Adopted by the House of Delegates

104G

AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

FEBRUARY 11, 2013

RESOLUTION

1

104G

7

104G

RESOLVED, That the American Bar Association urges local, state, territorial, tribal and federal governments to enact legislation allowing adult or minor human trafficking victims charged with prostitution related offenses or other non-violent offenses that are a direct result of their being trafficked to assert an affirmative defense of being a human trafficking victim.

7

104G

REPORT

The Trafficking Protocol defines “trafficking in persons” as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”[1]

In March of 2012 President Obama directed his Cabinet to redouble efforts to eliminate human trafficking—or modern-day slavery.[2] While there are numerous government organizations and non-governmental organizations that publish data on human trafficking, the data can vary greatly depending on the methodology used and how human trafficking or modern slavery is defined for the study.[3] The following statistics about the number of people impacted by human trafficking are offered in this report in order to provide a general depiction of the extent of human trafficking. According to the International Labor Organization, it is estimated that there are 20.9 million victims of modern slavery around the world at any given time.[4] According to the U.S. Department of State’s Trafficking in Persons Report, each year about 600,000 to 800,000 people are trafficked across international borders.[5] There are about 14,500 to 17,500 people trafficked into the United States annually.[6] Presently, most of the data available focuses on international trafficking and does not specifically estimate domestic trafficking within the United States.[7] However, one revealing statistic is that there are about 244,000 to 325,000 American youth who are at risk of sexual exploitation within the United States.[8]

Adult or minor victims of human trafficking endure terrible and inhumane treatment, which results in lasting physical, emotional, and psychological scars. These victims are beaten, sexually assaulted, starved, imprisoned, threatened, and/or psychologically controlled. It is unfortunate that the nature of human trafficking either directly or indirectly results in commercial sex acts, illegal sexually explicit performances, labor violations, or other crimes being committed by victims of human trafficking. Often, victims of human trafficking are arrested and convicted for prostitution and other related offenses.[9]

Today, there is increasing awareness of human trafficking, and criminal justice professionals recognize that those individuals who are arrested for prostitution are often victimized. Despite this awareness, the “default for those arrested for prostitution is criminalization.”[10] Practices in place currently put a substantial burden on victims to come forward if they want to avoid criminalization.[11] Usually, when “the arrest process is set in motion, it is difficult to reverse, and even more difficult to undo the overwhelming harm that can result.”[12] In order to stop criminalization from occurring, an affirmative defense of human trafficking must be established and the arrest and prosecution policies must be reevaluated.

Currently, there are thirteen states that have some form of affirmative defense for human trafficking victims; these states include Alabama, Connecticut, Indiana, Iowa, Minnesota, New Hampshire, New Jersey, New Mexico, Oklahoma, Rhode Island, Texas, Vermont, and Wisconsin.[13] In Alabama, the Human Trafficking Statute states “[i]n a prosecution for prostitution, or a sexually explicit performance defined in this article, of a human trafficking victim for the victim’s illegal acts engaged in or performed as a result of labor servitude or sexual servitude, it shall be an affirmative defense that the person was a victim of human trafficking.”[14] In Minnesota, legislation states that “[i]t is an affirmative defense to a charge under section 609.324 if the defendant proves by a preponderance of the evidence that the defendant is a labor trafficking victim…or a sex trafficking victim…and that the defendant committed the act only under compulsion by another who by explicit or implicit threats created a reasonable apprehension in the mind of the defendant that if the defendant did not commit the act, the person would inflict bodily harm upon the defendant.”[15] In Oklahoma, the Penal Code provides “[i]t is an affirmative defense to prosecution for a criminal offense that, during the time of the alleged commission of the offense, the defendant was a victim of human trafficking.”[16]

This resolution builds upon 103A that was adopted at the American Bar Association’s 2011 Annual Meeting, which urges government authorities not to treat children who are the victims of human trafficking as criminals. This resolution expands the scope to include all victims of human trafficking. This resolution also builds on 102A that was adopted at the American Bar Association’s 2010 Midyear Meeting, which urges governments to limit the collateral consequences of juvenile arrest, adjudications and convictions. This resolution expands the scope to include all victims of human trafficking and seeks to limit the collateral consequences of convictions for survivors of human trafficking through enactment of uniform legislation providing for, clarifying, or modifying an affirmative defense in criminal proceedings that those victims of human trafficking have the ability to assert that defense for non-violent crimes directly resulting from being a trafficking victim.

