Human Trafficking in the United States: Significance of the Trafficking Victims Protection Act (TVPA)
Sarbjeet Kaur, University of New Haven
One of the greatest human rights violations in today’s world is human trafficking, which has been growing at an alarming rate. Every year, 600,000 to 800,000 people are trafficked across international borders; 80% of them are females, of which about half of those are children (U.S. Department of State, 2004, p. 6). This epidemic is complicated, involving not just neighboring or within countries, but across different continents. In 2014, the number of different trafficking flows was more than 500 (UNODC, 2016, p. 1). With the United States being one of the top 10 destination countries, an outrageous number of persons are trafficked into this country every year. According to the annual report from the United Nations Office on Drugs and Crime (UNODC), most of the victims brought into North America are from Asia, Latin America, and the Caribbean. Most of these trafficked persons are brought into the country for sexual exploitation and forced labor, and the direst part is that due to the covert nature of this crime, it is hard to find the source countries for this trafficking (U.S. Department of State, 2009).
The foundation of federal human trafficking legislation is the Trafficking Victims Protection Act (TVPA, 2000), which provides a way to prosecute traffickers, combat human trafficking, and protect the victims. According to this Act, the U.S. Department of State is required to submit an annual “Trafficking in Person’s Report”, which highlights each country’s efforts and success rates of combating various forms of human trafficking, and rates them by way of 3 tiers. The countries that are rated as Tier 1 are considered most up to date with their efforts and success for combating human trafficking. Tier 2 countries are those attempting more efforts and growing success rates in combating human trafficking, and finally, countries rated as Tier 3 face “possible U.S. sanctions, such as the withholding of non-trade related, non-humanitarian assistance” (Hepburn & Simon, 2010).
According to the Department of Justice, trafficking in persons is defined as:
"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 The recruitment, harboring, transportation, provision, or obtaining 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." (Polaris, 2016)
With that being said, human trafficking can be likened to a modern-day form of slavery. More than 90% of trafficking cases involve labor and sex trafficking (UNODC, 2016). Human trafficking is a federal crime in the United States and is being constantly monitored by different federal agencies. This paper discusses recent TVPA reauthorizations and their efficacy, while reevaluating the “Tier-1” status of the U.S. One case highlights the U.S. diplomats who knowingly commit an act of coerced labor under the umbrella-like advantage of their diplomatic immunity. While examining the multiple folds of TVPA legislation, I hope to offer readers extended realities on the issue of human trafficking in the United States.
Trafficking Victims Protection Act (TVPA) 2000 and Subsequent Reauthorizations
As mentioned above, the TVPA is a federal law introduced in 2000 to combat human trafficking in the United States and internationally. To make sure that TVPA is being implemented appropriately, an Interagency Task Force also was created under this Act. In addition, the Act allows trafficked victims to stay as temporary residents in the United States under a T-Visa, and after 3 years, they are permitted to apply for a permanent residency in the country (“USCIS”, n.d.). TVPA has been amended four times since it was enacted in 2000. In 2003, the Trafficking Victims Protection Reauthorization Act (TVPRA) was introduced, which extended the rights of victims to prosecute their traffickers, including viable restitution and protection against deportation. This re-enactment also allowed human trafficking to be charged under the Racketeer Influenced Corrupt Organization (RICO) statute (Polaris, 2016). Additionally, it was required that the Attorney General report to the U.S. Congress every year on actions to combat human trafficking.
In 2005, TVPRA added a few more provisions under this act. TVPRA of 2005 focused on the protection and sheltering of the survivors of human trafficking, extended provisions on sex tourism, and added various grant programs to enable state and local enforcement to fight this issue. Moreover, government agencies were advised to refrain from entering any contracts with companies who might be involved in trafficking.
TVPRA of 2008 subsequently was passed, which included comprehensive details and definitions of different types of trafficking. It was mandated that the government provide the worker’s rights information to anyone who is entering the United States for work or education (Polaris, 2016). New human trafficking data reporting systems were added, and protections within T-Visa were extended. Another mandatory addition to this act was that the Uniform Crime Reporting (UCR) unit of the FBI would start collecting data on human trafficking, which is a principal process for gauging crime in the United States (Farrell & Reichert, 2017).
