Introduction: A Short History of US Efforts to Curb Human Trafficking

Transcription

1 One Step Back, Two Steps Forward: within the United States and its Territories By Karen Saunders, Fellow Forum Foundation for Analytic Excellence (FFAE) Abstract While the United States Government has launched a large-scale and considerably progressive effort to combat human trafficking within its borders. The guiding force behind this initiative is the Trafficking Victims Protection Act (TVPA), federal legislation first enacted in 2000 that defines and criminalizes human trafficking, provides for victims assistance services, and requires the integration of new research and analysis into the development of methods to prevent, identify, enforce, and prosecute human trafficking crimes and assist its victims. However, due to fundamental failures to conduct proactive research and analysis on this issue, counter-trafficking initiatives have failed to keep pace with human traffickers increasingly cunning methods and means of enticing, recruiting, and/or forcing victims into situations of modern-day slavery and keeping them there. Analysts can use structured analysis to take one step back and comprehensively examine this phenomenon in order to propel the anti-trafficking community two steps forward. By employing structured diagnostic techniques (to answer questions like what factors hinder and promote trafficking? which forces act on it?) and imagination techniques (what might it look like ten years from now? what are we missing?), analysts can illuminate and expand understanding of the nature, scale, and scope of US-based human trafficking, and assist in the development of US capacity to address this phenomenon. Introduction: A Short History of US Efforts to Curb Human Trafficking In the late 1980s and 1990s, a disturbing trend was surfacing in the United States for which federal prosecutors lacked both appropriate legislative tools and terminology. A handful of high-profile cases, including U.S. v. Kozminski (1988), U.S. v. Cadena (1998), and U.S. v. Mishulevich (1999), all contained elements of forced labor, either sexual or other, of people held against their will or under conditions of psychological coercion. In the case of U.S. v. Kozminski, prosecutors were initially successful in arguing that the victims Thirteenth-Amendment rights were violated (based on 1865 anti-slavery law) by their

2 2 psychologically-forced captivity, and the traffickers were likewise found guilty of violating public laws against peonage and involuntary servitude enacted in the 1940s (U.S. v. Kozminski 1988). However, the guilty verdict against the victims traffickers was ultimately overturned by the US Supreme Court on the grounds that psychological coercion was not an adequately forceful means of restricting the victims freedom of movement (Kim 2007). These severely outdated laws from 1865 and the 1940s were likewise employed by prosecutors in the cases of U.S. v. Cadena (1998) and U.S. v. Mishulevich (1999), two of the first cases of modern-day international sex trafficking into the United States. U.S. v. Cadena involved between 25 and 40 minor and adult women victims from Mexico who were brought to Florida and the Carolinas for the purpose of sexual exploitation. Other charges included visa fraud, transporting women and minors for prostitution, and importing aliens for immoral purposes (O Neill-Richard 1999). U.S. v. Mishulevich involved the deprivation of freedom of twelve Latvian women just outside Chicago by a Russian-born perpetrator, brought significant attention to the burgeoning problem of modern-day slavery, which was just beginning to be recognized as human trafficking. The case brought the attention of policymakers and legislators in Washington, DC in large part due to the efforts of the leading federal prosecutor, Terry Kinney, to use his contacts in the US capital to engage their counterparts in Latvia to help him prosecute his case (Kelly 2007). The Creation and Enactment of the Trafficking Victims Protection Act (TVPA) of 2000 Morally outraged by a growing number of federal prosecutions involving the enslavement of both US-born citizens and foreign nationals on US soil for labor and/or sexual servitude, the US Congress galvanized to develop and pass the Trafficking Victims Protection Act (TVPA) in The TVPA was instrumental in arming federal prosecutors with a comprehensive prosecutorial tool: it named, defined, and criminalized human trafficking; modernized the awkward and outdated legislation on involuntary servitude and peonage from the 1800s and 1940s; separately criminalized sex trafficking, labor trafficking, and the withholding of documents by traffickers; and provided sentencing guidelines for trafficking that range from 20 years to life equal to those of other serious crimes. Moreover, the TVPA is victim-centered legislation: it mandates funding for comprehensive assistance to victims of human trafficking as well as temporary immigration status and entitlement to receive public assistance in the form of nutrition assistance, shelter, education, and healthcare services to identified non-us citizen victims. This aspect of the legislation is designed not only to provide the safety, security, and well-being of those mistreated in the US

