Modern prohibitions of human trafficking in the United States have their roots in the 13th Amendment to the U.S. Constitution, which barred slavery and involuntary servitude in 1865. Prior to 2000, the Department of Justice (DOJ) filed human trafficking cases under several federal statutes related to involuntary servitude and slavery, but the criminal laws were narrow and patchwork. In the last two decades, Congress has passed a number of comprehensive bills designed to bring the full power and attention of the federal government to the fight against human trafficking. Below are brief summaries of some of the most significant legislation in this area.
The Trafficking Victims Protection Act of 2000 (TVPA), Pub. L. No. 106- 386, in 2000, equipped the U.S. Government with new tools and resources to mount a comprehensive and coordinated campaign to eliminate modern forms of slavery domestically and internationally.
Critically, the TVPA established the framework for the “3 P’s” of the fight against human trafficking: protection, prevention, and prosecution.
The TVPA provided increased protections for trafficking victims in the United States in several key ways:
- By making foreign victims eligible for federally funded or administered health and other benefits and services and by requiring federal agencies to expand the provision of such benefits and services to victims, regardless of their immigration status;
- By creating immigration protections for foreign national victims of human trafficking, including protection from removal for victims of trafficking (the T visa) and victims of certain crimes (the U visa); and
- By allowing certain nonimmigrant status holders the opportunity to adjust to permanent resident status.
The TVPA strengthened the U.S. Government’s prevention efforts by
- Providing for international initiatives to be established and carried out to improve economic opportunity for potential victims as a means of deterring trafficking.
- Creating the Office to Monitor and Combat Trafficking in Persons in the State Department, making that office responsible for publishing an annual Trafficking In Persons (TIP) report that describes and ranks the efforts of countries to combat human trafficking. The TIP Report is the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking.
- Requiring the President to establish an Interagency Task Force to Monitor and Combat Trafficking (PITF), a coordinating task force comprising cabinet-level officers chaired by the Secretary of State, and directed it to carry out activities that included measuring and evaluating the progress of the United States and other countries in preventing human trafficking, protecting its victims, and prosecuting its perpetrators.
The TVPA sharpened and enhanced the capacity of federal prosecutors to bring human traffickers to justice for their crimes by:
- Adding new criminal provisions prohibiting forced labor, trafficking with respect to peonage, slavery, involuntary servitude, or forced labor, and sex trafficking of children or by force, fraud, or coercion;
- Criminalizing attempts to engage in these activities; Mandating that traffickers pay restitution to their victims, and providing for forfeiture;
- Strengthening penalties for existing trafficking crimes
The Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), Pub. L. No. 108-193, refined federal criminal provisions against trafficking, to include adding human trafficking crimes as a Racketeer Influenced and Corrupt Organizations Act (RICO) predicate, and created a civil remedy enabling trafficking victims to file lawsuits against their traffickers in federal district court.
The TVPRA 2003 also established a Senior Policy Operating Group (SPOG) within the executive branch, to “coordinate activities of Federal departments and agencies regarding policies (including grants and grant policies) involving the international trafficking in persons and the implementation of” the TVPA. The SPOG consists of the senior officials from the agencies that work to address TIP, and is chaired by the Director of the Office to Monitor and Combat Trafficking Persons (TIP Office) of the Department of State (DOS).
In addition, the TVPRA 2003 mandated an annual report from the Attorney General to the U.S. Congress regarding U.S. governmental efforts to implement the TVPA.
Among other things, the Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005), Pub. L. No. 109-164, provided extraterritorial jurisdiction over trafficking offenses committed overseas by persons employed by or accompanying the federal government.
The statute established a grant program for states, Indian tribes, local governments, and nongovernmental organizations (NGOs) to develop, expand, and strengthen assistance for trafficking victims and directed the Department of Health and Human Services to establish and implement a pilot program to provide benefits and services for juvenile trafficking victims.
The TVPRA 2005 also established a grant program for state and local law enforcement agencies to combat trafficking. In addition, the TVPRA 2005 expanded the reporting requirements of the TVPRA 2003.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. No. 110-457, featured new measures to prevent and deter trafficking. The TVPRA 2008 further improved the tools available to hold traffickers accountable by:
- Creating new crimes that impose appropriately serious penalties on those who obstruct or attempt to obstruct the investigation and prosecution of trafficking crimes;
- Permitting prosecution of sex traffickers who recklessly disregard the fact that force, fraud, or coercion would be used against the victim;
With respect to prevention and protection, the TVPRA 2008 directed the government to provide information about workers’ rights to all people applying for work and education-based visas. The TVPRA 2008 expanded the protections available with the T visa, and required that all unaccompanied alien children be screened as potential victims of human trafficking.
