The real hallmark of a forced labor situation is the “relationship between a person and an ‘employer’ and not by the type of activity performed, however arduous or hazardous the conditions of work may be, nor by its legality or illegality under national law.” This is an important distinction, because, while many individuals experience extremely poor working conditions and hours, this is governed by different law and is not considered trafficking unless it meets the rest of the definition. Additionally, as mentioned above, it is difficult to gather data on all forms of trafficking. However, the numbers regarding the extent of forced labor may particularly difficult to quantify because, “it may not involve the same criminal networks profiting from transnational sex trafficking, but may instead involve individuals who subject anywhere from one to hundreds of workers to involuntary servitude . . . ”. Domestic servitude is the most common form of forced labor, however it is particularly difficult to gather data on the extent of the problem because it occurs in private homes, thus there is little to no record of who is working in these homes. Individuals in domestic servitude are often forced to stay inside the home of the “employer” and perform traditional household tasks such as cleaning, cooking, and childcare; however, the employer does not pay the “employee” for services.
Debt bondage is a slightly different form of labor trafficking. Debt bondage occurs when a victim “becomes financially indebted to another person in exchange for the benefit of working abroad.” Initially, the debt often includes expenses such as travel and lodging expenses. Notably, “while incurring a debt to work abroad is not initially illegal nor a form of trafficking,” the trafficker or the individual responsible for transporting the victim may lie about the magnitude of the expenses, making the debt virtually impossible for the victim to pay off, so he or she must continue to work to pay off the debt. In some instances, the debt may even pass on to the victim’s children who are then subjected to similar enslavement as their parents.
Sexual exploitation victims are largely women or girls. One form of sexual exploitation is forced prostitution, and the victim trafficked receives little to none of the money earned. Additionally, debt bondage may also be found within the sex trafficking industry if a victim is coerced or forced to make a profit off sex in order to pay back some form of debt. Sex tourism is another form of sexual exploitation. Sex tourism occurs when an individual travels to another region for the purpose of purchasing sex. Oftentimes, the victims of sex tourism are children. While all victims are likely to experience negative consequences as a result of human trafficking, these consequences are particularly devastating for children, including “long-lasting physical and psychological trauma, disease (including HIV/AIDS), drug addiction, unintended pregnancy, malnutrition, social ostracism and death.”
Trafficking for the removal of organs is a less commonly known form of human trafficking. Trafficking of organs occurs in three broad categories:
Firstly, there are cases where traffickers force or deceive victims into giving up an organ. Secondly, there are cases where victims formally or informally agree to sell an organ are cheated because they are not paid for the organ or are paid less than the promised price. Thirdly, vulnerable persons are treated for an ailment, which may or may not exist and thereupon organs are removed without the victim’s knowledge.
The rise in cases of organ trafficking is largely attributable to two factors: (1) a limited availability of organs for legal transplants; and (2) an increase in the number of people who actually need a transplant. On average, about “123,000 men, women, and children are on the organ donor’s list right now.” Because the need is so high, lack of availability of organs continues to be a problem. Specifically, “in 2016, legally donated organs met less than 10 percent of global need . . . .” As with other forms of trafficking, data on the prevalence of organ trafficking is rather difficult to gather. However, data available suggests that organ trafficking generates somewhere between “$840 million and 1.7 billion annually, and accounts for an estimated 10 percent of transplanted organs, according to a 2017 report from Global Financial Integrity (GFI) . . .”
The 2016 Global Report on Trafficking in Persons also included a final category of “other forms” of trafficking that constituted a rather small percentage (approximately eight percent) of trafficking cases worldwide. These categories included:
trafficking for the purpose of begging, for committing various illegal activities, for forced and sham marriages, for child soldiering, for baby selling/illegal adoption, for the production of pornographic material, for human sacrifice, the removal of body parts, for different combinations of mixed exploitation (for example, sexual exploitation and forced labour in domestic servitude), as well as the trafficking of pregnant women for the purpose of selling their babies.
