Contributed by Jennifer Podkul, an Equal Justice Works Fellow at Ayuda representing immigrant victims of human trafficking and other violent crimes. Jennifer has extensive experience representing immigrants in immigration and civil matters.
A battle is brewing on Capitol Hill that will affect some of the world’s most vulnerable people, victims of human trafficking.
Last month, Senate lawmakers introduced legislation (S. 3061) to reauthorize the Trafficking Victims Protection Act of 2000 (TVPA). And late last year, the House of Representative approved its own bill (H.R. 3887). Although both bills purport to combat trafficking, they differ in one critical respect. Specifically, the House-passed bill proposes a major change in the definition of trafficking, one that, quite ironically, will only serve to harm the very victims Congress intended to protect when it passed the TVPA in 2000.
Current law defines human trafficking to include labor or commercial sex performed under force, fraud or coercion and minors engaged in commercial sex. The definition of trafficking approved by the House, however, removes all together the requirement that force, fraud, or coercion be present in instances of commercial sex. This is not a minor change. The House definition essentially equates each instance of adult prostitution to a form of modern-day slavery, ignoring whether the individual in question is free to leave or not.
As someone who has represented dozens of trafficked persons, I am deeply concerned that such definitional change will harm my clients and others similarly situated. Take for example, Amina, a young woman from Morocco, who came into my office the day after she escaped from a home where she had been held for two years as a slave. Amina wanted to report the crime to federal law enforcement to stop her trafficker from enslaving anyone else. I helped Amina report this crime to federal law enforcement but sadly five months after reporting the crime, she is still waiting to be interviewed about her ordeal. This delay has reinforced an idea Amina’s trafficker repeatedly told her: that no one cares what happens to her.
Although the federal government is committed to investigating and prosecuting trafficking cases, it has very limited resources with which to do so, and federal law enforcement officials have not yet had time to interview Amina. If the House-approved definition is enacted into law, federal authorities will be required to spend their resources investigating prostitution cases in addition to trafficking cases and this in the end will harm victims of trafficking.
Congress should keep the internationally accepted definition of human trafficking, as defined in the TVPA 2000, to ensure victims of modern day slavery receive all the protections and attention they deserve.
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Not only will this bill hurt trafficking victims by forcing law enforcement to investigate more cases, it reinforces the idea that all prostitution is exploitation. This conflation of sex work and trafficking is extremely problematic and does not help anyone involved.
"This conflation of sex work and trafficking"
Blame sweden! Not only have they distorted their own laws with this mindset, but also are the biggest exporters of this school of thought.
The Trafficking Victims Protection Act (TVPA) enacted in 2000 is aimed at combating trafficking in persons, whose victims are predominantly women and children, to ensure punishment of traffickers and to protect its victims. The goal was noble but the law has in practice been inadequate. While the TVPA defines sex trafficking as "the recruitment, harboring transportation, provision or obtaining of a person for the purpose of a commercial sex act," it only criminalizes "severe forms of trafficking in persons." Since the TVPA was passed less than 70 sex trafficking cases have been successfully prosecuted. In fact, most of the trafficking convictions publicized by the Justice Department to date are Mann Act cases rather than TVPA cases. Unlike Ms. Podkul’s assertion, this failure is only in part due to shortage of resources. The bigger reason for few prosecutions is the difficulty in proving “force, fraud and coercion,” a requirement that poses a significant burden on victims, who are often reluctant to testify for a number of reasons, including fear or mistrust of law enforcement, threats by traffickers to harm them or their families or traumatic bonding with their captors.
The William Wilberforce Trafficking Victims Protection Reauthorization Act (H.R. 3887), which overwhelmingly passed the House of Representatives on December 4, 2007, aims to remedy the shortfalls of the TVPA. The Wilberforce Act incorporates the federal Mann Act that criminalizes anyone who transports a person across state lines for purposes of prostitution, making it much easier to prosecute sex trafficking cases. The Mann Act language lowers the burden of proof by just requiring that the trafficker “persuaded, induced or enticed” a person into prostitution "in or affecting interstate commerce." A showing of "force fraud and coercion" would constitute an aggravated trafficking offense under the Wilberforce Act.
Again to correct Ms. Podkul, such a broader definition will not target all women in prostitution . It will not target any women in prostitution but only those third party profiteers who are preying on the desperation of vulnerable women. The Wilberforce Act if passed will in fact strengthen law enforcement’s ability to crack-down on traffickers and help trafficking victims. The misinformation in Ms. Podkul’s column is doing a great disservice to trafficking victims.
Posted on behalf of Equality Now, (www.equalitynow.org)
How will the redefinition affect sex workers who cross borders?
