Andrea L. Johnson
Andrea L. Johnson, A Perfect Storm: the U.s. Anti-trafficking Regime's Failure to Stop the Sex Trafficking of American Indian Women and Girls, Columbia Human Rights Law Review 617 (Spring, 2012) (481 Footnotes Omitted)(Student Note).(Article with Footnotes-pdf)
In 2001, the United States Department of State ceremoniously revealed its inaugural Trafficking In Persons (TIP) Report, nine months after the passage of the Trafficking Victims Protection Act (TVPA)--the first comprehensive federal law to address human trafficking. The introduction to the statutorily mandated report included a bold statement: “The United States is principally a transit and destination country for trafficking in persons.” The report did not qualify this statement nor did it rank the United States based on the anti-trafficking standards to which it held other countries. President Bush lauded the report and two years later in a speech to the United Nations spoke extensively of the “special evil” that human trafficking presents as part of the global terrorist threat. Trafficking of Americans fully within U.S. borders was, apparently, not a problem.
Despite these public affirmations, the numbers paint quite a different picture. Department of Justice (DOJ) statistics show that 83% of alleged sex trafficking incidents reported in 2008-2010 involved U.S. citizens trafficked within the United States. Experts and advocates estimate that the number of U.S. citizen sex trafficking victims is between 100,000 and 300,000, compared with foreign sex workers trafficked to the United States, which number between 14,500 and 17,500. A 2001 report by researchers at the University of Pennsylvania lent support to these estimates, finding that about 293,000 American youth are at risk of becoming victims of commercial sexual exploitation. These striking numbers make the United States the only advanced democracy in the world where the majority of its sex trafficking victims are its own citizens.
Unfortunately, many policy makers, academics, law enforcement officers, and even service providers continue to operate under the misguided assumption that every sex trafficking victim in the United States originated in a foreign country and is living without lawful immigration status. We seem to forget--or perhaps willfully ignore--that the United States has a long history of sex trafficking entirely within its borders. Since the arrival of the first colonizers in the United States, the sexual exploitation of women of minority races--often for commercial purposes--has been an integral part of colonial, expansionist, nationalist, and racist projects. While sex trafficking has affected women from all segments of society, American Indian women have suffered sexual violence and exploitation at the highest rate of any ethnic group. Traded for their sex and labor by colonizers and westward settlers, American Indian women and girls were continuously subjected to sexual exploitation--often by state actors--well into the twentieth century as part of their forced removal by the U.S. government to reservations, boarding schools, foster homes, and urban centers.
It would be incorrect to suggest that we have forgotten this history of sexual exploitation, because we have not even had the chance. While the U.S. government abandoned its official exploitative policies and practices in the late 1970s, the legacy of sexual oppression has left Native women and girls vulnerable to sexual exploitation at the hands of private actors, primarily pimps. As a result, the sexual exploitation and trafficking of American Indian women and girls continues at disproportionate rates. Alaska, Washington, Oregon, Minnesota, and South Dakota have all investigated reports of Native girls and women lured into sex trafficking rings within the last few years. In Minnesota, where the most research has been conducted, a 2007 state trafficking report found that twelve law enforcement officers and service providers had worked with a total of 345 American Indian sex trafficking victims in the previous three years. A study in Minneapolis the same year showed that “24% of women on probation for prostitution in North Minneapolis are Native women”--more than ten times the proportion of American Indians living in the city (2.2%). Likewise, Alaska Native women and girls comprise approximately 33% of all prostituted and trafficked women in Anchorage, but Alaska Natives only constitute around 8% of the city's population. The DOJ has acknowledged that the disproportionate representation of American Indian women among sex trafficking victims is a problem nationally.
Despite the government's significant efforts to combat trafficking since the passage of the TVPA in 2000, sex trafficking of American Indian women and girls continues strong--the data above is only the tip of what is almost certainly a much larger iceberg. Decades of official government exploitation have created a psychological, socio-economic, and legal dynamic in American Indian communities that facilitates the sexual exploitation of Native women and girls at the hands of private actors. Unfortunately, current anti-trafficking efforts have been constructed and implemented in a way that overlooks this legacy and perpetuates the factors that make Native women vulnerable to sex trafficking.
This Note explores how the United States' modern anti-trafficking efforts have failed American Indian sex trafficking victims. Part II analyzes the unique characteristics of the sex trafficking of American Indian women. Part III lays out the anti-trafficking structure that federal and state governments have developed since 2000. Part IV then evaluates how this structure has failed to address the needs of American Indian victims both in its construction and implementation. This failure is part of a broader failure of the United States to effectively assist U.S. citizen and legal permanent resident (LPR) trafficking victims, also known as domestic victims. The construction of the TVPA, the government rhetoric surrounding it, and even the federal definition of sex trafficking have all focused myopically on foreign victims, largely ignoring the situation of domestic victims. This foreign victim paradigm of sex trafficking has, in turn, severely marginalized domestic victims in the implementation of government anti-trafficking efforts by law enforcement, prosecutors, and service providers. For American Indian victims, this marginalization is further aggravated by jurisdictional complexities, lack of tribal resources, institutional racism, and generational trauma. Part V explores ways to undo this marginalization and improve anti-trafficking efforts so as to meet the needs of domestic victims and, in particular, American Indian victims.
For several reasons, this is an important time to address the sex trafficking of American Indians and domestic victims more generally. First, the trafficking of American Indian women and girls is a growing problem associated with the increased presence of gangs and drug trafficking rings on tribal land. Weaknesses and potential improvements to anti-trafficking efforts need to be identified before sex trafficking operations become better organized and are driven deeper underground. Second, the Trafficking Victims Protection Act--the statutory leader of all U.S. anti-trafficking efforts--is to be reauthorized in 2012. This presents an opportunity to rebalance the anti-trafficking structure to protect foreign and domestic victims. It is also an opportunity to be an example to the rest of the world of respect for indigenous rights. Aboriginal women are disproportionately represented among prostituted women. Under international and federal law, the U.S. government has a responsibility to protect the rights and well-being of American Indians. The Violence Against Women Act specifically recognized that this responsibility extends to assisting tribal governments in safeguarding the lives of Native women. Addressing American Indian trafficking victims in the new TVPA would meet these obligations and set an example.