Similar to other forms of trafficking, data on forced marriages is unreliable, because many of these marriages are “unofficial and undocumented.” The international definition of forced marriage is “an institution or practice where individuals don’t have the option to refuse or are promised and married to another by their parents, guardians, relatives, or other people and groups.” There are many possible factors that play a role in the occurrence of forced marriages, but may include “economic concerns, cultural norms, or family agreements.” But, the most essential element is that one or both of the parties does not give consent to be married. The prevalence of forced marriages are undeniable; approximately fifty-one million girls over the age of eighteen are living in forced marriages. Maintaining data on these other forms of trafficking is valuable because it highlights how traffickers continue to be creative in finding new ways to exploit victims and leaves room for policy to evolve to condemn these new types of trafficking.
While child soldiering receives less attention in the United States, the reality is that child soldiering is a source of human trafficking in other countries. For child soldiering, children are forced into combat, sometimes even by kidnapping children from their homes. While data is gathered on child soldiers, the impact of it has been largely missing in discussions regarding human trafficking; it is not even considered a category of trafficking under the Trafficking Victims Protection Act (TVPA), a widely distributed mechanism from the U.S. Department of States that provides data on how well various countries are complying with the Protocol’s definition of trafficking. Further, while there are some resources available for rehabilitation and assistance for victims of other forms of trafficking, these services have not been available for victims of child soldiering. Due to the prevalence of child soldiering, increased attention to the issue is important.
B. How Does Trafficking Occur?
How trafficking occurs may look different depending on the geographical region. In some parts of the world, contemporary slavery bears a lot of similarity to the old form of slavery, such as Mauritania, a country in northwest Africa, where slaves are the property of families they reside with, and whom they perform domestic and agricultural labor they are never compensated for. But, in Northern Thailand—where poverty is rampant—sexual slavery is particularly prominent, and victims are mostly women and girls. Sexual slavery in Thailand includes sex tourism, championed by the interior minister during the 1960s, but has remained prevalent. In India, however, victims are trafficked into debt bondage in a variety of sectors. A devadasi, or “a young woman who is married to a god,” is one unique form of debt bondage that occurs in poor families, which occurs when a family sacrifices their daughter to “appease local gods and guarantee a happy future.” While all forms of trafficking can occur everywhere, it is essential to consider the cultural, religious, and socioeconomic factors that may influence the prevalence of certain types of human trafficking in particular regions.
Regardless of where it occurs, trafficking is about exploitation. Traffickers may find many ways to exploit victims for their own gain. For example, traffickers pick up on vulnerabilities of a victim and capitalize on it when trying to recruit them. One of these vulnerabilities may include lack of support systems and poverty. Lack of support systems may include children who are in the foster care system, or who have otherwise unstable home lives. In these cases, a trafficker may be able to develop a relationship with the victim that provides them with a false sense of security; that the trafficker can provide the love and affection that is otherwise missing from their lives. However, for victims who are living in poverty, traffickers may promise a new employment opportunity, and the prospect seems better than their current situation. Further, there are certain risk factors that make people particularly vulnerable to exploitation, such as “poverty, race, ethnicity, sex, immigration status, class, caste, and age. When considering the intersection of identities, some people are even more at risk for exploitation. For example, poor women of color are often targets of human trafficking and tend to be victimized at higher rates than other individuals. As mentioned above, gender plays a significant role in trafficking. Women continue to be victimized at significantly higher rates, particularly for domestic servitude and sexual exploitation.
