Human trafficking is a scourge in which perpetrators victimize the most vulnerable and marginalized members of a population to sell their bodies or sell their labor for profit. This Note explores human trafficking in the United States through Disability Critical Race Studies (DisCrit). First, the Note offers background on trafficking and applicable federal law. Not only does trafficking disable people, but people with preexisting disabilities are especially at risk for trafficking. Next, the Note shows that trafficking law follows a law-and-order framework: a framework that prioritizes prosecuting traffickers and doles out penal remedies. This framework and its intimate ties with the criminal justice system is a dual-edged sword. It helps countless survivors yet retraumatizes some marginalized survivors. Finally, the Note introduces DisCrit, justifies its use for anti-trafficking advocacy, and applies the DisCrit framework. By looking at trafficking law through DisCrit, one sees that trafficking law must work with—not against—survivors to end human suffering.
Born with a fetal alcohol spectrum disorder, Jane1 had faced adversity since birth.2 By the young age of sixteen, Jane had been sexually exploited by nearly thirty men, after a tumultuous early childhood.3 Yet she failed to fit the public’s notion of a trafficking survivor:4 a white woman snatched off the street by a stranger, locked in a cage, and sold in a foreign country.5 Jane, a Black girl living in Tennessee, was mainly trafficked by her boyfriend in Nashville.6 Instead of locking her in a cage, Jane’s trafficker cajoled and controlled her with cocaine.7 He sold her to numerous men, who participated in her abuse.8 Like many survivors, Jane was not “rescued”by law enforcement.9 Rather, with support from people close to her, she rebuilt her life after escaping not only her trafficker, but also the clutches of the legal system.10
Jane’s real name is Cyntoia Brown.11 In 2006, at sixteen years old, she was sentenced to life in prison for killing one of the men who sexually abused her,12 out of fear that he planned to kill her.13 Five years later, a PBS documentary brought her case to a national audience.14 After more than a decade behind bars, Ms. Brown walked out of prison in 2019,15 following a social media campaign to free her led by celebrities including Kim Kardashian, Rihanna, and LeBron James.16 Of her story she said, “There’s nothing special about me.”17
In many ways, Cyntoia Brown is right; she is far from special. Though the media attention her case spurred was exceptional, Ms. Brown’s trafficking experience up until she confronted one of her abusers is common.18 Ms. Brown’s cognitive disability stemming from her fetal alcohol spectrum disorder made her a target for traffickers.19 Similarly, her Blackness saddled her with severe repercussions from trafficking, including criminalization.20 Prosecutors painted Ms. Brown as a remorseless criminal, saying that she “cruelly” and “mercilessly” “executed” her trafficker.21 In reality, Cyntoia was a child with cognitive, behavioral, and emotional deficits, leaving her unstable, impulsive, and paranoid.22
Out of the hundreds of thousands of individuals estimated to have been trafficked into the United States over the last two decades,23 many people assume that disabled 24 survivors of color constitute a small cross-section. However, marginalization puts people at higher risk for trafficking.25 For example, Kisha Roberts-Tabb, Human Trafficking, Gender Responsive, and LBGTQ Specialist at Cook County Juvenile Courts, notes that Black children and women are at higher risk for trafficking because of vulnerabilities from systemic racism including familial or community instability, the U.S. “school-to-prison pipeline,” homelessness, or involvement in the foster care system.26 Survivors of color may also be less likely to report their trafficking experiences because of fear of facing racial bias. For example, Black and Latino male victims often fear homophobia, and are often seen as “troublemakers” or criminals instead of as victims of a crime.27 Because of the vulnerability that marginalization causes, most trafficking survivors in the United States are people of color (POC).28 People with disabilities are similarly overrepresented in survivor populations.29 Unfortunately, racism and ableism have long pervaded anti-trafficking movements.30 And laws ignore the unique plight of disabled survivors of color, offering them few provisions.31 In a cruel twist, the criminal justice system sometimes even labels marginalized survivors as criminals themselves.32 This labeling revictimizes survivors.33
Because trafficking disproportionately harms people of color and people with disabilities, it is imperative that trafficking solutions include their voices. Anti- trafficking efforts predominantly operate under a law-and-order framework.34 Under this framework, anti-trafficking resources are largely directed to law enforcement to increase police monitoring, arrests, and prosecutions of traffickers.35 This framework leaves out marginalized voices. Instead, it often stereotypes and criminalizes survivors.36 And other proposed frameworks, like Feminist Legal Theory (FLT),37 Disability Legal Studies (DLS),38 and Critical Race Theory (CRT),39 miss many of the ways different forms of discrimination interact to oppress survivors. Although these frameworks discuss intersectionality, they primarily focus on singular identities: women, people with disabilities, and Black and Indigenous people of color.40
Recently, Critical Race Theory offshoots like Critical Race Feminism (CRF) have started to offer a more intersectional approach.41 However, these frameworks still neglect to analyze how racism and ableism interact against trafficking survivors. Enter Disability Critical Race Studies (DisCrit). DisCrit is a framework that education scholars developed to support disabled students of color in the special education system in the United States.42 Its founders advocate for “removing the policing and enforcement of normality” and “dissolving barriers that actively dis/able people[.]”43 The founders implore readers to listen to the “special voice” of people who have experienced discrimination.44 The unique contribution of this Note is the application of DisCrit to human trafficking in the United States.
This Note argues that Disability Critical Race Studies can help trafficking survivors achieve justice. Part I initially provides background on trafficking in the United States. Then, it explains trafficking’s disabling effects on survivors and the vulnerabilities of people with preexisting disabilities to trafficking. Part I describes the legal landscape that disabled survivors of color must navigate, concluding with the law-and-order framework that current anti-trafficking responses follow. Part II initially delves into how this framework fails survivors by criminalizing many of them. Then, it explains how other proposed frameworks fail to tell the full, intersectional story of survivorship. Part III introduces DisCrit and Section III.A lays out its seven core tenets. Next, it justifies the application of a DisCrit framework to trafficking, domestic trafficking law, and the anti-trafficking movement in the United States. Lastly, Part III applies DisCrit’s tenets to anti-trafficking work in the United States by presenting a “real utopia”: a world that includes realizable goals for anti-trafficking advocates to move toward. Part III urges advocates to adopt a system where survivors will no longer be systematically disadvantaged by accidents of birth or chance.
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