Remedies for Survivors of Human Trafficking
Survivors of human trafficking have a wide range of individual legal needs. In this introduction to human trafficking, we first address the nature and extent of human trafficking in the United States. Then, we introduce a selection of legal remedies available to survivors of trafficking, homing in on the civil cause of action available to survivors of forced labor, involuntary servitude, and sex trafficking under the Victims of Trafficking and Violence Protection Reauthorization Act of 2003. Finally, we offer a few tips on working with survivors of human trafficking.
Jason Potter: Welcome to Remedies for Survivors of Human Trafficking by Quimbee. My name is Jason Potter, and I'm a staff presenter at Quimbee. I'm glad you could join us. "The degradation, the wrongs, the vices that grow out of slavery are more than I can describe. They are greater than you would willingly believe," Harriet Jacobs.
Harriet Jacobs was born into slavery on February 11th, 1813. After years of sexual and physical assault by her master, Jacobs dramatically escaped. She later went on to become an abolitionist, a nurse, and a writer. In her remarkable autobiography, Incidents in the Life of a Slave Girl, Harriet Jacobs wrote about power dynamics, systemic oppression, and human dignity, long before these concepts were ever made popular. Today, over 150 years since Harriet Jacobs book was published, some of the degradation, wrongs and vices that grew out of slavery continue to exist in the form of human trafficking.
Trafficking is an affront to human dignity. Broadly speaking, the term human trafficking refers to the ways people are put or kept in exploitative situations for the profit of another. What's the cause? Well, in 1917, Emma Goldman gave a response. "Exploitation, of course," she wrote. Emma nailed it. Human trafficking is characterized by exploitation. Exploitation can happen to anyone, anywhere. And there are currently 25 million people trafficked around the world, according to the International Labour Organization.
Stopping human trafficking takes coordination on all fronts. One UN deputy secretary general declared that taking action on all fronts includes the areas of criminal justice, victim assistance and victim protection, human rights, migration policy, and labor market regulation. Attorneys are key players in eradicating human trafficking, and they can take action from any of these fronts, and others.
In this introduction to human trafficking, we'll address the nature and extent of human trafficking, we'll address some of the legal remedies available to survivors of trafficking, focusing on the civil cause of action in the Victims of Trafficking and Violence Protection Reauthorization Act of 2003. Finally, we'll offer a few tips on working with survivors of human trafficking.
Harriet Jacobs said, "No pen can give an adequate description of the all-pervading corruption produced by slavery." Attorneys across the legal industry, however, can act in coalition against this kind of corruption, and help prevent future violations of human dignity. "Human trafficking is the business of stealing freedom for profit," the Polaris Project. Take a few moments to brainstorm four or five words or phrases that immediately come to mind when you hear the phrase human trafficking. Immediately come to mind, human trafficking. Go ahead.
Now, for comparison, entering the term human trafficking into a Twitter search produced tweets about child porn, rapists, drugs, torture, and escorts. Entering the term human trafficking into a YouTube search produced videos about pain, Jeffrey Epstein, brothels, sex, and organ harvesting. Passing the term human trafficking by a non-lawyer, my mother, produced surprising results about slavery, pimps, violence, smuggling, and prostitution.
The takeaway here is that the term trafficking connotes a wide range of images and has taken on a wide range of meanings, depending on the audience. This makes creating a uniform definition of trafficking difficult.
One accepted global definition of human trafficking was issued in 2000 in the Palermo Convention, by the United Nations Office on Drugs and Crime. According to its Trafficking in Persons Protocol, trafficking is the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of a deception, of the abuse of power, or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Now that is a mouthful, but this definition of trafficking has three basic elements. The act, what's done, the means, how it's done, and the purpose or form, what is done.
The act here is recruitment, transportation, transfer, harboring or receipt of persons. The means are threats, use of force, other forms of coercion, abduction, fraud, deception, abuse of power or vulnerability, giving payments or benefits. And the purpose or form, exploitation, including exploiting the prostitution of others, sexual exploitation, forced labor, slavery or similar practices, and removal of organs.
So if we look to the purpose and form and we boil it down even further, according to the UN, trafficking comes in three forms, sexual exploitation, forced labor, and organ removal. In the United States, definitions of human trafficking appear in both the federal and state levels. In the Victims of Trafficking and Violence Protection Act of 2000 called the TVPA, trafficking is roughly defined as sex trafficking where a commercial sex act is induced by force, fraud, or coercion, or where the person is under age 18, or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion that results in involuntary servitude, peonage, debt bondage, or slavery.
