HOLDING ON TO CLARITY: RECONCILING THE FEDERAL KIDNAPPING STATUTE WITH THE TRAFFICKING VICTIMS PROTECTION ACT

• Author: reese, benjamin

INTRODUCTION

Courts have recognized that slavery and involuntary servitude are evolving threats to human rights-likely to morph into forms designed to evade the letter of the law-at least since the period immediately following the passage of the Thirteenth Amendment.1 In the modern world, slavery and involuntary servitude manifest themselves in the form of human trafficking.2 As commentators and the public alike have become aware over the past decade, the problem of human trafficking "has reached epidemic proportions."3 Indeed, there are "more people in slavery today than ever before."4 The 2014 edition of the Walk Free Foundation's Global Slavery Index estimates that approximately 35.8 million people are held as slaves today,5 which is especially startling when compared to estimates placing the total volume of people sold into slavery during the course of the Trans-Atlantic slave trade around 12 million.6

Congress responded to this threat in 2000 by passing the Trafficking of Victims and Violence Protection Act of 2000,7 more commonly known as the Trafficking Victims Protection Act of 2000 (TVPA).8 The TVPA combats human trafficking holistically by providing for the implementation of programs to prevent human trafficking, programs to protect and assist victims, and provisions focused on the prosecution of human traffickers.9 In particular the TVPA modifies the provisions of the U.S. Code criminalizing forced labor in order to combat human trafficking.10

But there are also other statutes used to prosecute defendants in trafficking cases.11 The federal kidnapping statute (§ 1201(a)) is one of these independent avenues for prosecution.12

Traffickers often take advantage of members of vulnerable populations by inducing them into forced labor.13 One attribute that differentiates human trafficking from other crimes is the frequency with which traffickers utilize psychological coercion and deception to control their victims, sometimes without any corresponding use of physical force or threats.14 Section 1201(a) requires both a "taking" and a "holding" of a victim.15 Although the statute clearly contemplates a "taking" by deception, it is not clear whether continued trickery or falsehood alone is enough to constitute a "holding."16 As the Second Circuit recently recognized, the question of whether the use of deception alone would allow for prosecution under § 1201(a)-without the intention to use physical force if psychological coercion fails-has divided the federal circuits.17

The Fifth and Eighth Circuits have answered that question in the affirmative.18 The Eleventh Circuit, by contrast, has concluded that the prosecution must show a willingness to back up the deception, if it were to fail, with the use of force or threats.19 Complicating matters further, the Fourth Circuit sometimes appears to agree with the Eleventh Circuit,20 but at other times proposes an intermediate test requiring only the showing of an opportunity to use force to back up the deception.21 The resulting confusion has the potential to derail implementation of the TVPA,22 endangers the due process rights of defendants,23 and frustrates police attempts to apprehend human traffickers.24

Moreover, this confusion is compounded by the fact that none of the circuits have provided any significant interpretive analysis supporting their readings of § 1201(a). Nor have any of the circuits considered the impact of their readings on the effort to combat human trafficking. Thus, the overlap between the TVPA and § 1201(a) will bring an issue that has long divided federal courts to the forefront in a way that makes its resolution critical to the United States' continued efforts to combat trafficking.

This Note fills that void by providing an in-depth inquiry into the meaning of § 1201(a) and exploring the significance of this issue in the human trafficking context. It concludes that § 1201(a) requires a demonstrated willingness to use force, and that this interpretation is necessary to properly align § 1201(a) with the TVPA and provide much-needed clarity to authorities seeking to combat human trafficking.

Part I discusses the nature and extent of the problem of human trafficking in the United States and Congress's comprehensive response to it. Part II explores the current split in authority regarding § 1201(a). Part III argues that a broad interpretation of § 1201(a) brings it into conflict with the TVPA and that adopting the interpretation favored by the Eleventh Circuit is required to reconcile the two statutes. Part IV argues that other traditional methods of statutory interpretation support this narrower interpretation.