Lastly, TVPRA of 2013 introduced the Violence Against Women Act as an amendment, which launched programs to confirm that the U.S. citizens are not purchasing products made by trafficked victims in different countries. This legislation also announced emergency response by the state department towards the disaster struck areas in which there is a possibility of trafficking. Furthermore, state and local police department collaborations were formalized to prosecute traffickers (Polaris, 2016). According to the U.S. Department of State, penalties for performing an act of trafficking and benefiting financially (or otherwise) are quite stringent, including mandatory restitution and time in prison, depending upon the seriousness of the crime (Trafficking in Persons Report, 2018).
Effectiveness of the TVPA Legislation
Media play a significant role in portraying our opinion on human trafficking. Movies like “Taken” tend to shape our perspective, which mainly focus on sex trafficking, but the issue is far more complicated. While sex trafficking and forced labor are the main forms of trafficking, constituting 79% and 18% respectively, the remaining 3% includes other forms, such as forced begging, removal of organs, forced marriage, and child soldiers (Global Report on Trafficking in Persons, 2016). Trafficking cases are investigated by the Department of State, Department of Homeland Security, and the Department of Justice, and assistance is provided to victims during investigation and prosecution of such cases.
It is quite an accomplishment for the United States to be a Tier 1 country for about 10 years, but are we a Tier 1 country in all authenticity? The Trafficking Victims Protection Law is transnational legislation, designed by the United States, and countries who fail to comply or make significant efforts against human trafficking are rated poorly on the tier system. There has been significant debate and doubt about whether the U.S. government is doing the right thing by imposing their laws onto other countries (Hendrix, 2010).
Another issue with the TVPA is that the criminal justice system holds responsibility in assessing and determining position of the victim (Clawson et al., 2003). The purpose of the TVPA is stated as 3-Ps (i.e., Prosecution, Prevention, and Protection), but how can we accomplish that when the lives of trafficked persons are based on global market controls, and their major goal often is to provide food and shelter for their families.
Trafficked people typically are considered criminals more than victims. Most trafficked people are from countries with dreadful economic distress, which has lured them into the world of international trafficking. Law enforcement treating them as criminals can result in deportation following incarceration, producing further suffering (Noyori-Corbett & Moxley, 2016). If victims fail to prove exposure to severe forms of trafficking, authorities usually just send them back to their countries, which in turn places them in difficult if not lethal situations.
Another concern is that the United States has been making this a criminal justice issue, while it consists of severe human rights violations. Since the enactment of TVPA in 2000, various researchers have examined human trafficking, but surprisingly there are limited scientific findings on the topic due to difficulty with acquiring reliable and valid data. One of the realities of human trafficking in the United States is that U.S. diplomats and international organization employees are engaged in trafficking of domestic workers. This issue was not addressed until the 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act. Criminal prosecution with respect to trafficking is extremely rare in the United States, despite the 2008 Reauthorization Act, and the main reason is strong immunities. Vandenberg and Bessell (2016) found that criminal prosecutions were more likely to be brought against representatives with lesser immunity.
U.S. v/ Khobrabade (2014)
In severe cases, the U.S. government asks for an immunity waiver for prosecution, as in case of Devyani Khobrabade, the former Deputy Consul General of India (Vandenberg & Bessel, 2016, p. 603). In 2013, Devyani Khobrabade was arrested by the U.S. Diplomatic Security Service for making false statements to obtain a visa for her domestic worker, whom she didn’t pay according to the U.S. minimum wage standards. Further, it was found that Indian government officials tried to make false statements on Khobrabade’s diplomatic immunity status. Khobrabade currently is an international fugitive and is subject to immediate arrest upon arrival in the United States. This is one of three cases filed against the Indian consulate in New York. Unfortunately, most cases are not even reported, which gives more power to traffickers (Vandenberg & Bessell, 2016).
David v. Signal International, LLC. (2015):
Every year hundreds of people are trafficked to the United States for various purposes, but mainly for labor. After the destruction by Hurricane Katrina in 2005, many Indian workers were lured into working at the shipyards by assuring them that they would be able to get a permanent residency in the U.S. The company Signal International is a marine and fabrication company with shipyards in multiple states. They also serve as a contractor for multiple multi-national companies (ACLU, 2013). Approximately 500 workers were trafficked into the country on federal H2-B temporary guest worker program, and were forced to live in foul conditions, coerced labor, and were threatened of physical harm, if they try to file a suit against the employer. The hiring agents at the company seized the passports, and other travelling documents to keep them from leaving the country. The agents also forced them to pay an additional hefty amount of fees for recruitment, visa processing, and travel arrangements. These men were compelled to live at the company’s congested labor camps, where they were abused psychologically and were repeatedly denied compensation for their work (ACLU, 2013).
