human trafficking victims assistance victim harm residence xin ren

(1)

Identifying and

Assisting Victims of

Human Trafficking

Prof. Xin Ren, Ph.D. Criminal Justice Division California State University,

Sacramento USA

(2)

(3)

Task Force opened 2,515 suspected incidents of human trafficking for

investigation between January 2008 and June 2010

A total of 389 human trafficking cases were confirmed involving 488 offenders and 527 victims

90 percent of victims were female

8 in 10 of cases were sex trafficking and 1 in 10 of cases were labor trafficking

(4)

Four-fifth of victims in confirmed commercial sex trafficking were US citizens (83%), while majority of victims in confirmed labor

trafficking were undocumented aliens (67%) and qualified aliens (28%)

Most confirmed human trafficking suspects were male (82%)

62% of suspects in sex trafficking were black and 48% of suspects in labor

trafficking were Hispanic

(5)

(6)

Recruiting OR Harboring OR Moving OR Obtaining

a person,

1 PROCESS By Force OR Fraud OR Coercion 2 MEANS

For the purposes of

(7)

• Trafficking Victims Protection Act (TVPA2000):

Emphasizes three Ps (Prevention, prosecution, and protection)

• Human trafficking is defined as the recruitment,

harboring, transportation, provision, or obtaining of a person for one of three purposes:

– Labor or services, through the use of force, fraud, or coercion for the

purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery.

– A commercial sex act through the use of force, fraud, or coercion.

– Any commercial sex act, if the person is under 18 years of age, regardless of whether any form of coercion is involved.

• TVPA2000 also provides:

– Protection provided to trafficked persons through immigration relief and other benefits

– Funding for international efforts focuses on prevention

(8)

• _{Requires biennial reporting on the scope}

and characteristics of human trafficking in the U.S., using available data from state and local authorities.

• _{As part of an effort to meet these}

congressional mandates, the Bureau of

Justice Statistics (BJS), in partnership with the Bureau of Justice Assistance (BJA),

Northeastern University (NEU), and the

(9)

42 Task Forces in 42 jurisdictions cover

25% of US residential population

An incident-based reporting system

To be confirmed as human trafficking:

The case must have led to an arrest and been subsequently confirmed by law

enforcement, or

The victims in the case must

1) have had a "continuing presence" requested on their behalf, or

(10)

• _{118 U.S.C. § 1581}

Peonage (Debt Bondage)

• _{18 U.S.C. § 1583}

Enticement into slavery

• _{18 U.S.C. § 1584 Sale}

into Involuntary Servitude

• _{18 U.S.C. § 1589 Forced}

Labor

• _{18 U.S.C. § 1590}

Trafficking Into Servitude

• 18 U.S.C. § 1591 Sex Trafficking

• 18 U.S.C. § 1593A

Benefiting Financially from Peonage, Slavery, and Trafficking in Persons

• 18 U.S.C. § 1351 Fraud in Foreign Labor

Contracting

• 1 8 U.S.C. § 1592

(11)

• 18 USC § 1351: Fraud in Foreign Labor Contracting

– Whoever knowingly and with intent to defraud recruits, solicits or hires a person outside the United States for purposes of

employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment shall be fined under this title or imprisoned for not more than 5 years, or both

• _{18 USC § 1593A}_:_{Benefiting Financially from Peonage,}

Slavery, and Trafficking in Persons

– Whoever knowingly benefits, financially or by receiving

anything of value, from participation in a venture which has engaged in any act in violation of section 1581(a), 1592, or 1595(a) [18 USCS § 1581(a), 1592, or 1595(a)], knowing or in reckless disregard of the fact that the venture has engaged in such violation, shall be fined under this title or imprisoned in the same manner as a completed violation of such section.

(12)

• _{Now includes:}

– _{“reckless disregard” of force, fraud or} coercion

• _{Additional Provision for minors}

– _{“reckless disregard” of minor age}

– _{No actual knowledge of minor age is required}

• _{Defendant just needs “reasonable opportunity to}

observe” the victim

• _{The government need not prove knowledge of}

(13)

• 18 USCS § 1596 :

– _{In addition to any domestic or extra-territorial jurisdiction}

otherwise provided by law, the courts of the United

States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense)

under section 1581, 1583, 1584, 1589, 1590, or 1591 [18 USCS § 1581, 1583, 1584, 1589, 1590, or 1591]

if-- (1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent

residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or (2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender.

