Abstract
All fifty states and the federal government have passed laws to combat human trafficking, but we know little about their effectiveness. Using data from investigative case records and court files for 140 human trafficking cases in 12 U.S. counties and qualitative interviews with law enforcement, prosecutors, and victim service providers, we examined the characteristics of and challenges to investigation and prosecution of human trafficking cases under new state and federal laws. We found that few human trafficking cases are identified by local law enforcement, most cases forwarded to state prosecution are sex trafficking cases involving U.S. citizens, and state prosecutors overwhelmingly charge human trafficking offenders with other, lesser crimes. The legal, institutional, and attitudinal challenges that constrain prosecution of human trafficking are similar across study sites despite varying types of state antitrafficking legislation. Study results suggest prosecution of human trafficking cases is challenging. If new laws are to be effective, then local law enforcement and prosecutors should work collaboratively and adopt proactive human trafficking investigative strategies to identify both labor and sex trafficking cases. There is social benefit to holding traffickers accountable, but more emphasis should be placed on policies that identify and serve victims.
Similar content being viewed by others
Notes
The TVPA defines severe forms of trafficking persons as “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery” (TVPA, 2000: Section 103, 8a and b). This definition does not require the physical transportation of a victim from one location to another.
The two victims in the case were mentally disabled men psychologically coerced to work 7 days a week, up to 17 hours a day, on a farm for little to no pay and live in isolated and squalid conditions.
Although the federal law states “force, fraud, or coercion,” some federal prosecutors either believed they needed to prove all three elements or declined cases that did not demonstrate all three elements because they felt the cases were stronger and potentially more likely to be protected if appealed.
Cases were identified based on publicly available information from news reports, data from a national survey of law enforcement agencies about the identification of human trafficking cases [11], and data from the Federal Justice Statistics Research Center on federal prosecutions for human trafficking offenses.
Of the 12 study counties, 2 were located in the West, 2 in the South, 2 in the Northeast, and 6 in the Midwest.
Seventy-two interviews were with local law enforcement, 14 with state or county prosecutors, 18 with federal law enforcement (primarily Federal Bureau of Investigation or Immigration and Customs Enforcement agents), 15 with federal prosecutors, 40 with victim service providers, and 7 with other court officials, legislators, or community stakeholders.
Codes were developed through a multiphase coding conference process. We developed a list of preliminary codes based on the research questions and reviews of existing literature. Research team members then independently coded three interviews (one law enforcement, one victim service provider and one prosecutor) using the preliminary code structure. New codes were added by each team member as they emerged from the review of the interview text. A series of coding conferences was held where research team members compared the coding of each segment of text and made final determinations of how existing codes would be used. New codes were added to the coding list as they emerged from independent reviews of interview text.
Two researchers independently reviewed each case recorded and coded for the existence of human trafficking indicators. Coding was then compared between reviewers, and inconsistencies were discussed before a final coding determination was made.
For the purposes of analyses, primary offense types were grouped in similar offense categories.
The White Slave Act (commonly known as the Mann Act, 1986) made it a federal felony to transport women or girls in interstate commerce for the purpose of prostitution. Under TVPA, transportation is no longer an element of the crime of “trafficking.”
As noted, Crawford v. Washington (541 U.S. 36) established that use statements to the police without the ability of the accuser to be cross-examined violated the Confrontation Clause of the Sixth Amendment, and amounted to hearsay.
States with Safe Harbor laws include Connecticut, Florida, Illinois, Massachusetts, Minnesota, New Jersey, New York, Ohio, Tennessee, Vermont, and Washington [52].
The TVPA distinguishes between trafficking victims and victims of severe forms of trafficking. Only cases with force, fraud, or coercion are considered to be severe forms of human trafficking and eligible for federal prosecution.
Seven states now allow human trafficking victims to have their criminal records vacated after being classified as a human trafficking victim, but this requires the transformation of offender to victim to have already occurred. States that provide remedies to vacate criminal convictions include Hawaii, Illinois, Maryland, Nevada, New York, Vermont, and Washington [52].