II. AMERICAN INDIAN SEX TRAFFICKING: A DISTINCT PHENOMENON
In order to understand how current laws are failing American Indian women trafficked into commercial sexual exploitation, one must first consider the specific characteristics of sex trafficking in this population. Data and research on the prevalence and characteristics of American Indian sex trafficking are scarce. The phenomenon must be pieced together through news articles, incomplete federal crime statistics, and human trafficking reports produced in Canada and states with significant Native American populations. The most comprehensive data available to date comes from the Minnesota Indian Women's Resource Center's (MIWRC) 2009 report, Shattered Hearts: The Commercial Sexual Exploitation of American Indian Women and Girls in Minnesota, and the Minnesota Indian Women's Sexual Assault Coalition (MIWSAC) 2011 report, Garden of Truth, an extensive case study of prostitution and trafficking of Native women in Minnesota. As the first--and only--reports to attempt to holistically describe the situation of trafficked Native women both on and off-reservation, this Note draws heavily from Shattered Hearts and Garden of Truth.
While these reports are limited by their geographic scope and sample size, the source of the primary data used in both reports--Minnesota-- presents a strong case study because it lies on an international land border and an international water port, has a relatively large sex industry, and is part of a region with a relatively high population of American Indians. In addition, both reports define sex trafficking as “receiving, recruiting, enticing, harboring, providing, or obtaining by any means an individual to aid in the prostitution of the individual.” This definition is more inclusive than the much more restrictive TVPA definition, which is the definition used in DOJ trafficking statistics. However, given what little is known about the phenomenon, an over-inclusive trafficking definition can allow for a better assessment of all potentially relevant data. Although these two studies make clear that we are just beginning to fully understand the problem, the data will allow evaluation of apparent trends in who is being trafficked, how, and where.
A. Who Is Being Trafficked
The following sections describe the main characteristics of the Native American women and girls who are being trafficked into commercial sexual exploitation. While many of these characteristics are shared by all domestic trafficking victims, they come together in a perfect storm that disproportionately impacts Native American communities, rendering Native women and girls particularly vulnerable to sex trafficking.
On average, prostituted American Indian women enter prostitution as minors, many as young as twelve or thirteen, and some even younger. The study conducted by MIWRC for the Shattered Hearts report found that 63% of clients who reported commercial sexual exploitation entered prostitution or pornography before turning eighteen. Canadian studies from the 1990's corroborate this finding, reporting the average age of Aboriginal youth entering prostitution as fourteen. Under federal and state laws, prostituted persons under age eighteen are automatically considered sex trafficking victims.
2. Histories of Sexual and Physical Abuse
In addition, American Indian women and girls trafficked into prostitution previously experienced sexual and physical abuse as children and adults at alarming rates. Service providers characterize childhood sexual abuse as the key experience “setting the stage for Native girls' entry into the sex trade.” Of the prostituted Native women interviewed for Garden of Truth, 79% had been sexually abused as children, by an average of four men. Likewise, a Canadian study of 150 trafficked Aboriginal youth found that 80% had been physically, sexually, emotionally, or verbally abused in their homes. This correlation is disconcerting given DOJ data showing that American Indian women are over 2.5 times more likely to be raped or sexually assaulted than women in the United States generally. More than one in three will be raped in their lifetime, usually by a non-Native individual; the figure for the general U.S. population is less than one in five.
Physical abuse and neglect are also experienced at much higher rates in American Indian communities and among trafficked women and girls in particular. In 2008, the rate of American Indian child maltreatment reports in Minnesota was more than six times the proportion of Indian children in the population. The resulting high rate of Native children in foster care (in Minnesota, 9% of children in foster care are American Indian even though they represent only 1% of the state's child population) is strongly related to trafficking. Garden of Truth found that 46% of the prostituted women interviewed had been in foster care, many suffering sexual abuse by foster parents or aging out of the system with no support. A Canadian study similarly found 41% of Aboriginal prostituted youth had experienced neglect, compared to 5% of non-Aboriginal youth.
Advocates in Minnesota, Alaska, and nationally report that Native women and girls exposed to sexual or domestic violence either directly or as witnesses normalize this behavior to the point where they do not see themselves as victims and cannot recognize their own sexual exploitation. In addition, many Native girls are exposed to prostitution as a “career option” at a very young age. MIWRC reported that almost half of the ninety-five women screened had a friend in prostitution, and over one-fourth had a family member in prostitution. The Garden of Truth found that 57% had family involved in prostitution. This exposure leads Native girls to view sexual exploitation as a “fact of life” greatly increasing their chance of being pressured into the sex trade and decreasing their chance of exiting it. Canadian studies report that Native youth find no harm in being paid for sex “since it was taken for free when they were still at home.”
3. Drug and Alcohol Abuse
A history of family and personal drug and alcohol abuse is another primary characteristic of trafficked American Indian women and girls. American and Canadian studies identify parental substance abuse as “a primary factor in the physical and sexual abuse of Native youth, Native youth's decision to run away from home, and their resulting recruitment for prostitution.” In the 2007 Minnesota Student Survey, American Indian girls reported problematic alcohol and drug use by a family member at more than double the rate of girls in the general population.
Studies also find a high level of personal drug use among prostituted American Indian women. Minnesota advocates report that most often Native women have a drug or alcohol addiction prior to entering the sex trade, which is then exploited by a pimp with access to drugs to force the woman into prostitution. Pimps will also provide Native women with free drugs, get them addicted, and then begin prostituting them. A Canadian study found that Aboriginal prostitutes were twice as likely to use drugs and a significant proportion remain in the sex trade to maintain a drug habit.
This risk factor is disproportionately prevalent in American Indian communities. Among 12th grade Native girls in Minnesota, 20-35% reported at least one indicator of a substance abuse problem, over twice the proportion of girls in the general population. The high rate of Fetal Alcohol Spectrum Disorder (FASD) among Native Americans (studies show rates that are many times higher than the rates for whites) is also strongly correlated with sex trafficking. Research of individuals with FASD found that over 50% of such individuals have been sexually victimized and are especially vulnerable to pimps offering free drugs.
Many American Indian women and girls trafficked into prostitution ran away from home and were homeless as a result of abuse, neglect, family substance abuse, or lack of opportunity on impoverished reservations. Suzanne Koepplinger, Executive Director of MIWRC, writes that she sees high numbers of young Native females who are homeless or runaway youth who report exchanging sex for shelter, food, or drugs--what is known as “survival sex.” Local police and Federal Bureau of Investigation (FBI) agents in Anchorage, Alaska, report seeing increasing numbers of rural Alaska Native girls and women running away from their families and villages for Anchorage in search of better opportunities “only to be lured into prostitution by pimps who see young Native runaways as especially easy prey.”
