MODERN ANTI-TRAFFICKING LEGISLATION AND HARMFUL TRADITIONAL PRACTICES: HAITI'S RESTAVEK SYSTEM.

• Author: Charles-Voltair, Jane

The chapter opens with an overview of child domestic servitude in Haiti, followed by an analysis of Haiti's anti-trafficking legislative dilemma, and ends with a discussion that highlights the relevant and often inconsistent child welfare and domestic labor laws in Haiti. In conclusion, the authors have both formulated independent recommendations and presented recommendations proposed by the participants, judicial actors, child welfare agencies and organizations, and representatives from academia, of a 2021 National Conference on the domestic servitude system. It is critical for Haiti that local stakeholders from both government and civil society guide the process of eradicating child domestic servitude and labor exploitation.

INTRODUCTION

The Republic of Haiti was established in 1804 as a result of the largest and most successful slave revolt in the Western Hemisphere. Two centuries later, the nation faces enormous challenges and factions at the political, economic, social, and environmental levels. The country has experienced many crises and consequently has been defined as a failed state. (1)

Historically in Haiti, impoverished parents placed their children with economically stable family members in urban areas, or sometimes strangers, with the understanding that the child would be provided shelter, food, and education in exchange for household work. A child caught up in this longstanding practice is referred to as a Restavek, a Creole word derived from the French "stay with." (2) Sadly, Restavek children too often have been abused and exploited by the receiving family.

Haiti's Restavek practice or institution has received intense scrutiny over the past decade as it runs afoul of international instruments and even Haiti's domestic legislation. Haiti now has a hodgepodge of conflicting laws, each created in part to protect children and punish their abusers. However, the laws and decrees contain different definitions, prohibitions, and sentencing schemes that contribute to legal confusion and chaos in the enforcement and application of the various laws.

In 2014, Haiti enacted the Law to Combat Trafficking in Persons (Haiti's TIP Law). (3) Haiti's TIP Law has sparked public debate as to whether the institution of child domestic servitude is trafficking per se. Haiti's TIP Law itself is hugely problematic as it applies to child Restavek cases. The US Department of State Trafficking in Persons reports the observations of judges, prosecutors, and stakeholders: Haiti's TIP Law has generally not been applied in Restavek cases. (4) Moreover, in 2020, President Jovenel Moise repealed the existing 1835 Penal Code via executive decree and created a new penal code that includes trafficking in persons provisions that address child domestic servitude. The new Penal Code's anti-trafficking provisions conflict with Haiti's TIP Law.

Who suffers and bears the brunt of the legislative chaos and conflict? It's Haitian children who are victimized by the receiving families and also the quagmire of conflicting and mostly unenforced laws intended to protect them.

Since 2000, the US Department of State has published an assessment of global anti-trafficking efforts that ranks countries by tier levels. (5) A Tier 1 ranking is the highest ranking and a Tier 3 ranking is the lowest. (6) The criteria and authority for the rankings are established by US federal law, initially enacted in 2000, and US Department of State guidelines can be viewed in the annual Trafficking in Persons reports. The principal areas that a country's efforts and performance are evaluated are prevention, protection of victims, and prosecution of traffickers. In 2018, 2019, and 2020, Haiti was admonished for doing little to address its child servitude Restavek problem. (7) And in 2021, Haiti was downgraded from its Tier 2 status to Tier 2 Watchlist because "the government did not make efforts to combat the system of child domestic servitude (Restavek). Therefore, Haiti was downgraded to Tier 2 Watch List." (8)

OVERVIEW OF CHILD LABOR IN LATIN AMERICA AND THE CARIBBEAN

In 2021, the International Labor Organization (ILO) and the United Nations International Children's Emergency Fund (UNICEF) published a report, estimating that globally, the number of children in child labor has risen to 160 million worldwide--an increase of 8.4 million children in the past four years. (9) Although child labor in Latin America and the Caribbean accounts for 6 percent, approximately 8.2 million children aged five to seventeen years in child labor, the region has experienced a consistent decline in child labor since 2008. However, the pandemic seems to be derailing the region's efforts to eradicate child labor by 2025. (10)

