States shall disseminate to recruits, upon recruitment, such information as the Immigration and Naturalization Service deems appropriate, in the recruit’s native language, including information regarding conditional permanent residence status and the battered spouse waiver under such status, permanent residence status, marriage fraud penalties, the unregulated nature of the business engaged in by such organizations, and the study required under Section (c).” See generally Kathryn A. Lloyd, “Comment: Wives for Sale: The Modern International Bride Industry,” Northwestern Journal of International Law and Business 20, no. 2 (2000): 341; Vanessa B. M. Vergara, “Comment: Abusive Mail-Order Bride Marriage and the Thirteenth Amendment,” 94 Northwestern University Law Review 1547 (2000); Donna R. Lee, “Comment: Mail Fantasy: Global Sexual Exploitation in the Mail-Order Bride Industry and Proposed Legal Solutions,” Asian Law Journal 5 (1998): 139; Christine S. Y. Chin, “Comment: The Mail Order Bride Industry, The Perpetuation of Transnational Economic Inequalities and Stereotypes,” University of Pennsylvania Journal of International Economic Law 17 (1996): 1155; and Eddy Meng, “Note: Mail Order Brides: Gilded Prostitution and the Legal Response,” University of Michigan Journal of Law Reform 28 (1994): 197. [2] Section 102(b)(14) of the Trafficking Victims Protection Act of 2000, PL 106–386, Statutes at Large 114 (2000): 1464. [3] The Trafficking Victims Protection Act was passed as part of the Victims of Trafficking and Violence Protection Act of 2000. The Trafficking Victims Protection Act contains 13 sections: section 101 (Short Title); section 102 (Purposes and Findings); section 103 (Definitions); section 104 (Annual Country Reports on Human Rights Practices); section 105 (Interagency Task Force to Monitor and Combat Trafficking); section 106 (Prevention of Trafficking); section 107 (Protection and Assistance for Victims of Trafficking); section 108 (Minimum Standards for the Elimination of Trafficking); section 109 (Assistance to Foreign Countries to Meet Minimum Standards); section 110 (Actions against Governments Failing to Meet Minimum Standards); section 111 (Actions against Significant Traffickers in Persons); section 112 (Strengthening Prosecution and Punishment of Traffickers); and section 113 (Authorizations of Appropriations). For a discussion of the Trafficking Victims Protection Act, see Sabrina Feve and Christina Finzel, “Trafficking of People,” Harvard Journal on Legislation 38 (2001): 279. [4] The 2000 act, however, in defining the criminal offense of “sex trafficking of children by force, fraud, or coercion,” does not explicitly refer to “foreign commerce.” It merely provides for sex trafficking “in or affecting interstate commerce.” See note 57 and accompanying text. [6] Ibid. The section further provides that the “United States must work unilaterally and multilaterally to abolish the trafficking industry by taking steps to promote cooperation among countries linked together by international trafficking routes. The United States must also urge the international community to take strong action in multilateral force to engage recalcitrant countries in serious and sustained effort to eliminate trafficking and protect trafficking victims.” [8] “It is important to characterize trafficking as a human rights issue with immigration implications, rather than an immigration issue with human rights implications.” Becki Young, “Note: Trafficking of Humans across United States Borders: How United States Laws Can Be Used to Punish Traffickers and Protect Victims,” Georgetown Immigration Law Journal 13 (1998): 73. [9] See section 101(a)(15) of the Immigration and Nationality Act (U.S. Code, vol.8, section 1101(a)(15)); section 625(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (PL 104–208, Statutes at Large 110 (1920): 3009; section 240 of the Immigration and Nationality Act (U.S.Code, vol. 8, section 1229(a)); and section 245 of the Immigration and Nationality Act (U.S. Code, vol. 8, section 1255). [10] The 2000 act amends the Foreign Assistance Act of 1961 (U.S. Code, vol. 22, sections 2151 et seq.) by adding a provision authorizing the president to provide assistance to foreign countries to meet the minimum standards for the elimination of trafficking with respect to drafting laws on the