Trafficking Victims Protection Act: Progress and Promise

Luis CdeBaca
Ambassador-at-Large, Office To Monitor and Combat Trafficking in Persons
Department of Justice’s National Human Trafficking Conference
Washington, DC
May 3, 2010

As prepared for delivery

Good morning and thank you for the opportunity to be here today to discuss the Trafficking Victims Protection Act: Progress and Promise.

Thank you James Burch for that kind introduction. The last time I attended the Department of Justice’s National Human Trafficking Conference it was as a federal prosecutor. Today, I’m humbled to be here with all of you, my friends and former colleagues, in a new capacity as an inter-agency partner in the “whole of government” effort to combat human trafficking.

Modern history has witnessed as many manifestations of enslavement as there are attempts to define and respond to it in both the domestic and international communities. These manifestations have been to the detriment of victims, as exemplified in the United States v. Shackney case, where Luis Oros, his wife Virginia, and their five children were held in peonage in 1964, even as so many marched for civil rights. The definitional and response seesaw left the Oros family, who were immigrants from Mexico, in a lurch. As the appellate court ruled that a threat of deportation is not a legally recognizable form of coercion. A victim, the court stated, can choose to leave and get deported – even if it’s a bad choice, it’s still a choice.

While the 13th Amendment to the United States’ Constitution affords freedoms to every person in America, it was clear through a series of appeals, such as the Shackney case that Congress must take a more hands-on approach to combat this abuse of human rights. Because when there’s no progress on delivering on the promise of freedom, it’s not an intellectual or analytical issue. It’s real people, wondering if they will ever escape from bondage. And so another generation passed, with no progress.

Ten years ago, the United States and the United Nations each made yet another attempt, but this time there was a marked difference. Instead of focusing on one form of compelled service over another–forced labor, bonded labor, slavery, forced prostitution–the United States engaged in an effort to put forward the concept that all forms should be criminalized, victims of all forms deserved protection, and prevention of all forms was a worthwhile endeavor to attack the problem at its core.

This concept captured in the United States’ Trafficking Victims Protection Act of 2000 is what we now know by the umbrella term “trafficking in persons” and respond to through the “three Ps”: protection, prevention, and prosecution. But whatever the particular euphemism we see used, as Secretary Clinton recently said to the President’s Cabinet: “Let’s call it what it is, a modern form of slavery.”

Secretary Clinton is right; we are fighting a modern form of slavery, a crime that U.S. law enforcement has battled since the Civil War and continues today. Our modern efforts are easily broken down into three categories: pre-TVPA, the 10 years since, and the path ahead. I would like to share some thoughts on that with you this morning.

It seems like just yesterday there were a few federal prosecutors, some here in this room today, that pursued and prosecuted criminal cases that today would be termed trafficking cases. Cases that we all know, such as U.S. v. Flores, a case of agricultural slave labor; U.S. v. Mahtani, an example of domestic servitude; or U.S. v. Kim, Phan, and Ortiz, a case of forced prostitution and sexual exploitation. At the time, these cases were not called human trafficking, even though all of the elements existed.

When the Immigration and Naturalization Service (INS) uncovered more than 250 brothels in 26 American cities, known as Operation Lost Thai, there was no “whole of government” response. There were no uniform guidelines in place to respond to this undefined crime. And it was very hard to convince people even in government that a prostitute could also be a modern-day slave, and should be treated with dignity.

While we knew crimes were being committed, we pursued them under other federal statutes. Not only did it affect our prosecution methods, but it also affected our victim response. We faced issues with detentions and deportations–some of the same issues that we continue to face today–as well as lack of shelters and services. Prior to the passage of the TVPA we were limited in our ability to aid victims through “S” visas because of stringent guidelines.

In the mid-1990s, then-First Lady Hillary Rodham Clinton became interested and focused on this issue through her work with women and children. At the time, the most visible form of trafficking was women and girls from the former Soviet Union. There were duped by false advertisements for work in Western Europe only to find themselves trapped in brothels and strip clubs. The image of the blonde, beautiful, and vulnerable victim, reminiscent of anachronistic approaches to this problem back in the 1800s, garnered worldwide attention, but also demonstrated the weaknesses of that old legal regime. In the meantime, cases in the United States still involved men, women, and children–United States citizens and foreigners alike–in both sex and labor trafficking.

It became clear that a holistic approach was needed, one that focused more on the exploitation than merely on the movement of people for immoral purposes. Then-First Lady Clinton, along with Attorney General Janet Reno and Secretary of State Madeline Albright, were instrumental in bringing this issue to the attention of policymakers in Washington. Out of it was borne the Trafficking Victims Protection Act of 2000 (TVPA).

The TVPA emboldened states to pursue and enact legislation to combat trafficking at the state level. In fact, the successes of the TVPA and effectiveness of state law is clearly shown in a recent case, Ramos v. Texas where the legal pitfalls exemplified in the Shackney case were bridged. In fact, the Ramos case recognized that the threat of deportation is indeed coercion and a factor in determining a victim of trafficking in persons, even if the victim walked out through the front door rather than escaping through the window or in the middle of the night. The Ramos case is a prime example of what we can achieve through solid legislation and implementation of federal and state-level laws.

That same year, the world embraced international standards, known as the Palermo Protocol, to combat modern slavery. Currently, 137 countries have adopted it. The legal and policy achievements of the last decade have helped rehabilitate thousands of victims and led to the arrest and prosecution of thousands of traffickers.

Since the international and domestic efforts were rooted into law, we have seen a global growth of understanding of the issue and an expanding response through the “three Ps.”

