Saturday, July 21, 2018

D. Prosecutorial Failures

Since the passage of the TVPA in 2000, trafficking prosecutions in the United States have increased over 450%. While this dramatic increase is real, the truth lies in the total number of prosecutions, which remain low, especially in comparison to the estimated scope of the problem. Between 2001 and 2005, U.S. Attorneys investigated 555 suspects in matters involving federal human trafficking statutes. Of the 377 trafficking-related matters closed by federal prosecutors during this period, 39% were prosecuted (146 suspects), but 59% were declined for prosecution (222 suspects). This rate is significantly higher than the 22% decline rate for all federal criminal cases in 2004. Only seventy-eight trafficking cases were terminated in U.S. district courts during this period, although a high number--seventy-five--ended in convictions. In terms of sex trafficking cases specifically, the DOJ Civil Rights Division's Human Trafficking Prosecution Unit and U.S. Attorney's Offices prosecuted a hundred cases between 2001 and 2007, convicting 228 defendants. This low number of prosecutions has curtailed the deterrent value of the TVPA's increased trafficking penalties.

Interestingly, despite the enthusiastic proliferation of state trafficking laws over the last decade, sex trafficking prosecutions and convictions in the states have been even less common. Although they were the first states to pass sex trafficking laws in 2003, Washington and Texas--high trafficking states--have had two and one state sex trafficking convictions, respectively. Minnesota, which passed trafficking legislation in 2009 that does not require a showing of force, fraud, or coercion, has also never prosecuted a defendant under its statute. Advocates and prosecutors have pointed to the difficulty of meeting the high “force, fraud, or coercion” standard in the TVPA and in many state laws as one of the main reasons for the low prosecution rate. But the limited success of Minnesota's liberal sex trafficking law suggests that the stringent standard is not the full story. Unfortunately, like law enforcement, federal and state prosecutors are also plagued by unfamiliarity with trafficking laws and an inability to recognize sex trafficking victims. For American Indian victims, uninformed prosecutors combine with jurisdictional barriers to keep sex trafficking prosecutions devastatingly low.

1. An Overly Burdensome Standard of Proof

As discussed above, the TVPA's “knowing force, fraud, or coercion” standard has been interpreted to require a showing of complete lack of consent--a high burden of proof for a crime in which the line between consent and coercion is often blurred at best. Many advocates--and even government officials--have described this burden of proof as a virtual bar to prosecution. Indeed, the DOJ has found that the primary reasons U.S. Attorneys decline to prosecute suspects are “lack of evidence of criminal intent” and “weak or insufficient admissible evidence.” For example, when a trafficking victim is psychologically broken by one trafficker and then passed on to another trafficker, the latter does not need to resort to force, fraud, or coercion. Prosecutors are subsequently unable to establish criminal intent and are forced to charge only prostitution. For Native victims, who are often in familial or romantic relations with their pimps and thus appear complicit, it is prohibitively difficult to provide sufficient evidence of the subtle forms of coercion used by these traffickers. Trafficking expert and lawyer Dorchen Leidholdt explains that the TVPA creates a situation no different from when prosecutors had to prove “earnest resistance” in rape cases. The “innocence” of the trafficking victim becomes the focus of prosecutions, when it should be the criminal actions of the trafficker.

Given the underground and hidden nature of trafficking, victim testimony is usually the only form of evidence available to prove “force, fraud, or coercion.” The success of a prosecution is thus largely dependent on a victim's willingness to testify at great length about her abuse and exploitation. Victims, however, are frequently reluctant to testify out of fear of retribution, shame, or because of trauma. Among American Indian victims, the normalization of sexual exploitation and the “Don't Talk Rule” present major barriers to successful prosecutions. As with crime reporting, Native victims lack incentives to testify in a trafficking prosecution because, unlike foreign victims, neither their immigration status nor their access to victim services is dependent on their willingness to cooperate. Given victim reluctance and the high evidentiary standard, it is not surprising that human trafficking cases are among the most labor- and time-intensive criminal investigations that the U.S. government undertakes. Faced with limited resources, victim reluctance, and a low likelihood of conviction, prosecutors frequently decline cases that, even if clearly exploitative, present complex issues of consent and lack ready evidence of physical violence at the point of recruitment.

