Human Trafficking-A Dual Response from the Feds & State.

Transcription

1 126 th Summer Meeting July 21-24, 2016 The Omni Homestead Resort, Hot Springs, VA Human Trafficking-A Dual Response from the Feds & State. A presentation by the VBA Criminal Law Section

2 Human Trafficking A Dual Response from the State and the Feds Shannon L. Taylor Commonwealth sattorney for Henrico County Brian Hood Assistant United States Attorney Eastern District of Virginia (Richmond Division) I. What is the problem exactly? 1

3 Human Trafficking in a Nutshell Human trafficking is a modern day form of slavery involving the illegal trade of people for exploitation or commercial gain. Traffickers use force, fraud, or coercion to lure their victims andforce them into labor or commercial sexual exploitation. Millions of victims (men, women and children) are trafficked every year in operations that generate billions of dollars in profits annually Why So Prevalent? Market driven industry driven by large demand for cheap labor, services and commercial sex. Low Risk to traffickers Lack of community awareness Lackofgovernment and law enforcement training and enforcement/investigations Lack of recovery services for victims Social blaming of victims High Profit Consumers willing to pay for commercial sex or low priced goods and services produced through human trafficking create strong market incentives with big profit margins U.S. Human Trafficking Cases Reported in 2015 All states 1731 California (No. 1) 979 Texas (No. 2) 433 Florida (No. 3) 403 Virginia (No. 9) 145 Source: 2015 Special Research Report, Human Trafficking Indicators (National Human Trafficking Resource Center and the Regional Organized Crime Information Center) 2

4 Trafficking Indicators Common Work and Living Conditions: Is not free to leave or come and go as he/she wishes Is in the commercial sex industry and has a pimp/manager Is unpaid, paid very little, or paid only through tips Works excessively long and/or unusual hours, not allowed breaks or unusual work restrictions Owes a large debt and is unable to pay it off High security measures exist at work or residence (e.g. windows that are opaque, boarded up or with metal bars; barbed wire; security cameras, etc.) Trafficking Indicators Cont d Poor Mental Health or Abnormal Behavior: Is fearful, anxious, depressed, submissive, tense, or nervous/paranoid Unusually fearful or anxious after bringing up law enforcement Avoids eye contact Poor Physical Health: Appears malnourished or shows signs of repeated exposure Shows signs of physical and/or sexual abuse, physical restraint, confinement, or torture Lack of Control: Has few or no personal possessions Not in control of their own money and finances Not in control of their own identification documents Not allowed or able to speak for themselves (a third party may insist on being present and/or translating) Trafficking Indicators Cont d Other Indicators: Claims of just visiting and inability to clarify where they are staying Lack of knowledge of their whereabouts Loss of sense of time Loss of sense of time Has numerous inconsistencies in their story Often in the company of someone to whom he or she defers or someone who seems to be in control of the situation, e.g., where they go or who they talk to Appears to be coached on what to say 3

5 Additional signs of sex trafficking of children Loss of old friends/unexplained new friends especially older adults with younger kids. Unexplained money, phones, personal property, or things like hair or nail treatments that would be out of the ordinary. Running away/unexplained absences New boyfriend not just a boyfriend Sudden withdrawn behavior Social media is a primary recruiting method, so then inappropriate online conversations and relationships Precise Numbers are Difficult to Measure Globally, it is estimated that somewhere between 700,000 and four million women, children, and men are trafficked each year (Initiative Against Sexual Trafficking, tm) UNICEF reports more than one million children enter the sex trade yearly In the U.S., there are an estimated 57,700 people in modern slavery (Globalslaveryindex.org) Estimated that 1 in 5 of the 11,800 runways reported to the National Center for Missing & Exploited Children in 2015 were likely sex trafficking victims. In the U.S., the average age of entry into prostitution is 13. 4

6 Nationally 450,000 young people run away from home each year. A large percentage of these runaways will be commercially sexually exploited (NISMART). 1 out of 3 will be lured into prostitution within 48 hours of leaving home (Estes & Weiner). Tattoos As Property Labels Not Just Tattoos RFIDs in Humans (Brave New World) Human traffickers using pet tracking RFIDs to control victims RFIDs have very short range, but victims don t know that device found in human trafficking victim/ ii 5

7 Backpage.com 6

8 Example of a Backpage Ad Featuring 2 Women Organizations and Human Sex Trafficking Organized networks instrumental in recruiting and controlling 60% of international HST victims and 40% of domestic HST victims Most trafficking organizations are small (1 5 persons) but can also be quite large Most common precipitating factor for recruiting a woman into prostitution is poverty Source: Sex Trafficking of Women in the United States, Janice G. Raymond National Institute of Justice, March Impact of Human Sex Trafficking on U.S. Victims Head injuries 47 % Emergency room visits required for injuries sustained while working in sex industry 56% Depression 80% Hopelessness 41% Anger and rage felt by victims 64% Suicidal ideation 64% Self harm and suicide attempts 63% Source: Sex Trafficking of Women in the United States, Janice G. Raymond National Institute of Justice, March