Trafficking continues to occur because of the lens through which other cultures are viewed, which impacts the way trafficking is conceptualized. The concept of “otherness” encompasses the idea that trafficking is a problem outside of one’s own immediate surroundings. One argument is that “otherness” has led to the exploitation based on the value placed on other cultures. Historically, society has looked at issues such as human trafficking through a colorblind lens that fails to account for how attitudes towards racial and ethnic minorities impact trafficking. Thus, “systemic inequalities and disparities make certain groups much more vulnerable to exploitation.” This is a largely westernized problem, but it has negative impacts for the global fight against trafficking. When we fail to account for the way trafficking impacts our own communities because of the belief that it only happens “over there,” it is impossible to take note of the fact that trafficking is happening in our own backyard, and also impacts the way our society critically examines labor practices.
Another reason trafficking continues to thrive is that capitalism calls for a high number of products and very cheap labor to keep production costs low. As mentioned above, trafficking brings in an enormous profit every year. According to UNICEF USA, there are three main factors that continue to fuel trafficking: (1) high reward with little risk; (2) supply and demand; and (3) systematic inequalities. Notably, trafficking of human beings is the “second most profitable illegal industry – second only to the drug trade. And while drugs are sold in one transaction, human beings can be sold over and over again.” Acknowledging the way society values high production and minimal cost is important to understanding why trafficking numbers remains so high.
C. Common Misconceptions About Trafficking
A common misconception about trafficking is seen in the different definitions between migration, smuggling, and trafficking. Migration and trafficking may be related, but are not the same. In other words, not all persons engaging in migration are trafficked. However, migration may make individuals more vulnerable to trafficking because the individual may be seeking better living conditions than in his or her home country, may speak a different language, or may have been promised a job under false pretenses. Further, immigration status makes certain individuals more vulnerable to trafficking because oftentimes they are taken into a new country under false pretenses, and their documentation is taken away from them. Even if they had a work visa to begin with, they no longer have access to that information, nor do they have access to documentation regarding their home country. Fear of being in trouble with the law of the new country for entering illegally may impact victim’s decisions to come forward if they come to the United States and are exploited. However, not all individuals who migrate to another country are trafficked, and this distinction is really important.
Relatedly, another common source of confusion is the difference between smuggling and trafficking. While the term “trafficking” may seem to necessarily include movement, it is not required that a person is transported across borders, or even domestically, to be trafficking. On the contrary, smuggling requires that a human being is transported across a border illegally. One of the key differences between smuggling and trafficking is consent, because people who are smuggled into another country often give their consent to do so. While smuggling can turn into human trafficking, these terms are often used interchangeably but have very different consequences.
Stereotypes regarding types of trafficking and who is impacted also establishes some misconceptions surrounding trafficking. Stereotypes regarding trafficking may be difficult to overcome. Regarding sexual exploitation, for example, people often have a picture in their mind that features a predatory pimp that kidnaps young women or preys on vulnerable girls to exploit them for sex trafficking. This is not to say that trafficking does not occur in this context, however, when this becomes the dominant narrative, it is easy to misinterpret the way trafficking occurs and impedes the ability to develop effective anti-trafficking legislation. Additionally, stereotypes impact the way society identifies victims and who is deemed worthy of support and services. The “perfect victim” is identified as one who, “(1) the victim is a woman or girl trafficked for sex; (2) law enforcement assesses her to be a good witness; (3) she cooperates fully with law enforcement investigations; and (4) she is rescued instead of escaping from the trafficking enterprise.” One of the manifestations of this stereotype is in the legal response to a victim’s case. The ideal prosecutorial witness should be completely helpless at the hands of her trafficker, despite the reality that many victims must find ways to survive their current situation that does not meet this stereotype. For example, victims “may take actions to protect their families from harm, to protect other victims from further harm, to pressure the trafficker for more independence or pay, to ask for phone privileges, to request a vacation day, or to demand medical care.” Misconceptions about what victims look like shapes our legal response to victim services and how we prevent human trafficking. Addressing these misconceptions would be a step in the right direction to creating better laws and policies.