As a result, prosecutors have tended to pursue only the most egregious, large-scale cases where substantial evidence of rape, physical abuse, and violent threats leaves consent issues more clear-cut. Interestingly, DOJ statistics show that when sex trafficking of children is the lead charge, 73% of suspects are prosecuted. The fact that “force, fraud, or coercion” need not be proven for minor victims likely explains this phenomenon. But prosecutorial avoidance of challenging cases, usually with adult victims, has marginalized domestic victims who fall into trafficking's gray areas.

2. Mischarging the Crime

Adding to the low prosecution rate is prosecutors' difficult in identifying victims. Prosecutors are unduly influenced by the same constricted paradigms as law enforcement. Many federal and state prosecutors are also unfamiliar with trafficking laws and see trafficking victims as victims of other crimes like sexual assault.

More common than misidentification is the conscious decision by prosecutors to prosecute traffickers for crimes other than trafficking--or for elements of the trafficking crime--on the presumption they will be more likely to secure a conviction while expending fewer resources. Indeed, DOJ statistics reveal that many “human trafficking” prosecutions are actually for “trafficking-related offenses” and not trafficking itself. The Mann Act is commonly used to prosecute sex trafficking cases since there is no need to show force, fraud, or coercion. But the Mann Act is limited to situations in which victims have been transported across state lines, which is often not the case for Native victims. The unfortunate consequence of this practice is that many of these “trafficking” convictions do not reflect the seriousness of the actual crime since they impose shorter sentences than the TVPA. This practice further decreases the deterrent value of TVPA criminal sanctions, which many argue are already insufficient to deter the large financial incentives for traffickers.

3. Jurisdiction-related Prosecutorial Failures

For American Indian victims, general reluctance to prosecute sex trafficking is further aggravated by a jurisdictional maze that inhibits, and often blocks, effective prosecutions. Tribal members living on reservations are subject to tribal laws, federal enclave laws, and federal laws of nationwide applicability. Tribes are limited in their ability to prosecute crimes by the Major Crimes Act of 1885, in which authority over enumerated “serious crimes” committed by non-Native perpetrators on reservations was taken from the tribes and given exclusively to the federal government. The 1978 Supreme Court case Oliphant v. Suquamish took a step further, stripping tribal courts of all criminal jurisdiction over non-Native U.S. citizens.

Tribes can prosecute all crimes committed by Native individuals in areas including, but not limited to, reservations. However, they share concurrent jurisdiction with the federal government over Native perpetrators of “serious crimes,” and, under the Indian Country Crimes Act (ICCA), over Native perpetrators who injure non-Native victims. Moreover, the Indian Civil Rights Act (ICRA) of 1968 limited the penalties tribal courts may impose to a maximum of one-year imprisonment and a $5,000 fine. As a result, tribal courts are disinclined to prosecute severe crimes like sex trafficking. In the six “PL-280 States,” criminal jurisdiction over offenses involving American Indians in Indian Country, granted to the federal government under the Major Crimes Act and ICCA, is transferred to the state government. In these states, tribes and the state have concurrent jurisdiction over Native criminals on tribal reservations. It is not uncommon for certain tribes within a state to follow PL-280 and others not, adding to the jurisdictional confusion.

While sex trafficking is not a “serious crime” under the Major Crimes Act, it is a federal crime of nationwide applicability as codified in the TVPA. Most courts have held that the federal government has exclusive jurisdiction over all crimes of nationwide applicability committed in Indian Country. Consequently, federal courts have exclusive jurisdiction over sex trafficking crimes against Native victims, regardless of geography or the perpetrator's race. Thus far the jurisdictional math is fairly easy.

But federal authorities are not prosecuting traffickers of Native victims. The FBI has admitted that investigating adult sex trafficking is not a priority for the Bureau in Indian Country, and federal prosecutors decline cases brought to them by the Bureau of Indian Affairs (BIA) at a rate higher than any other agency (though it is not clear what percentage of these cases involved sex trafficking). Recent statistics show that federal prosecutors decline 50% of cases from Indian Country--even more when sexual abuse is involved. Advocates and even BIA officers report that “federal prosecutors are unlikely to take a case [on a reservation] unless a conviction is virtually guaranteed.” But as we have seen, American Indian sex trafficking cases rarely offer “guaranteed convictions.” This reality is made even more problematic by Amnesty International's finding that tribal prosecutors sometimes decline to prosecute crimes because they assume federal prosecutors will do so.