Running away and homelessness are common in American Indian communities. The 2007 Minnesota Student Survey found that 27% of American Indian 12th grade girls reported having run away at least once in the previous year versus 8% of all girls. American Indians also represent 28% of unaccompanied homeless youth in rural Minnesota and 12% in Minneapolis/St. Paul, although they are only 2% of Minnesota's youth population. Given national statistics estimating that once in the street, one third of runaway children will have some involvement with prostitution or pornography, American Indian women and girls are at a much higher risk of becoming sex trafficking victims.
5. Generational Trauma
Arguably the defining characteristic of American Indian sex trafficking is the unique generational trauma from which victims suffer. From the first colonizers to present-day pimps, generations of American Indian women and girls have been repeatedly and forcefully exploited. European colonizers used Native women for their own sexual fulfillment, justifying their acts on their belief that Native women, whose sexual autonomy was respected within tribes, were promiscuous, depraved, and unable to be controlled by Native men. Native women captured in the wars between colonizers and tribes were frequently used for sex and labor or sold for profit.
During westward expansion, sexual abuse by traders and settlers occurred regularly with little or no legal intervention; indeed, the legal system did not consider rape of a Native woman to be rape. In the 1850's in California, Native women were “routinely captured and either held as concubines by their kidnappers or sold to other white men for their personal use.” U.S. troops sent to protect settlers raped, murdered, and sexually mutilated Native women with impunity. Mass killings of American Indians during this period meant that “[o]ral traditions for spiritual healing often died with the elders;” many of the traditions that survived were outlawed by the U.S. government in 1881, weakening tribal nations and hindering survivors' ability to grieve.
Sexual assault by military forces during forced migrations to reservations was also commonplace. Once on reservations, soldiers regularly exploited American Indians' dependency on them for food, clothing, and shelter to extract sexual ‘favors' from Native women. As the forced migrations ended in the late 1800's, the government began removing Native children to boarding schools, leaving Native communities no time to address their collective trauma. In the schools, Native children suffered sexual and physical abuse at the hands of instructors and were threatened to never speak of the abuse--threats that became known as the “Don't Talk Rule”.
Urban relocation programs, which began in 1940, once again relocated American Indians, but this time from reservations to cities with promises of plentiful jobs and transition assistance. The government's failure to provide this support left American Indians unemployed at eight to ten times the national average and isolated from the support of their tribes--“the perfect opportunity for pimps and predators to gain a foothold in the lives of Native people.” The forced sterilization and child removal policies of the 1960s and 1970s continued government exploitation of Native women, leaving “Native people vulnerable to victimization ... [and] ensur[ing] that yet another generation of Native women would be exposed to sexual abuse.”
This history of exploitation has led to what is known as “generational trauma,” as explained in Shattered Hearts:
U.S. government actions such as extermination policies, religious persecution, forced migration to Indian reservations, and systematic removal of Native children to boarding schools caused repeated exposure to trauma, which impeded a natural grieving process. Each time, past and current trauma were transferred to the next generation along with the unresolved grief in what has been termed generational trauma or historical trauma.
According to Koepplinger and other advocates and researchers, generational trauma leaves “entire communities unable to internalize a healthy sense of self” and protect themselves against sexual exploitation.
Studies in Canada and the United States find that this deeply pervasive generational trauma leads many American Indian families and communities to turn at high rates to alcohol, drugs, violence, and crime “as they try to make sense of their own hopelessness.” It has also been linked to the disproportionately high rate of post-traumatic stress disorder among American Indian women and the extreme emotional vulnerability of many Native girls. These disparities, as discussed above, open the door to sex traffickers.
The traumatic legacy of sexual exploitation of American Indian women also deeply affects their ability to exit sex trafficking. In Amnesty International's report, Maze of Injustice, indigenous women described how they “experience contemporary sexual violence as a legacy of impunity for past atrocities.” As a result, many Native victims do not report such crimes, believing no one will investigate. They also are reluctant to seek help out of fear of being blamed, criticized, or even physically hurt by people in their communities for whom generational trauma has normalized sexual exploitation and the culture of silence. Tribal elders, community leaders, and Native victim advocates have spoken out about sex trafficking, but they report that the normalcy of sexual exploitation makes it difficult to motivate a community-wide response to the crime. This combination of reluctance, indifference, and vulnerability has allowed traffickers to get a foothold in American Indian communities.
B. Where They Are Being Trafficked
The sex trafficking of Native women and girls does not follow any predominant geographic pattern. Advocates in Minnesota and Washington report trafficking of Native women from reservation to reservation, off reservations to cities within the region, and wholly within reservations. Given the large number of American Indians living in urban centers today, much sex trafficking is city to city or wholly within a city. Advocates in Minnesota also report trafficking from reservations onto boats moored at the Port of Duluth on Lake Superior.
C. Who Is Trafficking and How
1. American Indian/Non-Indian
While data is limited, there is significant anecdotal evidence from Minnesota advocates that pimps recruiting Native girls are primarily African-American and Hispanic. This evidence is corroborated by 2007-2008 DOJ national human trafficking statistics finding that 80% of “suspects in confirmed [sex trafficking] incidents were Hispanic or black.” Moreover, DOJ statistics show that in at least 86% of reported cases of rape or sexual assault against American Indian and Alaska Native victims between 1992 and 2001, the perpetrators were non-Native. Still, as discussed below, American Indian gangs and even family members are increasingly involved in sex trafficking, making it difficult to make any broad generalizations about traffickers' race.
2. Exotic Dancing/Stripping
Native women and girls who earn money by stripping or nude dancing are often subsequently recruited and prostituted by pimps who are given leads by club owners. Strip clubs are found in dramatically high numbers near tribal reservations, where poverty and isolation “create a supply of women vulnerable to recruitment into the sex trade” and bordering hunting terrains bring in large male populations. Club managers in these areas often pass the dancers on to pimps. Advocates in both the United States and Canada report a pattern where Native women and girls are recruited by pimps to travel a “circuit” throughout one state or several states performing exotic dances. The constant movement from place to place causes the women to lose connection with their community, increasing their vulnerability and allowing pimps to easily push them into more dangerous areas of the sex trade. Eventually these Native women and girls are prostituted out of the bars and clubs in the circuit.
