Features
Human Trafficking: A New Problem for State Courts
by Gretchen Hunt

The problem of human trafficking, or modern day slavery, has received a lot of national and international media attention, but only recently has it received attention at the state level. At the mention of human trafficking, images spring to mind of Eastern European and Asian women and young girls forced into prostitution, as do vast criminal networks that profit from these abuses. Sadly, these imagined scenarios too accurately reflect the reality for many men, women and children across the United States.

Such realities led to the creation of the 2000 Trafficking Victims Protection Act (“TVPA”) which made human trafficking a federal crime in the United States, provided incentives for non-citizen victims to cooperate with law enforcement and authorized monitoring of foreign anti-trafficking efforts. The TVPA defines human trafficking as a commercial sex act compelled by force fraud or coercion, or where the victim is under 18, or forced labor, including involuntary servitude and debt bondage compelled through force, fraud or coercion. As a departure from earlier laws, traffickers who enslave their victims through subtle means, such as threats of reporting to the authorities, can now be prosecuted.

Many states are only recently recognizing the problems posed by human trafficking, problems that affect not only women and girls in far-off lands, but also runaways, immigrant laborers, nannies, maids, factory workers and women in servile marriages (or “mail order brides”) right here in the U.S. Slavery has been found in both urban and rural areas, impacting U.S. citizens and non-citizens alike, including drug-addicted homeless African American men, undocumented farm workers, domestic servants and women and girls forced into prostitution. Put simply, the only thing victims have in common is a vulnerability exploited by the trafficker: lack of documents, history of abuse, homelessness or substance abuse.

Many states have passed legislation making trafficking a state crime and are training local police to detect trafficking and refer victims to services. Judicial educators should be next in line to institute training and develop protocols on human trafficking and victim-centered interventions.  That is because state courts, along with local police, hospitals, domestic violence and homeless shelters and immigrant centers are often are among the first places trafficking victims seek assistance. Yet, without awareness of the dynamics and signs of trafficking, state courts may deny victims the help they need. According to a study conducted by the Family Violence Prevention Fund, many victims actually sought medical care during the course of their forced servitude or soon after, but few were screened for victimization. ( Turning Pain into Power: Trafficking Survivors' Perspectives on Early Intervention Strategies, Family Violence Prevention Fund (2005), available at www.endabuse.org). Similarly, trafficking victims who escape their enslavement describe seeking police assistance, only to find help elusive due to language barriers and fear of deportation.

In the worst-case scenario, courts without training to recognize trafficking may further harm victims by convicting and punishing them for the very crimes they were forced to commit.  Victims may be charged with crimes ranging from prostitution to false documents and drug possession. Even without state legislation criminalizing human trafficking, state courts can refer victims to services, alert federal law enforcement and apply other state laws to address victimization, such as false imprisonment and assault statutes.

Training state court personnel is one way to increase prosecutions of traffickers and guard against re-victimization. In Kentucky, reported raids of Korean massage parlors resulted in evidence of trafficking, including women living in brothels, being moved frequently and not having control over their documentation; but, many such cases were handled in state courts merely as prostitution prosecutions. This is in contrast to federal prosecutions in which Korean massage parlor owners have been charged with human trafficking in similar schemes. In the federal cases, where law enforcement and court personnel presumably had more training and greater awareness of trafficking, victims were treated as victims rather than defendants. In Kentucky, however, the possible victims of trafficking were charged with crimes themselves. Some involved with the cases even questioned whether the court interpreter may have been in league with the brothel owners, raising further doubts about the accuracy of the information given to the courts by the women.

All players in the court system, from clerks taking criminal complaints, prosecutors and victim advocates to judges, must be trained to recognize human trafficking. Possible victims may present as juvenile defendants, battered spouses or as defendants charged with false documents, prostitution or other crimes. Judges in particular may play a critical role in ensuring that prosecutors and defense attorneys handle trafficking cases as such and that victims of trafficking get the representation and protection they deserve. Under federal law, for example, victims of human trafficking have the right not to be charged with the crimes for which they are being enslaved, (e.g. prostitution) and the right not to be detained in facilities inappropriate to their status as victims (e.g. jail).

Training should include understanding the dynamics of power and control in a trafficking situation, the criminal definition of trafficking, signs and screening tools for trafficking, the need for victim-centered investigation and prosecution and protections and resources for victims. Training should also emphasize the distinction between smuggling and trafficking and how “consent” is irrelevant (since no one can consent to being a slave). Many non-citizen victims will not self-identify as victims, having been coached by their traffickers to tell a different story and made to fear court systems because of their lack of English, lack of documentation or cultural beliefs that they owe a debt to their traffickers. To overcome these barriers, training should address language access, cultural competency and immigration law issues.

