Slave Next Door (42 page)

coercion, and “services,” which included—among other unlawful

activities—forced prostitution. It went a step further by suggesting that

the induction of minors into prostitution should constitute trafficking,

without the need to prove force, fraud, or coercion. However, because

the DOJ’s main area of focus is prosecution, only minimal provisions

were made in their model statute for victim services. Shortly after the

DOJ came out with its template, two victim-centered organizations—

Polaris Project and the Freedom Network—constructed and released

their own models, which, despite some differences, both added victim

provisions not found in the DOJ model: “access to state crime victims com-

pensation fund, shelter, medical and mental health treatment, translation

services, and protection for the safety and privacy of victims.”21 By com-

bining the DOJ’s model—with its focus on the
crime
of trafficking—with

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the NGOs’ recommendations to support victims, the states had every-

thing they needed to write a complete slavery and trafficking law.

Since most state laws begin with a section that defines human traf-

ficking, the DOJ model included in its template specific legal definitions

for such terms as
blackmail, commercial sexual activity, financial harm,

forced labor or services, sexually explicit performance,
and
trafficking

victim.
The Freedom Network added some definitions for
debt bondage,

minor,
and
venture,
while Polaris weighed in with
debt coercion, person,
minor,
and
sex act.
22 Despite this semantic road map, the states that

have written their own laws show “great variation in their definitions.”23

Few state laws would be considered comprehensive.

T H E T H R E E C O M P O N E N T S T H AT E V E RY S TAT E L AW

N E E D S . . . A N D F E W H AV E

According to Amy Farrell of Northeastern University’s Institute on Race

and Justice, a state trafficking law should have three main components.

The first is problem identification and planning: pinpointing the issue

and deciding how to tackle it. Predictably, the DOJ model recommends

assigning these tasks to federal agencies—specifically, the Attorney

General’s Office in the state and the Department of Health and Human

Services (HHS). The NGOs’ models recommend a broader membership

base, utilizing all available agencies and organizations. A logical exten-

sion of this idea is the statewide, interagency task force, which is dis-

cussed below.

The second component of a state law focuses on criminal provisions

and penalties. The DOJ’s model defines three main offenses: involuntary

servitude, sexual servitude of a minor, and trafficking of persons for

forced labor or services. The two NGO models added their own; both

Polaris and the Freedom Network suggested that accomplice liability—

aimed at those who deliberately aid or abet trafficking and slavery—be

considered a crime, and the Freedom Network added provisions for

“unlawful conduct with documents” where it furthered trafficking.24

Overall, the states with trafficking laws have had no problem establish-

ing criminal provisions. The overwhelming majority have implemented

provisions and penalties for human trafficking. This is not surprising,

since it is “consistent with the public framing of human trafficking as a

criminal justice problem.”25

Every state has its own set of rules about determining criminal sen-

tences. Some use required sentencing ranges, guidelines, or grids for

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determining the sentence, and/or mandatory minimum sentences.

Because of that, Farrell points out, “it is difficult to describe the aver-

age type of sentence proscribed by statute.”26 The result is that penal-

ties for human trafficking vary radically from state to state, often

depending on each state legislature’s definition and interpretation of

the crime itself. A felony offense that could bring a sentence of several

years in, say, Illinois might receive a one-year judgment or a slap on the

wrist in Texas.

Nearly all the state trafficking laws assign liability only to individu-

als. Only two states—Georgia and Virginia—have made provisions that

allow businesses or corporations to be found criminally liable for slav-

ery or trafficking. If a state doesn’t have this provision, it short-circuits

any attempt to hold the large agricultural buyer corporations account-

able for slavery in the fields or to hold sweatshops or factories account-

able for enslaving their workforce. All three models recommend that

“asset forfeiture” be included in the state laws, a strategy clearly sup-

ported by Supreme Court rulings, as seen in chapter 6. Despite this,

only two states—Illinois and Pennsylvania—have elected to allow the

seizure of assets held by human traffickers. The Illinois law provides for

the seizure of “any profits or proceeds and interest or property” that

derive from specific acts of human trafficking. These include involun-

tary servitude, involuntary servitude of a minor, and trafficking for the

purpose of forced labor.27 The absence of asset forfeiture from most

state laws is odd, since law enforcement agencies are strongly in favor of

such provisions and normally push hard for their inclusion. Across the

country, assets seized from criminals, especially drug dealers, help fund

law enforcement efforts. And while trafficking and slavery are defined as

crimes against the person, they also have a central economic dimension

and generate profits and assets. It is appropriate that the convicted traf-

ficker or slaveholder be made to surrender the fruits of slave labor, and

even more appropriate that the proceeds of that forfeiture be given to

the ex-slave. The profits and assets represent labor stolen from the

victim; compensation from seized assets should be returned to the

“rightful owner.”

