The case of the missing case: Examining the civil right of action for human trafficking victims

Columbia Law Review

Volumn 107, Issue 7, 2007, Pages 1655-1703

  Nam, Jennifer S ^a  

^a NONE

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EID: 37349091235     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (267)

1. Although there are various definitions of human trafficking, this Note will consider human trafficking to include the trafficking of individuals both within and through national borders, and both with and without actual physical transportation of the individual from one place to another. The Trafficking Victims Protection Act of 2000 adopts a similar definition, defining "severe forms of trafficking in persons" as: (1) "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age"; or (2) "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." Trafficking Victims Protection Act (TVPA) of 2000 § 103(8), 22 U.S.C. § 7102(8). As the U.S. State Department's 2007 Trafficking in Persons Report notes, a victim does not have to be physically transported from one place to another in order for the crime to fall within these definitions. U.S. Dep't of State, Trafficking in Persons Report 7 (2007), available at http://www.state.gov/documents/organization/82902.pdf (on file with the Columbia Law Review) [hereinafter 2007 TIP Report]. The 2007 TIP Report further notes, "To define trafficking in persons on the basis of movement is to create an artificial and unfounded distinction between victims who are exploited without being moved and those who are moved prior to and during their exploitation." Id. at 31.
2. Various governmental and nongovernmental entities have released estimates, albeit varying, on the number of persons trafficked through and within national borders. See infra Parts I.A.1-2.
3. Pub. L. No. 106-386, 114 Stat. 1464 (current version at 22 U.S.C.A. §§ 7101-7112 (West 2004 & Supp. 2007)).
4. U.S. Dep't of Justice, Attorney General's Annual Report to Congress on U.S. Government Activities to Combat Trafficking in Persons Fiscal Year 2006, at 17 (2007), available at http://www.usdoj.gov/ag/annualreports/tr2006/ agreporthumantrafficing2006.pdf (on file with the Columbia Law Review) [hereinafter 2007 AG Report]. The Department of Justice secured a total of 238 convictions of defendants for trafficking offenses during fiscal years 2001 through 2006. Interestingly, there was a very large increase in fiscal year 2006, where the number of convictions jumped from thirty-five in fiscal year 2005 to ninety-eight in fiscal year 2006. Id. The report does not provide an explanation for this dramatic increase.
5. Id. at 4. The Department of Health and Human Services certified a total of 1076 trafficking victims in fiscal years 2001 through 2006. Id.
6. Pub. L. No. 108-193, 117 Stat. 2875 (codified as amended in scattered sections of 8, 18, 22 U.S.C).
7. 18 U.S.C. § 1595(a) (Supp. IV 2004). Section 1595(a) states: "An individual who is a victim of a violation of section 1589, 1590, or 1591 of this chapter 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." Id.
8. See, e.g., U.S. Dep't of State, Trafficking in Persons Report 23 (2004), available at http://www.state.gov/documents/organization/34158.pdf (on file with the Columbia Law Review) [hereinafter 2004 TIP Report] (estimating 14,500 to 17,500 people were trafficked into United States in 2003).
9. Siobhan Morrissey, Sinister Industry: ABA Joins Worldwide Effort to Fight Criminal Trade in Human Beings, A.B.A. J., Mar. 2006, at 59, 59 ("'[T]housands are trafficked [each year] within the U.S. alone.'" (quoting A.B.A. Ctr. for Human Rights, Resource Manual (Oct. 2005))); cf. infra note 14 and accompanying text.
10. See 2004 TIP Report, supra note 8, at 23 ("Estimates of the number of trafficking victims found throughout the world are inherendy difficult to produce. Trafficking in persons . . . is a clandestine activity made even harder to quantify by its numerous forms. It often is hidden as a subset of alien smuggling or extreme abuse of foreign migrant labor.");
11. Susan W. Tiefenbrun, The Domestic and International Impact of the U.S. Victims of Trafficking Protection Act of 2000: Does Law Deter Crime?, 2 Loy. U. Chi. Int'l L. Rev. 193, 193 n.2 (2005) [hereinafter Tiefenbrun, Does Law Deter Crime?] ("Statistics on the number of persons trafficked globally vary widely because of the secretive nature of the crime and the shame felt by many victims who are understandably reluctant to report the crime.").
12. See Shaheen P. Torgoley, Trafficking and Forced Prostitution: A Manifestation of Modern Slavery, 14 Tul. J. Int'l & Comp. L. 553, 558-59 (2006) (summarizing various estimates of worldwide scope of trafficking in persons).
13. 2007 TIP Report, supra note 1, at 8.
14. 2004 TIP Report, supra note 8, at 23. But the 2007 TIP Report simply states that "a majority" of transnational victims are females trafficked into commercial sexual exploitation,
15. 2007 TIP Report, supra note 1, at 8, while the United Nations Office on Drugs and Crime estimates that 87% of global transnational trafficking victims are trafficked for sexual exploitation.
16. U.N. Office on Drugs and Crime, Trafficking in Persons: Global Patterns 33 (2006), available at http://www.ur:odc.org/pdf/ traffickinginpersons_report_2006ver2.pdf (on file with the Columbia Law Review).
17. See 2007 TIP Report, supra note 1, at 8 ("Annually, according to U.S. Government-sponsored research completed in 2006, approximately 800,000 people are trafficked across national borders . . . . [This number] do[es] not include millions of female and male victims around the world who are trafficked within their own national borders - the majority for forced or bonded labor.");
18. U.S. Dep't of State, Trafficking in Persons Report 6 (2006), available at http://www.state.gov/documents/organization/66086.pdf (on file with the Columbia Law Review) [hereinafter 2006 TIP Report] ("With a focus on transnational trafficking in persons, however, these numbers do not include millions of victims around the world who are trafficked within their own national borders."). The State Department did, however, choose to provide a more definite range in its 2004 TIP Report: "Estimates that include global intra-country trafficking in persons range from two to four million.
19. " 2004 TIP Report, supra note 8, at 23.
20. International Labour Office, A Global Alliance Against Forced Labour 10 (2005), available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB. DOWNLOAD_BLOB?Var_DocumentID=5059 (on file with the Columbia Law Review).
21. Kevin Bales, International Labor Standards: Quality of Information and Measures of Progress in Combating Forced Labor, 24 Comp. Lab. L. & Pol'y J. 321, 343 (2003). Professor Bales calculated this figure using data collected over a period of almost three years, refined by the judgments of various experts "with personal knowledge of a country, a region, or an industry." Id. at 334-43. This figure "was seized upon with alacrity" by various organizations, although Professor Bales acknowledges that this figure is a "very rough, if informed, guess[]." Id. at 343-44.
22. U.N. Population Fund, Trafficking in Human Misery, at http://www.unfpa.org/gender/violence1.htm (last visited Sept. 30, 2007) (on file with the Columbia Law Review) (noting that total number of trafficking victims worldwide may be "perhaps 4 million persons per year").
23. 2004 TIP Report, supra note 8, at 23. Mysteriously, estimates of the number of victims trafficked into the United States are absent from the 2005, 2006, and 2007 TIP Reports.
24. Polaris Project, National Trafficking Alert System Criminal Justice Briefing Materials 1 (2004), available at http://www.no-trafficking.org/content/ web/07publication/072Training_Manual/NTAS_criminal_justice_br.pdf (on file with the Columbia Law Review).
25. As mentioned above, the 2004 TIP Report estimates that 14,500 to 17,500 men, women, and children are trafficked into the United States annually for sexual exploitation or forced labor. 2004 TIP Report, supra note 8, at 23. However, the 2003 TIP Report states the estimated range at 18,000 to 20,000 victims,
26. U.S. Dep't of State, Trafficking in Persons Report 7 (2003), available at http://www.state.gov/documents/organization/21555.pdf (on file with the Columbia Law Review) [hereinafter 2003 TIP Report], while the 2002 and 2001 TIP Reports provide estimates of, respectively, 50,000 women and children trafficked specifically for purposes of sexual exploitation, and 45,000 to 50,000 persons (primarily women and children) trafficked both for purposes of sexual exploitation and forced labor.
