Human Trafficking: Preventing, Prosecuting and Protecting

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Human Trafficking:Preventing, Prosecutingand Protecting

THE SOUTHERN OFFICE OF THE COUNCIL OF STATE GOVERNMENTSPO Box 98129 | Atlanta, Georgia 30359

ph: 404/633-1866 | fx: 404/633-4896 | www.slcatlanta.org

SERVING THE SOUTH

Jeremy L. WilliamsPolicy AnalystSouthern Legislative ConferenceJuly 2009

SOUTHERN

LEGISLATIVE

CONFERENCEOF

THE COUNCIL OF

STATE GOVERNMENTS

Introduction

E very year, the global $10 billion dollar humantrafcking industry deprives individuals oftheir human rights and freedoms, increasesglobal health risks and fuels the growth of

organized crime. Centering around the most vulner-able, exploited and dehumanized people in the world,human trafcking affects women and children, as well

as men and boys, and is carried out for a variety of pur-

poses, most notably forced labor and sexual servitude.It is a problem that has endured for centuries, despitemodern efforts by countries throughout the world tothwart the heinous practice. While the United Stateshas, in many ways, been an international leader in thisregard, the problem persists. Individual states are nowtaking up the responsibility of assessing how this prac-tice affects people who live within their own bordersand what they can do to further combat this problem.

Many questions revolve around the topic of human

trafcking. How widespread is it? Who are the vic-tims? Is the problem getting better or worse? Statepolicymakers may wonder if federal regulations areenough to stie this problem and, if not, what morecan be done at the state level. Such questions are valid

but not without poignant, efcacious answers. How -ever, like any good policy decision, “what more can bedone” must be evidence-based. So the difculty in at-tempting to answer this nal question is rooted in the

perplexities that exist in answering the rst three. Al-though evidence for the scope and magnitude of thisproblem traditionally has been sparse, the volume ofknowledge regarding who, how many, for what meansand by whom people are trafcked within or across

borders has grown considerably in recent years. In or-der to know how to address this problem at a global

national and state level, the severity and signicanceof the problem must rst be assessed.

The Problem

Human trafcking is dened by the UnitedNations (UN) as “the recruitment, trans-portation, transfer, harboring or receipt ofpersons, by means of the threat or use of

force or other forms of coercion, of abduction, of fraudof deception, of the abuse of power or of a position of

vulnerability or of the giving or receiving of payments

or benets to achieve the consent of a person havingcontrol over another person, for the purpose of exploi-tation.”1 Human trafcking is now considered to be thesecond largest (only behind the transfer of arms) andfastest growing illegal activity in the world.2 Accord-ing to the Administration for Children and Families, adivision of the U.S. Department of Health and HumanServices, there are approximately 600,000 to 800,000

victims trafcked across international borders every

“Neither slavery nor involuntary servitude…shall exist within the UnitedStates, or any place subject to their jurisdiction.”

~ Thirteenth Amendment of the U.S. Constitution


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2 HUMAN TRAFFICKING

year.3 However, this does not include people trafcked within their own borders. According to the Interna-tional Labour Organization (ILO), the agency withinthe UN charged with addressing labor standards, em-ployment and social protection issues throughout the

world, approximately 12.3 million people worldwideare being trafcked for the purposes of forced laboror sexual exploitation at any given time.4 Other es-

timates range from as few as 4 million to as many as27 million individuals. Most victims are from pover-ty-stricken areas of Africa, Asia and Latin America,

whose vulnerability is exploited for prot. However,more than 350,000 women and men are trafcked inindustrialized countries every year as well.5 Althoughthe practice of importing slaves into the United States

was ofcially outlawed more than two centuries ago,the clandestine practice of trafcking human beingsfor the purposes of enslavement, either for labor andsexual services, has persisted on American soil.

The most common reason for trafcking an individualis for the purpose of sexual exploitation. According tothe the UN’s Global Report on Trafcking in Persons,

which is based on data collected from 155 countriesregarding current efforts to assess the extent of traf -cking practices, 79 percent of all trafcking victimsare forced into the sex industry.6 The second com-monest form of human trafcking is for the purposesof forced labor, making up 18 percent of total peopletrafcked throughout the world.7 However, manyexperts contend that this number may be drasticallyunderestimated, due mainly to statistical biases. Untilrecently, most countries did not include trafcking forthe purposes of forced labor in their criminal statutes.In some countries today, under criminal law, there isonly the crime of trafcking for the purpose of sexualexploitation, i.e., trafcking for the purpose of forcedlabor is not prosecutable as a trafcking crime.

Second, it oftentimes is the case that law enforcementpersonnel, as well as the general public, view trafck -ing in persons only in the context of sexual exploita-tion. In other words, the perception is that trafck -

ing for forced labor is concomitant to trafcking forsexual exploitation. Trafcking for forced labor, whendetected, would not be treated as a trafcking charge,even if such a provision existed in a country or state’scriminal statutes.

