The coercion of trafficked workers

Iowa Law Review

Volumn 96, Issue 2, 2011, Pages 409-474

  Kim, Kathleen ^a  

^a Loyola Law School   (United States)

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EID: 79951631273     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (436)

1. United States v. Garcia, No. 02-CR-110S-01, 2003 WL 22938040, at *i (W.D.N.Y. Dec. 2, 2003).
2. Id.
3. Id.
4. United States v. Calimlim, 538 F.3d 706, 711 (7th Cir. 2008), cert, denied, 129 S. Ct. 935 (2009).
5. Garcia v. Audubon Cmtys. Mgmt., LLC, No. 08-1291, 2008 WL 1774584, at *i, *3 (E.D. La. Apr. 15, 2008).
6. 18 U.S.C. § 1589 (Supp. II 2008).
7. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat 1464 (codified as amended in scattered sections of 8, 20, 22, 27, 28, 42 U.S.C.) (describing die purpose of the Act as "combat [ing] trafficking in persons, especially into the sex trade, slavery, and involuntary servitude").
8. U.S. CONST, amend. XIII, §§ 1-2 ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist witfiin the United States, or any place subject to their jurisdiction. Congress shall have the power to enforce this article by appropriate legislation.").
9. See generally Linda D. Molm, Risk and Power Use: Constraints on the Use of Coercion in Exchange, 62 AM. SOC. REV. 113 (1997).
10. STANLEY MILGRAM, OBEDIENCE TO AUTHORITY: AN EXPERIMENTAL VIEW (1974).
11. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974)
12. ALAN WERTHEIMER, COERCION (1987). This Article focuses on philosophical and legal frameworks for coercion to develop a normative understanding of coercion in the context of human trafficking laws. Although sociological and psychological theories of coercion also present important theoretical inquiries, they are beyond the scope of this Article.
13. Julie Su, El Monte Thai Garment Workers: Slave Sweatshops, in No SWEAT: FASHION, FREE TRADE, AND THE RIGHTS OF GARMENT WORKERS 143,143 (Andrew Ross ed., 1997).
14. FA. HAYEK, THE CONSTITUTION OF LIBERTY 11 (i960) ("We are concerned in this book with that condition of men in which coercion of some by others is reduced as much as is possible in society. This state we shall describe throughout as a state of liberty or freedom.")
15. Samuel DuBois Cook, Coercion and Social Change, in NOMOS XIV: COERCION 107, 126 (J. Roland Pennock & John W. Chapman eds., 1972) ("In a sense, freedom and coercion are antithetical relations or realities: freedom entails the absence of coercion, and coercion involves die absence of freedom.").
16. NOZICK, supra note 11; WERTHEIMER, supra note 11
17. David Zimmerman, Taking Liberties: The Perils of "Moralizing" Freedom and Coercion in Social Theory and Practice, 28 SOC. THEORY & PRAC 577 (2002).
18. Oren Bar-Gill & Omri Ben-Shahar, Credible Coercion, 83 TEX. L. REV. 717 (2005) (examining coercion in several different legal contexts, such as contractual duress, unconscionability, plea bargains, unconstitutional conditions, and bankruptcy, and discussing the inadequateness of ex post remedies to the coerced party when the coercion is credible)
19. John Gardner, Prohibiting Immoralities, 28 CARDOZO L. REV. 2613 (2007) (analyzing the relationship between coercion and morality within the context of the state as a moral agent)
20. John Lawrence Hill, Moralized Theories of Coercion: A Critical Analysis, 74 DENV. U. L. REV. go7 0997) (comparing traditional theories of duress with moralized theories of coercion in which the voluntariness of a coerced choice is immaterial to the determination of whether the coercive conduct was wrongful)
21. Peter Westen, "Freedom" and "Coercion"-Virtue Words and Vice Words, 1985 DUKE L.J. 541 (discussing the core elements and theoretical underpinnings of coercion).
22. See MODEL PENAL CODE § 2.09 (1962); see also GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 803 (1978) (arguing that the actor should not be held accountable because, "[w]ere it not for the external pressure, the actor would not have performed the deed").
23. RESTATEMENT (SECOND) OFCONTRACTS § 175 (1981).
24. See RESTATEMENT (SECOND) OF TORTS § 892B (1979).
25. Scott Altman, A Patchwork Theory ofBlackmail, 141 U.PA.L.REV. 1639, 1639 (1993).
26. Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195, 2207 (igg6); David S. Kaplan & Lisa Dixon, Coerced Waiver and Coerced Consent, 74 DENV. U. L. REV. 941 (igg7)
27. Dana Raigrodski, Consent Engendered: A Feminist Critique of Consensual Fourth Amendment Searches, 16 HASTINGS WOMEN'S L.J. 37, 38 (2004)
28. Marcy Strauss, Reconstructing Consent, g2 J. CRIM. L. & CRIMINOLOGY 211, 212 (2001)
29. Adrian J. Barrio, Note, Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court's Conception of Voluntary Consent, 1 gg7 U. III. L. REV. 215, 217.
30. Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. 463
31. Mark Strasser, The Coercion Test: On Prayer, Offense, and Doctrinal Inculcation, 53 ST. LOUIS U. L.J. 417 (2009)
32. Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 U.C DAVIS L. REV. 1621 (2006)
33. Eric Fleetham, Note, Lee v. Weisman: Psychological Coercion Offends the Traditional Notion of Coercion Under the Establishment Clause, 2 4 U. TOL. L. REV. 725 (1993).
34. Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, 22 U.S.C.).
35. See 18 U.S.C. §§ 1589-1591 (Supp. II 2008). See generally U.S. DEP'T OF JUSTICE, REPORT ON ACTIVITIES TO COMBAT HUMAN TRAFFICKING: FISCAL YEARS 2001-2005 (2006), available at http://www.justice.gov/crt/crim/trafficking- report-2006.pdf (discussing various methods employed to prevent forced labor).
36. 8 U.S.C.§iioi(a)(i5)(T)-(U).
37. 18 U.S.C. §1595.
38. 22 U.S.C. § 7102(8) (emphasis added).
39. See United States v. Kozminski, 487 U.S. 931 (1988), superseded by statute, Trafficking Victims Protection Act of 2000.
40. Robert Moossy, Roger Plant, Maria Suarez & William C. Vocke Jr., Forced To Labor. The Cost of Coercion, CARNEGIE COUNCIL (May 14, 2009), http://www.cceia.org/resources/transcripts/0163.html.
41. Aikojoshi, The Face of Human Trafficking, 13 HASTINGS WOMEN'S LJ. 31, 36-38 (2002) (discussing the impact of globalization on the displacement of people that leads to trafficking)
42. Kelly E. Hyland, Note, The Impact of the Protocol To Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, HUM. RTS. BRIEF, Winter 2001, at 30, 30-31 (citing causative socioeconomic factors behind die vulnerability to being trafficked).