Additionally, stereotypes may manifest another way in the human trafficking context. As briefly mentioned above, there is a misconception, perhaps due to public interest campaigns and other sources, about what types of trafficking are the most prevalent. This is an issue that has a negative impact on human trafficking in several important ways, including, police response, allocation of resources, and public awareness of the problem. Avoiding stereotypes about what types of human trafficking occur or are more prevalent would help lawmakers establish policy that addresses all forms of trafficking without neglecting certain types.
III. International Response to Human Trafficking
There have been several international efforts to address issues with the slavery of the past leading up to the contemporary forms of slavery that are seen today. Prior to the establishment of the Palermo Protocol in 2000, there have been several other international treatises that “explicitly address[ed] human trafficking” including: the 1904 International Agreement for the Suppression of White Slave Traffic; 1910 International Convention for the Suppression of the White Slave Traffic; the 1921 International Convention for the Suppression of Traffic in Women and Children; and the 1933 International Convention for the Suppression of the Traffic in Women of Full Age. Ultimately, the Geneva Convention of 1949 for the Suppression of the Traffic in Persons and the Exploitation of Others laid a foundation for international legal response to human trafficking prior to the establishment of the Palermo Protocol in 2000.
The Palermo Protocol was established by the United Nations Convention against Transnational Organized Crime, a convention created by the United Nations Office on Drugs and Crime (UNODC). The Palermo Protocol includes three different layers of regulation: the prosecution of those committing human trafficking crimes; encouragement of countries to consider establishing prevention mechanisms that get to the root cause of human trafficking; and protection victims of trafficking by providing services such as housing in countries where victims are found. Additionally, the Palermo Protocol “prioritizes trafficking in women and children” and “seeks to prevent trafficking through international cooperation and information sharing.”
Outside the realm of legislation, there have been a variety of campaigns to raise public awareness of human trafficking. Not surprisingly, awareness is essential to eliminating trafficking. Awareness plays such a key role because once the general public can recognize trafficking, they are able to report it to authorities who may be able to help intervene. While awareness necessarily includes the ability to spot human trafficking when it is occurring, proper education about human trafficking includes information regarding how to reach authorities. However, it is important to note that public awareness campaigns may also be problematic if the use resources to only recognize one type of trafficking. Thus, to be effective, awareness campaigns have to target victims and the general public addressing all forms of trafficking to avoid being counterproductive.
IV. Critiques of International Efforts
Historically, a significant problem within the movement to combat human trafficking includes the lack of a universal definition of trafficking. While the definition under the Palermo Protocol is viewed as the gold standard because it includes a wide variety of types of trafficking, many countries and individual states have developed their own definitions of trafficking. This is partly because the type of trafficking and the most common victims vary by location. Unfortunately, “even among governments and international organizations, there is no consistent use of the term human trafficking and no consensus on what the term comprises or how it relates to issues of forced labor, slavery, and exploitation” (emphasis in original). While in recent years, there has been some transition into a more cohesive definition, many countries still do not follow the definition outlined under the Palermo Protocol and, according to the TVPA, have not made many efforts to have a more inclusive definition of human trafficking. A common critique regarding the difference definitions is that it negatively impacts ability to gather data, and thus limits the scope to see the extent of the problem. The United States government distributes an annual TIP Report, which evaluates the efforts of countries across the globe in meeting the basic definitional requirements laid out in the TVPA. While the TIP Report evaluates compliance with the TVPA, it does not address limitations on resources to comply with definitional standards, nor does it account for the cultural issues that impact which legislation is pertinent to that geographical region.
Additionally, there has been a problem regarding allocation of resources devoted to different types of trafficking. While sex trafficking is without a doubt repugnant, it has seen a much larger allocation of resources to combat it, including public awareness campaigns, greater allocation of local police resources, and increased diversion to services for individuals arrested for crimes related to it. Not only does this not provide adequate policing of other forms of trafficking, it also conflates the extent of the problem in the mind of the public. Public awareness to issues of trafficking has been and will continue to be essential. If people do not know that labor trafficking or other forms of trafficking are a problem, it will be virtually impossible to detect when it is occurring and report it. This issue has not been isolated to any particular region, greater amount of resources has been expended on some forms of trafficking at the neglect of other forms.