Finally, cases involving trafcking for forced labor aremore difcult to discover. Quite literally, trafckingfor forced labor often is overlooked. Criminal enter-

prises that involve sexual services, such as prostitu-tion, inevitably entail a certain degree of visibility, be-cause these activities take place on streets, in bars, or inother public places. Forced labor, conversely, involves

victims that often work in hidden locations such as ag-ricultural elds in rural areas, or closed environmentslike factories, warehouses, or private homes that areless visible to the general public. In many ways, the

more insidious nature of trafcking for forced labor iscause for greater concern on the part of lawmakers,simply because the extent to which it affects workers,as well as the business environment in which thesepractices occur, is for the most part unknown.

Although the scal affects of human trafcking are nofully known, the practice undoubtedly has economicrepercussions in the community. A recent case inOklahoma illustrates the economic effects human traf -cking can have. In 2001, a Tulsa-based parts manu-facturer recruited 50 workers from India, promising

high-paying jobs. However, when the workers arrivedtheir passports and other identifying documents wereconscated. They were forced to live in the factory

working between 12 and 16 hours a day, six days a week, for only a few dollars a day. The following yearmany of the workers escaped and alerted authorities tothe situation. The workers, along with the U.S. EquaEmployment Opportunity Commission, successfullypursued civil action against the company. The districcourt that heard the case ordered the company to pay$1.24 million damages, holding them liable for sub-

jecting the workers to fraud and deceit, sub-standardliving conditions, false imprisonment, supervision byan armed guard, phone monitoring, food rationingdegrading job assignments, ethnic slurs, intimidationand non-payment of wages. The Tulsa manufacturingplant closed down.

Not only are there ethical and moral concerns sur-rounding such cases, but economic ones as well. Dur-ing this time of particularly high unemployment ratesthese positions should be lled by workers who areproperly compensated for their labor. Every trafck -

ing victim represents a service that is performed with-out compensation, monetary or otherwise. Likewiseloss of productivity—contributions that victims wouldotherwise be making to society—is incalculable.

Poverty and the lack of economic opportunities arethe most common circumstances that contributeto the practice of human trafcking, according toUnited States Agency for International Development


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PREVENTING, PROSECUTING AND PROTECTING 3

(USAID), an organization that has worked tirelesslyto provide educational information about trafckingthroughout the world, as well as establish programsthat provide services for victims of human trafcking.However, it is not only persons from other countries

who fall prey to these types of exploitative practices.Thousands of women and children within the UnitedStates are in danger as well. Although it is difcult to

discern the degree to which trafcking affects children within the United States, a 2001 study at the Universi-ty of Pennsylvania estimated that as many as 300,000children in the United States are at risk of becoming

victims of human trafcking at any given time.8

The Victims

H

uman trafcking generally involves peo-ple who have lost control of their lives.Through the commoditization of people,

victims are merely pieces of property to

their handlers. Statistically, the majority of these victims are women and children. Of the 600,000 to800,000 persons who are trafcked across interna-tional borders every year, approximately 80 percentare women or girls.9 Even though this is the case, veryfew countries—including ones with basic anti-humantrafcking laws—have specic laws that address thegender or age of the victim.

The majority of transnational victims are females traf -cked for the purpose of sexual exploitation. Againthis does not include the millions of male and female

victims around the world who are trafcked withintheir own national borders, the majority of whom aretrafcked for forced or bonded labor. Up to 50 per-cent of all persons trafcked across international bor-ders are children. They are exploited for sex as pros-

titutes, for child pornography, and as child brides inmany countries. Also, the demand for sex with virginsin some regions means that younger children are be-ing targeted for prostitution. According to the ILOat any given time approximately 166 million childrenages ve to 14 are exploited as child laborers, and ap-proximately 74 million participate in hazardous workthat can have adverse effects on the child’s health,safety or moral development.10

Environments that promote severe gender inequalitiesare primary locations for human trafcking. Cultures

that do little or nothing to dissuade gender-based vi-olence exacerbate the potential for vulnerability andcontrol of victims. The commoditization of womenand girls can create great psychological and emotionalharm that can better enable trafckers who wish tolure victims into servitude.11 The issue of gender can

be damaging for males as well. A recent article in TheNew York Times explored the troubles that China cur-

International Human Trafficking

male (20%)

female (80%)

adults (50%)

minors (50%)

labor (18%)

other (3%)

sex (79%)


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4 HUMAN TRAFFICKING

rently is facing regarding the trafcking of young boys within the country. These boys are purchased domes-tically by families who are seeking a male heir. Thedemand for a male beneciary is particularly strongin rural areas in the southern part of the country, thearticle points out, where there is a strong tradition offavoritism for boys over girls. Since it is customary fora married woman to join her husband’s family, cou-

ples without sons fear they will be left to take care ofthemselves in old age. This, in combination with thecountry’s strict family planning policies, has enabledthe business of stealing and selling children to becomea lucrative pursuit.12

Most people trafcked into the United States are thoseliving in impoverished environments throughout the

world. Many of these individuals are deceived aboutthe job opportunities available to them in the UnitedStates and coerced into accepting bogus arrangementsregarding employment and living conditions. Once

they are transported into the country, these individu-als are forced into the sex industry, used as domestic

workers in private homes or put to labor in sweatshopsor the agricultural industry. Many of these individu-als do not speak English and are unfamiliar with the

various labor laws in the United States, increasing thepotential for manipulation and abuse. Estimates onthe number of forced laborers working in the UnitedStates at any given time range from 10,000 to 17,000.Excepting “forced labor” for sexual purposes, TheHuman Rights Center at the University of California,Berkley, estimates that approximately 59 percent ofthese individuals are exploited for the purposes of do-mestic servitude; 22 percent in agricultural employ -ment; 11 percent in sweatshops and factories; and 8percent in hotel jobs.13

The dangers associated with trafcking are not limitedto emotional ones. The threat of contracting HIV orother sexually transmitted diseases also is among thepotential repercussions of this practice. Although itis difcult to estimate to what extent trafcking con-tributes to the global spread of HIV and AIDS, and al-

though in many parts of the world the link betweenthese two scourges is denied, the potential impact iscertainly reason for concern.

