Saturday, July 21, 2018

C. Law Enforcement Failures

Several scholars and government researchers have attributed the lack of success in implementing anti-trafficking efforts in the United States to law enforcement officers, who are the primary identifiers of domestic victims. As Professor Dina Haynes explains, among law enforcement, “there is a lack of understanding about the law and what it means to have been trafficked, a lack of willingness to recognize and believe victims ... and a basic lack of will to prioritize the protection of victims of human trafficking.” The federal government recognizes this problem and has taken measures to train law enforcement. But this training has been misdirected and of limited success. On tribal reservations, where the number of law enforcement officials is extremely limited, law enforcement failures are experienced in even greater proportions.

1. Failure to Identify Victims

Despite the fact that the TVPA has been in place for ten years, independent and government-led studies continue to document a disturbing inability of law enforcement officials to correctly identify sex trafficking victims.

A 2008 HHS study on the challenges of identifying trafficking victims explained that many local law enforcement agents were simply unfamiliar with human trafficking laws and, if aware of their existence, believed such laws required the movement of a victim from one country to another. HHS found there was “an overall lack of knowledge that trafficking can occur domestically.” According to U.S. Associate Attorney General Thomas Perelli, this problem is especially severe for Native American sex trafficking.

More systemically, law enforcement has been deeply affected by the foreign victim paradigm. The HHS study found that very few law enforcement officers recognize adult U.S. citizens and LPRs as potential victims. Instead, they equate trafficking with “foreign-born, young females forced into prostitution.” Professor Haynes explains that on top of this narrow paradigm is a “rescue paradigm” making law enforcement more ready and willing to identify trafficking victims who were “found chained to a bed in a brothel” and rescued by police. Haynes, HHS, and the State Department report that law enforcement officers are often unwilling to listen to and view as credible those who self-rescue or are arrested on the street, and they fail to ask the questions that would take them beyond the prostitution crime to uncover the trafficking. Given that foreign victims have the chance of being rescued by ICE officers, in addition to the FBI, this paradigm marginalizes domestic victims who fall outside ICE jurisdiction.

In addition, HHS found that “when a victim does not view herself as a victim, the interactions with law enforcement trying to help her are often negative and sometimes hostile.” Such refusal to recognize one's exploitation is particularly prevalent among Native victims, many of whom have grown up surrounded by prostitution or sexual abuse. Indeed, HHS reports that failure to identify victims for this reason affects domestic victims particularly strongly. Even when they do self-identify as victims, the racism Native victims experience at the hands of law enforcement decreases their chance of correct identification. Native victims report that law enforcement and prosecutors are often quick to stereotype them as “drunk Indians” and question their credibility. The cultural norm of not looking elders in the eye is also reported to raise law enforcement suspicion of Native victims.

This problem is exacerbated by the fact that law enforcement often will not confirm that a person is a “victim of a severe form of trafficking” if they believe a case is not likely to be prosecuted or prosecuted successfully. As discussed above and in the next section, the TVPA's high standard for prosecution makes it easy for law enforcement to jump to a negative conclusion for many domestic victims.

Of course, law enforcement will have an even harder time identifying victims if victims are not willing to report the crime. Foreign and domestic victims alike have very low reporting rates because of fear of retaliation by the trafficker, distrust of law enforcement, fear of arrest, and shame. This distrust of law enforcement is particularly severe, however, among Native victims who not only suffer from a long history of abuse--physical, sexual, and legal--by those intended to protect them, but also a long and continuing history of law enforcement indifference to crimes against Native women. Native victims' relationship with law enforcement is comparable to that of foreign victims trafficked from unstable, impoverished nations without rule of law. Foreign victims, however, are provided with incentives, in the form of immigration relief, to report their trafficking. This relief also incentivizes correct law enforcement identification since officers understand that the stakes--deportation--are high. No such incentives exist for domestic victims.

2. Prostitution-Focused Priorities

When confronted with a domestic trafficking victim, whether an adult or a child, a law enforcement officer is more likely to see and treat her as an illegal prostitute. States rarely enforce their pimping laws, so many traffickers have been left to roam free while their victims are incarcerated. Law enforcement's tendency to arrest and charge domestic victims for prostitution is a result, in part, of the “innocent” victim conception promoted by the TVPA. Law enforcement officers assume that to be a victim, a woman cannot have also engaged in criminal behavior--prostitutes are thus seen as accomplices, not victims. Moreover, given the “schizophrenic body of federal and state law which simultaneously classifies prostituted persons as both potential victims and per se criminals,” it is not surprising that law enforcement relies on “time-tested and clear-cut prostitution routines,” as opposed to unfamiliar and elusive anti-trafficking mandates. It is even less surprising when one considers that vice squads, formed to fight prostitution under laws that criminalize prostitutes, are frequently the first to encounter sex trafficking victims. This tendency towards prostitution enforcement is readily apparent in the handling of prostituted minors, who continue to be arrested and charged with prostitution at alarming rates despite the TVPA classifying all prostituted minors as sex trafficking victims.

For Native victims, this prostitution enforcement default is compounded by long-standing perceptions of American Indian women as having a proclivity towards prostitution. Reports of service providers and law enforcement--even tribal police--blaming Native victims of forced prostitution for “getting themselves into it” are common. The MIWRC study found that the large majority of Native victims interviewed had been arrested for prostitution several times before receiving help.

