Kathleen A. McKee† | 2 Regent J. Glob. Just. & Pub. Pol. 295 (2016)
INTRODUCTION
In 1910, Ernest Bell released a treatise entitled Fighting the Traffic in Young Girls or, War on the White Slave Trade, described as “a complete and detailed account of the shameless traffic in young girls.”1 The contributors to this work included U.S. Attorneys, educators, pastors, and professors at medical schools.2 Although written over a century ago, the introduction written by Edwin W. Sims, a United States District Attorney from Chicago, aptly describes human trafficking today:
The growth of this “trade in white women,” as it has been officially designated by the Paris Conference, was so insidious that it reached the proportions of an international problem almost before the people of the civilized nations of the world learned of its existence. The traffic increased rapidly, owing largely to the fact that it was tremendously profitable to those depraved mortals who indulged in it, and because the people generally, until very recently, were ignorant of the fact that it was becoming so extensive. And even at this time, when a great deal has been said by the pulpit and the press about the horrors of the traffic, the public idea of just what is meant by the “white slave traffic” is confused and indefinite.3
In the past fifteen years, as a result of media initiatives,4 congressional hearings and public awareness initiatives by NGOs such as the Polaris Project,5 the Protection Project,6 and Free the Slaves,7 there is a growing public awareness that commerce in human beings is not merely a historical institution from our past.8 In fact, it haunts our present and demands the public’s attention. Trafficking in human beings continues to be a global enterprise generating billions of dollars of revenues and affecting over 600,000 people each year.9 Some analysts have suggested that trafficking in humans is close behind the gun and drug trade as a criminal enterprise because of its profitability.10 Although sexual trafficking of women and children has garnered the lion’s share of the public attention focused on this issue,11 other sectors of the economy host trafficked and exploited workers. Victims of trafficking are exploited not only as prostitutes but also as agricultural laborers, sweatshop workers and domestic workers.12 Moreover, there is a segment of the population whose dire circumstances cause them to fall victim to trafficking for the removal of human organs.13
Nongovernmental organizations have been aware of the problem of trafficking and have been actively engaged in advocacy on behalf of victims of trafficking for over a decade. Starting with the policy initiatives of the Clinton administration,14 these efforts have evolved into the anti-trafficking legislation enacted during the Clinton Administration and amended during the Bush Administration.15
The purpose of this Article is to examine the legislative response of the United States to human trafficking. Section I discusses the factors most frequently cited as contributing to the problem. Section II examines international authority for interdicting trafficking. Section III examines the United States’ response to the problem. It discusses the context in which the public awareness of the issue of trafficking has evolved and the culmination of this awareness in the enactment of federal legislation to address the problem. It also briefly examines the strategies mandated by the legislation on a national and international level and the ongoing role to be played by nongovernmental organizations in implementing this legislation by assisting with the identification of victims of severe forms of trafficking and the provision of services to them. Last but not least, Section IV of this Article looks at some of the accomplishments of the legislation to date and lessons to be learned from its successes and its limitations.
I. THE PROBLEM: AN OVERVIEW OF CONTRIBUTING FACTORS
A. Social, Economic and Political Factors
There are both shared and unique factors that characterize countries from which people are trafficked. As one analyst noted:
Around the world people are looking closely at the lives of slaves and helping them to achieve their freedom. What have they learned that can help us? One of the first things they recognize is the role that poverty and vulnerability play in driving people to slavery. . . . Slavery is no longer based on broad categories of “race.” Slavery is fundamentally a question of power and specifically the power to use violence.16
Over time, researchers have identified a number of factors that contribute to the power dynamic that facilitates and sustains the trafficking and subsequent enslavement of individuals. These are briefly described in a congressional hearing on the international trafficking of women and children and are set forth below.
1 ERNEST A. BELL ET AL., FIGHTING THE TRAFFIC IN YOUNG GIRLS OR, WAR ON THE WHITE SLAVE TRADE (General Books 2010) (1910).
2 Id. at 1–2.
3 Id. at 13.
4 See Bridget Leininger, CNN Freedom Project and Tony Maddox Honored by U.S.State Department as 2015 Trafficking in Persons Report Hero, CNN (July 27, 2015, 12:29 PM), http://cnnpressroom.blogs.cnn.com/2015/07/27/cnn-freedom-project-and-tony-maddox-honored-by-u-s-state-department-as-2015-trafficking-in-persons-report-hero/ (detailing how CNN’s Freedom Project was honored by the U.S. Department of State with the release of the 2015 Trafficking in Persons Report last year).
5 See, e.g., Human Trafficking, POLARIS, https://polarisproject.org/human-trafficking (last visited Feb. 18, 2016) (providing up to date information on federal and state trafficking legislation as well as current trafficking statistics).
6 See THE PROTECTION PROJECT, http://www.protectionproject.org/ (last visited Jan. 18, 2016).
7 See Slavery Facts and Our Impact, FREE THE SLAVES , http://www.freetheslaves.net/ (last visited Jan. 18, 2016).
8 See Kara C. Ryf, The First Modern Anti-Slavery Law: The Trafficking Victims Protection Act of 2000, 34 CASE W. RES. J. INT’L L. 45, 45 (2002) (“Although both slavery and involuntary servitude were outlawed in the United States in 1865, over one million people remain in forced prostitution, sweatshop labor, and domestic servitude throughout the United States. Most of these individuals are held captive, physically beaten, sexually abused, and psychologically intimidated. They are not paid for their services, nor are they free to leave. Few Americans are aware of the scope and severity of the human trafficking industry and the extent to which this phenomenon occurs within our own borders.”).