In the absence of federal action, what justice is available to a Native victim on a tribal reservation? In PL-280 states, the state could step in and prosecute a trafficker under the state's sex trafficking law. But similar reports of prosecutorial indifference to cases involving Native victims have been made about state prosecutors. As a result, non-Native traffickers--the majority of traffickers of Native victims--easily slip by unpunished. If the trafficker is American Indian, tribal authorities share jurisdiction with the state. However, with few resources to revise their codes, no tribe has yet codified sex trafficking as a crime.

In non-PL 280 states--which are the majority of states--Native trafficking victims have little recourse when the federal government declines to prosecute. States do not have the authority to prosecute a crime against a Native victim on a reservation. Tribal authorities may only intervene in the case of an American Indian trafficker. Under current tribal codes, however, they would only be able to charge the trafficker with certain elements of sex trafficking, like kidnapping or sexual assault, since the crime of sex trafficking has not been codified. Such a prosecution would be grossly inadequate because tribes can only impose a sentence of one year and a fine of $5,000, which has minimal to no deterrent effect against a trafficker who may make upwards of $67,000 a year per prostituted woman or girl.

Nevertheless, many tribal prosecutors and judges are fighting within these jurisdictional confines to reduce sexual violence against women and children, forming statewide tribal coalitions to develop specialized courts and sex offender registries, on which many tribes place convicted sex traffickers. Unfortunately, their efforts are ultimately constrained by severely limited federal funding for tribal courts, which decreases the ability to bring timely prosecutions and employ the victim witness coordinators essential to sex trafficking prosecutions. Consequently, tribes find themselves in a losing situation: they are forced to rely on federal prosecutors to effectively combat sex trafficking--especially by non-Native perpetrators--but federal authorities are not intervening.

This jurisdictional paradox disables those who are best positioned to effectively intervene: the tribes, and even the states, whose prosecutors and investigators are more invested in and aware of the challenges in their local tribal communities. Embedded within Native communities and Native culture and priorities, tribal courts are considered by many to be the most appropriate forum for adjudicating cases arising on reservations, particularly culturally sensitive cases involving sexual exploitation.

The Tribal Law and Order Act, signed by President Obama in July 2010, sought to remedy some of these problems. The Act included numerous provisions to encourage more aggressive federal prosecution of reservation crimes and expanded training opportunities for BIA and tribal police, as well as programs to strengthen tribal courts. Most notably, the Act increased tribal court criminal sentencing authority from one to three years. However, for a tribal court to give the longer sentence, the defendant must have the same right to a lawyer that he would have in state or federal court. The cost of providing a lawyer is prohibitive for many tribes. In any case, this sentencing authority remains grossly inadequate for sex trafficking crimes. While the Act does promote increasing tribal authority to arrest an individual acting in contravention of federal law, regardless of his race, it does nothing to address the jurisdictional barriers to prosecution other than requiring federal prosecutors to maintain data on criminal declinations in Indian Country. Sarah Deer explains that the Act's purpose was very specific to domestic violence and sexual assault and is thus of little use in addressing sex trafficking in Indian Country. Some critics contend that the Act places undue emphasis on increasing federal prosecutions, when “[t]he best jurisdiction to deal with these local crimes are Indian tribes.” These concerns hold true for American-Indian sex trafficking, which is frequently community-based.

Like other trafficking victims, Native victims who have been moved across state borders present complicated jurisdictional cases. But unlike other victims, Native victims, by virtue of their race, have an additional layer of jurisdictional complexity for prosecutors to wade through, particularly if their trafficking ever touched tribal land. Native victims thus encounter significant delays in the prosecution of their cases--if the cases are prosecuted at all. Native victims are also marginalized by prosecutorial indifference, first as domestic trafficking victims and then again as American Indians. They are further victimized by the prejudice of federal and state prosecutors and even jurors, who are often quick to stereotype victims as “drunken Indians.” While official impunity for perpetrators of crimes against Native women has ended, de facto impunity continues, leaving Native women and girls vulnerable to increasing numbers of sex traffickers seeking to exploit this lawlessness.

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