Within an international context, the International Criminal Court (ICC) in the Hague is a significant source of criminal intervention regarding human trafficking cases, because these crimes fall within its jurisdiction to prosecute, under “crimes against humanity.” Lack of a universal definition of trafficking is an issue that is played out specifically in the context of the ICC, because the ICC lacks a clear and precise definition of trafficking that encompasses the magnitude of the problem. As opposed to the definition laid out in the Palermo Protocol, the definition of trafficking under the Rome Statute gets lost in the other provisions of Article 7, which require that a crime against humanity be committed against a civilian population, be widespread, and in furtherance of a state or organizational policy. Thus, a lack of a strong definition of trafficking renders the ICC’s ability to prosecute cases of human trafficking relatively ineffective.
Jurisdictional issues are not limited to the ICC. Many problems remain in light of the Palermo Protocol considering different jurisdictions vary in what constitutes trafficking. While states attempt to work together to end human trafficking, “[s]tates speak to each other in different languages: both literally, but also figuratively. Figuratively, as their jurisdictions are not truly compatible with each other, when speak of ‘trafficking,’ they are mainly speaking about different things.” One of the most significant problems with varying definitions of trafficking is that, “the ability for the origin, transit and/or destination countries to ‘join-up’ is rendered unworkable by, for instance, extradition treaties that require crimes to be common to both jurisdictions or the application of extraterritorial jurisdiction when what is deemed a crime in one jurisdiction is not so in another.”
What if victims are also involved with recruiting new victims in order to avoid more beatings or maybe for a small profit? There is nothing in the Palermo Protocol that immediately instructs countries on how to deal with these situations. Given the exploitative nature of trafficking, it is not uncommon to see the men, women, or children who have been trafficked involved in recruitment of other victims for the trafficker. A trafficker may promise less abuse or maybe a small share of profits from their labor in exchange for their help. While the Palermo Protocol includes some discussion of services for victims, it does not address this situation where the victim could also be labeled the trafficker. Perhaps when victims are in front of the criminal justice system is when the have the most access to services because they are away from their trafficker. But there is an ethical dilemma when taking a victim-centered approach by prosecuting someone who has also been a victim. Safe harbor laws are “a provision in an agreement that affords protection from liability or penalty under specified circumstances or if certain conditions are met.” In the human trafficking context, some states in the United States have started to address concerns for access to services for minors who are charged with prostitution. However, minors are very differently situated in the context of human trafficking than adult men and women. This continues to remain one of the problems with a prosecutorial stance on human trafficking legislation: when the focus is on criminalization it is more likely to sweep up victims along the way.
While acknowledging that international responses to human trafficking have seen a lot of success, there remains a significant amount of criticism regarding the impact legislative efforts have had on human trafficking, and whether there is opportunity to see more positive change. One criticism of the Palermo Protocol includes its emphasis on criminal convictions while lacking a human rights approach to combat trafficking. While criminalizing human trafficking is certainly an essential component to anti-trafficking legislation, the focus on criminalization negatively impacts other efforts that are fundamental to see a change in the numbers of victims of human trafficking: prevention and victim’s services. Trafficking continues to thrive because the demand remains the same; there will not be a reduction in the numbers of human trafficking victims until there is a shift in societal attitudes about marginalized populations. While the Palermo Protocol includes a provision regarding prevention, the language “shall consider” prefacing the provision diminishes the concern for prevention efforts rather than focusing resources and energy into prevention efforts as opposed to the mandatory language in front of the criminalization provision.
