Download full report in PDF format

4. The U.S. Legal Response to Forced Labor

Throughout U.S. history perpetrators of forced labor have been one step ahead of the law. In 1865 the Thirteenth Amendment of the U.S. Constitution outlawed chattel slavery and involuntary servitude.⁴⁵ Yet in the years following the American Civil War, Southern white landowners lured thousands of newly freed slaves and immigrants into peonage as sharecroppers on their plantations and farms. In response, the U.S. Supreme Court issued a series of opinions stating that the Constitution's prohibition against slavery was intended to go beyond situations of ownership to stamp out "any other kind of slavery, now or hereafter."⁴⁶ In 1874, in response to a new form of human trafficking, Congress adopted the "Padrone statute"⁴⁷ to combat the practice of kidnapping boys in Italy to be used as shoeblacks, street musicians, and beggars on the streets of American cities.⁴⁸ In 1910, in an effort to curb prostitution, Congress passed the Mann Act, which imposed stiff penalties on traffickers of women within U.S. borders.⁴⁹

Still, unscrupulous employers continued to find new ways of compelling workers—many of whom were newly arrived immigrants—to work under slavelike conditions. In the early 1940s the Supreme Court ruled that employers could not force workers to remain in their jobs. Nor could they penalize them for leaving their employment.⁵⁰ Congress went on to enact a federal law in 1948 specifically criminalizing "peonage," ⁵¹ or the practice of holding someone to work off a debt, and involuntary servitude,⁵² whereby an individual was forced to work against his or her will. Despite this landmark legislation, U.S. courts generally interpreted the law to mean that criminal sanctions could only be imposed against perpetrators who used physical force or threats and not psychological coercion or trickery to hold victims in bondage.⁵³ This limitation in the application of the law was eliminated with passage of the Trafficking Act of 2000.

International Prohibitions against Forced Labor

The first international agreement abolishing slavery dates to the League of Nations Slavery Convention of 1926. The convention defined slavery as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised."⁵⁴ It declared slavery a "crime against humanity" and the slave trader hostis humani generis and an enemy of all humankind over whom any state could hold criminal jurisdiction.⁵⁵ Thirty years later the U.N. Supplemental Convention on Slavery proscribed slaverylike practices, including bondage, serfdom, the forcing or sale of a woman into marriage, and the sale of children into labor.⁵⁶

By the early twentieth century, as chattel or legal slavery was fading as a practice, colonial powers had begun imposing mass forced labor on indigenous populations under their control. In response, the International Labor Organization (ILO) adopted Forced Labor Convention No. 29, which outlaws forced labor, defined, with some exceptions, as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily."⁵⁷ During the Second World War forced labor persisted and took on unprecedented forms. At the height of the Nazi regime, one quarter of Germany's workforce comprised foreign civilians who worked as forced laborers.⁵⁸ During the final months of the regime, large numbers of Jewish and other prisoners held in German concentration camps were compelled to work in a range of economic sectors, including munitions and massive construction projects. The Japanese military also forced as many as seven hundred thousand Koreans, forty thousand Chinese, hundreds of thousands of other Asians, and up to half of the one hundred and forty thousand Allied prisoners to work under brutal conditions in mines, steel plants, and construction.⁵⁹ After the war, in 1949, the international community adopted the Geneva Conventions imposing minimum conditions under which prisoners of war and civilians may be forced to work during times of armed conflict.

International Human Trafficking and Forced Labor

The first international agreement to prohibit human trafficking was the U.N. 1949 Convention for the Suppression of Trafficking in Persons and the Exploitation of Others. An amalgamation of late ninetieth-and early twentieth-century treaties drafted to address the phenomenon of "white slavery," the convention defined trafficking solely in terms of prostitution, which limited its ability to combat other forms of human trafficking not linked to sexual exploitation. The 1979 International Convention on the Elimination of Discrimination Against Women went on to call on states to suppress "all forms of traffic in women and exploitation of prostitution of women."⁶⁰ But it was not until 2000 when the international community adopted the Convention Against Transnational Organized Crime and the accompanying Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) that international law would really begin targeting modern forms of human trafficking.⁶¹

The Trafficking Protocol adopts a broad definition of trafficking that enshrines three concepts: (1) the movement of individuals (2) through deception or threats (3) for the purpose of exploitation.⁶² Exploitation covers a wide range of practices, including sexual exploitation, forced labor, slavery or practices akin to slavery, and the removal of organs. The Trafficking Protocol calls on states to criminalize human trafficking, create measures to prevent it, and address the needs of victims. Preventative measures required by the protocol include dissemination of information, partnerships with civil society to address the issue, and poverty reduction programming.

Domestic Legislation: The Trafficking Act

The 2000 Trafficking Act is a bold departure from prior approaches to trafficking and forced labor in the United States. Recognizing that these crimes are global problems, the law established the Office to Monitor and Combat Trafficking in Persons in the U.S. State Department to oversee a wide range of efforts to end human trafficking abroad. The Trafficking Act

• criminalizes procuring and subjecting another human being to peonage, involuntary sex trafficking, slavery, involuntary servitude, or forced labor;
• provides social services and legal benefits to survivors of these crimes, including authorization to remain in the country;
• provides funding to support protection programs for survivors in the United States as well as abroad; and
• includes provisions to monitor and eliminate trafficking in countries outside the United States.

