Seeking Justice for Trafficking Victims

6TH ANNUAL CONFERENCE ON HUMAN TRAFFICKING: SESSION 7

Michael Neham, Esq.Staff AttorneyCentral California Legal Services, Inc.

Criminal v. Civil Justice

Criminal Lawsuits Goal is to hold the defendant

accountable to the GOVERNMENT.

Case is initiated and controlled by (state or federal) prosecutor.

Victim is a witness and does not have the right to direct the prosecution of the case or to veto the prosecutor's decisions.

To prevail, the state must prove that the perpetrator is guilty "beyond a reasonable doubt.”

Civil Lawsuits Goal is to hold the defendant

accountable to the VICTIM. Case is initiated and controlled by

the victim.

Victim is a party and is entitled to all important information relating to the case, and can make decisions about the direction of the case such as settlement of the claim.

To prevail, the victim must prove by a preponderance of the evidence (“more likely than not”) standard that the perpetrator is liable.

Criminal v. Civil Justice (cont.)

Criminal Lawsuits

A successful prosecution can subject the perpetrator to punishment such as probation or jail.

The victim will not obtain money unless the court orders the defendant to pay restitution.

The court cannot order restitution for non-economic damages.

If the perpetrator is found not guilty, the state cannot initiate a second prosecution (double jeopardy).

Civil Lawsuits

A successful civil suit can subject the perpetrator to financial liability to the victim for:

Economic Damages

Medical and therapy expenses

Lost Wages

Non-economic damages

Damage to Family Relationships,

Pain and Suffering

Punitive Pamages.

The victim can sue the perpetrator in civil court regardless of whether the perpetrator has been found guilty in a criminal prosecution.

Legislative Action

The Trafficking Victims Protection Act (TVPA) of 2000 Criminalizes forced labor; trafficking with

respect to peonage, slavery, involuntary servitude, or forced labor; sex trafficking by force, fraud or coercion; or sex trafficking of children; and unlawful conduct with respect to documents in furtherance of trafficking.

Establishes the T Visa Allows victims of “severe forms of

trafficking” (and immediate family members) to become temporary U.S. residents, through which they may become eligible for permanent residency after three years. Adult victims must cooperate with law enforcement to be eligible.

Victims must show they would suffer extreme hardship if deported.

The United States Constitution, Amendment XIII:

“Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.”

Severe Forms of Human Trafficking

Federal Prosecutions

Human Trafficking

0 50 100 150 200 250 300

Initiation & Disposition of Federal Criminal Cases: FY 2011

Defendants Indicted Defendants Convicted

Source:• The Attorney General’s Annual Report to Congress and Assessment of U.S. Government

Activities to Combat Trafficking in Persons, FY 2011, U.S. Department of Justice – Office of Legal Policy

Federal Prosecutions

Traffic Offenses

Human Trafficking

0 500 1000 1500 2000 2500 3000 3500

Initiation & Disposition of Federal Criminal Cases: FY 2011

Defendants Indicted Defendants Convicted

Sources:• The Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to

Combat Trafficking in Persons, FY 2011, U.S. Department of Justice – Office of Legal Policy• Federal Justice Statistical Tables: 2011, US Department of Justice – Bureau of Justice Statistics

Federal Prosecutions

Drug Trafficking

Traffic Offenses

Human Trafficking

0 5000 10000 15000 20000 25000 30000 35000

Initiation & Disposition of Federal Criminal Cases: FY 2011

Defendants Indicted Defendants Convicted

Sources:• The Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to

Combat Trafficking in Persons, FY 2011, U.S. Department of Justice – Office of Legal Policy• Federal Justice Statistical Tables: 2011, US Department of Justice – Bureau of Justice Statistics

Civil Remedies in the TVPA

2003 Reauthorization18 U.S.C. § 1595(a):

“An individual who is a victim of a violation of section 1589 [forced labor], 1590 [recruitment], or 1591 [child sex trafficking] may bring a civil action against the perpetrator in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.”

2008 Reauthorization18 U.S.C. § 1595(a) as amended:

“An individual who is a victim of a violation may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.”

