Identifying and Assisting Victims of Human Trafficking

1. Identifying and Assisting Victims of Human Trafficking Prof. Xin Ren, Ph.D. Criminal Justice Division California State University, Sacramento USA renx@csus.edu

2. Statistics

3. Highlights in USDOJ 2011 Report • Task Force opened 2,515 suspected incidents of human trafficking for investigation between January 2008 and June 2010 • A total of 389 human trafficking cases were confirmed involving 488 offenders and 527 victims • 90 percent of victims were female • 8 in 10 of cases were sex trafficking and 1 in 10 of cases were labor trafficking • White (26%) and black (40%) were more likely to be victims of sex trafficking, while Hispanic (63%) and Asian (17%)were more likely to be victims of labor trafficking

4. Highlights • Four-fifth of victims in confirmed commercial sex trafficking were US citizens (83%), while majority of victims in confirmed labor trafficking were undocumented aliens (67%) and qualified aliens (28%) • Most confirmed human trafficking suspects were male (82%) • 62% of suspects in sex trafficking were black and 48% of suspects in labor trafficking were Hispanic • Federal agencies are more likely to lead in labor trafficking investigation (29%) than in sex trafficking (7%)

5. Part 1:Identifying Victims of Human Trafficking

6. 1 2 3 PROCESS MEANS END Recruiting OR Harboring OR Moving OR Obtaining a person, By Force OR Fraud OR Coercion For the purposes of Involuntary Servitude OR Debt Bondage OR Slavery OR Sex Trade Three Elements of Trafficking

7. Understanding The Legal Framework • Trafficking Victims Protection Act (TVPA2000): Emphasizes three Ps (Prevention, prosecution, and protection) • Human trafficking is defined as the recruitment, harboring, transportation, provision, or obtaining of a person for one of three purposes: • Labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery. • A commercial sex act through the use of force, fraud, or coercion. • Any commercial sex act, if the person is under 18 years of age, regardless of whether any form of coercion is involved. • TVPA2000 also provides: • Protection provided to trafficked persons through immigration relief and other benefits • Funding for international efforts focuses on prevention (Victims of Trafficking and Violence Prevention Act of 2000 can be found at www.ojp.usdoj.gov/vawo/laws/vawo2000/)

8. The Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005) • Requires biennial reporting on the scope and characteristics of human trafficking in the U.S., using available data from state and local authorities. • As part of an effort to meet these congressional mandates, the Bureau of Justice Statistics (BJS), in partnership with the Bureau of Justice Assistance (BJA), Northeastern University (NEU), and the Urban Institute (UI), developed the Human Trafficking Reporting System (HTRS).

9. the Human Trafficking Reporting System (HTRS) • 42 Task Forces in 42 jurisdictions cover 25% of US residential population • An incident-based reporting system • To be confirmed as human trafficking: • The case must have led to an arrest and been subsequently confirmed by law enforcement, or • The victims in the case must • 1) have had a "continuing presence" requested on their behalf, or • 2) have received an endorsement for a T or U visa application

10. 118 U.S.C. § 1581 Peonage (Debt Bondage) 18 U.S.C. § 1583 Enticement into slavery  18 U.S.C. § 1584 Sale into Involuntary Servitude 18 U.S.C. § 1589 Forced Labor 18 U.S.C. § 1590 Trafficking Into Servitude 18 U.S.C. § 1591 Sex Trafficking 18 U.S.C. § 1593A Benefiting Financially from Peonage, Slavery, and Trafficking in Persons 18 U.S.C. § 1351 Fraud in Foreign Labor Contracting 1 8 U.S.C. § 1592 Document Servitude (up to 5 years) Federal Crimes

11. New Crimes - TVPRA of 2008 • 18 USC §1351: Fraud in Foreign Labor Contracting • Whoever knowingly and with intent to defraud recruits, solicits or hires a person outside the United States for purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment shall be fined under this title or imprisoned for not more than 5 years, or both • 18 USC § 1593A: Benefiting Financially from Peonage, Slavery, and Trafficking in Persons • Whoever knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in any act in violation of section 1581(a), 1592, or 1595(a) [18 USCS § 1581(a), 1592, or 1595(a)], knowing or in reckless disregard of the fact that the venture has engaged in such violation, shall be fined under this title or imprisoned in the same manner as a completed violation of such section. • 18 USC § § 1583-84, 1591-92 Obstruction • 18 USC § 1594 Trafficking Conspiracy

12. Expansions in Sex Trafficking 18 USC § 1591 • Now includes: • “reckless disregard” of force, fraud or coercion • Additional Provision for minors • “reckless disregard” of minor age • No actual knowledge of minor age is required • Defendant just needs “reasonable opportunity to observe” the victim • The government need not prove knowledge of minor age

13. New Jurisdiction (Extra-Territorial Jurisdiction) under TVPRA of 2008TVPRA Section 225 • 18 USCS § 1596: • In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581, 1583, 1584, 1589, 1590, or 1591 [18 USCS § 1581, 1583, 1584, 1589, 1590, or 1591] if--   (1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or   (2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender.