So according to the US definition, trafficking comes in three forms. First, forced, fraudulent, or coerced commercial sex, or sex with minors, second, involuntary servitude, or third, forms of forced labor. The means here is narrower than the UN definition. In the US, how it's done is limited to force, fraud, or coercion unless a minor is involved.
All 50 states and D.C. also have human trafficking statutes with their own definitions. They vary greatly in their scope. For example, in California, trafficking occurs when a person deprives or violates the personal liberty of another with the intent to obtain forced labor or services. Further defining a deprivation of human liberty as substantial and sustained restriction of another's liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, where the person on the receiving end reasonably believes that the threat-maker would carry it out.
The means here is broader than the US definition. In California, how it's done includes force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury. Whereas in the US version it's force, fraud, or coercion. But regardless of the definition, one thing is clear. Human trafficking is big business. It's believed to be the fastest growing criminal industry in the world.
According to the US Department of Justice, trafficking in forced labor, services, and sex brings in $150 billion of profits annually, with $99 billion of that coming from sex trafficking. For perspective, the 2019 revenues of Walmart, Apple, Amazon, ExxonMobil, Bank of America, and FedEx were less than 150 billion combined. In light of the enormity of this issue, it's clear that addressing trafficking will take more than laws. It will also require the participation of collaborative, informed, and committed lawyers working in collaboration with advocates across the world.
In this presentation, we'll lay out the groundwork for dispelling common myths about trafficking and review the different philosophical approaches to anti-trafficking advocacy. And we'll also survey the web of federal and state remedies available to survivors of trafficking. Finally, we'll discuss some ways that attorney advocates can help foster inclusive spaces for trafficking survivors.
"One of the biggest myths with trafficking, you see a lot of pictures of women in bars or chains, but many cases have none of those physical barriers," Attorney Betsy Hutson, US Department of Justice. Film and television portrayals of human trafficking are a great jumping off point for a discussion about the myths and realities of human trafficking.
In the film Rambo: Last Blood, Sylvester Stallone's character, Rambo, lives on a ranch in Arizona with his granddaughter. His granddaughter searching for her father, crosses the border into Mexico, and she's kidnapped and sold to a sex trafficking ring operated by the cartel. This perpetuates the idea that... and suggests that the US isn't really a major destination for human trafficking, that it's over the border where we should be worried.
According to UN reports, the US is a significant destination for trafficking flows. The US and not Mexico is thought to be the number one destination for trafficking. And it's very hard to find statistics though. It's in part because the federal government has never provided an annual count to estimate the number of trafficking victims. In fact, there are no numbers at all on adult labor or sex trafficking in the US. What's clear though, is that human trafficking reaches every region in the US.
According to the National Trafficking Resource Center, victims of human trafficking have been identified in cities, suburbs, and rural areas in all 50 states and in Washington, D.C. In Arizona, where grandpa Rambo resides, there were 108 human trafficking cases reported in 2019. So, crossing the border isn't necessary to find trafficking, it occurs right here at home.
In the television movie, Human Trafficking, Mira Sorvino plays a Russian American police officer after a Russian group operating a female sex trafficking ring. Similarly, in the film, The Whistleblower, Rachel Weisz plays a UN peacekeeper in Eastern Europe who discovers an operation trafficking women and girls. These portrayals perpetuate the idea that most trafficking is sex trafficking and involves women and girls almost exclusively. However, this is a common misconception.
According to experts, there are actually more instances of labor trafficking worldwide than sex trafficking, but there is more awareness about sex trafficking in the United States. One study found that up to half of labor trafficking victims are male, but the numbers may be higher because males may be less likely to self-report. LGBTQIA boys and young adults are particularly susceptible. And this focus on women and especially girls involved in sex trafficking can tend to exclude discussion of trafficked men, boys, and LGBTQIA people from the conversation.
In the film, Trade, the brother of a trafficked girl sets out on a mission to save his sister who is kidnapped by a stranger. This perpetuates the idea that it's one's family members that are the good guys and will rescue a person from being trafficked. It also perpetuates the idea that human trafficking victims are typically kidnapped or forced into it. The most pervasive myth about human trafficking is that victims are typically kidnapped or physically forced into trafficking.
Many trafficking victims are brought into the system by romantic partners or family members. So, sometimes it's the people closest to the trafficking victim who are behind it. Most victims get involved through recruitment schemes where victims willingly sign on to fraudulent descriptions or terms of work and conditions of work and continue to endure abuse through fraud, manipulation, and psychological gains.
