Charging Ahead: Prosecuting Human Trafficking Cases Without Victim Cooperation.

• Author: Rodolph, Alicen

1. INTRODUCTION

   The testimony of a human trafficking victim can be powerful evidence against a trafficker. There are, however, numerous reasons why victims often hesitate to participate in the case against their trafficker. When even best practices for victim protection are insufficient to overcome a victim's fear, trauma, or other factors that may deter their cooperation, prosecutors must learn how to successfully prosecute the case without this key evidence and assistance.

2. WHY SOME VICTIMS ARE UNWILLING OR UNABLE TO TESTIFY OR COOPERATE (1)

   "[The offender] was basically pimping her out but she was completely uncooperative and she had all sorts of issues and didn't want to come to court and when she took the stand at the testimony, it was just awful. She was clearly trying to protect him..." (2)

   Successful human trafficking prosecutions usually rely heavily on victim testimony and cooperation. (3) Notably, however, these cases present unique circumstances with victim cooperation, which necessitates more attention from prosecutors for the welfare and needs of victims. (4) Unique issues and factors that influence and prevent victims from testifying or cooperating include victims' fear of retaliation by the traffickers, wariness of possible implications of complicity in the traffickers' crimes, inability or unwillingness to identify themselves as victims, and lack of trust in authorities. (5) Additionally, many victims do not understand their rights, fear deportation, or lack knowledge and understanding regarding law enforcement's role in the process. (6) It is imperative for law enforcement and prosecutors to recognize and understand the issues and challenges that can impede victim testimony and cooperation. (7) It is equally important to recognize that a victim-centered approach sometimes means making the tough decision to proceed without victim testimony or cooperation because that is what is best for the victim and achieving justice in the case.

3. PRE-TRIAL STRATEGIES FOR ENCOURAGING VICTIM PARTICIPATION (8)

   1. Employ Interagency Collaboration

      Effective collaboration and relationship-building is integral to the success of prosecuting human trafficking cases. Federal prosecutors surveyed stated that successful cases generally depend on testimony of victims, properly trained investigators, multi-agency collaboration, and trusting relationships with victims. (9) Additionally, evidence demonstrates a higher likelihood of identification, prosecution, and services provided to victims where agencies participate in task forces. (10) Prosecutors should therefore collaborate with victims, law enforcement, and other service providers; focus on investigations and evidence gathering; and use available pre-trial protections to facilitate victim cooperation and successful prosecutions.

      Collaboration with other law enforcement agencies and other community service providers produces betteroutcomes. (11) Consequently, laek of coordination and collaboration between agencies may diminish victim's confidence in the system and their willingness to participate in the prosecution process. (12) All too often, however, prosecutors and investigators are not trained specifically on dealing with the unique issues and challenges presented in human trafficking cases. This lack of training leads to continuing difficulties with victim and witness cooperation and creates additional obstacles to successful prosecution.

   2. Implement a Victim-Centered Approach

      Focused on a victim-centered response, (13) the federal government funded numerous multi-agency task forces designed to help local law enforcement agencies partner with victim's services agencies and United States Attorney's Offices. (14) Top federal law enforcement officials say that local law enforcement agencies are likely best positioned for identifying human trafficking in their community. (15) Therefore, in human trafficking cases, the federal government has focused on establishing and utilizing task forces, comprised of law enforcement, service providers, and community agencies. (16)

      1. Be a Proactive Practitioner

         Prosecutors should be proactive and take the lead in investigating and coordinating necessary support in human trafficking cases. While some state prosecutors are adequately prepared to handle human trafficking cases presented to them, many states, smaller cities, and rural areas lack access to task forces, training, and resources. Consequently, many state prosecutors are forced to wait for local police to bring cases to them. (17) Additionally, police investigators and prosecutors are not usually most suited for these highly sensitive interactions with victims, as they often lack the necessary training and time to establish rapport and trust with the victims. (18) Consequently, once cases are initiated, victims should be immediately referred to victim-witness coordinators or non-governmental organizations that can help advocate and assist the victim in finding appropriate resources.

         Human trafficking cases are unique and require an approach that is distinct from other types of criminal cases. Nonetheless, the lack of resources or limited ability to collaborate with law enforcement on human trafficking investigations should not hinder prosecutors from pursuing human trafficking cases. (19) Prosecutors should be proactive in their interactions with law enforcement investigators and work to implement prosecution-led or -guided investigations in human trafficking cases. (20) They should help organize trainings, identify human trafficking cases, and coordinate with appropriate agencies for investigating cases and assisting victims. Finally, prosecutors should also seek to leverage other laws and resources at their disposal, and hone other effective skills and tactics in pursuit of successful prosecution of human trafficking cases.

      2. Use Protective Orders

         Pre-trial protective orders should be used to help protect victim's privacy and safety. Rule 16 of the Federal Rules of Criminal Procedure provides courts broad authority to order protections during the discovery phase. Under this rule, courts have the authority to permit or deny pre-trial protections and relief. (21) Prosecutors may request protections...