Punish the victim: The flawed US approach to battling human trafficking and sexual slavery

The bitter, bitter, bitter irony, colleagues, is that quite often the victims [of human trafficking] are the ones who are punished, and these mobsters and criminals who are involved in the trafficking of these women and girls with this blatant exploitation get away with literally murder.

Sen. Paul Wellstone, 7 Jul. 2000

The phenomenon of human trafficking is one of the more morbid examples of globalization at work in the modern world. The UN defines it as “the recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud or deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation” (General Assembly, Res. 55/25, p. 32). It should be distinguished from human smuggling, in which an individual voluntarily agrees to be transported to a chosen country in an illicit manner. The federal government estimates that 17,500 victims are trafficked into the US each year.

The recent arrest of a Ukrainian man, Veniamin Gonikman, provides an example of the way women can be deceived and then violently coerced into the sex business.

Gonikman, along with his co-conspirators, would entice Eastern European women into working for the “Beauty Search” company, promising them high-paying jobs and places to live in the United States, according to the indictment. The co-conspirators would then force the women to work as exotic dancers, take all or most of their earnings, and use verbal abuse, isolation, threats and physical violence to keep them under control, prosecutors said. One of the gang burned a car belonging to one of the dancer’s sisters, in retaliation for the dancer’s escape, prosecutors said. Gonikman’s son, Aleksandr Maksimenko, also allegedly forced the dancers to have sex with him, by intimidating them and reminding them that they owed him a debt, according to the [ICE] (Reuters, 28 Jan. 2011).

Despite the perception of human trafficking being a consequence of open borders and lax immigration controls, the exact opposite is most likely the case. A Congressional Research Service report on the topic lists the following as contributing factors (emphasis mine):

The increasing restrictions on legal immigration to many destination countries—including the United States and Western Europe—have caused many migrants to turn to alien smugglers and even human traffickers, despite the associated risks involved [and] the tendency to treat trafficking victims as criminals has made many victims reluctant to cooperate with law enforcement (CRS, No. RL34317, p. 4).

The report further asserts that the undocumented immigration status also hinders  “the ability of the victim to provide testimony during a criminal trial” (Id., p. 24).

Members of Congress took notice of perverse enforcement priorities in the late 1990s and began a series of hearings on the subject. Senators such as the late Paul Wellstone (D-MN) and evangelical figure Sam Brownback (R-KS) joined forces in a crusade for the prosecution of traffickers and the protection of trafficking victims. Their efforts culminated in the passage of the Victims of Trafficking and Violence Protection Act of 2000. One of the main features of the bill was the creation of the T-Visa for victims of human trafficking. However, the visa has an incredibly stringent set of requirements. In addition to being considered a victim of a “severe form of trafficking in persons,” there are three preconditions.

(1) Physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or a port of entry thereto on account of trafficking in such persons;

(2) if 15 years of age or older, must have complied with any reasonable request for assistance to law enforcement in the investigation or prosecution of acts of trafficking; and

(3) must be likely to suffer extreme hardship involving unusual and severe harm upon removal (Federal Register, No. 03-16194).

If these sound like onerous conditions, that’s because they were intended to be as restrictive as possible. According to a statement by Rep. John Conyers (D-MI) on the floor of Congress on 9 May 2000:

H.R. 3244 is a modest effort to eradicate forcible and/or fraudulent trafficking of persons into prostitution or involuntary servitude. The bill provides some protection for victims who would otherwise be deportable if identified by law enforcement by creating a new “T” visa category for eligible victims. Unfortunately, the bill reported out of the Judiciary Committee is much more restrictive than the bill originally introduced by Representative Chris Smith and Representative Sam Gejdenson. A compromise bill was substituted by the Republicans immediately prior to the Judiciary Committee mark-up to satisfy their unrealistic concerns that the bill would enable persons to fraudulently obtain a lawful status by claiming that they were a victim of sex trafficking or involuntary servitude. In particular, the Committee-reported bill incorporated several significant restrictions on the availability of visas for victims of sex trafficking and involuntary servitude (Congressional Record, Vol. 146, no. 56, p. H26871).

Indeed. In the bill as originally proposed, the requirement that the victim be “physically present in the United States” does not require that the presence in the country be “on account of trafficking in such persons.” The original bill would have also established that the victim would have to prove “significant possibility of retribution or other hardship” if deported. As passed into law, however, it requires a likelihood of undergoing “extreme hardship involving unusual and severe harm.”

As noted by April Rieger, “the requirements for qualifying for a T Visa are overly strict–so much so that even the White House expressed such concerns before signing the TVPA into law” (Harvard Journal of Law & Gender, Vol. 30, No. 1, p. 252). The requirement that the victim be in the country “on account of trafficking in such persons” often means that women who originally consented to be trafficked for sex work but subsequently found themselves imprisoned in slave-like conditions may not qualify. Additionally, the mandate for proving a likelihood of “unusual and severe harm” is much more strict than the standard for regular asylum claims, which involves proving a significant risk of “extreme hardship.” Further discussion of T-Visa requirements can be found here and here.

Since the bill became law, there have been numerous examples of shortcomings on the part of immigration authorities in their treatment of victims from journalists and activists.

Koreans in Dallas

A 7 May 2006 article from the Dallas Morning News described the fate of 42 women from South Korea who were lured to America by promises of decent paying jobs from advertisements and word of mouth. By the time they reached the US, they were declared to be in debt to their smugglers often for more than $13,000. They became “sexual sharecroppers,” struggling to pay off their debts through sex work at various Korean owned brothels all over the country.