In Law & Order: SVU, women involved in sex work and sex trafficking remain loyal to their pimps or managers, if you will, and traffickers, even after law enforcement has physically freed them. And this reflects a common reality. Although it's sometimes true that those being trafficked can't physically leave their situation, for example, they're locked in or physically restrained, more often trafficked persons feel they can't leave or be disloyal to their traffickers due to a complex set of psycho-social factors, like lack of resources, perceived inability to find housing or actual inability, fear for safety, addiction, inability to perceive they're even being controlled.
For example, in United States versus Tran, a nail salon owner smuggled a non-English speaking Vietnamese national over the border and with promises of legal status and a high paying job. Using a scheme of coercion, including manipulation of debts, isolation, intimidation, as well as leveraging her inability to speak English, lack of legal status or money, and total lack of resources, the defendant was able to keep the woman from leaving her restaurant job. The defendant was found guilty in the District of Minnesota on a charge of forced labor trafficking.
In Lethal Weapon 4, Chinese nationals are smuggled into the US and forced to work as slaves. Likewise, season two of the HBO show, The Wire, opens with the discovery of the bodies of 13 young Russian women inside a shipping container that had been smuggled into the US to work in prostitution. So these representations erase the distinction between human trafficking and human smuggling. In reality, human trafficking and human smuggling are not the same. They are different crimes.
Human smuggling is a crime of illegal transportation across borders, as Mr. Tran did with the Vietnamese national. Now, smuggling is a crime against the US and its borders. On the other hand, human trafficking is a distinct crime and requires no movement or transportation. It can even occur in the victim's own home. Trafficking was Mr. Tran's act of requiring the Vietnamese national to work through coercion. Trafficking is a crime against a person.
In the film, Taken, Liam Neeson rescues his beautiful privileged white daughter who is kidnapped by an Albanian sex trafficking ring while traveling with friends. This film perpetuates a very skewed idea about what the risk factors for trafficking actually are. Victims of human trafficking tend to share a common trait. Nearly all of them experienced a form of disempowerment prior to getting swept up in trafficking, whether it be due to individual or family circumstances, circumstances in their home community, or membership in a marginalized group. Those with severe economic strain or severe hardships, they hail from countries involved in war, natural disasters, political persecution, are much more susceptible to be trafficked.
Other factors include and aren't limited to poverty and family dysfunction, gender and age, and immigration. So let's briefly look at those. Poverty and family dysfunction. Poverty is another risk factor, though the family dysfunction that often correlates with poverty is a particular area of concern. Sex trafficking victims often share similar stories of running away as minors from physical abuse, sexual abuse, and neglect. Many from families where substance abuse and/or domestic violence were present.
Gender and age are also big risk factors. One UN report stated that women are vulnerable to trafficking because they're often excluded from employment, higher education, and legal as well as political parity, as well as rape, domestic violence, and harmful traditional practices that contribute to vulnerability. In terms of age, the more dependent on the adult world, the more vulnerable someone is. This means that young people are vulnerable. In fact, the majority of people in prostitution started before 18 years of age.
Runaway youth represent a substantial share of sex trafficking victims. In 2014, over 16% of runaway youths in the United States were likely sex trafficking victims, according to the Center for Missing & Exploited Children. With a disproportionate number of victims identifying as LGBTQIA, sex trafficked minors, including runaway youths, are often arrested and treated as offenders instead of victims.
Another risk factor is immigration. According to one UN official, traffickers fish in the stream of migration. About 33% of trafficked victims who are foreign nationals were recruited after they entered the United States, according to one researcher. It's important to note, however, that not all trafficking victims in the US are people involved in migrating.
According to the National Human Trafficking Resource Center, at least 37% of cases passed on to the organization involved US citizens and permanent residents. In every one of the media portrayals of trafficking I've mentioned, human trafficking occurred in illegal or underground industries, but trafficking also occurs in legal industries like construction, agriculture, hospitality, domestic work, and personal care services. The more educated lawyers are about human trafficking and potential victims, the more ready will be to assist particularly in the case of trafficking victims who don't understand their rights or understand that they're being trafficked. And this is just a start. Thanks Rambo.
Another aspect of developing competency in the area of human trafficking is understanding the fierce ongoing philosophical debates that occur in the anti-trafficking advocacy community. Philosophical debates occur on a wide-range of issues. And this is just a taste of competing views within the community. On the one hand, some advocates argue that the criminal justice system protects and serves human trafficking victims. According to this view, strong enforcement, not only punishes traffickers, but it empowers victims. Helping and protecting victims is justification for improving and expanding enforcement efforts.