The Traffickers

Since most trafcking is carried out at a na-tional or regional level, statistically, trafckerstypically are citizens of the country in whichthey are arrested. Therefore, the nationality

of the perpetrators more often than not is the sameas the victims. This information also suggests that lo-

cal criminal networks play a key role in transportingand managing victims. It often is the case that locacriminals attempt to win the trust of victims or threat-en retaliation against family members if victims resistdue to the fact that they are better situated to carryout such threats and methods. Likewise, the common-est destination for victims is their own country. Thereare exceptions. Depending on the region of the worldmany countries are destinations for a wide variety ofplaces from which people are being trafcked. East-ern Europe is the destination for the widest range oforigins, while victims from Asia are trafcked to the

greatest variety of destinations. Also, in high-incomedestination countries such as the United States, of -fenders are more likely to be foreign, meaning that themajority of victims are trafcked into these countries

by outsiders. In addition, it oftentimes is the case thatdiaspora populations from source regions are used asa conduit for transporting victims into the countries

where they are exploited. In other words, victims areimplicated in the processes and then used to carry outfurther trafcking.14

In most circumstances throughout the world, men arethe major contributors to criminal activity, particular-ly through involvement in organized crime. Men com-prise approximately 90 percent of the world’s prisonpopulation and commit a disproportionate number ofserious, violent crimes. For this reason, it often is as-sumed that the majority of violence and threats madeagainst victims of human trafcking are perpetrated

by men. This is not the case. Although percentagesare not entirely exact, it is suspected that women, notmen, are responsible for the majority of trafckingcases involving sexual exploitation. In approximately

one-third of the countries that provided informationon gender, women made up the largest percentage oftrafckers. In many regions, including Central Asiaand Eastern Europe, women trafcking women is notan uncommon practice. In Europe, for instance, wom-en make up a larger percentage of those convicted ofhuman trafcking offences than most other crimesEven former victims become trafckers, for a varietyof psychological, nancial and coercive reasons.


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Moreover, it is not only individuals, or a group of in-dividual actors, who carry out these crimes. Corpo-rations, other private agencies, or even governmentsthemselves have been implicated in trafcking of hu-man beings. This is particularly common in casesinvolving trafcking for forced labor. According to areport issued by the ILO, of the estimated 12.3 milliontrafcking cases carried out worldwide, approximately

9.8 million (80 percent) are by private agencies, andas many as 2.5 million (20 percent) are conducted bystate, rebel or military groups.15

All these elements point to the fact that human traf -cking is no everyday crime. It is perpetrated by un-likely offenders in unlikely parts of the world, and af -fects people of all walks of life. This complexity makesaddressing the practices and circumstances associated

with human trafcking that much more daunting.

The Solution

There is a global movement to properly ad-dress the serious problem of human trafck -ing, particularly through the implementationof proper legal instruments that apprehend

and prosecute offenders. To some extent, these effortshave been a success. For instance, the UN Protocol to

Prevent, Suppress and Punish Trafcking in Persons was passed in December 2003. Since that time, ac-cording to the UN, the number of countries that havestructured their laws to coincide with the recommen-dations made by the Protocol has more than doubled.

The United States Congress has enacted three majorpieces of legislation that have profoundly affected traf -cking crimes within our borders and assisted in com-

bating human trafcking and slavery in the interna-tional community: the Trafcking Victims Protection

Act of 2000 (TVPA), the Trafcking Victims Protec-tion Reauthorization Act of 2005, and the Trafck -ing Victims Protection Reauthorization Act of 2008.The Trafcking Victims Protection Act, which waspassed by the U.S. Congress and enacted in October

2000, recognized that human trafcking was the fast-est growing source of income for organized crime. Itsought to prevent human trafcking overseas; protect

victims of trafcking in the United States, regardlessof their citizenship status, and help them rebuild theirlives through federal and state support; and prosecutetrafckers through strict federal criminal penalties.It also established the President’s Interagency TaskForce to Monitor and Combat Trafcking in Persons

to assist in the coordination of anti-trafcking effortsPrior to the passage of this Act, there were no compre-hensive federal laws to protect potential victims of hu-man trafcking and prosecute those who perpetratedsuch crimes. The subsequent reauthorizations of the

Act went further to protect victims and ensure thattheir employers were properly punished.