3 3 by human traffickers, but also to ensure their ability to participate in prosecutions that will bring their traffickers to justice. Finally, the TVPA is designed as living legislation to be updated every two years in response to both the evolution of our understanding of human trafficking, and the evolving manifestations of the crime itself. In an effort to ensure that understanding of US-based trafficking crimes keeps pace with its evolution, the TVPA requires the public funding of research projects on human trafficking. Indeed, TVPA s reauthorizations have been updated in response to emerging trends and knowledge of human trafficking in the US: subsequent reauthorizations have criminalized child sex tourism abroad by US citizens, made explicit the rights of victims to prosecute their traffickers in civil court, criminalized trafficking on or near US military installations or areas of conflict and stabilization, and called attention to trafficking of US-born persons, particularly in the domestic minor sex trafficking industry. As a result of other provisions within the TVPA, the US Department of Justice has established and supported specially-designated Human Trafficking Task Forces across the country that serve to integrate important stakeholder groups such as local, state, and Federal law enforcement agencies, victims assistance providers, and prosecutors to identify and pursue human trafficking cases and rescue and restore victims. The Task Forces as well as a range of NGOs and other US Government agencies provide various types of anti-trafficking training for law enforcement, prosecutorial personnel, and the community at large. In short, the TVPA and its many supporting stakeholder groups, including prosecutors, law enforcement agencies, victims advocacy and assistance organizations, human rights advocates, and other NGOs, have made human trafficking a priority crime in the US and a must-address issue for other countries. Limitations of US Ability to Understand and Respond to its Human Trafficking Problems So what s the problem? In many ways, the US response to human trafficking has been admirable: legislators, law enforcement personnel, prosecutors, policymakers, assistance providers, civil-society members, and even ordinary citizens have galvanized to identify and respond to human trafficking cases and to rescue and protect victims of this crime. Moreover, the pursuit of integrating academic, analytic, and civil-society knowledge of human trafficking into policy and practice is enshrined within the TVPA: it requires the US Federal Government to fund analysis and research into human trafficking within the US and its territories for use by policymakers and practitioners. In short, US response is designed to keep pace with emerging and future trends in modern-day slavery.

4 4 However, despite this significant progress in responding to human trafficking within the United States, efforts remain hampered by an underlying analytic failure. Research and analysis of human trafficking in the US has predominantly served to merely describe and further illuminate the types of human trafficking that have already been detected and interdicted. Most research and analysis of human trafficking crimes and victims assistance practices within the United States and its territories has thus far consisted of case data reviews and interviews with survivors, law enforcement, prosecutors, witnesses, convicted traffickers, and victims assistance providers (Dank et al 2014, Smith et al 2009, SharedHope International et al 2006, Clawson et al 2006, Bales and Lize 2004, Estes and Weiner 2001). This type of analytic approach is classified as reactive (Pherson and Pherson 2013). It gives rise to the cycle of knowledge, analysis, and capacity-building depicted in Figure 1 below. Figure 1: Cycle of Knowledge, Analysis, and Capacity-Building While certainly useful in augmenting our current understanding of the forms and manifestations of human trafficking in the United States, this type of analysis is insufficient for both developing a full and forthright understanding of the nature, scale, and scope of the complex phenomenon of human trafficking, and articulating appropriate responses to it.

5 5 In their study of methodological challenges in empirical studies of human trafficking, Tyldum and Brunovskis (2005) highlight the pitfalls inherent in an over-reliance on the use of this type of descriptive analysis to illuminate a country s human trafficking problems. First, while researchers employ the number of human trafficking victims identified and rescued in order to extrapolate the nature, scale, and scope of human trafficking in a given jurisdiction, this data is actually more indicative of the efficacy of law enforcement and victims assistance groups operating within that jurisdiction. In supporting this argument they reference Norway, where a national initiative to curb sex trafficking in women that was implemented in 2003 resulted in more than a ten-fold increase in human trafficking cases opened from 2003 to They suggest that there is little that indicates that these numbers reflect an exponential increase in trafficking in persons as such, from 2003 to 2004, but is generally believed to be related to the shift in attention and the increased resources (24). Second, and most important to the central arguments in this paper, Tyldum and Brunovskis highlight the problem of representativity and bias. Using law enforcement and victims assistance data to analyze and depict human trafficking as a whole will necessarily bias the results, because law enforcement will likely continue to identify and respond to cases similar to those uncovered or described in the past, and victims assistance groups will identify, rescue, and serve victims of similar types of human trafficking. They write, it is difficult to determine to what extent the identified cases are representative of the universe of trafficking cases, and which biases they introduce to our data (24). In other words, those cases which law enforcement is most adept at uncovering or those to which victims assistance groups are most skilled at responding will be over-represented in the dataset, while research and analysis based on this case data will fail to illuminate other forms of trafficking that are prevalent in the jurisdiction but that are as-yet unknown. In contemplating the cycle depicted in Figure 1, the limitations of relying on this type of reactive research and analysis to improve our understanding of human trafficking and build appropriate responses to it become evident: we may be missing a large number of human trafficking cases by failing to challenge our assumptions and expand our thinking and response beyond selfconfirming analysis. Tyldum and Brunovskis sum it up thus: in spite of the strong increase in identified cases of trafficking it remains difficult to determine if the identified cases represent a tip of the iceberg, or if all or close to all incidents of trafficking for sexual exploitation are usually identified (24). The same premise holds true for labor trafficking, trafficking into

