Trafficking Victims of Color: Failed by the U.S. legal system?

Trafficking Victims of Color: Failed by the U.S. legal system?

Trafficking Victims of Color: Failed by the U.S. legal system?

*All names have been changed to protect anonymity
Emma just wanted to stay sober and after struggling for years with a crippling methamphetamine addiction, she had begun to wean herself off drugs. Despite her attempts at recovery, her boyfriend was unsupportive. He cajoled her with drugs to have sex with other men for money. He controlled how much cash she made, where the couple slept, and even how often Emma talked to her family. Like many people of color, Emma feared discrimination by the police based on her and her friend’s experiences in the past if she reached out. She believed she had no one to turn to for help.

Under the Trafficking Victims Protection Act of 2000 and subsequent reauthorizations, Emma is a sex trafficking victim. This federal law declares that human trafficking occurs when a person uses “force, fraud, or coercion” to compel an adult to perform labor or provide services or sex for profit. Federal law recognizes any child engaging in a commercial sex act as having been trafficked, regardless of circumstances. The U.S. Department of State estimates that there are 14 to 17 thousand victims that are trafficked into the United States every year, and this number excludes the many victims trafficked solely within domestic borders. The U.S. Trafficking in Persons Report for 2021 noted that organizations who received Department of Justice grants and provide victim services reported 9,854 open trafficking client cases from July 1, 2019, to June 30, 3020.

Data from the 2018 National Human Trafficking Hotline, which has handled over 50,000 calls since 2007, indicates that in 2018 the top three reported races and ethnicities for potential trafficking victims were Latino, Asian, and Black. By 2020 (the most recent year for which there is published National Human Trafficking Hotline data), the number had shifted to indicate a majority of reported identities were Latino. Asian, then white callers followed, with Black victims holding a close fourth-highest percentage for reported racial or ethnic identity. In Orange County, California, the majority of trafficking victims identified by the county’s human trafficking task force between 2016 and 2020 were Black and Latino. 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. Victims 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. Despite the prevalence of trafficking, few of these victims ever see justice.

Why the gap? When victims of any color try to achieve justice, they face a burdensome process. For example, though some police departments proceed without victim testimony, some courts still use material witness warrants to force victims to identify themselves as victims and to testify against their traffickers in court, though exact numbers are unknown. At best, according to Heather Clawson and Nicole Dutch in a study of U.S. Health and Human Services programs serving human trafficking victims, victims often have complex legal needs that can be challenging to meet. At worst, police, prosecutors, and courts may retraumatize victims through ignorant or bias behavior. Some victims of human trafficking, especially those of color, already distrust the police. They often have personal experience with abuse or coercion by police. One victim of color interviewed in ECPAT USA’s Survivor Perspectives: Interview with a “Warrior Angel”, describes how a police officer used his authority to manipulate her into revealing her genitals. They may also fear stereotyping. Lali, a Hispanic victim, describes how police willfully ignore missing Black and Brown victims who are addicted to drugs, justifying their inaction by saying that these victims “like to party” and “[will] be back in a few days.”. They may expect to be met with bias. Black survivor-leader Lyresh Magee says she only realized the extent of racial injustice against Black victims, especially those with criminal records, when she decided to escape her own trafficker

Sadly, trafficking victims’ fears and suspicions are largely justified. The U.S. State Department identified multiple ways that systemic racism and bias pervade anti-trafficking efforts. First, racial stereotypes can impact the specific communities police focus on for anti-trafficking operations. Second, these predetermined biases can impact credibility—which victim-witnesses, judges and juries believe. According to survivor-leader Fainess Lipenga, the criminal justice system’s weaknesses are exposed in the instances where trafficking victims are arrested and prosecuted for their trafficker’s crimes. Bridgette Carr, founding director of the University of Michigan Law School’s Human Trafficking Clinic, explains: “We know that Black victims . . . are pushed [] into being criminals and not being offered services[.]” For example, in the 2021 U.S. Trafficking in Persons Report, one nongovernmental organization reported that 89% of its current trafficking victim clients who reported an arrest or conviction of a crime were “Black, indigenous, or people of color.” That organization indicated that victims of color were more likely to be charged for crimes their traffickers forced them to commit and more likely to be coerced through threats by police into cooperation. Lack of access to services and opportunities is another harm identified by victims in a 2021 survey done by Human Trafficking Legal Center conducted by Evelyn Chumbow, Fainess Lipenga, Roxie Farrow, and Deborah Pembrook in order to capture trafficking victims of color’s experiences with racism in the anti-trafficking movement. The survivor-leader panelists presented an analysis of the data at a webinar co-hosted by Survivor Alliance and the Human Trafficking Legal Center. The victim experiences used here are taken from that raw data. Survey respondents noted that victims of color needed more support finding job opportunities and more support groups geared to women of color. The data also points to policies that prevent migrant victims from accessing services at all.

