Federal law helps and hurts the efforts to end human trafficking and exploitation. On the positive side, the Victims of Trafficking and Violence Prevention Act (TVPA) is intended to stop trafficking in persons, especially into the sex trade, slavery, and involuntary servitude. But federal promotes trafficking and protects on line traffickers.
The major current challenge is the explosion of child sex trafficking online. Federal law known as CDA Section 230’s grants complete immunity to websites that sell children on line. This act blocks victims from access to justice for criminal and civil damages at the state courts as well as immunity from legal action for civil suits at the federal level. Congress has been unable to find a solution to its own law that protects websites that act and pimps and traffickers.
The history of the Federal Laws.
The highly publicized human trafficking cases of the 1990s raised the public consciousness of exploitation within the United States borders. In 1995, the “El Monte case” uncovered 72 foreign-born Thai women held captive and forced to work in a boarded apartment-turned sweatshop in California.The “Deaf Mexican case” of 1997 exposed 62 deaf mutes, smuggled from Mexico to New York, forced to work as street peddlers with a minimum one hundred dollar quota per day . In 1997, the Global Survival Network (GSN) produced Bought and Sold a documentary of undercover footage conveying the ways a disintegrated economy, organized crime, and political corruption fueled sex trafficking of Russian women and girls into Western nations.
These cases spurred action to address the global issue within the United States borders.
In 1998, President Clinton issued an executive memorandum that established the first government wide strategy to combat human trafficking in the United States (Administration of William H. Clinton, 1998). Clinton’s administration instituted the widely accepted three-pronged approach, known as the “3P’s” : prevention, protection, and prosecution. The paradigm was amended in 2009 to include a “fourth P” partnership.
Between 1999 and 2000 Congress was introduced to three pertinent bills. In 2000, Congress passed the Victims of Trafficking and Violence Protection Act (Pub. L. 106–386) Division A: Trafficking Victims Protection Act 2000. The TVPA 2000 defines the ‘severe forms of trafficking in persons,’ as:
(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
(B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
TVPA, as amended and in compliance with the United Nations Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), acknowledges that “individuals may be trafficking victims regardless of whether they once consented, participated in a crime as a direct result of being
trafficked, were transported into the exploitative situation, or were simply born into a state of servitude” (U.S. Department of State, 2014). The protection of victims, assistance to survivors, and prosecution of exploiters has since been enhanced and expanded through TVPA reauthorizations in 2003, 2005, 2008, and 2013. TVPRA (2003) , TVPRA (2005) and TVPRA (2008).
The federal policy necessitates the presence of three core elements: action, means, and purpose, with exceptions of proof for sex trafficked minors less than 18 years of age.
The action of trafficking refers to the physicality of recruitment, harboring, transportation, provision, or obtaining a person. Although the term trafficking connotes
travel, which is a common function, U.S. policy does not require proof of transportation Human trafficking can occur in close proximity to a victim’s place of origin or residence as evidenced by children born into servitude and exploitation perpetrated by legal guardians, relatives, and friends.
There is an important distinction between human trafficking and human smuggling in that the former is centered on exploitation while the latter focuses on the transportation of individuals evading country-specific immigration laws (U.S. Department of State, 2006). Although distinct from each other, trafficking and smuggling are not mutually
exclusive. The two can, and do, overlap when individuals who are initially smuggled by their own will lose their autonomy in a captive state (e.g. debt bondage) (Human Smuggling and Trafficking Center, 2006).
The means of trafficking is through the use of force, fraud, or coercion with exceptions for commercially sexually exploited children (CSEC). Sex and labor trafficked adults and labor trafficked minors must provide evidence of force, fraud, and coercion (Freedom Network USA, 2012) in order to be legally considered a trafficking victim and receive
related services. Because minors are below the legal age of sexual consent, all minors who engage in commercial sexual activity are victims of sex trafficking and child sexual abuse, not voluntary sex workers or prostitutes, whether or not force, coercion or fraud are present.
TVPA 2000 set a legal framework for local, state, and federal government agencies, law enforcement, prosecutors, and stakeholders to conceptualize and combat trafficking in
persons. Understanding the legal definition of human trafficking affects the way we identify victims, how we police particular communities, and those we give access to services. Human trafficking’s manifestations cannot be contained within
the federal definition; the nuances are complex and multilayered, affecting those involved in a myriad of ways.
Congress currently engages in partisan battles over funding and the type of resources that should be made available to law enforcement and victims.
The Customs and Facilitations and Trade Enforcement Reauthorization Act of 2009. Sections 307 and 308 of the Act amend the original Tariff Act of 1930 to include provisions to prohibit the importation of goods to the United States made by benefit of human trafficking or forced labor.
Intelligence Reform and Terrorism Prevention Act of 2004. Section 7202 of the Intelligence Reform and Terrorism Prevention Act established the Human Smuggling and Trafficking Center to achieve greater integration and overall effectiveness in the U.S. government’s enforcement and other response efforts, and to work with foreign governments to address the separate but related issues of alien smuggling, trafficking in persons, and criminal support of clandestine terrorist travel.
PROTECT Act of 2003 (PDF, 47 pages – 279 KB). The PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) intends to protect children from abuse and sexual exploitation, a common element of child human trafficking.
Civil Asset Forfeiture Reform Act of 2000 (CAFRA) (PDF, 24 pages – 158 KB). The Department fights human smuggling and trafficking through the issuance of CAFRA, which provides notice to property owners whose properties have been identified as being used to facilitate smuggling or harboring aliens; it is an important tool because many employers turn a blind eye to the facilitation of criminal activity on their properties.
The Mann Act of 1910. The Mann Act and its subsequent amendment resolutions makes it a felony to knowingly persuade, induce, entice, or coerce an individual to travel across state lines to engage in prostitution or attempts to do so. It is an effective tool used to prosecute human traffickers.