(14)

• _{As of August 2009, 43 states have} passed Criminal Anti-Trafficking

Laws*

• _{7 States have pending criminal} legislation

• _{Most state laws do not offer}

comprehensive protections like the TVPA

(15)

• _{Trafficking requires the crossing of} national or international borders

• _{Crime of trafficking must involve}

moving victims from one location to another

• _{Trafficking only involves foreign} nationals, not US citizens

• _{You can consent to being trafficked}

(16)

Along with:

physical/psychological/ sexual abuse/ physical threats

Look for:

• _{Long hours} • _{Little/No pay}

• _{Withholding documents} • _{Threats of deportation}

• _{Threats to family members in home country} • _Isolation

• _{Inhumane Living Conditions}

• _{Having to work when sick or/and no holidays} • _{Not able to refuse customer’s illegitimate}

(17)

California State Law

AB 22

Created a new felony Penal Code

section 236.1 which prohibits Human

Trafficking

prioritized victim protection along with

prosecution including:

Caseworker Privilege Asset Forfeiture

(18)

Immigrants

Immigrants with legal documentation/status

Students

Immigrants with work permit

Immigrants married to US citizens

Illegal Immigrants

Entered legally but over stayed their legal status

(19)

Non-immigrants (US Citizens)

Runaway children

Curiosity Child abuse

Angry with parents

Deceived or lured away by someone

Juvenile delinquents

Street/homeless children Drug addicts

(20)

Victims refuse to cooperate

Victims did not have any legal

documents

Victims cannot help with identification

Illiterate

Mentally retarded Fear

Language barrier

Do not want to be identified

(21)

Part 2:

Survivors

Access to

Federal

(22)



Criminal Prosecution

 Witness for criminal investigation and

prosecution



Immigration relief or repatriation



Social welfare benefits, medical and

counseling assistance



Legal aids and assistance

 Legal Aid Foundation, CAST (coalition against

Slavery and Trafficking), Asian legal Foundation



Civil litigation

(23)

Under the TVPA Victims Of

Human Trafficking Are

Entitled To:

Safety

Privacy

Information

Legal representation Be heard in court

Medical assistance Legal representation

Compensation for damages/injury

Social assistance Seek residence Return home

(24)

Assistance needed for

Trafficking Survivors

_{Trafficked persons likely}

suffer from serious

physical, psychological and possibly sexual

abuse.

An extensive network of culturally and

linguistically

appropriate services providers is required to meet their urgent and acute needs.

 Interpretation

 Housing, food & clothing

 Medical care (emerg. & long term) & health

education

 Mental health care

 Legal & immigration services

 ESL training

 Independent living skills

 Safety planning

 Job placement &

employment education

(25)

Immigration

Provided by the TVPA

Must assist with criminal investigation

and/ or prosecution

Forms of Relief specific for Human

Trafficking Victims:

Temporary relief through Continued Presence

(26)

Immigration Remedies for

Victims of Trafficking

Short term: Continued Presence

Long term:

T-Visa

Trafficking

U Visa

(27)

What is Continued Presence

(CP)?

•

Provides temporary immigration

relief to potential witnesses who

are victims of severe forms of

trafficking

•

Provides work authorization

•

ONLY Federal law enforcement

agents can request for a

(28)

Expansion of CP Eligibility Under

the TVPRA of 2008

Law Enforcement SHALL take measures

to protect the safety of trafficking

victims including taking measures to

protect family members

(29)

Advanced Parole for Family Members

TVPRA Section 205; 8 U.S.C. § 1229(b)(6)

Law Enforcement MAY submit written requests for parole for family members of trafficked persons

Parole may be extended until final determination of the T-visa application

Victims under 21:

the spouse, child, parent, or unmarried sibling under 18

Victims 21 years or older: the spouse or child

All Victims irrespective of age:

is a parent or sibling who LE determines to be in present danger of retaliation as a result of the victim’s escape from the severe form of trafficking or cooperation with law

enforcement

(30)

What Is A T-Visa?

Enables certain victims of human

trafficking to live and work in

U.S. for four years

Can petition to have spouses and

children accompany

Can receive government benefits,

including cash assistance for 8

months

(31)

Who Is Eligible For A

T-Visa?

Visa?

ELEMENTS:

Is or has been victim of severe form of trafficking in persons

Is present in U.S., American Samoa, Northern Marianas on account of

trafficking

Has complied with reasonable request for assistance in investigation or prosecution of acts of trafficking

Children under 18 do not need to meet this criterion

(32)

What is the U Visa?

