“This project was supported by Grant #2017-MC-FX-K051 awarded by the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect those of the Department of Justice.”
The last two decades of the anti-trafficking movement have brought about significant change. Largely due to awareness, education, and the development of federal and state legislation, we have seen a paradigm shift on the way in which our world speaks about, views, and treats those who have been victimized and/or who have survived human trafficking.
Federal and state legislation provide a foundation for assisting victims and survivors, as well as prosecuting perpetrators in efforts to end human trafficking in the United States.
Human Trafficking Defined in Federal Law
Human Trafficking is defined by the Trafficking Victims Protection Act (TVPA) of 2000. This federal law establishes criteria for identifying and prosecuting both sex and labor trafficking (Payne, 2006; Kubasek & Herrera, 2015). It has since been reauthorized in 2003, 2005, 2008, and 2013 as an amendment to the Violence Against Women Act (VAWA) (Okech, Morreau, and Benson, 2011; Protection Project, n.d.). This law outlines three severe forms of trafficking:
- Commercial Sexual Exploitation (CSE) of a minor
- CSE of an adult by force, fraud, or coercion
- Labor trafficking of anyone by force, fraud, or coercion
- Sex Trafficking is the recruitment, harboring, transportation, provision, obtaining, soliciting, or patronizing of a person through force, fraud, or coercion (or in which the person has not attained 18 years), for commercial sex acts.
- Commercial Sex Act: Any sex act in which anything of value is given or received by any person (does not have to involve money). Some examples include:
- A minor does not have to prove force, fraud, or coercion was present to be considered a victim. Any minor involved in commercial sex = sex trafficking.
- Inclusion of the terms soliciting or patronizing means that a trafficker is not required for the situation to be considered trafficking. Trafficking can occur with just two parties:
- Person being victimized
- Commercial Sex Act: Any sex act in which anything of value is given or received by any person (does not have to involve money). Some examples include:
- Labor Trafficking 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 (US Department of State, 2000).
- Force, Fraud, or Coercion
- Force: Physical restraint, physical harm, sexual assault, monitoring, and confinement (U.S Department of Health & Human Services [HHS], 2017). Note that force includes a lot more than physically restraining a person.
- Fraud: False promises (employment, wages, working conditions, better life, love, or marriage) (HHS, 2017). Relationship, work conditions, and wages may suddenly change over time (HHS, 2017).
- Coercion: Psychological manipulation, confiscating documents, threats of serious harm, sharing information or pictures, or reporting to the authorities (HHS, 2017).
Action- Means- Purpose (AMP) Model
- Laws and legal jargon can be overwhelming but the AMP model developed by Polaris offers a simple way to remember the law:
Transportation(any distance or means)
Soliciting/Patronizing (sex trafficking only)
*if under 18, a victim does not have to prove force, fraud, or coercion occurred. As a minor the law indicates they should be considered a victim regardless if force, fraud, or coercion is present
Commercial Sex Act
For example, a trafficking charge could occur if an individual transported another person by means of coercion for the purpose of a commercial sex act.
Each of the actions listed in the AMP model are separate charges of human trafficking. For example, an individual involved in recruitment and transportation could be charged with two separate counts of human trafficking under the federal law. Two additional federal laws serve as the foundation for addressing human trafficking in the United States:
- Preventing Sex Trafficking and Strengthening Families Act of 2014
- Aims to prevent the trafficking of youth in foster care by improving services (Children’s Defense Fund, 2014).
- Requires state agencies to develop procedures for “identifying, documenting, and determining appropriate services” for youth who are at risk of or have been subjected to sex trafficking (Children’s Defense Fund, 2014, p.1).
- Requires state agencies to report identified victims to law enforcement within 24 hours.
- Allows youth under state care to participate in and pursue the same activities as others their age.
- Justice for Victims of Trafficking Act of 2015
- Focuses solely on domestic trafficking in the U.S., with an emphasis on domestic child sex trafficking (DCST).
- Informs the development of a Domestic Victims Fund using perpetrator fines to finance victims’ services (including juvenile trafficking block grant programs and funding for the development of court diversion programs).
- Promotes increased training to law enforcement, child welfare, juvenile justice, and other systems that youth might come into contact with, in an effort to more effectively identify and serve victims/survivors.
- Encourages adoption of Safe Harbor Laws at the state level to protect child victims from prosecution.
- Prioritizes demand reduction efforts as a way of preventing sex trafficking.
- Clarifies federal law to illustrate that sex buyers are just as culpable as sex traffickers.
