Fighting Human Trafficking: Blurred Lines Between Criminalization & Protection
There are an estimated 27.6 million human trafficking victims worldwide at any given time. Also referred to as “trafficking in persons” and “modern slavery,” human trafficking is an umbrella term for crimes whereby traffickers exploit and profit off of people compelled into forced labor or commercial sex. In response to the widespread, international nature of this illicit trade, over 175 nations have ratified or acceded to the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons. This “UN TIP Protocol” defines trafficking in persons and outlines states’ obligations to address it. Domestically, the United States passed landmark legislation – the Trafficking Victims Protection Act of 2000 (TVPA) – which aligns with the UN TIP Protocol’s definition of human trafficking. Beyond these sweeping policies, a plethora of anti-trafficking initiatives led by non-governmental organizations have given rise to community-led crackdowns on suspected trafficking. Given the complexity of detecting and deterring human trafficking on a global scale, policymakers must revise their approach to anti-trafficking responses by writing and enforcing criminalizing legislation through the lens of the unintended consequences they currently have on the victims they aim to protect.
On a macro level, anti-trafficking efforts in the United States are rooted in the TVPA, which created a national strategy for combating human trafficking and formalized language for victims to describe their exploitations – including defining the crimes of both sex and labor trafficking. The TVPA also established the “3 P’s” framework of combating human trafficking: protection, prevention, and prosecution. It increased protections for survivors by providing funding, services, and health benefits to them regardless of immigration status and created T Visa documents for foreign national victims. Human trafficking is prosecuted as a federal crime with severe penalties and requires restitution to be paid to survivors. Lastly, the Act created a national task force and Office to Monitor and Combat Trafficking in Persons (TIP Office) to ensure public awareness, research, and international economic development programs assisting potential victims and preventing future crimes. The TVPA has been reauthorized along bipartisan lines numerous times since being signed into law in 2000. Each re-authorization amended further actions to improve survivor services, expand federal criminal jurisdiction, and provide more resources for anti-trafficking advocates.
The breadth of the TVPA’s provisions for protection, prevention, and prosecution raises questions about the implementation and efficacy of these tighter legal measures. One critique of the TVPA is its annual Trafficking in Persons (TIP) report published by the State Department, which describes and ranks countries’ efforts to combat human trafficking. While some U.S. officials view it as a principal diplomatic tool to engage foreign governments on human trafficking, many opponents question the TIP’s credibility in measuring anti-trafficking efforts. The lack of transparency surrounding the report’s methodology for country assessment has led to concerns about political pressures distorting country rankings, possibly to maintain positive bilateral relations with certain countries. Moreover, many foreign governments view the report as U.S. interference in their affairs, further reducing its credibility as a tool to strengthen global anti-trafficking initiatives. Recent reauthorizations of the TVPA in 2017 and 2018 have attempted to respond to these concerns by reducing the State Department’s discretion in assigning tier ranking to countries. Still, beyond naming and shaming countries with inadequate anti-trafficking efforts, the measurable impact of the TIP report on reducing human trafficking remains ambiguous.
Beyond federal legislation, there have also been various anti-trafficking initiatives at the state and local levels, albeit with unintended consequences on targeted communities. State efforts to criminalize sex-based trafficking often generate biases against certain populations. Crackdowns on Asian massage businesses often rely on xenophobia and preconceived linkages between “bodywork” and brothels. Municipal ordinances designed to enforce the licensing of spa and massage parlors – such as former Rhode Island Governor Gina Raimondo’s 2016 anti-trafficking law – carry blatantly xenophobic undertones that target working-class, immigrant communities of color while requiring individuals to meet rigid criteria, such as having a high school diploma and fluency in English. These crackdowns also frequently involve law enforcement raids, such as a 2019 raid at the Orchids of Asia spa in Palm Beach, FL, which made national news due to its association with Robert Kraft, the general team manager of the NFL Patriots. While prosecutors conceded there was not a single case of human trafficking among all the workers arrested that day, it still resulted in the seizure of thousands of dollars of workers’ assets and the deportation of undocumented workers who were arrested and turned over to ICE [1]. This trafficking-deportation pipeline is a central unintended consequence of anti-trafficking initiatives that end up criminalizing both individuals who have no association with trafficking due to state biases and actual trafficking victims.