9 Impact of Human Sex Trafficking on U.S. Victims Cont d Weapons (guns, knives, sticks, even a sword) used to compel victims to remain in sex industry 61% Held in isolation under guard 69% Controlled/restricted access to friends and family 79% Law enforcement disconnect: social service providers report physical abuse of 77% of victims, while in same study law enforcement officials reported violence less than 50% in sex industry. Victims not identified to receive proper services Perpetrators not properly prosecuted Source: Sex Trafficking of Women in the United States, Janice G. Raymond National Institute of Justice, March III. What laws are on the books to help with this problem? State law The Virginia Code gives us a few laws to prosecute pimps with, in addition to the prostitution laws: Human Trafficking : Taking, detaining a person (to a bawdy place) or for purposes of prostitution : Receiving money for procuring a person in a house of prostitution : Pandering (Receiving money from earnings of a prostitute) : Use of a Vehicle to Promote Prostitution : Abduction with Intent to Extort Money or with Intent to Defile : Abduction to subject to forced labor : Racketeering (RICO) : The NEW Sex Trafficking Law 8

10 Commercial sex trafficking; penalties. A. Any person who, with the intent to receive money or other valuable thing or to assist another in receiving money or other valuable thing from the earnings of a person from prostitution or unlawful sexual intercourse inviolationof of subsection A of , solicits, invites, recruits, encourages, or otherwise causes or attempts to cause a person to violate subsection A of is guilty of a Class 5 felony. B. Any person who violates subsection A through the use of force, intimidation, or deception is guilty of a Class 4 felony. C. Any adult who violates subsection A with a person under the age of 18 is guilty of a Class 3 felony. (2015, cc. 690, 691.) Cont d For the first time, creates a steeper penalty for pimping of juveniles Criminalizes recruitment or encouragement of women or men into prostitution Criminalizes each individual act by the pimp which advances commercial sexual activity Removes the requirement of force, fraud, or coercion when a juvenile is the victim Federal Law 18 U.S.C Sale into Involuntary Servitude 18 U.S.C. 1589(a) Forced Labor 18 U.S.C. 1591(a) Sex Trafficking by Force, Fraud or Coercion 18 U.S.C. 1591(a) () Sex Trafficking of Children hld 18 U.S.C. 2423(a) Transportation of a Minor for Criminal Sexual Activity 9

11 Sale into Involuntary Servitude (18 U.S.C. 1584) Elements 1. The defendant must have held the victim(s) to involuntary servitude through restraint, force, threats of force, or legal coercion 2. Such holding must have been for a term, that is, any period of time 3. The defendant must have acted knowingly and willfully Sale into Involuntary Servitude Cont d Non Meritorious Defenses 1. Victims initially voluntarily consented to work for the defendants, or signed a contract to do so, if consent was later withdrawn 2. Victims were paid some amount for their work 3. Victims failed to take advantage of an opportunity to escape from the defendant 4. Defendants were acting consistently with sincerely held religious or cultural beliefs Sentencing years, or 2. Life if kidnapping, aggravated sexual abuse (or attempt) or attempt to kill Forced Labor (18 U.S.C ) Elements 1. Provided or obtained the labor or services of a person; 2. Did so in one of three prohibited manners: a) threats of serious harm to, or physical restraint against, that person or another person; or b) scheme, plan, or pattern intended to cause the person to believe that non performance would result in serious harm to, or physical restraint against, that person or another person; or c) abuse or threatened abuse of the law or legal process; and 3. Acted knowingly 10

12 Forced Labor Cont d Definitions 1. Serious harm broadly defined to include all types of harm, not just physical harm. 2. Scheme has not be defined by any court, but House Conference report makes reference to causing belief that family will be subject to starvation, banishment, or bankruptcy, or claims of a false legal relationship to a child in order to put child in condition of servitude 3. Abuse of law or legal process has not been defined, but similar statutes have been deemed to include threats to have someone arrested or deported Sex Trafficking By Force, Fraud or Coercion (18 U.S.C. 1591(a)) Elements 1. Defendant knowingly [recruited] [enticed] [harbored] [transported] [provided] [obtained] [maintained] [advertised] [patronized] [solicited] a person; 2. Defendant [knew] [recklessly disregarded] the fact that [force] [threats of force] [fraud] [coercion] would be used to cause victim to engage in a commercial sex act 3. Offense was in or affected interstate or foreign commerce Sex Trafficking By Force, Fraud or Coercion Cont d Definitions 1. Coercion defined in the same three prohibited ways as under 1589 Forced Labor. 2. In or affected interstate or foreign commerce, e.g., use of telephones, the internet, hotels that serviced interstate travelers, or purchased items that had moved in interstate commerce (not many condoms made in Virginia) 3. Commercial sex act means any sex act in exchange for thing of value, not just money 4. Sex act need not have actually occurred 11

