Holding on to clarity: reconciling the federal kidnapping statute with the Trafficking Victims Protection Act.

• Author: Reese, Benjamin

In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States' efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, endangers the due process rights of potential defendants, and risks rendering the criminal provisions of the TVPA superfluous. This Note argues that those broader interpretations are incorrect as a matter of proper statutory interpretation, and especially when considered in light of the passage of the TVPA. It further contends that, in kidnapping-by-deception cases, the prosecution must demonstrate that the defendant intended to back up the deception with force or the threat of force if his ruse failed.

INTRODUCTION I. THE ONGOING EFFORT TO COMBAT HUMAN TRAFFICKING A. The Prevalence of Human Trafficking in the United State B. The Passage of the Trafficking Victims Protection Act (1) The TVPA Was Designed to Provide a Comprehensive Response to Human Trafficking (2) The TVPA Resolved Preexisting Due Process Concerns Surrounding the Criminalization of Deception-Based Forced Labor II. VARYING CIRCUIT INTERPRETATIONS CREATE DEEPLY TROUBLING AMBIGUITY SURROUNDING [SECTION] 1201 (A)'S "HOLD" REQUIREMENT III. A NARROWER INTERPRETATION OF THE "HOLD" REQUIREMENT IS NECESSARY TO RECONCILE [SECTION] 1201(A) WITH THE TVPA SUPPORT. A. A Broad Interpretation of [section] 1201(a) Renders a Portion of the TVPA Superfluous B. A Broad Interpretation of [section] 1201(a) Dilutes the Moral Force of the TVPA C. A Broad Reading of [section] 1201(A) Violates the Due Process Rights of Potential Defendants in a Way the TVPA Was Designed to Avoid D. Ambiguity in [section] 1201(a) Leads to Confused Human Trafficking Enforcement IV. OTHER TRADITIONAL METHODS OF STATUTORY INTERPRETATION ALSO SUPPORT A NARROW READING OF [SECTION] 1201(A) A. The Text of the Kidnapping Statute Supports Requiring an Intent to Hold by Force or Threat B. The History and Purpose of [section] 1201(a) Provide Support for this Narrower Reading C. A Specific Intent Requirement Better Comports with Supreme Court Precedent Regarding Comprehensive Legislative Enactments CONCLUSION 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 ([section] 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 [section] 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 [section] 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 [section] 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 [section] 1201(a) and exploring the significance of this issue in the human trafficking context. It concludes that [section] 1201(a) requires a demonstrated willingness to use force, and that this interpretation is necessary to properly align [section] 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 [section] 1201(a). Part III argues that a broad interpretation of [section] 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 define (27) 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...