6 6 situations of domestic servitude, and labor and sex trafficking of US citizen or foreign national minors. 1 The overlapping dark green shaded areas in Figure 2 below represent the types of human trafficking within the US and its territories that are currently known, and therefore analyzed and for which we have built responses. The outlying light green areas represent the as-yet unknown types of human trafficking which reactive analysis fails to uncover and illuminate. Figure 2: Known and As-Yet Unknown Forms of Human Trafficking within the US Indeed, employing reactive analysis by using descriptions of a country s or jurisdiction s past practices and successes to illuminate and extrapolate the nature, scale and scope of its human trafficking problems is necessarily biased and likely ill-representative of its true nature. Instead, I argue that such an endeavor requires a proactive approach, and in particular would benefit from a structured analytic approach with techniques that stimulate imagination and foresight. 1 I consider the trafficking of minors to be a crime distinct from labor trafficking and sex trafficking of adult populations, as it is considered to be so by US norms in legislation, prosecution, law enforcement policy and practice, and the provision of assistance to survivors.

7 7 How Structured Analytic Techniques will Better Illuminate Human Trafficking within the US What is Structured Analysis? Structured analysis is a method employed by analysts to ensure that their findings are as objective as possible, and thereby devoid of such cognitive traps as bias, erroneous assumptions, and established mindsets. Structured analysis allows for a systematic review of the analyst s discoveries and cognitive trail in an open forum that includes evaluation and input from a variety of stakeholders, such as others tasked with analyzing the same event or issue, managers, and experts on the subject matter who are external to the analytic task. (Heuer and Pherson 2011, 4-5) Structured analysis is divided into two basic approaches, as identified above: a reactive approach to describe what we know has happened or is happening, as well as discern why this is the case, and a proactive approach to explore what this means, what we might be missing, and what might happen next. (Pherson and Pherson 2013, 48-51) Figure 3 below depicts the full spectrum of analysis, leading from a data-driven reactive approach up through a concept-driven proactive approach. Figure 3: The Analytic Spectrum

8 8 This spectrum is comprised of four stages of analysis, beginning with basic descriptive analysis (a summary of the important components the Who? What? How? When? and Where? of an event, individual, group, issue, etc.). Explanatory analysis is performed to explore Why an event, situation or problem occurred or is developing. Descriptive analysis and explanatory analysis are reactive approaches to analysis, and are fundamentally necessary to any analytic task. In some cases, performing descriptive and explanatory analysis (i.e. taking a reactive approach) is sufficient for completing the research or analytical task. However, they remain inadequate for better understanding complex issues and completing complex research and analytical tasks, such as illuminating the nature, scale, and scope of human trafficking (Pherson and Saunders 2013). Using SATs to Better Understand and Address Human Trafficking Structured Analytic Techniques (SATs) allow analysts to move further along the analytic spectrum depicted in Figure 3. In performing analysis to broaden our understanding of the nature, scale, and scope of human trafficking within the United States, a number of different structured analytic techniques are applicable and will help piece together the puzzle. Analysts must carefully consider which structured analytic techniques to use with which stakeholder groups in order to elicit the most useful information. In performing analysis to improve our understanding and response to human trafficking within the US, analysts should involve anti-trafficking professionals (prosecutors, law enforcement officers, legislators, policymakers, victims assistance providers) as well as the community at large. Each of these stakeholder groups has unique and pertinent information and insights, which if gleaned and used properly will contribute to the analytic outcomes. Some suggested structured analytic techniques that would illuminate the nature, scale, and scope of human trafficking within the United States are discussed below. Key Assumptions Check 2 Because research and analysis of US-based human trafficking has been subject to representativity and bias, as discussed above, a Key Assumptions Check would be a worthwhile start to any new such effort on this topic. A Key Assumptions Check is a carefully-orchestrated eight-step process designed to rid analysts of pre-existing mindsets and biases that contribute to the formation of assumptions. It is especially helpful in instances where the information used in analysis is incomplete or ambiguous, since analysts are prone to fill in informational gaps with assumptions arising from these mindsets and biases. 2 The following Structured Analytic Techniques are described in Heuer, Richards J. and Randolph H. Pherson. Structured Analytic Techniques for Intelligence Analysis. Washington, DC: CQ Press, 2011.

