Human Trafficking Law and Policy
- Trafficking Victims Protection Act of 2000
- The Protect Act
- Hague Convention
- Conventions On The Rights Of The Child
- Protocol To Protect, Suppress and Prevent Trafficking In Persons
The following is a brief overview of the relevant acts, international protocols, and international treaties relating to the rights of victims of sex trafficking. As a general note on the application and utilization of international human rights treaties, it is important to realize that although at first glance it appears as though there is an extensive collection of sources for sex trafficking victims' rights, it is critical to understand that obligations required by these relevant treaties are only applicable to member state actors. A country is labeled a member state when it has both signed and ratified the relevant convention or treaty. A state actor is an individual who acts on behalf of the state, such as a government official. Therefore, because most women and children become victims of sex trafficking at the hands of individuals or groups of individuals, rather than state actors, a victim is precluded from the ability of ever bringing suit against her offender in an international tribunal. Thus, essentially rendering the use of such treaties to advocate for the rights of victims extremely difficult.
TRAFFICKING VICTIMS PROTECTION ACT OF 2000 [hereinafter TVPA]
- The TVPA is the most comprehensive anti-trafficking legislation passed in the United States to date. It expands U.S. involvement in prevention measures by increasing assistance available to victims and by enhancing penalties for perpetrators. It uses the three “P’s” approach—focusing on PREVENTION, PROTECTION, and PROSECUTION.
- The annual Trafficking in Persons [TIP] Report [1] includes country narratives that describe the scope and nature of the trafficking problem, reasons for including the country in the report, and the government’s effort to combat the trafficking. Each country is rated depending upon their efforts in reducing trafficking and subsequently labeled based upon a tier system: Tier 1, Tier 2, Tier 2 Watch List, or Tier 3.
A special watch list of countries was created in 2003, which composes of:
- countries listed as Tier 1 in the current Report that were listed as Tier 2 in the 2004 Report;
- countries listed as Tier 2 in the current Report that were listed as Tier 3 in the 2004 Report; and,
- countries listed as Tier 2 in the current Report, where:
- The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing;
- There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, including increased investigations, prosecutions and convictions of trafficking crimes, increased assistance to victims, and decreasing evidence of complicity in severe forms of trafficking by government officials; or
- The determination that a country is making significant efforts to bring itself into compliance with minimum standards based upon commitments by the country to take additional measures over the next year.
The Protect Act
This Act increases penalties for sex crimes, modifies the burden of proof requirements for conviction, and criminalizes the organization of sex tours. It is more comprehensive than the TVPA because it specifically addresses sex tourism and pornography and fills in gaps left by the TVPA and, thus, strengthens the United States' ability to prosecute offenders.
Under this Act, the minimum sentence for any person who employs, uses, persuades, induces, entices, or transports a minor to engage in sexually explicit conduct has been increased from ten years to fifteen years and the maximum sentence from twenty to thirty years. Any individual who is a repeat offender faces and increased minimum sentence from ten to twenty years and a maximum sentence from thirty to fifty years.
One of the most important elements of this Act is that the it removes the intent requirement of previous laws that covered U.S. citizens who committed enumerated sex crimes outside of the United States. Therefore, currently, under the Protect Act, a prosecutor only needs to show a citizen committed an illegal sex act abroad rather than having to show that the citizen traveled internationally for the purpose of engaging in illicit sexual conduct with another.
Finally, the statute of limitations that expired when a victim turned twenty-five was repealed by the Protect Act.
Convention On The Rights Of The Child [hereinafter Convention]
It is a powerful protective measure for children and was signed by all United Nation member nations and ratified by all EXCEPT the United States and Somalia.
Under ARTICLE 37 of the Convention, children are given specific rights, most importantly, the right to be protected from torture and mistreatment.
The Convention also instructs parties to pass laws to protect children and calls for states to counter-act influences that lead to child-trafficking.
Nevertheless, there are shortcomings to the Convention.
In particular, the expectations of states are vague and lack guidance on how states could create and implement laws to protect children.
Hague Convention
Primarily aimed at providing support for parents whose child has been abducted by creating an agreement between state parties to cooperate in the return of abducted children to the custodial parent. Unfortunately, because the child is returned to the custodial parent, the abductor remains in another country free from prosecution, which leads to very little impact on the trafficking of children as a whole.
Optional protocols to the convention on the rights of the child in the involvement of children in armed conflict and on the sale of children, child prostitution, and child pornography
The United Nations General Assembly adopted this protocol on May 25, 2000, as the first international instrument to define the terms of “SALE OF CHILDREN,” “CHILD PORNOGRAPHY,” and “CHILD PROSTITUTION.”
The purpose of the protocol was to provide greater punishment for offenders through the use of cooperative law enforcement. In particular, under the protocol, the extradition of offenders to ensure prosecution regardless of in which country the offender was discovered is now allowed.
Although this protocol requires parties to strengthen existing laws or create laws to protect child victims, it unfortunately, lacks the force to ensure adherence.
The purpose of this protocol was to provide guidance to states in dealing with the vast combinations of trafficking activities. Mainly, it was aimed at providing support for countries implementing measures that were beyond what they could do on their own. However, again, this protocol lays out general descriptions of actions that should be taken but does not provide countries with resources or suggestions on how to implement these actions. Additionally, limited requirements are placed on the scope of services provided to protect victims.
Convention on the elimination of discrimination against women [hereinafter CEDAW] [8] ARTICLE 6 requires all states to “take appropriate measures to suppress all forms of traffic in women and exploitation of prostitution of women.
- 22 U.S.C.A. §§ 7101-7110 (2005).
- http://www.state.gov/g/tip/rls/tiprpt/2005/
- PROTECT Act, Pub. L. No. 108-121, 117 Stat. 650 (2003).
- Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., U.N. Doc. A/RES/44/25 (1989).
- 19 I.L.M. 1501 (1980).
- Optional Protocols to the Convention on the Rights of the Child in the Involvement of Children in armed conflict and on the sale of children, child prostitution, and child pornography, G.A. Res. 54/263, 54th Sess., Annex I & II, at 8, U.N. Doc. A/54/49 (2000).
- http://www.unodc.org/unodc/en/trafficking_protocol.html
- http://www.un.org/womenwatch/daw/cedaw/states.htm