Across the country, the best practices and prosecutions have occurred through multi-disciplinary teams centering on the wellbeing of victims. Currently, no uniform or specific protocol exists for state courts dealing with trafficking victims, although New York has developed protocols for state and local prosecutors through an interdisciplinary task force.   Judicial training should mirror as closely as possible the multidisciplinary approach and should include trainers from victim services, immigrant communities and federal law enforcement.

One of the most important things state courts can do to ready themselves to handle trafficking victims is to develop language access plans and train all staff on the importance of language access. Under Executive Order 13166, implementing Title VI of the Civil Rights Act, all agencies, including courts, which receive federal funding, must provide “meaningful access” to their services for people with limited English proficiency. “Meaningful access” may vary based upon the client population and agency resources, but at a minimum includes free interpretation and translation of vital documents. Staff training and process monitoring are also cornerstones to ensure access to the courts. There are few services more important than access to protection in court. While not all trafficking victims will be non-citizens, or have limited English proficiency, the availability of these resources is critical in identifying victims and maintaining control over the court process. As one Spanish-speaking trafficking victim implores in a training video for police, “…please do not use the traffickers as the translator (sic interpreter).”  Most court administrators would deny having used traffickers to interpret, but the reality is that many may have done so inadvertently, when the trafficker or their acquaintance steps in and offers to interpret. This becomes even more of a risk in rural areas lacking competent interpreters and in any area where the victim’s language is not widely spoken.

Fortunately, interpreter services are available in even the most remote areas through special telephone access. Contracting with a telephonic language service,  using competent volunteer interpreters and bilingual staff are all options for courts with limited resources. More information about language access policies and resources is available at the federal website, www.lep.gov.

Once identified, trafficked victims may be eligible for an array of protections and services. Awareness of available services and how to access them should be part of any human trafficking training curriculum. State courts, especially those that often refer victims of domestic violence and sexual assault to services, may be well positioned to also provide referrals to trafficked victims. The first point of contact nationwide may be the U.S. Department for Health and Human Services hotline for trafficked victims at 1-888-3737-888. This service connects individuals to the federally funded trafficking victim services agency in their state. Services may include housing, job placement, assistance with public benefits and immigration matters, counseling, English classes and medical assistance. Legal Aid Societies, which provide valuable legal representation to indigent individuals, are allowed to represent trafficking victims regardless of their legal status.

Non-citizen child victims of human trafficking may present with a number of specialized needs. In addition to being eligible for state child protective services, trafficked children also may benefit from the Unaccompanied Minor Program (http://www2.acf.dhhs.gov/programs/orr/programs/urm.htm) that offers foster care that is linguistically and culturally appropriate. 

Training resources are available at http://www.acf.hhs.gov/trafficking/, the federal site dedicated to raising awareness of human trafficking. The materials primarily address health care and law enforcement professionals, but are applicable to state courts as well. They include posters, informational DVDs, screening tools, powerpoint presentations on the TVPA and victim protections, fact sheets on immigration benefits, sex trafficking, forced labor, the TVPA, and child victims of trafficking.   All materials are free of charge and many are produced in multiple languages.  United States Attorney’s offices across the country have launched a videoconference training series with the help of prosecutors, work groups and other experts on human trafficking to help law enforcement and the courts better identify victims and prosecute traffickers. Training on human trafficking, language access, cultural competency and immigration is provided through the National Judicial Institute on Domestic Violence (NJIDV) in partnership with the National Council of Juvenile & Family Court Judges and the US Department of Justice Office on Violence Against Women (http://endabuse.org/programs/display.php3?DocID=89).  The Freedom Network (www.freedomnetworkusa.org) is a coalition of agencies providing services to trafficked victims, training and technical assistance on human trafficking. Agencies such as Free the Slaves (www.freetheslaves.net) have produced documentaries on the global slave trade and human trafficking survivors in the U.S. that illustrate well the dynamics of trafficking and interventions that will help victims. The Polaris Project compiles information on trafficking of non-citizens and  U.S. citizens, and has issued reports on sex trafficking on the state level, including one about Ohio. (www.polarisproject.org/polarisproject/programs_p3/Ohio_Report_Trafficking.pdf) Training and resources for law enforcement have recently been developed by the International Association of Chiefs of Police (www.theiacp.org/research/VAWPoliceResponse.html) , including a very effective series of short videos that could be used for court personnel.

Modern slavery should have no place in our society. State courts can help detect trafficking, bring traffickers to justice and restore victims. The starting point to achieve this goal is training.