Human Trafficking: Modern Enslavement of Immigrant Women in the United States (5/31/2007)
What is human
trafficking? Human trafficking is
a modern form of slavery. It is an extreme form of labor exploitation where
women, men and children are recruited or obtained and then forced to labor
against their will through force, fraud or coercion. Trafficking victims are
often lured by false promises of decent jobs and better lives. The inequalities
women face in status and opportunity worldwide make women particularly
vulnerable to trafficking.
Federal law defines
“severe forms of trafficking in persons” as 1) sex trafficking in which a
commercial sex act is induced by force, fraud, or coercion or in which the
person induced to perform such an act is under 18; or 2) the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or
services, through the use of force, fraud, or coercion, for the purpose of
subjecting that person to involuntary servitude, forced labor, peonage, debt
bondage, or slavery.1
While some
trafficking victims are forced to work in the sex trade, many others are forced
to perform other types of labor, such as domestic servitude, factory work or
agricultural work. Trafficking victims commonly experience physical and
psychological abuse, including beatings, sexual abuse, food and sleep
deprivation, threats to themselves and their family members, and isolation from
the outside world.
Trafficking victims
can be foreign nationals and they can also be native U.S. citizens trafficked within
U.S. borders.
What are involuntary servitude, forced
labor, peonage and debt bondage?
A trafficked victim
may be subjected to various conditions of modern day slavery such as forced
labor, involuntary servitude, debt bondage or peonage.
Under U.S. law, a
person is placed in conditions of forced labor if they are forced to work
against their will through actual or implied threats of serious harm, physical
restraint or abuse of the law.2 If the person is forced to work
through physical force or threats of physical force, they are victims of
involuntary servitude.3 A person is subjected to peonage if that
person is compelled by force, threat of force or abuse of the law to work
against their will in order to pay off a debt.4 If the value of a
person’s work is never reasonably applied towards payment of the debt, the
person has been subjected to debt bondage.5
The term “forced
labor” is also often used to describe all of these forms of modern day
slavery.6
How many people are victims of forced labor
and trafficking?
The hidden nature of
forced labor and trafficking makes it extremely difficult to calculate the
actual numbers of victims, but some estimates do exist.
The International
Labor Organization (ILO) estimates that at least 12.3 million people are victims
of forced labor at any given time, 2.4 million of whom toil in forced labor as a
result of trafficking.7 The U.S. Department of State estimates that
14,500 to 17,500 people are trafficked into the United States each
year.8 However, these numbers do not include the many individuals
trafficked within U.S. borders.
The Human Rights
Center at the University of California, Berkeley estimates that at least ten thousand
people are working as forced laborers at any one time in the United
States.9
Who are the
victims of human trafficking?
Worldwide, women and
children suffer disproportionately from trafficking. Poverty, gender
discrimination, illiteracy and low levels of education, regional conflicts, and
a lack of job opportunities affect women in great numbers. Such conditions
pressure women to migrate and make them particularly vulnerable to trafficking
that is, to unscrupulous recruiters or employers who, through force, fraud, or
coercion, place women in job situations to which they did not consent and from
which they cannot freely escape. Accordingly, an estimated 80 percent of
trafficking victims worldwide are women and children.10
In the United
States, victims of trafficking are almost exclusively immigrants, and mostly
immigrant women.11 The average age of trafficking victims in the U.S.
is 20.12 In the U.S., immigrant women and children are particularly
vulnerable to the deceptive and coercive tactics of traffickers because of their
lower levels of education, inability to speak English, immigration status, and
lack of familiarity with U.S. employment protections. Further, they are
vulnerable because they often work in jobs that are hidden from the public view
and unregulated by the government.
What are typical
characteristics of trafficking?
Traffickers, usually
a recruiter or the actual employer, will compel their victims to accept a job
through various forms of deception, coercion or physical force. Traffickers
deprive their victims of the ability to consent and use physical force or
psychological, legal or economic coercion to trap their victims in forced labor
situations from which they cannot freely escape.
In extreme
situations, victims may be forced into an employment relationship because they
were sold by a family member or physically abducted or kidnapped by traffickers.