43. Dina Francesca Haynes, Used, Abused, Arrested and Deported: Extending Immigration Benefits To Protect the Victims of Trafficking and To Secure the Prosecution of Traffickers, 26 HUM. RTS. Q. 221, 257 (2004) ("A lack of viable and legal migration options leads people into trafficking; fear of deportation keeps diem diere.")
44. see also BRIDGET ANDERSON & JULIA O'CONNELL DAVIDSON, IOM MIGRATION RESEARCH, IS TRAFFICKING IN HUMAN BEINGS DEMAND DRIVEN?: A MULTI-COUNTRY PILOT STUDY 8 (IOM Migradon Research Ser. No. 15, 2003) ("'[T]rafficking* is a corrupted mode of migradon, diat transforms very specific migratory projects, such as die desire to accumulate savings or support one's dependants by migrating to work, die dream of securing a better future ⋯ into nightmares.").
45. Joan McGregor, Philipson Coerced Agreements, 7 LAW & PHIL. 225, 230 (1988).
46. See, e.g., Clyatt v. United States, 197 U.S. 207, 215 (1905) ("Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of servitude⋯. [P]eonage, however created, is compulsory service, involuntary servitude.")
47. see also LINDA R. HlRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 23-28 (1998) (discussing game theory and rational choices that individuals make in difficult circumstances with few options). & quot;To take the classic example, when a captive agrees to slavery rather than be killed, the choice of enslavement is the making of a bargain.
48. Id. at 26. In the case of coercion or fraud, not only may options be few, but misinformation negates the meaningfulness of any bargain struck.
49. See generally FREE AND UNFREE LABOUR: THE DEBATE CONTINUES (Tom Brass & amp; Marcel van der Linden eds., 1997) (discussing the social, economic, and political factors that characterize free and unfree labor).
50. See, e.g., Baher Azmy, Unshackling the Thirteenth Amendment: Modem Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REV. 981 (2002) (discussing the reach of the Thirteenth Amendment to human trafficking and modern-day slavery)
51. Risa L. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 DUKE L.J. i6og (2001)
52. Maria L. Ontiveros, Immigrant Workers' Rights in a Post-Hoffman World-Organizing Around the Thirteenth Amendment, 18 GEO. IMMIGR. L.J. 651 (2004) (contemplating Thirteenth Amendment protection for undocumented migrant workers subjected to exploitive labor conditions)
53. James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941 (1997); Lea S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437, 438 (1989) (finding evidence in the congressional record and the history of the Thirteenth Amendment suggesting that it stood for "a much broader idea of employee autonomy and independence")
54. Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 COLUM. L. REV. 973 (2002) (applying the Thirteenth Amendment to U.S. corporations that participate in forced-labor violations overseas)
55. see also William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 HARV. C.R.-C.L. L. REV. 17 (2004) (arguing that racial profiling, as a vestige of slavery, also violates the Thirteenth Amendment)
56. Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 CALIF. L. REV. 171 (1951)
57. Alexander Tsesis, Furthering American Freedom: Civil Rights & the Thirteenth Amendment, 45 B.C. L. REV. 307 (2004) (contending that the Thirteenth Amendment protects not only freedom from slavery, but also civil rights).
58. A comprehensive survey of slavery is beyond the scope of this Article. I merely touch on broad examples of physical and legal coercion.
59. Convention To Suppress the Slave Trade and Slavery art. 1, Sept. 25, 1926, 46 Stat. 2i83,6oL.N.T.S. 253.
60. DAVID BRION DAVIS, INHUMAN BONDAGE: THE RISE AND FALL OF SLAVERY IN THE NEW WORLD 196 (2006).
61. HOWARD ZINN, A PEOPLE'S HISTORY OF THE UNITED STATES 175 (20th anniversary ed.
62. KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH 171 (1956) ("Without the power to punish, which the state conferred upon the master, bondage could not have existed. By comparison, all other techniques of control were of secondary importance.").
63. ZINN, supra note 37, at 175 (internal quotation marks omitted).
64. U.S. CONST, art. rv, § 2, cl. 3.
65. See generally SALLY E. HADDEN, SLAVE PATROLS: LAW AND VIOLENCE IN VIRGINIA AND THE CAROUNAS (2001) (detailing the historical practice of monitoring slaves in certain southern states).
66. ELLIS PAXSON OBERHOLTZER, A HISTORY OF THE UNITED STATES SINCE THE CIVIL WAR 128 (1917) (citing Mississippi law at the time).
67. Scholars have referred to peonage as the second progeny of slavery. See generally Azmy, supra note 33 (developing a modern conception of meaning and application of the Thirteenth Amendment)
68. Wolff, supra note 33 (applying the core principles of die Thirteenth Amendment to the current trend of U.S. firms using slave labor overseas).
69. Act of Mar. 2, 1867, ch. 187, 14 Stat. 546 (codified as amended at 18 U.S.C. § 1581 (2006)).
70. Clyatt v. United States, 197 U.S. 207, 215(1905).
71. 14 Stat, at 546.
72. 83 U.S. (16 Wall.) 36 0873).
73. Id. at 72
74. see also The Civil Rights Cases, 109 U.S. 3, 20 (1883) ("[T]he [Thirteenth AJmendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.").
75. 197 U.S. at 217-18.
76. Bailey v. Alabama, 219 U.S. 219,245 (ign).
77. Id at 244-45.
78. Id. at 244.
79. 73 F. Supp. 76 (S.D. Cal. 1947).
80. Id. at 77-78.
81. Goluboff, supra note 33, at 1667 (discussing the Ingalls case).
82. Ingalls, 73 F. Supp. at 78.
83. Id.
84. Act of June 25, 1948, ch. 645, 62 Stat. 683, 773 (codified as amended at 18 U.S.C. § 1584 (Supp. II 2008)).
85. See, e.g., United States v. Mussry, 726 F.2d 1448, 1455 (gdi Cir. 1984) (reversing the district court's dismissal of § 1584 charges, finding that "the use, or threatened use, of law or physical force is not an essential element of a charge of 'holding' in involuntary servitude"), overruled by United States v. Kozminski, 487 U.S. 931 (1988), superseded by statute, Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, 22 U.S.C)
86. United States v. Harris, 701 F.2d 1095, 1100 (4th Cir. 1983) (relying on die employers' "reign of physical terror" over dieir farm laborers, which included beatings and positioning guards outside their doors at night, to sustain their convictions)
87. United States v. Booker, 655 F.2d 562, 566-67 (4th Cir. 1981) (affirming convictions under § 1584, finding diat beatings, assaults, and direats of die same were sufficient to categorize die employment as involuntary)
88. United States v. Bibbs, 564 F.2d 1165, 1168 (5di Cir. 1977) (affirming defendants' convictions under § 1584 and defining coercion under die statute as any situation in which an employer places his employee "in such fear of physical harm that the victim is afraid to leave, regardless of die victim's opportunities for escape")
89. But see United States v. Shackney, 333 F.2d 475, 486 (2d Cir. 1964) (reversing die defendant's conviction under § 1584, finding that his direats of deportation were insufficient to violate the statute).