Ubi Jus Ibi Remedium

‘For every wrong there is a remedy. “Cal. Civ. Code § 3523

Other Available Civil Actions Against Traffickers

Racketeering-Influenced Corrupt Organizations Act (RICO) Thirteenth Amendment and Involuntary Servitude

Recognized by some courts as in independent civil cause of action

Alien Tort Claims Act The Civil Rights Act

Title VII (employment discrimination) Sec. 1985(3) (civil conspiracy to interfere with civil rights) Section 1981 (race or national origin discrimination on contracts)

Fair Labor Standards Act Migrant and Seasonal Agricultural Worker Protection Act State torts and contract claims State labor and housing codes

The California Trafficking Victims Protection Act (2005)

New Penal Code section 236.1 Severe forms of human trafficking (incorporating the

federal definition) classified as a felony. Created a human trafficking caseworker evidentiary

privilege. Enhanced mandatory sentencing when offense involves

force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person.

Allows non-economic restitution awards for cooperating victims

Civil Remedies under CTVPA

Civil Code 52.5 provides a private right of action for violation of Penal Code 236.1. Allows the victim to sue a trafficker(s) for:

Actual damages

Compensatory damages

Punitive damages

Injunctive relief (i.e. restraining orders)

“any other appropriate relief”

Treble damages, or $10,000, whichever is greater

Attorney's fees and costs.

Expert witness fees

Common Hurdles

Traumatic stories that change over multiple interviews with law enforcement.

Evidentiary disputes and protective orders. The “visa” defense. Telling the whole story at trial. Cultural and class barriers to settlement. Mixed subjective and objective legal standards. Cascading definitions confusing to juries and judges. Post-judgment collection

Human Trafficking “defined”

“Any person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services is guilty of human trafficking.”

Human Trafficking “defined” (cont.)“’Deprivation or violation of the personal liberty of

another’ includes substantial and sustained restriction of another's liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out.”

Duress“’Duress’ includes a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to acquiesce in or perform an act which he or she would otherwise not have submitted to or performed; a direct or implied threat to destroy, conceal, remove, confiscate, or possess any actual or purported passport or immigration document of the victim; or knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or immigration document of the victim.”

Forced labor or services

“’Forced labor or services’ means labor or services that are performed or provided by a person and are obtained or maintained through force, fraud, duress, or coercion, or equivalent conduct that would reasonably overbear the will of the person.”

Coercion

“’Coercion’ includes any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; the abuse or threatened abuse of the legal process; debt bondage; or providing and facilitating the possession of any controlled substance to a person with the intent to impair the person's judgment.”

Serious Harm

“’Serious harm’ includes any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor, services, or commercial sexual acts in order to avoid incurring that harm.”

“”

The total circumstances, including the age of the victim, the relationship between the victim and the trafficker or agents of the trafficker, and any handicap or disability of the victim, shall be factors to consider in determining the presence of ‘deprivation or violation of the personal liberty of another,’ ‘duress,’ and ‘coercion.”

…and to make things easier

Got all that?

Legal Developments surrounding Backpage

Backpage.com v. McKenna

On March 29, 2012, Washington Gov. signed SB 6251, which expands criminal liability for the felony of “advertising commercial sexual abuse of a minor” to anyone involved in publishing an advertisement for a commercial sex act in WA when the individual depicted is a minor.

Backpage.com v. McKenna (Cont.)

Backpage’s Arguments

Preemption by Federal Communications Decency Act (CDA) 47 U.S. Code § 230(c)(1)

1st Amendment Free Speech

5th Amendment Due Process

Commerce Clause violation

Remember me?

“An individual who is a victim of a violation may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.”

-18 U.S.C. § 1595(a)

Does 1-3 v. Backpage.com

Allegations:

(1) Backpage Is the Largest Purveyor of Online Prostitution and Child Sex Trafficking in the United States

(2) Backpage Knowingly Pursued a Scheme to Portray Their Website as a Leader in the Effort to Combat Online Child Sex Trafficking

(3) Backpage Provides a Brokering Service that Successfully Matches Buyers and Sellers of Commercial Sex

(4) The Backpage Business Model Depends Substantially On Its Success In Minimizing the Scrutiny of Traffickers By Law Enforcement Agencies

(5) The Backpage Defendants Have Adopted Tools That Are Specifically Intended to Assist Advertisers in Crafting Child Sex Advertisements That Will Attract Potential Customers Yet Evade Law Enforcement Detection.

Does 1-3 v. Backpage.com

Civil Lawsuit alleges that Backpage “coaches” traffickers on how to avoid detection by law enforcement

Questions?

Michael Neyham, Staff AttorneyCentral California Legal Services, Inc.mneham@centralcallegal.org209-386-1690

“To serve justice and empower people.”