Despite a focus on utilizing the criminal justice system in the anti-trafficking movement, the amount of prosecutions for crimes involving human trafficking resulting remains uncomfortably low. Specifically, “[a]ccording to the 2017 State Department Trafficking in Persons report, there were only 14,894 prosecutions and 9,071 convictions for trafficking globally in 2016.” These low numbers are discouraging in light of the suspected number of victims of trafficking every year. There could be many reasons why prosecutions remain low. First, some victims may have a relationship or emotional attachment to their trafficker, and the traffickers may capitalize on this attachment to “manipulate or coerce [the victim] into loyalty and silence.” Additionally, identification remains low because victims do not want to come forward and identify themselves as victims, may fear criminal repercussions themselves, or may be unaware that assistance is available. Barriers within the legal system may pose difficulties for victims who wish to pursue relief against their traffickers, and may ultimately deter them from moving forward. For example, prosecutions can be very time consuming, and if convictions are low, victims may conclude that it is not worth it to go through the process. Additionally, victims may fear for their physical and/or financial safety if they want to move forward with a case and no protection is available. Barriers that impact victim’s participation in the legal process may be one reason why prosecution rates continue to be low in comparison to the suspected number of victims worldwide, and would be alleviated by a human rights approach that encourages victim participation and victim services.
V. Varying Approaches to Legislation
A. United States
The United States has expended tremendous effort and resources towards combatting human trafficking over the years. While human trafficking has been addressed in prior legislation, it was not until Congress passed the TVPA in 2000 that there was an evident push to address the issue of human trafficking head on. The TVPA set harsher sentences for those convicted of human trafficking and provided victims who had experienced severe trafficking with victim’s assistance. Despite this landmark legislation, there were many gaps in its ability to aid victims of trafficking. For example, the stricter sentencing guidelines were rendered ineffective by prosecutors plea bargaining them away. Additionally, unlike the Palermo Protocol, the TVPA allowed defendants to use consent as a defense to human trafficking. Individual states responded to the enactment of the TVPA by developing laws that address human trafficking. To respond to some of the critiques of the TVPA, Congress signed the JVTA into law in 2015, which addressed a lot of these concerns and ________________.
Despite these congressional efforts, their success is contingent on the individual states electing to comply with the standards laid out in them. In 2014, the Polaris Project reviewed the human trafficking laws of all fifty states and the District of Columbia, and placed each state into categories ranging from Tier One to Tier Four. While thirty-one states were categorized as Tier One, all states showed room for improvement.
The United Kingdom (UK) has also made significant efforts to combat human trafficking. Educating the public has been an important component to the UK’s approach. The government enacted The Modern Slavery Act (The Act) in 2015, which “strengthened existing laws to pursue perpetrators, increased protections for victims, and established the UK’s first Independent Anti-Slavery Commissioner.” This legislation showed Parliament’s intention to take protection of victims and access to services more seriously, as this was the UK’s first legislative material concerning trafficking that addressed these concerns. While this is certainly a step in the right direction to a more human rights based approach to trafficking, quality of care and inconsistent help to victims needs improvement.
It is important and essential to the success of the movement to end human trafficking that legislation continue to evolve and address unmet needs of victims. The legislation in the US and the UK touches the tip of the iceberg regarding where we need to be. There is still significant improvement to be made before the human rights approach to combat human trafficking is realized, because there are many regions lack important components of legislation or fail to monitor the legislation that is in place. The proposal laid out in the next section will highlight important areas of trafficking that need to be further addressed in order to adequately meet a human rights approach, including addressing the root causes of trafficking, considering how different forms of trafficking impact victims differently, and intentionally developing prevention strategies that prevent trafficking from flourishing in certain communities.