90. 726 F.2d 1448.
91. Id. at 1450.
92. Id. at 1451-52.
93. Id. at 1453.
94. Id. at 1451-52 (footnotes omitted) (citation omitted).
95. Id. at 1451 (quoting Pollock v. Williams, 322 U.S. 4, 17-18 (1944)) (internal quotation marks omitted).
96. 772 F.2d 827 (11th Cir. 1985).
97. Id. at 833-34.
98. Id. at 834.
99. Id. at 833.
100. 333 F.2d 475 (2d Cir. 1964).
101. Legal coercion is the threat of a criminal penalty for failure to work. See Peonage Cases, 123 F. 671, 682-83 (M.D. Ala. 1903) (explaining the ways in which legal threats may be used to coerce one into a condition of peonage).
102. Shackney, 333 F.2d at 486 (quoting Hodges v. United States, 203 U.S. 1, 34 (1906) (Harlan.J., dissenting)) (internal quotation marks omitted).
103. Id.
104. 487 U.S. 931 (1988), superseded by statute, Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, 22 U.S.C.).
105. Id. at 934-35.
106. Id. at 935.
107. Id.
108. Id.
109. see also United States v. Kozminski, 821 F.2d 1186, 1188-89 (6th Cir. 1987) (detailing the abusive conditions), ajfd, 487 U.S. 931.
110. Kozminski, 487 U.S. at 935.
111. Id. at 935-36.
112. Kozminski, 821 F.2d at 1188.
113. Id. at 1192. (internal quotation marks omitted)
114. Id.
115. Kozminski, 487 U.S. at 953.
116. Id. at 942.
117. Id. at 943.
118. Id. at 943-44.
119. Id. at 951-52.
120. Id. at 949.
121. Id. at 950 (quoting United States v. Shackney, 333 F.2d 475, 487 (2d Cir. 1964))
122. 2 THOMAS AQUINAS, SUMMA THEOLOGICA question 96, art. 5, at 1020 (Fathers of the English Dominican Province trans., Christian Classics 1981) (1273) ("[T]he notion of law contains two things; first, that it is a rule of human acts; secondly, that it has coercive power.")
123. Robert L. Hale, Coercion and Distribution in a Supposedly Non-coercive State, 38 POL. SCI. Q. 470, 475 (1923)
124. see also ARISTOTLE, Ethica Nicomachea (Nicomachean Ethics), in THE BASIC WORKS OF ARISTOTLE 935,964-65 (Richard McKeon ed., 1941) (c. 384 B.C.E.) (explaining diat coercion occurs when one is forced to act upon external pressures)
125. H.L.A. HART, THE CONCEPT OF LAW 201 (2d ed. 1994) ("[CJoercive power, thus established on its basis of authority, ⋯ may be used to subdue and maintain, in a position of permanent inferiority, a subject group ⋯. For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims, not its beneficiaries.")
126. IMMANUEL KANT, THE METAPHYSICS OF MORALS 26 (Mary Gregor trans., Cambridge Univ. Press reprt. 2003) (1797) (explaining diat coercion may be justified if used to prevent die violation of rights: "[rjight and authorization to use coercion therefore mean one and the same tiling").
127. Robert Nozick, Coercion, in PHILOSOPHY, POLITICS AND SOCIETY 101 (Peter Laslett et al. eds., 4th series 1972).
128. See infra text accompanying notes 114-16; see also Bar-Gill & Ben-Shahar, supra note 15, at 750-51 (citing Nozick and arguing for a refocus of coercion analysis on the credibility of a coercer's threat rather than on the effect of the threat on the coercee)
129. Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-incrimination, 93 CALIF. L. REV. 465, 525 (2005) (employing Nozick's conceptual framework in the criminal-procedure context)
130. Robert A. Holland, Comment, A Theory of Establishment Clause Adjudication: Individualism, Social Contract, and the Significance of Coercion in Identifying Threats to Religious Liberty, 80 CALIF. L. REV. 1595, 1673-75 (1992) (applying Nozick's coercion theory to the Establishment Clause context).
131. Nozick, supra note g2, at 102-06.
132. Some scholars have critiqued the necessity of a threat to establish coercion, arguing that external pressures or conditional offers can also coerce.
133. See WILLIAM A. EDMUNDSON, THREE ANARCHICAL FALLACIES: AN ESSAY ON POLITICAL AUTHORITY 97 (1998) (discussing "pressure theory" as a framework for understanding coercion)
134. HARRY FRANKFURT, Coercion and Moral Responsibility, in THE IMPORTANCE OF WHAT WE CARE ABOUT: PHILOSOPHICAL ESSAYS 26, 45-46 (1988) (arguing that external pressures may constrain an individual's choices to render his or her action as not voluntary)
135. Mitchell Berman, The Normative Functions of Coercion Claims, 8 LEGAL THEORY 45, 63 (2002) (proposing that regardless of whether an individual's choices are constrained by natural forces or human ones, an individual may still be said to be coerced)
136. infra text accompanying notes 129-37
137. see also David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFF. i2i, 123 (1981) (arguing that nonthreatening offers may also coerce); infra text accompanying notes 283-86.
138. See Nozick, supra note g2, at 112.
139. Id.
140. Id.
141. Id. (footnote omitted).
142. See id.
143. Id. at 116.
144. Id. at 115-16.
145. Id. at 116 ("I suggest that we have here a situation of a threat, and that here the morally expected course of events takes precedence over the normal course of events in assessing whether we have a threat or an offer.").
146. Id. ("[T]he slave himself would prefer the morally expected to the normal course of events⋯.").
147. United States v. Ingalls, 73 F. Supp. 76, 77 (S.D. Cal. 1947).
148. Nozick, supra note 92, at 116 (explaining that morality does not always determine whether a proposal constitutes a coercive threat or an offer). For example, a drug addict is told by his dealer that he will continue to supply the addict only if the addict attacks a certain person.
149. Id. at 112. Nozick reasons that this may also constitute a coercive threat because the addict subjectively prefers to continue receiving die drugs even though this is not a morally preferable outcome.
