Chapter 9
Criminal Justice SystemResponses
U.S. FederalLaw:TheTVPA
The TraffickingVictims Protection Act (TVPA)defines a severe form of trafficking as:a) A commercial sex act induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; orb) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery (TVPA, Section 103, 8a and 8b).
TVPA
The Trafficking Victims Protection Acttakesa four-pronged approach includingpreventionprotectionprosecution(known as the 3Ps)andmonitoringother nations’ anti-traffickingefforts
Prevention
Educationandawareness(Rescue and Restore Coalitions, 42 Task Forces nationwide, trainings by DHS,DOT)Targetedoutreachto vulnerablepopulations (Posters with hotline for the NationalHuman Trafficking Resource Center (NHTRC, Be Free Text Line, Partner with Polaris Project)Strengthening penaltiesagainstbuyers and traffickersEfforts to addresssex-trafficking ofat-riskgroups*
Prevention Critiques
Focused more on justice system efforts than social services/ diverts fundingFocus on “at risk groups” only includes Native peopleKnownhigh-risk populations are not consistently the focus – or even a focus at all – of outreach and prevention education. Blackand Latina/osshowthe highest risk of sex trafficking, and are largelynon-existent in sex trafficking prevention effortsLGBTQ* youth are also known to be at heightened risk, yet prevention and outreach are extremelylimitedAreaswith high rates ofhomeless, runawayor truant youth,schoolstudent turnover, anddrop-outrates—identified risk factors for sex trafficking—should be an obvious focal point of outreach and preventioneducation, but they are not.
Protection
Protectionand assistance to survivors oftraffickingT-VisaU-Visa
Criticisms
servicesto survivors arelimitedthefocus centers more upon identifying and prosecutingtraffickerschild and adult trafficking survivors have been denied appeals for social services fundingassistanceCap on U visaT visa is hard to getConditional on cooperation with prosecution, with some exceptions
Prosecution
Typicallyprosecuted on a federal level, although cases can also be prosecuted on a state/ county level as well.If there is a strong case with sufficient evidence of force, fraud and coercion, or if the case involves a minor, and if there is a cooperating victim(s), the federal prosecutor’s office will generally take the case.Instates with weak anti-trafficking laws, less prosecutorial experience, and/or reduced capacity for investigating such cases, the preference is to refer to the federallevel.Casesthat are prosecuted on a federal level are prosecuted by the U.S. Department of Justice’s U.S. Attorney’s Offices.TheUnited States is divided into ninety-four federal districts, each with their own federal district courts and federal prosecutor(s).Federalprosecutions for sex trafficking remain relatively static, in the hundreds.
Prosecution
If there is insufficient evidence, or if a victim is unable or unwilling to testify, then the case is typically prosecuted on thestate level, where the case may be charged as a lesser crime.Insome cases, the evidentiary burden may actually be less for a sex trafficking charge depending on the state law, so prosecution on a state level might be preferred in suchcircumstances.Predict future rise in state prosecutions as legislation shifts on a state level.
Challenges to Prosecution
Time constraintsConditional services tied to prosecution involvementHave to see their trafficker in court,revictimizingSurvivor may not want to prosecute for varied reasonsLack of services/ supportTrauma impacts survivor and testimonyAddressing language barriersDeportation
Sentencing
mandatory minimum sentence for sex trafficking offensestenyears, fifteen in cases involving those under 14 years of age,maximum sentencelife in prison withoutparoleThefederal sentence for transporting child pornography is between15-30 yearsin prison.Thefederal sentence for each count of possessing child pornography is10 yearsin prison, and/or a fine of up to$500,000.Federalsentences for producing pornography are generally10-30 years.
Monitoring Other Nations’ Activities
Sets minimum standardsCountries submit reports to the United States indicating compliance/ noncomplianceTier SystemU.S. Sanctions Tier 3 countries
Critiques ofMonitoring Other Nations’ Activities
Arrogance ArgumentsPoliticizedPredictably, nations like Cuba and North Korea do not submit reports and are placed as Tier 3 nationsSanctions punish those who need the most helpIncentives to underreport or exaggerate effortsReflects global power dynamics
Reauthorizations
TVPRA 2003TVPRA2005TVPRA2008TVPRA2013
State Law
Every statehascriminalized sextraffickingWyomingwas the last state to pass legislation in2013Varies from state to state,definitionallyas well as in implementationEven within the same state, implementation may vary by jurisdictionEducation, Training and Awareness varies widely
Identification
Reactive policingProactive policing
Challenges to identification
Officer Attitudes, Stigma and BlameMisreportingDefinitional IssuesLack of further investigation in cases of co-occurring IPV, Rape & Sexual assaultLack of education and training
Criminalizing Trafficking Survivors
ProstitutionJuvenile prostitutionUndocumented immigrationThe Ideal Victim
Juvenile Justice System Responses
Attimes youth are charged withprostitution, resulting injjsystem involvementThereis a high rate of chronic runaway status among DMST survivors, including running from juvenile facilities.Often, individuals want to go back to their trafficker, because they think there is a love relationship there.Used as Justification for lock-down careBecause of scarcity of sex traffickingservices,placing trafficked youth in juvenile detention centers, in addition to foster care, remains anorm.
Juvenile Justice System Responses
Lock-down-care iscontentiously debatedProponentsOpponentsAlternatives
Juvenile Justice System Responses
Lack of appropriate therapyThey are mixed with juveniles in detention for varied reasons, such as anger management, drugs, or violent offensesThey may be treated for a condition they do not have, and not treated for effects from sextrafficking (more on psychological effects and treatments in chapter 10)
Safe Harbor Laws
Decriminalizes minorsTargets buyersExpands servicesVaries from state to stateAdult exclusion
Legislation supporting Adults
Diversion programmingProstitution courtsPipelineinto services as opposed toincarcerationSomestates also include eliminating felony prostitution charges from survivors’ criminal records.Expunging records of traffickedadultsLimitations?
Critiques of Criminalization
Commercial-sexinvolved adults who are not coerced, forced or defrauded are criminalizedCriminalrecord ofprostitution impacts ability to gain legal employmentHow to pay the fines?Thesystem is designedto support high recidivismBarrier to exiting commercial sex for those who wish to do so
Discussion Questions
1. How does your state rank?a. Go tohttp://polarisproject.org/resources/2014-state-ratings-human-trafficking-lawsclick Download,andsummarize what your state is doing well on, and what is in need of improvement.b. Go tohttp://sharedhope.org/what-we-do/bring-justice/reportcards/2015-reportcards/andsummarize what your state is doing well on, and what is in need of improvement.c. Describe any discrepancies between these evaluation systems. What criteria are they using?What does this tell you? Howwould you design a state evaluation system, based upon the information provided in this chapter? (e.g., what criteria would you use?)2. According to the U.S. TVPA, how is sex trafficking defined? What are some limitations to this definition?3. List the four prongs of the U.S. TVPA, and the benefits and challenges associated with each.
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