V. Recommendations Moving Forward
Despite some of the holes in current legislative and preventative efforts, this does not have to continue to be a flaw in the international anti-trafficking agenda. While the criminalization of human trafficking will continue to be an essential component in deterring human trafficking, it is clear that some changes need to be made if we are to see the decrease in prevalence of human trafficking that changes in legislation have hoped to achieve. The idea of a human rights approach to human trafficking has been thrown around amongst different circles in discussions regarding effective measures in the fight against human trafficking. This section lays out a proposal for a human rights approach to addressing human trafficking, so there can be a global shift towards better services that meet the needs of survivors of trafficking and address the root causes of trafficking of persons that continue to support a demand for trafficking.
A focus on human rights rather than criminalization will address the root causes of human trafficking, which a criminal justice has proved to be inadequate to address. Under this approach, public awareness campaigns and legislation will include targeting some of the issues that allow human trafficking to continue to be in high demand. As mentioned, human trafficking thrives because of overconsumption of products, thus a need for high production and lost cost. Further, issues including poverty, gender based oppression, and racial oppression not only have an impact on the way we conceptualize trafficking, but create a culture in which horrors like human trafficking continue to foster. If society fails to prioritize prevention efforts in ending human trafficking, meaningful change within the international community will continue to be unattainable. Finally, this proposal will conclude with services that the international community, particularly the UN should not only “recommend” but should implement and monitor that will aid victims of human trafficking. The services piece is critical in fighting trafficking because if victims are merely reintegrated in communities upon it being discovered, there remains a high chance of re-victimization. Perhaps even more importantly, diversion to services may help in avoiding the criminalization of victims of trafficking.
A. Mindfulness of the Different Forms of Trafficking and Their Impact
To effectively implement a human rights approach, the first issue that must be addressed is to understand the supply and demand that maintains trafficking. To do this, there has to be a distinction between labor, sex, and other forms of trafficking in order to adequately address the root causes of these forms of trafficking and the ways traffickers use these forms of trafficking to exploit victims. A couple ways to do this are to raise awareness through public interest campaigns that lay out the different forms of trafficking that help people identify what they look like. Further, tools used to gather data regarding human trafficking should articulate this difference. While individual victims may experience some overlap, e.g. a victim who was trafficked for forced labor also experienced sex trafficking, the distinction between these forms of trafficking is still really important. The supply and demand component is essential because forced labor, sex trafficking, organ trafficking, etc. are meeting very different demands. While labor trafficking tends to meet the need for a high volume of cheap products, sex trafficking is very different. Further, traffickers may use different tactics to lure an individual into labor trafficking than sex trafficking, and if legislation lacks attention to these differences it may be easier to overlook signs of labor trafficking. This also impacts who society views as victims of human trafficking. While women and children are the predominant victims of sexual exploitation; some of these victims are men, and men make up a significant portion of victims of labor trafficking. Not making a clear distinction between these issues creates a barrier for effectively coming up with solutions that support victims. One of the problems is that society prioritizes one form of trafficking over the other, which as addressed above, has resulted in more resources being devoted to sex trafficking than other forms of trafficking, particularly labor trafficking, despite data that suggests labor trafficking occurs at higher rates. Thus, in an effort to distinguish between labor and sex trafficking, a human rights approach would require mindfulness of the resources allocated to addressing both concerns, rather than focusing on one at the neglect of the other.
B. Alternative Court Systems
Many of the women, men, and children who are victims of trafficking will often experience some sort of arrest that is connected to their trafficking; some of the common charges include prostitution, loitering, and committing other illegal acts that the trafficker forced them to do. As a result of these criminal offenses, victims may experience the criminal justice system similar to other criminal defendants, despite the trauma that they have experienced, including the trauma they likely experienced in getting these convictions. When they then must go to court for these arrests, victims may be humiliated by judges, prosecutors, police officers, and others who aren’t aware of the connection between prostitution and trafficking. This problem is illustrated by one example from a Washington courtroom, where “the prosecutor could be heard calling one girl arrested for prostitution by the name, ‘little black ho.’” Additionally, this does not have to be limited to the prostitution context. Some victims may feel shame for being duped by a trafficker or not be able to explain their initial consent in agreeing to the job position, having to describe details of their financial situation. Arrests have an immediate impact on trafficking victims because of the traumatic experience of going to court, but there are also long-term consequences of having these charges on their criminal records that negatively impact their ability to reintegrate into life after the trafficking. For example, criminal records impact employment and housing. Further, if this is their interaction with the court system, it is a logical conclusion that victims will actively avoid seeking assistance from local police because they might believe the system is more likely to hurt them than help them. Thus, this problem not only impacts the low number of prosecutions of those committing the crime of trafficking, but also victim’s access to services.
