Legislative Strategies for Combatting International Human Trafficking in California

• Publication year: 2016
• Author: By Catherine L. Carlisle

Legislative Strategies for Combatting International Human Trafficking in California

By Catherine L. Carlisle^*

Trafficking in persons across international boundaries is a growing humanitarian crisis. The United States as a whole, and California in particular, are prime destinations for international human traffickers and have experienced an increase in both sex and labor trafficking in recent years. In the last fifteen years, much federal and state legislation has been passed in an attempt to address this problem. While this legislation has greatly increased the ability to prosecute traffickers and protect victims, many challenges still remain. This article will provide an overview of international human trafficking with a particular focus on sex trafficking, discuss federal and California legislation targeting this issue and suggest potential strategies to improve California's response to sex trafficking.

I. BACKGROUND

International human trafficking refers to the practice of recruiting and transporting persons across at least one international boundary in order to exploit those persons, typically through forced labor or sexual exploitation.¹ Traffickers lure and maintain control of their victims by force or threat of force, coercion, psychological abuse, fraud or deception or abuse of power over vulnerable populations.² Increasingly, traffickers—especially those involved in cross-border trafficking—are part of lucrative criminal enterprises.³ International human trafficking nets approximately $32 billion per year, and is second only to drug trafficking in profitability.⁴

Trafficking victims are typically transported from poorer, or "origin," nations to those with more economic opportunities, or "destination" nations.⁵Traffickers target people who have low social status and little education, and who are often facing economic or humanitarian crises. Such victims are particularly desperate and therefore susceptible to the traffickers' promises of jobs and better living conditions.⁶ Due to poverty and instability in origin nations, traffickers are unfortunately able to find a steady supply of potential victims.⁷

Human traffickers primarily target women and girls, who are especially vulnerable because of their often lower social status as well as the fact that "[p]overty, illiteracy, economic crises, and regional and civil conflicts all have a disproportionate effect on women."⁸ Traffickers lure women and girls by falsely promising good pay and working conditions as nannies, maids, models, dancers, or workers in restaurants, factories, or stores, and also purchase girls from impoverished families.⁹ Many of these women and girls are instead forced into prostitution when they reach their destination.¹⁰

Once victims are trafficked, their vulnerabilities are exacerbated, making escape almost impossible. Traffickers typically withhold money from victims and isolate them from outside contact, house them in substandard living conditions and provide them with little food or medical attention.¹¹ Additionally, traffickers often take advantage of many victims' already-existing mistrust of law enforcement—due to their undocumented status or negative experiences in their countries of origin—by confiscating passports or travel documents, or threatening victims with jail or deportation if they escape or ask for help.¹²Finally, most sex trafficking victims experience extreme physical and psychological trauma. For example, many are repeatedly gang raped as an initiation ritual, drugged, beaten, forced to have unprotected sex with multiple men each day and compelled to undergo unsafe abortions.¹³

Even when victims are able to escape, they often do not have the ability to seek help or navigate the legal system. Victims typically have little money and no one to turn to for support, have limited (if any) ability to speak English, and may have severe mental and physical health issues from the trauma they endured.¹⁴ Their passports and other identifying documentation often remain with their traffickers, and as a result of their undocumented status, they are frequently jailed and deported.¹⁵

While there is no currently accepted methodology for measuring the annual number of trafficking cases, due to the illegal and clandestine nature of trafficking itself along with underreporting by victims, the International Labour Organization estimates that almost 21 million people are victims of forced labor worldwide, including forced sexual exploitation.¹⁶ Approximately 4.5 million people are victims of sex trafficking, of whom 98% are women, and 21% are minors.¹⁷ Victims of labor trafficking also face sexual exploitation, and, according to a recent United Nations Office of Drugs and Crimes analysis, over half of international trafficking victims—especially women—are sexually exploited.¹⁸

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The United States is a prominent destination for international human trafficking, although a significant percentage of victims in the United States are trafficked within the country's borders. In 2015, 74.6% of reported human trafficking cases in the United States involved sex trafficking, while 13% of cases involved labor trafficking.¹⁹ Of the reported sex-trafficking cases last year, 91.4% of the victims were women, 33.3% were minors and 9.6% were foreign nationals.²⁰

