An ounce of prevention: improving the preventative measures of the Trafficking Victims Protection Act.

• Author: McClain, Takiyah Rayshawn

ABSTRACT

Trafficking is a multi-billion dollar industry that affects the lives of millions of people, especially young girls and women. In an effort to combat this issue, the United States enacted the Trafficking Victims Protection Act in 2000. The Act has had some positive effects on the trafficking industry, but its preventative measures overlook or fail to deal sufficiently with some key factors: human rights issues, gender and economic inequalities, and sensationalism of the sex industry.

This Note discusses these three issues and their importance in establishing more effective preventative measures. Additionally, this Note looks to two approaches to trafficking, the human rights approach and the U.N. Protocol approach, and discusses how incorporation of these two approaches into the Trafficking Victims Protection Act would provide a better framework within which to combat the trafficking industry.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND ON TRAFFICKING A. An Overview of the Trafficking Industry B. Putting a Face on the Tragedy: Personal Stories of Trafficking Victims C. Concerns about Current Trafficking Legislation III. PREVENTATIVE MEASURES AND BENEFITS OF THE TVPA AND THE TVPRA A. An Overview of Preventative Measures of the TVPA B. The Trafficking Victims Protection Reauthorization Act C. The TVPA's Effects on Trafficking and Recent Federal Programs D. The Minimum Standards of the TVPA and Trafficking Data (Or Lack Thereof) IV. PROBLEMS IGNORED BY THE TVPA AND THE TVPRA A. Problem One: Human Rights Issues B. Problem Two: Economic and Gender Inequalities C. Problem Three: Sensationalism of the Sex Industry V. ALTERNATIVE APPROACHES TO TRAFFICKING A. An Overview of the Human Rights Approach B. An Overview of the U.N. Protocol 1. The U.N. Protocol's Approach to Economic and Gender Inequalities 2. The U.N. Protocol's Approach to Sensationalism of the Sex Industry VI. CHANGING THE TVPA A. Putting Meaning Behind "Human Rights" B. Effective Legislation for Economic and Gender Inequalities C. Dealing with Sensationalism of the Sex Industry VII. CONCLUSION I. INTRODUCTION

Does slavery still exist? Historical images of blacks and whites, slave ships, chains and shackles, plantations, and cotton fields may come to mind when one poses this question. These are the pictures that many people, particularly those in the United States, envision when they think of the institution of slavery that continues to be a blight on the nation's image. Under this conception, one can affirmatively answer no, slavery no longer exists. However, consider the following:

Trafficking of persons has recently become a growing phenomenon within and across international borders, including the United States. Many trafficked persons are forced into the sex industry [and] [t]rafficking of persons also involves forced labor, involuntary servitude, or slavery. Many trafficked persons are induced to perform labor or other services by force or the threat of force. (1) Every year, millions of people fall prey to human trafficking, and a great majority of these millions are women and children, primarily young girls. (2) For this reason, this Note focuses primarily on female victims of sex trafficking, although many of the issues discussed may be equally applicable to other victims or other forms of trafficking. The victims have changed and the purposes have been expanded, but human trafficking is nothing more than a "contemporary manifestation of slavery." (3) So why is slavery still around, and why is it so difficult to abolish?

The Trafficking Victims Protection Act of 2000 (TVPA), was enacted "to combat trafficking in persons ... to ensure just and effective punishment of traffickers, and to protect their victims." (4) The legislation was in response to Congress's findings that U.S. and foreign legislation had been ineffective in combating trafficking and punishing traffickers, "principally because such legislation and [its] enforcement [did] not reflect the gravity of the offenses involved." (5) Such offenses include prostitution, (6) "sexual abuse, torture, starvation, and imprisonment," (7) as well as "frequent and serious violations of other laws, including labor and immigration codes and laws against kidnapping, slavery, false imprisonment, assault, battery, pandering, fraud, and extortion." (8)

Nations have attacked trafficking with many different legislative schemes. In the United States traffickers receive rather light penalties. (9) In countries under Islamic law, such as Saudi Arabia, Malaysia, and Pakistan, prostitution is viewed in the same vein as adultery, and both the male and female are punished. (10) In Sweden, the On Prohibiting Purchase of Sexual Services Act makes it a crime to buy sex, but not a crime to sell sex. (11) In many countries, such as Liberia, Sri Lanka, Ethiopia, and Zimbabwe, trafficking victims who are foreign to the destinations are found to be in violation of immigration laws, and the victims are not given the residency status necessary to allow them to testify against and protect themselves from their traffickers. (12) Besides illustrating the many ways legislatures can and have approached trafficking, these examples also show that much more is involved than just the act of forced prostitution. Issues such as women's rights and status, immigration, and societal views on sex all affect the manner in which sex trafficking is handled in the United States and beyond.

