Friday, January 21, 2022


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Excerpted From: Kathleen Kim, The Thirteenth Amendment and Human Trafficking: Lessons & Limitations, 36 Georgia State University Law Review 1005 (Summer, 2020) (73 Footnotes)(Full Document)


KathleenC KimUnderstanding the significance of the Thirteenth Amendment for current antihuman trafficking policies and efforts requires scrutiny of the white supremacist roots that forced the chattel slavery of Africans in the United States. Passage of the Thirteenth Amendment in 1865 federalized the abolition of slavery and involuntary servitude and promised a new beginning for the United States and the possibility of its redemption. Yet, decades of systemic antiblack suppression, segregation, and discrimination plainly show that the Thirteenth Amendment did not accomplish all that it set out to do, namely, to also eliminate the “badges and incidents of slavery.” For the last twenty years, human trafficking, often called “modern-day slavery,” has been the primary site of Thirteenth Amendment-related legislation and litigation. In addition to the Trafficking Victims Protection Act (TVPA) of 2000, which Congress passed pursuant to the Thirteenth Amendment's Section Two enforcement provision, Section One's self-executing prohibition against slavery and involuntary servitude has been raised on behalf of a diverse range of forced workers in both criminal and civil proceedings. Beyond these policy and legal functions, the Thirteenth Amendment propounds significant rhetorical value for the antitrafficking movement. Many antitrafficking advocates purport an equivalency between present-day human trafficking and antebellum slavery. This analogy seizes upon the moral outrage demanded by 250 years of government-backed slaveholder ownership. Though such comparison may inspire support for present-day antitrafficking efforts, it leaves out the important lessons taught by antebellum slavery and the Thirteenth Amendment's attempt to eliminate it. Slave status in the antebellum era derived explicitly from race. The Thirteenth Amendment meant to wipe out this race-based form of economic subordination. The Thirteenth Amendment also had the prescient objective to overcome slavery's “vestiges,” those practices that would perpetuate race-based economic subordination by denying people of color equal access to rights, resources, and mobility. This Article supports a Thirteenth Amendment framework for human trafficking, but one consistent with the amendment's purpose to prohibit involuntary servitude and its evolving forms with a race-conscious lens. Such an approach legitimizes the TVPA as an appropriate exercise of Congress's Section Two power to enforce the Thirteenth Amendment. It also encourages a structural analysis of human trafficking that highlights populations particularly vulnerable to race-based economic subordination and identifies deficiencies in antitrafficking policies and practices that fail to reach them. Importantly, this approach cautions against antitrafficking measures, which exceed the Thirteenth Amendment's still unfulfilled yet intended scope, to eliminate involuntary servitude and the systems that maintain race-based economic subordination. Such scrutiny would discourage the rush to policies that conflate human trafficking with an ever-expanding range of sexually exploitive conduct, which results in over-criminalization and diverts attention away from the forced labor and services of people of color. It also helps to preserve the integrity of the Thirteenth Amendment as the constitutional paradigm by which to address race-based economic subordination. A Thirteenth Amendment approach to antitrafficking efforts is race-conscious--the through line from chattel slavery to human trafficking--neglect of which impedes the unfinished work of both. Through this analysis, this Article also finds a critical need for a robust constitutional framework to address gender inequality and sexual exploitation. The addition of the Equal Rights Amendment, for example, might present the possibility of an intersectional constitutional framework to protect the rights of exploited and trafficked women of color.

Part I of this Article contextualizes human trafficking within the doctrinal development of the Thirteenth Amendment and Section Two legislation enacted to address subsequent forms of unfree labor. This part describes the origins of a race-conscious Thirteenth Amendment framework and explains its relevance in guiding antitrafficking policy. The overwhelming focus of antitrafficking efforts on sexual exploitation strains the normative foundation of the Thirteenth Amendment.

Part II examines the TVPA and the California Trafficking Victims Protection Act and identifies their most significant contributions to Thirteenth Amendment doctrine. Yet, this part finds that the absence of a Thirteenth Amendment framework to guide the execution of antitrafficking laws has resulted in an overemphasis on the criminal enforcement of sex trafficking at the expense of both labor and sex trafficked persons of color. Part III recommends an antitrafficking approach grounded in the Thirteenth Amendment's aim to not only prohibit slavery, involuntary servitude, and other forms of unfree labor but to also overcome the structural forces that maintain race-based economic subordination. Informed by these Thirteenth Amendment concerns, antitrafficking measures and strategies may yield more effective strategies to prevent trafficking and assist trafficking survivors.

[. . .]

This Article probes the sociopolitical and legal relationship between the Thirteenth Amendment and contemporary human trafficking policy. The TVPA fits squarely within the Thirteenth Amendment's ban on slavery and involuntary servitude. Yet, the Thirteenth Amendment also sought to eliminate the “vestiges” of slavery. The broader scope of the Thirteenth Amendment's mandate urges an approach to antitrafficking law and policy that not only prohibits forced labor and services but also attends to the systemic subordination experienced by trafficking victims due to their marginalized race and economic status. This Article examines antitrafficking law and policy through a Thirteenth Amendment lens. This examination emphasizes the structural dynamics that make poor people of color vulnerable to trafficking. In doing so it highlights the under-recognized phenomenon of labor trafficking. A Thirteenth Amendment lens also finds the criminal justice system ill-equipped to vindicate the rights of trafficked persons and to hold their perpetrators accountable. This Article concludes with suggestions for race-conscious paths forward on antitrafficking policy, given the lessons explored and learned from the Thirteenth Amendment.

Professor of Law, Loyola Law School LMU, Los Angeles; J.D. Stanford Law School; B.A. University of Michigan.

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