- Promotes investigation and apprehension of child sex buyers at the federal, state, and local level.
- Amends the Child Abuse Prevention and Treatment Act (CAPTA) to designate ‘child sex trafficking’ as a form of ‘abuse or neglect’ under federal definitions.
- FOSTA-SESTA amends the Communications Decency Act of 1996. Specifically, it addresses section 230 which protects website owners from the actions/content posted by their users. FOSTA-SESTA clarifies that the CDA does not provide legal protections to websites that “unlawfully promote and facilitate prostitution” and “facilitate traffickers in advertising the sale of unlawful sex acts” (H.R. 1865). Simply, this legislation holds website creators responsible for ensuring their sites are not enabling sex trafficking.
Other Helpful Definitions Related to Anti-Trafficking Legislation
It is well documented that most survivors of trafficking come into contact with the criminal legal system for various reasons stemming from their experience of exploitation (Siegfriedt, 2016; Aycock, 2019; Kubasek & Herrera, 2015, & Countryman-Roswurm, 2014). Options exist to offer legal protection or assistance in these cases. Unfortunately, there is currently no uniformity across states in regards to anti-trafficking laws (Kubasek & Herrera, 2015). A quick overview of these definitions is provided to assist you in understanding your state’s laws related to trafficking.
Safe Harbor Laws
- Intended to provide consistent treatment for victims/survivors and divert them from the criminal legal system.
- Typically focused on child victims of commercial sexual exploitation (most define a maximum age for immunity) and consist of two components (Polaris, 2015):
- Protection - Immunity from prosecution for certain crimes committed while under the control of a trafficker.
- Services - Provision of specialized services to victims including medical, mental health, housing, education and job training, language, and legal services.
- Allows victims/survivors to avoid a conviction by raising the defense they were under the duress of their trafficker when committing the crime for which they are facing charges.
- Places the blame on the trafficker:
- Acknowledges the dynamics present in an exploitative relationship (Zornosa, 2016).
- Requires victims/survivors to incriminate their trafficker, which, in some cases, may not be their goal.
- Reverses a conviction and guilt is null.
- Convictions are dismissed and deleted – it’s as if it never happened (American Bar Association, n.d.; Marsh, Anthony, Emerson, & Mogulescu, 2019).
- Processes vary state by state, as well as what can be vacated.
- Removes an arrest or conviction from a person’s record.
- Differs from vacatur in that the court does not reverse the decision.
- Although records cannot be accessed by the general public they can still be accessed by certain agencies preventing survivors from education and job opportunities in the criminal legal system, human services (social work, teaching), and public universities (American Bar Association, n.d.; Marsh, Anthony, Emerson, & Mogulescu, 2019).
- Processes, wait times, and eligible offenses for expungement vary from state to state.
- More visible than expungement as it stays on an individual’s record.
- Records can be accessed with an order from the court, however, it should not appear in a basic background check (American Bar Association, n.d.; Marsh, Anthony, Emerson, & Mogulescu, 2019).
Organizations who work on the ground, interacting with young people may feel distant from laws and policies. However, these staff/volunteers have an important role in informing youth of their rights, and in advocating on their behalf. Staff/volunteers must first be familiar with laws, so they can be effective in this role.
Limitations of Anti-Trafficking Law
The federal government cannot logistically take on every human trafficking case and as a result, relies heavily on individual states for assistance in prosecution (Heinrich & Sreeharsha, 2013).
There is not consistency between state and federal legislation and anti-trafficking laws can vary widely from state to state.
Inconsistent Identification and Services
- Available resources are not advertised and the process to access resources is generally complicated (Payne, 2006).
- Resources are often limited, as is the case for most human services.
- At least 1,000 minor youth are arrested on prostitution charges each year.
- Cultural tolerance of commercial sexual exploitation decreases the recognition of minors as victims of crime.
- Stereotypes and misconceptions about trafficking lead many first responders to believe “that [domestic] minors exercise informed consent to be prostituted” (Butler, 2012, p. 864).
- The harmful, traumatizing effects of secure confinement and the stigma of criminal records for exploited youth are immeasurable (Saar, et al., n.d.).
- Victimized youth are often charged with crimes stemming from their exploitation, over which they did not have a choice (Castillo, 2016; Emerson, et al., 2014). Crimes associated with exploitation may include, but are not limited to, theft, trespassing, assault, soliciting, and trafficking when acting as ‘bottom'.