More commonly, traffickers lure their victims into employment relationships by
making false promises about the nature and conditions of their future jobs. For
example, a trafficker may promise a woman a job in the U.S. as a nanny
earning minimum wage, but when she arrives she is instead forced to work in a
sweatshop where her wages are withheld, she is forced to work eighteen hours a
day and she is not allowed to leave the premises.
How do traffickers coerce and exploit their
victims?
Traffickers use
various physical and psychological tactics to coerce an individual to labor
against her will.
The U.S. Department
of State estimates that 14,500 to 17,500 people are trafficked into the
United
States each year.
Physical Abuse:
Trafficked victims are often beaten and brutalized, raped and sexually
abused.13 Victims also frequently are deprived of adequate food,
shelter and sleep.
Psychological
Abuse: Traffickers commonly subject their victims to psychological abuse
through threats, deprivation and isolation. Traffickers may threaten to kill or
harm victims or their family members if they do not do as they are told. Very
often traffickers deprive victims of freedom of movement by isolating them in
the workplace and cutting off their contact with the outside world. Traffickers
may subject their victims to patterns of abuse intended to cause fear and
disorientation. For example, traffickers often employ severe verbal abuse and
insults, intended to exacerbate feelings of isolation, shame, and betrayal that
victims experience.14
Abuse of Legal Process: Traffickers
sometimes use legal mechanisms to enforce their control over victims. For
example, traffickers may deprive victims of their passports or identification
documents or threaten victims with arrest or deportation if the victims do not
continue to labor for the traffickers.
In what industries do forced labor and
trafficking victims work?
Forced labor and
trafficking is an endemic problem in those industries that lack government
regulation or oversight and where, as a result, employers often fail to comply
with U.S. labor laws.
As the “informal
economy” grows in the U.S. – that is, remunerative work that is not recognized,
regulated or protected by existing laws or regulations – so do the occurrences
of forced labor or trafficking. Forced labor and trafficking in the United
States are most prevalent in domestic service, agriculture, sweatshop and
factory work, restaurant and hotel work and in the sex industry. The majority of
trafficking cases in the U.S.
have been reported in New York, California, and Florida, states with high concentrations of
immigrants.15
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What drives the
trafficking industry?
Trafficking of
humans is driven by a global demand for cheap, unskilled, exploitable labor. Global profits from forced labor
total an estimated $44.3 billion annually.
Human trafficking is now the second largest criminal industry worldwide,
after drug trafficking, and the fastest growing criminal
industry.16
A number of factors contribute to the
supply of trafficking victims. According to the U.S. Department
of State, these include: ·
Poverty
·
The attraction of perceived higher standards of living
elsewhere
·
Lack of employment opportunities in the immediate area
·
Organized crime
·
Violence against women and children
·
Discrimination against women
·
Government corruption, political instability, and armed
conflict.17
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What conditions
allow trafficking to persist in the United States?
Despite legislation
that punishes traffickers and provides services and assistance to
victims,18 human trafficking continues to exist in the United
States. Legal reform and enforcement of
existing labor and employment protections would bolster current efforts to
address trafficking:
Increased
Enforcement of Existing Protections of Workers: Many workers in communities
vulnerable to trafficking are actually protected by federal and state labor and
employment laws setting minimum wages, requiring safety measures, prohibiting
discrimination and protecting the right to organize for better work conditions.
Increased and more widespread enforcement of these legal protections in such
communities would reduce the vulnerability of workers to trafficking and other
forms of exploitation.
Reforming Legal
Exclusions of Vulnerable Workers: Workers employed in certain professions or
by certain employers are excluded from some labor and employment laws.
Unsurprisingly, these communities of workers tend to have high incidences of
trafficking and exploitation. For example, a large number of trafficking cases
involve trafficking of live-in domestic workers.19 Live-in domestic
work is one of the professions effectively excluded from many legal protections
such as anti-discrimination laws, overtime laws, health and safety regulations
and protections for workplace organizing.20 Reforming these laws so
as to include such workers would significantly reduce their vulnerability to
trafficking.
