Unlocking justice: Advocating for trafficking survivors’ rights and remedies

As I reflect on the 14 years since 2010 when President Obama declared January to be Human Trafficking Awareness month, I am reminded of how the work that the Los Angeles Center for Law and Justice (LACLJ) does with human trafficking survivors grew out of listening closely to the low-income, immigrant survivors of intimate partner and sexual violence we already served. This close listening led us to see more types of perpetrators, more types of survivors, and in the end, more types of trafficking.

This article will explain what human trafficking is, provide a simple assessment for you to use in your practice to screen for human trafficking, and show you why it is so critical to identify survivors of trafficking and connect them to remedies they would not otherwise be able to access.

At the outset, it is important to keep in mind that the federal definition of human trafficking includes both sex and labor trafficking; sex trafficking, in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 22 U.S.C. § 7102(11)(A)(B).

In our work serving survivors of intimate partner and sexual violence, LACLJ has found that our clients often suffer multiple victimizations by the same perpetrator. For example, sex trafficking by an abusive intimate partner is not uncommon. Coercion is a broad concept and occurs in many kinds of victimizations. More of these may also include human trafficking than we once recognized.

It can be helpful to start an inquiry into possible trafficking by focusing on what a client reports they are doing for others. Is what they are doing a kind of work or service, even if it’s not traditionally a paid job? If it can be viewed as labor or services, are they reporting that they were afraid to stop doing it because of something the person getting that labor or service might do? This is the essence of a trafficking situation and deserves further investigation. LACLJ uses the following questions to uncover whether someone might have been coerced to work.

1. Has anyone – including a family member, an employer, or anyone else – ever forced you to work or provide any type of services without being paid?

2. Has anyone – including a family member, an employer, or anyone else – ever forced you to work or provide any type of services somewhere you were trapped or not free to leave?

3. Has your employer or anyone who required services from you ever threatened you or someone in your family?

4. Have you ever performed sex acts or other types of services because you or others were being threatened?

5. If you were born outside the U.S., did someone else pay for your travel to the U.S., and you then owed them a debt?

6. Has anyone ever kept your passport or other important documents from you?

7. Did you live in the U.S. while you were under age 18? If yes, during that time did you ever miss time in school because an adult in your life told you that you needed to work?”

Once a client has been identified as meeting the federal definition of human trafficking, there are multiple remedies available. We’ll briefly discuss a few here, illustrating why all attorneys and advocates should be screening for human trafficking.

First, there are tort or civil claims specifically for trafficking survivors. They can sue under the TVPRA to be fairly compensated for the labor they were forced or coerced to perform. Federal Civil Claims 18 USC § 1595. California specific claims can be filed as well. CA Civil Code § 52.5.

The second remedy eliminates criminal arrests and convictions obtained as a result of trafficking – both through a complete defense for pending charges (CA PC § 236.23) and vacatur, a form of post-conviction relief for past arrests or convictions (CA PC § 236.14). Such criminal records create barriers to immigration relief, employment, housing and other life goals for many trafficking survivors. For immigrant survivors, any criminal conviction brings the added risks of serious immigration consequences including detention, removal from the U.S., and separation from children and other family members. A partner in LACLJ’s work to ensure immigrant survivors are fully protected by CA’s vacatur laws, the Immigrant Legal Resource Center (ILRC) published a helpful practice advisory: “New Options for Survivors of Trafficking and Domestic Violence: Vacaturs and Criminal Defenses for Survivors of Trafficking and Interpersonal or Sexual Violence” at: https://www.ilrc.org/resources/new-options-survivors-trafficking-and-domestic-violence.

The third remedy focuses on immigration relief, both affirmative and defensive. Among the petitions processed at USCIS, the T Visa for survivors of trafficking has one of the most expeditious processing times, granting immigration status within a year or two, whereas other crime survivors will wait decades to obtain relief. There is also an advantage for defending in removal proceedings. Regulations provide for removal proceedings to be terminated and for a removal order to be stayed while a T Visa is adjudicated. 8 CFR § 214.11(d).

Other remedies specifically available to trafficking survivors include public benefits and income loss compensation. They are eligible for refugee benefits, including healthcare. Trafficking survivors also became eligible for lost wages under the California Victim Compensation Board (CalVCB), specifically receiving income loss compensation of $10,000. See AB629 and Human Trafficking Victims Qualify for Income Loss Through CalVCB - CA Victim Compensation Board.

Yet these remedies often go unused. Trafficking occurs in many more places, perpetrated by many different people than is commonly thought. The federal definition of trafficking can be grasped on a basic level as someone performing work or services that they are afraid to stop because of coercion or force from the person receiving the work or services. By becoming familiar with the definition and screening for trafficking, attorneys can help survivors access the powerful remedies and relief specifically available to them. Attorneys and advocates are well poised for the work of screening survivors, bringing their skills as counselors and legal theorists. This month, and hopefully every month, challenge yourself to increase your familiarity with the legal definition of human trafficking, learn more about the related remedies, and support access to in-depth screening by trained professionals for all those that may be vulnerable.