B. A Definition that Marginalizes Domestic Victims
In order to prosecute a defendant for sex trafficking or obtain most victim assistance services, the TVPA, and many state laws, require that the trafficking be committed by means of force, fraud, or coercion--or, in TVPA terms, the trafficking must be of a “severe form.” This conception of sex trafficking effectively demands “an assessment of the level of consent of the prostituted person,” and is thus distinctly more restrictive than the definition employed by the U.N. Palermo Protocol, which considers persons trafficked by someone abusing their position of vulnerability to be victims, regardless of consent. While the TVPA does not explicitly address consent, leaving the ‘force, fraud, or coercion’ standard open to broad interpretation, debates around the enactment of the TVPA show that members of Congress were vocal about interpreting this standard to “exclude ... victim[s] who consented to some aspect of [their] transportation or employment.” The interpretation of this standard as requiring complete lack of consent is reinforced by Congress' blanket inclusion of prostituted minors, who are legally incapable of consent, within “severe forms of trafficking in persons.” Courts have, in large part, followed this interpretation and effectively limited prosecution and protection to purely “innocent” victims by requiring a showing of force, fraud, or coercion at the initial moment of compelling an individual to engage in a commercial sex act.
Some scholars explain that Congress' privileging of the purely innocent victim is a result of concerns about fraudulent use of the TVPA's immigration relief. Others note members' ideological concerns about the autonomy of those who voluntarily enter prostitution. In either case, addressing these concerns in this way has come at the great cost of marginalizing domestic victims. Through this interpretation of force, fraud, or coercion, Congress has precluded from assistance two categories of deserving victims: those who are “so vulnerable, terrified, or traumatized that such force, fraud, or coercion isn't necessary to obtain the victims' submission” and those who entered the commercial sex trade consensually, but were later exploited.
Both foreign and domestic victims fall into these categories, but domestic victims are particularly affected. Indeed, as advocates have explained, removing the need to prove violence or coercion would make domestic trafficking eligible for investigation and prosecution by federal law enforcement. In 2005 when Congress made a push to recognize domestic trafficking victims, several of the grant programs authorized exclusively for such victims also extended to “mere” sex trafficking victims who are not required to prove violence or coercion. This statutory gesture suggests recognition of the fact that domestic victims are more frequently trafficked by means that do not involve traditional force, fraud, or coercion.
As Part II made clear, American Indian women and girls are often brought into sex trafficking through means that could be defined as consensual, or not completely “innocent,” under federal law. Many Native women and girls are introduced into trafficking by their friends or by family members who have brought their daughters into the sex trade over several generations. Surrounded by poverty and normalized sexual exploitation, these women and girls see prostitution as a fact of life and enter consensually to make money, but later find themselves dependent on an abusive pimp and unable to leave. Others enter trafficking by way of a boyfriend who gradually moves the woman or girl farther away from her community. Community is critically important in American Indian cultures and this separation makes the victim extremely vulnerable and dependent on her boyfriend to the point that she cannot refuse his demands that she begin prostituting. Such extreme vulnerability, however, does not meet the force, fraud, or coercion standard. Even child victims--and the overwhelming majority of Native victims enter the commercial sex trade as children--are only protected by the TVPA once they reach majority if they have stayed with the same pimp since childhood. Psychologically broken by her childhood pimp, a girl who has reached eighteen need not be violently forced or coerced to prostitute for another pimp; consequently, she is no longer a victim before the law.
Most of the victims above would be precluded outright from protection under the TVPA's definition of trafficking. Prosecutors would preclude others. The cases that manage to meet this high standard are usually the most egregious and most likely to involve foreign victims whose facts, on average, fit more comfortably into traditional conceptions of force, fraud, and coercion. This, in turn, has perpetuated the foreign victim paradigm of trafficking. It has also created a stigma around trafficking convictions that has left prosecutors unwilling to prosecute sex trafficking cases where the number of victims in a ring is less egregious or the element of consent less clear-cut--even if they would otherwise qualify as “severe forms of trafficking.” Victim protections have thus been pushed even further out of reach for domestic victims.
The 2008 William Wilberforce TVPA reauthorization decreased the coercion standard by redefining it to include psychological coercion as experienced by the victim, not a reasonable person. While greatly expanded, it is unclear whether this definition of coercion reaches the most common form of coercion for Native victims: preying on a victim's extreme poverty or emotional vulnerability from a history of sexual abuse. The examples of psychological coercion provided in the House Report on the William Wilberforce Act-- isolation, denial of sleep, punishments, or preying on mental illness, infirmity, drug use, or addictions --still suggest that coercion will be found only in situations where a lack of consent is more readily identifiable.
The Todd holding is another promising step for domestic victims and Native victims given the prevalence of the Todd fact pattern in their community. However, in allowing awareness of a modus operandi to satisfy the “knowledge” or “reckless disregard” requirement, Todd unacceptably gives a pimp who abuses a “consenting” prostitute a “first victim free pass”. But this first victim, and all the others marginalized by the TVPA, experiences the kind of horrible sexual exploitation the TVPA ultimately envisioned combating. As the court described in Todd,“the [TVPA] focuses on those (usually men) who make money out of selling the sexual services of human beings (usually women) they control and treat as their profit-producing property.” At least outside the United States, the State Department has recognized that “the person who is trapped in compelled service after initially voluntarily migrating or taking a job willingly is still considered a trafficking victim.” And even the TVPA recognizes the criminality of “non-severe” sex trafficking--a category into which most of the domestic victims described above would fall. But again, this conception of trafficking is applied primarily to victim protection and prevention programs overseas. Why does the prosecution and protection of domestic victims depend more on a “moral judgment about the victim rather than the conduct of the trafficker in furthering a criminal enterprise, regardless of the deplorable conditions or exploitative practices employed?”
One of the main arguments against providing legal protections and assistance to “mere” “sex trafficking” victims is that doing so would effectively criminalize pimps and prostitution, without regard to whether the person engaging in the commercial sex act is doing so voluntarily. In addition to violating female autonomy, some activists argue, criminalizing prostitution will cause it to become more exploitative by forcing it further underground. While these arguments certainly have merit, they fail to recognize two problems. First, by retaining the “force, fraud, coercion” standard to protect the autonomy of a small group, a large population of domestic trafficking victims in need of help is missed. The current definition leaves an immense gray area between voluntary prostitution and severe sex trafficking, which, as shown above, includes many victims in need of protection. Second, sex trafficking versus prostitution need not be, and is not, a black and white issue. There are ways to promote female autonomy and safe prostitution, while simultaneously protecting actual victims of sex trafficking. These issues will be addressed in Part V. Until U.S. law recognizes the multiple forms of oppression that affect trafficking victims, including forms outside of traditional concepts of non-consenting victims, the anti-trafficking regime will not be able to effectively identify and assist American Indian victims. The following sections evaluate how this definition, and the foreign victim paradigm it furthers, interact with tribal jurisdiction to leave American Indian victims unprotected by those implementing anti-trafficking efforts: law enforcement, prosecutors, and service providers.