The Coercion of Trafficked Workers

AuthorKathleen Kim
PositionAssociate Professor of Law, Loyola Law School, Los Angeles
Pages409-474
409
The Coercion of Trafficked Workers
Kathleen Kim
ABSTRACT: Theories of coercion exist across multiple disciplines to
explicate the ability of one actor, the coercer, to diminish the free will of
another, the coercee, in the absence of overt physical force. A valid claim of
coercion places legal blame on the coercer or relinquishes the coercee from
legal responsibility for a coerced act or omission. Defining the point at which
coercion occurs, however, is the conceptually more difficult task. Recently,
coercion has emerged as a significant source of analytic concern in a
developing area of the law—contemporary involuntary labor or human
trafficking. It is in this setting where coercion is explicitly codified as a
fundamental legal element in human-trafficking crimes. However, the laws
addressing human trafficking continue to struggle with delineating the
dimensions of coercion. Legal scholars, moreover, have not yet engaged in a
focused exploration of this issue to bring efficacy and substantive meaning
to coercion within the human-trafficking framework. This Article examines
the empirical and normative scope of coercion in the laws addressing
contemporary involuntary labor. Incorporating perspectives from modern
philosophy, this Article critiques older standards of coercion within
Thirteenth Amendment doctrine and advances a new theory of coercion
sensitive to the intricate power dynamics that characterize many human-
trafficking cases. Called “situational coercion,” this new paradigm
recognizes that instead of experiencing coercion through direct threats of
harm from their traffickers, many trafficked workers comply with abusive
working conditions due to circumstances that render them vulnerable to the
exploitation, such as a lack of legal immigration status and poverty. By
more accurately capturing the sociological realities of human trafficking,
which victimize workers in subtle ways, the situational coercion framework
Associate Professor of Law, Loyola Law School, Los Angeles. Thanks to Rick Banks,
Jennifer Chacon, Jack Chin, Brietta Clark, Rick Hasen, Robin Kar, Stephen Lee, Stephen
Legomsky, David Leonard, Hiroshi Motomura, Huyen Pham, Doris Marie Provine, Jennifer
Rothman, Leticia Saucedo, Mark Sidel, the Iowa Law Review editorial staff, and the workshop
participants at the Conference on Asian Pacific American Law Faculty, the W estern Law
Teachers of Color Conference, University of California Irvine School of Law, and Loyola Law
School, Los Angeles for their helpful comments. Thanks to Min Choi and Arizvel Tinoco for
excellent research assistance.
410 IOWA LAW REVIEW [Vol. 96:409
advances the Thirteenth Amendment’s aim to ensure free labor and protect a
broad category of coerced workers.
I. INTRODUCTION ...................................................................................... 411
II. THE THIRTEENTH AMENDMENTS SPECTRUM OF COERCION ................. 417
A. PHYSICAL COERCION ........................................................................ 418
B. LEGAL COERCION ............................................................................. 418
C. PSYCHOLOGICAL COERCION .............................................................. 420
III. THE PREVAILING ONTOLOGY OF COERCION UNDER THE
THIRTEENTH AMENDMENT .................................................................... 425
A. THE FOUNDATIONS OF MODERN COERCION THEORY .......................... 425
B. THE NO REASONABLE ALTERNATIVE FRAMEWORK ............................. 429
C. THE CLIMATE OF FEAR TEST ............................................................. 432
D. THE NO REASONABLE ALTERNATIVE FRAMEWORK PREVAILS .............. 434
IV. A NEW COERCION STANDARD ................................................................ 436
A. COERCION AS DEFINED UNDER THE TVPA OF 2000 ........................... 437
B. IMPLEMENTATION OF THE 2000 TVPA’S COERCION STANDARD ......... 441
V. RECONCEPTUALIZING COERCION AS SITUATIONAL ............................... 450
A. LEGISLATIVE DEVELOPMENTS TO THE TVPA’S COERCION STANDARD .. 450
B. SITUATIONAL COERCION GAINS SUBSTANTIVE LEGAL FORCE .............. 453
C. THE OBJECTIVE–SUBJECTIVE DICHOTOMY .......................................... 457
VI. THE ONTOLOGY OF SITUATIONAL COERCION ....................................... 459
A. SITUATIONAL COERCION AND NO REASONABLE ALTERNATIVE
COMPARED ...................................................................................... 459
B. SITUATIONAL COERCION: CIRCUMSTANCES, POWER, AND
VULNERABILITY ................................................................................ 461
C. THE SCOPE OF SITUATIONAL COERCION: A THEORY OF
EXPLOITATION OR COERCION? .......................................................... 464
VII. CONCLUSION ......................................................................................... 472
2011] THE COERCION OF TRAFFICKED WORKERS 411
I. INTRODUCTION
Even in the absence of direct physical restraint, many immigrant
workers remain in exploitive work situations, tolerating subminimum wages,
unconscionably long workdays, and substandard living conditions. Why do
they stay? In one case, farm-labor contractors recruited undocumented men
and boys from Mexico to work in the agricultural fields of upstate New
York.1 The workers lived in “isolated, overcrowded and unsanitary
conditions” and labored around the clock for little pay.2 To ensure the
workers’ compliance, the employer–contractors threatened that the workers
would be deported or “hunted down” and returned to the farm-labor camps
if they tried to escape.3 In another case, a domestic worker from the
Philippines “felt compelled to remain” in a Wisconsin home under the
control of an abusive employer who refused to send money to the worker’s
family if she did not submit to the employer’s demands.4 In a final case, a
New Orleans property-management company threatened to evict its
undocumented employees who resided in employer-provided housing when
the workers complained about receiving less than the promised wages.5 In
all cases, federal courts held that these employers coerced the workers to labor
involuntarily, thereby establishing violations of forced labor6 and human
trafficking7 under the Thirteenth Amendment.8 This begs the question,
What is coercion?
Theories of coercion exist across multiple disciplines to explicate the
ability of one actor, the coercer, to diminish the free will of another, the
coercee, in the absence of overt physical force. Sociologists speak of power-
dependence relationships that exert coercive pressure upon the dependent
actor to succumb to the wishes of a more powerful actor.9 Psychologists refer
1. United States v. Garcia, No. 02-CR-110S-01, 2003 WL 22938 040, at *1 (W.D.N.Y. Dec.
2, 2003).
2. Id.
3. Id.
4. United States v. Calimlim, 538 F.3d 706, 711 (7th Cir. 2008), cert. denied, 129 S. Ct.
935 (2009).
5. Garcia v. Audubon Cmtys. Mgmt., LLC, No. 08-1291, 2008 WL 1774584, at *1, *3
(E.D. La. Apr. 15, 2008).
6. 18 U.S.C. § 1589 (Supp. II 2008).
7. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114
Stat. 1464 (codified as amended in scattered sections of 8, 20, 22, 27, 28, 42 U.S.C.)
(describing the purpose of the Act as “combat[ing] trafficking in persons, especially into the
sex trade, slavery, and involuntary servitude”).
8. U.S. CONST. amend. XIII, §§ 1–2 (“Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction. Cong ress shall have the power to
enforce this article by appropriate legislation.”).
9. See generally Linda D. Molm, Risk and Power Use: Constraints on the Use of Coercion in
Exchange, 62 AM. SOC. REV. 113 (1997).

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