References
Albonetti, C. (1986). Criminality, prosecutorial screening and uncertainty: toward a theory of discretionary decision making in felony case processings. Criminology, 24, 623–644.
Albonetti, C. (1987). Prosecutorial discretion: the effects of uncertainty. Law & Society Review, 21, 291–313.
Beichner, D., & Spohn, C. (2005). Prosecutorial charging decisions in sexual assault cases: examining the impact of a specialized prosecution unit. Criminal Justice Policy Review, 16, 461–498.
Bittner, E. (1980). Aspects of police work. Boston: Northeastern University Press.
Buzawa, E., & Buzawa, C. (2002). Domestic violence: The criminal justice response. Thousand Oaks: Sage.
Crank, J., & Langworthy, R. (1992). An institutional perspective on policing. Journal of Criminal Law and Criminology, 83, 338–363.
Clawson, H., & Dutch, N. (2008). Addressing the needs of victims of human trafficking challenges, barriers, and promising practices. Washington, DC: ICF International.
Clawson, H., Dutch, N., Lopez, S., & Tiapula, S. (2008). Prosecuting human trafficking cases: Lessons learned and promising practices. Washington, DC: ICF International.
Edelman, L. (1990). Legal environments and organizational governance: the expansion of due process in the American workplace. American Journal of Sociology, 95, 1401–1440.
Edelman, L. (1992). Legal ambiguity and symbolic structures: organizational mediation of civil rights law. American Journal of Sociology, 97, 1531–1576.
Farrell, A., McDevitt, J., & Fahy, S. (2008). Final report: understanding and improving local law enforcement response to human trafficking. NCJ-222752. United States Department of Justice, National Institute of Justice, Washington, DC.
Farrell, A., McDevitt, J., & Fahy, S. (2010). Where are all the victims? Understanding the determinants of official identification of human trafficking incidents. Criminology & Public Policy, 9, 201–233.
Farrell, A., McDevitt, J., Pfeffer, R., Fahy, S., Owens, C., Dank, M., et al. (2012). Identifying challenges to improve the investigation and prosecution of state and local human trafficking cases. NCJ 238795. Submitted to National Institute of Justice, Washington, DC.
Ferraro, K. (1989). Policing women battering. Social Problems, 36, 61–74.
Frohmann, L. (1991). Discrediting victims’ allegations of sexual assault: prosecutorial accounts of case rejections. Social Problems, 38, 213–226.
Frohmann, L. (1997). Convictability and discordant locales: reproducing race, class and gender ideologies in prosecutorial decision-making. Law &Society Review, 31, 531–555.
Gerwirtz, A., Weidner, R. R., Miller, H., & Zehm, K. (2006). Domestic violence cases involving children: effects of an evidence-based prosecution approach. Violence and Victims, 21, 213–229.
Goodman, J. L., & Leidholt, D. (2011). Lawyers manual on human trafficking: Pursuing justice for victims. New York: Appellate Division, First Department, Supreme Court of the State of New York and the New York State Judicial Committee on Women in the Courts.
Goździak, E., & Bump, M. (2008). Data and resources on human trafficking: Bibliography of research based literature. Washington, DC: Institute for the Study of International Migration, Walsh School of Foreign Service, Georgetown University.
Grattet, R., & Jenness, V. (2001). The birth and maturation of hate crime policy in the United States. American Behavioral Scientist, 45, 668–696.
Grattet, R., & Jenness, V. (2005). The reconstitution of law in local settings: agency discretion, ambiguity, and a surplus of law in the policing of hate crime. Law &Society Review, 39, 893–942.
Grona-Robb, B. (2010). Prosecuting human traffickers. The Prosecutor, 40 (September–October). Retrieved from http://www.tdcaa.com/node/7370http://www.tdcaa.com/node/7370. December 2012.
Hawkins, D. (1981). Causal attribution and punishment for crime. Deviant Behavior, 1, 207–230.
Hossain, M., Zimmerman, C., Abas, M., Light, M., & Watts, C. (2010). The relationship of trauma to mental disorders among trafficked and sexually exploited girls and women. American Journal of Public Health, 100, 2442–2449.
