Saturday, July 21, 2018

E. Inequitable Victim Services

With federal and state prosecutions of traffickers of Native victims exceedingly rare, the second pillar of anti-trafficking efforts--protection-- could still be a way to help combat trafficking. Even when “rescued” by law enforcement, if victims are not provided sufficient resources and rehabilitative services, many may return to their pimps since nothing has shown them that life outside prostitution is better than life in it. Unfortunately, federal and state victim services largely overlook the needs of domestic victims and are ultimately inadequate to protect Native victims from being re-trafficked into sexual exploitation.

1. Ineligibility of Domestic Victims for Certain Services

The TVPA's first assistance provision for trafficking victims in the United States provides emergency benefits and services exclusively to foreign victims. Under this provision, certified and minor foreign victims of severe forms of trafficking are eligible for federally funded, direct emergency services, the same as the services provided to refugees. These include cash assistance and medical care and services for victims of torture. In addition, foreign victims are exclusively eligible for the Office of Victims of Crime's (OVC) Services for Victims of Trafficking Program, which provides intensive case management, medical care, mental health treatment, food, shelter, legal assistance, transportation, and other services deemed necessary. Furthermore, HHS' Office of Refugee Resettlement provides foreign victims case management and services and funds a network of shelters, group homes, and foster care programs for unaccompanied alien children.

According to the DOJ and the Senior Policy Operating Group on Trafficking in Persons, services designated solely for foreign victims were mandated based on the “unique need” of immigrant victims who were otherwise ineligible for the crime victim funds and the general public assistance programs available to U.S. citizens. In other words, the goal was to level the field. Indeed, by being eligible for services to the same extent as refugees, certified foreign victims can now access all of the relevant federal benefits programs for which domestic victims are already eligible. But the services provided to foreign victims have two distinct advantages.

First, the OVC program is a comprehensive program customized specifically to the needs of trafficking victims. Its services are also immediately available and direct. Scholars and advocates emphasize the unique needs of trafficking victims and the immense importance of providing them immediate shelter followed by a long-term, comprehensive package of trafficking-tailored services. Unfortunately, no such comparable customized federal program exists for domestic victims. Instead, domestic victims must piece together a confusing package of mainstream victim and welfare services, none of which directly addresses their particular circumstances. Professionals working in these programs are often unfamiliar with domestic trafficking and are not trained to identify trafficking victims or their specific treatment needs.

At the state level, very few programs have the resources to offer such a comprehensive approach. The only housing resources available are usually through battered women's programs that do not have the capacity to accept trafficking victims. Moreover, advocates report shelters refusing non-certified trafficking victims because they know HHS will not reimburse them. HHS explains that domestic victims need not be certified because “they are already eligible for many benefits and services they might need.” But it appears domestic victims are actually at a disadvantage by not being a certified foreign victim.

The second advantage of the services provided to certified foreign victims is that they are guaranteed. In addition to the OVC program, foreign victims, by virtue of their status as trafficking victims, are guaranteed cash assistance--assistance critical to all trafficking victims. Domestic victims, on the other hand, are not guaranteed any services under the TVPA. They are eligible, by virtue of their citizenship, for programs like Temporary Assistance to Needy Families or Medicaid, but funds will only be available if they meet other stringent eligibility requirements and usually after a long wait. Crime victim funds--the closest thing to trafficking-tailored victim services for domestic victims--are not available at the federal level, or in many states, to adult and minor victims who committed a crime connected with the victimizing incident. Given that American Indian trafficking victims are regularly arrested for prostitution, these funds are of little value.

2. Imbalance of Rehabilitative Services Available to Domestic Victims

Of course, the TVPA offers several other protection provisions that apply to both foreign and domestic victims. Yet the great majority of the trafficking victim programs funded and developed under these provisions have been for foreign victims. Recognizing a growing disparity in services for domestic versus foreign victims, recent TVPA authorizations have added several assistance provisions exclusively for domestic victims. Section 202 of the 2005 TVPA authorizes discretionary grant programs to states, local governments, and non-governmental organizations (NGOs) to expand services for domestic victims, and Section 203 authorizes a mandatory pilot residential program for minor victims. Unfortunately, both of these provisions continue to sit unfunded. In the 2008 William Wilberforce TVPA reauthorization, Congress authorized HHS and the DOJ to establish new programs to provide services exclusively to domestic victims of severe forms of trafficking, but this authorization also remains unfunded.

