In the past month, the State of New York has introduced 11 new Human Trafficking Intervention Courts (including Buffalo and Rochester, near where I live in upstate NY). According to the New York Times, the new courts are modeled after three pilot projects that had been established earlier in New York City, and the “initiative is believed to be the first of its kind in the nation.”
The NY law resembles the federal U.S. law in targeting force, fraud and coercion (what the national law dubs “severe forms” of trafficking). Included in its list of punishable offenses is withholding of a passport or other identity document.
Anti-trafficking advocates argue that low conviction rates reflect a lack of training and understanding among conventional police forces, perhaps coupled with chauvinistic prejudice. Critics suggest that the mismatch may have more to do with the flawed and overblown data supporting the annual estimates. (The “Data Matters” section of this website contains some further discussion.)
The law, which focuses on sex trafficking (labor trafficking is also included albeit as a lesser offense), provides those charged with prostitution with a way out of direct criminal prosecution — the law reframes who is a victim versus a perpetrator – although, since prosecutions often seek testimony from trafficking victims, involvement with the criminal justice system may continue in some form. Questions around implementation will include: what proportion of prosecutions will look at labor trafficking rather than sex trafficking? how well will victims fare following identification by the criminal justice system? what proportion of resources will be spent on victim assistance versus criminal prosecution?
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In recent years, the issue of human trafficking – the recruitment or movement of persons by means of coercion or deception into exploitative labor or slavery-like practices – has moved from the margins to the mainstream political agenda. The rapid proliferation of international, regional and domestic anti-trafficking laws bespeaks universal condemnation of the practice, but belies deep divisions among States over how to define and approach the problem. It is thus significant that the international community was able to reach consensus and conclude a new international law on trafficking – the Palermo Protocol. But just weeks before the signing of the Protocol, the United States passed domestic anti-trafficking legislation with unsettling global reach. Authorizing unilateral sanctions against countries that fail to meet U.S. minimum standards for eliminating trafficking, the U.S. law provides a ready means for injecting U.S. domestic anti-trafficking norms into the international arena.
This Article examines the significance of the U.S. sanctions regime for the fragile new international cooperation framework established under the Protocol. This Article begins by situating the U.S. rise to dominance in broader historical and political context, describing the controversies that plagued development of the Protocol and continue to influence U.S. trafficking policy. The Article then examines critiques of U.S. unilateralism through the lens of international law, and derives a critical framework for assessing the U.S. sanctions regime. Having established context and methodology, the Article assesses the sanctions regime’s capacity to promote progressive development of transnational anti-trafficking norms, and concludes with a modest proposal for improvement.
]]>In the decade since it became a priority on the United States’ national agenda, the issue of human trafficking has spawned enduring controversy. New legal definitions of “trafficking” were codified in international and U.S. law in 2000, but what conduct qualifies as “trafficking” remains hotly contested. Despite shared moral outrage over the plight of trafficked persons, debates over whether trafficking encompasses voluntary prostitution continue to rend the anti-trafficking advocacy community—and are as intractable as debates over abortion and other similarly contentious social issues. Attempts to equate trafficking with slavery invite both disdain and favor: they are often rejected for their insensitive and legally inaccurate conflation with transatlantic slavery yet simultaneously embraced for capturing the moral urgency of addressing this human rights problem. The antitrafficking movement itself has been attacked by those who believe it is built on specious statistics concerning the problem’s magnitude and by others who think it undermines human rights goals by drawing attention away from migrants’ rights and efforts to combat slavery in all its contemporary forms.
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