On the other hand, some advocates argue that the criminal justice system often harms survivors of human trafficking. According to this view, survivors are often subject to more harm because of systemic discrimination in the criminal justice system. The system can arbitrarily criminalize, harm, or otherwise fail to do justice for trafficking survivors.
Another view. On the one hand, human trafficking victims generally have a distinct set of legal needs. According to this view, advocates of the anti-trafficking space should have a special skillset, including skills in working with trauma victims. And experience in specialized advocacy in the criminal courts is helpful. On the other hand, other advocates argue that human trafficking survivors generally have the same legal needs as others in their communities. According to this view, trafficking survivors generally share the legal needs of those in their demographic and community.
Advocacy efforts, according to this view, should focus on working with marginalized communities. And entering advocacy through areas like immigration and public defense can be appropriate. And third, some advocates argue that prostitution is fundamentally coercive. So all prostituted people are victims of human trafficking.
This philosophical difference that I'm about to uncover could be the subject for an entire CLE. But nonetheless, under US laws, commercial sex involving adults is only trafficking if the person is doing it against their will as a result of force, fraud, or coercion. So according to the coercion view, women lack the ability to freely consent to sex for money. All prostitution is coerced and is actually trafficking.
According to Donna Hughes, an advocate on the issue, she says that trafficking occurs even if the woman consents. On the other hand, other advocates argue that some sex work is voluntary, and only forced prostitution is human trafficking. According to this view, anti-trafficking policy has been shaped by anti-prostitution advocates primarily concerned about rehabilitating sex workers and eliminating the sex work industry. And policies that conflate sex work and human trafficking harm consensual sex workers, and allow federal dollars to be used for anti-prostitution efforts.
Advocates for decriminalization of sex work, argue that their efforts are naturally anti-trafficking. Voluntary sex workers are in the best position to identify actual trafficking victims. And decriminalizing sex work would allow sex workers to come forward with any information without fear of arrest or harassment.
So, you might have noticed in all that, that some of these contrasting viewpoints used different terminology. The words used around trafficking tend to reflect the user's philosophical views on trafficking. So, before we dive into legal concepts, just a little note about terminology. You may hear the terms, human trafficking and modern day slavery, used interchangeably by advocates.
Some advocates, organizations, and governments use the terms interchangeably. The United States government, for example, refers to these as interchangeable umbrella terms. But critics say that joining trafficking and modern day slavery creates an illusion of consensus on the trafficking issue. After all, no one is in favor of slavery. They also note that trafficking and historical slavery may have commonalities, but they are not the same.
You may also hear of references to trafficked people as victims or survivors. Some organizations and advocates use the term victims in connection with a victim-centered approach to reduce retraumatization in the judicial process. Laws and courts also tend to use the term victim. Some prefer the term survivor as a recognition of the fortitude it takes to recover from trafficking. Others use both terms, using survivor to refer to someone who has overcome victimization, and some use neither. Today we use the term victim primarily in the context of laws that use the term, but other ways use survivor.
Among anti-trafficking advocates, language matters. As one Harvard law career guide states, an applicant should do their due diligence to make sure their word choice aligns with that of the hiring organization. This doesn't even begin to graze the surface of important terminology in anti-trafficking efforts, but I've included a few links to helpful resources in the course materials.
"When I first came out of the life, I didn't have anything. I needed clothing, I needed legal help," Survivor of Human Trafficking. Federal laws provide a broad range of tools for prosecutors to combat human trafficking. According to the US Department of Justice, in 2018, the department charged people involved in human trafficking under a number of federal statutes. Our focus is going to be on meeting the legal needs of survivors of human trafficking.
Survivors of human trafficking have a wide range of individual legal needs, because their experiences and their trafficking circumstances vary so greatly. We don't have enough time to present a comprehensive set of legal needs. The ones we'll cover are representative of common areas, they aren't exhaustive. We're going to divide these into criminal and civil. And after introducing these needs, we'll hone in on some of the federal statutory remedies available.
Some of the criminal legal needs of trafficking survivors are defense work. Survivors may need help with current charges in connection with ancillary crimes committed while being trafficked, like prostitution-related offenses. They need help vacating, expunging, or sealing convictions. Post-conviction relief can be critical in a survivor's recovery and in their ability to gain financial stability and confidence.