Little has come of this programming authority. Under its Section 202 authority, HHS launched a “U.S. Domestic Trafficking in Persons Notification Pilot Program” in 2007. The program helped raise awareness of domestic trafficking among service providers and created a mechanism by which HHS would provide identified domestic victims and their case managers with information about the services for which they were eligible by virtue of their citizenship status. Since Section 202 was not funded, the program did not confer any benefits on victims. The biggest (and only other) expansion in domestic victim services came in 2009 when the DOJ funded “three NGO demonstration projects to provide comprehensive services to U.S. citizen child victims of labor or sex trafficking.” But little has been offered beyond this, and little has been done to meet the needs of adult domestic victims. Given that most Native victims enter trafficking as minors, this child-victim focus is not necessarily misdirected, but the underground nature of trafficking can easily keep a child hidden during the short time it takes her to age out of minor status. As adults, domestic victims are subsequently left with virtually no trafficking-specific resources.

The majority of the federal government's efforts to “enhance [its] ability to meet the needs” of U.S. citizen victims and increase the “parity” of services provided to citizen and foreign victims has come in the form of funding programs or creating task forces that will assist trafficking victims, “regardless of national origin.” These passive efforts to increase services provided to domestic victims fall short of the targeted efforts that are needed to help the domestic victim population overcome the unique barriers described in this Note. Moreover, the limited funds that have been made available to assist both domestic and foreign victims are cumbersome for NGOs to obtain, causing some to opt out of participating in the grant program.

In addition, the 2003 TVPA reauthorization placed a restriction on funding to organizations that “promote, support, or advocate the legalization or practice of prostitution.” This restriction is deeply worrisome since the organizations working to protect women in prostitution--even if some of those organizations oppose criminalization of prostitution--are often well positioned to report on abuses and trafficking. For many shelters and trafficking service providers, this restriction compounds the problems already created by the bar on providing services to victims convicted of crimes such as prostitution.

Because resources for domestic victim protections are so limited, victims often end up in overburdened homeless shelters without comprehensive trafficking victim services and safeguards from lurking pimps. Since the pilot residential program was never established, only four residential facilities nationwide serve domestic trafficking victims--for a total of forty-five beds--and all serve only juvenile victims. As a result, in many communities, the best way to secure services for domestic victims is through the juvenile justice or adult detention systems. While detained victims are safe from pimps, they are ultimately treated as offenders and their treatment plans are inappropriately tailored to their prostitution conviction, not their victimization. The end result is that domestic victims are frequently treated as criminals and revictimized in contravention of the TVPA. For those who are not arrested, law enforcement officials have reported having nowhere to send a victim other than to the home from which she ran away or was thrown out.

3. Inadequate Services to Meet the Needs of American Indian Victims

The TVPA authorizes the DOJ to award grants to Indian tribes to expand services to sex trafficking victims generally and domestic victims specifically. No such grants have ever been made, however. Non-TVPA federal grant dollars have been made available to tribal governments for developing culturally-specific victim interventions, but the services under such grants are not designated for trafficking victims. Even with this funding, most reservations cannot afford their own shelters for domestic violence or sexual assault and limited funding threatens the few that have been built. With this limited funding, tribal organizations and Indian women's nonprofits have formed powerful coalitions across states and regions to educate community members about sexual exploitation and violence and provide support services. Ultimately, however, Native women's advocates identify the lack of safe shelter as the primary barrier to assisting those who want to leave the sex trade. They also underline the need for more services and organizations that are aware of Native cultural traditions and able to provide access to Native healing approaches.

More generally, the rural communities in which most of Indian Country is located have been left unprotected by the federal government's decision to structure its victim service delivery around the DOJ's forty-two human trafficking task forces in urban areas. Even within urban areas-- admittedly the center of many trafficking markets--grants have not been made to the crucial nonprofits dedicated to working with the large numbers of American Indian women and girls living in and trafficked to cities.

With few prosecutions and even fewer services available to domestic victims under the current anti-trafficking regime, one begins to wonder if the TVPA and its associated efforts have provided any benefits that did not already exist prior to passage of the TVPA. The DOJ seems to recognize that something is amiss. Among its FY 2010 and 2011 recommendations was: “Examine the impact of trafficking on American Indian and Alaska Native communities and develop strategies for ensuring coordination with tribal justice systems and providing services to Native victims as appropriate.” Part V looks at how the federal government, the states, and the tribes might develop such strategies.

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