CRIMINALS OR VICTIMS?

THE IMPORTANCE OF DEFINING HUMAN TRAFFICKING
by JENNIFER CERVANTES
Posted on June 8, 2010

Human trafficking is the new buzzword among human-rights activists worldwide. While many Americans are sympathetic to the problem, there is a common misconception that it is largely relegated to third-world countries. After all, doesn’t the United States represent the very notion of freedom?

This misconception is not rooted in reality. Human trafficking has become one of the largest global industries – second only to the drug trade. It generates more than $32 billion annually.(2)  Of that, $15.5 billion – 49 percent of the world’s profits for human trafficking – comes from the United States and other industrialized nations.(3)  

Human trafficking has also enslaved some 27 million people worldwide.(4)  Nearly 18,000 foreign nationals are trafficked into the United States annually.(5)  While there is no exact estimate for how many U.S. citizens are sold into the trade, 200,000 U.S. children are viewed as at risk for trafficking.(6)

The federal government passed The Trafficking Victims Protection Act of 2000 in reaction to these alarming statistics. The act criminalizes trafficking within the United States and gives victims the opportunity to receive a specialized visa to stay in the country and get help.  In conjunction, the federal government also encouraged states to pass similar legislation.(7)  Yet, 20 state legislatures have not heeded this advice.(8)

DEFINITIONS MATTER

Simply put, these 20 states have conflated victims and criminals. To realistically abolish human trafficking within the United States, it is necessary for states to enact legislation that accurately defines the crime.(9)  

According to the U.S. Department of State, human trafficking is “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained eighteen years of age.” In addition, it is “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.”(10)   The majority of all human trafficking occurs in the sex-slave trade. Most of its victims are between 12 and 17.(11)

In the United States, having sex with a minor can result in statutory rape charges. But this clear-cut concept can be blurred when money is involved. If a man pays a 12-year-old girl for sex, is it statutory rape? In states that refuse to enact human-trafficking laws, men can generally walk away with little or no consequences if they pay for sex. The young girl, meanwhile, may be charged with prostitution.(12)

Because sex trafficking masks itself as prostitution, the general public does not feel outraged. The children are perceived to be criminals or sexual deviants or at best victims of their environment: desperate for survival, the kids “choose” to sell their bodies for profit. The real criminals hide in the shadows. An illicit network of traffickers, pimps, recruiters, brothel owners, and johns prey on vulnerable kids and force them into a life of sexual commerce.(13)

Donna Hughes, an activist against prostitution and human trafficking, told the U.S. House Committee on International Relations: “To not understand the relationship between prostitution and trafficking is like not understanding the relationship between slavery in the Old South and the kidnapping of victims in Africa and the transatlantic shipment of them to our shores.”(14)

 A SIMPLE SOLUTION

In many states with pending human-trafficking legislation, state prosecutors have opposed these bills, arguing that laws against human trafficking will conflict with existing prostitution laws.(15)  Where states have not defined human trafficking, however, there is a legitimate chance that states are prosecuting victims as criminals due to the number of minors being forced into the sex trade.

The Trafficking Victims Protection Act specifically narrowed sex-slave-trade victims to those under 18.(16)  It seems feasible for a state to limit the scope of the sex-slave trade to minors without infringing on prostitution laws. This would allow states to still prosecute adult women or men engaging in prostitution, while also protecting the many minors who are abused through the pretense of prostitution.

Under almost any circumstance, a minor cannot consent to sex with an adult without the adult risking a statutory rape charge. Why then does it matter whether these children are paid? With human trafficking, children are forced into prostitution to make money for someone else. Hence, laws against prostitution call for a supplemental definition of human trafficking specifically related to minors.

Going a step further, police departments should also be trained to recognize human-trafficking victims. Many police are not equipped to identify these victims because of the complexity of the problem. But with police training, states could better distinguish between prostitution and trafficking, making it easier to prosecute the right people.   

Human trafficking is a serious worldwide epidemic that has made serious inroads within U.S. borders.  It is imperative for the federal government and state governments to act in tandem to combat this modern-day slavery. States can expeditiously join the battle by carefully defining human trafficking, thus allowing minors forced into prostitution to be treated as victims and not criminals.  

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NOTES

1. Cervantes, Class of 2012, wants to use her law degree to combat human-rights abuses.
2. Polaris Project, Human Trafficking Statistics 1 (2008),
http://www.dreamcenter.org/new/images/outreach/RescueProject/stats.pdf.
3. Id.
4. Id.
5. Wisconsin Dep’t of Justice, Trafficking In Persons,
http://www.doj.state.wi.us/cvs/trafficking.asp#lawsLeg
(last visited Mar. 24, 2010).
6. Polaris Project, What is Human Trafficking?
http://www.polarisproject.org/content/view/26/47/
(last visited Mar. 24, 2010). 
7.   State Dep’t, Trafficking In Persons Report 6 (2008),
http://www.state.gov/documents/organization/105501.pdf
.
8. Humantrafficking.org,
http://www.humantrafficking.org/countries/united_states_of_america/helplines
(last visited Mar. 24, 2010). 
9. The Birmingham News, State Laws Sought On Human Trafficking 1 (2010),
http://blog.al.com/birmingham-news-stories/2010/02/state_laws_sought_on_human_tra.html
10. State Dep’t, Trafficking In Persons Report 6 (2008),
http://www.state.gov/documents/organization/105501.pdf
.
11. Not For Sale,
http://www.notforsalecampaign.org/about/slavery/ (last visited Mar. 26, 2010).  
12. Citizen USA, Ohio Identified as a Hub for Human Trafficking 1 (2007),
http://www.ccn-usa.net/news.php?id=492
.
13. Not For Sale,
http://www.notforsalecampaign.org/about/slavery/
(last visited Mar. 26, 2010).
14. Id.
15. Citizen USA, Ohio Identified as a Hub for Human Trafficking 1 (2007),
http://www.ccn-usa.net/news.php?id=492
.
16. State Dep’t, Trafficking In Persons Report 6 (2008),
http://www.state.gov/documents/organization/105501.pdf
.