27. U.S. Dep't of State, Victims of Trafficking and Violence Protection Act 2000: Trafficking in Persons Report 2 (2002), available at http://www.state.gov/ documents/organization/10815.pdf (on file with the Columbia Law Review) [hereinafter 2002 TIP Report];
28. U.S. Dep't of State, Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report 3 (2001), available at http://www.state.gov/documents/organization/4107.pdf (on file with the Columbia Law Review) [hereinafter 2001 TIP Report]. In explaining the decrease from the 2003 to 2004 estimates, the State Department simply writes, "These recently revised estimates reflect the use of an improved methodology for estimating trafficking flows. "
29. 2004 TIP Report, supra note 8, at 23.
30. See supra note 14 and accompanying text.
31. David France, Sarah Downey & Craig Nelson, Slavery's New Face, Newsweek, Dec. 18, 2000, at 60, 61.
32. See, e.g., 2004 TIP Report, supra note 8, at 6 ("[H]uman slavery has returned as a growing global threat to the lives and freedom of millions of men, women, and children. . . . [T]he trade is growing.");
33. Jennifer M. Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2977, 3020 (2006) ("[W]hile modest victories have been scored, international trafficking seems to be on the rise, not on the decline.");
34. Marilyn R. Walter, Trafficking in Humans: Now and in Herman Melville's Benito Cereno, 12 Wm. & Mary J. Women & L. 135, 137 (2005) ("Trafficking is one of the fastest growing criminal enterprises in the world.").
35. See, e.g., Amy O'Neill Richard, International Trafficking in Women to the United States: A Contemporary Manifestation of Slavery and Organized Crime 1 (2000), available at https://www.cia.gov/library/center-for-the-study-of- intelligence/csi-publications/books-and-monographs/trafficking.pdf (on file with the Columbia Law Review) (calling trafficking in persons a "modern-day form of slavery");
36. U.S. Dep't of State, Facts About Human Trafficking (2005), available at http://www.state.gov/documents/organization/60949.pdf (on file with the Columbia Law Review) (describing trafficking in persons as "modern-day slavery, involving victims who are forced, defrauded or coerced into labor or sexual exploitation");
37. Tiefenbrun, Does Law Deter Crime?, supra note 10, at 198 (referring to trafficking in persons as "modern-day form of slavery").
38. 2006 TIP Report, supra note 14, at 13.
39. Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action: Civil Rights for Trafficked Persons in the United States, 16 Hastings Women's L.J. 1, 8 (2004).
40. Pub. L. No. 106-386, 114 Stat. 1466 (current version at 22 U.S.C.A. §§ 7101-7112 (West 2004 & Supp. 2007)).
41. See TVPA § 102(a), 22 U.S.C § 7101(a) (2000) ("The purposes of this chapter are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims."); id. § 103 (providing definitions of various forms of trafficking); id. § 106(a) (requiring U.S. President to "establish and carry out international initiatives to enhance economic opportunity for potential victims of trafficking as a method to deter trafficking"); id. § 107 (providing protection and assistance to trafficking victims); id. § 112(a) (amending 18 U.S.C. to insert §§ 1589, 1590, and 1591 which expressly criminalize various forms of trafficking).
42. See Susan W. Tiefenbrun, Sex Slavery in the United States and the Law Enacted to Stop It Here and Abroad, 11 Wm. & Mary J. Women & L. 317, 348 (2005) ("According to one U.S. Attorney, since the TVPA's passage, it has become significantly easier for prosecutors to pursue a sex trafficking case by applying the TVPA and the new criminal statutes implemented as a result of the TVPA. They no longer have to apply several different criminal law statutes.").
43. See, e.g., Chacón, supra note 23, at 2992-93 (describing TVPA as implementing only "incremental changes" in existing federal laws).
44. Id. at 2978-79.
45. For example, Chacón argues: Yet another reason the TVPA has been such an ineffective tool in aiding trafficking victims is that it overemphasizes prosecution, while underemphasizing protection and prevention. . . . First, when 'severe victims of trafficking' are identified, the law requires their participation in criminal prosecutions as a condition of assistance. Second, the primary 'prevention' strategy for trafficking in the United States has been border interdiction, which is in itself prosecutorial and which actually seems to facilitate rather than prevent trafficking. Id. at 3024-25 (footnote omitted).
46. See infra notes 82-85 and accompanying text.
47. Pub. L. No. 108-93, 117 Stat. 2875 (codified as amended in scattered sections of 8, 18, 22 U.S.C).
48. 18 U.S.C. § 1595(a) (Supp. IV 2004). Sections 1589, 1590, and 1591 outlaw forced labor, trafficking into servitude, and sex trafficking, providing criminal penalties ranging from fines to imprisonment up to twenty years, or both. See id. §§ 1589-1591.
49. Id. § 1595(b)(1). The provision states: "Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim." This provision was included under pressure from the Justice Department. See H.R. Rep. No. 108-264, pt. 2, at 17 (2003), reprinted in 2003 U.S.C.C.A.N. 2421, 2434 (statingjustice Department's views that without stay, section 1595 "would provide unbridled discretion to trafficking victims to sue whomever the) feel has victimized them and could hinder prosecutors' abilities to try a case unfettered by the complications of civil discovery" and "that prosecutions should take priority over civil redress and that prosecutions should be complete prior to going forward with civil suits").
50. See infra note 81 and accompanying text.
51. See 2003 TVPRA § 2(3).
52. For more information on Vital Voices, visit their website at http://www.vitalvoices.org (last visited Sept. 30, 2007).
53. Civil Rights for Human Trafficking Victims in the United States, Trafficking Alert: U.S. Edition (Vital Voices Global P'ship, Wash., D.C), Dec. 2004, at 1, 1, at http://www.vitalvoices.org/files/docs/ Trafficking%20Alert_December%202004%20US%20Edition.pdf (on file with the Columbia Law Review) [hereinafter Vital Voices].
54. Kim & Hreshchyshyn, supra note 26, at 1. See supra notes 29-33 and accompanying text for a discussion of the limitations created by a prosecution-based approach, and see Part I.C.2 for a discussion of the ways section 1595 remedies, at least in part, these limitations.
55. See H.R. Rep. No. 108-264, pt. 1, at 17 (2003), reprinted in 2003 U.S.C.C.A.N. 2408, 2415 ("Subsection (a) [of 2003 TVPRA § 4] amends the Trafficking Victims Protection Act of 2000 to provide additional provisions for the protection of trafficking victims.").
56. 28 U.S.C. § 1350 (2000). This provision states: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Id. Although this provision has been in effect since 1789, civil litigants seldom used it until 1980 when plaintiffs successfully invoked the ATCA in the groundbreaking case Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980). Since then, various plaintiffs have invoked the ATCA in attempts to hold non-U.S. citizens civilly liable for tortious acts committed outside the United States in violation of the law of nations. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 712-24 (2004) (involving claim pleading violation of law of nations under ATCA against Mexican national); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (involving claim pleading violation of law of nations under ATCA against Libyan Arab Republic and various Arab organizations).
57. U.S. Const. amend. XIII. The Thirteenth Amendment abolished slavery and involuntary servitude in the United States and, under United States v. Kozminski, 487 U.S. 931, 942 (1988), was deemed self-executing and widely applicable.
58. 42 U.S.C. § 1994 (2000) (abolishing "holding of any person to service or labor under the system known as peonage").
59. 18 U.S.C. § 1584 (2000) (criminalizing act of "knowingly and willfully hold[ing] to involuntary servitude or sell[ing] into any condition of involuntary servitude, any other person for any term, or bring[ing] within the United States any person so held").
60. See Kim & Hreshchyshyn, supra note 26, at 26-29 (noting that courts generally followed decision in Turner v. Unification Church, 473 F. Supp. 367, 374 (D.R.I. 1978), aff'd, 602 F.2d 458 (1st Cir. 1979), where court held implied right of action inappropriate or unnecessary because state tort laws provided adequate remedies for claims).
61. See id. at 31 ("The most significant challenge for trafficking lawsuits bringing ATCA claims has been establishing that slavery's contemporary manifestations . . . amount to actual 'slavery,' and therefore a jus cogens norm that is actionable under the ATCA against private actors. The Supreme Court has not adjudicated this issue." (footnote omitted)); see also Sosa, 542 U.S. at 724-25 (holding that in order to create cause of action under ATCA for violation of law of nations, claim must "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to" claims arising under "Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy").