We know human trafficking is a human rights abuse; a byproduct of conflict; a threat to national security, public health and democracy; a labor and migration issue; and an ever-growing global phenomenon. It is also a crime: a crime akin to murder and rape and kidnapping.

We also know that modern slavery exists in communities and cultures spanning the globe. It is a fluid phenomenon, responding to market demands, vulnerabilities in laws, weak penalties, natural disasters, and economic instability.

International studies indicate that more people are trafficked for forced labor than commercial sex. We see in the field that there is less duping and kidnapping of naïve victims than there is coercion of people who initially agreed to do the work. In the last 10 years, we have learned that movement is not required to be considered trafficking in persons and that this crime is not limited to one gender, faith, or geographical area. In addition, traffickers use rape as a weapon against women, whether in a field, factory, brothel, or suburban home.

The Palermo Protocol mandates the criminalization of human trafficking, and the TVPA is enforcement driven, because a policy solution to a heinous crime problem must involve freeing the victims and punishing their tormentors.

No country, including the United States, has attained a sophisticated or truly comprehensive response to this massive, ever-increasing, ever-changing crime. Ten years of focused efforts is the mere infancy of a movement. Every country is still learning what trafficking is and what works in response to it. More must be done by the international community to fulfill the promise of the Palermo Protocol, as the vast majority of people enslaved today around the world have yet to see any progress.

The Obama Administration’s response builds upon 10 years of the “three Ps” in practice, which has illuminated a new path of promise for the future. I believe that the vision of the “three Ps” is more nuanced and better understood than it has been at any point in our 10 years working together. But it won’t be realized unless we all hold one another accountable to it.

The TVPA helps us do so with important new tools that stands for the proposition that ignorance is not an excuse. The strip club owner who looks the other way as so-called talent agents enslave women: that’s not a bystander; that’s an accomplice. The landlord who turns a blind eye and collects rent from “massage parlors” where foreign women are held for forced prostitution: that’s not rent; that’s complicity. So too for the grower who is comfortable with farm labor contractors using force and threats to harvest the crops as long as they get picked on time. To those who have turned a willfully blind eye to the exploitation in front of them, the updated law puts down a marker: whether you partake or profit, you’re accountable. Period.

The United States has been a world leader in the fight to combat trafficking for a host of reasons, including the work all of you do. You are instrumental change agents on the front lines of this movement: you enforce the TVPA and implement its victim-centered approach. I thank you for your leadership and dedication against trafficking. The United States continues to share best practices with other countries based on what we see working and not working in our communities around the country.

As is the legacy of the United States throughout its history, we are looking to “lead by example” once again in the fight against modern slavery. This year, in the State Department’s annual Trafficking in Persons Report, the United States will rank itself along with more than 175 other countries. This ranking is not meant to be a reprieve or a rebuke. It is to be a fair and real assessment based on the minimum standards outlined in the TVPA–the same standards to which the State Department ranks other countries. This ranking will not only strengthen our partnerships around the globe but also strengthen our partnerships here at home and allow us to take a closer look at what works in our victim-centered approach and to gauge what is not working.

Already, we know that our research and data collection must be more quantitative and evidence-based to ensure that all of you, the members of the 40 taskforces throughout the country, are equipped with the tools you need to identify and assist victims. As we press forward, we must find ways to expand the quality of information encapsulated in the Human Trafficking Reporting System so that it includes greater field information from the areas across America that do not have human trafficking task forces. Through the interagency coordination group’s research subcommittee, we are working hard to sharpen our understanding of this scourge.

The promise we seek to fulfill will be bolstered by what has now been coined as the fourth “p” – partnerships. We must strive toward better coordination with our interagency partners within our “whole of government” approach, but also partners from unlikely or untapped resources.

Non-governmental organizations have historically been strong partners in the anti-trafficking movement. Today, we are working to build on our historic relationships and cultivate new partnerships with the private sector, namely private business and corporations so that we can leverage the resources, expertise, and talents against trafficking.

Partnering with the private sector is essential to scrubbing modern slavery out of the supply chains that create our every day products–food, clothes, and cell phones to name a few. But, it’s also an unmistakable opportunity to go back to the victim-centered approach and partner with businesses across the United States to provide victims in-kind assistance through job-training and employment.

In the last 10 years we have undoubtedly experienced progress thanks to many of the people in this room today. Building on that progress we see the promise that President Obama outlined in his proclamation earlier this year for Human Trafficking Awareness month.

As President Obama stated: “The victims of modern slavery have many faces. They are men and women, adults and children. Yet, all are denied basic human dignity and freedom. Victims can be abused in their own countries, or find themselves far from home and vulnerable. Whether they are trapped in forced sexual or labor exploitation, human trafficking victims cannot walk away, but are held in service through force, threats, and fear. All too often suffering from horrible physical and sexual abuse, it is hard for them to imagine that there might be a place of refuge. We must join together as a Nation and global community to provide that safe haven by protecting victims and prosecuting traffickers. With improved victim identification, medical and social services, training for first responders, and increased public awareness, the men, women, and children who have suffered this scourge can overcome the bonds of modern slavery, receive protection and justice, and successfully reclaim their rightful independence.”

Through partnership, we must secure the safe place of refuge the President referred to; we must “lead by example” as we are known and expected to do; and we must allow every victim to realize his or her God-given potential. The United States has made historic progress on this issue, still in its modern infancy. We must devote ourselves to never again letting a generation go by without forward progress. Bursts of activity, and successes, in the early 1900s, the 1930s, and the early 1980s were allowed to fall dormant. We must not allow that to happen again. We can, and we must, get it right this time. Working toward a world without modern slavery is no doubt a bold proposition, but it is one that we must work toward. Thank you again for having me here this morning and for all you do to fulfill the promise of freedom in America.