It often is the perception that state anti-trafckinglegislation is unnecessary, because such crimes can beprosecuted under federal laws or existing state crimi-nal codes, or because human trafcking is not a perva-sive enough problem to warrant such action. Howev -er, there is a great need for state anti-trafcking legis-lation for a variety of reasons. First, federal resourcesalone are not sufcient for addressing the volume ofcases that exist in the United States. The prevalenceof trafcking alone justies additional legislation atthe state level. Second, it can be argued that exist-ing federal criminal laws do not adequately address

all forms of trafcking. They also do not sufcientlyprotect individual victims of human trafcking, nordo they offer proper services for these victims. The

victim-centered paradigm found in many state laws is vitally important, since it supplements existing lawsthat may address related crimes that lack such provi-sions. These laws also increase public awareness andtraining, which often can lead to greater levels of vic-tim identication, further investigations, and increasethe number of prosecutions for these crimes. Alsosuch laws provide a succinct, centralized standard forguiding local prosecutors in their indictments againstoffenders in their state.

It has been suggested that state human trafckinglaws can adversely affect immigrants, or that ille-gal immigrants could use such laws to remain in thecountry. Given concerns surrounding illegal immigra-tion and public safety in the United States, these arelegitimate concerns. However, if human trafckinglaws are properly written and implemented to addressthese very specic activities, while adequately dening

what constitutes a victim of such crimes, there should

be little room for manipulation or insidious distortionof such statutes.

Although state laws can more accurately and efca-ciously address human trafcking crimes, this doesnot mean that states should not make use of existingfederal resources. States should work with the feder-al government in developing mechanisms to combattrafcking. The U.S. Department of Justice (DOJ) an-


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6 HUMAN TRAFFICKING

nounced in September 2008 that almost $10 millionin additional funding to supplement existing task forc-es and to expand the number of task forces working

with community-based organizations to combat hu-man trafcking would be available to states. Much ofthat money was allocated to task forces in Florida andNorth Carolina, as well as other victims’ services or-ganizations in a variety of SLC states. Since 2002, the

DOJ has partnered with state and local law enforce-ment, as well as victim organizations, to convict 342trafckers and assist 1,300 victims from 80 countries.In 2007 alone, the DOJ opened 154 new trafcking in-

vestigations.

The U.S. Department of State is required by law tosubmit a report, Trafcking in Persons Report (TIP),each year to the U.S. Congress regarding the efforts offoreign governments to eliminate the practice of hu-man trafcking. The intent of this report is to raiseglobal awareness about the issue and to emphasize

current efforts being made by the international com-munity. Also, it has the effect of encouraging foreigngovernments to continue the ght against this prob-lem. The report emphasizes the “three P’s”—prosecu-tion, protection and prevention. Also, a victim-cen-tered approach requires the DOS to address the “threeR’s”—rescue, rehabilitation and reintegration.

States have taken different approaches to how theproblem of human trafcking should be addressed.Laws typically do one of four things: create a task forceor research commission to study trafcking within thestate, to disseminate and develop a state plan to com-

bat trafcking, and suggest criminal penalties; reviseexisting state criminal code to include human trafck -ing; pass comprehensive legislation that allows thestate to prosecute offenders under criminal code revi-sions, initiate preventive programs and measures, orprotect victims of the crime; and revise a previouslypassed law with additional legislation to ll in the gapsor add provisions.

According to the most recent information, 14 of the 16

SLC states have enacted legislation that addresses hu-man trafcking, and 13 of these states have statutesthat specically criminalize human trafcking.16 Whilethe statutes themselves vary in language and degreeof punitive measures, all make it a felony to engage inhuman trafcking both for purpose of forced labor andfor sexual purposes, such as prostitution and pornog-raphy.17 Texas was the rst state in the region to pass

such a law, which went into effect in 2003, followed byFlorida and Missouri in 2004.

In addition to criminalizing the general practice ofhuman trafcking, half of the SLC states (FloridaGeorgia, Kentucky, Louisiana, Mississippi, MissouriNorth Carolina, and Texas) have enhanced penaltiesfor trafcking crimes perpetrated against children

For instance, Louisiana and Mississippi have laws thatsentence trafckers of children from 20 to 25 years inprison. Florida allows a sentence of up to 30 years forsuch offenses and has loosened the standard of prov -ing “force, fraud, or coercion” for an adult trafckingconviction, if the victim is a minor. The reasoning

behind this elimination is that any behavior that pro-duces a situation where a child is exploited should bepunishable under the law; whether or not the behavioris perceived as coercive or using force or fraud should

be irrelevant. Also, Texas allows for an imprisonmentof up to 99 years when the victim is under the age of 14

and if the “offense or commission of the offense resultsin [the] death of [the] person trafcked.”

Several SLC states have begun requiring services beprovided to victims of human trafcking. Floridafor instance, requires its Department of Children andFamily Services to provide trafcked persons the samestate and local dispensations that are afforded to refu-gees, such as medical and social services. The provi-sion specically includes those who are not citizens ofFlorida but who have a visa application under reviewThe trafcking victim is required to provide a swornstatement, as well as one additional piece of evidencethat supports this statement, such as police or courtrecords, documentation from a professional agencyphysical evidence, or a statement from another indi-

vidual.