62. No. 133-99 (Am. Sam. Apr. 26, 2002), available at http://samoa.saigon. com/samoa/overview/decision.doc (on file with the Columbia Law Review).
63. Boat People SOS, U.S. District Judge Sentences Owner of the Daewoosa Samoa Factory, June 28, 2005, at http://www.bpsos.org/news/2005/06/28/u-s- district-judge-sentences-owner-of-the-daewoosa-samoa-factory (on file with the Columbia Law Review).
64. 29 U.S.C. §§ 201-219 (2000). The plaintiffs alleged the defendants violated the FLSA's provisions regulating the minimum wage, id. § 206(a), and maximum working hours, id. § 207(a), by failing to pay standard and overtime wages. The plaintiffs also alleged the defendants violated the FLSA's anti-discrimination provision, id. § 215(a)(3), by threatening to fire and deport the plaintiffs for actively participating in the lawsuit. See Nguyen, No. 133-99, at 50-55.
65. The plaintiffs alleged, in support of their FLSA violation claims, that the defendants breached the terms of their employment contracts that covered wage and overtime payments. See Nguyen, No. 133-99, at 66.
66. 446 F. Supp. 2d 1247, 1256 (N.D. Okla. 2006).
67. Id. at 1259-66.
68. 42 U.S.C. § 2000e-2(a) (2000) (making unlawful discriminatory employment practices based on employees' or applicants' race, color, religion, sex, or national origin).
69. Id. § 1981 (providing all persons within jurisdiction of United States equal rights under law).
70. John Pickle, 446 F. Supp. 2d at 1294.
71. No. 02-05570, 2003 WL 23893010, at *1 (N.D. Cal. Aug. 4, 2003).
72. Id. at *14; Kim & Hreshchyshyn, supra note 26, at 24.
73. See Free the Slaves, Washington, D.C & Human Rights Ctr. of the Univ. of Cal., Berkeley, Hidden Slaves: Forced Labor in the United States, 23 Berkeley J. Int'l L. 47, 86 (2005) [hereinafter Hidden Slaves Report].
74. See TVPA § 103(8), 22 U.S.C. § 7102(8) (2000).
75. See supra Part I.C.1.
76. See Kim & Hreshchyshyn, supra note 26, at 34 ("The need for a judicially created remedy has been eliminated [by passage of section 1595], thereby diminishing some of the strategic complexities involved in litigating trafficking cases up until now.").
77. See id. at 16-18, 34-36.
78. Cf. id. at 4 ("[T]he most recent addition of a private right of action to the anti-trafficking law is indicative that the state is willing to rely on private actors to enforce the civil rights of trafficked persons who are not the focus of attention in the prosecutorial process.").
79. Kathleen Kim & Dan Werner, Civil Litigation on Behalf of Victims of Human Trafficking, at iv (Mar. 2005), available at http://www.lafla.org/ clientservices/specialprojects/VictimsTrfficking0405.pdf (on file with the Columbia Law Review). Claudia Flores of the ACLU's Women's Rights Project similarly notes that "civil litigations serve as a deterrent to human traffickers, as well as a remedy for trafficking victims."
80. Vital Voices, supra note 40, at 2.
81. See 2007 AG Report, supra note 4, at 17 (showing only 23, 28, 21, 33, and 35 total convictions of traffickers, whether under TVPA or otherwise, in fiscal years 2001, 2002, 2003, 2004, and 2005 respectively, but surprisingly, 98 total such convictions in fiscal year 2006); cf. Chacón, supra note 23, at 3019 ("The low number of prosecutions reflects the fact that, although penalties for trafficking have increased, the chance of being prosecuted for trafficking offenses is still quite low, undermining the deterrent value of the harsher sentences.").
82. Vital Voices, supra note 40, at 2 ("[B]y allowing trafficking victims to file federal civil lawsuits, victims not only receive monetary compensation, they are also empowered through the victim's ability to control the direction of their own cases.").
83. Kim & Hreshchyshyn, supra note 26, at 17.
84. See id. at 17-18.
85. Id. at 18.
86. See 18 U.S.C § 1593(a)-(b) (2000) (requiring mandatory restitution order in criminal prosecutions directing defendant to pay "the full amount of the victim's losses"); id. § 2259(b) (3) (defining "the full amount of the victim's losses" to include medical and therapy costs, temporary housing and child care expenses, lost income, attorneys' fees, and "any other losses suffered by the victim as a proximate result of the offense").
87. Id. § 2259(b)(3).
88. See Kim & Hreshchyshyn, supra note 26, at 16 ("[Civil] damage awards can compensate victims for the physical and psychological injuries they have suffered, unlike limited restitution damages."); Note, Remedying the Injustices of Human Trafficking Through Tort Law, 119 Harv. L. Rev. 2574, 2583-84 (2006) [hereinafter Remedying the Injustices] ("Restitution awards, which exclude damages for emotional and physical injuries as well as punitive damages, grossly understate the harms suffered by victims.");
89. Vital Voices, supra note 40, at 2 ("Often, the restitution that the trafficking victim is granted as a result of a successful criminal case by the government is insufficient to cover the physical and psychological damages caused by the experience of being trafficked.").
90. See Kim & Hreshchyshyn, supra note 26, at 16.
91. Id. at 34.
92. Id. at 16 ("[A] restitution award depends largely on the aggressiveness of the prosecutor and the court . . . .").
93. See id. ("Since prosecutors are mostly focused on incarceration, restitution is easily forgotten to the detriment of the victim."); Remedying the Injustices, supra note 74, at 2583 (noting that prosecutors often fail to address restitution because they focus on imprisoning traffickers).
94. See Kim & Hreshchyshyn, supra note 26, at 17. Kim & Hreshchyshyn note that "the burden of proof [in civil litigation] is a preponderance-of-the-evidence standard rather than the higher beyond-a-reasonable-doubt standard of criminal proceedings." Id. In addition, they point out that evidentiary rules in civil litigation "allow[] plaintiffs to successfully rely on evidence of psychological conditions such as post-traumatic stress disorder, rape trauma syndrome, and battered women's syndrome, which is inadmissible in criminal forums." Id.
95. See Kim & Werner, supra note 66, at 20 ("[Section 1595] was only recently implemented, and few cases have utilized it."); Remedying the Injustices, supra note 74, at 2584 ("Although the TVPA was amended in 2003 to allow victims to bring civil suits against their traffickers for damages and attorney's fees, this provision has been infrequently utilized. . . . [T]he prospects for recovery under the statute will remain uncertain until a body of jurisprudence interpreting the TATA has developed."); Telephone Interview with Claudia Flores, Staff Attorney, Women's Rights Project, Am. Civil Liberties Union, in N.Y., N.Y. (Jan. 23, 2007) (agreeing that section 1595 has generally been underutilized); Telephone Interview with Kimi Jackson, Staff Attorney, Migrant Farm Worker Div., Colo. Legal Servs., in Fort Collins, Colo. (Jan. 23, 2007) (same); Telephone Interview with Kate Woomer-Deters, Attorney, Legal Aid of N.C, Farmworker Unit, in Raleigh, N.C. (Dec. 21, 2006) (same); E-mail from Karina Kirana, Survivor Sen's. Staff Attorney, Boat People SOS, to author (Dec. 11, 2006, 10:10 EST) (on file with the Columbia Law Review) [hereinafter Dec. 11 E-mail from Karina Kirana] ("I do agree with you that section 1595 has not been utilized as much as it should be."). But cf. E-mail from Kavitha Sreeharsha, Staff Attorney, Asian Pac. Islander Legal Outreach, to author (Dec. 7, 2006, 15:49 EST) (on file with the Columbia Law Review) (disagreeing generally with slightly different proposition that section 1595 "isn't used," and noting that "[o]ur intent was not to create a law that is necessarily used everyday but to make it available to trafficking victims who may choose that avenue").