According to the US Department of State, 44 states have laws allowing survivors to seek a court order to vacate, expunge, or seal criminal convictions against them that occurred as a result of unlawful acts traffickers compelled them to commit. These are typically in connection with prostitution.
According to the State Department, there are 34 states with safe harbor laws, which help prevent child survivors of sex trafficking from being prosecuted under prostitution charges. Now, on the civil side, some of the civil legal needs of trafficking survivors are family law. Restraining orders are often needed. There's a big overlap between domestic violence and human trafficking. Divorce, custody, child support, guardianship, and other family law related services may also be needed.
A child survivor of trafficking may be in the dependency court system or eligible for services in the dependency court system as well. Another civil legal need of trafficking survivors may be employment law. Some survivors of trafficking may have claims under the Fair Labor Standards Act, which provides among other things, minimum wage protection to employees who in any workweek are employed in domestic service in a household. And that includes domestic workers who have been trafficked.
Some survivors may also have claims under state contract or minimum wage laws. Survivors may have also been subject to discrimination and harassment, and may need help filing complaints with the US Equal Opportunity Employment Commission. Another civil legal need may be public benefits. Survivors may need assistance with public benefits like Medicaid, particularly if they have criminal convictions. Education of state and municipal employees about the needs of human trafficking survivors, in that regard, may also be necessary.
In the immigration area, many immigrant survivors of human trafficking prefer to remain in the US. And certain tools were designed for this purpose, including the T-Visa. Other options may include status as a special immigrant juvenile, or the U-Visa program. And another civil legal need may be litigation, or access to justice. Civil litigation can be a major way for survivor to get redress for their harm. And depending on the remedy, survivors may receive withheld pay, get help with trafficking-related debt, treble damages and attorneys' fees, and court costs. And some survivors may just seek to feel that justice has been done. One survivor said, "It's not just about the money, I got my justice."
There are many federal and state causes of action that a survivor of trafficking could bring, depending on the circumstances. We'll briefly review some of the state remedies available, then focus primarily on the federal remedies. State remedies for survivors of human trafficking include common law remedies and statutory remedies.
Common law remedies include contract law and tort law, including the claims of civil conspiracy, false imprisonment, and fraud and misrepresentation. Also, every US jurisdiction, including Washington, D.C. and territories has anti-trafficking legislation, as I mentioned. There's a lot of differences among these statutes. There are variations in the definition of trafficker, the statutory elements of trafficking, the seriousness of the penalties, and whether the statute creates a civil cause of action for damages.
Many states have statutes that require judges to order mandatory restitution for human trafficking survivors in connection with the criminal convictions of their traffickers. Some states also allow victims to bring that independent cause of action. So these are just a selection of state remedies available to survivors. And you want to check out your state labor laws, your state constitution, and other statutes for other possible means of doing justice on behalf of survivors of human trafficking.
Now we're going to move on to the major federal remedies. On the federal level, there are several statutes that have been used by survivors of trafficking seeking damages from traffickers and other related parties. We're going to focus primarily on the Victims of Trafficking and Violence Protection Act, the TVPA, and its reauthorizations. This act and its reauthorizations is the cornerstone of human trafficking legislation, but we'll touch on a few others too.
Congress enacted the Victims of Trafficking and Violence Protection Act to give a comprehensive framework to combat trafficking by shoring up the federal criminal laws against traffickers and providing some protection and benefits to survivors, which are called victims, in the statutes. According to the original TVPA, it provides for mandatory restitution to victims in the full amount of their losses. And we're not going to talk about this restitution today, but suffice to say it remains available to victims.
The act in 2000 did not provide a private cause of action for victims. However, the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003, did add a private cause of civil recovery. Under Title 18 of the United States Code Section 1595A, a victim of a perpetrator who violated this chapter can bring a civil claim in federal court against them or someone who benefited from participation in a venture that they knew or should have known violated the chapter for damages and reasonable attorney fees.
Now, this chapter means that a victim of a violation of the TVPA sections 1589, 1590, or 1591 can bring a civil action. So, to bring a 1595 claim, the victim will need to allege that the perpetrator or beneficiary has committed a human trafficking violation under section 1589, 1590, or 1591. Now, section 1589 pertains to forced labor. Section 1590 pertains to trafficking in servitude. And section 1591 pertains to sex trafficking of children, or commercial sex by force, fraud, or coercion. Therefore, the cause of action is available to victims of forced labor, trafficking and servitude, and sex trafficking.