Protecting
Undocumented Immigrants from Trafficking: Undocumented immigrants are
extremely vulnerable to trafficking because of fear of law enforcement and
deportation. Current laws extend
most labor and employment protections to undocumented immigrants.21
Unfortunately, unaware of their rights and often fearful of the consequences of
attempting to seek assistance, these workers remain extremely vulnerable and
isolated. Increased outreach to
vulnerable communities, enforcement of current protections and reform extending
all labor and employment protections to this group will greatly reduce their
vulnerability to trafficking and other forms of exploitation.
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What judicial remedies are available to
victims of trafficking?
Criminal:
Victims of trafficking can receive restitution and their traffickers can be
subject to fines and/or imprisonment as a result of criminal prosecution under
the Trafficking Victims Protection Act of 2000 (TVPA).22 The TVPA
criminalizes trafficking with respect to forced labor, involuntary servitude,
peonage, and slavery. The TVPA also makes it a criminal offense to confiscate a
victim’s documents in furtherance of a trafficking crime. Many states have also
now adopted their own trafficking laws.
Civil:
Victims of trafficking can also seek compensation for their economic losses
and suffering by bringing a civil claim against their trafficker for trafficking
violations under a civil cause of action added to the TVPA in 2003. Victims can
also claim relief under various federal and state labor and employment laws.
What services and government benefits are
available to survivors of trafficking?
Under the Victims of
Trafficking and Violence Protection Act of 2000 (TVPA), victims of trafficking
are eligible for the services and benefits available to refugees in the United
States, such as cash assistance, food stamps, Medicaid and SSI. In order to
receive these services and benefits the U.S. Department of Health and Human
Services (HHS) must certify that an individual is a victim of
trafficking.23 In addition, some government- funded programs and
services are available to trafficking victims, such as crisis counseling,
short-term housing assistance, and mental health assistance necessary for their
safety.24
What kinds of immigration relief are
available to victims of trafficking?
Continued Presence provides temporary
immigration relief to victims of trafficking to enable them to lawfully remain
in the United
States to effectuate prosecution of their
traffickers. “Continued presence” can only be requested for a victim by a law
enforcement agent and is conditioned on a victim’s cooperation with law
enforcement in a criminal investigation. Continued presence is issued for no
more than one-year increments.
T Visa
provides immigration relief to victims of trafficking. Victims can
self-petition for a T Visa if they agree to cooperate with law enforcement in a
criminal investigation. In order to receive a T-visa the applicant must
cooperate with any requests for assistance in the investigation or prosecution
of any acts of trafficking.25
U Visas are
issued to aliens who have suffered substantial physical or mental abuse as a
result of being a victim of certain crimes designated by the TVPA, including
trafficking, that violate domestic laws or occurred while in the United
States.26 In order to be eligible for the U Visa, a victim must have
cooperated or be willing to cooperate in a criminal investigation.
Asylum relief
may be available to victims of trafficking if they fear they may be persecuted
if returned to their home country. An asylee may adjust to permanent resident
status one year after being granted asylum.
Recipients of these
forms of immigration relief are eligible for employment authorization and the
benefits and services available to victims of trafficking. The T Visa and U Visa
provide temporary lawful immigration status to victims of trafficking, with the
option of adjusting to legal permanent resident status.
Only 5,000 T visas
and 10,000 U visas are available annually. These limits do not apply to family
members.27
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Assistance for Victims of
Trafficking
·
To report a
trafficking in persons situation to law enforcement, contact the police at 911
or the Trafficking in Persons and Worker Task Force complaint line at (888)
428-7581 or your District Attorney’s office.
·
To report a
trafficking situation, obtain information and access supportive services
available to a victim of trafficking, contact the Trafficking Information and
Referral Hotline of the Department of Health and Human Services at (888)
3737-888.
·
To file a complaint
for violations of wage and hour laws, contact the Wage and Hour Division of the
Department of Labor at (866) 487-9243.
·
To file a complaint
for violations of anti-discrimination laws, contact the EEOC at 1-800-669-4000.
·
To find legal
representation to pursue immigration relief, contact your local Legal Aid
office.