96. The legislative reports accompanying the 2003 TVPRA are in fact devoid of any insight into Congress's intentions or expectations in creating the civil remedy. See H.R. Rep. No. 108-264, pt. 1, at 18 (2003), reprinted in 2003 U.S.C.C.A.N. 2408, 2416 (noting merely that "[s]ubsection (a)(4) [of the 2003 TVPRA] provides trafficking victims a civil right of action in Federal courts for violations of 18 U.S.C. section 1589 . . . , 1590 . . . , or 1591");
97. H.R. Rep. No. 108-264, pt. 2, at 11 (2003), reprinted in 2003 U.S.C.C.A.N. 2421, 2429 (noting simply that "[s]ubsection (a) (4) creates a civil cause of action for any victim of a violation of 18 U.S.C. sections 1589 (forced labor), 1590 (trafficking), or 1591 (sex trafficking)," and that under the provision, "a civil suit may be filed 'in any appropriate [U.S.] district court [which would be empowered to] award actual damages, punitive damages, reasonable attorneys' fees, and other litigation costs reasonably incurred"). But in enacting the TVPA, Congress estimated that 5,000 temporary visas would be needed each year for trafficking victims.
98. Hussein Sadruddin et al., Human Trafficking in the United States: Expanding Victim Protection Beyond Prosecution Witnesses, 16 Stan. L. & Pol'y Rev. 379, 392 (2005). This may be indicative of the range of victims Congress expected to utilize section 1595.
99. See supra note 80.
100. Dec. 11 E-mail from Karina Kirana, supra note 80; E-mail from Karina Kirana, Survivor Servs. Staff Attorney, Boat People SOS, to author (Dec. 12, 2006, 12:38 EST) (on file with the Columbia Law Review) [hereinafter Dec. 12 E-mail from Karina Kirana].
101. Sadruddin et al., supra note 81, at 393.
102. U.S. Dep't of Justice, Assessment of U.S. Government Activities to Combat Trafficking in Persons 9 (2005), available at http://www.usdoj.gov/ag/ annualreports/tr2005/assessmentofustipactivities.pdf (on file wifh the Columbia Law Review) [hereinafter 2005 DOJ Assessment] (answering the question, "Why have so few victims been rescued?").
103. Kim & Hreshchyshyn, supra note 26, at 2.
104. See Telephone Interview with Kathleen Kim, Immigrants' Rights Teaching Fellow, Stanford Law Sch., in Stanford, Cal. (Nov. 14, 2006) (stating unawareness of any empirical data compiling number of civil suits brought under section 1595 other than her own research). This conclusion is also based on the author's search for such data.
105. Obtaining an accurate and absolute number of section 1595 filings around the country would have required contacting every clerk of every federal district court. Given the time constraints and the scope of this Note, a truly comprehensive search for section 1595 filings in the U.S. district courts was impossible and perhaps unnecessary.
106. See infra pp. 1700-02.
107. The author communicated with the following attorneys: Claudia Flores, Staff Attorney, Women's Rights Project, American Civil Liberties Union; Kimi Jackson, Migrant Farm Worker Division, Colorado Legal Services; Kathleen Kim, Immigrants' Rights Teaching Fellow, Stanford Law School; Karina Kirana, Survivor Services Staff Attorney, Boat People SOS; Kavitha Sreeharsha, Staff Attorney, Asian Pacific Islander Legal Outreach; Suzanne Tomatore, Director, Immigrant Women & Children Project, City Bar Justice Center; Kate Woomer-Deters, Staff Attorney, Farmworker Unit, Legal Aid of North Carolina. There was one organization, however, that was understandably uncomfortable with disclosing a case name and the identities of its clients to the author. Nevertheless, the author believes that this aforementioned case is included in the data presented in this Note based on this organization's general description of the case and its jurisdiction. In addition, the author communicated with several organizations that were contemplating bringing civil suits under section 1595 on behalf of their clients, but had not yet decided to go forward.
108. Roe v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007); Ara v. Khan, No. 07-1251, 2007 WL 1726456 (E.D.N.Y. June 14, 2007). One additional court made passing mention of section 1595 in a July 2005 opinion when it noted that "there are seemingly no cases invoking the statute." Smith v. Husband, 376 F. Supp. 2d 603, 612 (E.D. Va. 2005).
109. See infra note 95 and accompanying text.
110. Ara, 2007 WL 1726456, at *1-*2.
111. Bridgestone Corp., 492 F. Supp. 2d. at 999-1004.
112. 18 U.S.C. § 1595(b)(1) (Supp. IV 2004).
113. See infra pp. 1695-99.
114. For a discussion of the relevant estimates, see supra Part I.A.2.
115. 18 U.S.C. § 1595(b)(1).
116. Hidden Slaves Report, supra note 60, at 82.
117. Complaint and Demand for Jury Trial at 27, Does v. Rodriguez, No. 06-805 (D. Colo. filed Apr. 26, 2006).
118. Kim & Werner, supra note 66, at 21 ("[C]ourts are unlikely to allow [section 1595] to be applied retroactively."); Telephone Interview with Claudia Flores, supra note 80.
119. Telephone Interview with Claudia Flores, supra note 80.
120. See supra Part II.A.1 for a discussion of this Note's research methods.
121. See supra note 80.
122. The two actions are Sabbithi v. Al Saleh, No. 07-115 (D.D.C filed Jan. 18, 2007) and Trejo v. Broadway Plaza Hotel, No. 04-4005 (S.D.N.Y. filed May 27, 2004). See infra Table A1 for a description of the nature of these claims.
123. The two actions are Catalán v. Vermillion Ranch Ltd. Partnership, No. 06-1043 (D. Colo. filed June 1, 2006) and Does v. Rodriguez, No. 06-805 (D. Colo, filed Apr. 26, 2006). See infra Table A1 for a description of the nature of these claims.
124. Telephone Interview with Claudia Flores, supra note 80; Telephone Interview with Kimi Jackson, supra note 80.
125. 18 U.S.C. § 1595(a) (Supp. IV 2004).
126. Id. § 1589 (imposing criminal sanctions on whoever "knowingly" provides or obtains the labor or services of a person (1) by "threats of serious harm to, or physical restraint against, that person or another person"; (2) by means of "any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint"; or (3) by means of "the abuse or fhreatened abuse of law or the legal process").
127. Id. § 1590 (imposing criminal sanctions on whoever "knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of [chapter 77 of tide 18]"). Chapter 77 of title 18 includes, among others, the offenses of peonage, id. § 1581; involuntary servitude, id. § 1584; forced labor, id. § 1589; and sex trafficking by force, fraud, coercion, or of children, id. § 1591.
128. Id. § 1591. This section imposes criminal sanctions on anyone who (1) knowingly "recruits, entices, harbors, transports, provides, or obtains by any means a person" or (2) knowingly benefits from such actions, while "knowing that force, fraud, or coercion . . . will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act."
129. The author did come across one sex trafficking civil suit filed on January 16, 2004 in the U.S. District Court for the District of Hawaii, Dunne v. Police Department, in which a pro se plaintiff attempted to bring a civil claim under the TVPA's provisions, but failed to plead section 1595. Instead, the plaintiff based his trafficking claim on the TVPA in general, pleading violations of 22 U.S.C. §§ 7101-7106 (2000), which do not carry a private right of action. Defendant-Appellee Honolulu Police Department's Answering Brief at 9, Dunne v. Police Dep't, 128 F. App'x 673 (9th Cir. 2005) (No. 04-17157). This case seems to be of little merit, however, filed by an unlikely plaintiff who did not fit the type of trafficking victim that section 1595 probably intended to aid. In the case, a male pro se plaintiff alleged that an organized trafficking ring, working in cahoots with the plaintiffs family and the Honolulu Police Department, involuntarily trafficked the plaintiff from Chicago to Hawaii and forcibly planted a GPS device behind his left eye socket. Dunne, 128 F. App'x at 674; Defendant-Appellee Honolulu Police Department's Answering Brief, supra, at 2-5. Indeed, the District Court dismissed the case, and the Ninth Circuit affirmed the dismissal. Dunne, 128 F. App'x at 674.
130. The information in this table was derived from the complaints or amended complaints of the relevant cases. Citations to those complaints can be found in the footnotes accompanying Table A1. See infra Table A1 and notes 226-243.