150. Id. at 116. Thus, die subjective preferences of die coercee matter. The slave prefers to not be beaten, which coincides with the moral view. The addict prefers to receive drugs, which coincides with his expected normal course of events: It may be diat when die normal and morally expected courses of events diverge, the one of these which is to be used in deciding whedier a conditional announcement of an action constitutes a threat or an offer is the course of events that the recipient of die action prefers.
151. Id.
152. Ingalls, 73 F. Supp. at 79.
153. United States v. Kozminksi, 487 U.S. 931, 960 (1988), superseded by statute, Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat 1466 (codified as amended in scattered sections of 8, 18, 22 U.S.C.).
154. Id. at 949.
155. Id.
156. Id. For example, an employer may threaten to fire a worker if the worker fails to work. Though the worker would be left worse off if fired and would prefer to keep the job and receive a salary while not performing his or her work responsibilities, this type of threat is not coercive-it is a normal part of legal commerce to receive payment for providing labor and to not receive payment for failure to work.
157. WERTHEIMER, supra note 11.
158. Id. at 307-08 ("My account of coercion in the law is, I think, strengthened by the argument that the legal theory is philosophically defensible.").
159. Id. at 8 ("On a moralized theory, unlike on an empirical theory, the truth of a coercion claim requires moral judgments at its core.").
160. Id. at 172.
161. Id. at 184 (describing the "normative or moral force of a coercion claim" (emphasis omitted))
162. see also Berman, supra note 95, at 57 (categorizing two kinds of normative functions, one that has to do with the wrongfulness of the coercer's threat and the other that has to do with the moral responsibility of the coercee).
163. See United States v. Alzanki, 54 F.3d 994, 1000 (1st Cir. 1995) ("In sum, the requisite compulsion under section 1584 obtains when an individual, through an actual or threatened use of physical or legal coercion, intentionally causes the oppressed person reasonably to believe ⋯ that she has no alternative but to remain in involuntary service for a time." (first and third emphases added) (citing United States v. Kozminski, 487 U.S. 931,952-53 (1988), superseded by statute. Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, 22 U.S.C.))).
164. United States v. Shackney, 333 F.2d 475, 487 (2d Cir. 1964).
165. United States v. Mussry, 726 F.2d 1448, 1453 (gth Cir. 1984) ("The crucial factor is whether a person intends to and does coerce an individual into his service by subjugating the will of the other person. A holding in involuntary servitude occurs when an individual coerces another into his service by improper or wrongful conduct that is intended to cause, and does cause, the other person to believe diat he or she has no alternative but to perform the labor." (emphasis added)), overruled by Kozminski, 487 U.S. 931.
166. Id.
167. WERTHEIMER, supra note 11, at 217.
168. Id.
169. Kozminski, 487 U.S. at 947.
170. Id.
171. Id.
172. Id. at 947-48.
173. Id. at 958 n.5 (Brennan, J., concurring)
174. see also id. at 957 n.4 ("[T]he Court today adopts an expansive but rather obscure understanding of what 'physical' coercion encompasses, it is difficult to tell which, if any, of the means of coercion described in the [Padrone system] the Court would deem 'physical.'" (citation omitted)).
175. Id. at 948 (majority opinion).
176. United States v. Ingalls, 73 F. Supp. 76, 77 (S.D. Cal. 1947).
177. Id.
178. United States v. Warren, 772 F.2d 827, 830-31 (1 ith Cir. 1985)
179. Id. at 831.
180. Id. at 834.
181. EDMUNDSON, supra note 95, at 97.
182. Id.
183. Id.
184. Id. at 98.
185. United States v. Kozminski, 487 U.S. 931, 949 (1988), superseded by statute, Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, 22 U.S.C.).
186. Id.
187. 939 F-2d 776 (9th Cir. 1991).
188. Id. at 777.
189. Id. at 778 (emphasis added) (internal quotation marks omitted).
190. Id.
191. 54 F.3d 994, 1004 (1st Cir. 1995) (emphasis added) (quoting United States v. Shackney, 333 F.2d 475, 486 (2d Cir. 1964)).
192. Id. at 999.
193. Id. at 1004.
194. Id. at 1001.
195. International Trafficking in Women and Children: Hearings Before the Subcomm. on Near K and S. Asian Affairs of the S. Comm. on Foreign Relations, 106th Cong. 80 (2000) (statement of William R. Yeomans, Chief of Staff, Civil Rights Division, Department of Justice).
196. Id. (emphasis added).
197. Id. at 78.
198. Id. at 82.
199. Id. at 80.
200. Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (codified as amended in scattered sections of 8, 18, 22 U.S.C.) (amending the TVPA and appropriating funds for 2004 and 2005).
201. Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 1 ig Stat. 3558 (2006) (codified as amended in scattered sections of 18, 22,42 U.S.C.).
202. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-147, 122 Stat. 5044 (codified in scattered sections of 6, 8, 18, 22, 28,42 U.S.C.).
203. 8 U.S.C. §§ 1375D-C (Supp. II 2008).
204. Victims of Trafficking and Violence Protection Act of 2000, 22 U.S.C. § 7102(9) (2006) (amended 2008) (defining sex trafficking as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act").
205. Id. § 7102(3) (defining a commercial sex act as "any sex act on account of which anything of value is given to or received by any person").
206. Id. § 7102(8).
207. Hyland, supra note 29, at 31.
208. 22 U.S.C. §7io2(8)(B).
209. Id. §7102(2), (5) (defining coercion and involuntary servitude for trafficking provisions).
210. Id. § 7ioi(b)(i3) (current version).
211. Id.
212. H.R. REP. No. 106-939, at 1Q1 (2000) (Conf. Rep.).
213. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, § 103(2), 114 Stat. 1464, 1469 (current version at 22 U.S.C. § 7102(2) (Supp. II 2008)).
214. H.R. REP. NO. 106-939, at 89.
215. § 103(5), 4 Stat, at 1469 (current version at 22 U.S.C. § 7102(5)).
216. Id. § 112, 114 Stat, at 1486-87 (current version at 18 U.S.C. § 1589).
217. H.R. REP. NO. 106-939, at 101.
218. Id.
219. Id.
220. Id.
221. Id.
222. Id.
223. KENNETH S. ABRAHAM, A CONCISE RESTATEMENT OF TORTS § 7, at 2 (2000) (defining "physical harm" as "the physical impairment of the human body").
224. H.R. REP. No. 106-939,at 1Q1.
225. Victims of Trafficking and Violence Protection Act of 2000, 22 U.S.C. § 7105(c)(3) (2006) (amended 2008).
226. 8 U.S.C. § iioi(a)(i5)(T)-(U) (amended 2008 and 2009).
227. 18 U.S.C. § 1595 (amended 2008).
228. ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS AND ASSESSMENT OF U.S. GOVERNMENT ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS: FISCAL YEAR 2009, at 48 (2010) [hereinafter ATTORNEY GENERAL'S ANNUAL REPORT 2009], available at http://www.justice.gov/ag/annualreports/tr2009/agreporth umantrafficking2009. pdf.
229. Id. at 38 (stating the number of approved principal T visa applications from 2001 to 2009).
230. Kathleen Kim, The Trafficked Worker as Private Attorney General: A Model for Enforcing the Civil Rights of Undocumented Workers, 2009 U. CHI. LEGAL. F. 247, 292.
231. U.S. DEP'T OF STATE, VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT OF 2000: TRAFFICKING IN PERSONS REPORT 23 (2004), available at http://www.state.gov/documents/organization/34158.pdf.
232. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-06-825, HUMAN TRAFFICKING: BETTER DATA, STRATEGY, AND REPORTING NEEDED TO ENHANCE U.S. ANnTRAFFicKiNG EFFORTS ABROAD 2-3
233. see also OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, AUDIT REPORT 08-26, MANAGEMENT OF THE OFFICE OF JUSTICE PROGRAMS' GRANT PROGRAMS FOR TRAFFICKING VICTIMS 79 (2008) (noting that die number of trafficking victims assisted by die Office for Victims of Crime was smaller dian expected).
234. Jerry Markon, Human Trafficking Evokes Outrage, Little Evidence, WASH. POST, Sept. 23, 2007, at A9.
235. Grace Chang & Kathleen Kim, Reconceptualizing Approaches to Human Trafficking: New Directions and Perspectives from thefteld(s), 3 STAN J. C.R. & C.L. 317, 325 (2007).
236. H.R. REP. NO. 106-939, at 101 (2000) (Conf. Rep.).
237. This data was extrapolated from the "Examples of Cases" and "Descriptions of Cases" sections of the 2003 to 2009 Attorney General's annual reports to Congress on human trafficking. Among the cases described within these reports, I focused on prosecutions of sex-trafficking or labor-trafficking violations under the TVPA, leaving out prosecutions of sex tourism and child sexual exploitation (unrelated to trafficking). I also omitted cases Uiat lacked any description of the means of force, fraud, or coercion used to keep victims in servitude. Out of die remaining sample of 106 trafficking cases, 72, or 72.28%, evidenced overt physical force. See REPORT TO CONGRESS FROM ATTORNEY GENERAL JOHN ASHCROFT ON U.S. GOVERNMENT EFFORTS To COMBAT TRAFFICKING IN PERSONS IN FISCAL YEAR 2003, at 22-26 (2004), available at http://www.justice.gov/archive/ag/annualreports/tr2003/ 050104agreporttocongresstvpravio.pdf
238. REPORT TO CONGRESS FROM ATTORNEY GENERAL ALBERTO R. GONZALES ON U.S. GOVERNMENT EFFORTS TO COMBAT TRAFFICKING IN PERSONS IN FISCAL YEAR 2004, at 23-31 (2005), available at http://www.justice.gov/archive/ag/annualreports/ tr2004/agreporthumantrafficing.pdf
239. ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS ON U.S. GOVERNMENT AcnvrnES To COMBAT TRAFFICKING IN PERSONS: FISCAL YEAR 2005, at 18-21 (2006), available at http://www.justice.gov/archive/ag/annualreports/tr2005/ agreporthumantraff1cing2005.pdf
240. ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS ON U.S. GOVERNMENT ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS: FISCAL YEAR 2006, at 43-53 (2007), available at http://www. justice.gov/archive/ag/annualreports/tr2006/ agreporthumantraff1cing2006.pdf
241. ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS AND ASSESSMENT OF THE U.S. GOVERNMENT ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS: FISCAL YEAR 2007, at 64-71 (2008) [hereinafter ATTORNEY GENERAL'S ANNUAL REPORT 2007], available at http://www.justice.gov/ archive/ag/annualreports/tr20o7/ agreporthumantrafficing20o7.pdf
242. ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS AND ASSESSMENT OF U.S. GOVERNMENT AcnvmEs To COMBAT TRAFFICKINC IN PERSONS: FISCAL YEAR 2008, at 83-86 (2009), available at http://www.justice.gov/archive/ag/annualreports/tr20o8/ agreporthumantrafficing20o8.pdf
243. ATTORNEY GENERAL'S ANNUAL REPORT 2009, supra note 181, at 108-17.
244. DEREKJ. MARSH, HUMAN TRAFFICKING-RECENT TRENDS: A LOCAL LAW ENFORCEMENT PERSPECTIVE g (2009), available at http://homeland.house.gov/SiteDocuments/ 20090319100952-86886.pdf.
245. Id. at 9-10.
246. Id.
247. INST, ON RACE & JUSTICE, NE. UNIV., UNDERSTANDING AND IMPROVING LAW ENFORCEMENT REPONSES TO HUMAN TRAFFICKING 104 (2008), available at http://www.human trafficking.neu.edu/news-reports/reports/documents/ Understanding%20and%20Responding-Full%2oReport.pdf.
248. Victims of Trafficking and Violence Protection Act of 2000, 8 U.S.C. § noi(a)(i5)(T)(i)(III) (2006) (amended 2008 and 2009) (explaining that children under eighteen who are sex-trafficking victims do not need to meet the criterion of complying with assistance in the investigation or prosecution of the trafficking crime)
249. id. § 1 ioi(a)(i5)(U)(i)(III). The 2005 Violence Against Women and Department of Justice Reauthorization Act provided for a hardship exception to the requirement that the T visa applicant demonstrate compliance with requests for assistance in the criminal investigation and prosecution of the trafficking. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 801(a)(3), ng Stat. 2960, 3053-54 (codified at 8 U.S.C. § 1101 (a)(i5)(T)(iii)) ("[I]f the Secretary of Homeland Security, in his or her discretion and with the consultation of the Attorney
250. 22 U.S.C. § 7105(c)(3)(A)(i) (amended 2008).
251. ATTORNEY GENERAL'S ANNUAL REPORT 2007, supra note 189, at 20.
252. INST, ON RACE feJusncE, supra note 193, at 105.
253. See Kim, supra note 183, at 259-61.
254. See Jennifer M. Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts To Stop Human Trafficking, 74 FORDHAM L. REV. 2977, 3021-24 (2006)
255. Wendy Chapkis, Trafficking, Migration, and the Law: Protecting Innocents, Punishing Immigrants, 17 GENDER & SocV 923. 923-37 (2003).
256. This Article aims to first establish a theoretical framework for coercion in the context of human trafficking. This framework may then serve as a foundation for future exploration and more detailed comparative critiques with other areas of the law.
257. Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 BROOK. L. REV. 3g (1998) (discussing the need for rape-law reform to specifically include rape by fraud and rape by coercion, in addition to the traditional notion of rape by physical force)
258. Kristen L. Isaacson, Note, Rape by Fraud or Impersonation: A Necessary Addition to Michigan's Criminal Sexual Conduct Statute, 44 WAYNE L. REV. 1781 (1999) (arguing that Michigan's criminal sexual-conduct statute should acknowledge rape by fraud or impersonation as "coercion," a necessary element to establish rape in the state)
259. Rosemary J. Scalo, Note, What Does "No" Mean in Pennsylvania?.The Pennsylvania Supreme Court's Interpretation of Rape and the Effectiveness of the Legislature's Response, 40 VlLL. L. REV. 193, 202 (1995) (defining "forcible compulsion" in rape cases to include not only physical force or violence but also moral, psychological, or intellectual force used to compel a person to engage in sexual intercourse against that person's will)
260. Ann T. Spence, Note, A Contract Reading of Rape Law: Redefining Force To Include Coercion, 37 COLUM. J.L. & Soc. PROBS. 57 (2003) (proposing that the current definition of "force" in rape law needs to be reformed to systematically address nonphysical coercion by die offender, much like contract law, which comprehensively regulates nonphysical coercion through the doctrines of duress, undue influence, and unconscionability).
261. ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS 21 (2003) (quoting Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 Yale LJ. 55,65 n.75 (1952)).
262. CATHERINEA. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 180 (1989).
263. Kathleen Kim, Psychological Coercion in the Context of Modem-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. TOL. L. REV. 941,969(2007).
264. See Carole Angel, Immigration Relief for Human Trafficking Victims: Focusing the Lens on the Human Rights of Victims, 7 U. MD. LJ. RACE, RELIGION, GENDER & CLASS 23, 31 (2007)
265. Marisa Silenzi Cianciarulo, Modem-Day Slavery and Cultural Bias: Proposals for Reforming the U.S. Visa System for Victims of International Human Trafficking, 7 NEV. L.J. 826, 833 (2007)
266. Charles Song & Suzy Lee, Between a Sharp Rock and a Very Hard Place: The Trafficking Victims Protection Act and the Unintended Consequences of the Law Enforcement Cooperation Requirement, l INTERCULTURAL HUM. RTS. L. REV. 133, 135 (2006)
267. Tala Hartsough, Note, Asylum for Trafficked Women: Escape Strategies Beyond the T Visa, 13 HASTINGS WOMEN'S L.J. 77, 98 (2002).
268. See Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action: Civil Rights for Trafficked Persons in the United States, 16 HASTINGS WOMEN'S LJ. 1, 1 (2004).
269. Hussein Sadruddin, Natalia Walter & Jose Hidalgo, Human Trafficking in the United States: Expanding Victim Protection Beyond Prosecution Witnesses, 16 STAN. L. & POL"Y REV. 379, 381 (2005).
270. FREE THE SLAVES & HUMAN RIGHTS CTR., HIDDEN SLAVES: FORCED LABOR IN THE UNITED STATES 28 (2004).
271. 8 C.F.R.§ 214.11(d)(3) (2010).
272. Id. § 214.11(f)(3).
273. Ivy Lee, Appellate Brief, An Appeal ofaT Visa Denial, 14 GEO. J. ON POVERTY L. & POL'Y 455, 463-65 (2007).
274. Id. at 460.
275. Id. at 464.
276. Id.
277. Id. at 470.
278. Id.
279. Id. at 475.
280. Id. at 470 (internal quotation marks omitted).
281. Id. at 479 (internal quotation marks omitted).
282. Id. at 467 (quoting Memorandum from Paul W. Virtue, Office of Gen. Counsel, INS, to Terrance O'Reilly, Dir., Admin. Appeals Office, INS, "Extreme Hardship" and Documentary Requirements Involving Battered Spouses and Children 4 (Oct. 16, 1998)) (internal quotation marks omitted). 221. Id. at 486.
283. Dina Francesca Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures To Fulfill the Promise of the Trafficking Victims Protection Act, 21 GEO. IMMIGR. L.J. 337.36o-6i (2007).
284. Id. at 361.
285. Id.
286. 393 F. Supp. 2d 295 (D.N.J. 2005) (dismissing the complaint); 447 F. Supp. 2d 379 (D.N.J. 2006) (dismissing the second amended complaint), denying motion to certify appeal, 2007 WL 1134110 (D.N.J. 2007).
287. Second Amended Class Action Complaint & Jury Demand at 56, Zavala, 447 F. Supp. 2d 379 (No. 03-Civ.-53og (JAG)), 2005 WL 3522044.
288. Id. at 17.
289. Zavala, 393 F. Supp. 2d at 311 (quoting United States v. Shackney, 333 F.2d 475, 486 (2dCir. 1964)).
290. Zavala, 447 F. Supp. 2d at 384.
291. Id. at 384-85.
292. 18 U.S.C § 1589(a) (Supp. II 2008)
293. At § 1589(c)(1).
294. Id. § 1589(c)(2).
295. Id.
296. Id.
297. At § 1589(c)(1).
298. H.R. REP. NO. 106-939,at 1Qi (2000) (Conf. Rep.).
299. 18 U.S.C.§ 1589(c)(2).
300. H.R. REP. NO. 106-939, at 101.
301. Id.
302. Id.
303. 390 F.33d 145, 148 (1st Cir. 2004), vacated on other grounds, 545 U.S. 1101 (2005).
304. Id. at 149.
305. Id. at 148.
306. Id.
307. Id. at 149-50 ("[T]he jury convicted the defendants on all counts except for the false statement charge and the attempted forced labor charges (which the jury did not consider after convicting on the underlying offenses).").
308. Id. at 150 ("Bradley and O'Dell contest both their convictions and their sentences. In particular, they challenge a number of alleged errors in the district court's jury instructions; the introduction of evidence regarding their treatment of Wilson and Clarke in 1999-2000; and the application of two sentencing enhancements ⋯. They do not say that the evidence was inadequate to support their convictions.").
309. Id. at 157.
310. Id. at 150 (discussing various interpretations of coercion under the Act and drawing upon the Act's conference report).
311. Id. at 151.
312. Id.
313. Id.
314. Id. at 151 n.3 (alterations in original).
315. Id. at 151.
316. Id. at 152-53.
317. 538 F.3d 706, 710 (7th Cir. 2008) (quoting 18 U.S.C. § 1589 (Supp. II 2008)) (internal quotation marks omitted) ("The Calimlims challenge their convictions on several grounds: that the forced labor statute is vague and overbroad, that die jury instructions on the forced labor counts failed to exclude the possibility of a conviction for innocent actions, and that diere was insufficient evidence of financial gain on the harboring counts."), cert, denied, 129 S-Ct. 935 (2009).