This law enforcement practice greatly weakens sex trafficking laws as applied to American Indian victims. In addition to the credibility hurdles presented by not being rescued, prostituted victims have to prove they are really victims, not just criminals. A prostitution conviction is also likely to inhibit a woman from receiving victim assistance. In addition, service providers receive most of their referrals from local law enforcement. If law enforcement is misidentifying these women as criminals, they will be less likely to receive the services they need. Finally, this practice is precisely counter to one of the principal missions of the TVPA: avoiding criminalizing victims. Many have understood this purpose to apply to the decriminalization of undocumented aliens, but in the 2005 Conference Report for the TVPA reauthorization, Congress specifically noted that this purpose “should be true for American citizens” as well as foreign victims. But practices do not appear to have changed; consequently, the TVPA does not have an equally decriminalizing effect on domestic as compared to foreign victims.

3. Misdirected Law Enforcement Training

There is clearly a need for significant and widespread law enforcement training on sex trafficking. The federal government has implemented several training programs, but the majority have been targeted at government officials, task forces, and law enforcement officers at the federal level, with a strong focus on the border as the primary locus for anti-trafficking efforts. There have been few comparable programs for law enforcement at the state and local level focusing on the “beat cop” who is actually more likely to encounter trafficking victims or children at risk and who is best positioned to discover the localized, small-scale sex trafficking in which domestic victims are frequently involved. Focusing on state anti-trafficking measures and local enforcement is even more crucial given limited federal anti-trafficking resources and the fact that state and local governments are the primary locus of criminal enforcement. The 2005 TVPA reauthorization authorized grants to state and local law enforcement to strengthen investigation and prosecution of severe forms of domestic trafficking, but these grants were never requested by the DOJ. The training that has trickled down appears to only aggravate this implementation problem for domestic victims: participants in the 2008 HHS study noted that “the majority of outreach materials developed for and by the human trafficking field focused primarily on international victims.”

4. Special Law Enforcement Challenges on Tribal Reservations

Finally, law enforcement's multifaceted failure to protect domestic sex trafficking victims is felt especially severely by American Indians living on or trafficked to or from tribal reservations. Although they are sovereign nations, many tribal reservations are dependent on U.S. government funds to sustain their tribal government operations, including law enforcement. Indeed, the U.S. government has a legal responsibility--called the Federal Trust responsibility--to ensure the rights, well-being, and sovereignty of American Indians, including a responsibility to provide social, educational, and medical services. However, Amnesty International reports that “federal and state governments provide significantly fewer resources for policing in Indian Country ... than are provided to comparable non-Native communities.”

The Standing Rock Tribe in North and South Dakota, for example, stretches over 2.3 million acres of land, but only has six or seven patrol officers and two investigators; only two to three officers are usually on duty. Similar situations have been reported on reservations in Oklahoma, Alaska, and California. State police and federal investigators are usually located a substantial distance from tribal communities and are often unaware of the seriousness of the problem of sexual assault on reservations. As a result, Native women and girls “have to wait hours or days to receive a response from police and, in many situations, receive no response at all.” Suspects are not arrested for weeks or months, if ever. Given such strained resources, tribal police have not prioritized responding to crimes of sexual exploitation.

Law enforcement on tribal lands is also greatly limited by the complex interaction of federal, state, and tribal jurisdiction. As explained in Part IV.D below, tribal authorities are limited in the types of crimes and suspects to which they may respond; in many situations the federal government or a state may have jurisdiction over a criminal in Indian Country. Jurisdiction is dependent on the nature of the crime, its geographic location, and whether the perpetrator is American Indian. As a result of this complex jurisdictional algorithm, the first question police will usually ask when approached by a Native victim--on or off the reservation--is “[w]as it in our jurisdiction?” If this question is not quickly resolved, reported crimes often go unaddressed by tribal, state, and federal authorities.

Given that sex trafficking is a crime that frequently takes place over various locations and one that police have great difficulty identifying, law enforcement response to the sex trafficking of American Indian women and girls is often delayed or nonexistent. Notably, tribal police must defer to federal or state authorities to investigate crimes committed by non-Native perpetrators on tribal land. Many tribes, however, have cross-deputization agreements with a locality, state, or the federal government that allow tribal police to enforce state or federal laws, such as the TVPA, over all perpetrators on Indian lands. Unfortunately, authorities on both sides are sometimes too distrustful to sign an agreement or to respect one already in force. Often only one governmental unit, state or tribal, is willing to cross-deputize. Tribal police do retain the power to detain non-Native suspects before transferring them to federal or state authorities, but many tribal officials do not realize this. This is highly problematic, as data suggest that many traffickers of Native victims are non-Indian.

State and federal law enforcement involvement in Indian Country has by no means helped to overcome insufficiencies in tribal law enforcement. In 1953, several states were given criminal jurisdiction concurrent with tribal authorities under Public Law 280 (PL-280), but they were not granted additional funds by Congress to support the new law enforcement activities they assumed. In addition, funds were reduced to tribal authorities as a result of the jurisdictional shift. Moreover, sex trafficking crimes are not a priority for the state and federal investigators working with tribal reservations, nor for officers in many of the cities to which Native victims are trafficked. Amnesty International found that the FBI rarely investigates such crimes and when it does, delays are lengthy before investigations begin. They also found that the FBI often does not pursue a case in which tribal law enforcement has already begun an investigation, giving tribal police a perverse incentive to not take steps to preserve evidence.

Extremely limited policing resources and the unwillingness or inability of tribal, state, and federal law enforcement to assume jurisdiction over sex trafficking crimes not only leaves American Indian victims with even fewer chances of receiving law enforcement protection, it increases their risk of being trafficked. This jurisdictional dynamic has created a sense of “lawlessness” on many reservations that has attracted non-Indian crime rings. These crime rings are increasingly perpetrators of the sex trafficking of Native women and girls.

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