A 1595 claim doesn't need to piggyback off a criminal investigation or prosecution, but if there is one ongoing, the civil action by the victim would be stayed pending the criminal action that it arises out of. The statute of limitations for the 1595 civil cause of action is 10 years, or 10 years after the victim turns 18 years of age if the crime occurred when the victim was a minor.
So how does one state a claim under the TVPRA? Because the cause of action is available to victims of forced labor, trafficking and servitude, and sex trafficking of children, or by force, fraud, or coercion, we'll briefly look at stating a claim for each of these separately, but first a point of clarity. Bringing a 1595 civil claim and making allegations regarding other sections in the chapter, like section 1585 and 1591, '89 and '91, is different than bringing private causes of action directly under those sections. A plaintiff can't bring a claim seeking damages directly under 1589. The Supreme Court rejected that approach. Section 1595 is the vehicle, but you still have to prove the elements of the trafficking section.
So, first onto Section 1589, Forced Labor. Section 1589 states, "Whoever knowingly provides or gets someone's labor or services: A, through actual or threatened force or actual or threatened physical restraint to that or another person, or B, through actual or threatened serious harm to that person or another person, or C, through actual or threatened abuse of law or legal process, or D, through a scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that the person would suffer serious harm or physical restraint."
Now, a plaintiff doesn't need to allege physical restraint. The fact that a victim may have had an opportunity to flee is not determinative of whether forced labor has occurred if a defendant puts the victim in such a state of fear or circumstances that makes them reasonably unable to believe they could leave.
A common jury instruction asked the jury to consider any reasonable means the person may have had to escape in determining if the person reasonably believed they were being forced to work. Some of the terms in Section 1589 that have been litigated include threatened abuse of law or legal process. Courts have found that this means the use or threatened use of law or legal process like administrative, civil, or criminal law in any manner or for any purpose for which the law was not designed in order to exert pressure on another person to make them do or not do something.
For example, many courts have found that threats of deportation for failure to complete work as instructed are a threatened abuse of legal process under Section 1589. The defendant in Kiwanuka versus Bakilana stated to the victim who wanted to terminate her employment, "They will take you right now and board a night plane for your return. Okay? I can make a call to the FBI, and they will bring your passport on Monday. Monday night you will board a plane because your visa would have been canceled. Choose." Based on this, the court found the plaintiff had stated a claim.
Another commonly litigated term is threatened force. Courts have found that this term includes subtle psychological forms of coercion that aren't physical. In US versus Bradley, the First Circuit found that in determining the sufficiency of the evidence court should consider any special vulnerabilities of the victim.
Next is Section 1590, Trafficking into Servitude. The relevant text of Section 1590 states, "Whoever knowingly recruits, harbors, transports, provides, or obtains by any means any person for labor or services in violation of this chapter." Interestingly, the phrase "in violation of this chapter" is a catch-all that incorporates all of the trafficking-related violations in the TVPA. This means that Section 1590 seemingly establishes a private right of action with respect to criminal charges available under Section 1581 through 1594 as long as the victim alleges that the defendant recruits, harbors, transports, provides, or obtains them.
According to the Southern Poverty Law Center, this incorporation of all TVPA offenses creates other opportunities for claims, including but not limited to a private right of action for document theft under Section 1592, or even attempt.
Moving to Section 1591, Sex Trafficking of Children or Commercial Sex by Force, Fraud, or Coercion. So here are the elements of Section 1591 broken down because the statute is a little tricky. A person has violated Section 1591 if the person knowingly, in or affecting interstate or foreign commerce, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person, or they benefit financially or by receiving anything of value from participation in a venture that has violated the above.
Another element, knowingly that knowing or being in reckless disregard that force, threats of force, fraud, or coercion will be used to cause the person to have commercial sex, or as an alternative, that the person is a minor and will be caused to engage in commercial sex. No force, fraud, or coercion here.
So, in this, sex trafficking is broadly defined as causing someone to engage in a commercial sex act. And commercial sex act trafficking of adults must involve force, fraud, or coercion. What does commercial sex act mean? A commercial sex act means any sex act for which something of value is given or received. Note that even though this portion of the statute applies to commercial sex acts, if non-commercial sexual services are forced, you could still have a 1595 claim under Section 1589's forced labor provision. The term coercion means threats of serious harm or physical restraint, or a scheme, plan, or pattern intended to make a person believe that there will be serious harm or physical restraint if they don't comply, or the abuse of law or legal process.