318. Id. at 709. The court found: The evidence showed that the Calimlims intentionally manipulated the situation so that Martinez would feel compelled to remain. They kept her passport, never admitted that they too were violating the law, and never offered to try to regularize her presence in the United States. Their vague warnings that someone might report Martinez and their false statements that they were the only ones who lawfully could employ her could reasonably be viewed as a scheme to make her believe that she or her family would be harmed if she tried to leave.
319. Id. at 713.
320. Id.
321. Id. at 712
322. Id. at 711.
323. Id. at 710.
324. Id. at 712.
325. Id. at 708.
326. Id. at 715.
327. Id. at 712.
328. Id.
329. Id. at 717.
330. Garcia v. Audubon Cmtys. Mgmt., LLC, No. 08-1291, 2008 WL 1774584, at*2~4 (E.D. La. Apr 15, 2008).
331. Id. at *2.
332. Id.
333. 546 F.3CI 1242 (10th Cir. 2008), cert denied, 130 S. Ct. 1013 (2009).
334. Id. at 1248-50.
335. Id. at 1265.
336. Id.
337. Id. (omission in original).
338. See supra text accompanying note 233.
339. See supra text accompanying note 233.
340. Alafair S. Burke, Rational Actors, Self-defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman, 81 N.C. L. REV. 211 (2002).
341. Id. at 286-87.
342. Id. at 288.
343. United States v. Bradley, 390 F.3d 145, 153 (1st Cir. 2004), vacated on other grounds, 545 U.S. 1101 (2005).
344. 563 F.3d 364 (8th Cir. 2009).
345. Id. at 366-67.
346. Id, at 367-70.
347. Id. at 372.
348. Id. at 373.
349. Id.
350. Id.
351. Id. (internal quotation marks omitted).
352. Zimmerman, supra note 95, at 134 ("The intuitive idea underlying coercion is that the person who does the coercing undermines, or limits the freedom of the person who is coerced ⋯." (emphasis omitted)).
353. WERTHE1MER, supra note 11, at 217.
354. JOAN MCGREGOR, Is IT RAPE?: ON ACQUAINTANCE RAPE AND TAKING WOMEN'S CONSENT SERIOUSLY 169 (2005).
355. United States v. Calimlim, 538 F.3d 706 (7th Cir. 2008), cert denied, 129 S. Ct. 935 (2009).
356. Garcia v. Audubon Cmtys. Mgmt., LLC, No. 08-1291, 2008 WL 1774584 (E.D. La. Apr. 15, 2008).
357. United States v. Bradley, 3go F.3d 145, 145 (1st Cir. 2004) (explaining that the trafficked workers earned more than minimum wage and could travel outside of die farm unaccompanied), vacated on other grounds, 545 U.S. 1105 (2005).
358. Garcia, 2008 WL 1774584, at *2.
359. Id.
360. 385 U.S. 493 (1967).
361. McGregor, supra note 31, at 231 (critiquing Michael Philips's discussion of Garrity in his article, Are Coerced Agreements Involuntary*).
362. Id. at 232.
363. Id.
364. Id.
365. Joan McGregor, Bargaining Advantages and Coercion in the Market, 14 PHIL. RES. ARCHIVES 23, 25 (1989).
366. Id. at 34.
367. ANTI-SLAVERY INT'L, TRAFFICKING FOR FORCED LABOUR IN EUROPE: REPORT ON A STUDY IN THE UK, IRELAND, THE CZECH REPUBLIC AND PORTUGAL (2006) [hereinafter ANTI-SLAVERY INT'L, EUROPE], available at http://www.antislavery.org/includes/ documents/cm-docs/2009/tZtrafficlung-for-fl-in-europe-4-country-report.pdf
368. INT'L LABOR ORG., A GLOBAL ALLIANCE AGAINST FORCED LABOUR: GLOBAL REPORT UNDER THE FOLLOW-UP TO THE ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (2005)
369. KLARA SKRTVANKOVA, ANTI-SLAVERY INT'L, TRAFFICKING FOR FORCED LABOUR: UK COUNTRY REPORT (2006)
370. OFFICE OF THE SPECIAL REPRESENTATIVE & COORDINATOR FOR TRAFFICKING IN HUMAN BEINGS, ORG. FOR SEC. & COOPERATION IN EUR., OCCASIONAL PAPER SER. NO. 3, A SUMMARY OF CHALLENGES ON ADDRESSING HUMAN TRAFFICKING FOR LABOUR EXPLOITATION IN THE AGRICULTURAL SECTOR IN THE OSCE REGION (2009) [hereinafter OSCE No. 3], available at http://www.osce.org/publications/cthb/2009/07/38709. 1338-en.pdf
371. OFFICE OF THE SPECIAL REPRESENTATIVE & CO-ORDINATOR FOR TRAFFICKING IN HUMAN BEINGS, ORG. FOR SEC. & CO-OPERATION IN EUR., OCCASIONAL PAPER SER. NO. 1, A SUMMARY OF CHALLENGES FAQNG LEGAL RESPONSES TO HUMAN TRAFFICKING FOR LABOUR EXPLOITATION IN THE OSCE REGION (2006), available at http://www.osce.org/ publications/cthb/20o8/oi/23622-8ii-en.pdf
372. Elizabeth Hopper & Jose Hidalgo, Invisible Chains: Psychological Coercion of Human Trafficking Victims, 1 INTERCULTURAL HUM. RTS. L. REV. 185 (2006).
373. OSCE NO. 3, supra note 305, at 38 (quoting Protocol To Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing die United Nations Convention Against Transnational Organized Crime art 3, Nov. 15, 2000, 2237 U.N.T.S. 319) (internal quotation marks omitted).
374. Id. (quoting Council of Europe Convention on Action Against Trafficking in Human Beings and Its Explanatory Report, \ 83, at 38, C.E.T.S. No. 197 (May 15, 2005)) (internal quotation marks omitted).
375. Id. (quoting Council of Europe Convention on Action Against Trafficking in Human Beings and Its Explanatory Report, supra note 307, at 1 83, at 38).
376. Hopper & Hidalgo, supra note 305, at ig8.
377. ANTI-SLAVERY INT'L, EUROPE, supra note 305, at 10.
378. McGregor, supra note 303, at 24.
379. Garcia v. Audubon Cmtys. Mgmt., LLC, No. 08-1291, 2008 WL 1774584 (E.D. La. Apr. 15, 2008).
380. Id. at*i.
381. Zimmerman, supra note 95, at 123.
382. Id.
383. Id. at 133.
384. Id.
385. WERTHEIMER, supra note 11, at 219 ("[T]he moral baseline approach allows us to distinguish-to the extent that we want to-between B's background conditions for which A is not responsible and rights-violating threats to B's welfare which are specifically attributable to A, or in slightly different terms, between coercive proposals and hard bargaining.").