Another common mode of entry into sex trafficking for many women, including Native women and girls, is through direct recruitment by pimps and boyfriends. A 2010 Alaska investigation found that Native girls are being recruited at places where teens gather: malls, central bus stops, youth centers, and parties set up for recruitment. They are also being specifically targeted for their vulnerability: a 2008 Alaska investigation intercepted a phone call by a pimp boasting that he was “going to prowl around the Alaska Federation of Natives convention to get some girls.” In addition, Minnesota advocates report that pimps send other Native women and girls to recruit at shelters for runaway and homeless youth. The women and girls are lured in by a pimp or boyfriend with flattery, romantic promises, gifts, shopping trips, alcohol, and drugs. Those suffering from abuse or living on the street are often brought in by simple offers of care and shelter. Eventually, their boyfriend or pimp wants payback and suggests, often with physical violence, that performing sexual acts for money is her best option. Alternatively, a boyfriend will move the girl farther and farther from her family or take all of her money, and then further break her will through physical and verbal abuse. Both processes result in the girl forming a deep attachment to her trafficker, making it “virtually impossible for her to refuse demands that she begin prostituting.” It is also common for landlords to offer prostitution as a solution to women who are unable to pay rent and would otherwise be forced to live on the streets.
The prostitution of Native female gang members by their gangs--both Native and otherwise --is becoming an increasingly common avenue for trafficking Native American women and girls. A 2001 study of the United States, Canada, and Mexico found that “girls in Native gangs were expected to be emotionally supportive of male members, including providing sex on demand.” In a Minnesota study interviewing one hundred current and former gang members, all Native girls interviewed reported being trafficked by the gang for drugs and money.
Native gang activity has increased significantly since these reports were conducted, expanding both on and off-reservation. Non-Native gangs have also increased their presence on reservations where poverty, political instability, and limited tribal authority act as an open invitation to criminal behavior. As gang activity has risen, so have Native girls' reports of being threatened by gangs at school. Several schools in Canada have reported gangs coming onto school property to recruit Aboriginal girls. A 2001 Winnipeg, Manitoba study found that 70-80% of the female street youth in the area were affiliated with a gang and over 90% of gang members were Aboriginal.
Most disturbingly, Native women and girls are frequently trafficked by their friends and family, who have been involved in prostitution themselves. Alaska officials explain that “the sex ring grows as girls recruit friends from the villages, promising them a free place to stay, shopping trips, and free meals at their ‘boyfriend's' house.” A study of 150 commercially sexually exploited Canadian aboriginal youth found that most had friends near their age who had told them about the “easy money” they could make in the sex trade. The MIWRC study found that other than recruitment by friends, the most common traffickers of young Native females are mothers, aunts, and uncles. Family members often introduce related children into sex work as a form of survival--a way to get basic needs such as food, clothing, or lodging when no other economic opportunities are available. Some family members have been involved in prostitution for several generations or are used by pimps as recruiters.
6. Survival Sex
Finally, poverty is itself one of the main facilitators of Native women and girls' entry into sex trafficking. American Indians experience poverty at the highest rate of any minority in the nation. In Hennepin County, Minnesota, over 40% of American Indian, female-headed households live in poverty. Both in the city and on reservations, severe poverty, homelessness, and lack of economic opportunity are the main reasons Native women enter prostitution: they simply need the money or the shelter, food, or clothing pimps offer in exchange. According to Shattered Hearts author, Alexandra Pierce:
[O]n tribal lands, the trading of sex for a place to live, for a ride, for food, and other basic needs as well as for drugs/alcohol is very, very common. Adult women are often controlled by the person providing those resources, which is itself a form of domestic trafficking that often goes unrecognized.
Experts have identified several factors that increase the likelihood an individual will be trafficked into the sex industry, including poverty, homelessness, sexual abuse, substance abuse, and gang membership. All of these factors are present at disproportionate rates in American Indian communities. But this phenomenon is not just that of an impoverished community. Added to traditional trafficking risk factors is a sordid legacy of sexual violence and relocation that has normalized the sexual exploitation of Native women and girls. On top of that is added generational trauma, which has led to disproportionate rates of substance abuse, violence, and a reluctance to report and intervene in trafficking crimes. Essentially, American Indian women and girls live the perfect storm of vulnerability factors.
As a result, American Indian women and girls are being brought into prostitution at alarming rates and are experiencing severe physical and verbal violence at the hands of pimps and Johns. In addition to the physical injuries, Native women overwhelmingly experience prostitution as a “continuation of the exploitative colonization process.” As Shattered Hearts concludes, “for the vast majority of Native women and girls, the notion that prostitution is a voluntary career choice has no basis in reality.”
This perfect storm has created special challenges in the application of current sex trafficking laws and services to American Indian victims. This Note now turns to a survey of those laws and programs.
III. CURRENT TOOLS TO COMBAT U.S. SEX TRAFFICKING
Until 2000, the United States prohibited trafficking in persons through criminal statutes enacted in the post-Civil War era. The Supreme Court's narrow interpretation of these statutes--as addressing only the most overt and forceful forms of coercion--limited the government's ability to prosecute many cases. The Mann Act, passed in 1910, made prosecution of forced prostitution easier by not requiring proof of force, fraud, or coercion, but the Act applied only to the movement of individuals across state lines for prostitution. Ultimately, the Mann Act's transportation requirements and limited criminal penalties failed to capture the full reality and gravity of trafficking. As a result, the largest number of trafficking cases prosecuted in a single year was six in 1999.
The Trafficking Victims Protection Act (TVPA), passed in 2000, was intended to dramatically change the structure of U.S. anti-trafficking efforts at home and abroad. The Act codified a “victim-centered” approach to combating trafficking by expanding criminal statutes to reach more instances of trafficking, increasing criminal penalties, and creating numerous victim assistance programs. Extensive immigration relief was also a central component. Below is a survey of the relevant federal, state, and tribal tools currently available to address sex trafficking within the United States.
A. Federal Statutes Governing Sex Trafficking
Seven federal statutes govern sex trafficking crimes: 18 U.S.C. §§ 1581, 1583, 1584, 1591 (the Trafficking Victims Protection Act, discussed below), 2421, 2422, and 2423 of the U.S. Code. Sections 1581, 1583, and 1584, codified after the Civil War in response to the Thirteenth Amendment, prohibit holding or returning any person to a condition of peonage; kidnapping, enticing, persuading, or inducing a person to go to another place with the intent that he or she may be sold into involuntary servitude or held as a slave; and knowingly and willfully holding or selling into involuntary servitude or bringing within the United States any person so held. The punishment for all of these crimes is a fine, imprisonment for not more than twenty years, or both. However:
If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.