Oklahoma passed a law in 2008 that provides manda-tory restitution for victims, and allows victims to lecivil action suits against perpetrators for actual andpunitive damages. The Oklahoma law also providesguidelines for victims’ rights and services, which in-

clude appropriate shelter, access to state legal assis-tance, translation and other language services, accessto information regarding the full scope of their rightsas well as proper protection from their trafckers. Fi-nally, the Oklahoma law guarantees that trafckedpersons will not be jailed or ned for actions carriedout while they were engaged in trafcking activi-ties. For instance, a woman who is trafcked into the


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United States and forced into prostitution cannot beprosecuted for her actions associated with the trafck -ing. This is particularly important because it alleviatesany fears victims may have about coming forward oreeing from their trafckers. While difcult to assesshow inuential this fear is in inhibiting victims fromcoming forward, it is suspected that this reluctance,along with cultural and linguistic barriers, is quite for-

midable when it comes to victims eeing their captors.Tennessee law also allows similar provisions for vic-tims.

At least three SLC states (Kentucky, Tennessee, andTexas) allow stiffer penalties for cases in which vic-tims suffer profound physical injuries associated withthe crime. Tennessee law, for instance, increases thepenalty for trafcking from a class C felony, whichcarries a sentence of not less than three or more than15 years in prison, to a class B felony, which carriesan eight to 30-year sentence. In addition, Tennessee

allows civil penalties against perpetrators of trafck -ing. Specically, juries may assess a ne of no morethan $25,000, unless otherwise provided by statute,against those convicted of trafcking.

Several SLC states also allow corporations to be pros-ecuted for trafcking crimes perpetrated by employersof the corporation. For instance, Tennessee law statesthat if an agent of the corporation, acting in an em-ployment capacity on behalf of the corporation, vio-lates human trafcking laws, then the corporation can

be sanctioned as participating in the pattern of illegalactivity. Also, several states allow stiffer penalties forcrimes that involve a large number of victims. For in-stance, Tennessee law raises the penalty for trafckingfrom a class C to a class B felony if there are more than10 victims involved in the crime.

Many SLC states have begun addressing threats againstillegal immigrants who are exploited based on their il-legal status. In many situations, kidnappers search forchildren of migrant workers in order to capitalize onthe prospect of the worker fearing local authorities, or

whose grievances may not be treated with high priority by those authorities. Several states, including Florida,Mississippi, Missouri and North Carolina, specicallyaddress the destruction or misuse of immigration doc-umentation in order to exploit individuals. Also, Vir-ginia has made it a crime to threaten to report illegalimmigration status for the purpose of extortion. ManySLC states are considering laws that would mandate

certain places of employment, or places where activi-ties associated with human trafcking transpire, postinformation regarding state services pertaining to traf -cking. Texas, for instance, requires that a “hotel, mo-tel, or similar establishment” that is involved in cer-tain common nuisance suits must provide telephoneaccess to and information regarding referral hotlinesfor victims of human trafcking. These establish-

ments are required to post in each room informationpertaining to human trafcking that contains a work -ing, nationally recognized, toll-free telephone numberfor victims of human trafcking. A separate statute inTexas requires similar information to be posted on thepremises of alcoholic beverage retailers. The informa-tion must be displayed in English and Spanish; muststate that obtaining forced labor or services is a crimeunder state law; must display a toll-free human traf -cking hotline; and must relay to the reader that he orshe may retain anonymity if the number is called.

Various SLC states require international marriage brokers (IMBs)18 to provide information to foreignrecruits. For instance, Texas law ensures that IMBsmake information available to recruits regarding thecriminal history and marital history of their clientsand pay all costs associated with translating the infor-mation into the recruit’s native language. In addition

basic rights information must be provided to recruitsin their native language. The IMB will incur criminapenalties if they continue to provide further servicesto the client or the recruit without providing this in-formation.

Due to the complex nature of the issue, many stateshave found it advantageous to create task forces forthe purpose of assessing the severity of the trafck -ing problems in the state and to discern how best toaddress these problems. The states of Maryland and

Virginia both have created task forces for these pur-poses. The task forces also work to identify the best

ways for effectively implementing existing state plansfor preventing human trafcking and prosecuting per-petrators. In addition, the Maryland task force has

indicated that it is working to establish programs foreducating the public about this issue, noting that ig-norance of how pervasive human trafcking is in theUnited States is, in part, to blame for the lack of actionto prevent it. Although Texas has not established aformal task force to address human trafcking, it hasinstalled a similar mechanism to accomplish the samegoals. Texas law requires the state attorney general, in


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8 HUMAN TRAFFICKING

consultation with the state Health and Human Servic-es Commission, to prepare and issue an annual reportthat outlines the success of existing laws and rules ad-dressing the needs of trafcked person. The reportmust also assess the effectiveness of the interplay ofstate programs with federally funded victim serviceprograms, as well as recommend any necessary im-provements or modications to such programs.

Many states have focused on awareness campaigns for businesses as well as the general public. Florida, forinstance, requires the state Department of Childrenand Families to develop awareness programs abouthuman trafcking for state employees and other orga-nizations that conduct business in the state, ensuringthat individuals and businesses must be more awareof what products and services might support forcedlabor or sexual exploitation. Various resources existfor achieving these practices. For instance, the U.S.Department of Labor’s Ofce of Child Labor, Forced

Labor, and Human Trafcking issues regular reportsregarding foreign labor trends and how they affectproducts purchased in the United States.