1. THE ONGOING EFFORT TO COMBAT HUMAN TRAFFICKING

   Increasingly, countries around the world have realized that the problem of human trafficking has escalated.25 Many nations, including the United States, have responded with legislative action designed to combat this modern manifestation of slavery.26 But trafficking is notoriously difficult to define27 and even more difficult to combat.28 This Part explores human trafficking in the United States and the TVPA. Section I.A discusses the extent of human trafficking in the United States. Section I.B details Congress's response to this growing criminal enterprise.

   1. The Prevalence of Human Trafficking in the United States

      Attempts to quantify the number of human trafficking victims-both in the United States and internationally-have been largely unsuccessful.29 Globally, estimates of those held in modern-day slavery vary; for instance, in 2012, although the International Labor Organization estimated that the number was approximately 20.9 million people,30 the State Department had previously reported that the number could fall anywhere between 4 million and 27 million people.31 These differences could be the result of varying research methodologies,32 but regardless of the actual number of victims, it is clear that human trafficking is among the "fastest growing illegal businesses" in the modern world.33

      "Like the global figures, estimates of the scope of trafficking in the United States also vary widely."34 Estimates have focused almost exclusively on the prevalence of international trafficking and largely ignored interstate trafficking.35 The Department of Health and Human Services suggests that the best way to assess the scope of the problem domestically is to consider the number of individuals considered to be at risk of exploitation.36 Although many of these estimates consider only children,37 the numbers are striking. By one 2002 estimate, between 244,000 and 325,000 young people were considered to be at risk for sexual exploitation in the United States,38 and for at least some time during 1999, 1.7 million young people were characterized as "runaway or throwaway youth."39 Likewise, notwithstanding child labor statutes and the valiant efforts of an understaffed Department of Labor, many children are likely illegally employed across the United States.40 Unfortunately, studies providing numerical estimates for how many of these at-risk children are actually trafficked or exploring the size or victimization of other at-risk groups are few and far between.41

      Similarly, the perpetrators of human trafficking are not readily categorized.42 Although large criminal syndicates do orchestrate human trafficking schemes throughout the world,43 human traffickers in the United States come in many forms; they include individuals and families who often utilize larger criminal networks.44 As one might expect, different offenders are motivated by a diverse range of goals, but profitability 45 and the economic advantages of a source of labor that is not subject to ordinary workplace regulation46 are chief among them.

      Even though human trafficking is difficult to define because of the vast differences between perpetrators and the varying goals involved,47

      [t]here are similarities across the reported cases which often include little or no pay for menial and difficult work, debt bondage, confiscated documents such as passports, undocumented immigrant status, long and grueling work hours, as well as threats of harm, physical assault, and emotional abuse.48

      Particularly significant among these commonalities are the "powerful effects of psychological coercion" that "play a key role in entrapment and continued enslavement" in human trafficking cases.49 When considering the TVPA, Congress provided a striking description of this sort of manipulation common among trafficking cases:

      [For instance, a] nanny is led to believe that children in her care will be harmed if she leaves the home. In other cases, a scheme, plan, or pattern intended to cause a belief of serious harm may refer to intentionally causing the victim to believe that her family will face harms such as banishment, starvation, or bankruptcy in their home country.50

      In such cases, "there may be no visible signs of physical restraint" and the constraints imposed on the worker's freedom may be very difficult to identify.51

      Moreover, "[t]rafficked persons are often in a precarious life situation in their country of origin,"52 which makes them especially susceptible to common types of psychological coercion employed by traffickers, such as suggestions of deportation.53 For instance, in 2001 two individuals lured three impoverished Jamaican men to the individuals' tree farm in New Hampshire with promises of lucrative employment.54 Once they arrived, the men's travel documents were confiscated and they were told tales of a similar worker who would be "destroy[ed]" because he ran away.55 Although the men were physically free to travel around the neighborhood unaccompanied, they were forced to work on the tree farm through psychological coercion and fear.56 As this case illustrates, "[t]raffickers prey on those with few economic opportunities and those struggling to meet basic needs," who often share characteristics like "poverty, young age, limited...