Enacting legislation that creates the affirmative defense of human trafficking would obligate criminal justice professionals to investigate prostitution-related cases to determine if trafficking exists and would require instituting policies on how to appropriately and effectively identify victims of human trafficking.[17] Legislation establishing the affirmative defense of human trafficking could lead to two significant results. First, victims of human trafficking facing criminal prosecutions can avoid unjust convictions and gain access to social services and benefits to alleviate their plight. Second, identifying victims of human trafficking and obtaining their cooperation can lead law enforcement to their traffickers and possibly result in trafficking rings being shut down.

Respectfully submitted,

William Shepherd

Chair, Criminal Justice Section

February 2013

7

104G

GENERAL INFORMATION FORM

Submitting Entity: Criminal Justice Section

Submitted By: William Shepherd, Chair

1. Summary of Resolution(s).

The Resolution encourages lawmakers to enact legislation allowing adult and minor human trafficking victims charged with prostitution related offenses or other non-violent offenses that are a direct result of their being trafficked, to assert an affirmative defense of being a human trafficking victim.

1. Approval by Submitting Entity.

This Resolution was approved by the Criminal Justice Section Council by e-vote on Monday October 12, 2012.

1. Has this or a similar resolution been submitted to the House or Board previously?

This resolution is similar to Resolution 103A that was adopted at the American Bar Association’s 2011 Annual Meeting. Resolution 103A urges government authorities not to treat children who are the victims of human trafficking as criminals.

This resolution is similar to Resolution 102A that was adopted at the American Bar Association’s 2010 Mid-Year Meeting. Resolution 102A urges governments to limit the collateral consequences of juvenile arrest, adjudications and convictions.

1. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption?

This resolution would expand on 103A that was adopted at the American Bar Association’s 2011 Annual Meeting. 103A urges government authorities not to treat children who are the victims of human trafficking as criminals. However, this resolution is different in that it includes all victims of human trafficking.

This resolution would expand on 102A that was adopted at the American Bar Association’s 2010 Midyear Meeting. This resolution seeks to specifically limit the collateral consequences of convictions for survivors of human trafficking and specifically calls for all jurisdictions within the United States to enact uniform legislation providing for, clarifying, or modifying an affirmative defense in criminal proceedings that those victims of human trafficking have the ability to assert that defense for non-violent crimes directly resulting from being a trafficking victim.

1. What urgency exists which requires action at this meeting of the House?

Victims of human trafficking are being prosecuted for prostitution and other crimes directly resulting from being a trafficking victim and are not being recognized as victims. This is leading to the unjust result of victims being criminalized and being put in potential further harm by detention, or release to their captors.

1. Status of Legislation. (If applicable)

Not applicable

1. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates.

The policy will be distributed to various criminal justice stakeholders in order to encourage and facilitate legislative action. The policy will also be featured on the Criminal Justice Section website and in Section publications.

1. Cost to the Association. (Both direct and indirect costs)

None

1. Disclosure of Interest. (If applicable)

None

1. Referrals.

At the same time this policy resolution is submitted to the ABA Policy Office for inclusion in the 2013 Midyear Agenda Book for the House of Delegates, it is being circulated to the chairs and staff directors of the following ABA entities:

Standing Committees

Legal Aid and Indigent Defendants

Special Committees and Commissions

Commission on Immigration

Commission on Youth at Risk

Sections, Divisions

Government and Public Sector Lawyers Division

Individual Rights and Responsibilities

International Law

Judicial Division

Litigation

State and Local Government Law

Young Lawyers Division

Centers

Center for Human Rights

Center on Children and the Law

Task Forces

Task Force on Human Trafficking

1. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and e-mail address)

Sara Dill

Law Offices of Sara Elizabeth Dill

35 E Wacker Dr 9th Floor

Chicago, IL 60601-2314

Phone: (312) 564-5670

Email:

William Shepherd

Holland & Knight LLP

222 Lakeview Ave Ste 1000

West Palm Beach, FL 33401-6148

Phone: (561) 650-8338

Email:

1. Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and e-mail address.)

