Consent: A Loophole in Human Trafficking Law

 

By: Brittany Barnett, L’19

 

The United Nations defines human trafficking as having three elements: an act, a means, and a purpose:

 

“(i) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (ii) a ‘means’ by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and (iii) a “purpose” (of the action): namely, exploitation.” [1]

 

In order for an adult to qualify as a victim of human trafficking all three elements must be present. In contrast, identification of children trafficking victims only requires an act and purpose. For children, the means of trafficking are considered irrelevant[2] because a child is considered unable to consent to activities that amount to exploitation.[3] In the United States, labor, marriage, sexual intercourse with an adult, prostitution and pornography are all activities that an adult could engage in willingly, while performance of any of these activities by a child under certain age limits, even if willingly, would automatically amount to exploitation. This special distinction made for children implies that consent by an adult victim during any stage of the trafficking process may create a loophole defense for a trafficker by negating the requirement of force, fraud, or coercion. Because of this distinction the current definition of human trafficking can fail to “capture…more subtle means of control.”[4]

 

Human trafficking varies amongst individuals because traffickers use different methods to exploit the specific vulnerabilities of their victims.[5] A trafficker can take into account the conditions within the victim’s home country and/or within the country the victim is trafficked in; the financial or social resources available to the victim; the victim’s gender, age, educational background; physical, emotional or mental vulnerabilities the victim may have; the trafficker’s own network and resources; or the type of exploitation intended.[6] When countries fail to recognize more subtle means of control, it becomes difficult to shoehorn a victim’s circumstances into the legal definition of human trafficking, which may prevent a government from recognizing the activity as human trafficking and make immigration or judicial relief unavailable to a victim.[7]

 

For example, it has become almost universally accepted that child marriage and forced or fraudulent marriages can be a form of exploitation akin to sexual servitude. In these cases, marriage fulfills the “purpose” of human trafficking and the force or fraud of the marriage fulfills the “means” requirement for adults.[8] Narrow readings of the definition of human trafficking that recognize marriage only as an “exploitive purpose” rather a “means of control” ignore the fact that marriage can create power disparities such as fear of domestic violence, fear of separation from mutual children, lack of independent financial resources, or loss of immigration status when a victim’s legal status depends upon their connection to their spouse. There is currently no legally recognized “means” of exploitation when an adult victim willingly enters a marriage and is later exploited by their spouse, because a person who has consented to a marriage has not been forced, defrauded or coerced into the marriage. The logic of consent in human trafficking is akin to victim-blaming in rape culture: by putting oneself in a potentially vulnerable situation, the victim, rather than the trafficker, is responsible for the vulnerability and a loophole is created for the trafficker. It is extremely difficult to prove that a person in this type of situation is being trafficked because it looks more like a domestic abuse issue.

 

The U.S. government recognizes that marriage can create a power disparity and be used as a form of control in domestic abuse situations.[9] Under The Violence Against Women Act (VAWA), enacted in 2000, Congress allows immigrants who are battered spouses of U.S. citizens and legal permanent residents to qualify for their own independent immigration status so that they are not forced to remain married to and living with their abusers. On January 19, 2017 (17 years after VAWA was enacted), Congress extended this immigration relief to spouses of H-2B visa holders in a limited form by allowing abused spouses to apply for employment authorization so that they are not as dependent upon an abusive spouse and could potentially live separately or even seek a divorce without fear of deportation.[10] VAWA relief is not available if the abusive spouse does not hold one of these three types of immigration status. Additionally, VAWA requires that the abused spouse be of “good moral character”, which can be disproven by any police record the victim may have, even if the illegal activity is a result of the exploitation.

 

In summary, the means of trafficking affects how countries consider issues of consent.[11] The wide range of possible means for a trafficker to control a victim makes it difficult to pin down a one-size-fits-all definition to identify human trafficking. For this reason, human trafficking laws will be most effective if they are flexible and can be tailored to the circumstances of the individual trafficked and can be considered on a case-by-case basis.

 

[1] U.N. Office on Drugs & Crime, The Role of ‘Consent’ in the Trafficking in Persons Protocol 5 (2014), https://www.unodc.org/documents/human-trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf (hereinafter UNODC Paper).

[2] Id. at 7.

[3] Id. at 8.

[4] Id. at 6.

[5] U.S. Dep’t Homeland Sec., What Is Human Trafficking?, https://www.dhs.gov/blue-campaign/what-human-trafficking (hereinafter, DHS, What is Human Trafficking?).

[6] Id.

[7] UNODC Paper, at 5 (“…to characterize certain conduct as ‘trafficking has significant and wide-ranging consequences for the alleged perpetrators of that conduct, and for the alleged victims…too wide a definition may encompass practices that do not meet the high seriousness threshold expected of ‘trafficking’…too narrow a definition may impede investigation, prosecutions and convictions.”).

[8] Majority of Trafficking Victims Are Women and Girls; One-Third Children – New UN Report, UN News Centre (Dec. 21, 2016), http://www.un.org/apps/news/story.asp?NewsID=55852#.Wf-rv4ZryHo.

[9] Leslye E. Orloff & Brittnay Roberts, Good Faith Marriage in VAWA Self-Petitioning Cases 1, National Immigrant Women’s Advocacy Project (February 17, 2013), http://library.niwap.org/wp-content/uploads/2015/Immigration-Law-and-VAWA-Good-faith-marriage-2.17.13.pdf.

[10] Ela Dutt, H4 Visa Holders Who Are Victims of Domestic Abuse Can Get EAD, Rules USCIS, News India Times (Feb. 22, 2017), http://www.newsindiatimes.com/immigrant-domestic-violence-survivors-allowed-to-work.

[11] UNODC Paper, at 10.

css.php