14. State Responses to Human Trafficking • As of August 2009, 43 states have passed Criminal Anti-Trafficking Laws* • 7 States have pending criminal legislation • Most state laws do not offer comprehensive protections like the TVPA *U.S Policy Alert, Polaris Project available at: www.polarisproject.org

15. Common Misconceptions • Trafficking requires the crossing of national or international borders • Crime of trafficking must involve moving victims from one location to another • Trafficking only involves foreign nationals, not US citizens • You can consent to being trafficked • You can consent to labor exploitation or slavery

16. Along with: physical/psychological/ sexual abuse/ physical threats Look for: Long hours Little/No pay Withholding documents Threats of deportation Threats to family members in home country Isolation Inhumane Living Conditions Having to work when sick or/and no holidays Not able to refuse customer’s illegitimate requests Modern-Day Slavery: A Prison Without Walls

17. California State LawAB 22 • Created a new felony Penal Code section 236.1 which prohibits Human Trafficking • prioritized victim protection along with prosecution including: • Caseworker Privilege • Asset Forfeiture • LEA Requirement for Law Enforcement

18. Typology of Victims of TIP • Immigrants • Immigrants with legal documentation/status • Students • Immigrants with work permit • Immigrants married to US citizens • Illegal Immigrants • Entered legally but over stayed their legal status • Entered illegally with legal documents • Entered illegally with legal documents • Mexican seasonal/migrant workers

19. Typology of Victims of TIP • Non-immigrants (US Citizens) • Runaway children • Curiosity • Child abuse • Angry with parents • Deceived or lured away by someone • Juvenile delinquents • Street/homeless children • Drug addicts • Sex workers

20. Difficulties in Identifying Victims of TIP • Victims refuse to cooperate • Victims did not have any legal documents • Victims cannot help with identification • Illiterate • Mentally retarded • Fear • Language barrier • Do not want to be identified • Incapacitated due to severe abuse • Lack of nationality (citizenship)

21. Part 2: Survivors Access to Federal and State Benefits

22. Post-rescue Outcomes for Victims • Criminal Prosecution • Witness for criminal investigation and prosecution • Immigration relief or repatriation • Social welfare benefits, medical and counseling assistance • Legal aids and assistance • Legal Aid Foundation, CAST (coalition against Slavery and Trafficking), Asian legal Foundation • Civil litigation • Pro bono • Legal Aid • EEOC

23. Safety Privacy Information Legal representation Be heard in court Medical assistance Legal representation Compensation for damages/injury Social assistance Seek residence Return home Family reunification Employment Under the TVPA Victims Of Human Trafficking Are Entitled To:

24. Trafficked persons likely suffer from serious physical, psychological and possibly sexual abuse. An extensive network of culturally and linguistically appropriate services providers is required to meet their urgent and acute needs. Interpretation Housing, food & clothing Medical care (emerg. & long term) & health education Mental health care Legal & immigration services ESL training Independent living skills Safety planning Job placement & employment education Human rights education Assistance needed for Trafficking Survivors

25. Immigration • Provided by the TVPA • Must assist with criminal investigation and/ or prosecution • Forms of Relief specific for Human Trafficking Victims: • Temporary relief through Continued Presence • Possibility to adjust status to become a legal permanent resident through T-Visa or U-visa

26. Trafficking Violent Crimes U Visa T-Visa Continued Presence Immigration Remedies for Victims of Trafficking Short term: Long term:

27. What is Continued Presence (CP)? • Provides temporary immigration relief to potential witnesses who are victims of severe forms of trafficking • Provides work authorization • ONLY Federal law enforcement agents can request for a trafficking survivor to receive this benefits in the United States

28. Expansion of CP Eligibility Under the TVPRA of 2008 • Law Enforcement SHALL take measures to protect the safety of trafficking victims including taking measures to protect family members • CP SHALL be extended if the individual has filed a civil action under Section 18 USC 1595 until the action is concluded. • Materials about CP for State and Local Law Enforcement will be developed and distributed

29. Advanced Parole for Family MembersTVPRA Section 205; 8 U.S.C. § 1229(b)(6) • Law Enforcement MAY submit written requests for parole for family members of trafficked persons • Parole may be extended until final determination of the T-visa application • Victims under 21: • the spouse, child, parent, or unmarried sibling under 18 • Victims 21 years or older: • the spouse or child • All Victims irrespective of age: • is a parent or sibling who LE determines to be in present danger of retaliation as a result of the victim’s escape from the severe form of trafficking or cooperation with law enforcement

30. What Is A T-Visa? • Enables certain victims of human trafficking to live and work in U.S. for four years • Can petition to have spouses and children accompany • Can receive government benefits, including cash assistance for 8 months • Can apply for Green card (Permanent Residence)