So, these two terms, commercial sex act and coercion, have been the subject of headline grabbing news recently. In 2018, for example, the Southern District of New York heard a civil damages claim by an actress who alleged that defendant Harvey Weinstein used a fraudulent method to coerce her to engage in sex. The actress alleged that Harvey promised her a role, interviewed her, and assured her that everything would be fine if she relaxed and performed sex acts on him. These promises became more pervasive when they were alone in a hotel room together, though he never made good on any of those promises.
The court denied Harvey's motion to dismiss on the TVPRA civil cause of action, finding that the actress had stated a 1591 claim because she had alleged that Harvey coerced her to engage in a commercial sex act. This case is an example of aggressive litigation efforts by anti-trafficking advocates that have tested and arguably expanded the meaning of some of the key terms in Section 1591.
Getting back to the primary text of the statute though, Section 1591 criminalizes commercial sex in two ways. First, it targets the offender who knowingly recruits, entices, harbors, transports, obtains, advertises, or solicits a person by means of force, threats, et cetera, et cetera. But it also targets, second, anyone who benefits from a sex trafficking venture who knows or recklessly disregards that means of force, fraud, coercion have been used against the victim.
The benefits part is fascinating. In this section, a victim of sex trafficking could potentially sue hotels at which trafficking occurred, under Section 1595, by way of Section 1591A if agents of the hotel knew or were recklessly unaware that Section 1591A violations were occurring, or B, if the hotel got a financial benefit from participating in a venture that violated that section.
So in fact, this year, in 2020, three human trafficking survivors filed three different suits against the owners of La Quinta Inn & Suites, Comfort Inn, and DoubleTree under TVPRA Section 1595, alleging the hotels had benefited through its participation in a venture that violated Section 1591 (a) (1) of the TVPRA. So this is another example of aggressive litigation strategies with the TVPRA. According to the Human Rights Trafficking Institute, at least 25 cases against motels and hotels were filed in 2019 under Section 1595.
A note on minors under Section 1591. In the 2008 Reauthorization, Congress added a recklessness provision to Section 1591. So the text here is, whoever knowingly or in reckless disregard of the fact that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act shall be punished as provided in subsection (b). So, as to the victim's age, a plaintiff suing under Section 1595 can prove the age element either by knowledge or reckless disregard of the fact that the victim is under the age of 18.
So, a little bit more about the damages relief available, damages and potentially injunctive relief damages. Under Section 1595, a plaintiff can recover damages and reasonable attorney fees, but what does damages mean? It's generally agreed that plaintiffs can recover compensatory and punitive damages under Section 1595, although they may be also be able to recover damages in connection with other claims they've filed like claims under the Fair Labor Standards Act and common law claims like intentional infliction of emotional distress and false imprisonment, to name a few.
To calculate compensatory damages in forced labor and involuntary servitude cases, courts typically use the framework of the Fair Labor Standards Act if the case involved unemployment relationship between the plaintiff and the defendant. This calculation has sometimes included liquidated damages. Victims can also get punitive damages under the general rule that a court should award any appropriate relief brought under a federal statute.
The amount and calculation of punitive damages can vary by jurisdiction, but awarding an amount of punitive damages equal to compensatory damages is a commonplace practice among courts deciding 1595 cases. For example, one court in the Ninth Circuit ended in a judgment... or one case in the Ninth Circuit ended in a judgment in the amount of 1,237,000 and change for the trafficking victim. And that included a near equal amount in punitive damages of 1,220,000.
Beyond civil damages, plaintiffs can also need other remedies like injunctive relief. A plaintiff may seek to prohibit a defendant from doing the same kind of thing over and over. Sometimes this kind of relief is successful. In one settlement in the Northern District of California, owners of fishing vessels used to traffic the plaintiffs agreed to furnish employees' information about their rights. In another settlement in Alabama, the city of Montgomery agreed to make major changes to its bail practices.
Now, there's a whole lot of procedural and other 1595 issues that we just can't cover today, like the statutes of limitation issues, collectability of judgements, class certification, extraterritorial litigation. But needless to say, the TVPA and the TVPRA are powerful tools to hold traffickers accountable for the crimes of forced labor, involuntary servitude, and sex trafficking of adults and children. The number of cases filed under Section 1595 increases every year as do the ambitions of attorneys representing survivors.
Other non-trafficking federal statutes that have been vehicles for civil suits by trafficking survivors are RICO, the KKK Act, and the Alien Tort Act. Let's check them out. The Racketeering Influenced Corrupt Organization Act, or RICO, was enacted to enable the federal government to more effectively prosecute members of organized crime for racketeering. Federal human trafficking offenses are racketeering offenses. So this is an important tool in prosecuting traffickers.