386. ALAN WERTHEIMER, EXPLOITATION 264 (1996).
387. WERTHEIMER, supra note 11, at 219.
388. Id. at 233
389. see also WERTHEIMER, supra note 202, at 172 (noting also that hard choices can be nonexploitive)
390. WERTHEIMER, supra note 319, at 269.
391. WERTHEIMER, supra note 11, at 233.
392. Id. at 40.
393. John Kleinig, Consent, in 1 ENCYCLOPEDIA OF ETHICS 299, 300 (Lawrence C. Becker & Charlotte B. Becker eds., 2d ed. 2001)
394. see also GEORGE P. FLETCHER, BASIC CONCEPTS OF LEGAL THOUGHT 112 (1996) (explaining that consent can transform harmful conduct into nonharmful conduct).
395. WERTHEIMER, supra note 202, at 144.
396. Alan Wertheimer, Remarks on Coercion and Exploitation, 74 DENV. U. L. REV. 889, 896 (1997).
397. Id. at 905.
398. Id. at 906.
399. The legal enforceability of exploitive agreements is controversial. The criminalization of prostitution is based in part on the notion that it is inherently exploitive to treat sex as a commodity. On the other hand, commercial surrogacy is thought of as exploitive, yet is legally legitimate.
400. See 4 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 176 (1988) (regarding mutually advantageous exploitation as a "free-floating" evil). "In these cases there is no wrongful loss for the exploitee, who can himself have no grievance." Id.
401. KARL MARX, CAPITAL: A CRITIQUE OF POLITICAL ECONOMY, THE PROCESS OF CAPITALIST PRODUCTION (Frederick Engels ed., Samuel Moore & Edward Aveling trans., Random House 1906) (1867).
402. Id. at 737
403. see also Nancy Holmstrom, Exploitation, 7 CANADIAN J. PHIL. 353, 359 (1977) ("It is the fact that the [capitalist's] income is derived through forced, unpaid, surplus [wage] labor⋯ which makes [wage labor] exploitative.")
404. id. at 357.
405. WERTHEIMER, supra note 319, at 248.
406. MACKINNON, supra note 203, at 175 (explaining that the law of rape faultily presumes that consent exists as a "free exercise of sexual choice under conditions of equality of power").
407. JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY WITH SOME OF THEIR APPLICATIONS TO SOCIAL PHILOSOPHY § 9, at 959 (W.J. Ashley ed., Longmans, Green & Co. 1909) (1848).
408. WERTHEIMER, supra note 202, at 191.
409. Id. at 188.
410. United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008), cert, denied, 129 S. Ct. 935 (2009).
411. Id. at 714.
412. Id. at 714-15.
413. 18 U.S.C. § 1589(c)(2) (Supp. II 2008).
414. "No choice" is a term of art. It does not mean that the coercee literally has no choice because the coercee may still choose to reject the coercer's demands and suffer the consequences. The relevance of "no choice" rests on the unreasonableness of the alternatives. If the alternatives the coercer presents to the coercee are unreasonable to the degree of reaching moral wrongfulness, Wertheimer would regard this as coercive: "I have argued elsewhere that the single most important factor in determining when proposals nullify the transformative power of consent on grounds of coercion is whether A proposes to make B worse off than her moralized baseline ⋯." WERTHEIMER, supra note 202, at 167 (emphasis omitted).
415. WERTHEIMER, supra note 319, at 253 ("I have argued that a defect in consent is not a necessary condition of exploitation.").
416. See supra notes 298-304 and accompanying text
417. see also FRANKFURT, supra note 95, at 45-46 (emphasizing consideration of background conditions in determining an instance of coercion)
418. John Dalzell, Duress by Economic Pressure I, 20 N.C. L. REV. 237, 258 (1942) (suggesting that when one individual deliberately exploits another's adversity, "the fact that he did not create [it] should be treated as of litde importance")
419. Joel Feinberg, Noncoercive Exploitation, in PATERNALISM 201, 208-09 (Rolf Sartorius ed., 1983) (explaining that if an individual utilizes his superior strength over another by manipulating the other's options so that the other accepts the offer, the offer is coercive)
420. Vinit Haksar, Coercive Proposals [Rawls and Ghandi], 4 POL. THEORY 65, 69 (1976) (regarding exploitive offers as coercive because they "involve an attempt to take an unfair advantage of the recipient's vulnerability").
421. MCGREGOR, supra note 292, at 179.
422. See, e.g., Robert Mayer, Guestworkers and Exploitation, 67 REV. POL. 311,318 (2005) ("In guestworker transactions, for example, host employers are able to exploit foreign labor because the host government is using its coercive power to block other options, such as permanent residency with equal rights. The guests are not forced to come by the hosts, but diey are forced to choose from a constrained set of options, the best of which may result in others gaining at their expense.").
423. 8 U.S.C. § 1227(a) (Supp. II 2008).
424. See Immigration Reform and Control Act of ig86, Pub. L. No. 99-603, § 101(a), 100 Stat. 3359, 3360-65 (codified as amended at 8 U.S.C. § 1324a (2006)).
425. ANNETTE BERNHARDT ET AL., BROKEN LAWS, UNPROTECTED WORKERS: VIOLATIONS OF EMPLOYMENT AND LABOR LAWS IN AMERICA'S CITIES 53 (2009)
426. DORIS MEISSNER & DONALD KERWIN, MIGRATION POLICY INST., DHS AND IMMIGRATION: TAKING STOCK AND CORRECTING COURSE 27-38 (2009)
427. Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U.CHI.LEGALF. 193, 211-13.
428. Wishnie, supra note 349, at 215.
429. See Stephen Lee, Private Immigration Screening in the Workplace, 61 STAN. L. REV. 1103, 1120-23 (2009)
430. Huyen Pham, The Private Enforcement of Immigration Laws, 96 GEO. L.J. 777, 779 (2008).
431. Kathleen Kim, Incoercible (unpublished manuscript) (on file with author) (examining the various ways in which the structure of immigration laws both cultivates coercion in the undocumented workplace and also prevents legal relief from it).
432. See Victims of Trafficking and Violence Protection Act of 2000, 22 U.S.C. § 7101(b) (Supp. II 2008).
433. See supra notes 211-21 and accompanying text (discussing Ligaya case).
434. Lee, supra note 211, at 475 (internal quotation marks omitted).
435. Id. at 467.
436. Id. at 474.