The chart below illustrates the variety of provisions ineach of the 16 SLC states. The chart indicates whetheror not there is a basic criminalization statute and ifstate law specically addresses forced labor; trafck -ing for purposes related to sexual services; if there arestiffer penalties for trafcking of children; whether or

not the state has an established task force or similarcommission; if state law provides for restitution of vic-tims; and if there are restrictions on IMBs in the state

The passage of laws, coupled with effective enforce-ment and implementation, is the most effective meansfor combating human trafcking, prosecuting trafck -ers, and protecting victims. The establishment of a

public policy through legislation is also an avenue forcreating an energized public movement on this partic-ular issue. While it may be difcult to assess the scopeof the human trafcking problem in a given state andcorrespondingly, create legislation that affectively andthoroughly addresses the problem, it oftentimes is thecase that such legislation mobilizes law enforcementand sets up mechanisms for assessing the problemIn other words, delaying legislation until a long-termformally-commissioned study group can assess the ex-tent of the problem is not always necessary or prefer-able.

There are a variety of policy resources for state leg-islators who seek to implement legislation that ad-dresses the problem of human trafcking. The U.SDepartment of Justice has produced model legislationfor states to follow, which is based on federal experi-ence investigating and litigating these cases. It pro-

vides precise denitions for seemingly straightfor- ward terms like “blackmail” and “trafcking victim,”to more nuanced terms like “forced labor or services,”

SOUTHERN STATE HUMAN TRAFFICKING LEGISLATION

State CriminalizationForcedLabor

Sexual Activities Minors

TaskForce Restitution

IMO/IMBLaws

Alabama

Arkansas √ √ √

Florida √ √ √ √ √ √

Georgia √ √ √ √

Kentucky √ √ √ √

Louisiana √ √ √ √

Maryland √ √ √ √ √ √

Mississippi √ √ √ √

Missouri √ √ √ √ √ √

North Carolina √ √ √ √ √

Oklahoma √ √ √ √ √

South Carolina √ √

Tennessee √ √ √ √

Texas √ √ √ √ √

Virginia √

West Virginia


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and “commercial sexual activity.” It details criminalprovisions, including suggested sentencing for invol-untary servitude and sexual servitude of a minor, as

well as sentencing considerations for statutory maxi-mums and determinations for crimes that involvelarger numbers of victims and servitude for extensiveperiods of time. The model legislation also providessuggested language regarding laws that provide resti-

tution and protection needs of victims. The legislationis based partly on language derived from the TVPA, which provides tools for combating the trafcking ofpersons worldwide as well as domestically.

There also are a number of groups that can assist statelegislators in developing laws to combat human traf -cking. Local advocacy groups, the media, victims,as well as non-governmental organizations (NGOs)and victim service providers can be very helpful. ThePolaris Project, for instance, one of the largest anti-trafcking organizations in the United States that op-

erates at international, national and local levels, pro-duced comprehensive model state legislation in 2006.It focuses on exhaustively addressing the “three Ps”of combating trafcking: prosecution, prevention andprotection of victims, and draws on language fromTVPA as well as the Prosecutorial Remedies and oth-er Tools to End the Exploitation of Children Today(PROTECT) Act, passed by the U.S. Congress in 2003,a multipurpose law intended to prevent child abuse inthe United States. The model law provides denitions,outlines criminal provisions, and suggests provisionsfor victims, such as restitution and immunity fromprosecution.

Some common problems with existing state laws re-garding human trafcking include: deviations fromthe federal framework; incomplete denitions of traf -cking (some laws dene “trafcking” as only involv -ing foreign nationals); requiring “force, fraud, or co-ercion” for convictions involving sex acts and minors;limiting the denition of “force” to bodily harm; re-quiring the transportation of victims for conviction;requiring the transportation of victims across state

lines; having low penalties that are not commensurate with the severity of the crime; or having non-compre-hensive laws that enact only criminal code revisions,

without providing protection for victims or for civilrestitution.

Properly dening terms is imperative for state laws. As an example, when determining what constitutestrafcking in persons, it is important for states to re-

member that the actual transportation of a person isa secondary concern. In other words, the denitionof “trafcking,” and the corresponding criminal provi-sions associated therewith, should focus on the coer-cive nature of the service, rather than the mere move-ment of the victim or the type of underlying servicethat is being rendered. For instance, in cases of forcedlabor, it is not the labor itself that is illegal, but the co-

ercion involved that qualies the crime as trafcking Whether or not the services provided by the victim arelegal is irrelevant. Involuntary servitude, on the otherhand, implies that a victim’s liberty has been deniedand service is compelled by the trafcker. This wouldapply to all persons, regardless of age, type of serviceor whether or not the victim had been transported

Also, the person’s nationality or the underlying moral-ity of the service, while important, is not relevant. Alpersons coerced into service would be protected underthis provision.

Similarly, the denition of “nancial harm” shoulddifferentiate between a debt that has the inadvertenteffect of coercion and one that’s intended effect is co-ercion. For instance, a debt that is the result of a bad

bargain that produces stress on the part of the buyer would not necessarily qualify as nancial harm for thepurpose of trafcking. In other words, the extortion-ate nature of the potential for nancial harm is imper-ative. Again, the emphasis is placed on the intent othe trafcker, as opposed to mere behavior that mayor may not be illegal.