International Labour Organization. (2012). ILO 2012 Global Estimate of Forced Labour. Geneva: Author.
Jacoby, J. (1976). The prosecutor’s charging decision: A policy perspective. Washington, DC: U.S. Department of Justice, National Institute of Law Enforcement and Criminal Justice.
Jacoby, J. (1980). The American prosecutor: A search for identity. Toronto: Heath.
Jacoby, J., Mellon, L., Ratledge, E., & Turner, S. (1982). Prosecutorial decision-making: A national study. Washington, DC: U.S. Department of Justice.
Jenness, V., & Grattet, R. (2005). The law-in-between: the effects of organizational perviousness on the policing of hate crimes. Social Problems, 52, 337–359.
Kerstetter, W. (1990). Gateway to justice: police and prosecutorial response to sexual assaults against women. Journal of Criminal Law and Criminology, 81, 267–313.
LaFave, W. R. (1965). Arrest: The decision to take a suspect into custody. Boston: Little, Brown.
LaFree, G. (1980). Variables affecting guilty pleas and convictions in rape cases: toward a social theory of rape processing. Social Forces, 58:833–850.
LaFree, G. (1981). Official reactions to social problems: police decisions in sexual assault cases. Social Problems, 28, 582–594.
LaFree, G. (1989). Rape and criminal justice: The social construction of sexual assault. Belmont: Wadsworth.
Lipsky, M. (1980). Street-level bureaucracy: Dilemmas of the individual in public service. New York: Russell Sage.
Manning, P. K. (1997). Police work: The social organization of policing. Long Grove: Waveland Press.
McCahil, T., Meyer, L., & Fischman, A. (1979). The aftermath of rape. Lexington: Lexington Books.
McDonald, W. (2004). Trafficking counts, symbols and agendas: a critique of the campaign against trafficking in human beings. International Review of Victimology, 11, 143–176.
Markon, J. (2007). Human trafficking evokes outrage, little evidence: U.S. estimates thousands of victims but efforts to find them fall short. Washington Post. September 23.
McPhail, B., & Jenness, V. (2005). To charge or not to charge?—that is the question: the pursuit of strategic advantage in prosecutorial decision-making surrounding hate crime. Journal of Hate Studies, 4, 89–119.
Mellon, L., Jacoby, J., & Brewer, M. (1981). The prosecutor constrained by his environment: a new look at discretionary justice in the United States. Journal of Criminal Law and Criminology, 12, 52–81.
Messing, J. T. (2010). Evidence-based prosecution of intimate partner violence in the post-Crawford era: a single-city study of the factors leading to prosecution. Crime & Delinquency, e-pub online before print.
Miller, F. (1969). Prosecution: The decision to charge a suspect with a crime. Boston: Little, Brown.
Miller, N. (2001). Stalking laws and implementation practices: A national review for policymakers and practitioners. Alexandria: Institute for Law and Justice.
National Association of Attorneys Generals (NAAG). (2001). Best practices in human trafficking law. NAA Gazette. Accessed from: http://www.naag.org/best-practices-in-human-trafficking-law.php. December 2012.
National Association of Attorneys Generals (NAAG). (2012). A resolution in support of the principles embodied within the NAAG 2012 Presidential Initiative on Human Trafficking. Retrieved August 1, 2012 from http://www.naag.org/assets/files/pdf/resolution.201203.Human_Trafficking.pdf
National District Attorneys Association (NDAA) (2011). Human Trafficking Statutes. Retrieved December 1, 2012 from http://www.ndaa.org/pdf/Human%20Trafficking%20Chart.pdf.
National District Attorneys Association (NDAA). (2012). Civil remedies for human trafficking victims. Retrieved December 1, 2012 from http://www.ndaa.org/pdf/Civil%20Remedies%20for%20Human%20Trafficking%20Victims-jan2012.pdf
Newton, P., Mulcahy, T., & Martin, S. (2008). Finding victims of human trafficking. Bethesda: National Opinion Research Center.
Nolan, J., & Akiyama, Y. (1999). An analysis of the factors that affect law enforcement participation in hate crime reporting. Journal of Contemporary Criminal Justice, 15, 111–127.