The third recommended component—victim protection—is by far

the most complex, and the least evident, of the three. Even the crime-

focused DOJ model advised that “prosecution without victim protec-

tion is unworkable.” Nonetheless, fewer than one-fifth of the states

“provide resources or make explicit provisions for victim services such

as shelter, mental and physical health services, translation, and legal

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assistance.”28 An even smaller number of states included provisions for

immunity for victims who commit a crime as a result of their enslave-

ment. And only one state—California—has included in its trafficking

law a provision for caseworker privilege to ensure the confidentiality of

information shared by a victim with a service provider or advocate.29

Some states, including Florida, Texas, and Arizona, jumped the gun

and passed their own versions of trafficking legislation before the model

statutes came out. According to Lou de Baca, counsel to the House

Committee on the Judiciary and former prosecutor for the DOJ, they

failed to get it right. The Arizona law, for example, confuses trafficking

with smuggling, and prosecutors still pursue cases as slavery that have

nothing to do with the issue.30

By early 2008, thirty-nine states had passed anti–human trafficking

laws. The speed with which these laws were passed is impressive, given

the slow pace at which state governments usually work.31 Many of these

laws, however, are noteworthy for their incompatibility with federal law

and with each other. Some states used the DOJ model as a template, but

most modified it to suit their own views of human trafficking or ignored

it completely. As Amy Farrell points out, a major characteristic shared

by many of the laws is their concentration on the criminal aspects—

definitions of the crime, levels of misdemeanor or felony for specific

types of trafficking—and their lack of attention to victims’ needs and

services.32 Operating from the premise that just having a law to punish

the traffickers is sufficient, state legislators have managed to create laws

that not only leave the victims out in the cold but generally fail to

acknowledge their existence at all.

In some cases, states have passed antitrafficking laws without appro-

priating funds for their implementation. In their discussion of state traf-

ficking laws, Jim Finckenauer and Min Liu of Rutgers University

describe this as “symbolic politics.” “In a nutshell,” they write, “sym-

bolic politics refers to a policymaking situation wherein perceptions

trump substance; where the appearance of action, sometimes without

actually doing or intending to do anything, becomes paramount in reas-

suring political constituents. According to this particular view, such

political acts as the passage of legislation with respect to certain issues

are largely symbolic.”33 They suggest that the primary reason for some

states’ reluctance to pass legislation, and for others to put muscle behind

it, is the states’ “belief that human trafficking is a ‘federal problem’ and

thus not something to be made the subject of state jurisdiction.” And

although states acknowledge that trafficking does occur within their

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borders, the “absence of data fuels opposition to the need for anti-

trafficking legislation, permitting the argument that the prevalence of

trafficking is not large enough to warrant new laws and financial appro-

priations.”34

While the laws vary dramatically from state to state, interest groups

have their own take. The New York law, for example, is seen by Mark

Lagon, director of the Office to Monitor and Combat Trafficking in

Persons (TIP Office), as “far and away” the best state law to date.35

Abolitionist groups, however, would prefer to see the “force, fraud, and

coercion” provision removed from that law, while the human trafficking

sphere is concerned that the state has defined sex and labor trafficking as

two separate issues, with sex offenses seen as the more serious of the two.

In New York, “sex trafficking” is now punishable as a “B” felony (maxi-

mum sentence twenty-five years), whereas “labor trafficking” warrants

only “D” felony status (maximum sentence seven years). So disparate are

the views and positions among government agencies, service providers,

and advocates that no state law could possibly please everyone.

Looking across the country, some questions arise: To what extent do

the state laws address all forms of trafficking and address them equally?

What state laws have made provisions for the care and safety of the

victim rather than just criminalizing the offense? And exactly how effec-

tive are the various state laws?

Clearly, the state legislatures didn’t communicate with each other

when they framed their respective trafficking laws. A number have cre-

ated bifurcated statutes, separating sex and labor servitude. Among these

are Minnesota, Arizona, Florida, New York, and Missouri. Others, such

as Texas, Illinois, Arkansas, and Washington, have taken a more general-

ist approach and have “criminalized the broader offense of human traf-

ficking.” Some states, including Florida and Missouri, have followed the

federal lead in specifically criminalizing the trafficking of minors. The

unlawful use of government documents is included in the laws of

Missouri and Minnesota. And a handful of states have made “bride traf-

ficking” and sex tourism a part of their antitrafficking statutes.36

Why the wide disparity? It is certainly not for a lack of models from

which to work. Aside from the DOJ’s 2004 template and the models put

forth by Polaris Project and the Freedom Network, there are several

options to choose from. The federal government also put out the U.S.

Department of State Model Anti-Trafficking Law, the TVPA itself and its

three reauthorizations, and the Prosecutorial Remedies and Other Tools

to End the Exploitation of Children Today (PROTECT) Act of 2003. From

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the private sector, there is the Center for Women Policy Studies’
Resource

Guide for State Legislators—Model Provisions for State Anti-Trafficking

Laws,
which—while not a model statute—offers in-depth suggestions as

to what such a law should contain. There is no lack of reference material.

Admittedly, the emphasis differs from one source to another. The Center

for Women Policy Studies stresses the law’s impact on women and girls,

while the DOJ takes a broader approach, geared more to dealing with the

actual crime of trafficking. Still, it appears that the state legislatures have

tended to go it alone in drawing up their slavery laws.37