Sections 2421-2424, which collectively constitute the Mann Act, prohibit knowingly transporting an individual for purposes of prostitution. For the criminal provisions of the Mann Act to apply, a showing of force, fraud, or coercion of the prostituted individual need not be made; however, there must be evidence that the prostituted person was involved in interstate or international travel. The crime carries a ten-year maximum sentence, which is increased to twenty years if the perpetrator uses enticement or coercion. If the prostituted individual is under 18, the crime carries a five-year minimum and thirty-year maximum penalty.
Federal law has long criminalized patronizing the sex trafficking industry. Traveling across state lines or into the United States for the purpose of engaging in any illicit sexual conduct (which includes any commercial sex act with a person under eighteen) is prohibited by 18 U.S.C. § 2423(b) and carries a thirty-year maximum sentence.
This substantial body of law addressing human trafficking, and even sex trafficking explicitly, existed prior to 2000. However, the patchwork nature of the laws, their limited criminal penalties, and their lack of victim protections, ultimately led Congress to find that they were inadequate to address modern trafficking.
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.
C. Other Government Services
Domestic and certified foreign sex trafficking victims are eligible for all other government programs that provide benefits and services to victims and people living in poverty and with health problems. In addition, victims of domestic violence, stalking, and physical and sexual assault--which sex trafficking victims often are--can receive federal funds and services under the Victims of Crime Act (VOCA) and the Violence Against Women Act (VAWA). However, states can withhold VOCA funds from those who have been charged with prostitution-related offenses. VAWA funds for victims of domestic violence, stalking, and sexual assault can be used for women in prostitution, but these funds are allocated primarily to organizations serving victims of domestic violence, dating violence, sexual assault, and stalking, not sex trafficking.
D. State and Tribal Laws
All fifty states prohibit the prostitution of children and pimping under state and local laws passed prior to the TVPA. Most of the anti-pimping laws have a lower burden of proof than the TVPA. Forty-five states and the District of Columbia have enacted specific statutes making trafficking a state felony offense. These statutes follow the same basic format of the federal law, with slight variations in the definition of sex trafficking and penalties. Unlike the TVPA, however, which presumes coercion of minors, some states require that minors prove that at least one of the elements of force, fraud, or coercion induced the commercial sex act. As of August 2011, only twenty states had included victim protection provisions in their trafficking legislation, and only nine of those offered state public benefits to trafficking victims.
No Indian tribe has a statute criminalizing sex trafficking. Not all tribes have statutes criminalizing prostitution, and of those that do criminalize prostitution, most criminalize the act of both the prostitute and the patron.
E. Good Intentions, But Has There Been Progress?
Since 2000, the federal government has spent more than $700 million in its effort to combat human trafficking around the world. While still substantial, a much smaller sum of approximately $225 million has been spent to help victims in the United States. But the problem continues to grow, in particular among domestic victims, where Native American women and girls are disproportionately represented. Why have ten years of vigorous efforts and millions of dollars failed to curtail this phenomenon?
IV. FALLING THROUGH THE CRACKS OF FEDERAL AND STATE SEX TRAFFICKING LAWS
Criticism of the TVPA and other federal and state sex trafficking statutes is well documented. Despite initial government emphasis on trafficking outside the United States, many scholars quickly focused their criticism inward, analyzing the government's shortcomings in fighting trafficking within American borders. Unfortunately, this scholarship has centered almost exclusively on the plight of immigrant victims. Scholarship has thus remained as myopic as the government in failing to address the failures of sex trafficking laws vis-à-vis domestic victims.
But the weaknesses of U.S. sex trafficking laws in protecting domestic victims are many. Regrettably, the socio-cultural context and tribal jurisdiction in which many Native women and girls live only compound these flaws. In large part, current laws are failing American Indian sex trafficking victims because of the exceedingly “foreign” focus of U.S. anti-trafficking efforts. Specifically, TVPA provisions and corresponding government structures and rhetoric emphasize international trafficking and foreign victims trafficked into the United States. Not only does the construction of this legal regime marginalize domestic trafficking victims, but the pervasive ‘foreign’ sex trafficking paradigm causes law enforcement, prosecutors, and service providers to fail to effectively apply sex trafficking laws to domestic victims. This Part will address each of these problems in turn, focusing on how complex tribal jurisdiction and socio-cultural conditions further compound these problems for Native victims.
A. The Foreign Focus of U.S. Anti-Trafficking Efforts
The culminating finding of the 2000 TVPA clearly states: “Trafficking in persons is a transnational crime with national implications.” This finding reflects the conceptual framework within which policy makers and two Presidents have sought to combat trafficking. For those debating the passage of the original TVPA, trafficking in persons was an “evil” that happened abroad and only crept into the United States in the form of impoverished, violently exploited foreign victims. Domestic children and adults were not recognized as victims. The first TIP report described the United States as a destination and transit country--but by no means a source of trafficking-- firmly anchoring a “foreign” paradigm of trafficking in U.S. law and rhetoric. This paradigm is reflected in the provisions and structure of the TVPA, the government entities dedicated to combating trafficking, and official government rhetoric. Its effect has been a wholesale marginalization of domestic trafficking victims, which the government has only recently begun to address.
1. Unbalanced Structure of the TVPA
The crime of sex trafficking codified in the TVPA applies equally to U.S. citizen and foreign-born victims, as do federal and state laws regulating pimps and transportation for the purpose of prostitution. But criminal sanctions are just one small portion of U.S. anti-trafficking efforts, which, as embodied by the TVPA, include victim protection and trafficking prevention. The TVPA's numerous prevention provisions exclusively address the prevention of international trafficking through foreign aid and public awareness programs. Despite the 2005 reauthorization's explicit recognition that trafficking “also occurs within the borders ... of the United States,” TVPA prevention efforts continue to focus primarily on addressing the economic and social forces that cause trafficking abroad and bring foreign victims across U.S. borders. Sources of domestic trafficking have been largely ignored.
The thrust of TVPA protection provisions also generally overlooks domestic victims. The most notable--and numerous--protections offered by the TVPA relate to immigration relief. Many scholars have found these provisions to be among the largest contributions the TVPA has offered to the fight against trafficking because they made it possible to decriminalize the many undocumented immigrant victims, something other trafficking statutes failed to do. Obviously, they do not assist domestic trafficking victims, and indeed an official from the DOJ Civil Rights Division explains that these provisions were intended to even the playing field with domestic trafficking victims who do not face the many obstacles presented by an uncertain immigration status. While foreign victims trafficked into the United States are in dire situations and deserving of the most robust protection from the government, it is unclear, as discussed below, how uneven the playing field really is, especially between American Indian and foreign victims. What is clear is that this structural emphasis on immigration relief creates a strong association between trafficking and immigration that warps the perceptions of policymakers and implementers perceptions about who is a trafficking victim and who is eligible for TVPA protections.