In 2008, 12 out of 500 trafficked victims filed a suit against Signal International. The case was represented by the American Civil Liberties Union (ACLU), along with other pro-bono law firms. In 2012, a federal judge in New Orleans ruled that the cases are supposed to be brought individually against Signal International. Subsequently, in 2013 mass lawsuits against the company was filed accusing them of violating the TVPA and RICO Act. In 2015, after a 4-week trial, the jury decided that the company along with a New Orleans lawyer and an India-based hiring agent were engaged in labor trafficking, racketeering, discrimination, and fraud. Signal International along with its representatives were ordered to pay $14 million to five of the victims. Following David v. Signal International, many pro-bono law firms started to work for the victims of trafficking in the United States (ACLU, 2013).
According to the United Nations, 71% of all trafficking victims are women and girls (UNODC, 2016). Women are mostly trafficked for the sex trade and domestic servitude. These women most likely are going to face problems with respect to the language and laws of the United States and will need someone who understands them and would be able to represent them in the court of law. The Human Trafficking Legal Center in Washington D.C., a team of pro-bono lawyers and researchers, works on this issue by fighting for the victims of human trafficking. There are many conditions which need to be met before woman are certified as “severely trafficked,” and even when they meet all the criteria, they are usually afraid that the government is going to retaliate, which keeps them from cooperating (Noyori-Corbett & Moxley, 2016).
Since human trafficking is measured primarily by the UCR, cases are underreported, and the ones that are reported contain many false positives. Farrell and Reichert (2017) found that few human trafficking cases were identified and prosecuted, but the UCR crime reporting can be improved by identifying human trafficking as Part- I violent crime and adding it to the crime reporting programs in all states, thereby incentivizing reporting of human trafficking cases and providing more enhanced training for police officials. Adverse psychological, social, and legal consequences should be the most important factors to address when framing the eligibility criteria for determining victim certification (Noyori-Corbett & Moxley, 2016). Social and economic factors play a large role in determining who has been trafficked. Shame is a factor that is associated with women who have been trafficked in many countries, which can keep them from leading a normal life. This is one of the reasons that restitution is so important in cases of human trafficking, but unfortunately it is hardly ever collected (Levy & Vandenberg, 2018).
It is imperative that the above-mentioned issues are kept in consideration during TVPA reauthorizations. To make effective reforms and policies to tackle human trafficking, each country has to hold a discourse on its own environmental factors. For example, the caste system in India is an issue to address while talking about reforms on human trafficking, and similarly, human trafficking in America cannot be addressed without a discussion on immigration (Hepburn & Simon, 2010). Developed countries taking economic and social welfare actions for trafficked women can help prevent trafficking much more than the underdeveloped countries, and this reflects that by working on the socio-economic status of trafficked women, we can achieve better results (Noyori-Corbett and Moxley, 2016). The goal of future research should focus on the social, psychological, and economic factors affecting vulnerable people in different countries, since TVPA not only affects the United States but also other countries.
While human trafficking is a global issue, if U.S. states individually put in efforts to combat human trafficking, such as watching over illicit supply chains, this could potentially stem trafficking flows. There are various “push” and “pull” factors that encourage trafficking, which can help the states in making informed decisions on policies and reforms. The push and pull dynamics symbolize the same factors; for example, income could be a push or pull factor, as in low-income countries that have a higher prevalence of trafficking than high-income countries (Blanton et al., 2018).
The United States has the power to steer in a direction that is most effective to combat human trafficking, and other countries may follow, to stay in the higher tier ranking. Strong fiscal capacity of the countries plays a big role in the fight against human trafficking, as it influences the funding decisions to equip the bureaucracies to combat human trafficking (Blanton et al., 2018). We should also focus on the relationship between the human rights community and the police, and how they can work together to work on this issue. The programs which were developed to help victims and combat human trafficking clearly are not practical enough, which is why this issue needs rigorous empirical research. This could be the base for future programs, such as investigating the relationship between immigration policies for different countries and key factors that affect those susceptible to trafficking.