Another example would be dening “services” as ac-tivities that are akin to an employment relationship

but are in market sectors outside the traditional deni-tion of “labor.” This would include commercial sexuaactivity, which already is criminalized in almost every

jurisdiction in the United States. Non-sexual formsof “services” can include rings that hold children forstreet begging or petty theft. “Services” that are sexuain nature but do not involve sex would include explicitperformances like exotic dancing. Unlike prostitu-tion, which typically is illegal and involves commercial

sexual activity, sexually explicit performances, suchas exotic dancing, may be legal, absent any coercionNevertheless, these activities can have an impact on

victims similar to sexual abuse. (Perhaps due partlyto its legality in many parts of the world, including theUnited States, this type of trafcking is on the rise.)

It oftentimes is the case that crimes similar to trafck -ing are codied in seemingly unrelated parts of the


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10 HUMAN TRAFFICKING

state code, such as in sections pertaining to kidnap-ping and prostitution. For states where this is the case,it may be difcult for prosecutors to discern whetheror not a crime is a trafcking crime. Research showsthat these laws are often archaic, unknown or under-utilized, and fail to reect the current understandingof slavery and trafcking in persons.

It also is important for states to evaluate to what extentstatutes are counter-productive to a victim-centeredparadigm. Laws that could potentially criminalizechildren, who are prostituted, for instance, can standin the way of expedient and just prosecution for traf -ckers, as well as obstruct delivery of restitution andother services to the victim.

Additionally, states must ensure that laws currentlyin place are being effectively utilized. For instance, itis common for states to adopt involuntary servitudelaws. However, ensuring that police and prosecutors

are informed about the nuances of such laws is equallyimportant. Oftentimes, new laws that pertain to ob-scure subjects are not fully utilized by law enforce-ment personnel or state prosecutors, simply due tolack of communication between those making the lawsand those enforcing them.

State laws also might focus on punishing attempts as well as completed offenses. Laws that criminalize at-tempts allow prosecutors to focus on the trafcker’sobjectively observable intent to use coercion for com-pulsory service rather than simply on the victim’s sub-

jective response to the coercion. In instances wherethe victim escapes a captor, the trafcker still can beprosecuted even though the intended behavior wasnot completed. From a public safety standpoint, thiseliminates the need for the victim to actually be en-slaved or feel coerced. The attempt alone is enough toprove wrongdoing.

Mandatory restitution is important because it allowsprosecutors to recover money that the victims can useto assist in their recovery. States that require this pro-

vision either calculate it according to the value of the victim’s labor or services to the trafcker, or by a mini-mum wage calculation. The former is used mostly incases involving sexual exploitation and avoids assign-

ing a wage valuation to instances of forced prostitu-tion. The second method is most common in casesinvolving forced labor, where the victim was not paidfor their work.

Minors in sexually related activities present a differ-ent set of circumstances for lawmakers and, thereforemust be evaluated differently. As mentioned earlier

many states have decided that the standard of coer-cion in cases involving minors should be eliminatedor at least lessened. This movement recognizes thatsexual activities are conceptually different when mi-nors are involved. This is analogous to statutory rapelaws, in which the need to prove coercion is obviated

when the victim is under the age of legal consent. Thisprovision is important because it would allow prose-cution in cases where a victim is prostituted as a resultof their circumstances, where overt force is not usedThis situation is common in cases involving runaway

youth who may be given food or shelter and thereby

forfeited into slavery. In these cases of sexually-ex-plicit performance, child pornography, or other sexualacts, sexual exploitation is the standard, regardless ofthe coexistence of coercion.

Ensuring that services are provided to victims is per-haps the most important component of any good hu-man trafcking law. Prosecution of trafckers without

victim protection is both unworkable and dangerous At the federal level, there are a variety of benets andservices available to trafcking victims. Howeverstate programs are better situated to recognize andmeet the needs of trafcking victims.

More comprehensive trafcking statutes would ad-dress the range of coercive tactics employed by traf -ckers in order to illegally obtain and maintain thelabor or services of their victims. From a regional per-spective, uniformity in denitions and concepts acrossstate lines would minimize confusion for trafcking

victims as they seek protections available through various federal or state agencies. From a national per-spective, overlap in federal and state laws only allows

for more prosecutions to be brought and allows locallaw enforcement and prosecutors to choose the mostappropriate response to crimes committed in theirown jurisdictions.


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Recommendations

There are a variety of trends that many lawmakersthroughout the United States and around the worldhave recognized as helpful practices regarding themost effective methods for preventing human trafck -ing, prosecuting trafckers, and protecting those who

become victims of this crime. These are summarized

as follows:

» Pass legislation that specically criminalizes thepractice of human trafcking as it pertains toforced labor and for purposes of sex trafcking.

» Strengthen penalties for crimes against minors,thereby limiting the potential for these egregiousacts to be perpetrated against children.

» Strengthen existing laws relating to similar crimesas an alternative for prosecutors (e.g., tax laws,

pandering laws).

» Strengthen existing laws that regulate the businesspractices of international marriage brokers, andsimilar organizations.

