Saturday, July 21, 2018

B. Trafficking Victims Protection Act: A New Federal Approach

The TVPA was passed to provide a comprehensive approach to combating domestic and foreign trafficking that was missing from the statutes above. The TVPA establishes a three-prong approach: prosecution, protection, and prevention. The provisions of the TVPA aimed at prevention are devoted exclusively to establishing and carrying out “international initiatives to enhance economic opportunity for potential victims of trafficking” and thus are not directly relevant to domestic victims. Therefore, this Section will focus exclusively on the prosecution and protection prongs.

1. Prosecution: The TVPA's Main Criminal Provisions

The TVPA's main contribution to sex trafficking laws was the creation of a new sex trafficking crime (codified at 18 U.S.C. § 1591) that “penalizes the range of offenses involved in the trafficking scheme,” the collective severity of which the statutes described above often do not capture in their limited sentences. In contrast to the Mann Act, this crime does not require the transportation of victims or johns across state or international boundaries.

The TVPA makes it illegal to:

[R]ecruit, entice, harbor, transport, provide, obtain, or maintain a person to engage in commercial sex acts, or to benefit from such activities, where the defendant knew, or was in reckless disregard of the fact, that ‘force, fraud, or coercion’ will be used to induce the performance of commercial sex acts, or that the person caused to engage in a commercial sex act was under 18.

A “commercial sex act” is defined as “any sex act on account of which anything of value is given or received by any person.” Coercion is defined as “threats of serious harm” (physical or not, including psychological, financial, or reputational) “or physical restraints against any person, any scheme intended to cause a person to believe that failure to perform would result in serious harm, or abuse or threatened abuse of the law.” Victims under eighteen need not show force, fraud, or coercion.

Until the 2008 TVPA reauthorization, the criminal intent for sex trafficking was only “knowing,” and “serious harm” meant only violent, physical harm. Force, fraud, or coercion was also judged under a strict “reasonable person” standard, until the 2008 reauthorization changed it to “reasonable person of the same background and circumstances,” in recognition of the fact that traffickers purposefully target victims who are easier to control because of their educational, social, cultural, or economic characteristics.

Penalties include a mandatory minimum penalty of ten years for sex trafficking of minors and fifteen years if the sex trafficking of the minor was effectuated by force, fraud, or coercion or the victim was under fourteen. Traffickers in either category may be sentenced to life imprisonment.

Examples of situations where a plaintiff successfully established “force, fraud, or coercion” include: (1) a pimp who enticed some of his victims with false promises of a career in professional wrestling, kidnapped others, and then used debts, threats of abuse, and assaults to create a climate of fear and compel them to engage in prostitution; (2) a prostitution enterprise that used assaults and threats of harm to family members to compel adult women into prostitution; (3) and a pimp who employed psychological manipulation, including false promises of love and marriage, to lure victims and then used physical violence and threats of physical restriction to force them into prostitution.

Courts are divided about the correct interpretation of “knowing force, fraud, or coercion will be used,” particularly in light of the subsequent penalty provision, which speaks of the offense being “effected” by force, fraud, or coercion. Traditionally, courts have seen this penalty provision as offering an enhanced sentence over the ten-year maximum penalty permitted under 18 U.S.C. § 2421. Consequently, they have interpreted these provisions in light of Apprendi v. New Jersey and required proof that force, fraud, or coercion actually was used to effectuate recruitment into a commercial sex act at the moment of recruitment in order to charge a defendant with sex trafficking of an adult. However, in November 2010, the Ninth Circuit ruled in United States v. Todd that a defendant could be charged and punished if he recruited a victim into commercial sex work without force, fraud, or coercion, but knew that such means would be used later. In that case, a man had established a romantic relationship with a series of four young women over several years and suggested to each that she could get rich if she began prostituting herself. Each agreed, and eventually the man began using severe psychological manipulation and physical violence to maintain control over each woman and force her to continue prostituting for his financial benefit. The court held that to be charged under the TVPA, force, fraud, or coercion must be used “at some point in the commission of the offense,” but that at the point of initial recruitment the defendant need only “be[] aware” that such means will be used in the future based on an established modus operandi. This case, however, remains an outlier in its interpretation of the TVPA.

2. Protection: The TVPA's Main Service and Programming Provisions

The TVPA provides an array of victim-focused protections in the form of immigration relief and victim services. Federal law enforcement agents, investigators, and prosecutors can seek immigration relief for undocumented victims in the form of continued presence, T visas and U nonimmigrant status, and, for certain victims, protection from removal. Section 107(b)(1)(A) of the TVPA also grants alien victims of “severe forms of sex trafficking,” who have been certified by law enforcement or are under the age of 18, access to federal and state benefit programs and emergency direct services to the same extent as an alien admitted as a refugee.

While not eligible for these direct, TVPA-dedicated services, which are explicitly aimed at noncitizen victims, domestic victims of severe forms of trafficking are included under sections 107(b)(1)(B) and (b)(2). The former provision mandates that federal agencies expand benefits and services to victims of severe forms of trafficking regardless of immigration status. The latter authorizes the Attorney General to make grants, at his discretion, to States, Indian tribes, and local governments to develop programs for domestic and foreign victims of trafficking. In the 2005 TVPA reauthorization, Congress authorized the Attorney General to make discretionary grants to strengthen investigations into U.S. citizen sex trafficking and increase assistance to such victims. The 2005 reauthorization also mandated a Department of Health and Human Services (HHS) pilot residential treatment program for domestic juvenile victims.

Finally, to coordinate government-wide efforts to serve trafficking victims, the TVPA founded the President's Interagency Task Force to Monitor and Combat Trafficking. The Task Force is chaired by the Secretary of State, and includes the Administrator of the U.S. Agency for International Development, the Attorney General, the Secretary of Labor, the Secretary of HHS, and the Director of National Intelligence. The President has also included members of the White House Office of Management and Budget, the National Security Council, and the Domestic Policy Council, and the Departments of Homeland Security, Defense, Education, and Agriculture.

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