Thursday, December 14, 2017

A. The Foreign Focus of U.S. Anti-Trafficking Efforts

The culminating finding of the 2000 TVPA clearly states: “Trafficking in persons is a transnational crime with national implications.” This finding reflects the conceptual framework within which policy makers and two Presidents have sought to combat trafficking. For those debating the passage of the original TVPA, trafficking in persons was an “evil” that happened abroad and only crept into the United States in the form of impoverished, violently exploited foreign victims. Domestic children and adults were not recognized as victims. The first TIP report described the United States as a destination and transit country--but by no means a source of trafficking-- firmly anchoring a “foreign” paradigm of trafficking in U.S. law and rhetoric. This paradigm is reflected in the provisions and structure of the TVPA, the government entities dedicated to combating trafficking, and official government rhetoric. Its effect has been a wholesale marginalization of domestic trafficking victims, which the government has only recently begun to address.

1. Unbalanced Structure of the TVPA

The crime of sex trafficking codified in the TVPA applies equally to U.S. citizen and foreign-born victims, as do federal and state laws regulating pimps and transportation for the purpose of prostitution. But criminal sanctions are just one small portion of U.S. anti-trafficking efforts, which, as embodied by the TVPA, include victim protection and trafficking prevention. The TVPA's numerous prevention provisions exclusively address the prevention of international trafficking through foreign aid and public awareness programs. Despite the 2005 reauthorization's explicit recognition that trafficking “also occurs within the borders ... of the United States,” TVPA prevention efforts continue to focus primarily on addressing the economic and social forces that cause trafficking abroad and bring foreign victims across U.S. borders. Sources of domestic trafficking have been largely ignored.

The thrust of TVPA protection provisions also generally overlooks domestic victims. The most notable--and numerous--protections offered by the TVPA relate to immigration relief. Many scholars have found these provisions to be among the largest contributions the TVPA has offered to the fight against trafficking because they made it possible to decriminalize the many undocumented immigrant victims, something other trafficking statutes failed to do. Obviously, they do not assist domestic trafficking victims, and indeed an official from the DOJ Civil Rights Division explains that these provisions were intended to even the playing field with domestic trafficking victims who do not face the many obstacles presented by an uncertain immigration status. While foreign victims trafficked into the United States are in dire situations and deserving of the most robust protection from the government, it is unclear, as discussed below, how uneven the playing field really is, especially between American Indian and foreign victims. What is clear is that this structural emphasis on immigration relief creates a strong association between trafficking and immigration that warps the perceptions of policymakers and implementers perceptions about who is a trafficking victim and who is eligible for TVPA protections.

Beyond perceptions, the victim protection programs authorized and funded under the TVPA for foreign victims in the United States are more substantial than those available to domestic victims. The very first protection provision, Section 107(b)(1)(A), mandates the provision of TVPA-funded direct emergency services exclusively to foreign victims. All other assistance provisions are applicable to foreign and domestic victims alike. Specifically, Section 107(b)(1)(B) mandates the expansion of benefits and services to victims of severe forms of trafficking regardless of immigration status. Section 107(b)(2) authorizes a discretionary DOJ grant program to expand victim services for both foreign and domestic victims. Consequently, the only provision under which domestic victims are guaranteed trafficking-specific services is Section 107(b)(1)(B). Unfortunately, as applied to domestic victims, this guarantee is by no means the absolute guarantee found in Section 107(b)(1)(A). In fact, it has been severely limited since most of the programs established under Section 107(b)(1)(B) have been targeted at foreign trafficking victims.

The 2005 TVPA reauthorization sought in part to correct this structural imbalance by adding two discretionary grant programs and one mandatory pilot program aimed at domestic victims. But these provisions were never funded. In the 2008 reauthorization, Congress authorized these programs again and attempted to counterbalance Section 107(b)(1)(A) by adding a provision mandating that HHS and DOJ establish a specific program to assist domestic victims. Similar to the results in 2005, this program has yet to be established. Even a 2005 provision mandating a comprehensive statistical review of U.S. trafficking has yet to produce uniform data collection for trafficking crimes among law enforcement agencies.

While the pure structural imbalance has become less severe, this structural realignment has been primarily aesthetic. By 2007, the DOJ noted that fewer than a thousand victims had been assisted under the TVPA. All were foreign victims assisted by TVPA programs for which only aliens were eligible. Tellingly, the DOJ, in its efforts to “meet the needs of all trafficking victims, regardless of national origin ... including U.S. citizens”--a 2009 priority--expanded four trafficking victim programs for which domestic victims were not eligible. The original structural emphasis on foreign victim protections has perpetuated a foreign victim paradigm that has deeply affected subsequent implementation of anti-trafficking efforts.

2. Government Entities Combating Trafficking

The government structure leading U.S. efforts to combat trafficking further promotes this paradigm. Ten different executive branch agencies coordinate anti-trafficking efforts as part of the TVPA-mandated Interagency Taskforce to Monitor and Combat Trafficking. The State Department leads these efforts as chair of the Task Force. Since the TVPA was enacted to address both trafficking around the world and in the United States, the DOJ and the State Department were equally well positioned to lead the government's double-barreled anti-trafficking efforts. Congress could have appointed the State Department and DOJ as Taskforce co-chairs, or appointed no chair at all. But the State Department's selection as the sole lead shows that Congress believed the primary source of human trafficking--even of victims trafficked within the United States--to be abroad. The State Department's mission is to coordinate international anti-trafficking programs; it only becomes involved in U.S. trafficking through its family reunification program for immigrant victims.

Placing the State Department as the sole chair downplays the role the United States plays as a demand market for human trafficking and, even more so, a supply market. It also devalues efforts to address trafficking that takes place wholly within U.S. borders, in which the State Department has little interest. The TVPA is a tool for combating domestic trafficking as much as it is a tool for combating trafficking abroad, but by choosing the State Department to lead TVPA-related efforts, the anti-trafficking regime has been structured such that the needs of domestic victims are inherently secondary.

3. Myopic Government Rhetoric

Finally, this foreign victim paradigm is perpetuated by official government rhetoric that persistently fails to recognize the United States as a source country. The State Department did not list the United States as a trafficking source country until the 2010 TIP Report--ten years after the passage of the TVPA. As a result, U.S. government efforts to combat trafficking within its own borders were never evaluated against other countries and domestic trafficking was never publicly presented as an official problem. On a day-to-day basis, many officials continue to talk about trafficking victims as if they were synonymous with undocumented immigrants. The FBI's Human Trafficking website omits reference to domestic victims and describes trafficking only as a foreign victim would traditionally experience it. The “Help for Victims” page, which directly addresses a victim and explains the help she can receive, is drafted in the form of a response to an inquiry of an immigrant victim considering whether to return “home” or seek immigration relief.

To be sure, significant progress has been made in expanding government rhetoric to include the recognition of domestic trafficking victims. The 2010 TIP report and the 2005 TVPA reauthorization were large rhetorical steps. The DOJ has also begun to publicly discuss the trafficking of U.S. citizen children. In an even more significant step, the DOJ hosted a focus group on human trafficking of American Indian and Alaska Native women and children in August 2010 to identify the types of trafficking that are affecting this population. U.S. Representatives like Chris Smith and Carolyn Maloney have also been vocal in raising awareness of domestic trafficking, and in July 2011, Senator Lisa Murkowski specifically raised the issue of Native American sex trafficking in a Senate Indian Affairs Committee hearing. But much work remains before domestic victims are fully integrated into official and informal government rhetoric.

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