Identifying and Assisting Identifying and Assisting Victims of Human Victims of Human

TraffickingTrafficking

Prof. Xin Ren, Ph.D.Criminal Justice Division

California State University, Sacramento

USArenx@csus.edu

Task Force opened 2,515 suspected incidents of human trafficking for investigation between January 2008 and June 2010A total of 389 human trafficking cases were confirmed involving 488 offenders and 527 victims90 percent of victims were female8 in 10 of cases were sex trafficking and 1 in 10 of cases were labor traffickingWhite (26%) and black (40%) were more likely to be victims of sex trafficking, while Hispanic (63%) and Asian (17%)were more likely to be victims of labor trafficking

Four-fifth of victims in confirmed commercial sex trafficking were US citizens (83%), while majority of victims in confirmed labor trafficking were undocumented aliens (67%) and qualified aliens (28%) Most confirmed human trafficking suspects were male (82%)62% of suspects in sex trafficking were black and 48% of suspects in labor trafficking were Hispanic Federal agencies are more likely to lead in labor trafficking investigation (29%) than in sex trafficking (7%)

RecruitingOR

HarboringOR

Moving OR

Obtaining

a person,

1

PROCESS

By

ForceOR

Fraud OR

Coercion

2

MEANS

For the purposes of

Involuntary ServitudeOR

Debt BondageOR

SlaveryOR

Sex Trade

3

END

• Trafficking Victims Protection Act (TVPA2000): Emphasizes three Ps (Prevention, prosecution, and protection)

• Human trafficking is defined as the recruitment, harboring, transportation, provision, or obtaining of a person for one of three purposes:– Labor or services, through the use of force, fraud, or coercion for the

purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery.

– A commercial sex act through the use of force, fraud, or coercion. – Any commercial sex act, if the person is under 18 years of age,

regardless of whether any form of coercion is involved.

• TVPA2000 also provides:

– Protection provided to trafficked persons through immigration relief and other benefits

– Funding for international efforts focuses on prevention

(Victims of Trafficking and Violence Prevention Act of 2000 can be found at www.ojp.usdoj.gov/vawo/laws/vawo2000/)

• Requires biennial reporting on the scope and characteristics of human trafficking in the U.S., using available data from state and local authorities.

• As part of an effort to meet these congressional mandates, the Bureau of Justice Statistics (BJS), in partnership with the Bureau of Justice Assistance (BJA), Northeastern University (NEU), and the Urban Institute (UI), developed the Human Trafficking Reporting System (HTRS).

42 Task Forces in 42 jurisdictions cover 25% of US residential populationAn incident-based reporting systemTo be confirmed as human trafficking:

The case must have led to an arrest and been subsequently confirmed by law enforcement, orThe victims in the case must

1) have had a "continuing presence" requested on their behalf, or 2) have received an endorsement for a T or U visa application

• 118 U.S.C. § 1581 Peonage (Debt Bondage)

• 18 U.S.C. § 1583 Enticement into slavery 

• 18 U.S.C. § 1584 Sale into Involuntary Servitude

• 18 U.S.C. § 1589 Forced Labor

• 18 U.S.C. § 1590 Trafficking Into Servitude

• 18 U.S.C. § 1591 Sex Trafficking

• 18 U.S.C. § 1593A Benefiting Financially from Peonage, Slavery, and Trafficking in Persons

• 18 U.S.C. § 1351 Fraud in Foreign Labor Contracting

• 1 8 U.S.C. § 1592 Document Servitude (up to 5 years)

• 18 USC § 1351: Fraud in Foreign Labor Contracting – Whoever knowingly and with intent to defraud recruits, solicits

or hires a person outside the United States for purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment shall be fined under this title or imprisoned for not more than 5 years, or both

• 18 USC § 1593A: Benefiting Financially from Peonage, Slavery, and Trafficking in Persons– Whoever knowingly benefits, financially or by receiving

anything of value, from participation in a venture which has engaged in any act in violation of section 1581(a), 1592, or 1595(a) [18 USCS § 1581(a), 1592, or 1595(a)], knowing or in reckless disregard of the fact that the venture has engaged in such violation, shall be fined under this title or imprisoned in the same manner as a completed violation of such section.

• 18 USC § § 1583-84, 1591-92 Obstruction• 18 USC § 1594 Trafficking Conspiracy

• Now includes:– “reckless disregard” of force, fraud or

coercion

• Additional Provision for minors– “reckless disregard” of minor age– No actual knowledge of minor age is required

• Defendant just needs “reasonable opportunity to observe” the victim • The government need not prove knowledge of

minor age

• 18 USCS § 1596 :

– In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581, 1583, 1584, 1589, 1590, or 1591 [18 USCS § 1581, 1583, 1584, 1589, 1590, or 1591] if--   (1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or   (2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender. 

