Criminal and Civil Responses to Forced Labor: A Close Look at

Domestic Servitude

Amanda Kramer

April 2, 2014

Relevant Federal Criminal Laws

• Forced Labor, Attempt/Conspiracy(18 U.S.C. §§ 1589, 1594)

• Passport Confiscation While Trafficking (18 U.S.C. § 1592)

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

• Visa Fraud (18 U.S.C. § 1546)

• False Statements (18 U.S.C. § 1001)

• Willful Underpayment (misdemeanor) (29 U.S.C. § 215(a)(2)

PenaltiesCrime Statute Mand.

Min.Max. Sent.

Forced Labor, Attempt/Conspiracy

18 U.S.C. § 1589 n/a 20 yrs. - life

Passport Confiscation 18 U.S.C. § 1592 n/a 5 yrs.

Fraud in Foreign Labor Contracting

18 U.S.C. § 1351 n/a 5 yrs.

Visa Fraud 18 U.S.C. § 1546 n/a 10 yrs.

False Statements 18 U.S.C. § 1001 n/a 5 yrs.

Willful Underpayment 29 U.S.C. § 215(a)(2) n/a 6 mos.*

Statutes of Limitations

• 10 years– Forced labor (18 U.S.C. § 1589)– Passport confiscation while trafficking (18 U.S.C.

§ 1592)

• 5 years – Everything else

See 18 U.S.C. § § 3298, 3282.

Forced Labor (18 U.S.C. § 1589)

Knowingly providing or obtaining labor or services by one or more of the “prohibited means”

Prohibited Means1. Force, threats of force, physical restraint, or threats

of physical restraint

2. Serious harm or threats of serious harm

3. Abuse or threatened abuse of law or legal process

4. Any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint

Forced Labor: Overview

• Penalizes giving or receiving services by force or coercion (unlike with sex trafficking, fraud is not one of the prohibited means)

• Minor victim w/o force, coercion not enough (but see 29 U.S.C. §§ 212, 215 re oppressive child labor).

• No travel required

• No effect on interstate commerce required

Domestic Servitude

• Work done in home of employer

• Employee lives in employer’s home in U.S., away from home country

• Passport/visa confiscated

• Underpayment/nonpayment

• Restrictions on freedom of movement

• Other mistreatment (verbal/physical abuse, food rationing, threats, abuse of law)

Domestic Servitude: The Parties

• Employees/Victims:– Housekeepers– Cooks– Child care providers

• Employers/Traffickers:– Diplomats– Consulate officers– UNGA delegates– UN employees

Principles of Federal Prosecution

“At the outset, the attorney for the government . . . should not include in an information or recommend in an indictment charges that he/she cannot reasonably expect to prove beyond a reasonable doubt by legally sufficient evidence at trial.”

U.S. Attorney Manual 9-27.300(B)

Investigative Challenges

• Translation

• Corroboration of victim’s statements– Crime occurs primarily behind closed doors– Any witnesses likely inaccessible (because of immunity

or privilege (e.g., marital) or both)

• Financial records and assets often in employer’s home country– Process to get records is lengthy– Request for records makes investigation overt– Limited enforcement measures

Corroboration

• It is critical to corroborate even non-criminal facts given by the victim

• Examples of corroborating evidence:– Outcry witnesses– Surveillance (e.g., live and video surveillance from

hotels and apartments)– Photos of scars, cuts, bruises on victim– Cell phone photographs/texts– Payment records– Visa records– Employment contract

Immunity-Related Challenges

• Inviolability of missions, consulates, and residences of diplomats

• Official communications inviolable

• Limited ability to enforce subpoenas and compel testimony of persons with immunity

• Other restrictions in applicable conventions (e.g., treatment at arrest, movement within U.S.)

• Potential for obtaining higher level of immunity through new posting

Immunity from Criminal Charges

• Full Criminal Immunity– Diplomatic agents at an embassy and members of their

families– Diplomatic agents at a mission to the UN or OAS and

members of their families– Representatives traveling to US as part of UN delegation– Some others

• Criminal Immunity for Official Acts Only– Consular officers and consulate employees (including

honorary)– Service staff at embassy– Lower level officials at UN, OAS

Immunity from Criminal Charges

• Arrest of Those Immune for Official Acts Only– Arrest ability varies depending on posting– Typically no arrest for official acts of holder of

official act immunity– Typically arrest of consular officer permitted for

felonies with arrest warrant

• Arrests of Those with Full Immunity– No arrests

Potential Outcomes

• Criminal charges filed, arrest made

• Criminal charges filed, no arrest made

• Civil suit filed (18 U.S.C. § 1595)

• Continued presence, T visa, no court filings

Civil Litigation: Challenges

• Confirming immunity level of putative defendant

• Service of process

• Identifying and locating assets

• Lack of incentive to submit to U.S. court’s jurisdiction

Other Challenges

• Reciprocity concerns

• Public perception

• Likelihood of conviction/arrest

• Cultural views of submitting to U.S. justice system

• Negotiating “settlement”