American Civil Liberties Union (ACLU). (2013). David, et al. v. Signal International, LLC, et al. Retrieved from https://www.aclu.org/cases/david-et-al-v-signal-international-llc-et-al
Blanton, R. G., Blanton, S. L., & Peksen, D. (2018). Confronting human trafficking: The role of state capacity. Conflict Management and Peace Science, 073889421878987. doi: 10.1177/0738894218789875
Cho, S. (2015). Modeling for Determinants of Human Trafficking: An Empirical Analysis. Social Inclusion, 3(1), 2. doi:10.17645/si.v3i1.125
Clawson, H. J., Small, K. M., Go, E. S., & Myles, B. W. (2003). Needs assessment for service providers and trafficking victims (OJP-99-C-010). Washington, DC: U.S. Department of Justice.
Farrell, A., & Reichert, J. (2017). Using U.S. Law-Enforcement Data: Promise and Limits in Measuring Human Trafficking. Journal of Human Trafficking, 3(1), 39-60.doi:10.1080/23322705.2017.1280324
Hendrix, M. C. (2010). Enforcing the U.S. Trafficking Victims Protection Act in emerging markets: The challenge of affecting change in India and China. Cornell International law Journal, 43, 173–205.
Hepburn, S., & Simon, R. J. (2010). Hidden in Plain Sight: Human Trafficking in the United States. Gender Issues,27(1-2), 1-26. doi: 10.1007/s12147-010-9087-7
Key Legislation TVPA 2000. (2017, January 06). Retrieved November 12, 2018, from https://www.justice.gov/humantrafficking/key-legislation
Levy, A. F., & Vandenberg, M. E. (2018). United States Federal Courts’ Continuing Failure to Order Mandatory Criminal Restitution for Human Trafficking Victims (pp. 1-26, Rep.). The Human Trafficking Legal Center.
Noyori-Corbett, C., & Moxley, D. P. (2016). A transnational feminist policy analysis of the Trafficking Victims Protection Act. International Journal of Social Welfare, 26(2), 107-115. doi:10.1111/ijsw.12217
Polaris. (2016). Current Federal Laws. Washington D.C. Retrieved November 12, 2018, from https://polarisproject.org/current-federal-laws
Siskin, A., & Wyler, L. S. (2013). Trafficking in Persons: U.S. Policy and Issues for Congress. Washington, D.C.: Library of Congress, Congressional Research Service.
United Nations Office on Drugs and Crime (UNODC). (2016). Global Report on Trafficking in Persons, 2016. Vienna, Austria: United Nations Publication. Retrieved from http://www.unodc.org/documents/Global_Report_on_TIP.pdf
U.S. Customs and Immigration Services (USCIS). (n.d.). Victims of Human Trafficking: T Nonimmigrant Status. Retrieved from https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status
U.S. Department of State. (2005). U.S. cooperates with Europe to combat sex trafficking. Retrieved from http://www.america.gov/st/washfileenglish/2005/January/20050106133608cjsamoht4.548281e- 02.html.
U.S. Department of State. (2007). Trafficking in persons report, 2007. Washington, D.C: Office of the Under Secretary for Civilian Security, Democracy, and Human Rights. Retrieved from https://www.state.gov/documents/organization/34158.pdf
U.S. Department of State. (2009). Trafficking in Persons report. Washington D.C: Office of the Under Secretary for Civilian Security, Democracy, and Human Rights. Retrieved from http://www.state. gov/g/tip/rls/tiprpt/2009/index.htm.
U.S. Department of State. (2018). Trafficking in persons Report. Washington, D.C: Office of the Under Secretary for Civilian Security, Democracy, and Human Rights. Retrieved from https://www.state.gov/j/tip/rls/tiprpt/2018/
Vandenberg, M. E., & Bessell, S. (2016). Diplomatic immunity and the abuse of domestic workers: Criminal and civil remedies in the United States. Duke Journal of Comparative & International Law, 26(3), 595-633. Retrieved November 12, 2018, from https://scholarship.law.duke.edu/djcil/vol26/iss3/6/
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