Beyond perceptions, the victim protection programs authorized and funded under the TVPA for foreign victims in the United States are more substantial than those available to domestic victims. The very first protection provision, Section 107(b)(1)(A), mandates the provision of TVPA-funded direct emergency services exclusively to foreign victims. All other assistance provisions are applicable to foreign and domestic victims alike. Specifically, Section 107(b)(1)(B) mandates the expansion of benefits and services to victims of severe forms of trafficking regardless of immigration status. Section 107(b)(2) authorizes a discretionary DOJ grant program to expand victim services for both foreign and domestic victims. Consequently, the only provision under which domestic victims are guaranteed trafficking-specific services is Section 107(b)(1)(B). Unfortunately, as applied to domestic victims, this guarantee is by no means the absolute guarantee found in Section 107(b)(1)(A). In fact, it has been severely limited since most of the programs established under Section 107(b)(1)(B) have been targeted at foreign trafficking victims.
The 2005 TVPA reauthorization sought in part to correct this structural imbalance by adding two discretionary grant programs and one mandatory pilot program aimed at domestic victims. But these provisions were never funded. In the 2008 reauthorization, Congress authorized these programs again and attempted to counterbalance Section 107(b)(1)(A) by adding a provision mandating that HHS and DOJ establish a specific program to assist domestic victims. Similar to the results in 2005, this program has yet to be established. Even a 2005 provision mandating a comprehensive statistical review of U.S. trafficking has yet to produce uniform data collection for trafficking crimes among law enforcement agencies.
While the pure structural imbalance has become less severe, this structural realignment has been primarily aesthetic. By 2007, the DOJ noted that fewer than a thousand victims had been assisted under the TVPA. All were foreign victims assisted by TVPA programs for which only aliens were eligible. Tellingly, the DOJ, in its efforts to “meet the needs of all trafficking victims, regardless of national origin ... including U.S. citizens”--a 2009 priority--expanded four trafficking victim programs for which domestic victims were not eligible. The original structural emphasis on foreign victim protections has perpetuated a foreign victim paradigm that has deeply affected subsequent implementation of anti-trafficking efforts.
2. Government Entities Combating Trafficking
The government structure leading U.S. efforts to combat trafficking further promotes this paradigm. Ten different executive branch agencies coordinate anti-trafficking efforts as part of the TVPA-mandated Interagency Taskforce to Monitor and Combat Trafficking. The State Department leads these efforts as chair of the Task Force. Since the TVPA was enacted to address both trafficking around the world and in the United States, the DOJ and the State Department were equally well positioned to lead the government's double-barreled anti-trafficking efforts. Congress could have appointed the State Department and DOJ as Taskforce co-chairs, or appointed no chair at all. But the State Department's selection as the sole lead shows that Congress believed the primary source of human trafficking--even of victims trafficked within the United States--to be abroad. The State Department's mission is to coordinate international anti-trafficking programs; it only becomes involved in U.S. trafficking through its family reunification program for immigrant victims.
Placing the State Department as the sole chair downplays the role the United States plays as a demand market for human trafficking and, even more so, a supply market. It also devalues efforts to address trafficking that takes place wholly within U.S. borders, in which the State Department has little interest. The TVPA is a tool for combating domestic trafficking as much as it is a tool for combating trafficking abroad, but by choosing the State Department to lead TVPA-related efforts, the anti-trafficking regime has been structured such that the needs of domestic victims are inherently secondary.
3. Myopic Government Rhetoric
Finally, this foreign victim paradigm is perpetuated by official government rhetoric that persistently fails to recognize the United States as a source country. The State Department did not list the United States as a trafficking source country until the 2010 TIP Report--ten years after the passage of the TVPA. As a result, U.S. government efforts to combat trafficking within its own borders were never evaluated against other countries and domestic trafficking was never publicly presented as an official problem. On a day-to-day basis, many officials continue to talk about trafficking victims as if they were synonymous with undocumented immigrants. The FBI's Human Trafficking website omits reference to domestic victims and describes trafficking only as a foreign victim would traditionally experience it. The “Help for Victims” page, which directly addresses a victim and explains the help she can receive, is drafted in the form of a response to an inquiry of an immigrant victim considering whether to return “home” or seek immigration relief.
To be sure, significant progress has been made in expanding government rhetoric to include the recognition of domestic trafficking victims. The 2010 TIP report and the 2005 TVPA reauthorization were large rhetorical steps. The DOJ has also begun to publicly discuss the trafficking of U.S. citizen children. In an even more significant step, the DOJ hosted a focus group on human trafficking of American Indian and Alaska Native women and children in August 2010 to identify the types of trafficking that are affecting this population. U.S. Representatives like Chris Smith and Carolyn Maloney have also been vocal in raising awareness of domestic trafficking, and in July 2011, Senator Lisa Murkowski specifically raised the issue of Native American sex trafficking in a Senate Indian Affairs Committee hearing. But much work remains before domestic victims are fully integrated into official and informal government rhetoric.
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.
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.
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.
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.
V. SEALING THE CRACKS IN CURRENT ANTI-TRAFFICKING EFFORTS
American Indian women and girls are confronted with the perfect historical, social, and legal storm that effectively guarantees they will be overlooked by U.S. anti-trafficking efforts. Although it may seem that quelling this storm requires no less than reversing history, there are tangible steps that the federal government can take to address this problem in a real and systemic way. Three strategies are suggested below.
A. A More Accurate and Equitable Definition of Sex Trafficking
The current definition of criminal sex trafficking found in the TVPA and most state statutes marginalizes domestic victims and has done little to help the many women and girls prostituted under violent and exploitative conditions throughout the United States. To be truly effective, Congress should align the TVPA with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, which defines sex trafficking as:
[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
This definition would increase justice for domestic victims and, in particular, American Indian victims, in several ways. First, by expanding the definition of the means used in trafficking to include “abuse of a position of vulnerability,” the TVPA would be adapted to the actual experiences of trafficking victims in the United States. Anti-trafficking efforts would be able to reach the many domestic victims who find themselves in the gray areas of trafficking, including women who were trafficked as minors and never psychologically or financially able to escape prostitution. This expanded definition would also lower the burden of proof that has been a main obstacle to trafficking prosecutions.