9 9 Ideally, analysts would involve experts in identifying and responding to instances of human trafficking, including victims assistance providers, law enforcement officers, health-service professionals, and prosecutors. This would ensure that the complex issue of human trafficking is under scrutiny from as many angles as possible victim-centered, prosecutorial, publichealth, and enforcement. Analysts would then lead group forums to determine what assumptions underlie our existing understanding of how to define US-based human trafficking, how it works, which types are predominant, where it flourishes, and who is victimized. Each assumption would then be critically examined by the group and placed in one of three categories basically solid, acceptable with some caveats, or erroneous/questionable. This technique will help analysts and other participants refine where prior research and analytic efforts have been biased so as to avoid these pitfalls in future work. Force Field Analysis Early-stage research and analysis of US-based human trafficking would likewise benefit from Force Field Analysis, a technique used to identify the external and environmental forces acting upon an issue. It further requires analysts to assess the relative importance of each force, and therefore will help them prioritize the multiple areas of analysis of complex issues such as human trafficking. Ideally, analysts would perform Force Field Analysis in a setting with the same set of countertrafficking professionals as would participate in a Key Assumptions Check, to ensure a wellrounded view of the problem. Key questions that would assist in identifying the forces include: What factors must absolutely be present for human trafficking to exist? What resources must the trafficker have? What environmental conditions allow trafficking to exist and flourish? What factors facilitate or quell its growth? SATs for Generating New Ideas: Structured Brainstorming After completing a Key Assumptions Check and a Force Field Analysis to determine what is currently known and assumed about US-based human trafficking, an analytic team would seek to expand its field of inquiry through SATs that spur idea generation. In other words, SATs for generating new ideas expand the field of analytic inquiry to include as-yet unknown types and methods of US-based human trafficking, as depicted in Figure 2 above. Structured Brainstorming is one widely-used SAT for idea generation, and would be an appropriate launching point for analysts tasked with broadening our knowledge base of how human trafficking is manifested in the US. Unlike many SATs, Structured Brainstorming does not require that participants embody particular expertise in the topic of analysis. In this case, its value in expanding the known universe of human trafficking forms and methods is predicated

10 10 on its ability to involve community members without significant knowledge or expertise on human trafficking, and to thereby harness the knowledge intrinsic within the population. While even case evidence suggests that information intrinsic to the population of a given jurisdiction is of enormous value in identifying human trafficking cases there, human trafficking researchers and analysts have overlooked this stakeholder group. Victims assistance organizations and law enforcement agencies have, however, learned to harness the power of the community to increase their efficacy in identifying situations of human trafficking and/or victims of these crimes. For example, law enforcement officers in Montgomery County, Maryland support a contingent of confidential informants that include service workers such as hotel personnel and taxi drivers who provide information to law enforcement when they see situations that appear to be trafficking-related (Personal interview 2008). Similarly, victims assistance organizations and other NGOs build awareness of human trafficking among community members through trainings at churches, synagogues, mosques, community centers, unions, and the like; many cases of trafficking into domestic servitude have been identified and reported by ordinary citizens who see something amiss in the home of a neighbor or fellow community member. In performing a Structured Brainstorming exercise to expand our understanding of what, where, to whom, by whom, and how human trafficking works in a given US community, analysts would seek to involve hotel workers, clergy, beauty salon employees, convenience store clerks, fast-food service workers, florists, nightclub workers, restaurant personnel, grocery clerks, bouncers at clubs, and the like. Questions that analysts should pose of the broader community in a Structured Brainstorming session include: Where might the illegitimate business of human trafficking intersect with legitimate business? How might people be vulnerable to trafficking schemes and how might traffickers exploit these vulnerabilities? Using Scenarios Analysis to Outfox the Traffickers Structured Analytic Techniques that help experts envision alternative scenarios to those about which we currently know will prove invaluable in expanding our understanding of human trafficking within the US. Scenarios Analysis is a useful technique for grasping the entirety of a complex issue, and can be performed in a group setting with a team of analysts and subjectmatter experts. Questions that analysts might consider when examining the scenarios that might give rise to human trafficking and enable its continuation include: How, where, when, and using what methods might human traffickers exploit their victims? Other than the trafficker, who else may be complicit in this crime?