Another unintended consequence of state responses to human trafficking is the blurred lines of what constitutes human trafficking. Despite clear definitions outlined in key legislation like the TVPA, many anti-trafficking initiatives still overlap in the discourse around human smuggling, which lacks the distinct element of coercion. The two categories of migration intertwine as trafficked individuals forced into prostitution/labor may have initially voluntarily engaged in smuggling services to cross international borders illegally. Upon arriving, these individuals find themselves coerced into prostitution/labor through violence directed at them or their families [2]. These blurred lines often pose substantial barriers to obtaining legal protection for trafficked persons, predominantly women, in their country of destination and of origin. Consequently, they are viewed as “double outcasts”, violating both prostitution and immigration laws. Due to the surrounding social ambivalence, there is often state reluctance to help trafficked women and often state action used against them (i.e. deportation), which only obstructs the successful prosecution of their traffickers [3].
Human trafficking terminology and social fears have also allowed for greater public support for general anti-migration policies. A prime example is the escalation of enforcement along the U.S.-Mexico border beginning in the early 1990s with bipartisan support among policymakers and the public to implement tougher control measures on illegal migration. These efforts to reinforce the securitization of the U.S.-Mexico border actually reinforced migrants’ circumvention of authorities, increasing their reliance on smugglers to be redirected to alternative migration routes. President Clinton’s administration launched an aggressive campaign to “regain control” of the southwest border, including a dramatic expansion of the Immigration and Naturalization Service (INS). The INS’s strategy was primarily prevention through deterrence, with additional enforcement measures such as increasing physical barriers, surveillance equipment, legal sanctions, and law enforcement. Border patrol agent numbers increased tremendously beginning in 1993, with the trend continuing under Congress’s Illegal Immigration Reform and Immigration Responsibility Act of 1996 and again in 2006, when it hired thousands of border patrol agents and approved building a 700-mile-long border fence [4]. This spiral of increased unauthorized migration, increased militarization of the border, and increased circumvention of authorities has two key unintended consequences — increased profits for migrant smugglers due to migrants’ stronger dependence on them to execute their navigation plan, and increased migrant deaths from turning to the most dangerous routes to the U.S.
This glaring feedback loop between the escalation of enforcement for unauthorized migration and illicit circumvention of state authorities illustrates the inevitable unintended consequences to state responses against illicit flows. While federal legislation like the TVPA makes criminalizing the crime and protections for survivors legally distinct, anti-trafficking initiatives have blurred these lines in practice, resulting in deportations, seizures of assets, and crackdowns on small businesses not associated with the crime. Policymakers must better mitigate these blurred lines by recognizing how these regulations translate into reality. Consequently, they should specify mechanisms that prevent immigrants and other populations from being wrongfully associated with trafficking, enforce legal protections from prostitution charges for trafficked individuals, and place transparency and accountability at the core of “name and shame” initiatives to fuel credible action against human trafficking.
[1] Elena Shih, “The Trafficking Deportation Pipeline,” Feminist Formations (Spring 2021)
[2] Kyle & Koslowski, Global Human Smuggling (Introduction)
[3] Demeleitner, “The Law at a Crossroads: The Construction of Migrant Women Trafficked into Prostitution”, Global Human Smuggling (Chapter 14)
[4] Peter Andreas, “The Transformation of Migrant Smuggling Across the US-Mexican Border”, Global Human Smuggling (Chapter 5)
Ashley Ganesh is a junior at Brown University, concentrating in Business Economics and International & Public Affairs. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.
Jack Tajmajer is a senior at Brown University concentrating in Political Science and Economics. He is an editor for the Brown University Undergraduate Law Review and can be contacted at jack_tajmajer@brown.edu