prohibition and punishment of trafficking, investigating and prosecuting traffickers, protecting victims of trafficking, and expanding the exchange programs and international visitor programs for governmental and nongovernmental personnel involved in combating trafficking. [11] See section 110 of the 2000 act. [12] The Mann Act provides that “anyone who knowingly transports any individual in interstate or foreign commerce, or in any territory or possession of the United States, with intent that such individual engages in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title or imprisoned not more than 5 years or both” section 2421, White Slave Traffic (Mann) Act, chapter 395, Statutes at Large 36: (1910): 825 (codified as amended at U.S. Code, vol. 18, sections 2421–24 (1994). For discussion of the Mann Act, see Michael Conant, “Federalism; The Mann Act; and the Imperative to Decriminalize Prostitution,” Cornell Journal of Law and Public Policy 5 (1996): 99. For cases applying the Mann Act to interstate commerce, see. United States v. Footman, 215 F.3d 145 (2000) (upholding conviction of a pimp for running a ring of prostitutes who were transported across states lines from Massachusetts to Delaware); and United States v. Marks, 274 F.2d 15 (7th Cir. 1959) (“The statute is aimed at prevention of transportation of a female in interstate commerce for purpose of commercial and noncommercial vice.”). [13] See Becki Young, supra note 52, at 86. For cases applying the Mann Act to foreign commerce, see United States v. Castaneda, 239 F.3d 978 (2001). In this case, the appellant, a co-owner of the Mood and Music Night Club in Saipan, Northern Mariana Islands, recruited three young women from the Philippines for waiting tables and singing. The women were told, at the time of their hiring, that the job included “greeting customers at the door of the club with a kiss, sitting with customers, and perhaps holding their hands.” They signed Personnel Rules and Policies, a booklet that prohibited employees from engaging in prostitution. They, however, were forced to line up for selection by male customers to provide the men with sexual services in private rooms. The women stopped working, and one of them filed a complaint with the Federal Bureau of Investigation. An arrest was made. The appellant was found guilty, was indicted, and sentenced to 12 months’ imprisonment. In supporting the application of the “vulnerable victim enhancement” doctrine to this case, Judge Silverman, dissenting, stated: (1) “The victim in this case was tricked into leaving a foreign country on the promise of a legitimate job”; (2) “As a direct result of this deception, she was stranded in a foreign country and as found by the district judge, ‘couldn’t just pack up and go home’”; (3) “Because the victim was an indentured non-resident alien worker, she could not work elsewhere,” and “she was forced to participate in the prostitution activity.” See also United States v. Lopez, 234 F.3d 217 (2000), in which the defendant was convicted for traveling to Mexico for the purpose of engaging in a sexual act with a juvenile under section 2423(b) of the Mann Act.; and Simpson v. United States, 245 F. 278 (9th Cir. 1917), in which a woman was induced to travel from California to Mexico to manage a house of prostitution. [14] Section 102(b)(3). See also section 102(b)(6), which states, “victims are often forced through physical violence to engage in sex acts or perform slavery-like labor”; section 102(b)(4), which states, “traffickers also buy children from poor families and sell them into prostitution or into various types of forced or bonded labor”; and section 102(b)(12), which states, “trafficking in persons substantially affects interstate and foreign commerce. Trafficking for such purposes as involuntary servitude, peonage, and other forms of forced labor has an impact on the nationwide employment network and labor market.” [22] 487 U.S. 931 (1988). [23] For other cases interpreting labor trafficking under the involuntary servitude statutes, see United States v. Alzanki, 54 F.3d 1994 (1st Cir. 1995), cert. denied, 516 U.S. 1111 (1996), which found that servitude exists when a person, through actual or threatened use of physical or legal coercion, such as threats of deportation or loss of visa status, intentionally causes the oppressed