31. Who Is Eligible For A T-Visa? ELEMENTS: • Is or has been victim of severe form of trafficking in persons • Is present in U.S., American Samoa, Northern Marianas on account of trafficking • Has complied with reasonable request for assistance in investigation or prosecution of acts of trafficking • Children under 18 do not need to meet this criterion • Would suffer extreme hardship involving unusual and severe harm upon removal

32. What is the U Visa? • Provides immigration relief to victims of certain criminal activity who suffered substantial physical or mental abuse as a result and who have been, are being, or are likely to be helpful to law enforcement • Can petition to have spouses and children accompany • Can apply for Green card

33. T-Visa '‘Severe forms of trafficking in persons'' means: (A) sex trafficking in which a 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; or (B) 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. U Visa “Qualifying criminal activity” is defined by statute to be activity involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes Qualifying Criminal Activity

34. What are the benefits? State of California Department of Social Services • Refugee Cash Assistance (limit of 8 months state funded services, eligibility begins from date of the application for the benefits ) • Refugee Social Services (available for 60 months from the date of application for benefits) • Food Stamps • CALWORKs (limited to a five-year period for adults. Aid begins the date of application) • Cash Assistance Program for Immigrants (CAPI) • Employment Social Services • In-Home Supportive Services (IHSS) Programs • Personal Care Services Program (PCSP) • IHSS Plus Waiver • IHSS Residual Program State of California Department of Health and Human Services • Refugee medical assistance • Medi-Cal • Healthy Families Program

35. Federal Certification • Victims of a severe form of trafficking who have been certified by the Department of Health and Human Services (HHS) are eligible for benefits to the same extent as refugees • Federal and state public assistance benefits, such as Refugee Cash and Medical Assistance, Temporary Assistance for Needy Families (TANF), Medicaid, Supplemental Security Income (SSI), and Food Stamps • Refugee self-sufficiency Matching Grant program and other ORR discretionary grant programs and ORR discretionary grant benefits programs for victims of trafficking

36. Civil Litigation • May be the only means by which victims of trafficking may be “made whole” • Life-changing • Law enforcement declines to prosecute • Discourages would-be-traffickers and employers exploiting trafficked labor

37. Causes of Action • Trafficking Victims Protection Act of 2003 • Explicit right to civil action under 8 USC § 1595 • TVPRA of 2008-No action may be maintained under this section unless it is commenced not later than 10 years after the cause of action arose • Prior to 2003-Implied rights of action under the Thirteenth Amendment and its enabling statute • California: AB 22 granted explicit right to civil action and treble damages • Fair Labor Standards Act • Alien Tort Claims Act • Migrant and Seasonal Agricultural Worker Protection Act • Title VII of the Civil Rights Act • Civil Rights Act of 1866 (“Section 1981”)

38. Importance of Legal Aids • Civil Litigation • Litigation against employers, traffickers, or buyers • Immigration reliefs • T or U visa • Unification of family • Dissolve Marriage or obtain marriage license • Child custody and support • Property division • Spousal support • Return home • Obtain legal travel documentations • Financial assistance for travel

39. Legal Aids • Criminal Proceeding • Advise victims for their rights, options, consequences, and protections • Represent victims in criminal investigation and prosecution • Represent victims in restitution settlements • Notify victims upon release of offenders • Advise and Represent victims in applying for victim compensation fund • Work with victim advocate in LE and DA offices

40. Compensation for Possible Civil Damages • Compensatory Damages • Punitive Damages • Nominal Damages • Injunctive and Other Equitable Relief • Liquidated Damages • Statutory Damages • Pre-judgment Interest • Attorneys Fees and Costs • AB 22 provides for treble damages if HT is proven

41. Equal Employment Opportunity Commission • 1964 law created the EEOC to investigate claims of discrimination and to work out settlements between worker and company • 5-Member Commission with a General Counsel; 50+ offices nationwide (15 Districts); • 1972: EEOC given authority to sue employers in federal court on behalf of employees; all $$ recovered goes to victims

42. EEOC Enforces 4 Laws • Title VII of the Civil Rights Act | 1964 • Equal Pay Act | 1963 • Age Discrimination in Employment Act | 1967 • Americans with Disabilities Act | 1990

43. EECO Functions • Represents victims against the accused employers • Deny benefits • Withholding wages • Confiscate ID/legal documents • Sexual harassment in work place • Sexual assault and rape against domestic or farm workers (legal or illegal) • Physical abuse • Sex discrimination • Forced to perform illegal acts in the course of employment

44. Harm Reduction in Post-Rescue • Secondary Victimization from criminal investigation • Secondary victimization from family and community • Social isolation and discrimination • Financial hardship • Victims physical safety • Possible Social reintegration • Job training • Financial aid • relocation

45. Thank you! Contact Information: Prof. Xin Ren Criminal Justice Division California State University, Sacramento renx@csus.edu 916-278-6381