11 11 Scenarios Analysis is likewise a technique that would allow analysts to foresee vulnerabilities within the US population, its culture, and/or its anti-trafficking legislative and policy architecture that might give rise to future trafficking trends. Questions relevant to this line of analytic inquiry include: How might trafficking manifest itself in the future? What are we missing in the present that render populations vulnerable to trafficking schemes? Conclusion The US response to human trafficking within its territory has been concerted, passionate, and admirable, and it is supported by well-crafted legislation that is designed to allow research and analysis of current, emergent, and possible future manifestations of this crime to inform policy and practice. However, analysts and researchers of US-based human trafficking have only used methodologies that reflect on current knowledge and practice, and therefore have largely failed to consider emerging and future manifestations of this crime. Building proactive responses to complex issues like human trafficking requires a sophisticated conceptualization of the problem both as it currently manifests itself as well as how it may take shape in the future. Employing structured analytic techniques will allow researchers and analysts to view human trafficking within the United States in its full complexity and entirety, and thereby provide practitioners with the appropriate understanding of this issue in order that they may build appropriate mechanisms to identify and dismantle human trafficking operations, prosecute the perpetrators of these crimes, and rescue and restore their victims.

12 12 References Bales, Kevin and Steven Lize. Trafficking in Persons in the United States: A Report to the National Institute of Justice. Report prepared under National Institute of Justice Grant #2001- IJ-CX Clawson, Heather J., Mary Layne, and Kevonne Small. Estimating Human Trafficking into the United States: A Methodology. Fairfax, VA: Caliber, an ICF International Company, Dank, Meredith, Bilal Khan, P. Mitchell Downey, Cybele Kotonias, Deborah Mayer, Colleen Owens, Laura Pacifici, and Lilly Yu. Estimating the Size and Structure of the Underground Commercial Sex Economy in Eight Major US Cities. Washington, DC: The Urban Institute, March Estes, Richard J. and Neil Alan Weiner. The Commercial Sexual Exploitation of Children in the U.S., Canada, and Mexico. Philadelphia, PA: University of Pennsylvania Center for the Study of Youth Policy, September 10, Heuer Jr., Richards J. and Randolph H. Pherson. Structured Analytic Techniques for Intelligence Analysis. Washington, DC: CQ Press, Kelly, Kimbriell. New Slavery. The Chicago Reporter. September 27, Kim, Kathleen. Psychological Coercion in the Context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking. University of Toledo Law Review, Vol. 38, No. 3, Montgomery County, MD Vice Detective, Name Withheld. Personal Interview. April 25, O Neill-Richard, Amy. International Trafficking in Women to the United States: A Contemporary Manifestation of Slavery and Organized Crime. DCI Exceptional Intelligence Analyst Program, United States Government, November Pherson, Randolph H. and Katherine Hibbs Pherson. Critical Thinking for Strategic Intelligence. Washington, DC: CQ Press, Pherson, Randolph H. and Karen Saunders. Using Structured Analytic Techniques to Assess the Interrelationship Between Warlordism and International Diffusion. International Studies Association 2013 Annual Convention, San Francisco, CA. April 5, 2013.

13 13 Report from the U.S. Mid-Term Review on the Commercial Sexual Exploitation of Children in America. Shared Hope International, ECPAT-USA, and The Protection Project of the Johns Hopkins University School of Advanced International Studies. Washington, DC. September Smith, Linda A., Samantha Healy Vardaman, and Melissa A. Snow. The National Report on Domestic Minor Sex Trafficking: America s Prostituted Children. Arlington, VA: SharedHope International, May Tyldum, Guri and Anette Brunovskis. Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking. International Migration 43.1/2 (2005): U.S. v. Kozminski. 487 U.S Supreme Court of the US