Stephen Saltzburg

George Washington Univ Law School

2000 H St NW

Washington, DC 20052-0026

Phone: (202) 994-7089

Email:

Neal Sonnett

Neal R Sonnett

2 S Biscayne Blvd Ste 2600

Miami, FL 33131-1819

Phone: (305) 358-2000

Email:

7

104G

EXECUTIVE SUMMARY

1. Summary of the Resolution

The Resolution encourages lawmakers to enact legislation allowing human trafficking victims charged with prostitution related crimes or other non-violent crimes to assert an affirmative defense of being a human trafficking victim.

2. Summary of the Issue that the Resolution Addresses

Currently, victims of human trafficking are being prosecuted for prostitution and other crimes directly resulting from being a trafficking victim and are not being recognized as victims. This is leading to the unjust result of victims being criminalized and being put in potential further harm by detention, or release to their captors.

3. Please Explain How the Proposed Policy Position will address the issue

Enacting legislation that creates the affirmative defense of human trafficking would obligate criminal justice professionals to investigate prostitution-related cases to determine if trafficking exists and would require instituting policies on how to appropriately and effectively identify victims of human trafficking. Legislation establishing the affirmative defense of human trafficking could lead to two significant results. First, victims of human trafficking facing criminal prosecutions can avoid unjust convictions and gain access to social services and benefits to alleviate their plight. Second, identifying victims of human trafficking and obtaining their cooperation can lead law enforcement to their traffickers and possibly result in trafficking rings being shut down.

4. Summary of Minority Views

None are known.

7

[1] Jill Laurie Goodman & Dorchen A. Leidholdt, Lawyer's Manual on Human Trafficking: Pursuing Justice for Victims, available at http://www.courts.state.ny.us/ip/womeninthecourts/LMHT.pdf (last visited Dec. 11, 2012) (citations omitted).

[2] U.S. Department of Justice, The Justice Blog, Helping the Victims of Human Trafficking, http://blogs.justice.gov/main/archives/2492 (last visited Dec. 11, 2012).

[3] PBS Frontline, Sex Slaves: Estimating the Numbers, http://www.pbs.org/wgbh/pages/frontline/slaves/etc/stats.html (last visited Dec. 11, 2012).

[4] U.S. Department of State, Trafficking in Persons Report (June 2012), at 45, available at http://www.state.gov/documents/organization/192587.pdf.

[5] U.S. Department of State, Trafficking in Persons Report, (June 2005), at 6, available at http://www.state.gov/documents/organization/47255.pdf.

[6] Id.

[7] Heather J. Clawson, et al., Human Trafficking into and within the United States: A Review of the Literature, August 2009, available at http://aspe.hhs.gov/hsp/07/humantrafficking/litrev/#Introduction.

[8] Id.

[9] Melissa Broudo & Sienna Baskin, Vacating Criminal Convictions for Trafficked Persons: A Legal Memorandum for Advocates and Legislators, Urban Justice Center, April 2012, available at http://www.sexworkersproject.org/downloads/2012/20120422-memo-vacating-convictions.pdf.

[10] Public Roundtable on Examination of the Adequacy of Outreach and Social Services for Human Trafficking Victims, New York State Assembly (October 16, 2012) (statement of Kate Mogulescu, Trafficking Victims Legal Defense & Advocacy Project, The Legal Aid Society) [hereinafter “Human Trafficking Victims Hearing”].

[11] Id.

[12] Id.

[13] Polaris Project, Report on States with Affirmative Defenses Including Specific Defenses, and Duress, Necessity and Choice of Evils Defenses (September 2011).

[14] Ala. Code § 13A-6-159 (2011).

[15] Minn. Stat. § 609.325 (2011).

[16] Okla. Stat. Penal Code § 21-748 (2010).

[17] Human Trafficking Victims Hearing, supra note 6.