Most important, the law distinguishes smuggling—a victimless crime by which migrants cross borders without authorization—from trafficking—a practice by which individuals are induced by force, fraud, trickery, or coercion to enter the United States and then forced to work against their will. The law clearly specifies that those caught up in trafficking and forced labor should be recognized as victims of a crime rather than treated as unauthorized migrants who must be returned to their countries of origin.

Labor and human rights activists welcomed the passage of the Trafficking Act in 2000 for many reasons. First, the new law sharpened the legal teeth of existing sanctions for involuntary servitude, peonage, and slavery by adding new crimes of human trafficking, sex trafficking, forced labor, and document servitude (withholding or destroying documents as part of the trafficking scheme).⁶³ Trafficking is defined as the prohibition against any individual who provides or obtains labor or services for peonage, slavery, involuntary servitude, or forced labor. The law contains a provision that sanctions trafficking adults into the sex industry through force, fraud, or coercion (in the case of victims under eighteen years old, there is no requirement of force, fraud, or coercion).

Second, the act not only strengthened laws so that traffickers could be held accountable for their crimes, but it provided specific measures to address the unique needs of trafficking victims. To begin with, it offered temporary immigration status to victims of a "severe form of trafficking" (minors who are trafficked for commercial sex and trafficking of adults through deception to work against their will). Through the T visa nonresidents who are willing to cooperate with law enforcement to prosecute their traffickers would be eligible to remain in the United States and to receive the same social service assistance offered to refugees, even where victims have entered the United States without proper immigration documents. Victims who are able to provide information to law enforcement but who are unable to cooperate fully are also eligible for temporary immigration relief.⁶⁴ Family members of victims are also eligible for protection and able to reunite with the survivor in the United States. The act also enabled survivors to receive housing, psychological counseling, and other social service needs.

Finally, the act enlarged the repertoire of law enforcement tools to combat trafficking. It broadened the definition of "coercion" for the new crimes of forced labor and sex trafficking to include psychological manipulation. This meant alleged perpetrators could be held accountable if they caused a victim to believe that his or her failure to comply with their orders would result in serious harm to the victim or to others. As noted above, psychological coercion was previously insufficient to prove involuntary servitude. The law also criminalized the confiscation or destruction of identity or travel documents, a practice traffickers often use to control their victims, and enabled prosecutors to pursue not just the ringleaders but all those involved in a trafficking operation, including recruiters, drivers, and other intermediaries.

Such progress notwithstanding, the Trafficking Act does have some notable shortcomings, the effects of which will be explored more fully in the following sections. Advocates and service providers criticize the essential framework of the Trafficking Act which conditions benefits on the cooperation of survivors with federal law enforcement. Qualified trafficking survivors are eligible for two types of immigration relief—"continued presence" and a T visa—both of which grant authorization to work and entitle survivors to receive social service benefits but which require assistance from law enforcement personnel to obtain. Only federal law enforcement may request continued presence. Survivors may apply on their own for a T visa. Applicants for a T visa over fifteen years old must document that they are cooperating with law enforcement.

Although not strictly required, an endorsement from federal law enforcement is the preferred evidence of cooperation. State and local law enforcement agencies that encounter trafficking victims are encouraged to refer these cases to the federal government.⁶⁵

Relation of the United States to International Trends

In many ways the United States has been at the forefront of the fight against modern slavery and forced labor. Unlike international law, U.S. domestic legislation recognizes that slavery is defined primarily by the power of an individual to control another for economic gain.⁶⁶ Historically, the federal government has expanded this principle by adopting laws specifically to respond to the evolving nature of forced labor and enslavement. Moreover, while the definitions and philosophy of trafficking in the U.N. Trafficking Protocol and the United States Trafficking Act are similar, the U.S. has adopted a more aggressive, proactive approach to the problem than the one outlined in the international agreement. For example, unlike the Trafficking Protocol, the Trafficking Act contains international monitoring and sanctions provisions. Similarly, while the protocol does not allow victims to seek relief from perpetrators, the Trafficking Act establishes mandatory restitution from convicted traffickers. A recent amendment to the Trafficking Act allows survivors to sue their former captors for civil damages for violations of the statute.

Despite their strengths, both international and U.S. anti-trafficking laws suffer similar weaknesses when it comes to protections for victims. Although the U.N. Protocol and the U.S. Trafficking Act are explicit in recognizing that trafficked individuals are victims of a crime rather than illegal migrants, they are by no means consistent in this victim-centered approach. The Trafficking Protocol makes state provision of immigration relief, social services, and compensation to victims discretionary as opposed to mandatory. While the United States law goes further and establishes regulations to provide immigration status and social services to victims, it provides these benefits only to victims of a "severe form of trafficking" who are involved with the prosecution of their traffickers. Furthermore, conditioning immigration relief and social services on cooperation with prosecution creates the perception that victims are primarily instruments of law enforcement rather than individuals who are, in and of themselves, deserving of protection and restoration of their human rights.

The Trafficking Act also contains "definitional inconsistencies" that may weaken intended protections for trafficking survivors. For example, survivors must show they are a "victim of a severe form of trafficking"—a victim of sex or human trafficking—to be eligible for immigration relief and benefits. According to some advocates, the federal authorities have failed to issue certifications to some trafficking survivors because they felt the allegations of abuse were not "severe enough."⁶⁷

Back to Table of Contents | Previous | Next