reasonably to believe, given her vulnerabilities, that she has no alternative but to remain in involuntary service for a period of time; and United States v. Mussry, 726 F.2d 1448 (9th Cir. 1984), where the defendant enticed poor non-English-speaking Indonesian servants to travel to the United States, paid them little money for their services, withheld their passports and return airline tickets, and required them to work off their debt. In that case, the defendant’s actions violated the statutory prohibition against forced labor. [28] Section 112. The act adds the forced labor provision to the offenses stipulated in chapter 77 of title 18, United States Code. [29] It has been argued that forced prostitution is a form of forced labor that is subject to the involuntary servitude prohibition of the Thirteenth Amendment. See Neal Kumar Katyal, “Note: Men Who Own Women: A Thirteenth Amendment Critique of Forced Prostitution,” Yale Law Journal 103 (1993): 791. For cases interpreting forced prostitution as forced labor, see United States v. Sanga, 967 F.2d 1332 (9th Cir. 1992), in which a man forced a woman to work as a domestic maid for more than 2 years and forced her to have sex with him; United States v. Harris, 534 F.2d 207 (10th Cir. 1976), which affirmed a series of convictions for involuntary servitude arising out of a forced prostitution operation; Pierce v. United States, 146 F.2d 84 (5th Cir. 1944), which upheld the defendant’s conviction for involuntary servitude for forcing women into prostitution to pay him back for clothing he bought them; Bernal v. United States, 241 F. 339 (5th Cir. 1917), which upheld the conviction of a defendant who held three women in involuntary servitude to work in a brothel and threatened one of them with deportation if she refused to prostitute herself. [30] See section 106 (Prevention of Trafficking). [31] See section 107 (Protection and Assistance for Victims of Trafficking). [32] See section 112 (Strengthening Prosecution and Punishment of Traffickers). [33] See United States v. Sabatino, 943 F.2d 94 (1st Cir. 1991), which upheld the conspiracy conviction of a wife who played an active role in two prostitution businesses her husband ran, an “escort service” and “health club”; United States v. Snow, 507 F.2d 22 (7th Cir. 1974), which states “It now appears settled that prostitution or other immoral conduct need not be the sole reason for the transportation. The Act may be violated if prostitution is a dominant or a compelling and efficient purpose.”; United States v. Hamilton, 456 F.2d 171 (3rd Cir. 1972), in which it was found, under the Mann Act, that “knowledge that the girl is under 18 years of age is not of the proof requisite by the government in order to sustain a conviction”); Cleveland v. United States, 329 U.S. 14 (1946), in which Mormons who transported wives of polygamous marriages across the state lines in private automobiles for purpose of cohabitation were convicted of violating the Mann Act); Gebardi v. United States, 287 U.S. 112 (1932), which states, “We perceive in the failure of the Mann Act to condemn the woman’s participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished.”; and Caminetti v. United States, 242 U.S. 470 (1917), which upheld convictions even though there was no evidence that the women were prostitutes or their actions were voluntary. [34] Section 102(a) provides “the purposes of this division are to combat trafficking in persons, a contemporary manifestation of slavery where victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” [35] Section 102(b)(17). The act also acknowledges that “in the United States, the seriousness of this crime and its components is not reflected in current sentencing guidelines, resulting in weak penalties for convicted traffickers.” [38] See section 106 (Prevention of Trafficking). [40] Section 106(a)(3) describes “programs to keep children, especially girls, in elementary and secondary schools, and to educate persons who have been victims of trafficking.” [51] Section 107(e) (Protection from Removal for Certain Crime Victims). [52] Section 107(f) (Adjustment to Permanent Resident Status). [53] U.S. courts have not decided whether a trafficked woman satisfies the conditions for asylum. It must be proven that sexual slavery is a form of gender persecution on account of the woman’s membership