The pandemic, which prolonged school closures, resulted in job losses, and increased poverty created the ideal backdrop for the proliferation of child labor. (11) These exacerbated circumstances have led families into varying levels of economic desperation as households cling to any and every available means of survival, including the practice of child labor. (12) According to a recent article by the United Nations Office on Drugs and Crime (UNODC), as more families in the Latin America and Caribbean region struggle to make ends meet, the practice of forced child labor (e.g., criadazgo in Paraguay) is expected to expand and become more prominent across urban and rural areas. (13) Although child labor can take on a variety of manifestations, a historically common practice in the region has been the use of children for domestic work. The ILO defines child domestic work as children's work in the domestic sector in the home of a third party or employer, which encapsulates both permissible as well as non-permissible situations. (14)

OVERVIEW OF CHILD DOMESTIC SERVITUDE: RESTAVEK SYSTEM

Child domestic servitude in Haiti is a longstanding practice and is called Restavek, a social and often informal arrangement wherein a child from a poor rural family is sent to live with a host family that is purportedly better equipped to provide for that child's most basic needs (i.e., food, shelter, and education). (15) While the origin of Restavek is uncertain, the practice is believed to have existed since Haiti's independence, at which time the nation's economy was heavily dependent on slavery and children's value was simply economic. (16) Although a Restavek child is often related to the host family, the child is not treated as part of the family. (17) The Restavek child's relationship with the host family is akin to that of a slave and master or that of an indentured servant. (18) A Restavek child's typical workday includes house cleaning, fetching water, going to the market, cooking, doing laundry, and anything else the host family demands of her or him. (19)

THE CURRENT TREND

Currently, much of child domestic servitude placements involve a middleman or professional recruiter "who for financial gain recruit[s] children from rural areas to work for urban families as child slaves in domestic work and outside the home in markets." (20) The practice of forced child labor is now more widespread as the use of Restaveks is no longer limited to wealthier families but to poor and rural families as well. (21) The US State Department 2021 Trafficking in Persons (TIP) Report states that an estimated 150,000 to 300,000 children in Haiti work in domestic servitude. (22) Many of these children flee these situations and end up on the street, where they are at risk of being trafficked again. (23)

Today, traffickers also target children in "private and NGO-sponsored residential care centers; Haitian children working in construction, agriculture, fisheries, domestic work, begging, and street vending in Haiti and the Dominican Republic." (24) Children placed in orphanages are also at risk as some of these private and unlicensed entities serve as the conduit through which children are recruited. The State Department 2021 TIP Report found that "only 105 of the total 754 orphanages housing 23,723 children were either at licensed or becoming licensed, and 398 were considered high risk for child safety," many of which are private. (25) Biological parents are typically unaware of trafficking risks when they place a child at an orphanage with the hope that the child's basic needs will be met. An estimated 30,000 children live in orphanages in Haiti, yet more than 80 percent of these children are not orphans and have at least one living parent or other living family members. (26)

STORIES OF RESTAVEK CHILDREN BY RESTAVEK FREEDOM

Restavek Freedom is a nonprofit organization whose mission is to end child slavery in Haiti through intervention including child advocacy and public awareness. Restavek Freedom claims it has sent approximately 3,000 children to school, engaged 150,000 adults to stand up for freedom, and reached 2 million persons through awareness advocacy. The following stories recount some common narratives of children who are served by Restavek Freedom's mission.

Synthia's Story (27)

As an infant, Synthia was sent to live with her maternal aunt. Synthia's aunt never sent her to school but kept her home to perform domestic work and care for her aunt's younger children. One night, when Synthia failed to bring home an item that she was sent to purchase because the store was closed, she was beaten so severely that she almost died. After the beating, Synthia was sent outside to sleep, even though the area where she lived was among one of the worst gang-infested areas in Haiti.

Fabiola's Story (28)

Fabiola was three years old when her mother died and she was sent to live with her aunt and godmother. One night, the godmother's boyfriend attempted to rape Fabiola. Fortunately, a neighbor heard Fabiola's screams and came to her rescue. Fabiola's aunt and godmother were informed of the incident, but the godmother's boyfriend continued to live in the house along with Fabiola. When the...