Polaris Project. (2006). Top 15 problem areas in state bills on trafficking in persons. Washington, DC: Polaris Project. Retrieved from http://www.polarisproject.org/storage/documents/policy_documents/Top%2015%20Problem%20Areas%20in%20State%20Bills%20on%20Trafficking.pdf.
Polaris Project. (2012). Majority of states passing laws to actively combat trafficking, press release. Washington, DC: Author.
Pressman, J., & Wildavsky, A. (1979). Implementation: How great expectations in Washington are dashed in Oakland. Berkeley: University of California Press.
Sadruddin, H., Walter, N., & Hidalgo, J. (2005). Human trafficking in the United States: expanding victim protection beyond prosecution witnesses. Stanford Law &Policy Review, 16, 379–416.
Schmidt, J., & Steury, E. H. (1989). Prosecutorial discretion in filing charges in domestic violence cases. Criminology, 27, 487–510.
Spears, J. W., & Spohn, C. (1997). The effect of evidence factors and victim characteristics on prosecutors’ charging decisions in sexual assault cases. Justice Quarterly, 14, 501–524.
Spohn, C., Gruhl, J., & Welch, S. (1987). The impact of the ethnicity and gender of defendants on the decision to reject or dismiss felony charges. Criminology, 25, 175–191.
Stanko, E. (1982). The impact of victim assessment on prosecutor’s screening decisions: the case of the New York County District Attorney’s Office. Law & Society Review, 16, 225–240.
Steffensmeier, D., Ulmer, J., & Kramer, J. (1998). The interactions of race, gender and age in criminal sentencing: the punishment cost of being young, Black and male. Criminology, 36, 763–798.
U.S. Department of State. (2012). Trafficking in persons report. Washington, DC: Author.
Victims of Trafficking and Violence Prevention Act of 2000. PL 106–386, Statutes at Large 114 (2000 1470.
Weitzer, R. (2007). The social construction of sex trafficking: ideology and institutionalization of a moral crusade. Politics & Society, 35, 447–475.
Weitzer, R. (2012). Sex trafficking and the sex industry: the need for evidence-based theory and legislation. Journal of Criminal Law and Criminology, 101, 1337–1370.
Zimmerman, C., Hossain, M., Yun, K., Gajadziev, V., Guzun, N., Tchomarova, M., et al. (2008). The health of trafficked women: a survey of women entering post trafficking services in Europe. American Journal of Public Health, 98, 55–59.
Court Cases Cited
Crawford v. Washington, 541 U.S. 36 (2004).
United States v. Kozminski, 487 U.S. 931 (1988).
Statutes Cited
18 U.S. Code §1590, Trafficking with respect to peonage, slavery, involuntary servitude, or forced labor.
18 U.S. Code §1591, Sex trafficking of children or by force, fraud, or coercion.
Florida HB 7049, Human trafficking (2012).
Mann Act, 18 USC §2421, Transportation generally (1910, amended 1978 and 1986).
Texas HB 4009, An Act relating to the establishment of a victim assistance program to provide services to domestic victims of trafficking (2009).
Washington SB 5482, 62nd legislative session. Authorizing existing funding to house victims of human trafficking and their families (2011).
Acknowledgment
Funding for this project was supported by Award No. 2009-IJ-CX-0015 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice. We wish to acknowledge Rebecca Pfeffer, Meredith Dank, and William Adams who assisted with the collection of data and production of the final report from which this article was inspired. We thank the Northeastern University, School of Criminology and Criminal Justice writing group for providing helpful feedback on an early version of this article. Additionally we are grateful to anonymous reviewers who provided detailed comment on the article and to William McDonald for his detailed edits and thoughtful suggestions for improving our discussion of the study findings
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Farrell, A., Owens, C. & McDevitt, J. New laws but few cases: understanding the challenges to the investigation and prosecution of human trafficking cases. Crime Law Soc Change 61, 139–168 (2014). https://doi.org/10.1007/s10611-013-9442-1
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10611-013-9442-1