• Provides immigration relief to victims of certain criminal activity who

suffered substantial physical or mental abuse as a result and who have been, are being, or are likely to be helpful to law enforcement

• _{Can petition to have spouses and}

children accompany

(33)

Qualifying Criminal Activity

T-Visa

'‘Severe forms of trafficking in

persons'' means:

• (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to

perform such act has not attained 18 years of age; or

• (B) 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.

U Visa

“Qualifying criminal activity” is defined by statute to be

• activity involving one or more of the following or any similar

activity in violation of Federal, State, or local criminal law:

• Rape; torture; trafficking; incest; domestic violence; sexual

assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage;

involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail;

extortion; manslaughter; murder; felonious assault; witness

(34)

What are the benefits?

State of California Department of Social Services

Refugee Cash Assistance (limit of 8 months state funded

services, eligibility begins from date of the application for the benefits )

Refugee Social Services (available for 60 months from the date of application for benefits)

Food Stamps

CALWORKs (limited to a five-year period for adults. Aid begins the date of application)

Cash Assistance Program for Immigrants (CAPI) Employment Social Services

In-Home Supportive Services (IHSS) Programs

Personal Care Services Program (PCSP) IHSS Plus Waiver

IHSS Residual Program

State of California Department of Health and Human Services

• Refugee medical assistance • Medi-Cal

(35)

Federal Certification

• Victims of a severe form of trafficking who have been certified by the Department of Health and Human Services (HHS) are

eligible for benefits to the same extent as refugees

Federal and state public assistance benefits, such as Refugee Cash and Medical Assistance, Temporary Assistance for Needy Families (TANF), Medicaid,

Supplemental Security Income (SSI), and Food Stamps

Refugee self-sufficiency Matching Grant program and other ORR discretionary grant programs and ORR

(36)



May be the only means by which

victims of trafficking may be “made

whole”

 _{Life-changing}

 _{Law enforcement declines to prosecute}  _{Discourages would-be-traffickers and}

(37)

Causes of Action

 _{Trafficking Victims Protection Act of 2003}

 _{Explicit right to civil action under 8}_USC_§₁₅₉₅

 _{TVPRA of 2008-No action may be maintained under this}

section unless it is commenced not later than 10 years after the cause of action arose

 _{Prior to 2003-}Implied rights of action under the

Thirteenth Amendment and its enabling statute

 _{California: AB 22 granted explicit right to civil}

action and treble damages

 _{Fair Labor Standards Act}  _{Alien Tort Claims Act}

 _{Migrant and Seasonal Agricultural Worker}

Protection Act

 _{Title VII of the Civil Rights Act}

(38)

Civil Litigation

Litigation against employers, traffickers, or buyers

Immigration reliefs

T or U visa

Unification of family

Dissolve Marriage or obtain marriage license

Child custody and support Property division

Spousal support

Return home

(39)

Criminal Proceeding

Advise victims for their rights, options, consequences, and protections

Represent victims in criminal investigation and prosecution Represent victims in restitution settlements

Notify victims upon release of offenders Advise and Represent victims in applying for victim compensation fund

(40)

Compensation for Possible Civil

Damages



Compensatory Damages



Punitive Damages



Nominal Damages



Injunctive and Other Equitable

Relief



Liquidated Damages



Statutory Damages



Pre-judgment Interest



Attorneys Fees and Costs

(41)

0

1964 law created the EEOC to investigate claims of discrimination and to work out settlements between worker and company 5-Member Commission with a General

Counsel; 50+ offices nationwide (15 Districts);

1972: EEOC given authority to sue

employers in federal court on behalf of

(42)

0

EEOC Enforces 4 Laws

 Title VII of the Civil Title VII of the Civil Rights Act

Rights Act | 1964| 1964

 Equal Pay Act Equal Pay Act | 1963| 1963

 Age Discrimination in Age Discrimination in

Employment Act

Employment Act | 1967| 1967

 Americans with Disabilities Americans with Disabilities

Act

(43)



Represents victims against the

accused employers

 Deny benefits

 Withholding wages

 Confiscate ID/legal documents

 Sexual harassment in work place

 Sexual assault and rape against domestic or

farm workers (legal or illegal)

 Physical abuse

 Sex discrimination

 Forced to perform illegal acts in the course of

(44)

 Secondary Victimization from criminal

investigation

 Secondary victimization from family and

community

 Social isolation and discrimination

 Financial hardship

 Victims physical safety

 Possible Social reintegration

 Job training

 Financial aid

(45)

Contact Information:

Prof. Xin Ren

Criminal Justice Division

California State University, Sacramento

renx@csus.edu