131. Only the original complaint pleads a section 1595 claim. The first amended complaint, filed on January 2, 2007, does not plead any section 1595 claim. See infra Table A1 and note 231.
132. This case was transferred to the Southern District of Indiana on April 19, 2006 pursuant to defendants' motion to transfer venue. The case was assigned a new docket number, 06-627.
133. The information in this table was derived from the complaints or amended complaints of the relevant cases. Citations to those complaints can be found in the footnotes accompanying Table A1. See infra Table A1 and notes 226-243.
134. See supra note 114.
135. See supra note 115.
136. There is some debate over the proportion of trafficking victims who are trafficked into sexual exploitation. Some experts believe the State Department and some NGOs overestimate the numbers because sex trafficking may be more visible or may be deemed more deplorable than other forms of trafficking. Nevertheless, there still seems to exist a general consensus that sex trafficking victims at least make up the majority of trafficking victims. See, e.g., Martti Lehti & Kauko Aromaa, Trafficking for Sexual Exploitation, 34 Crime & Just. 133, 133 (2006) (noting that "real percentages" of trafficking into prostitution and sexual exploitation are "probably lower" than figures provided by, for example, the State Department because "other forms of trafficking, especially those related to private housework, are less visible, and interest action groups and authorities are less interested," but nevertheless noting that "there exists a general consensus that a majority of female victims of trafficking are trafficked into prostitution" (citation omitted)). In fact, Lehti and Aromaa believe the current figures actually underestimate rather than overestimate the sex trafficking problem overall because "most of the existing estimates underestimate the volume of domestic prostitution of minors." See id. at 218 (emphasis omitted).
137. See Hidden Slaves Report, supra note 60, at 60. This 50.4% figure was obtained by combining the report's finding of 58 prostitution cases, 4 sexual exploitation of children cases, and 1 mail order bride case, and dividing this total of 63 cases by the 125 sexual exploitation and forced labor cases found overall where the researchers were able to identify the relevant economic sector. See id. at 60 & n.20.
138. Id. at 60.
139. 2004 TIP Report, supra note 8, at 23.
140. Fifty-six percent is a minimum figure because it does not include males trafficked into sexual exploitation, but only counts females trafficked into sexual exploitation.
141. Although the author fully recognizes the statistical unreliability of basing presumptions off a sample of only eighteen cases, the author nonetheless believes the data contain some useful, if rudimentary, indications.
142. Hidden Slaves Report, supra note 60, at 60 & n.20.
143. This figure was obtained by combining the report's finding of 5 service, food, or other cases and 4 entertainment cases, and dividing this total of 9 cases by the 125 sexual exploitation and forced labor cases found overall where the researchers were able to identify the relevant economic sector. See id.
144. See supra note 120 for the calculation of this percentage.
145. These figures were calculated by discounting the 63 sexual exploitation cases reported in the Hidden Slaves Report from the 125 total sexual exploitation and forced labor cases reported therein, and using the remaining 62 forced labor cases as a denominator. See id.
146. This figure was obtained by combining the report's finding of 5 service, food, or other cases and 4 entertainment cases, and dividing this total of 9 cases by the 62 forced labor cases found overall where the researchers were able to identify the relevant economic sector. See id.
147. The proportion of "other" labor cases is roughly on par with the percentage found in the Hidden Slaves Report. Due to the miscellaneous character of this "other" category, this Note does not address this observation.
148. U.S. Dep't of Justice, Assessment of U.S. Government Activities to Combat Trafficking in Persons 22 (2004), available at http://www.usdoj.gov/crt/crim/ wetf/us_assessment_2004.pdf (on file with the Columbia Law Review) [hereinafter 2004 DOJ Assessment].
149. U.S. Dep't of Justice, Assessment of U.S. Government Activities to Combat Trafficking in Persons 8 (2006), available at http://www.usdqj.gov/ag/ annualreports/tr2006/assessment_of_efforts_to_combat_tip.pdf (on file with the Columbia Law Review) [hereinafter 2006 DOJ Assessment].
150. See Ellen L. Buckwalter et al., Modern Day Slavery in Our Own Backyard, 12 Wm. & Mary J. Women & L. 403, 432 (2006) ("[Trafficking victims not familiar with their rights may be afraid to report their abusers for fear of their own detention, prosecution, or deportation.").
151. 2006 TIP Report, supra note 14, at 12 ("Few victims are willing to identify themselves upon initial contact with law enforcement authorities. They are fearful of real or imagined reprisals and are still undergoing trauma from the servitude experience.").
152. 2005 DOJ Assessment, supra note 85, at 10.
153. Buckwalter et al., supra note 133, at 420.
154. 2006 DOJ Assessment, supra note 132, at 27.
155. See Telephone Interview with Kate Woomer-Deters, supra note 80 (noting current strength of outreach and advocacy programs for migrant farmworkers as possible explanation for relatively high number of agricultural trafficking civil actions); E-mail from Claudia Flores, Staff Attorney, Women's Rights Project, Am. Civil Liberties Union, to author (July 30, 2007 14:48 EST) (on file with the Columbia Law Review) (agreeing that prevalence of labor trafficking cases is likely due, in part, to extent of exploitation taking place and, in part, to well-connected and well-organized nature of immigrant workers' rights community).
156. Michael Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guest Workers from Enforcing Their Rights, 18 Hofstra Lab. & Emp. L.J. 575, 586 (2001) (noting Congress's passage of Farm Labor Contractor Registration Act in 1963 and subsequent amendment thereof in 1974).
157. See Alan W. Houseman, Civil Legal Assistance for the Twenty-First Century: Achieving Equal Justice for All, 17 Yale L. & Pol'y Rev. 369, 375 (1998) (noting that "[t]he only national earmarking of funds within the OEO Office of Legal Services was for Native Americans and migrant farmworkers, for whom OEO created separate funding and a somewhat separate delivery system," and that "[t]he structure put in place by OEO was carried over fundamentally unchanged by the Legal Services Corporation when it began to function in 1975"); see also Holley, supra note 139, at 613 (noting in 2001 that LSC" "earmark[ed] certain grants to legal aid programs for the representation of migrant farmworkers").
158. Telephone Interview with Kate Woomer-Deters, supra note 80.
159. Id.
160. For example, the National Employment Law Project (NELP), a national organization advocating on behalf of low-wage workers, the unemployed, and other groups facing significant barriers to employment, has been in operation since 1969 when it was formed in response to a flood of employment questions posed by legal services attorneys. NELP, About NELP, at http://www.nelp.org/about/index. cfm (last visited Sept. 30, 2007) (on file with the Columbia Law Review). See generally Karl E. Klare, Toward New Strategies for Low-Wage Workers, 4 B.U. Pub. Int. L.J. 245, 266 (1995) (mentioning upsurge of American labor movement in 1930s and 1940s). Similar organizations advocating on behalf of trafficking victims in general, regardless of economic sector, are much newer creations. The Coalition to Abolish Slavery and Trafficking (CAST), for example, one of the leading NGOs providing services to and advocating on behalf of trafficking victims, was established only in 1998.
161. See CAST, About Us: History, at http://www.castla.org/aboutus/history.htm (last visited Sept. 30, 2007) (on file with the Columbia Law Review).
162. See TVPA § 107(b)(1)(B), 22 U.S.C. § 7105(b)(1)(B) (2000) ("[T]he Board of Directors of the Legal Services Corporation . . . shall expand benefits and services to victims of severe forms of trafficking in persons in the United States, without regard to the immigration status of such victims."); Program Letter 05-2 from Helaine M. Barnett, President, Legal Servs. Corp., to All LSC Program Dirs. (Oct. 6, 2005), available at http://www.rin.lsc.gov/Reference%20Materials/Refrmats/Progltrs/Progltr05-2.pdf (on file with the Columbia Law Review) (noting that under TVPA and 2003 TVPRA, LSC grantees are authorized to use LSC] funds to "represent individuals that the grantees would otherwise be unable to represent due to the alien eligibility provisions of 45 CFR 1626").
163. For more information on the Freedom Network, visit the organization's website at http://www.freedomnetworkusa.org (last visited Sept. 30, 2007).