in a particular social group. See Maya Ragtu, “Note: Sex Trafficking of Thai Women and the United States Asylum Law Response,” Georgetown Immigration Law Journal 12 (1997): 145, and Anjana Bahi, “Home Is Where the Brute Lives: Asylum Law and Gender-Based Claims of Persecution,” Cardozo Women’s Law Journal 4 (1997): 33. See also, Nancy Kelly, “Gender-Related Persecution, Assessing the Asylum Claims of Women,” 26 Cornell International Law Journal 26 (1993): 625. [54] See note 87 and accompanying text. [55] Section 107(e)(2)(B). [56] Victim and Witness Protection Act of 1982, PL 97–291, Statutes at Large 96 (1982): 1249 (codified as amended in U.S. Code, vol. 18, chapter 224 (1984 and 1997 Supp.). [57] Section 3521(a) (Witness Relocation and Protection). [58] Ibid. The section also applies in the case of “an offense set forth in chapter 73 of this title directed at the witness, or a state offense that is similar in nature to either such offense.” Ibid. Chapter 73 addresses offenses related to obstruction of justice as follows: section 1501, Assault on process server; section 1502, Resistance to extradition agent; section 1503, Influencing or injuring officer or juror generally; section 1504, Influencing juror by writing; section 1505, Obstruction of proceedings before departments, agencies, and committees; section 1506, Theft or alteration of record or process; false bail; section 1507; Picketing or parading; section 1508, Recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting; section 1509, Obstruction of court orders; section 1510, Obstruction of criminal investigations; section 1511, Obstruction of state or local law enforcement; section 1512, Tampering with a witness, victim, or an informant; section 1513, Civil action to restrain harassment of a victim or witness; section 1515, Definitions for certain provisions, general provision; section 1516, Obstruction of federal audit; section 1517, Obstructing examination of financial institution; section 1518, Obstruction of criminal investigations of health care offenses. [59] Section 112 (Strengthening Prosecution and Punishment of Traffickers). [60] Victim and Witness Protection Act, U.S. Code, vol. 18, section 3521(b). [61] Section 3521(b)(1)(B). [62] Section 3521(b)(1)(D). [63] Section 3521(b)(1)(E). [64] Section 3521(b)(1)(F). [65] Section 3521(b)(1)(A) provides, “The Attorney General may, by regulation … provide suitable documents to enable the person to establish a new identity or otherwise protect the person.” Section 3521(b)(1)(G) permits the Attorney General to “disclose or refuse to disclose the identity or location of the person relocated or protected, or any other matter concerning the person or the program after weighing the danger such a disclosure would pose to the person, the detriment it would cause to the general effectiveness of the program, and the benefit it would afford to the public or to the person seeking the disclosure.” Section 3521(b)(1)(H) provides that the Attorney General may “protect the confidentiality of the identity and location of persons subject to registration requirements as convicted offenders under Federal and State Law, including prescribing alternative procedures to those otherwise provided by Federal or State Law for registration and tracking of such persons.” [66] See sections 3521(c) and (d). The issue of the credibility of a prostitute as a witness has been debated in foreign courts. For instance, the Supreme Court of India ruled that even a woman of easy virtue is entitled to privacy and equal protection of the law and that the testimony of the victim of police sexual abuse should be regarded as valid despite her past history and immoral character. Supreme Court of India, case no. 1 S.C.C. 57, decided 23 October 1990. Similarly, the Appellate Criminal Court of Honduras rejected the defendant’s assertion that the victim was engaged in “street prostitution” and thus her testimony should be disregarded. Appellate Criminal Court of Honduras, case no. 012-97, decided 4 April 1998. [67] Section 1581(a) provides that “whoever holds or returns any person to a condition of peonage, or arrests any person with intent of placing him in or returning him to a condition of peonage, shall be fined under this title or imprisoned not more than 10 years, or both.” [68] Section 1583 provides that “whoever kidnaps