Image Credits: @nampoh on Unsplash (Unsplash License)
The United Nations Office on Drugs and Crime defines human trafficking as the act of harboring, keeping, transporting, or transferring people against their will. Despite being technically recognized by United States federal law, the crime has a particularly unique relationship with legality. Due to the illicitness and subjectivity of human trafficking, it has come to lack legislative advocacy that is truly fitting. With its intersectionality with other crimes, ever-changing tactics and dynamics, and hidden nature, it seems impossible to define it through policy. Through understanding this, one can better contextualize the history of human trafficking, and better analyze how the United States legal system should be treating it.
We understand human trafficking, today in the United States, as a blatant and cruel crime; however, its origins date back to a time when the crime was far more normalized. Human trafficking has existed, in some form, for centuries. The most prominent example is the Transatlantic Slave Trade starting in the 1500s, when many European nations traveled to Africa to capture people and return them with the goal of exploitation. Abduction, abuse, and enslavement were ever present, with hierarchical legal and political systems being built in the new colonies to preserve this. The normalcy surrounding enslavement practices caught on, and remained entrenched in many countries as they continued to develop. Of course, even as slavery became illegal, human trafficking acts became more surreptitious, and legislation failed to keep up. The first official United States federal anti-human trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, serves as evidence. In a 2006 article by the Fordham Law Review, it is stated that the act “emphasizes the law enforcement components of anti-trafficking initiatives in a way that undercuts the Act’s humanitarian goals of assisting trafficking victims .” This legislation focused on clarifying an array of punishments for a very single-threaded definition of the crime. This allowed space for human trafficking to continue, and even in more complex and covert ways.
Human trafficking experienced a new boom period around the late 1800s with the rise of Chinese immigration. With the urge to find better-paying jobs associated with the Gold Rush, the number of Chinese immigrants in the U.S. skyrocketed. Along with widespread racism and violence, this led to the unfortunate targeting of Chinese women in human trafficking practices. The Page Act of 1875 was the first US legislative act to address this on a surface-level by limiting the immigration of Asian people and punishing those who brought people to the United States against their will and for “immoral purposes.” While this effectively worked in stopping the immigration of Chinese women into the nation for a period of time, it ultimately led to even more trafficking. The Act resulted in 95% of the Chinese population in the United States being male, stimulating a new illegal rise of trafficking Chinese women by several Chinese gangs, or “Tongs” to be forced into prostitution. Unfortunately, the precedent set by this wave of trafficking remained entrenched in the crime for its illegal strategy.
Since the 1900s, several legal actions have been taken by larger political organizations and international policies to try and limit the crime. Whether it be an act that establishes human trafficking as a crime into law, like the renditions of The Trafficking Victims Protection Reauthorization Act (2003, 2005, 2013, 2017), or an act that focuses more on proactive prevention, such as the Frederick Douglas Trafficking Victim Prevention and Protection Reauthorization Act of 2018, no policy has effectively limited human trafficking. The latest Trafficking Victims Protection Act of 2017 centers around transparency of the federal government’s anti-trafficking work and provides funding and mandates to support victims. With the following reauthorization act, new provisions were added to address foreign compliance with international protection standards, and collaborations between private sectors to combat human trafficking on ground-level bases. These acts are effective in establishing norms, letting human traffickers and their victims know that there are vast repercussions for their crimes, and holding discovered trafficking accountable. However, in comparison, acts like the Frederick Douglas Act take a more proactive approach while holding government policies responsible for the realities and developments of human trafficking. This act increased reporting obligations and established smaller, grounds-based, specialized groups to work on demand reduction for goods produced through labor. While both of these acts have made great improvements, human trafficking has taken on many different forms and has been entrenched in products and services that many people in the US rely on. This has allowed human trafficking to take a much more illicit form, especially in the present day, and makes it even more difficult to enact legislation that effectively limits human trafficking.
As the use of the internet and social media has risen drastically, human traffickers have been able to commit different crimes and violations with less accountability. Trafficking through social media typically starts with the forming of a relationship with the potential victim, where many traffickers attempt to form fake personalities or impersonate friends of the victim. Even if this is not the route that the traffickers take, this kind of interaction leaves the victim vulnerable to being coerced into meeting face-to-face with the trafficker. In many cases, traffickers utilizing social media will offer jobs as a ploy to try and attract victims. Polaris’s research demonstrates that these traffickers often take advantage of those most in need of work, like in their case study of migrant workers from the Philippines. They explain that job postings on Facebook, or other social media platforms, seem particularly “influential and trustworthy,” as their higher need for work leads them to take riskier chances and look less into job credibility before contacting the “employer.” The relationship between social media and human trafficking is, to put it simply, directly correlated. Social media has fostered the proliferation of human trafficking through the ease of recruitment, communication, and exploitation of vulnerable individuals.