A human rights approach suggests that there be an alternative to the traditional criminal justice approach when dealing with victims of human trafficking to avoid sweeping up victims with the perpetrators. In New York, there has been a shift towards what are known as “Human Trafficking Intervention Courts” (HTICs), where all parties work together to develop a solution that is in the “best interest of the defendant.” It is possible to continue this trend internationally, particularly with access to court systems like the ICC, which already has human trafficking within its purview, and whose goals are to protect civilian populations. However, in order to do this, it would require resources and educational training on the impacts of human trafficking and the trauma that victims experience in trafficking situations, such as decreasing the likelihood that they will cooperate with investigations to help prosecute traffickers.
C. Refocus on Prevention Strategies
Next, a human rights approach would refocus the significant energy placed on criminalization to greater prevention efforts. Prevention necessarily includes addressing issues such as racial, economic and gender-based oppression that allow human trafficking to continue to thrive. Prevention is really important because “a prevention lens directs us to consider the interaction of multiple factors that protect or put individuals and populations at risk of labor exploitation and to seek potential mechanisms to minimize these risks or enhance protection.” According to the United Nations Universal Declaration of Human Rights (Declaration), “everyone has the right to life, liberty and security of person” and further, that “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Without finding ways to prevent the horrendous consequences of human trafficking, this Declaration is rendered essentially meaningless.
One way to combat human trafficking is to invest in education opportunities internationally so that victims are less vulnerable to trafficking. Specifically, “children and adults who are illiterate or uneducated are more susceptible for victimization.” Not only does education bring about more employment opportunities, it informs victims about human trafficking so they can have the resources and knowledge to detect a deceptive employment opportunity. The utility in education is not limited to vulnerable populations; there is value in educating every level of society regarding the evils of human trafficking. Prevention can also lie with education and raising awareness amongst the general public to debunk common myths surrounding human trafficking and how to identify the indicators of human trafficking.
D. Access to Services
A human rights approach prioritizes victims’ access to services. The psychological, emotional, and physical toll that trafficking can take can be severe, and victims likely need a variety of services and protections, including: “temporary resident status and temporary shelter, medical and psychological services, access to justice as well as compensation or restitution.” In order to ensure that victims have access to these means, this may require assisting certain countries with resources to establish these services, financial or otherwise. Appropriate access to resources avoiding the “perfect victim” mentality discussed above, and ensuring that victims who do not meet this narrative are not treated as criminals. Access to services is critical in future work towards ending human trafficking because it signals to those committing the offense that victims are worthy of respect and to be taken care of, and that society has taken a stand that human trafficking will not be tolerated.
E. Avoid a “One-Size-Fits-All” Approach
While the Protocol has established a general definition of human trafficking, individual countries must create legislation that meets the needs they are seeing in human trafficking. Further, in establishing this legislation, countries must rely on a definition of trafficking that often varies from other jurisdictions. Thus, while the TVPA can continue to monitor how well countries are complying with the “minimum standards for elimination of trafficking” perhaps a better approach would be to monitor the effectiveness of measures taken to combat the countries’ individual needs regarding trafficking. A human rights approach acknowledges the fact that a “one-size-fits-all” approach to trafficking is simply unattainable, because “differing cultures, economics, and religions make laws complicated to implement, and corruption, cultural interpretations, and different systems of justice make