• As of August 2009, 43 states have passed Criminal Anti-Trafficking Laws*

• 7 States have pending criminal legislation

• Most state laws do not offer comprehensive protections like the TVPA

*U.S Policy Alert, Polaris Project available at: www.polarisproject.org

• Trafficking requires the crossing of national or international borders

• Crime of trafficking must involve moving victims from one location to another

• Trafficking only involves foreign nationals, not US citizens

• You can consent to being trafficked• You can consent to labor exploitation

or slavery

Along with: physical/psychological/ sexual abuse/

physical threatsLook for: • Long hours• Little/No pay• Withholding documents• Threats of deportation• Threats to family members in home country • Isolation • Inhumane Living Conditions• Having to work when sick or/and no holidays• Not able to refuse customer’s illegitimate

requests

California State LawCalifornia State LawAB 22AB 22

Created a new felony Penal Code section 236.1 which prohibits Human Trafficking

prioritized victim protection along with prosecution including:

Caseworker PrivilegeAsset ForfeitureLEA Requirement for Law Enforcement

ImmigrantsImmigrants with legal documentation/status

StudentsImmigrants with work permitImmigrants married to US citizens

Illegal ImmigrantsEntered legally but over stayed their legal statusEntered illegally with legal documentsEntered illegally with legal documentsMexican seasonal/migrant workers

Non-immigrants (US Citizens)Runaway children

Curiosity Child abuseAngry with parentsDeceived or lured away by someone

Juvenile delinquentsStreet/homeless childrenDrug addictsSex workers

Victims refuse to cooperateVictims did not have any legal documentsVictims cannot help with identification

IlliterateMentally retardedFear Language barrierDo not want to be identifiedIncapacitated due to severe abuseLack of nationality (citizenship)

Part 2: Survivors Access to Federal and State Benefits

Criminal Prosecution Witness for criminal investigation and prosecution

Immigration relief or repatriation Social welfare benefits, medical and counseling

assistance Legal aids and assistance

Legal Aid Foundation, CAST (coalition against Slavery and Trafficking), Asian legal Foundation

Civil litigation Pro bono Legal Aid EEOC

Under the TVPA Victims Of Under the TVPA Victims Of Human Trafficking Are Entitled Human Trafficking Are Entitled

To:To:SafetyPrivacyInformationLegal representationBe heard in courtMedical assistanceLegal representation

Compensation for damages/injurySocial assistanceSeek residenceReturn homeFamily reunificationEmployment

Assistance needed for Trafficking Assistance needed for Trafficking SurvivorsSurvivorsTrafficked persons likely

suffer from serious physical, psychological and possibly sexual abuse.

An extensive network of culturally and linguistically appropriate services providers is required to meet their urgent and acute needs.

Interpretation Housing, food & clothing Medical care (emerg. & long

term) & health education Mental health care Legal & immigration services ESL training Independent living skills Safety planning Job placement & employment

education Human rights education

ImmigrationImmigration

Provided by the TVPAMust assist with criminal investigation and/ or prosecutionForms of Relief specific for Human Trafficking Victims:

Temporary relief through Continued PresencePossibility to adjust status to become a legal permanent resident through T-Visa or U-visa

Immigration Remedies for Victims of Immigration Remedies for Victims of TraffickingTrafficking

Short term: Continued Presence

Long term:

T-VisaTrafficking

U VisaViolent Crimes

What is Continued Presence (CP)?What is Continued Presence (CP)?

• Provides temporary immigration relief to potential witnesses who are victims of severe forms of trafficking

• Provides work authorization

• ONLY Federal law enforcement agents can request for a trafficking survivor to receive this benefits in the United States

Expansion of CP Eligibility Under the Expansion of CP Eligibility Under the TVPRA of 2008TVPRA of 2008

Law Enforcement SHALL take measures to protect the safety of trafficking victims including taking measures to protect family membersCP SHALL be extended if the individual has filed a civil action under Section 18 USC 1595 until the action is concluded.Materials about CP for State and Local Law Enforcement will be developed and distributed

Advanced Parole for Family MembersAdvanced Parole for Family MembersTVPRA Section 205; 8 U.S.C. § 1229(b)(6)TVPRA Section 205; 8 U.S.C. § 1229(b)(6)

Law Enforcement MAY submit written requests for parole for family members of trafficked persons Parole may be extended until final determination of the T-visa applicationVictims under 21:

the spouse, child, parent, or unmarried sibling under 18 Victims 21 years or older:

the spouse or child All Victims irrespective of age:

is a parent or sibling who LE determines to be in present danger of retaliation as a result of the victim’s escape from the severe form of trafficking or cooperation with law enforcement

What Is A T-Visa?What Is A T-Visa?

