(Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act

Abstract

The article outlines the myriad problems that need be addressed to carry out the promise of the Trafficking Victim Protection Act. In the year 2000, Congress proudly signed into law the Trafficking Victims Protection Act (TVPA), with two goals in mind - protecting victims of human trafficking and prosecuting their traffickers. Yet years after the passage of the TVPA, trafficking victims found in the United States are still too often treated like criminals by those charged with protecting them. Victims are charged for immigration-related offenses, deported at the borders for attempting to enter with documents traffickers have foisted upon them, arrested and detained by the Department of Homeland Security (DHS), and prosecuted by Department of Justice (DOJ) attorneys. DHS inspection officers fail to observe that they are questioning victims of human trafficking, even when clear signals are given by victims in fear of their lives. Victims are held in detention for months and sometimes years by the DHS at considerable taxpayer expense, and judges are unclear why trafficking is a human rights offense tantamount to slavery. In short, government personnel charged with protecting victims of human trafficking and prosecuting their traffickers, particularly outside of task forces headquartered in Washington, D.C., have little or no understanding of the obligations the nation undertook in passing the TVPA and, in consequence, U.S. personnel are working contrary to the purposes of the Act.

The article suggests where procedurally and as a matter of policy, the government has gone wrong, employing a case study as a device to point to the particular problems of trafficking victims in accessing the law. It presents the approach the United States has taken to combating human trafficking and details the meta-problems that continue to undermine its effectiveness. It sets forth the ways in which the root causes of trafficking have been obscured, in service to a preferred focus on sex and victimhood. It reviews the misapplication of the law both by those tasked to interpret it, and by politicians who have tacked their own political agendas onto anti-trafficking initiatives, leading the nation away from a hardnosed and honest look at the problems of causation in trafficking, and discussed the distortions that result from the issue conflation. The article presents an alternate view of trafficking, which involves reframing the trafficking issue through the lens of migration, and which would require U.S. government personnel to approach trafficking with the understanding that being victimized by traffickers and yet still demonstrating personal agency are not only not mutually exclusive, but tantamount to surviving the crime.

Keywords: immigration, human rights, human trafficking, international law, migration