- Eliminating the requirement to prove the defendant knew a sex trafficking victim was a minor in cases where the defendant had a reasonable opportunity to observe the minor;
- Expanding the crime of forced labor by providing that “force” includes the abuse or threatened abuse of legal process;
- Imposing criminal liability on those who, knowingly and with intent to defraud, recruit workers from outside the United States for employment within the United States by making materially false or fraudulent representations;
- Increasing the penalty for conspiring to commit trafficking-related crimes;
- Penalizing those who knowingly benefit financially from participating in a venture that engaged in trafficking crimes.
The Trafficking Victims Protection Reauthorization Act of 2013 (TVPRA 2013), Pub. L. No. 113-4, focused in part on the elimination of human trafficking from the supply chain of goods. This legislation required the Director of the DOS TIP Office—working with other DOS officials, DOL officials, and other U.S. governmental officials—to build partnerships between the U.S. Government and private entities to ensure that U.S. citizens do not use items, products, or materials produced or extracted with the use and labor of trafficking victims and that those entities do not contribute to trafficking in persons involving sexual exploitation.
The TVPRA 2013 also:
- Strengthened the minimum standards for the elimination of trafficking used by DOS to describe the antitrafficking efforts of U.S. and foreign governments in its annual TIP Report;
- Amended the Racketeer Influenced and Corrupt Organization (RICO) Act to include labor contract fraud; Amended the federal criminal code to (1) subject U.S. citizens or permanent resident aliens who reside overseas and engage in illicit sexual conduct with a person under 18 years of age to a fine or imprisonment or both; and (2) subject a person who knowingly destroys, conceals, removes, confiscates, or possesses certain immigration documents to a fine or imprisonment or both
- Extended the statute of limitations for a person to bring a civil action for an injury received while the person was a minor that was caused by certain sex- or forced labor-related violations of federal criminal law; and added reporting requirements for the Attorney General’s human trafficking report.
The Justice for Victims of Trafficking Act of 2015 (JVTA), Pub. L. No. 114-22, again gave the Department more tools to address human trafficking, by:
- Adding “patronizes” and “solicits” to 18 U.S.C. § 1591(a) to facilitate prosecution of customers of sex trafficking victims. Adding “advertises” to the modes of commission of an offense under 18 U.S.C. § 1591 when there is proof that the defendant knew the victim being advertised was a minor or that force, fraud, or coercion would be used;
- Clarifying that there is no need to prove either that the defendant knew, or that he recklessly disregarded, the fact that a sex trafficking victim was a minor if the defendant had a reasonable opportunity to observe the victim;
- Amending 18 U.S.C. § 1594 to direct any assets forfeited in a human trafficking case to be used to satisfy a victim restitution order. It further allows forfeiture of, for example, any asset that is involved in, or is traceable to the proceeds of, human trafficking;
- Adding the production of child pornography to the definition of “illicit sexual conduct” as used in 18 U.S.C. § 2423, which prohibits transportation and travel-conduct involving illegal sexual activity with children. See 18 U.S.C. § 2423(f);
- Creating a mandatory $5,000 special assessment that applies to non-indigent defendants for each count of conviction of certain offenses, including offenses set forth in Chapter 77 and Chapter 110. The revenue generated from this special assessment shall be used to support programs to provide services to victims of human trafficking and other offenses; and
- Directing the Attorney General to create and maintain a National Strategy to Combat Human Trafficking.
The Trafficking Victims Protection Act of 2017, Pub. L. No. 115-393, provided additional funding and mandates to support victims of trafficking, and to increase transparency of the federal government’s anti-trafficking work, including:
- Requiring the Attorney General to issue a human trafficking victim screening protocol for use in all federal anti-trafficking law enforcement operations, and, in consultation with the Department of Health and Human Services, to identify and disseminate tools and recommended practices for the screening of HT victims;
- Directing DOJ to submit a report to Congress on the efforts by the National Institute of Justice to develop methodology to assess prevalence of human trafficking in the United States;
- Mandating the U.S. Advisory Council to review federal government policies and programs and file its findings annually in a report to Congress;
- Adding 18 U.S.C. §1595A, which allows the AG to bring a civil injunction to enjoin any act under Chapter 77, Chapter 110, or 117.
The Trafficking Victims Protection Act of 2017, Pub. L. No. 115-427, added provisions focused on increasing the federal government’s ability to effectively assess foreign government compliance with TVPA minimum standards; and encouraging increased collaboration between government and private industry in efforts to prevent and combat human trafficking.
The Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018, Pub. L. No. 115-425, among other things, increased the federal government’s focus on addressing forced labor, including by:
- Amending the 18 U.S.C. 1375c to include prevention and prohibition of labor trafficking in diplomatic households
- Increased reporting obligations regarding the prohibition of goods produced through forced labor
The Act also required the SPOG to establish a working group focused on demand reduction, and amended the Child Soldiers Prevention Act to include “police or other security forces.”