Ideologically, I don't like the implication that everyone who migrates to sell sex is a victim of trafficking.
On the other hand, I can see how it might be beneficial to sex workers to be legally counted as victims rather than illegal immigrants.
Legally, victims of human trafficking have access to certain rights that other undocumented migrants do not, like eligibility for a T visa.
Will this law hurt the workers in other ways?
Is it common for people at Feministing to be called "pro-prostitution cheerleaders?" I noticed Ann Bartow at Feminist Law Professors says you are and that seemed a little harsh.
If Lakshmi Anantnarayan is correct that the wording change only brings Wilberforce into compliance with Mann then yes, Jennifer Podkul probably needs to stand corrected. And if, as Ann Bartow claims, increases to the budget will be sufficient to cover *both* Wilberforce's rather large expansion of scope *and* current non-sex-trafficking case backlog then again Podkul needs to stand corrected. And if the partisan neoconservative Bush administration apparatchiks in charge of enforcing Wilberforce will suddenly in good faith allocate resources toward both sex- and non-sex trafficking in proportion (roughly 50/50 according to E. Benjamin Skinner) then sure, Podkul is off the mark. But even then saying you're all "dishonest" or "pro-prostitution cheerleaders" seems a bit much.
figleaf
@iqonefiftynine, It absolutely will target all women in prostitution because in order to have sex for money someone has to pay you money... which means... they are "induc[ing] or entic[ing]" you to perform a commercial sex act. It's tautological. Here's an analogy: it's hard to get a conviction for attempted murder because of the difficulty in proving the element of intent, but that doesn't mean that attempted murder should be redefined to include every assault.
@Lakshmi Anantnarayan, I agree that migrant sex workers deserve rights, but calling them trafficking victims in order to give them T-visas is not the way to go about helping them. T-visas should be for people who were actually trafficked so that those cases can be addressed with the full capacity of the resources allocated for trafficking victims. Irregular migrant sex workers (or prostitutes, however you want to call them), like all undocumented migrants in the US, need other solutions—economic development in their home countries, more pathways for legal immigration, a stronger social support system... That doesn’t mean they need T-visas, which should be reserved for cases like the one Jennifer Podkul describes above and cases where women are held in sweatshops and brothels by force (fraud or coercion). (Also, note that a T-visa is available to trafficking victims even when the trafficker is not convicted, so it's not a standard that needs to be lowered as iqonefiftynine argues.)
we are struggling with these issues in rhode island. i heard professor donna hughes say that the 'force, fraud or coercion' phrase puts victims at risk to be harshly interrogated when defense lawyers look for reasons to say they were not forced.
but i'm also sceptical and worried about how the law would be used. the mann act itself has a bad history and clearly did not stop organized, exploitative trafficking. in rhode island a loophole in the law makes it difficult to prosecute prostitution that occurs indoors. the police want to 'close the loophole'. i am not sure what would happen if they had that power, and what would happen to the women.
we are struggling with these issues in rhode island. i heard professor donna hughes say that the 'force, fraud or coercion' phrase puts victims at risk to be harshly interrogated when defense lawyers look for reasons to say they were not forced.
but i'm also sceptical and worried about how the law would be used. the mann act itself has a bad history and clearly did not stop organized, exploitative trafficking. in rhode island a loophole in the law makes it difficult to prosecute prostitution that occurs indoors. the police want to 'close the loophole'. i am not sure what would happen if they had that power, and what would happen to the women.
"Imagine my surprise, then, when the Justice Department started a campaign against a new bill that would strengthen the government’s anti-human trafficking efforts. In a 13-page letter last year, the department blasted almost every provision in the new bill that would reasonably expand American anti-slavery efforts."
John R. Miller, former Director of the U.S. Office to Monitor and Combat Trafficking In Persons, opposed the Department of Justice's position on HR 3887. In a New York Times op-ed piece, Miller questioned the DOJ's 13-page letter attempting to lay out the bill's flaws.
Miller, known for citing a study on prostitutes that represented 130 of an estimated 500,000-1 million prostitutes living in U.S., asserts that "sex workers" should be called what they are -- victims -- and that prostitutes have no choice in the work they do.
Miller, known for his work as Ambassador-at-Large on International Slavery and an abolitionist position on prostitution, vehemently criticized the DOJ's decision to object to provisions in the bill that would impede state sovereignty rights. The bill also would misappropriate funds dedicated to anti-child exploitation work in order for the DOJ to prosecute prostitution-related crimes.
And rather than helping laborer trafficking victims and children, Miller wants the DOJ to help the U.S. go after sex tourists and pimps.