9 146 CONG. REC. 22,041, 22,043 (2000) (during the Senate debate on the Trafficking Victims Protection Act of 2000 (H.R. 3244), Senator Brownback stated: “Our government estimates that between 600,000 and 2 million women are trafficked each year beyond international borders. They are trafficked for the purpose of sexual prostitution by organized crime units and groups that are aggressively out making money off the trafficking of human flesh.”). FRANCIS T. MIKO, CONG. RESEARCH SERV., RL30545, TRAFFICKING IN WOMEN AND CHILDREN: THE U.S. AND INTERNATIONAL RESPONSE 1 (2004) (“According to the latest U.S. Government estimates, some 800,000 to 900,000 people are trafficked across borders each year worldwide for forced labor, domestic servitude, or sexual exploitation. Trafficking is considered one of the largest sources of profits for organized crime, generating seven to ten billion dollars annually according to United Nations estimates.”) (emphasis added).
10 International Trafficking in Women and Children: Hearings Before the Subcomm. on Near E. and S. Asian Affairs of the S. Comm. on Foreign Relations, 106th Cong. 11 (2000)(statement of Hon. Frank E. Loy, Under Sec’y of State, Global Affairs) [hereinafter International Trafficking in Women and Children Hearings](“Alarmingly, the trafficking industry is one of the fastest growing and most lucrative criminal enterprises in the world. Profits from the industry are enormous, generating billions of dollars annually to organized criminal groups. Trafficking in women and children is now considered the third largest source of profits for organized crime, behind only drugs and guns. Traffickers know that throughout the world they can reap large profits while facing a relatively low risk of prosecution. Moreover, it has been observed that, unlike drugs or firearms, trafficking ‘in women and children doesn’t require capital to start.’”).
11 Ryan Goehrung, Sex: Drowning Out the Discourse on Trafficking, HUMAN TRAFFICKING CTR. (Apr. 3, 2014), http://humantraffickingcenter.org/posts-by-htc-associates/sex-drowning-out-the-discourse-on-trafficking/ (“Despite the fact that sex trafficking cases account for less than one quarter of all human trafficking cases globally – 21.5 percent according to International Labour Organization estimates – the focus of the media and many anti-trafficking organizations seems to suggest sex trafficking is the most widespread kind of exploitation. As a result, similarly egregious and much more common labor trafficking cases receive little public attention and notably fewer resources.”).
12 International Trafficking in Women and Children Hearings, supra note 10 (“A trafficking scheme involves a continuum of recruitment, abduction, transport, harboring, transfer, sale or receipt of persons through various types of coercion, force, fraud or deception for the purpose of placing persons in situations of slavery or slavery-like conditions, servitude, forced labor or services. Examples include, but are not limited to sexual servitude, domestic servitude, bonded sweatshop labor or other debt bondage.”) (emphasis added). Bo Cooper, A New Approach to Protection and Law Enforcement Under the Victims of Trafficking and Violence Protection Act, 51 EMORY L.J. 1041, 1045–46 (2002) (“Persons are trafficked into the sex trade by force, fraud, or coercion to engage in prostitution, pornography, sex tourism, and other commercial sexual services. Others are required to perform forced labor as agricultural workers, domestic workers, maids in motels and hotels, and peddlers of trinkets on buses and in subways.”) (emphasis added). A MY O’NEILL RICHARD, CTR. FOR THE STUDY OF INTELLIGENCE, INTERNATIONAL TRAFFICKING IN WOMEN TO THE UNITED STATES: A CONTEMPORARY MANIFESTATION OF SLAVERY AND ORGANIZED CRIME 3 (1999) (“A review of several illustrative trafficking and slavery operations –involving sweatshop, agricultural, and other forms of labor – over the last eight years shows that these operations went unnoticed or were able to exist longer than trafficking operations involving the sex industry.”) (emphasis added).
13 Trafficking in human organs is distinguishable from trafficking for the removal of human organs. Typically in the latter case, individuals are either recruited with the pretext of a job or they are abducted. Once the individual reaches the location where the organ is to be removed, his compliance is forced with threats of violence which may extend to his family members. Once the organ is removed, the individual is minimally compensated and set loose with no provisions for aftercare. ARTHUR CAPLAN ET AL., COUNCIL OF EUROPE/UNITED NATIONS, TRAFFICKING IN ORGANS, TISSUES AND CELLS AND TRAFFICKING FOR THE PURPOSE OF THE REMOVAL OF ORGANS 55–58 (2009) (emphasis added).
14 See MIKO, supra note 9, at 8.
15 See id. at 8–10. In the 114th Congress, 92 bills were introduced that related to the subject of Human Trafficking. See generally Human Trafficking, GOVTRACK , www.govtrack.us/congress/bills/subjects/human_trafficking/6210 (last visited Feb. 27, 2016).
16 KEVIN BALES, UNDERSTANDING GLOBAL SLAVERY : A READER 10 (2005).
† Associate Professor, Regent University School of Law. B.A. 1966, State University of New York at Albany; J.D. 1977, Columbus School of Law, Catholic University of America; LL.M. 1984, Georgetown University Law Center.