164. For more information on the Sex Workers Outreach Project, visit the organization's website at http://www.swop-usa.org (last visited Sept. 30, 2007).
165. For more information on the New York Anti-Trafficking Network, visit the organization's website at http://www.ny-anti-trafficking.com/index.html (last visited Sept. 30, 2007).
166. This author's empirical research methods provide some anecdotal support as well. Among the eight attorneys with whom the author communicated, see supra note 90, none specialized in providing legal aid to sex trafficking victims. Instead, the attorneys counseled clients in the area of general labor trafficking, mostly in the sectors of agricultural work, domestic servitude, and construction or factory labor.
167. Janice G. Raymond & Donna M. Hughes, Coal. Against Trafficking in Women, Sex Trafficking of Women in the United States 90 (Mar. 2001), available at http://www.ojp.usdoj.gov/nij/international/programs/sex_traff_us.pdf (on file with the Columbia Law Review);
168. see also Becki Young, Note, Trafficking of Humans Across United States Borders: How United States Laws Can Be Used to Punish Traffickers and Protect Victims, 13 Geo. Immigr. L.J. 73, 74-75 (1998) (noting in 1998 that "[m]ost of the trafficking cases which have been prosecuted to date have involved large-scale forced labor trafficking," and that "[t]his may be due to the fact that it is easier to see victims of forced labor trafficking, as opposed to victims of sex trafficking or exploitative domestic servitude, as 'real' victims").
169. See 2007 AG Report, supra note 4, at 21-26 (describing federal government's outreach and training efforts to domestic law enforcement); 2006 DOJ Assessment, supra note 132, at 20-24 (same).
170. For example, federal agents and local police raided eight Dallas brothels in August 2005, uncovering forty-two women working as prostitutes. As of May 2006, only five of these women had been identified as potential victims of trafficking and thus were granted temporary immigration protection. Thirty-four of these women had either been ordered to return to their home countries or were in the process of deportation proceedings. The remaining three women faced no immigration or criminal charges. The law enforcement officials' response sparked criticism from human rights and antitrafficking advocates for their failure to view these women as trafficking victims. Paul Meyer, Sex Slaves or Opportunists? Dallas Brothel Raids Fuel Debate on Human Trafficking Laws, Dallas Morning News, May 7, 2006, at IA. In another example, a federal raid on ten San Francisco massage parlors on June 30 and July 1, 2005 uncovered seventy-eight women believed to have been working as prostitutes. As of July 28, 2005, federal authorities were seeking to deport fifty-three of those women, while only twenty-five were being held in the United States in order to serve as material witnesses.
171. Jaxon Van Derbeken, Officials Move to Close Raided Massage Parlors, S.F. Chron., July 28, 2005, at B3.
172. Susan F. Tiefenbrun explains that law enforcement "has preferred to look the other way" with sex trafficking because, in part, "police and immigration officials are too quick to classify the trafficked woman as an illegal alien" and "most immigration officers and police officials simply do not identify forced prostitution and trafficking as a contemporary form of slavery." Susan F. Tiefenbrun, The Saga of Susannah, A U.S. Remedy for Sex Trafficking in Women: The Victims of Trafficking and Violence Protection Act of 2000, 2002 Utah L. Rev. 107, 135 [hereinafter Tiefenbrun, Saga of Susannah]. Moreover, Tiefenbrun notes that it has been reported that "officials both [in the United States] and abroad are often complicit in the sex trafficking activity by supporting and even frequenting the brothels, protecting the international crime networks, and refusing to arrest the traffickers or brothel owners." Id. Cf. Buckwalter et al., supra note 133, at 433-34 ("Local law enforcement agencies . . . may not be aware of human trafficking activity . . . or that trafficking is a federal crime. Without the proper education and training, police officers, health care workers, government officials, and NGO workers may routinely come into contact with victims, yet be unable to recognize them as such." (footnote omitted)).
173. See infra note 187 and accompanying text.
174. See supra Table 2 and infra Table A1. Seven out of the eight domestic servitude cases found involve a single plaintiff, and the eighth involves only three plaintiffs. Contrast this with the remaining ten cases, only one of which was brought by a single plaintiff and the remaining of which were filed by groups of plaintiffs or as class actions.
175. Cf. Lehti & Aromaa, supra note 119, at 133 (recognizing that trafficking related to "private housework" in particular is less visible form of trafficking).
176. See Young, supra note 149, at 74-75 ("[I]t is easier to see victims of forced labor trafficking, as opposed to victims of sex trafficking or exploitative domestic servitude, as 'real' victims." (emphasis added)).
177. See supra notes 37-42 and accompanying text.
178. Section 107(e) of the TVPA created the T-visa, which allows an alien who is a victim of a severe form of trafficking to remain in the United States temporarily - but only if that alien assists and cooperates with any reasonable request from federal law enforcement in the investigation and prosecution of his or her trafficker(s). Under the current legislation created by the TVPA and amended subsequendy by related acts, a T-visa is provided only if the Attorney General and the Secretary of Homeland Security determine that an alien: (1) is a victim of a severe form of trafficking, as defined in 22 U.S.C. § 7102 (2000); (2) is physically present in the United States or its territories or possessions, or a port of entry thereto; (3) has complied with "any reasonable request for assistance" in the investigation or prosecution of acts of trafficking; and (4) would suffer "extreme hardship involving unusual and severe harm upon removal." 8 U.S.C § 1101 (a) (15) (T) (i) (2000 & Supp. V 2005). Congress recently loosened the third prong via the Violence Against Women and Department of Justice Reauthorization Act of 2005, which now allows the Secretary of Homeland Security, in consultation with the Attorney General, to find a request from law enforcement officials "unreasonable" if "a trafficking victim, due to psychological or physical trauma, is unable to cooperate with a request for assistance." Pub. L. No. 109-162, § 801(a)(3), 119 Stat. 2960, 3053-54 (2005) (current version at 8 U.S.C. § 1101 (a) (15) (T)(iii)). At least one practitioner-professor, however, has noted that officials are likely to implement this statutory provision in the same manner as the certification required under 8 U.S.C. § 1101(a)(15)(T)(i), and that, therefore, "prosecutors and investigators will continue to serve in a gate-keeping function as to identification of trafficking victims." Jayashri Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 B.U. L. Rev. 157, 182 n.141 (2007). After three years in T status, T-visa recipients may apply for permanent residency pursuant to immigration regulations governing status adjustments. 8 U.S.C § 1255(1).
179. Section 107(c) (3) of the TVPA allows federal law enforcement officials to permit the "continued presence" in the United States of victims of a severe form of trafficking if they are potential witnesses to an investigation or prosecution. TVPA § 107(c)(3), 22 U.S.C. § 7105(c) (3). Continued presence allows victims to remain in the United States for up to one year, enabling them to apply for T-visas.
180. TVPA § 107(b)(1)(A) (providing aliens who are victims of severe form of trafficking in persons eligibility for benefits and services under any federal or state program or activity funded or administered by any federal agency, including LSC, to same extent as alien admitted to United States as refugee under section 207 of Immigration and Naturalization Act).
181. Telephone Interview with Kathleen Kim, supra note 87.
182. Id.
183. Id.
184. Sadruddin et al., supra note 81, at 391. The receipt of any protection or assistance authorized under the TVPA is limited only to those who are "victim[s] of a severe form of human trafficking" as particularly defined in section 107(b)(1)(C) of the TVPA. TVPA § 107(b)(1)(A) (emphasis added); id. § 107(b) (1) (C) (providing definition of victim of severe form of human trafficking for specific purposes of provision regarding eligibility for benefits). Under section 107(b)(1)(C), that phrase "means only a person" who has been subjected to either: (1) "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion"; (2) sex trafficking "in which the person induced to perform such act has not attained 18 years or age"; or (3) "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." TVPA § 107(b) (1) (C); id. § 103(8). In addition, in order to be considered a victim of a severe form of trafficking, the victim must either: (1) be younger than eighteen years of age; or (2) be the subject of a certification by the Secretary of Health and Human Services, after consultation with the Secretary of Homeland Security and the Attorney General, that such person is "willing to assist in every reasonable way in the investigation and prosecution of severe forms of trafficking in persons," and "has made a bona fide application for a [T-visa]" or has received "continued presence." 22 U.S.C. § 7105(b)(1)(C), (b)(1)(E). Thus, for adult trafficking victims, this certification is a precondition to eligibility for any of the TVPA's benefits and services.
