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Best Practices in Human Trafficking Law
This is the second of four human trafficking articles to appear in the monthly NAAGazette. These articles are the work of attorneys who participated in the June 2011 National Attorneys General Training and Research Institute (NAGTRI) International Fellows Program. Human trafficking is also the focus of NAAG President and Washington Attorney General Rob McKenna’s 2011-2012 presidential initiative.
In this article, fellows from Bosnia, Iraq, Taiwan, and the United States discussed model laws and best practices for tackling human trafficking. They were asked to start their discussion by reviewing the United Nations’ (UN) model law, noting that there was no expectation for them to come up with language for a model law. They discussed and memorialized in a short paper what a model law might look like. Could there be one law that would be suitable for every state and jurisdiction? What elements must, at a minimum, be included? What elements would be helpful to be included? What is a “model” definition of trafficking? Should the law contain mandatory restitution for victims? Funding for NGO’s? Visa assistance for illegal aliens? Immunity for victims regarding crimes committed while being trafficked? Should it include trafficking in human organs? Should it include human smuggling? How does the UN model law compare with their concept of a model law?
By Tahseen Hasan Mutlag, Attorney at Law, Iraq, Erin Kulpa, Assistant Attorney General, Virginia Attorney General’s Office, Jennifer Stark, Assistant Attorney General, Massachusetts Attorney General’s Office, Zorica Travar, District Prosecutor, Bosnia, and Evelyn Yiyang Wu, Prosecutor, Ministry of Justice, Taiwan
The problem of human trafficking requires cooperation across national borders, among both state and non-state actors, and between national and local governments. Working within this framework of collaboration, state actors should strive to implement the various provisions identified globally as the best legislative practices for combating trafficking. A victim-centered approach, focused on restoring dignity to victims, is key. Thus, state actors must shift the definition of “success” in human trafficking cases from securing a conviction of the traffickers to empowering the victim and bringing them a sense of control and security.
The development of a model anti-trafficking law intended for implementation in countries and jurisdictions around the world is a difficult proposition. While model laws are useful for informing those drafting anti-trafficking laws, model laws can also serve as stumbling blocks for those overwhelmed by the sheer breadth and scope of the law. In some jurisdictions, it may be impractical to expect a legislature to pass all of the necessary pieces of legislation at one time; in such countries and localities, a more measured approach, with individual portions introduced over time, may enjoy greater success. Some states have administrative regulations more appropriate for placing provisions related to victims’ services or civil code provisions for tort recovery from traffickers.
Additionally, with the infinitely varied legal systems found across the globe ― common law, civil law, Sharia law, or some hybrid of any or all of those systems ― it is impossible to design a single law adaptable to all of these systems. Instead of focusing on a model law, state actors should endeavor to adopt and implement laws and procedures, tailored to their individual jurisdictions, which effectively promote the best practices for restoring dignity to victims and combating trafficking globally.
At a minimum, anti-trafficking laws should include both labor and sex trafficking. It is also advisable to incorporate trafficking for the purpose of removing human organs, as the means utilized by traffickers to lure or abduct victims often mirror that used by other traffickers. Smuggling, however, is a separate crime with separate considerations. Although smuggling crimes often intersect with trafficking crimes, it is important that state actors keep these crimes separate to emphasize that transportation is not an element of trafficking and trafficking often involves domestic victims.
While a comprehensive model trafficking law has limited utility, a uniform law defining the crime of human trafficking facilitates cross-border cooperation in investigation and prosecution. The UN definition (Chapter V, Article 8) would be most suitable, as it defines trafficking in persons in one section covering both sex and labor trafficking, as well as trafficking for the purpose of removing human organs. Trafficking crimes involving victims younger than age 18 should not require the element of force, fraud, or coercion. Additionally, because some of the terms used in trafficking laws may be unfamiliar to law enforcement, prosecutors, and courts, definitional sections that explain the terms used are integral to understanding the intent behind the law.
