Lawyers must step up to combat human trafficking

By Licha Nyiendo, Chief Legal Officer

Human trafficking, or modern-day slavery, is abhorrent and takes many insidious forms. It is a crime where traffickers exploit through force, fraud or coercion adults or children to perform labor or commercial sex acts for financial gain. When sex acts involve children, coercion is not required for this to be criminal.

Human trafficking around the world generates through labor and sexual exploitation an estimated 9.5 billion dollars a year in revenue.  The United Nations agency in charge of promoting humane migration estimates that 50 million people are living in modern slavery, ranging from situations involving forced labor, to commercial sex slavery, to forced marriage.

This is nearly one out of every 150 people worldwide.  Over half of these situations involve forced labor, with these incidents growing by a significant 2.7 million from 2016 to the present. Twelve percent of all forced labor is performed by children, and the majority of that involves commercial sexual exploitation.

Modern-day slavery affects every industry and every country.  The U.S. Department of Justice estimates that 14,500 to 17,500 foreign nationals are trafficked into the United States every year.  U.S. citizens are far from immune; DOJ estimates that 200,000 American children are at risk for trafficking into the sex industry.

We recognize January’s Human Trafficking Prevention Month because the response to these alarming statistics must be forceful.  But, in sharp contrast to the problem, the response has been tepid.  To end human trafficking, lawyers must step up and change that.

The main domestic legal tool for fighting human trafficking, the Trafficking Victims Protection Act (TVPA), has the potential to be powerful but is woefully underutilized. The TVPA was signed into law in 2000, and has been amended multiple times to strengthen protections for survivors and expand liability for offenders.  When it was first enacted, the TVPA only established criminal penalties for human trafficking. In 2003, when Congress reauthorized the statute, they added a civil cause of action for trafficking survivors, which allows them to sue their traffickers for monetary damages.

Later, “venture” liability was added to the statute to punish those who benefit from human trafficking ventures. Today, principal perpetrators can be held liable, as well as associates who knowingly benefit and participate in unlawful schemes. Survivors may seek compensatory damages, reasonable attorneys’ fees, and punitive damages.

In the TVPA, Congress recognized that modern day slavery takes many forms, not solely the traditional buying or selling of a human being.  The law makes unlawful obtaining labor by means of force and other related coercive means, including threats; abuse of the legal process; and sex trafficking.  Forced marriage, depending on the case, can fall under forced labor or commercial sex slavery or both.

Congress also addressed the issue of liability for Americans or those who have sufficient minimum contacts with the United States but engage in trafficking overseas.  The TVPA gives courts extra-territorial jurisdiction over any offense where the trafficker is a U.S. national; a green card holder; or is “present” in the United States, irrespective of nationality.

States are also working to halt trafficking. Every state and the District of Columbia has criminalized trafficking through some version of the TVPA; and 34 states have enacted civil remedies for survivors.

Although the civil remedy in the TVPA has been the law for more than twenty years, the number of TVPA cases brought by plaintiffs remains relatively modest, particularly in light of the overwhelming scope of the problem.  From 2003 to late December 2022, plaintiffs only brought 678 cases in federal court. In 2022, 139 TVPA civil cases were filed, up from 78 cases the prior year.  This increase is encouraging but it does not begin to scratch the surface of the number of people living in modern slavery in the United States.

Although monetary judgments and publicly available civil settlements under the TVPA amount to a total of nearly $298 million, this is negligible for a multi-billion-dollar global industry that exploits human beings for pecuniary gain. For example, experts estimate that nearly $144 billion worth of goods made by forced labor enter the U.S. market every year.

One of the main roadblocks plaintiffs face in bringing civil cases is obtaining affordable legal representation to navigate the court system.  This is where pro bono counsel can make a difference.  Although not required by any state’s bar, attorneys are strongly encouraged to provide at least 50 hours of pro bono legal services per year to indigent clients or charitable organizations. Trafficking cases can be complex and lengthy, so attorney representation can make the difference in the lives of plaintiffs and their cases’ chances of success.

Civil litigation is meaningful for survivors of human trafficking, many of whom have faced horrific conditions, because it can bring a measure of justice. This is particularly important when criminal prosecution is not viable due to the higher standard of proof in criminal cases, or where prosecutors otherwise decline to bring charges.

Civil litigation can hold traffickers accountable, destroy the systems that further exploitation, and deter others from illegal conduct. Through the discovery process, plaintiffs can expose information about trafficking networks and culpable actors, unravelling the secondary and tertiary networks that prop up traffickers. In addition to aiding some of the most vulnerable people in our society, another motivator for attorneys to take on a pro bono case is the possibility to recoup attorneys’ fees at the conclusion of the case through judgments or settlements.

The TVPA is a powerful tool to combat human trafficking. As we recognize Human Trafficking Prevention Month, attorneys must engage on this important issue by donating their time and resources to represent those who have been targeted or survived this terrible crime.  The TVPA only has power if survivors are able to access it, and we will only end human trafficking when it is made too painful for perpetrators to profit from it.