Enables certain victims of human trafficking to live and work in U.S. for four yearsCan petition to have spouses and children accompanyCan receive government benefits, including cash assistance for 8 monthsCan apply for Green card (Permanent Residence)

Who Is Eligible For A T-Visa?Who Is Eligible For A T-Visa?ELEMENTS:

Is or has been victim of severe form of trafficking in personsIs present in U.S., American Samoa, Northern Marianas on account of traffickingHas complied with reasonable request for assistance in investigation or prosecution of acts of trafficking

Children under 18 do not need to meet this criterion

Would suffer extreme hardship involving unusual and severe harm upon removal

What is the U Visa?What is the U Visa?• Provides immigration relief to victims of certain

criminal activity who suffered substantial physical or mental abuse as a result and who have been, are being, or are likely to be helpful to law enforcement

• Can petition to have spouses and children accompany

• Can apply for Green card

Qualifying Criminal ActivityQualifying Criminal Activity

T-Visa'‘Severe forms of trafficking in persons''

means:

• (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.

U Visa“Qualifying criminal activity” is defined by

statute to be

• activity involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law:

• Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes

What are the benefits?What are the benefits?State of California Department of Social Services

Refugee Cash Assistance (limit of 8 months state funded services, eligibility begins from date of the application for the benefits )Refugee Social Services (available for 60 months from the date of application for benefits)Food Stamps CALWORKs (limited to a five-year period for adults. Aid begins the date of application)Cash Assistance Program for Immigrants (CAPI)Employment Social ServicesIn-Home Supportive Services (IHSS) Programs

Personal Care Services Program (PCSP)IHSS Plus WaiverIHSS Residual Program

State of California Department of Health and Human Services• Refugee medical assistance• Medi-Cal• Healthy Families Program

Federal CertificationFederal Certification• Victims of a severe form of trafficking who have been

certified by the Department of Health and Human Services (HHS) are eligible for benefits to the same extent as refugees

Federal and state public assistance benefits, such as Refugee Cash and Medical Assistance, Temporary Assistance for Needy Families (TANF), Medicaid, Supplemental Security Income (SSI), and Food Stamps

Refugee self-sufficiency Matching Grant program and other ORR discretionary grant programs and ORR discretionary grant benefits programs for victims of trafficking

May be the only means by which victims of trafficking may be “made whole”

Life-changing Law enforcement declines to prosecute Discourages would-be-traffickers and employers exploiting

trafficked labor

Causes of Action Trafficking Victims Protection Act of 2003

Explicit right to civil action under 8 USC § 1595 TVPRA of 2008-No action may be maintained under this section unless it

is commenced not later than 10 years after the cause of action arose Prior to 2003-Implied rights of action under the Thirteenth

Amendment and its enabling statute California: AB 22 granted explicit right to civil action and treble

damages Fair Labor Standards Act Alien Tort Claims Act Migrant and Seasonal Agricultural Worker Protection Act Title VII of the Civil Rights Act Civil Rights Act of 1866 (“Section 1981”)

Civil LitigationLitigation against employers, traffickers, or buyers Immigration reliefs

T or U visaUnification of family

Dissolve Marriage or obtain marriage license Child custody and supportProperty divisionSpousal support

Return homeObtain legal travel documentationsFinancial assistance for travel

Criminal ProceedingAdvise victims for their rights, options, consequences, and protectionsRepresent victims in criminal investigation and prosecutionRepresent victims in restitution settlementsNotify victims upon release of offendersAdvise and Represent victims in applying for victim compensation fundWork with victim advocate in LE and DA offices

Compensation for Possible Civil Damages

Compensatory Damages Punitive Damages Nominal Damages Injunctive and Other Equitable Relief Liquidated Damages Statutory Damages Pre-judgment Interest Attorneys Fees and Costs AB 22 provides for treble damages if HT is

proven

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1964 law created the EEOC to investigate claims of discrimination and to work out settlements between worker and company5-Member Commission with a General Counsel; 50+ offices nationwide (15 Districts);1972: EEOC given authority to sue employers in federal court on behalf of employees; all $$ recovered goes to victims

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EEOC Enforces 4 LawsEEOC Enforces 4 Laws

Title VII of the Civil Rights Act Title VII of the Civil Rights Act | | 19641964

Equal Pay Act Equal Pay Act | 1963| 1963

Age Discrimination in Age Discrimination in Employment Act Employment Act | 1967| 1967

Americans with Disabilities Americans with Disabilities Act Act | 1990| 1990

Represents victims against the accused employers Deny benefits Withholding wages Confiscate ID/legal documents Sexual harassment in work place Sexual assault and rape against domestic or farm workers

(legal or illegal) Physical abuse Sex discrimination Forced to perform illegal acts in the course of employment

Secondary Victimization from criminal investigation Secondary victimization from family and community Social isolation and discrimination Financial hardship Victims physical safety Possible Social reintegration

Job training Financial aid relocation

Contact Information: Prof. Xin RenCriminal Justice DivisionCalifornia State University, Sacramentorenx@csus.edu916-278-6381