- It is harmful to prosecute youth for crimes proximately caused by their victimization. When identified as criminals, rather than victims, they do not have the same access to services, and develop a sense of distrust for law enforcement or helping agencies (Musto, 2013). This disconnection with helping agencies further isolates victims.
- Criminalizing those victimized by trafficking can impact future employment, medical care, education, housing, or immigration assistance (Emerson, et al., 2014). Thus, due to criminalization and the development of fines/fees, many victims/survivors report being further pushed into a life of exploitation.
- Less than half of the states have passed vacatur laws, which allow for records to be expunged of convictions that occurred as a direct result of an individual’s victimization through trafficking (American Bar Association, 2016).
General Practice Implications - Individuals
- Educate yourself and others on current legislation in your state, as well as trends in prosecution and how victims/survivors are treated. Before you can do anything, it’s important to understand the dynamics in your state.
- Understand that definitions of human trafficking in legislation are critical as they determine who is recognized as a victim in the eyes of law enforcement (Butler, 2012).
- Use your voice to educate legislators. Give them feedback! Thank them for progress and talk to them about the unintended consequences of law. Call your legislator yourself or join in with other community members or organizations involved in policy advocacy.
- Engage young people in advocacy and awareness efforts. Youth with lived experience can use their skills, knowledge, and passion to raise awareness of legislation, local, state, and federal advocacy, and providing peer support for youth in navigating the legal system.
- Notify law enforcement within 24 hours after receiving information on any minor identified as experiencing human trafficking. Remember, minors who are involved in CSE are automatically considered victims by law.
General Practice Implications - Service Providers
- Educate staff/volunteers about the governing state laws and available resources (Butler, 2012). Clarify what your state can offer in terms of safe harbor, vacatur, expungement, sealing records, and affirmative defense. Some of these terms are used interchangeably.
- Ensure your agency meets reporting requirements for the Preventing Sex Trafficking and Strengthening Families Act, if applicable.
- Educate youth on the law.
- Traffickers can more easily coerce young people into committing crimes when they are unaware of the risks or consequences.
- Understand that youth often experience force, fraud, or coercion into committing crimes (e.g. recruiting others). Educating young people on the potential consequences and providing options allows them to have some control.
- Invite legislators to your program and educate them on impacts, data, and outcomes, as well as how the law impacts what you do.
- Empower youth and stakeholders to advocate for improved policies and legislation and contact their representatives, if desired.
- Provide annual reports on the number of children and youth who are identified as experiencing trafficking.
General Practice Implications - Community
- Include advocacy for improved laws and local policies in your service model.
- Complex social issues like human trafficking must be addressed at all levels (micro, mezzo, macro) (Rothman & Mizrahi, 2014).
- Collaborate with other agencies to assess your state laws to evaluate how they protect and/or cause harm to victims/survivors.
- Work to assess and further develop your local and state laws. A strong piece of legislation should include:
- A mode of reducing demand.
- Funds for supporting prevention education to children, youth, and families.
- Funds for effective identification, intervention, and holistic aftercare services for victims/survivors of human trafficking.
- Funds for supporting training of multidisciplinary professionals.
- Training in identification of victims to ensure they receive needed services and are not criminalized.
- Training for effective law enforcement engagement.
- Training for research-based interventions that facilitate healing.
- Creative and effective methods for prosecuting traffickers without relying on victim testimony or cooperation—this is often re-traumatizing and can be dangerous.
- Some form of Safe Harbor:
- Should redefine language to ensure that youth experiencing sex trafficking are not labeled ‘prostitutes’ or perpetrators of the crime of ‘prostitution.’
- Should strive to protect youth experiencing trafficking from arrest and prosecution despite the fact that these laws vary state-by-state.
- Should redirect youth experiencing trafficking out of the juvenile justice system (and into the child welfare system) to receive support services.
- Some form of Safe Harbor:
- Post-Conviction Relief
- Most states have general expungement statutes and several states have now enacted legislation that specifically targets survivors’ criminal records where they can demonstrate charges were a result of their exploitation.
- States should continue to evaluate current vacatur laws and their impact (Castillo, 2016).
The following links provide additional information about Human Trafficking legislation:
- State Laws
- Survivor Reentry Project
- Shared Hope International: Protected Innocence Legislative Framework
- Legislating Love, Not LockUp: A Look at Progress and Pitfalls of Anti-Trafficking Law – CESESummit 2018 [Video]
- American Bar Association. (2016). Vacatur Laws for Trafficking Survivors. Retrieved from https://www.americanbar.org/groups/domestic_violence/survivor-reentry-p…
- American Bar Association. (n.d.). Post-Conviction Advocacy for Survivors of Human Trafficking: A guide for Attorneys. Retrieved from https://www.americanbar.org/content/dam/aba/administrative/domestic_vio…
- Aycock, J. (2019). Criminalizing the victim: Ending prosecution of human trafficking victims.