13 Sex Trafficking of Children (18 U.S.C. 1591(a)) Elements 1. Defendant knowingly [recruited] [enticed] [harbored] [transported] [provided] [obtained] [maintained] [advertised] [patronized] [solicited] a person; 2. Defendant [knew] [recklessly disregarded] the fact that person had not reached age of 18 years and would be used to cause victim to engage in a commercial sex act 3. Offense was in or affected interstate or foreign commerce Transportation of a Minor for Criminal Sexual activity (18 U.S.C. 2423(a)) Elements 1. That the defendant transported an individual in interstate or foreign commerce; 2. Defendant did so knowingly; 3. Defendant did so with intent that the individual engage in prostitution or in any sexual activity for which any person could be charged 4. That the individual transported had not attained the age of 18 years Transportation of a Minor Cont d Notes May also be charged as a conspiracy under 2423(e), which does not require an overt act. See Whitfield v. United States, 543 U.S. 209, (2005) (when Congress omits reference of overt act in statute it dispenses with that requirement). The government need not prove that the defendant knew the person transported was a minor. United States v. Dwane Washington, 743 F3d938 F.3d (4th Cir. 2014) (brilliantly briefed and argued by AUSA Brian Hood) Defendant may have mixed motives for travel, but criminal sexual activity must be a purpose motivating the interstate transportation. AFFIRMATIVE DEFENSE [ 2423(g)] Defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years. The defendant must establish his belief by clear and convincing evidence. Affirmative defense not applicable to production of child pornography or sexual assault by force 12

14 Penalties For Sex Trafficking Force, Fraud or Coercion ( 1591) 15 years to Life Sex Trafficking of Child ( 1591) 15 Years to life if child less than 14 years old 10 years to life if child 14 and older Transportation of a Minor ( 2423(a)) 10 years to life IV. What Are Some of the Challenges with Human Trafficking Prosecutions? Multi Tiered Approach Prosecutions of these cases produce a series of practical and ethical/ moral issues: 1 How to handle your witnesses 2 Fi f i i i f h ffi ki 2 Fairness of prosecuting victims of human trafficking 3 Prosecutions of juveniles ( Safe Harbor laws) 4 With respect to prostitution defendants particularly those from out of state what are we accomplishing? 5 Treatment components of prosecution 6 What to do with johns? 7 Managing all the players involved 13

15 Trafficking Victims What Do We Do? When individuals are identified as HST victims an entirely different set of problems are created different than any other type of victim that you have dealt with the in the past: 1. Do you have a victim, or do you have a criminal, or do you have some combination? 2. Will you get cooperation? 3. Where will your victim go? 4. How much time are you willing to invest in helping that victim blurred lines? 5. What happens after your case is over? HST Victims What the NGOs/ Studies Will Tell You 1. Victims want to be freed from their life of slavery 2. When you arrest HST victims, you re traumatize the victims 3. Victims are ready to be productive members of society, they just need to be freed from their situation 4. You are forcing HST victims to testify; you should be able to stop the pimps by some other way 5. Victims would rather talk to a woman than a man 6. Victims should be reunited with their family HST Victims What You Won t Be Told: Over 95% of HST victims were victims of sexual assault at an earlier point in their lives Trauma created by that sexual assault has NOT been addressed Victims are often psychologically dependent on their victimizers Victims may be in love with their victimizers Victims often not ready to be saved when first encountered Psychological attachment to victimizer Aversion to law enforcement Dysfunctional home life led to running away or initial recruitment Trained by life and abusers to lie and manipulate HST victims often initially distrust other women Attachment to male abuser Female bottom bitch often disciplinarian in a group 14

16 Prosecution of Prostitutes Treatment Component + Behavioral Modification Convictions result in: HIV/ Hep Test (required by Virginia code): regardless of whether prostitution or Bawdy Place Ban from working as escort, working as prostitute, posting on internet as an escort and, if we can get it, a ban from working in the sex industry at all (i.e, stripper or porn) police database Ban from all Henrico Hotels Referral to Henrico CCP (local probation) to include substance abuse testing + monitor other conditions Engage in 5 sessions of counseling with Safe Harbor to include Human Trafficking assessment Safe Harbor Counseling Safe Harbor developed a 5 counseling session program, involving a group based treatment protocol: Initial Session/ Interview: is an individualized meeting including a HST and trauma screening Session 1: Group dynamic, ice breakers, purpose of group, coping skills and social support networks Session 2: Healthy relationships, healthy sexuality, safety Session 3: Human Trafficking, Substance abuse resources and relapse prevention. Other community resources Session 4: Post counseling, strengths scale, Self esteem and individual plans for the future, mindfulness exercise Safe Harbor also attempts to build an open door relationship with prostitution defendants hoping for future connections V. Where Do We Go From Here? 15

17 Resources, Resources, Resources Trafficking cases present uniquely and extremely challenging logistics and victim services demands: Housing/ Food Secure housing for juveniles Substance abuse treatment Psychological counseling Employment/ Educational skills Life Skills Trauma Issues Tattoo removal Prosecutors Take on Legislation Safe Harbor [not the NGO] laws or laws that decriminalize prostitution can be counterproductive: Hamstring ability to prosecute sex traffickers Could undermine ability to provide services to trafficking victim Essentially return trafficking survivors to the street Mandate changes to laws governing Child Protective Services (CPS) Education on human trafficking Mandate CPS provide services to trafficking victims regardless of jurisdiction in which child is rescued 16