185. Sadruddin et al., supra note 81, at 395 (emphasis added).
186. Chacón, supra note 23, at 3026 (footnotes omitted) (quoting TVPA § 107(e)); see also Sadruddin et al., supra note 81, at 398-406 (describing medical research explaining trafficking victims' difficulty in cooperating with law enforcement).
187. Telephone Interview with Kathleen Kim, supra note 87.
188. See Lehti & Aromaa, supra note 119, at 159 (noting that victims of sexual exploitation are "usually significantly worse treated and more threatened and deprived of their freedom than victims of economic exploitation," "usually subjected to much graver economic abuse than other victims of trafficking," "are more stricdy controlled," and that "[a]ll kinds of threats are . . . more common in sexual exploitation" (footnotes omitted)). See generally Prostitution, Trafficking, and Traumatic Stress (Melissa Farley ed., 2003) [hereinafter Trafficking & Traumatic Stress] (describing experience of prostitution, including its physical and emotional effects).
189. Section 1513 of the Violence Against Women Act of 2000 (VAWA) created a U-visa concurrentiy with the TVPA's creation of the T-visa. Pub. L. No. 106-386, § 1513, 114 Stat. 1464, 1533-36 (2000) (codified as amended in scattered sections of 8 U.S.C). The U-visa is available to nonimmigrant aliens who have suffered substantial physical or mental abuse from certain criminal activities, including trafficking and sexual exploitation, that violated U.S. laws or that occurred in the United States or its territories or possessions. 8 U.S.CA. § 1101 (a)(15)(U) (West 2005 & Supp. 2007). Like the T-visa, the U-visa is effective for a term of three years, upon the termination of which U-visa holders may apply for permanent residency. Id. § 1255(m).
190. Sadruddin et al., supra note 81, at 394 ("The sections of the TVPA that provide victim benefits give immigration officials the ultimate say over which prosecution witnesses will be permitted to stay in the United States with legal status."); see also 8 C.F.R. § 214.11 (2005) (prescribing regulations for Immigration and Naturalization Service's (INS) review of T-visa applications and stating that INS "shall issue a written decision granting or denying the [T-visa] application" after "completing its review of the application"); 28 C.F.R. § 1100.35 (2006) (requiring that all law enforcement requests for continued presence of alien victims of severe forms of trafficking be submitted to INS, who then "will determine the victim's immigration status").
191. Sadruddin et al., supra note 81, at 394 ("Even a witness whose 'continued presence' has been requested by law enforcement and whose cooperation is documented can be deported during a prosecution if immigration officials so decide." (citation omitted)).
192. Kim & Hreshchyshyn, supra note 26, at 19.
193. Id.
194. 2007 AG Report, supra note 4, at 11-12.
195. Id. at 4; see also supra note 164 (describing elements required for certification).
196. In fiscal year 2006, for example, the Justice Department filed thirty-two trafficking prosecutions, twenty-two (or 68.8%) of which were sex trafficking cases (and the remaining ten were labor trafficking cases). 2007 AG Report, supra note 4, at 17. Similarly, in fiscal year 2005, the Justice Department filed thirty-five trafficking prosecutions, twenty-six (or 74.3%) of which were sex trafficking cases (and the remaining nine were labor trafficking cases). Id.
197. Sadruddin et al., supra note 81, at 396.
198. 18 U.S.C. § 1593 (2000).
199. See Telephone Interview with Kathleen Kim, supra note 87 (noting that criminal prosecutions are more likely in sex trafficking cases than in non-sex trafficking cases, and that during such prosecutions, victims will likely receive restitution, which may be possible reason for lack of section 1595 actions by sex trafficking victims).
200. For more information on Boat People SOS, see http://www.bpsos.org (last visited Sept. 30, 2007).
201. Dec. 12 E-mail from Karina Kirana, supra note 83.
202. See infra Part II.B.4.
203. Cf. Telephone Interview with Claudia Flores, supra note 80 (noting inability to collect unpaid wages for sex trafficking victims, because sex work is noncompensable work in most states, as possible reason for lack of sex trafficking civil actions).
204. But this does not alleviate the general problem that restitution awards may be inadequate. See supra note 74 and accompanying text.
205. Telephone Interview with Kimi Jackson, supra note 80 (noting that in labor trafficking cases, victims often cannot impel federal prosecutors to pursue their traffickers, and thus are left with civil suit as only recourse).
206. Id. (noting awareness of some instances where victims have preferred to move on with their lives and/or return to their home countries rather than pursue civil relief); E-mail from Kavitha Sreeharsha to author, supra note 80 (noting "closure" as one of many reasons why trafficking victims may not pursue civil relief).
207. Telephone Interview with Kathleen Kim, supra note 87.
208. See infra Part II.B.2 (discussing requirements for continued presence and T-visa, and difficulties trafficking victims face in meeting such requirements).
209. Telephone Interview with Kathleen Kim, supra note 87.
210. See Raymond & Hughes, supra note 149, at 88 ("Many international women were also threatened with arrest or deportation to discourage them from leaving and to exact their compliance.").
211. Buckwalter et al., supra note 133, at 432 (quoting Int'l Rescue Comm., Trafficking in the United States, at http://www.theirc.org/media/www/ trafficking_in_the_united_states.html (last visited Sept. 30, 2007) (on file with the Columbia Law Review)); see also Joyce Koo Dalrymple, Book Note, Human Trafficking: Protecting Human Rights in the Trafficking Victims Protection Act, 25 B.C. Third World L.J. 451, 466 (2005) (reviewing Craig McGill, Human Traffic: Sex, Slaves and Immigration (2003)) ("[T]raffickers often threaten to harm or kill the victims or their family members if they attempt escape. U.S. law enforcement typically lacks the power to prevent traffickers from retaliating against family members in other countries, especially when police in those countries are unresponsive, underfunded, or corrupt." (footnotes omitted)).
212. TVPA § 107(c)(3), 22 U.S.C. § 7105(c)(3) (2000) ("Federal law enforcement officials . . . shall protect the safety of trafficking victims [granted continued presence], including taking measures to protect trafficked persons and their family members from intimidation, threats of reprisals, and reprisals from traffickers and their associates.").
213. TVPA § 107(c)(1) ("Victims of severe forms of trafficking, while in the custody of the Federal Government and to the extent practicable, shall . . . be provided . . . measures to protect trafficked persons and their family members from intimidation and threats of reprisals and reprisals from traffickers and their associates . . . .").
214. See supra note 168 and accompanying text.
215. See Sarah Shannon, Prostitution and the Mafia: The Involvement of Organized Crime in the Global Sex Trade, in Illegal Immigration and Commercial Sex: The New Sex Slave Trade 119, 126 (Phil Williams ed., 1999) ("One of the most important actors in the world of illicit sex is organized crime. Mafia groups are an essential part of the structure that controls this market . . . ."); Tiefenbrun, Saga of Susannah, supra note 152, at 136 ("International crime organizations are allegedly running the sex trafficking industry through powerful networks that trade and traffic impoverished women by the use of force, fraud, and coercion for commercial gain." (footnote omitted)); Telephone Interview with Suzanne Tomatore, Dir., Immigrant Women & Children Project, City Bar Justice Ctr., in N.Y., N.Y. (Dec. 18, 2006) (remarking tihat sex trafficking is primarily done by organized crime);
216. cf. April Rieger, Note, Missing the Mark: Why the Trafficking Victims Protection Act Fails to Protect Sex Trafficking Victims in the United States, 30 Harv. J.L. & Gender 231, 231-32, 255 (2007) (noting "strong ties and overlap between sex trafficking and organized crime" and that "illegal sex industry is the third largest criminal enterprise in the world behind the trades in drugs and arms").
217. See, e.g., Tiefenbrun, Saga of Susannah, supra note 152, at 115, 135 (noting existence of "interlocking rings of businessmen, modern mafias, and corrupt government officials" who support human trafficking, and that law enforcement officials in United States and abroad have been reported to be "complicit in the sex trafficking activity by . . . protecting the international crime networks").