Most importantly, the U.N. definition shifts the focus away from the woman's consent and directs it to her exploitation, which is the ultimate concern of U.S. anti-trafficking efforts, as even the State Department has recognized. The U.N. Protocol specifically states that the woman's consent is irrelevant if any of the enumerated means of trafficking have been used. This definition would end prosecutors' practice of viewing consent to prostitution as a per se bar to justice. It would also obligate law enforcement to do away with assumptions of criminality and ask victims more probing questions. One of the main purposes of the TVPA--decriminalizing immigrant and citizen trafficking victims--would be achieved. Finally, with exploitation as the basis for the criminalization of trafficking, those women who (as in Todd) consented to prostitution but later found themselves in exploitative conditions would also be protected.
The U.N. definition is particularly strong because it does not conflate trafficking and prostitution, thus avoiding the political, ideological, and practical concerns that arose during the 2008 TVPA reauthorization, which sought to federalize anti-prostitution laws. By still requiring proof of the trafficker's exploitation of particular vulnerabilities, the definition excludes fully-informed women who have entered prostitution voluntarily. Moreover, by focusing on the exploitative conditions and not the act of prostitution, this definition empowers women voluntarily in prostitution to seek assistance if they are being exploited.
However, the success of anti-trafficking efforts will remain limited if steps are not taken at the state level to decriminalize prostituted women and, in particular, children. This is a necessary step to complete the shift from focusing on the woman's consent to the exploiter's actions. Many scholars have noted that state prostitution laws work directly at odds with trafficking laws by fostering the presumption that a prostituted woman is a criminal. States should refocus their enforcement efforts and resources on pimps through the aggressive enforcement of federal and state anti-trafficking laws.
Decriminalizing the actions of prostituted women would give trafficking victims a greater chance of receiving the health and social services they desperately need; they could no longer be denied services because of their involvement in prostitution, and law enforcement would seek to assist women instead of incarcerate them. There is a valid concern that more aggressive enforcement of trafficking laws would drive prostitution further underground, making it even harder for these victims to be identified. This risk must be met with improved law enforcement training and trafficking task force coordination. But decriminalizing prostituted women and focusing on traffickers would prevent pimps from holding women captive with the threat that they are engaging in illegal activity, and prostituted women would be able to seek help without the fear of arrest.
B. Untangle the Jurisdictional Maze
The jurisdictional maze that has developed over the last two centuries has taken crime enforcement authority out of the hands of those best positioned to enforce it and engendered such confusion in those empowered to prosecute that they do not even try. This maze is one of the principal reasons that American Indians, both on- and off-reservation, are targets for sex trafficking; crimes against American Indians are synonymous with impunity. In order to undo the deleterious effects of this maze, the federal government and PL-280 states must zealously pursue their law enforcement and prosecutorial responsibilities on tribal land, and tribes must be given more authority over criminal justice.
Treaties, court decisions, and congressional and executive branch directives since the eighteenth century have declared that the federal government has a trust responsibility to Indian nations for the protection of Indian lands and tribal sovereignty, and the provision of basic social services for tribal members. Taking jurisdiction away from tribal authorities and failing to fill the void with federal or state law enforcement or prosecutorial resources is in direct breach of this responsibility. More fundamentally, a 50% prosecution decline-rate for Indian Country crimes--in the face of some of the highest crime rates in the nation--suggests that the federal government is treating American Indian victims as second-class citizens. When it comes to a law of nationwide applicability, like the TVPA, there is no excuse for a disproportionate failure to prosecute on tribal land. The Obama Administration must send a strong and visible signal that crimes on tribal lands will be prosecuted. At the end of 2010 and the beginning of 2011, the DOJ established the Office of Tribal Justice, the Tribal Nations Leadership Council, and the Violence Against Women Tribal Prosecution Task Force in Indian Country to send just that signal. But the focus of these entities has been on domestic violence, sexual assault, and stalking--crimes related to, but nonetheless very different from, sex trafficking. The DOJ must make prosecuting sex trafficking on reservations a specific priority.
At the same time, Congress must empower tribal authorities to combat sex trafficking through their own justice system in cases where federal authorities do not intervene. Congress should act to give tribes concurrent law enforcement and prosecutorial jurisdiction over all offenders on tribal land, regardless of their racial identity. In addition, the Indian Civil Rights Act (ICRA) should be amended to allow the imposition of sentences commensurate with the crime.
Congress undoubtedly had numerous motivations when deciding to restrict tribal criminal jurisdiction, but the official explanation from the Supreme Court in Oliphant was that non-Indians risked being deprived of due process if prosecuted in the tribal justice system. But ICRA already imposes nearly all of the constitutional requirements of the Bill of Rights on tribal courts and allows for federal habeas corpus review of detention ordered by an Indian tribe. With additional federal funds, tribal courts could meet the remaining requirement that criminal defendants have access to legal counsel provided by the court.
Some Indian law scholars propose an “opt-in” criminal jurisdiction program for tribes wanting to assume such broad jurisdiction. As part of an opt-in program, a federal government entity, selected by the DOJ in consultation with the tribes, could determine whether a “tribe appears able to exercise jurisdiction over criminal matters in a manner consistent with due process.” Such a vetting process would likely meet any outstanding constitutional concerns, while ending forced and fruitless tribal reliance on federal authorities. For Native sex trafficking victims, broadened jurisdiction would fill the gap that allows the most frequent perpetrators of trafficking-- non-Native pimps--to go unpunished. It would also allow for more cohesive treatment of criminal matters by keeping everything “in house” as opposed to the current disorienting transfer of cases from tribal to federal government. Perhaps most importantly, broadened jurisdiction would increase “the internal legitimacy of tribal legal systems.”
Such grants of authority, however, are completely hollow if not followed by funding and other resources to enable tribes to develop their courts to operate effectively. Indeed, a U.S. Civil Rights Commission study found that most of the problems in tribal courts are a result of insufficient funds. More funding also needs to be made available to tribal police forces since they, more than the FBI or any state agent, are likely to first encounter trafficking victims and, unlike tribal community members, have a legal obligation to overcome the “Don't Talk Rule.”