The methods of trafficking prevention proposed in the TVPA appear to get at the root of the problem. This Note analyzes whether, as written, these methods are effective at preventing human trafficking. The Note also compares the TVPA's methods to the human rights approach and the preventative measures set forth in the U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons (U.N. Protocol). (13) Part II of this Note provides background information on trafficking, including stories of actual trafficking victims, and briefly addresses concerns that have been expressed about current legislation. Part III discusses the benefits and shortcomings of the TVPA, the Trafficking Victims Reauthorization Act of 2003 (TVPRA), and the Trafficking Victims Protection Reauthorization Act of 2005 (2005 Act). This section also briefly discusses recent federal anti-trafficking programs, as well as gaps in current trafficking data and research. Part IV focuses on problems ignored by the TVPA, mainly human rights issues, economic and gender inequalities, and sensationalism of the sex industry. Part V discusses two different approaches to trafficking: the human rights approach and the U.N. Protocol. Finally, Part VI discusses how the TVPA can incorporate the human rights approach to better deal with human rights issues and the preventative measures of the U.N. Protocol to target economic and gender inequalities and sensationalism of the sex industry.

2. BACKGROUND ON TRAFFICKING

   1. An Overview of the Trafficking Industry

      The people who endure the grossest forms of commercial sexual abuse throughout the world are those who are at the bottom of lots of different, and very complicated, hierarchies. They are female, they are from poor families in poor communities, and they belong to despised racial and ethnic minorities. They are abused and exploited, and a proportion are locked into sexual slavery precisely, and simply, because they can be: they are society's most vulnerable people. (14) "Sex trafficking" is defined as "the purchase, sale, recruitment, harboring, transportation, transfer or receipt of a person for the purpose of a commercial sex act." (15) Approximately twenty-seven million people currently live in slavery, and between 800,000 and 900,000 people are trafficked internationally every year; of this, between 18,000 and 20,000 people are brought to the United States. (16) Human trafficking is a lucrative business, grossing seven to ten billion dollars annually, making it the third largest international crime industry behind only drug and arms smuggling. (17)

      Women and children are trafficked into the United States from such places as Honduras, Latvia, Mexico, Korea, Japan, Cameroon, Taiwan, India, and Vietnam. (18) In addition, in many Latin American and Caribbean countries, women and children are trafficked within borders. (19) As the opening passage states, female victims tend to be from low-economic backgrounds, and so traffickers lure them away from their homes with promises of high paying jobs as nannies, maids, dancers, factory workers, restaurant workers, sales clerks, or models. (20) However, there are also trafficking victims who are not from economically deprived families and communities, but rather have been abandoned by their families or are widowed or divorced. (21) For example, in Asia, where women are generally at an economic disadvantage to men, such abandonment coupled with the responsibility of raising children makes women prime targets for traffickers. (22) In some instances, the parents of young Asian girls prime their own daughters for prostitution, "[displaying] their winnings, in the form of TVs, concrete houses, and motorcycles, as a symbol of their daughters' loyalty and beauty." (23) Although families sometimes send their daughters into prostitution as a means of survival, prostitution also often is treated as any other normal economic endeavor. (24)

      Like any other economic endeavor where there is a supply, there is also a demand. Changes in attitudes, ideas, and views about sex over the years have resulted in an increase in the sex industry. Sex trafficking is a primary example. One author suggests that this is due to the demise of class, race, and gender restrictions that once only allowed certain people, namely rich people, the "privilege" of exploiting females from poor countries. (25) Another argues that a country's views on sex, whether they are more open or more restrictive, influence demand for...