- Butler, C.N. (2012). Sex slavery in the Lone Star State: Does the Texas human trafficking legislation of 2011 protect minors? Akron Law Review, (4). 843-882.
- Castillo, R. (2016). Vacatur laws: Decriminalizing sex trafficking survivors. Journal of Gender, Social Policy, & the Law. Retrieved from http://www.jgspl.org/vacatur-laws-decriminalizing-sex-trafficking-survi…
- Children’s Defense Fund. (2014). Preventing sex trafficking and strengthening families act [Factsheet]. Retrieved from https://www.childrensdefense.org/wp-content/uploads/2018/08/fact-sheet-…
- Countryman-Roswurm, K.I. & Patton Brackin, B. (2014). The journey to Oz: How practice, research, and law have been use to combat domestic minor sex trafficking in Kansas. Journal of Applied Research on Children: Informing Policy for Children at Risk, 5(2). 1-15.
- Countryman-Roswurm, K. (2014). Who's pimpin' now?: How our system is exploiting the exploited. In R. Ross (ed.), Girls In Justice. Santa Barbara, CA: Image of Justice.
- Cross, A.L. (2013). Slipping through the cracks: The dual victimization of human-trafficking survivors. McGeorge Law Review, 44(2). 395-422.
- Emerson, J., Kroman, J., Mogulescu, K., & Sartori, L. (2014). Obtaining post-conviction relief for survivors of human trafficking [PowerPoint slides]. Retrieved from http://www.americanbar.org/content/dam/aba/directories/pro_bono_clearin…
- Heinrich, K., & Sreeharsha, K. (2013). The state of state human trafficking laws. The Judges’ Journal. 52(1).
- Kubasek, N., & Herrera, K. (2015). Combating domestic sex trafficking: Time for a new approach. Texas Journal of Women, Gender, and the Law, 24(2). 167-193.
- Marsh, E. Anthony, B., Emerson, J., & Mogulescu, K. (2019). Polaris State Report Cards: Grading Criminal Record Relief Laws from Survivors of Human Trafficking. Retrieved from https://polarisproject.org/sites/default/files/Grading%20Criminal%20Rec…
- Musto, J. (2013). Domestic minor sex trafficking and the detention-to-protection pipeline. Dialectical Anthropology, 37. 257-276.
- Okech, D., Morreau, W., & Benson, K. (2011). Human trafficking: improving victim identification and service provision. International Social Work, 55(4), 488-503.
- Payne, M. C. (2006). The half-fought battle; a call for comprehensive state anti-human trafficking legislation and discussion of how states should construct such legislation. Kansas Journal of Law & Public Policy, 16(1). 48-66.
- Polaris. (2015). Human trafficking issue brief: Safe harbor. Retrieved from https://polarisproject.org/sites/default/files/2015%20Safe%20Harbor%20I…
- Polaris. (2016). State laws and issue briefs. Retrieved from https://polarisproject.org/state-laws-issue-briefs
- Protection Project (n.d). U.S. anti-trafficking legislation. Retrieved from http://www.protectionproject.org/resources/law-library/u-s-anti-traffic…
- Rothman, J. & Mizrahi, T. (2014). Balancing micro and macro practice: A challenge for social work. Social Work, 59(1). 91-93.
- Saar, M.S., Epstein, R., Rosenthal, L., Vafa, Y. (n.d.). The Sexual Abuse to Prison Pipeline: The Girls’ Story. Retrieved January 31, 2017, from Georgetown Law Center on Poverty and Inequality website: https://www.law.georgetown.edu/poverty-inequality-center/wp-content/upl…
- Siegfriedt, J. (2016). When sex trafficking victims turn eighteen: The problematic focus on force, fraud, and coercion in U.S. human trafficking laws. William & Mary Journal of Women and the Law, 23, 27-45.
- Smith, L., & Healy Vardaman, S. (2011). A legislative framework for combating domestic minor sex trafficking. Regent University Law Review, 23(2). 265-296.
- US. Department of State. (2000). Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464.
- Zornsa, F. (2016). Protecting human trafficking victims from punishment and promoting their rehabilitation: The need for an affirmative defense. Washington and Lee Journal of Civil Rights and Social Justice, 22(1), 177-203.