Of course, these changes require congressional action, which could take significant time, and time is of the essence. Immediate actions can be taken, however, to increase arrests and convictions of sex traffickers. First, the DOJ Office of Tribal Justice, in consultation with the Tribal Nations Leadership Council, should promote cross-deputization agreements between tribal, state, and federal law enforcement that would allow law enforcement officials to respond to crimes outside their jurisdiction. Cross-deputization would diminish jurisdictional confusion at the moment when urgent police action is most needed and increase the likelihood that the police would respond to a crime report, as well as increase the number of available responding officers. Second, coordination and collaboration agreements should be enacted between state and tribal courts.
In all of these cases, it is essential that tribes act to codify sex trafficking as a crime. Otherwise, victims will be forced to rely on “piecemeal prosecutions” and deprived of effective justice. Codifying sex trafficking will also make tribal law enforcement more effective at identifying sex trafficking victims and ensuring they obtain the correct services and legal response. Importantly, developing their own definition of sex trafficking will allow tribes to tailor their response to the crime within an independent legal framework that takes account of historical sexual exploitation and its impact on the vulnerability of Native women and girls. Such a tailored, culturally-specific definition, when enforced by tribal police and courts, may be particularly crucial to fighting the family and community-based trafficking on American Indian reservations.
More broadly, the structures of the U.S. anti-trafficking regime, notably the Interagency Task Force and its member agencies, must actively and directly engage with tribes and tribal leaders. Tribal and federal coordination, particularly on prosecutions, is not only essential to improving enforcement of the TVPA against traffickers of Native women, it is required by the federal trust responsibility. As President Obama reminded all federal agencies in a November 2009 memorandum, pursuant to Executive Order 13175, the federal trust responsibility requires executive departments to meaningfully consult with tribal officials in the development of federal policies with tribal implications. All federal agencies, including the State Department and the DOJ, are in the process of refining action plans to comply with this directive. Given the substantial effect of sex trafficking on American Indian women and girls, tribes have a significant interest in the future structure and reach of federal anti-trafficking efforts. This consultation process is an opportunity for the DOJ and the State Department, in particular, to bring tribes into the conversation about sex trafficking. An even more effective way to ensure continuous tribal consultation on anti-trafficking efforts would be to place a tribal nations representative on the Interagency Task Force.
C. Fund Domestic and Native Victim-Specific Services
The Department of Justice made “enhanc[ing] the efficacy and parity of services provided to U.S. citizen, LPR, and foreign national victims of trafficking” a priority for 2010. Instead of simple rhetoric, this priority should be codified in the upcoming TVPA reauthorization. Specifically, a provision should be added to the TVPA that mirrors Section 107(b)(1)(A) and provides guaranteed, trafficking victim-specific services to domestic victims. As with foreign victims, these services should include cash assistance and access to immediate shelter that will be reimbursed by HHS, as well as any other services found to be crucial to domestic victims. These guaranteed services would be a drastic improvement in U.S. anti-trafficking efforts, especially for American Indian women living in rural areas far from the large NGOs that receive federal OVC grants.
The other TVPA protection provisions also need to be funded and, more importantly, actively implemented. Although three TVPA reauthorizations have tipped the numerical balance of protection provisions in favor of domestic victims, the authors of the HHS, Senior Policy Operating Group, and Shattered Hearts reports all expressed deep concern about the significant lack of funding for domestically trafficked women making it extraordinarily difficult to assist these women. The DOJ and HHS must make a concerted effort to direct more of the currently authorized funds and services to NGOs that work with domestic victims and ensure that more general federal funding programs apply equally to domestic victims.
In addition, the pilot juvenile residential treatment program included in the 2005 TVPA reauthorization should be redrafted to mandate the establishment of residential programs for minors and adults. Victim advocates have identified residential treatment programs as one of the most important services trafficking victims can receive because they are comprehensive, long-term, and offer what victims need most urgently--shelter. This is especially true for Native victims, many of whom were introduced to sex work as children in order to survive and thus never obtained the education or job training needed to live independently. In light of generational trauma, long-term programs are particularly important for Native victims because it takes an “extensive period of time ... to build enough trust [to the point where] prostituted Native women and girls are open to considering that they are being exploited ....”
It is crucial that a significant amount of the funds and services allocated to domestic victims be set aside to fund victim service programs in rural areas and tribal reservations. In addition to major interstate hubs, these are the United States' trafficking source regions. Funds to reservations were recently increased under VAWA to address sexual violence in tribal communities. These funds should be expanded to specifically include sex trafficking. Alternatively, the TVPA 2012 reauthorization should include a grant program for tribes and NGOs that serve predominantly Native victims. These funds are critical because Native victims benefit from culturally specific interventions. Centuries of mistrust of federal and state law enforcement and service providers means that the most successful victim interventions will come from within the American Indian community. As has been done for Native domestic violence and sexual assault victims, the new Office of Tribal Justice--using TVPA funds--should facilitate the formation of tribal coalitions across the United States that train tribal law enforcement, government, and health and social workers in the provision of culturally appropriate services for trafficking victims.
Finally, efforts should be taken to improve those services already available to domestic victims. Professionals administering mainstream public assistance programs should receive training in trafficking victim identification and assistance. Likewise, the 2012 TVPA reauthorization should repeal the anti-prostitution pledge in order to increase the number of organizations likely to encounter domestic victims.
There are many other steps that can and must be taken to reverse the centuries of sexual, legal, and social exploitation that have made American Indian women and girls vulnerable to sex traffickers. More research is urgently needed into the scope and nature of this phenomenon. Local and tribal law enforcement and prosecutors need to receive intensive training in victim identification and cultural competency, with specific attention to the role of generational trauma in Native communities. And the federal government must actively seek to modify the foreign victim paradigm by increasing public awareness of domestic victims and ensuring that prosecutors prioritize domestic trafficking.
It is incredibly important that efforts to combat American Indian sex trafficking are begun and fostered by tribal communities. The significant role that silence and denial has played in generational abuse and sex trafficking can only be addressed and overcome by Native communities themselves. Native leaders must take the initiative in raising awareness of sex trafficking and crafting culturally specific legal and victim services. Imposing official government superstructures that further leech tribal authority risks leading to additional victimization. At the same time, federal support, particularly financial, is crucial to the success of these community-based efforts. As the government re-evaluates its anti-trafficking efforts in 2012, it can no longer overlook the devastating legacy of sexual exploitation within its own borders. U.S. anti-trafficking efforts must be reshaped to take account of the American Indian domestic trafficking victim; otherwise, the perfect storm will rage on.
. J.D. Candidate 2012, Columbia Law School.