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New laws but few cases: understanding the challenges to the investigation and prosecution of human trafficking cases

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.

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Fig. 1

Notes

  1. 1.

    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.

  2. 2.

    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.

  3. 3.

    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.

  4. 4.

    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.

  5. 5.

    Of the 12 study counties, 2 were located in the West, 2 in the South, 2 in the Northeast, and 6 in the Midwest.

  6. 6.

    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.

  7. 7.

    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.

  8. 8.

    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.

  9. 9.

    For the purposes of analyses, primary offense types were grouped in similar offense categories.

  10. 10.

    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.”

  11. 11.

    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.

  12. 12.

    States with Safe Harbor laws include Connecticut, Florida, Illinois, Massachusetts, Minnesota, New Jersey, New York, Ohio, Tennessee, Vermont, and Washington [52].

  13. 13.

    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.

  14. 14.

    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].

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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

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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

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Keywords

  • Human Trafficking
  • Trafficking Victim
  • Trafficking Case
  • State Prosecutor
  • Labor Trafficking