Attacking the demand for commercial sex acts and for inexpensive labor will effectively reduce trafficking. Laws geared towards demand reduction should include increased fines and jail time for those who purchase sex, and licensing forfeitures and civil penalties for employers complicit in the use of trafficked employees. For sex trafficking crimes, the Swedish model offers the best approach for deterrence while ensuring a victim-centered approach to investigation and prosecution. The sale of sex (not including pandering crimes) should be decriminalized in conjunction with the increased penalties for purchasing sex.
Human trafficking often is the business of larger criminal organizations. For that reason, the most effective strategies for combating trafficking require states to have laws to prosecute all of the elements of these organizations, such as laws prohibiting racketeering-influenced and corrupt organizations, continuing criminal enterprises, and money laundering. Investigative tools, such as strong laws permitting electronic surveillance of these organizations, are critical.
Sentencing for traffickers should reflect the seriousness of these offenses. States should endeavor to enact minimum periods of incarceration for trafficking. Enhanced penalties for the following aggravating circumstances should be included in an effective anti-trafficking law:
- Trafficking those younger than 18
- Trafficking of victims who are physically/mentally disabled
- Repeat offenders of the trafficking law
- Public officials who facilitate or participate in trafficking
- Use of violence against a person to facilitate trafficking
- Moving victims across national borders
- Traffickers in a position of trust to the trafficking victim
- These enhancements reflect the aggravated nature of the crime committed by those who use more violent means of trafficking, abuse the vulnerabilities of certain victims, or take advantage of positions of trust or power.
Restitution for victims of trafficking is critical to restoring dignity and control to the victim and to allow the victim to move beyond the trafficking situation. Restitution should be a part of the criminal process, allowing the victim to receive:
- Lost wages for the period they were trafficked
- Medical expenses
- Physical and occupational rehabilitation
- Counseling expenses
In the event that any of these expenses are paid by the state, the defendant should be ordered to reimburse the state. In order to allow restitution to be paid, states should have the ability to seize the assets of the trafficker or to place liens upon his or her property. States should enact either specific asset forfeiture provisions for trafficking crimes, similar to those in existence of drug trafficking, or should enact general asset forfeiture provisions for all crimes.
Civil damages for trafficking ― allowing victims to bring suits against their traffickers for the physical, mental, and emotional damages they suffered as a result of the trafficking ― should be a separate consideration. Victims can proceed under existing civil remedies, but a separate tort for victims of trafficking is inappropriate. Since there are no separate civil remedies for other crime victims, in some countries, inclusion of such a provision might imply that other crimes are not subject to a suit for civil remedies.
Victims’ services are key to a successful trafficking prosecution. There can be no criminal prosecution if a victim does not feel safe and secure enough to testify. Victims’ services should include both temporary and long-term shelter, job training and placement, psychological counseling, substance abuse and mental health treatment, and medical care. States should supply funding for non-government organizations, through monetary grants, to allow these organizations to provide victims’ services. Perhaps the most important victim service, at least for foreign nationals, is visa assistance for trafficking victims that are undocumented within that country’s borders. These visa provisions should include a path to citizenship for the victim, working permits for the victims, and allowance for the victim to bring family members into the country. The safety of the victim’s family members ― often left behind in the home country and subject to threats of violence by associates of the traffickers ― is crucial to the victim’s sense of freedom and safety.
Best practices dictate that a person who is forced into prostitution, or, as a consequence of the trafficking situation, is in violation of some immigration provision, should not be prosecuted for such crimes. However, immunity is not appropriate for every crime committed in the course of trafficking, such as homicide or violent assaults. A prosecutor should have the discretion in each situation to determine what charges are appropriate.
A comprehensive legislative plan to combat trafficking should include all of the provisions noted above, which are centered on the goal of restoring dignity to victims. Legislation is but one piece of the puzzle, however; effectively ending human trafficking requires not only prosecuting traffickers and protecting victims, but also preventing trafficking from occurring in the first place.
Tahseen Hasan Mutlag
Evelyn Yiyang Wu