» Increase training for law enforcement and lo-cal prosecutors regarding the scope, extent, andmethods used by trafckers.

» Increase training for law enforcement and localprosecutors pertaining to other enforcement op-tions for prosecuting trafckers.

» Work to improve communications and coopera-tion among local law enforcement and NGOs, as

well as other service providers.

» Work to combat the demand for trafcking (corpo-rate liability, demand reduction).

» Survey existing criminal codes to determine if pro-hibitions for involuntary servitude, kidnapping,

false imprisonment, or similar behaviors alreadyexist, and discern how these measures can be usedto help formulate or alter human trafcking laws.

Endnotes

1 United Nations Convention against Transnational Crime, Protocol to Prevent, Suppress and Punish Trafcking in PersonsEspecially Women and Children, (November, 2000), p2.

2 The Polaris Project, “Human Trafcking 101,” retrieved May2009, from http://www.polarisproject.org/.

3 http://www.acf.hhs.gov/trafcking/about/index.html

4 International Labor Organization, A Global Alliance AgainstForced Labor, (Geneva: 2005), p10.

5 Ibid.

6 United Nations Ofce On Drugs and Crime, Global Report OnTrafcking In Persons, (February 2009), p6.

7 Ibid.

8 Estes, Richard J. and Neil Alan Weiner, The Commercial Sexual Exploitation of Children in the U.S., Canada and Mexico(Philadelphia: September, 2001), p6.

9 U.S. Congress, “Trafcking Victims Protection Reauthorization Act of 2005,” (Washington, D.C.: January, 2006), p1.

10 International Labor Conference, The End of Child Labour: Within Reach, (Geneva: 2006).

11 USAID, Trafcking in Person: USAID’s Response, (March 2006)pp3-4.

12 http://www.nytimes.com/2009/04/05/world/asia/05kidnaphtml

13 Human Rights Center, University of California, Berkley, HiddenSlaves: Forced Labor in the United States, (Berkley: Septem ber, 2004), pp14-18.

14 United Nations Ofce on Drugs and Crime, Global Report OnTrafcking In Persons, (February 2009), p7.

15 International Labor Organization, A Global Alliance AgainsForced Labor, (Geneva: 2005), p10.

16 These states are: Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee and Texas. Virginia doesnot have a specic criminalization statute, but the practicecan be prosecuted under another existing law.

17 South Carolina law does not explicitly list “sexual services” asa form of trafcking, but trafckers involved in such behav ior can be prosecuted under language that criminalizes “anytype of labor or services performed or provided by a personrendered through another person’s exertion of physical, nancial, or other means of control over the person providing

them labor or services.”18 International marriage brokers are also known as “internationa

marriage organizations.”


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THE SOUTHERN OFFICE OF THE COUNCIL OF STATE GOVERNMENTSPO Box 98129 | Atlanta, Georgia 30359

h 404/633 1866 | f 404/633 4896 | l l

SERVING THE SOUTH

For a number of years, the Human Services and Public Safety Committee

of the Southern Legislative Conference (SLC), currently chaired by Rep-

resentative John Arnold, Kentucky, has been examining Southern states’

policies regarding human trafcking. This report investigates the contin-

ued trends concerning the South’s attention to this problem. It was pre-

pared by Jeremy L. Williams, Policy Analyst for the SLC, the Southern

Ofce of The Council of State Governments, under the chairmanship of

Senator Jeff Wentworth, Texas.

FACTS ABOUT HUMAN TRAFFICKING:

Human trafcking is now considered to be the second largest and fastest growing illegal activity in the world.

Globally, the human trafcking industry generates upwards of $10 billion annually.

The number of people being trafcked for the purposes of forced labor or sexual exploitation could be as high as27 million at any given time.

There are approximately 600,000 to 800,000 victims trafcked across international borders every year. Ofthese, approximately 80 percent are women or girls.

Up to 50 percent of all persons trafcked across international borders are children.

At any given time, approximately 166 million children ages ve to 14 are exploited as child laborers, and ap-proximately 74 million participate in hazardous work that can have adverse effects on the child’s health, safetyor moral development.

While most victims are from poverty-stricken areas of the world, more than 350,000 women and men are traf -cked in industrialized countries every year.

More than three-quarters of all trafcking victims are forced into the sex industry.

Poverty and the lack of economic opportunities are the most common circumstances that contribute to the prac-tice of human trafcking.

As many as 300,000 children in the United States are at risk of becoming victims of human trafcking at anygiven time.

Estimates on the number of forced laborers working in the United States at any given time range from 10,000 to17,000. Approximately 59 percent of these individuals are exploited for the purposes of domestic servitude; 22percent in agricultural employment; 11 percent in sweatshops and factories; and 8 percent in hotel jobs.

Human trafcking exacerbates public health threats throughout the world, such as the spread of HIV and othersexually transmitted diseases.

It is suspected that women, not men, are responsible for the majority of trafcking cases involving sexual exploi-

tation.

Fourteen SLC states have enacted legislation that addresses human trafcking, and 13 of these states have stat-utes that specically criminalize human trafcking.

Half of the SLC states have enhanced penalties for trafcking crimes perpetrated against children.

Human Trafficking: Preventing, Prosecuting and Protecting

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