Human Trafficking Laws: US-Mexico Border Policy Analysis

Introduction

The US State Department has, for the past ten years, issued an annual report on the state of laws governing human trafficking. The latest report shows that most of the world's industrialized countries have enacted laws to protect against human trafficking, including recognizing that human trafficking is a problem and taking steps to address it (Wu & Zifcak, 2010). Most countries in the world have only progressed to what is known as Tier 2, in which the issue is recognized but has yet to be addressed in the nation's body of law (US Department of State, 2010). Yet, despite most of the industrialized world having laws against human trafficking and protections for its victims, human trafficking has increased dramatically in recent years, and much of that increase involves the movement of people into the developed world.

This places significant emphasis on building a credible legal framework to address the issue. In the United States, the Trafficking Victims Protection Act (TVPA) was signed into law in 2000, and the United Nations instituted the Palermo Protocol ("Trafficking in Persons Report 2010," p. 5). These laws, however, have yet to stem the tide of human trafficking. As the world becomes more aware of the issue, study is required with respect to the underlying causes of human trafficking and the methods used to commit this crime. When these elements are better understood, governments will be able to draft stronger laws against human trafficking and implement more effective enforcement mechanisms.

The purpose of this paper is to outline the issue of human trafficking and its incidence in the world today. This will include an examination of the motivations of both the traffickers and the people who pay traffickers for passage to other countries. The legal frameworks currently in place for dealing with human trafficking will also be addressed. At the domestic level, this includes not only the laws that deal directly with human trafficking, but immigration policy in general and even economic policy, as these factors have been linked to the rising incidence of human trafficking. An assessment will be made of the effectiveness of the policies currently on the books and some of the more recent policies that have been proposed. The paper will conclude with an examination of future policies that may be able to reduce the incidence of human trafficking. Rising awareness of human trafficking has resulted in a richer body of literature on the subject, and this literature will form the basis of the discussion. The case study of the US-Mexico border will be used to highlight some of the challenges in developing an adequate legal and enforcement framework, as the US is one of the leaders in the fight against human trafficking, yet its ability to contain the crime along its southern frontier remains woefully inadequate.

The Problem of Human Trafficking

Human trafficking is a complex issue that takes a number of different forms. Within the body of the TVPA, sex trafficking and involuntary servitude were identified as two main forms of severe human trafficking (TVPA, 2000). Trafficking in children for the purposes of either sex or servitude is a special category within the broader problem. Slavery — a common form of human trafficking — may be illegal in most of the world, but it still persists in the underground economies of many countries. In addition to these severe forms, a common variant occurs when persons pay a third party — often a criminal organization — for illegal passage to another country. Even when this type of trafficking does not result in servitude or bondage, it can lead to the deaths of those being trafficked, the financing of organized crime, and the circumvention of immigration laws. Thus, even the more ostensibly benign forms of human trafficking represent a significant problem for nations seeking to protect their borders and uphold human rights.

Although there is some debate surrounding the development of a common definition of human trafficking — which can cause disparities in statistics cited by different bodies — the incidence of the crime is staggering. The industry was estimated to be worth $42.5 billion globally by 2006 (Ross, 2006) and involved an estimated 2.5 million people. Victims came from around 127 countries and were trafficked to 137 countries (UN News Centre, 2008). The latter figure indicates that human trafficking does not simply involve movement into developed nations, but also occurs between developing nations.

The human trafficking industry has been characterized as one with high profits and low risks (Ross, 2006). The low risks stem from the difficulties nations have faced in defining human trafficking, writing laws to address it, and enforcing the laws that are in place. The United States has estimated that only 0.4% of victims have been identified. The country recorded 4,166 successful human trafficking prosecutions, including 335 relating to forced labor, but this is believed to represent only a small fraction of actual incidents ("Trafficking in Persons Report 2010," p. 7). Many trafficking victims have no access to legal services, and those who do are often intimidated into silence by their captors.

Compounding the problem is the relatively weak legal framework available for prosecuting those engaged in human trafficking. One hundred and four countries do not have laws in place to protect victims, and 62 signatories of the Palermo Protocol have yet to register a single conviction (Ibid). The complex nature of the issue — spanning human rights, criminal law, women's rights, immigration, and children's rights — makes drafting comprehensive legislation difficult. Even in the United States, much of the legislation concerning human trafficking is a patchwork of state laws only loosely framed by federal statutes. Law enforcement at the international level is notoriously weak; most international laws simply require action on the part of local governments and contain few enforcement mechanisms or means of prosecution.

The increase in human trafficking in recent years relates to several underlying factors. Criminal organizations have discovered how lucrative the trade can be, with considerable economic incentive in sex trafficking and unpaid labor. Combined with a relatively thin legal framework, significant incentives to engage in human trafficking have emerged. Advances in transportation and mobile communication have also made it easier for traffickers to commit their crimes, cross borders illegally, and evade law enforcement. Furthermore, globalization has generally focused on reducing barriers governing the flow of goods and money, while failing to accommodate the increased movement of human capital. This has created strong demand for labor — both sexual and otherwise — as labor flows have failed to keep pace with flows of capital and goods. This is particularly evident along the US-Mexico border, where increased human trafficking has been attributed to high demand for unpaid labor in the US and a decreased ability of Mexican citizens to travel freely across the border relative to the increased flow of money and goods. In short, people will always seek to follow the flow of jobs, and this makes large segments of the migrant population vulnerable to exploitation in the form of human trafficking.