or carries away any other person, with the intent that such other person be sold into involuntary servitude, or held as a slave, or whoever entices, persuades, or induces any other person to go on board any vessel or to any other place with the intent that he may be made or held as a slave, or sent out of the country to be so made or held shall be fined under this title or imprisoned not more than 10 years, or both.” [69] Section 1584 provides that “whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 10 years, or both.” [70] Section 112(a)(1)(A). [71] Section 112(a)(1)(B). [75]Ibid. The section broadly defines acts of sex trafficking to apply to any person who “(1) … recruits, entices, harbors, transports, provides, or obtains by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1) ….” [79] See Lan Cao, “Note: Illegal Traffic in Women: A Civil RICO Proposal,” Yale Law Journal 96 (1987): 1297. [80] U.S. Code, vol. 18, sections 1961–68 (1994). [82] See Christopher M. Pilkerton, “Traffic Jam: Recommendations for Civil and Criminal Penalties to Curb the Recent Trafficking of Women from Post Cold War Russia,” Michigan Journal of Gender and Law 6 (1999): 221. [83] U.S. Code, vol. 28, section 1350 (1994). [85] Under section 1593(b)(3), “as used in this subsection, the term ‘Full amount of the victim’s losses’ has the same meaning as provided in section 2259(b)(3) and shall in addition include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201 et. seq.).” It has been observed that the application of the Fair Labor Standards Act in the trafficking context requires the existence of an employer-employee relationship, which may be difficult to prove in labor trafficking cases and which does not exist in sex-trafficking instances since prostitution is not recognized as legitimate form of employment. See Becki Young, “Note: Trafficking of Humans across United States Borders: How United States Laws Can Be Used to Punish Traffickers and Protect Victims,” Georgetown Immigration Law Journal 13 (1998): 73, 84. [87] See section 105 of the 2000 act (Interagency Task Force to Monitor and Combat Trafficking). [95] See section 110(b)(1). The first of these reports was released on 12 July 2001. The report evaluates the problem of trafficking in persons in only 83 countries, 12 of which are included in tier 1 (which contains those countries to which the minimum standards for the elimination of trafficking apply and whose governments fully comply with such standards) and 47 of which are included in tier 2 (which contains those countries to which the minimum standards for the elimination of trafficking apply and whose governments do not yet fully comply with such standards but are making significant efforts to bring themselves into compliance). Lastly, 24 are included in tier 3 (which contains those countries to which the minimum standards for the elimination of trafficking apply and whose governments do not fully comply with such standards and are not making significant efforts to bring themselves into compliance). The report does not contain any information on the status of severe forms of trafficking in the countries of Afghanistan, Algeria, Andorra, Antigua, Argentina, Armenia, Australia, Austria, Azerbaijan, the Bahamas, Barbados, Belize, Bhutan, Bolivia, Botswana, Brunei, Burundi, Cape Verde, the Central African Republic, Chad, Chile, Comoros, Croatia, Cuba, Cyprus, Denmark, Djibouti, Dominica, Ecuador, Egypt, Equatorial Guinea, Eritrea, Estonia, Fiji, Finland, the Gambia, Grenada, Guinea, Guinea-Bissau, Guyana, Iceland, Iran, Iraq, Ireland, Jamaica, Jordan, Kenya, Kiribati, North Korea, Kuwait, Latvia, Lesotho, Liberia, Libya, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi, Maldives, Malta, the Marshall Islands, Mauritania, Micronesia, Monaco, Mongolia, Mozambique, Namibia, Nauru, New Zealand, Nicaragua, Niger, the North Mariana Islands, Norway, Oman, Palau, Panama, Papua New Guinea, Paraguay, Peru, Portugal, Rwanda, Samoa, San Marino, São Tomé, Seychelles, Slovakia, Somalia, Saint Kitts, Saint Lucia, Saint Vincent, Suriname, Swaziland, Syria, Tajikistan, Tanzania, Tonga, Trinidad and Tobago, Tunisia, Turkmenistan, Tuvalu, the United States, Uruguay, Uzbekistan, Vanuatu, Venezuela, Yemen, Zambia, and Zimbabwe. [96] See section 110(b)(1). |
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