Trafficking victims of color are vulnerable to discrimination throughout the entire process, from the legal system itself, through to the police forces. This fact was acknowledged by U.S. Secretary of State Anthony Blinken when he introduced the 2021 U.S. Trafficking in Persons Report, explaining that “deeply held racial biases and stereotypes” influence outcomes for trafficking victims in the criminal justice system because they “lead to racially disparate assumptions about who is identified as a trafficker and who is identified as a victim . . . a somber, unacceptable reality.” The report further noted that “marginalized communities” were overrepresented in the data available on trafficking victims. Because of this systemic racism, it is even more critical to tell trafficking victims of color’s stories, as hearing these stories will help change the racism faced by so many. Black teen victim Chrystul Kizer came face-to-face with the legal system’s abuse of victims when, in 2018, she entered the system as a child sex trafficking victim who killed the man who allegedly trafficked her. Both prosecutors and police had evidence that the man, who is white, abused Ms. Kizer and other Black girls. Instead of social workers offering Ms. Kizer trauma-informed care, police arrested her for murder. Ms. Kizer’s case and the harsh treatment of Ms. Kizer stand in stark contrast to cases of white children, like Kyle Rittenhouse, who were arrested for violent crimes yet acquitted. While such comparisons fail to account for the substantial procedural and substantive differences in each case, they still beg the question, is there a double standard of treatment for marginalized youth in the criminal justice system, like young trafficking victims of color? The evidence seems to say yes. In Summer 2020, Ms. Kizer was finally released from a Wisconsin jail on bail, but only after activists banded together to pay the nearly half a million-dollar sum. She is still fighting her case in court. 

What can be done to end this double tragedy for victims of color? On the street, law enforcement needs to make more effort to work directly with at-risk groups and communities plagued by trafficking. For example, police can collaborate with neighborhood watch, engage in community meetings, and practice restorative justice when applicable. By listening to community voices and building positive relations, police officers can increase accurate detection of trafficking. In turn, communities may be more likely to trust and cooperate with police forces they have created positive coalitions with, as they now see them as allies in the fight. For example, one 2019 study indicated that after New Haven police initiated positive nonenforcement interactions with neighborhood residents, there were significant improvements in how the residents perceived the officers, especially among Black residents. Communities of color are burdened by complex traumas from the criminal justice system going back decades, and community-building exercises will not erase this trauma. However, community-building efforts can help start to rebuild communities’ trust, which will lead to more positive and inclusive responses to all crime.

In the criminal justice system, training for law enforcement is a good place to start to tackle racial bias. Law enforcement officers are often the first point of contact between trafficking victims and the criminal justice system. As a result, officers have an early opportunity to help trafficking victims have a more restorative experience in the criminal justice system and to avoid re traumatizing when possible. Increased trainings on topics like implicit bias, trauma-informed care, and cultural sensitivity are one option. Additionally, through local partnerships, the Federal Law Enforcement Training Centers currently provide a Human Trafficking Awareness Program to raise awareness of trafficking to police officers nationwide. The program’s curriculum currently includes three sections: the “definition of human trafficking,” “indicators of human trafficking,” and “human trafficking report protocols.” Including a main section on the issue of racial bias and trafficking victims may educate law enforcement on systemic racism. These types of training programs should be done as standard procedure and reinforced regularly with refreshers or supplementary training on an ongoing basis. 

What about victims who have already been ensnared in the justice system? There is a legal term, “vacatur,” which means, “[a] rule or order that sets aside a judgment or annuls a proceeding”. Using vacatur to erase victims’ criminal records associated with their trafficking experiences is a needed approach that nongovernmental organizations continue to call for. While nearly all states have codified criminal record relief for trafficking victims, there is no federal vacatur law. Advocates should lobby for a federal vacatur law to ensure that marginalized victims facing some of the harshest penalties, like time in federal prison, stop paying for their traffickers’ crimes. While this remedy will not stop bias against trafficking victims before it begins, vacatur will help prevent marginalized victims from continuing to suffer compounded racial traumas. Vacatur can also help victims that have criminal records more easily access housing, education, and employment, areas in which they may otherwise struggle. The legal system needs to stop casting trafficking victims of color away and enact reforms so that these victims can see justice for the crimes committed against them.

To learn more about human trafficking and how marginalized communities are affected by current legislation, read the articles below. 

You can find even more articles on the intersection of race, 2SLGBTQ+ and modern slavery by using the Global Database and either typing in specific search terms or ticking some of the suggested search terms on the side bar. 

Author Note:  Rachel Rein is a law student at Columbia Law School and worked in the anti-trafficking field before law school. This post draws from her upcoming Article and ideas from Suffering at the Margins: Applying Disability Critical Race Studies to Human Trafficking in the United States, her forthcoming article that will appear in the Columbia Journal of Gender and Law this spring.

Share:

Leave Your Comment