218. For example, all of the domestic servitude cases discovered in this Note's survey involved physical and emotional abuse and direct threats of harm, death, and/or deportation, and seemed to be of a greater magnitude than those found in other labor trafficking cases. Such heightened levels of abuse and threats could very likely lead to greater levels of fear.
219. Vital Voices, supra note 40, at 2. To increase awareness among civil rights attorneys, Kathleen Kim and Dan Werner coauthored a manual in 2005 to aid lawyers in filing civil suits on behalf of trafficking victims. See Kim & Werner, supra note 66.
220. See Telephone Interview with Kate Woomer-Deters, supra note 80 (noting section 1595's young age and resulting difficulty in teaching lawyers about its applicability to migrant farmworkers).
221. Vital Voices, supra note 40, at 2.
222. See supra note 195.
223. See Steven D. Levitt, Incentive Compatibility Constraints as an Explanation for the Use of Prison Sentences Instead of Fines, 17 Int'l Rev. L. & Econ. 179, 181 (1997) ("[F]or many criminals with sizable holdings, e.g., drug traffickers and participants in organized crime, it is likely to be extremely difficult to locate [those holdings]."); Telephone Interview with Suzanne Tomatore, supra note 195.
224. Cf. Srikantiah, supra note 158, at 165 ("Migrant workers form a large component of the work force in the . . . farm, and factory sectors. . . . In some cases, migrant workers are trafficked and subjected to forced labor."). Not all attorneys, however, agree that labor trafficking plaintiffs indeed have a greater chance of recovery. For example, agricultural and construction services operate under a crew leader system, where the crew leader is generally seen as the "bad guy" who is threatening, exploiting, or abusing the victims. Telephone Interview with Kate Woomer-Deters, supra note 80. Yet these crew leaders are almost always judgment-proof due to insolvency and/or lack of assets. Id. It is thus growers (in the case of agriculture) or general contractors (in the case of construction), and not the crew leaders who work under them, that have accessible land and assets. Id. But it can be difficult to hold these growers and contractors liable for trafficking because they usually plead ignorance of the workers' wage arrangements, payments of recruitment fees and related debt accruals, housing conditions, and other restrictions placed on workers by crew leaders. Id. This ignorance is important because §§ 1589, 1590, and 1591 all require a defendant to "knowingly" commit the acts described. 18 U.S.C. §§ 1589-1591 (2000).
225. Telephone Interview with Suzanne Tomatore, supra note 195.
226. See supra notes 49-60 and accompanying text. Two of these cases involved manufacturing companies, the John Pickle Company and Daewoosa Samoa, Ltd., while one involved a wealthy real estate mogul, Lakireddy Bali Reddy.
227. Telephone Interview with Claudia Flores, supra note 80.
228. See supra Parts II.B.2, 4-5.
229. See supra note 164 (describing statutory provisions regulating granting of services and benefits to trafficking victims).
230. 22 U.S.C.A. § 7105(b)(1)(E)(i) (West Supp. 2007); see supra note 164 for a discussion of the statutory requirements for this certification.
231. Due to the limited scope of this Note, the author does not address the many arguments for changing other provisions of the TVPA. For a good overview of the TVPA's shortcomings, see Chacón, supra note 23, at 3017-40.
232. See supra text accompanying notes 138-148.
233. Bruce Zagaris, Human Trafficking: U.S. Meeting on Enforcing Laws Against Trafficking of Humans, 19 Int'l Enforcement L. Rep. 177, 178-79 (2003);
234. see also Office for Victims of Crime, U.S. Dep't of Justice, OVC-Funded Grantee Programs to Help Victims of Trafficking, at http://www.ojp.usdoj.gov/ ovc/help/traffickingmatrix.htm (last updated May 17, 2007) (on file with the Columbia Law Review) (providing list of NGOs that received grants from OVC in fiscal year 2003 for purpose of helping trafficking victims).
235. Zagaris, supra note 212, at 178.
236. See supra notes 136-138 and accompanying text.
237. See supra Part II.B.4.
238. See Telephone Interview with Kimi Jackson, supra note 80 (noting that some attorneys may shy away from bringing section 1595 claims because current
239. See supra note 43.
240. See supra Part I.A.3.
241. See supra note 74 and accompanying text.
242. 18 U.S.C. §§ 1593, 2259(b)(3) (2000).
243. See supra text accompanying notes 178-185.
244. The different mechanisms, of course, will have pros and cons, but this statement specifically focuses on the amount of compensation awarded. Whether that comes through a civil or criminal action makes no difference to the victim as long as the amount is received.
245. 18 U.S.C. § 1595(a).
246. Table is current as of August 31, 2007.
247. The descriptions of these claims are based solely on the factual statements and allegations contained in the complaints or amended complaints, as the case may be. The author implies no determination as to the veracity of such statements or allegations.
248. Complaint for Damages at 2-11, Midjan v. Chan, No. 07-1977 (N.D. Cal. filed Apr. 6, 2007).
249. Complaint at 1-13, Ara v. Khan, No. 07-1251 (E.D.N.Y. filed Mar. 23, 2007).
250. Complaint at 1-23, 32-37, 42, Asanok v. Million Express Manpower, Inc., No. 07-48 (E.D.N.C. filed Feb. 12, 2007).
251. First Amended Complaint at 1-27, 46-48, Aguilar v. Imperial Nurseries, No. 07-193 (D. Conn. filed Mar. 14, 2007).
252. Complaint at 1-28, Sabbithi v. Al Saleh, No. 07-115 (D.D.C. filed Jan. 18, 2007).
253. Complaint at 2-17, 19-21, Derbew v. Kurian, No. 06-1702 (D. Or. filed Nov. 22, 2006).
254. First Amended Complaint at 1-51, 58-59, 65-66, Catalan v. Vermillion Ranch Ltd. P'ship, No. 06-1043 (D. Colo. filed July 20, 2006).
255. Complaint and Demand for Jury Trial at 1-14, 24-26, 28-29, Does v. Rodriguez, No. 06-805 (D. Colo, filed Apr. 26, 2006).
256. Class Action Complaint for Injunctive Relief and Damages at 1-7, 9-12, 18, Doe v. Nestlé, S.A., No. 05-5133 (CD. Cal. filed July 14, 2005).
257. Class Action Complaint for Injunctive Relief and Damages at 1-30, 44-45, Roe v. Bridgestone Corp., No. 05-8168 (C.D. Cal. filed Nov. 17, 2005).
258. Plaintiffs' First Amended Complaint at 3-21, 24-35, 39-41, 46-52, 85-86, Hawkins v. Weeks, No. 05-184 (N.D. Tex. filed Oct. 18, 2005).
259. First Amended Complaint and Jury Demand at 1, 3-6, 7-8, 12-13, De la Cruz v. Rahman, No. 05-10846 (S.D.N.Y. filed Jan. 27, 2006).
260. First Amended Verified Complaint for Violations of the Trafficking Victims Protection Act of 2000, the Fair Labor Standards Act and Supplemental State Law Claims at 2-14, Rong v. Hong Kong Entm't (Overseas) Inv., Ltd., No. 05-48 (D. N. Mar. I. filed Aug. 23, 2006).
261. Complaint at 9-10, Abraham v. Singh, No. 04-44 (E.D. La. filed Jan. 8, 2004); First Amended Complaint at 2-9, Abraham, No. 04-44.
262. Amended Complaint at 1-8, 14-15, Uzonwanne v. George, No. 04-1126 (D. Minn. filed Oct. 15, 2004).
263. Complaint and Jury Demand at 1-16, 18-19, Trejo v. Broadway Plaza Hotel, No. 04-4005 (S.D.N.Y. filed May 27, 2004).
264. Complaint for Damages at 2-12, Salgado v. Gunawardane, No. 04-7378 (C.D. Cal. filed Sept. 3, 2004).
265. Complaint at 1-2, 4-11, Cruz v. Toliver, No. 04-231 (W.D. Ky. Dec. 3, 2004).
266. Table is current as of August 6, 2007.
267. Each database also has limited filings available for earlier years.