Existing Legal Frameworks

The most prominent legal framework in the United States with respect to human trafficking is the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), which has been amended several times since its enactment. The Trafficking Victims Protection Act is the first part of the larger law and sets out a definition of human trafficking. The annual country reports produced under the act are used to gauge the recipients of US financial and security assistance with respect to their efforts to confront human trafficking, with the idea that some of that assistance will be tied to compliance with international efforts to curb the crime (TVPA, 1471–1473). An interagency task force was created to monitor and combat human trafficking, drawing on multiple agencies including the Secretary of State, the Agency for International Development, the Attorney General, the Secretary of Labor, the Secretary of Health and Human Services, the Director of Central Intelligence, and the White House (TVPA, 1473). These agencies are coordinated through the task force so that their efforts work together toward common objectives in the prevention and prosecution of human trafficking.

There are a number of prevention mechanisms within the TVPA. These include economic initiatives to provide opportunity in developing nations — such as microcredit programs, initiatives to promote women's participation in economic life, education programs, and programs to raise public awareness of human trafficking. Within the text of the law itself, however, there is little description of these programs and no provisions for funding. The law also includes provisions for trafficking victims, covering requirements to receive funding, definitions of trafficking victims, production of the annual report, investigation and prosecution of offenders, and protections for victims, including clauses related to immigration status (TVPA, 1475–78). The law further sets minimum standards for the elimination of trafficking — the same standards used in the annual report to grade other nations on their anti-trafficking legislative environments. The minimum standards are:

These four standards are intended as a floor upon which governments are expected to build consistently over time, given that human trafficking is both a complex issue and one that remains evolving in international law. The crime itself is fluid, adapting to meet the demands of the market. In some cases, trafficking does not necessarily require movement across borders ("Trafficking in Persons Report 2010," p. 5). People are trafficked for forced labor by overt means such as kidnapping, or by subtler means such as coercion and exploitation. Often, victims begin with a people-smuggling arrangement only to find themselves in a human trafficking situation. Most victims are poor and come from countries with weak legal infrastructures. Because of the often-economic nature of the crime, many victims in this category are migrants to the developed world who enter a form of bondage, frequently to pay for their journey. The high incidence of such scenarios highlights the need for more effective laws, even in developed nations that currently receive high scores from the Secretary of State for their anti-trafficking efforts.

Beyond the TVPA and related acts, the laws governing human trafficking in the United States are often left to individual states. Of considerable impact are laws concerning immigration. The US Justice Department has had difficulty over the past decade finding human trafficking cases to prosecute, partly because victims are often reluctant to come forward. Although they are entitled to protections under the TVPA, they are typically unaware of that fact and therefore reluctant to engage with local law enforcement agencies (Gonzalez, 2010). Arizona's immigration law — which has inspired copycat legislation across the country — is seen by human rights advocates as harming the cause of anti-trafficking efforts. This is critically important because Arizona is one of the main corridors for human trafficking into the United States. Rights advocates argue that the Arizona law effectively criminalizes human trafficking victims on account of their lack of legal immigration status, regardless of how they came to be in the United States, making victims even more suspicious of law enforcement and thereby hindering prosecutions (Kloer, 2010). Other border states may be less hostile than Arizona toward undocumented immigrants, but the general tenor of border states tends to discourage trafficking victims from coming forward.

The European Union functions in a manner similar to the United States. The EU as a whole is guided by a loose set of laws that includes guidelines for establishing jurisdiction and broad guidelines for punishing offenders, and it maintains a continent-wide border patrol agency known as Frontex. However, the specific crimes that constitute human trafficking are addressed differently across member state jurisdictions (Europa.eu, 2010). European nations work with neighboring countries to prevent human trafficking. Italy, for example, saw an influx of illegal immigrants from Tunisia following reduced patrols resulting from political turmoil in that country (BBC, 2011). The Lampedusa case is similar to that of Arizona — it highlights the need for not only comprehensive laws in destination countries, but also cooperation from countries that serve as transit points. While Mexico is generally thought of as a source country for human trafficking, many of the individuals crossing the US-Mexico border illegally come from third-party countries (Hawley, 2010).

The United Nations Palermo Protocol, formally titled the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, was written in 2000 to address a recognized absence of international law on the subject. The protocol was written with three objectives in mind:

Signatories to the protocol were expected to pass laws prohibiting human trafficking and to establish punishments for those convicted of the crime. Signatories were also encouraged to "consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons" (Ibid, p. 3). Within the text of the Palermo Protocol, however, there is no mechanism for ensuring that signatories follow through on their promises or enforce the laws they enact.