Under RICO, victims of a racketeering scheme involving human trafficking can bring a civil action against the defendant accused of violating RICO. Using civil RICO, as it's called, the survivor may recover remedial treble damages, as well as attorneys' fees and court costs. Under RICO, the plaintiff must prove a qualifying predicate act. For TVPA claims, a qualifying predicate act is some sort of trafficking activity. For RICO claims, a qualifying predicate act typically is some sort of fraud.
Another vehicle used for claims by survivors of human trafficking is the Klu Klux Klan Act. Enacted in 1871, the KKK Act criminalizes conspiracies to interfere with civil rights, including depriving persons of rights or privileges. The KKK Act contains a federal civil remedy for victims to recover monetary damages. To state a claim under the KKK Act, a plaintiff must allege, one, a conspiracy involving two or more persons, two, for the purpose of depriving either directly or indirectly a person or class of persons of the equal protection of laws, three, an act in furtherance of the conspiracy, and four, which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States.
And finally, the Alien Tort Act. This is a federal civil remedy for human rights violations that occur outside the United States. It was passed in 1789, and the ATA wasn't invoked much for 200 years until more recently when it was invoked against multinational corporations allegedly involved in human rights abuses overseas. Over the last 10 years, the US Supreme Court has confined application of the ATA to a very narrow set of circumstances. But in light of a new Ninth Circuit decision, there may be hope that survivors of trafficking could bring claims in the US in connection with trafficking that occurred overseas with the knowledge of corporations.
"When I left, the challenges were keeping myself alive, court cases, court hearings, struggling to pay bills, getting an apartment, not to mention PTSD," Cat. In light of the serious harms, betrayals, dehumanization, and losses of dignity caused by people and systems, many survivors of human trafficking treat spaces as unsafe until proven otherwise. If attorneys can't cultivate inclusive spaces for survivors to share their stories, then they can't effectively seek justice on their behalf.
So, here are a few tips on cultivating inclusive spaces. First, don't make assumptions. Use the pronouns, he, she, they, for example, that the client has self-identified. This is a critical means of showing respect for another person's personhood, identity, and free will, even though it may not bring you closer to understanding their legal needs. Also, don't make assumptions about trafficking-related terminology. When in doubt, ask the client what terminology they would prefer to use. Empowering terms are generally preferred, but not always.
Second, be empathic. Empathy is broadly defined as the ability to understand what another human being is thinking or feeling. To access empathy, start by focusing on being present and authentic. To be present, consider checking in to make sure your client is feeling comfortable during a conversation. Maintaining eye contact. Avoid writing when the client is speaking and look directly into their eyes.
To be present also, actively listen and affirm. Let the client describe events, concerns, and anxieties while you listen. And don't think about your response while the client talks. Also to be present, adjust your body language. If your arms are crossed, uncross them. Project openness, project willingness.
To be authentic, consider assuming the mindset of person first, lawyer second. Connecting as a person will help you connect as a lawyer. Also to be authentic, make culturally appropriate word choices, and being careful not to make assumptions. And if you make mistakes, briefly apologize for them and move on. Also to be authentic, make space for your client to discuss any unique and often very personal concerns they might have.
And third, be an ally. Being an ally requires committing to a reflective practice. It's a continuous process for honestly reflecting on our actions, acknowledging our shortcomings, and implementing changes for maximum growth. In the anti-trafficking context, allies ask themselves these kinds of questions. "Do I understand the social, psychological, cultural, and legal landscapes for survivors of trafficking? And am I inclusive in my interactions, spaces, and relationships?" Allies build relationships with advocacy organizations and activists, attend trainings, visit educational websites, and read articles and books, or watch movies about trafficking with a critical eye.
Another question they ask is, "Am I able to access empathy in all client interactions? If not, why not? Do I avoid saviorism with survivors of trafficking by recognizing oppression and privilege where they exist?" One author describes the savior mentality as the idea that a hero will come along and answer our societal problems like Superman rescued Lois Lane. And finally, how could being an ally catalyze change in my own world?
Attorneys representing trafficking survivors have mounted aggressive strategies to hold traffickers accountable. We reviewed some of the important causes of action in the arsenal of civil remedies. And it's the courage of survivors that fuels this fight, survivors who declare, "I resolve not to be conquered again," just like Harriet Jacobs wrote so many years ago.
Thank you for joining us for this introduction to the law of human trafficking, and for choosing Quimbee for your CLE. Please join us again.