Within the United States, California has experienced an elevated level of human trafficking, largely because of its international border, significant population and economic development.²¹ In 2015, California reported more trafficking cases than any other state, and almost twice as many cases as Texas, the state with the second-most cases.²² Almost 80% of human trafficking cases reported last year involved sex trafficking, 17.5% of victims were foreign nationals, 90% were women and approximately 30% were minors.²³ The most common origin countries of California trafficking victims are Thailand, Mexico and Russia.²⁴ Over 80% of documented victims were trafficked to Los Angeles, San Diego, San Francisco and San Jose.²⁵

Trafficking into California is likely to increase, as street gangs are increasingly drawn to human trafficking as a way to make money, often collaborating with international gangs or even rival gangs.²⁶ According to the Attorney General's office, "[s]treet gangs . . . are increasingly migrating to commercial sexual exploitation to fund their operations. The prevailing wisdom among these criminals is that human trafficking is more profitable and has a lower risk of being detected than drug or weapons trafficking. While a trafficker can sell a gun or drugs once before investing additional resources to replenish his supply, he can sell the same person over and over. Human beings provide a renewable source of profits."²⁷

Both the United States and California have made significant efforts to address the growing problem of international human trafficking. The next sections of this article will provide an overview of federal and California-specific responses to this issue, with a particular focus on sex trafficking.

II. THE FEDERAL RESPONSE TO SEX TRAFFICKING

Prior to 2000, the United States responded to sex trafficking by prosecuting traffickers under existing involuntary servitude or slavery statutes enacted after the Civil War,²⁸ or under the Mann Act of 1910.²⁹ These statutes were often insufficient to address modern-day sex trafficking, in large part because they did not take into account the sophisticated forms of psychological coercion employed by contemporary traffickers.

For example, in 1988, the Supreme Court in United States v. Kozminski considered the involuntary servitude statute (18 U.S.C. § 1584) and explicitly rejected "a broad construction of 'involuntary servitude,' which would prohibit the compulsion of services by any means that, from the victim's point of view, either leaves the victim with no tolerable alternative but to serve the defendant or deprives the victim of the power of choice."³⁰ The Court held that the involuntary servitude statute's "reach should be limited to cases involving the compulsion of services by the use or threatened use of physical or legal coercion."³¹ After Kozminski, lower courts applied the interpretation that servitude must be compelled by physical force (either real or threatened) or legal coercion to the other post-Civil War statutes,³² thus effectively limiting prosecution of traffickers to those who engaged in extreme forms of coercion. As a result, between 1988 and 2000, six or fewer trafficking cases were prosecuted each year.³³

Nonetheless, creative legal strategies were sometimes successful in bringing traffickers to justice and providing restitution to victims. In 2001, the United States Attorney's Office for the Northern District of California sentenced Berkeley restaurant owner Lakireddy Bali Reddy to ninety-seven months in prison and required that he pay restitution of $2 million for trafficking several minor girls from India into California for sexual exploitation in violation of the Mann Act, among other crimes.³⁴ After the conviction, a group of young women trafficked by Reddy filed a class action lawsuit in the Northern District of California, seeking $100 million under the Thirteenth Amendment, the Anti-Peonage Act, and the Alien Tort Claims Act (the "ATCA").³⁵ The court permitted the ATCA claim to proceed, although the parties settled out of court for $8.9 million.³⁶

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The first comprehensive legislative scheme designed to address human trafficking was signed into law by President Clinton in 2000.³⁷ The Trafficking Victims Protection Act (the "TVPA") was a response to increasing awareness of human trafficking and the inadequacy of existing legislation to address this problem. It had a three-fold purpose: combatting trafficking, prosecuting and punishing traffickers and protecting victims of trafficking.³⁸ The TVPA addresses both labor trafficking and sex trafficking, and criminalizes more subtle forms of force or coercion...