Tvpra, State Statutes Open Door for Civil Damage Claims by Human-trafficking Victims

• Publication year: 2023
• Citation: Vol. 3 No. 4

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Coryne Levine and Pamela Lee ^*

Abstract: There is not a person alive with a soul that would believe sex trafficking and other variants of modern slavery is a good thing. The individuals that perpetrate those heinous acts should be punished accordingly. In 2003, Congress opened the door for human-trafficking victims to sue for civil damages under the Trafficking Victims Protection Act of 2000 (TVPRA). Since then the TVPRA and similarly drafted state statutes have allowed for human-trafficking victims to seek civil damages against any party that has benefited from their trafficking. Given this expansive inclusion of third-party liability, more and more businesses, especially those in the hospitality industry, are ultimately the ones left to pay for the criminal acts of human traffickers. This article discusses the evolving litigation around human-trafficking claims, beginning with a broad overview of human trafficking, followed by a discussion of the legal standard behind human-trafficking civil suits and recent guidance from U.S. courts on these types of claims. The article concludes with guidance of its own on how businesses can build a foundation for their own defense while simultaneously helping prevent human-trafficking crimes from ever occurring.

Introduction

Civil litigation for third-party claims filed under the Trafficking Victims Protection Act (TVPRA) is still relatively fresh, with about a third of these claims still in active litigation. ¹ As such, there is a lack of case law to evaluate overall liability. The case law that has come out since 2019 has signaled that the TVPRA and statutes

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like it will likely have even broader ramifications than previously considered. Despite the limited precedential guidance, it is expected that this seemingly niche area of law will only continue to grow.

A plethora of nonprofit organizations and government agencies have collectively produced hundreds of available resources on how to help prevent human trafficking. Overwhelmingly, groups across the board agree that bringing awareness to human trafficking is the most foundational method to stopping human trafficking. By implementing intentional training and internal policies, businesses can not only insulate themselves from third-party claims but they can be a force for good in the fight against human trafficking.

Background

What Is Human Trafficking?

The TVPRA, which made human trafficking a federal crime in 2000, provides two different categories of human trafficking: sex trafficking and labor trafficking.

Sex trafficking is defined as "the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age." ²

In contrast, labor trafficking is defined as "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." ³

Key Indicators of Human Trafficking

Individuals identified as being the most vulnerable to human trafficking are those that (1) recently relocated themselves, (2) have a history of substance abuse, (3) have a history of mental health problems, or (4) have been involved in the child welfare systems as

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a child. ⁴ However, it is critical to recognize that anyone can become a victim of human trafficking.

The characteristics listed below point to an active human-trafficking situation that should be reported to local law enforcement or to the Human Trafficking Hotline: ⁵

■ living with their employer or manager,
■ signs of poor hygiene,
■ signs of physical abuse (i.e., bruises, cuts),
■ submissive or fearful characteristics,
■ inability to speak to alone,
■ appeared to be monitored when interacting with others,
■ answers appear to be scripted and rehearsed,
■ does not have control or possession of their identifying documents,
■ seen to be unpaid or paid very little,
■ seen to be living in overcrowded spaces,
■ never alone, and
■ under 18,

The Legal Standard Behind These Civil Suits

The TVPRA was first enacted in 2000 to add forced labor, trafficking for forced labor, and sex trafficking as federal criminal offenses. ⁶ The TVPRA was broadened in 2003 to allow trafficking victims to recover civil damages from their traffickers in federal court. ⁷ In 2008, Congress again amended the TVPRA. In this latest iteration, Congress opened the door for third parties to be sued as "whoever knowingly benefits, financially or by receiving anything of value" from trafficking crimes will be liable for civil damages. ⁸

The standard for beneficiary claims has been interpreted to include a large breadth of parties. For example, hotel franchisors have been held liable under the TVPRA for the actions of their franchisees. ⁹ Even medical professionals have been held liable under the TVPRA in recent years. ¹⁰ The number of possible defendants will likely only increase as some federal courts have acknowledged the likely possibility that the TVPRA can be successfully pursued extraterritorially, so long as the offense itself is extraterritorial. ¹¹

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After civil damages were first allowed under the TVPRA in 2003, approximately 458 cases have been filed under the TVPRA as of 2020. Regarding all types of trafficking, approximately $255,298,993.50 have been awarded in damages either through public settlements, jury verdicts, or judicial rulings. ¹² About 43.67% of the 458 cases filed have ended in public settlement. ¹³ The highest number of federal cases filed under the TVPRA was in 2019, wherein 88 cases were filed alleging some kind of human trafficking. ¹⁴ In comparison, only 6 cases were filed in 2004. Interestingly, almost a third of all cases that have ever been filed under the TVPRA were still ongoing as of May 1, 2021. ¹⁵

Of the 458 cases, a majority of these civil lawsuits focused on forced labor (i.e., agricultural workers, au pairs, etc.), with only 8% of the complaints focusing on allegations of sex trafficking. ¹⁶ However, the Human Trafficking Legal Center expects that number to drastically rise as the number of cases focusing on sex trafficking accounted for approximately 60% of the cases filed...