After almost two years of crafting, revising, negotiating and drafting compromise legislation, both the House and the Senate passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (H.R. 7311) by unanimous consent on December 10, 2008. Following are some of the highlights of this extraordinary bill.
The U.S. State Department will base Country Tier ratings in the annual Trafficking in Person’s (TIP) Report on whether countries have made “serious and sustained efforts to reduce the demand for commercial sex” and “serious and sustained efforts to reduce participation in international sex tourism.” The 2009 TIP Report will now cover all countries, not just those with “a significant number” of trafficking cases. In past years, unless the Trafficking in Persons Office could prove the existence of 100 or more victims in previous years, a country would not be included in the report. The time a country remains on the Tier 2 Watch List (used for countries that are on the brink of falling into the worst category, Tier 3) is now limited to two years. The President may make exceptions for up to two additional years if he finds the country is making positive efforts. This is significant because the Tier 2 Watch List is being used as a way to protect politically sensitive countries that deserve a poor ranking from being placed on Tier 3. The Act gives the TIP Office responsibility for all policy, funding, and programming decisions related to its grantees, effectively placing control of grant programs in the hands of the TIP Office for the first time since its inception. The Act enforces the role of the TIP Office in two ways. It now requires consultation and coordination by the TIP Office for all anti-trafficking programs conducted by the State Department and the U.S. Agency for International Development (USAID). In addition, all federal agencies must now submit all grants for review by the Senior Policy Operating Group (SPOG), which the TIP Office Director chairs.
Under the Act, prosecutors no longer have to prove that a defendant knew the victim was a minor; they just need to show that a defendant had a “reasonable opportunity to observe” the victim. In addition, the standard of proof is being lowered to “reckless disregard” for traffickers or defendants who come into contact with victims forced to engage in commercial sex acts. This broadens the scope to allow charges against ancillary participants such as landlords. The Act lowers proof requirements for those who harbor illegal aliens for prostitution purposes. If the trafficker knows or recklessly disregards the victim’s illegal immigration status, the trafficker can be convicted – even without proving force, fraud or coercion. The Act lowers the proof standard in sex trafficking cases involving force, fraud and coercion from “knowing” to “reckless disregard,” thereby removing the means of participants in the commercial sex industry to escape conviction by ignoring indicia of abuse of trafficking victims. The U.S. Code definition of “serious harm” no longer equates commercial sex acts with “labor or services.” The previous definition made the relationship between victim and pimp or trafficker a normative one. The Act creates several new crimes, punishments, and liabilities such as: obstruction for persons interfering with any trafficking investigation, criminal liability for persons conspiring to engage in unlawful trafficking, and criminal liability for anyone financially benefitting or receiving anything of value from a federal trafficking crime. It also expands federal jurisdiction to U.S. citizens and permanent residents who commit, attempt to commit, or conspire to commit federal slavery, forced labor, or sex trafficking crimes abroad. The Act and report language acknowledges the plight of the victims in several ways: the report language clarifies that preying on a victim’s drug use or addictions will, in and of itself, form the basis for convicting traffickers under the Trafficking Victims Protection Act (TVPA); the Act states that proof of force, fraud, and coercion will no longer be gauged by the “reasonable person” standard but instead be gauged using the same backgrounds and circumstances as the victim. The Act also strengthens the financial provisions of the TVPA to enable victims to receive restitution through traffickers’ forfeited assets and enhances the ability of victims to obtain civil damages from anyone benefitting from engaging in federal peonage,1 slavery or trafficking in persons crimes. The Act requires the Department of Justice (DOJ) to create a new model law that “furthers a comprehensive approach to investigation and prosecution” based in part on D.C. Criminal Code 22-2701 et seq. which makes all acts of pimping and pandering per se crimes, even without proof of force, fraud or coercion or a victim’s minor age. The Act changes the way “prostitution and commercialized vice” arrests are categorized in the Uniform Crime Reports. The arrests will no longer be lumped together. They must now be broken down to show how many prostitutes, johns and pimps/traffickers were arrested. In addition, a new category of “Human Trafficking” will appear in the serious crimes category. The Department of Justice must report to Congress within 90 days when the study of the illegal commercial sex industry will be complete. The Act also requires several new reports and studies from the Department of Justice: a report on its activities to enforce Mann Act crimes from 2001 to 2009; a report on the number of prosecutions, convictions, and multiple defendant cases against minors when the victims are above the age of 18 when their traffickers are arrested (“look back crimes”); a report on the use of restitution and forfeiture provisions in human trafficking cases; a report on its activities to enforce RICO offenses in sex and forced labor trafficking cases; a report on its use of D.C.’s pimping and pandering laws (federal prosecutors are responsible for enforcing these per se statutes in the District of Columbia); subject to fund availability, the Act mandates that DOJ conduct an comprehensive study of Internet-based crime in the sex industry and a comprehensive study of the application of state human trafficking statutes and the impact of the current Model Law on enforcement of existing State pandering statutes. The Department of Health and Human Services and the DOJ must submit a report to Congress on the extent of any “service gap” between domestic and foreign national survivors of trafficking. The Act requires the creation of an integrated database by the Human Smuggling and Trafficking Center to collect data from all federal agencies to make better estimates of human trafficking statistics. The Act requires the Department of Labor to provide a list of goods it has reason to believe have been made with forced labor or child labor. The Act authorizes funding for a new program to provide services to U.S. citizen survivors of human trafficking.
- “Peonage: A system by which debtors are bound in servitude to their creditors until their debts are paid.” The American Heritage Dictionary of the English Language, Third Edition, Houghton Mifflin Company, 1992.