In Dallas, they arrived at small shops off Interstate 35E with names like Tokyo, Ginja, Jackpot and Pretty Women. It’s a gritty industrial area dotted with small ethnic restaurants and shops. It’s also a shadow land of feudal bondage. At each spa, the owner paid the broker for the girl, putting her debt in a ledger to pay down each night. They monitored the women with surveillance cameras. Some confiscated passports. If the women tried to run away, many would have nowhere to go.Some serviced a dozen customers a day. They’d work when sick, sore and bleeding. “Usually they didn’t give permission for treatment,” one said. “You’re crying. You’re yelling, but there’s no use.” Many ate, slept and worked in the same spaces and were charged extra for lodging, condoms and clothes.[…] Agents moved in on Aug. 12, joined by translators from the West Coast. They found hundreds of thousands of dollars in cash, at least 117 tubes of surgical lubricant, more than 6,000 condoms. And the 42 women.

The ICE asked Catholic Charities to grant legal representation to the women. The organization then accused the feds of treating the women in a callous manner and putting little effort into determining their qualifications for victim status:

Ms. Slaughter, head of the nonprofit’s immigration counseling services in Dallas, said the situation was “helter skelter” from the start. She said the women were treated as criminals in an environment hostile to building trust or learning their histories. The government, she said, seemed predisposed against seeing them as victims. […] Lawyer Katie Holbrook was one of two Catholic Charities representatives who traveled to an ICE office in Dallas to conduct interviews. She said the women seemed to be wearing the same clothes they were sleeping in on the morning of the raids. One of them appeared to be menstruating and had bloodstains on her pants. Ms. Holbrook and Ms. Slaughter said it can take days to build trust with trafficking victims. Instead, they said, the government offered 15 minutes with some of the detainees.

Ken Cates, the special agent in charge of the Dallas ICE office, claimed that the women’s “ability to move from one facility to another” was the biggest factor in determining their qualifications. He said this despite acknowledging that “it’s a bit of a misnomer to say voluntarily, because if you have five options … then you still have a limited option.” As he put it: “Many of them … knew that they voluntarily came to engage in this business with at least a bit of an understanding of the circumstances that you’ll find when you get here.”

John Chakwin, who replaced Cates, went as far as describing a majority of the women as “professional prostitutes who knew exactly what they were doing.”

Immigration Judge Anthony Rogers incredulously asked a lawyer for the women “do you think they’re going to suddenly go from prostitutes in bathhouses to permanent residents in the U.S. with … visas?

The piece ends by noting the moralistic, sanctimonious posturing from federal authorities for prosecuting some of the traffickers and brothel owners while allowing most of the women to be deported by the time the case wrapped up.

Further Examples

In November 2008, the Houston Chronicle detailed the difficulty rescued victims went through to obtain T-Visas. The article described a massive raid in Houston that resulted in the rescue of 120 women, mostly from Central America, from a Salvadoran criminal group. About 67 were able to obtain the T-Visa while the others remained in limbo. The article describes the threat the women would face if returned to their home countries. There remains a good chance that the gangs that originally recruited, trafficked and enslaved them would execute them if they were deported. At least one of the victims reported having a death threat sent to their cell phone.

A 2009 investigation by the Kansas City Star found that the ICE was failing to screen detained immigrants for human trafficking victims. The article describes a Guatemalan man being forced to work in an Iowa meat packing plant for hours without any pay , even while injured. It also describes “32 young Guatemalan workers caught up in the same raid, some as young as 15, [who] were illegally put to work at jobs that exposed them to dangerous chemicals.” Most of them were detained for months without proper screening and then deported. Apparently the ICE’s zeal to deport even interfered with their stated desire to prosecute traffickers: “up to one-fourth of the victims who might have testified against their traffickers were deported.”

On 19 April 2010, Human Rights Watch sent a letter to the State Department’s Office to Monitor and Combat Trafficking in Persons describing several cases in which “trafficking victims have in fact been detained, sometimes at great length.”

In Conclusion

Out of 2,968 applications for the T-Visa submitted from 2002 through 2010, about 1,862 have been approved (CRS Report, p. 27).

By contrast, the number of H-1B Visas (typically issued for highly skilled workers and sponsored by employers) issued was 110,367 in FY 2009 alone.

The ability to distinguish victims the criminals who prey on them is a vital part of any good-faith law enforcement effort. The US has a moral duty to identify, protect and aid human trafficking victims that end up on its soil. If it is serious about combating human trafficking, then protecting the victims may have to take priority over prosecuting the offenders. Victims will continue to remain invisible if they themselves are terrified of fleeing or going to the authorities for fear of being treated like a criminal. The choice to aid investigations and testify against traffickers should be theirs alone. We must not make immigration status relief dependent on their cooperation with prosecution efforts. Testifying about their experience before a court room about being a sexual slave has been described by certain victims as a second assault. For this reason, it should strictly be up to them.

Congress should go back to the VTVPA as they wrote it in 2000 and reduce the amount of suffering the victims must be able to prove they would likely face if deported. They should also allow trafficking victims some form of immigration relief if they originally agreed to be trafficked into the US but soon faced coercion and subhuman condition upon arrival. Modern-day slaves should not have to fear law enforcement. It is a disgrace that we still have major problems protecting a decade after passing this landmark legislation. But there is an easy way to undo at least some of the damage.


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