The rise in the trafficking of Filipino migrant workers is not only a testament to how social media has paved the way for continued human trafficking, but it also exemplifies how human trafficking emphasizes the prejudices against people of color. According to a 2021 report on human trafficking by the U.S. Department of State, the systemic racism that lies at the base of our nation has entrenched itself in human trafficking practices in several ways. To begin, early chattel slavery practices relied on the separation of family units during the trading of enslaved people. This intentionally limited not only the social interactions, but the close connections enslaved people could build. The report states that these practices of restricting opportunities for close relationships have permeated into our society, and lead to a disproportionate amount of black people in foster care, prisons, and homeless services. Similar discrimination happened in indigenous communities when imperial colonizers came to communities, stripped children from their families, and mandated a European education, estranging them from their culture. Again, this practice remained entrenched in our nation’s systems, just as human trafficking, but as a different manifestation. As the Department of State reports, traffickers often seek out “individuals with weaker community or family connections, knowing they have fewer safeguards.” In fact, in the most recent US Department of Justice special report on the “Characteristics of Suspected Human Trafficking Incidents” from 2008-2011, it was found that 63% of trafficking victims were Hispanic, 40% were black, and 17% were Asian, “most of which were undocumented immigrants.” These statistics have not only remained true but have intensified. Through understanding the historical roots of systemic racism in our nation, one can better contextualize how it has remained entrenched in human trafficking and has resulted in disproportionate effects on people of color.
It is abundantly clear that human trafficking has been and still is incredibly prevalent in the United States, as well as across the globe. However, so much of it happens out of plain sight. A 2020 report by the National Institute of Justice affirms this. In one jurisdictional study, it was revealed that the recorded trafficking numbers only “represented as little as 14% and at most 18% of the potential total trafficking victims.” The report then goes on to describe how law enforcement’s reporting of trafficking captures even less of the true total. Many believe this lack of reporting is due to the complex illicitness of the crime, and may be influenced by the characters of individual reporters. The same NIJ report states that certain officers who are naturally obliged to report the statistics simply do not see the crime as worthy of attention and of reporting, due to a few factors: firstly, there is a lack of officer training. A 2022 dissertation by Marie Angelena Garrett confirms “training deficits” in police responses and management of trafficking responses. Due to its complex illicitness and variety of appearances, officers are not trained to recognize the many forms of human trafficking. Secondly, the law enforcement system pushes human trafficking cases to later stages of criminal justice proceedings, lessening the priority of the crime. This occurs mostly because many police officers have trouble discerning human trafficking from other crimes, as “the nature of human trafficking crimes often complicates identification.” This lack of police attention to trafficking is a testament to how the crime is misunderstood and thus, often overlooked by society.
Unfortunately, it is not just our law enforcement that treats human trafficking with a lack of priority. The United States Criminal Justice System has treated victims of trafficking, like it has with many other victims, in an unjust manner. The US has come to criminalize human trafficking victims, sometimes more than the traffickers themselves. A submission to the UN Periodic Review by Cynthia Soohoo on behalf of the International Women’s Human Rights Clinic explains this further: despite the US being one of the best nations at recognizing human trafficking as a crime, our criminal justice system focuses far more on making arrests and “corrections” rather than tackling the root of the crimes. As previously mentioned, human trafficking is often mistaken for, if not intertwined with crimes such as prostitution. In most cases, people partaking in prostitution are not doing so by choice, especially younger people. Rather, these are often victims of a trafficking operation that is more difficult for the law to recognize. Unfortunately, as the submission explains, our criminal justice system features laws that are “designed to maximize prostitution arrests and prosecutions, rather than to identify and assist people who have been trafficked.” This means that victims are often forced to face authorities and charges for other crimes rather than treated with care and addressed as actual victims. These convictions also make it incredibly difficult for trafficking victims to receive help once they are out of the operation. For example, victims just escaping their operation will require specialized assistance and attention, not only with material items like housing placements, and career and education training, but also with protection from future trafficking — something that is unfortunately very likely. Perhaps, this maltreatment of victims by the criminal justice and police force system can serve as a mechanism for finding areas to make improvements.
What national improvements can be made to deal with such an underground, complex crime? Pinning down one suggestion has proven to be nearly impossible. Perhaps the answers lie in rationing our focus amongst the different layers of human trafficking. For example, Soohoo’s UN submission centers around victim retribution. She focuses on ensuring equitable access to key aspects of daily life, such as education, job training, and housing. The US has passed a supplemental amount of legislation regarding the punishment of human trafficking but seems to have been disregarding victims post-punishment. It is far less likely that victims will be able to escape the trafficking if they are attempting to do so in an environment that does not allow sustainable living. Should the United States also solidify this aid into legislation, along with other policies that prevent the detention and criminalization of people trafficked into the sex trade, it is likely that human trafficking would significantly decrease.
Generally, human trafficking is not spoken of much in US education systems, political spheres, and in day-to-day conversation. Increasing awareness of the realities behind trafficking in every aspect of human life – not just in legal life – would, at the very least, allow for more attention on the subject to be raised while trafficking victims cannot raise it themselves.