When the FBI Comes Calling…®
HUMAN TRAFFICKING AND SMUGGLING (continued)
Trafficking in Persons
Trafficking Victims Protection Act
As noted in the introduction, in the year 2000 Congress passed the Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified at 22 U.S.C. §§ 7101-7110) [hereinafter TVPA] to "combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims." 22 U.S.C. § 7101(a). In passing the TVPA, Congress made 24 findings regarding the trafficking of humans. See id. § 7101(b). For example, approximately 700,000 people are trafficked globally and 50,000 individuals are trafficked into the United States every year. Id. § 7101(b)(1). The majority of these individuals are trafficked for the purpose of the international sex trade, id. § 7101(b)(2), but a growing number of people are trafficked for the purpose of forced labor. Id. § 7101(b)(3). The victims of human trafficking are often threatened with bodily injury, id. § 7101(b)(7), and the perpetrators of human trafficking are often members of sophisticated criminal enterprises. Id. § 7101(b)(8). Furthermore, Congress wanted to directly confront United States v. Kozminski, discussed earlier, and to provide remedies for nonviolent coercion into being trafficked for labor or sexual exploitation. See id. § 7101(b)(13) Citing international agreement that human trafficking should be criminalized, id. § 7101(b)(23), Congress implemented 18 U.S.C. §§1589-1595.
We have divided our discussion of trafficking into two separate categories: trafficking for labor and trafficking for sexual activity. The former has very little statutory authority, while the latter has quite a bit and is very far reaching.
Trafficking for Labor
Trafficking for Sexual Activity
Preliminary Considerations
The following statutes, 18 U.S.C. §§ 1592-95, provide some ancillary information on trafficking. Sections 1592-94, for example, apply to both trafficking for labor and trafficking for sexual activity, so it is more appropriate to discuss them here, while section 1595 provides a civil cause of action for victims of certain statutes in chapter 78.
18 U.S.C § 1594.
Section 1594 is discussed first because it contains general provisions that apply to the TVPA.
- An attempt to violate section 1581, 1583, 1584, 1589, 1590, or 1591 can be punished in the same manner as a completed violation of that section. 18 U.S.C. § 1594(a).
- A person who has been convicted of a violation of chapter 78 shall, in addition to any other sentence imposed, forfeit to the United States-
- his interest in any property, real or personal, that was used or intended to be used to commit or to facilitate the commission of the violation. Id. § 1594(b)(1); and
- any property, real or personal, constituting or derived from, any proceeds that he obtained, directly or indirectly, as a result of the violation. Id. § 1594(b)(2).
The following things are subject to forfeiture to the United States and no property exists in them:
- Any property, real or personal, used or intended to be used to commit or to facilitate the commission of any violation of chapter 78. Id. § 1594(c)(1)(A).
- Any property, real or personal, which constitutes or is derived from proceeds traceable to any violation of chapter 78. Id. § 1594(c)(1)(B).
The provisions of chapter 46 of this title relating to civil forfeitures shall extend to any seizure or civil forfeiture under this subsection. Id. § 1594(c)(2).
- A violation of this chapter is considered an organized criminal activity or other serious offense for the purposes of application of chapter 224 (relating to witness protection). Id. § 2594 (d)
18 U.S.C § 1592.
It is a violation of section 1592 to "knowingly":
- destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration document, or any other actual or purported government identification document in any of the following three circumstances:
- in the course of a violation of section 1581, 1583, 1584, 1589, 1590, 1591, or 1594(a). 18 U.S.C. § 1592(a)(1);
- with intent to violate section 1581, 1583, 1584, 1589, 1590, or 1591. 18 U.S.C. § 1592(a)(2); or
- to prevent or restrict or to attempt to prevent or restrict, without lawful authority, the person's liberty to move or travel, in order to maintain the labor or services of that person, when the person is or has been a victim of a severe form of trafficking in persons, as defined in section 103 of the Trafficking Victims Protection Act of 2000 (Pub.L. 106-386, Div. A, § 103, Oct. 28, 2000, 114 Stat. 1469 (enacting 22 U.S.C. § 7102)). 18 U.S.C. § 1592(a)(3)
These provisions do not apply to conduct of a person who is or has been a victim of a severe form of trafficking in persons, if that conduct is caused by, or incident to, that trafficking. 18 U.S.C. § 1592(b).
The Punishment
- The punishment for violating section 1592 is a fine, imprisonment for not more than five years, or both.
Jurisdiction
The jurisdiction of section 1592 will be found in the statutes to which it attaches.
Case Law Interpreting Section 1592
There are really no cases that discuss section 1592 in any detail. In United States v. Bradley, 390 F.3d 145, 150 (1st Cir. 2004), discussed on the previous page, the court mentions that the defendants were charged with two counts of "document servitude" under section 1592. However, that is the only mention of section 1592; there was no analysis. The only other mention of section 1592 is Chellen v. John Pickle Co., 344 F. Supp. 2d 1278, 1293 (N.D. Okla. 2004) where the court is asked by the Equal Employment Opportunity Commission to consider the case as falling under the TVPA, specifically sections 1589 and 1592. The court declined to do so.
18 U.S.C. § 1593
Section 1593 provides for mandatory restitution for any offense of chapter 78, not withstanding 18 U.S.C. §§ 3663 or 3663A (also concerning restitution). 18 U.S.C. § 1593(a).
The order of restitution under section 1593 takes the following into account:
- The order will direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses, as determined by the court. Id. § 1593(b)(1).
- The order of restitution under this section will be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A. Id. § 1593(b)(2).
Definitions
- "full amount of the victim's losses" has the same meaning as provided in section 2259(b)(3) and shall in addition include the greater of the gross income or value to the defendant of the victim's services or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act. 18 U.S.C. 1593(b)(3)
- "full amount of the victim's losses" as defined by section 2259(b)(3), includes any costs incurred by the victim for:
- medical services relating to physical, psychiactric, or psychological care. 18 U.S.C. § 2259(b)(3)(A);
- physical and occupational therapy or rehabilitation. Id. § 2259(b)(3)(B);
- necessary transportation, temporary housing, and child care expenses. Id. § 2259(b)(3)(C);
- lost income. Id. § 2259(b)(3)(D);
- attorney's fees, as well as other costs incurred. Id. § 2259(b)(3)(E); and
- any other losses incurred by the victim as a proximate result of the offense. Id. § 2259(b)(3)(F)
- "victim" means the individual harmed as a result of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or a representative of the victim's estate, or another family member, or any other person appointed as suitable by the court. In no event shall the defendant be named such representative or guardian. Id. § 1593(c)
18 U.S.C. § 1595
Congress, in enacting this section, explicitly provided victims of violations of 18 U.S.C. §§ 1589, 1590, or 1591 with a civil remedy, thereby avoiding the type of problems found in cases like Turner v. Unification Church, discussed in conjunction with sections 1581 and 1583. (Note, however, that sections 1581 and 1583 are not covered by section 1595.)