·
To find legal
representation to pursue a civil case against a trafficker, contact the ACLU
Women’s Rights Project at (212) 549-2644 or your local ACLU affiliate to help
connect you to legal services in your area. Assistance for Victims of
Trafficking |
Endnotes
1 Victims of
Trafficking and Violence Protection Act (“TVPA”) of 2000, 22 U.S.C. §
7102(8).
2 18 U.S.C. §
1589.
3 18 U.S.C. §
1584.
4 18 U.S.C. §
1581.
5 22 U.S.C. §
7102 (4).
6 See,
e.g., Human Rights Center,
Univ. of California, Berkeley &
Free the Slaves, Hidden Slaves: Forced Labor in the United States (Sept.
2004) [hereinafter Hidden Slaves], available at http://www.hrcberkeley.org/download/hiddenslaves_report.pdf.
7 Int’l Labor
Org., A Global Alliance Against Forced Labour, 93rd Sess., Report I(B) at
10 (2005) [hereinafter ILO Global Alliance].
8 U.S. Dep’t of State, Trafficking in Persons Report, 2004
at 23 (2004) [hereinafter 2004 TIP Report].
9 Hidden
Slaves at 1.
10 U.S.
Dep’t of State, Trafficking in Persons Report, 2006 at 6 (2006)
[hereinafter 2006 TIP Report].
11 Hidden
Slaves at 5.
12 Amy
O’Neill Richard, Center for the Study of Intelligence, International
Trafficking in Women to the United States: A Contemporary
Manifestation of Slavery and Organized Crime (Nov. 1999) [hereinafter
Richard, Int’l Trafficking in Women], available at https://www.cia.gov/csi/monograph/women/trafficking.pdf.
13 Int’l
Labor Org., Forced Labour: Time for Action at 5, available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB.DOWNLOAD_BLOB?Var_DocumentID=1870.
14 Hidden
Slaves at 37.
15 Richard,
Int’l Trafficking in Women at 3.
16 H.R. Res.
55, 110th Cong. (2007).
17 2006
TIP Report at 16.
18 Victims of
Trafficking and Violence Protection Act of 2000, 22 U.S.C. §
7101.
19 Hidden
Slaves at 15; 2006 TIP Report at 9.
20 National
Labor Relations Act, 29 U.S.C. § 152(3) (stating “the term ‘employee’ shall
include any employee […] but shall not include any individual employed […] in
the domestic service of any family or person at his home”); Fair Labor Standards
Act, 29 U.S.C. § 213(b)(21) (exempting from maximum hour limitations and
overtime compensation requirements all “live-in” domestic workers); Occupational
Safety and Health Act, 29 C.F.R. § 1975.6 (1972) (stating “as a matter of
policy, individuals who, in their own residences, privately employ persons for
the purpose of performing for the benefit of such individuals what are commonly
regarded as ordinary domestic household tasks, such as house cleaning, cooking,
and caring for children, shall not be subject to the requirements of the Act
with respect to such employment”).
21 However,
in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), the United
States Supreme Court held that undocumented workers are not entitled to remedies
for violations of their rights to unionize under the National Labor Relations
Act. Subsequently, some state courts have interpreted various state labor and
employment rights and remedies as not extending to undocumented workers.
Crespo v. Evergo Corp., 366 N.J. Super. 391 (App. Div. 2004);
Renteria, et al. v. Italia Foods, Inc., et al., 2003 U.S. Dist. LEXIS 14698 (N.D. Ill., Aug. 21, 2003); Sanchez v. Eagle Alloy Inc.,
254 Mich. App.
651 (Mich. Ct. App. 2003)); The Reinforced Earth Co. v. Workers’ Compensation
Board (Astudillo), 810 A.2d 99 (Pa. 2002); Rosa v. Partners in Progress,
Inc., 152 N.H. 6 (N.H. 2005).
22 TVPA, 22
U.S.C. § 7101.
23 U.S.
Dep’t of Labor, Trafficking in Persons: A Guide for Non-Governmental
Organizations 2002 [hereinafter DOL, Trafficking Guide], available
at http://www.dol.gov/wb/media/reports/trafficking.htm.
24 DOL,
Trafficking Guide.
25 Id.
26 Id.
27 Id.
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