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THE WILLIAM WILBERFORCE TRAFFICKING VICTIMS PROTECTION REAUTHRORIZATION ACT OF
2008
50
KEY PROVISIONS
General Introduction:
The TVPRA of 2008, the William Wilberforce Trafficking
Victims Protection Act Reauthorization, is more far-reaching than any of its
predecessors in creating means by which both forced labor and sex trafficking
can be addressed. The Act focuses on
trafficking within the
Note: This summary describes many highlights of the Act, but other useful provisions are also included in H.R. 7311.
Title I – International Trafficking
1. The Act creates a stand alone minimum standard to determine country Tier ratings based on whether they have made “serious and sustained efforts to reduce the demand for commercial sex …..” This obligation to reduce demand is without regard to whether the commercial sex acts are legal or not under the laws of the country being rated. The Act’s Explanatory Statement prepared by the House managers [“the Statement”] further and specifically indicates the “importance of making progress in this area” when Tier ratings are to be made. The provisions of this Section are intended to have significant impact on countries like Germany and the Netherlands that have legalized prostitution and have to date received Tier I ratings that the coalition has strongly criticized. These ratings should now change, and will in the hands of a properly staffed and supported TIP Office. Section 106(2)(D).
2. Significantly, the above provisions equally apply to the obligation of countries to make “serious and sustained efforts to reduce… participation in international sex tourism.” Section 106(2)(D).
3. The Act specifies that the annual TIP reports must cover all countries, and eliminates prior statutory language that permitted reports to be made only of countries with a “significant number” of trafficking cases. This provision will end the resource intensive battles that now take place between the TIP Office and State Department Bureaus and desks requiring the TIP Office to definitively prove the existence of 100 or more victims before being able to report on known failings of countries to eliminate trafficking. Section 106
4. The Act adds a minimum standard regarding countries’ efforts to protect indigenous minority populations by requiring the countries to provide documentation of citizenship to such populations. This provision will place significant pressure on countries to help protect their most vulnerable citizens from trafficking, by ensuring that they are recognized under and have access to, their rights as citizens. Section 106
5. The Act provides that suspended or significantly reduced sentences should not be taken into account when evaluating a country’s compliance with the existing minimum standard requiring the prosecution of traffickers, but also permits a showing, on a case by case basis, that the suspended or reduced sentences were merited (e.g., were given as inducements to gain the testimony of traffickers in criminal proceedings against higher ranking traffickers, or, in the case of reduced sentences, were given to obtain guilty pleas in difficult cases). Section 106
6. The Act limits the amount of time a country can remain on the Tier 2 Special Watch List to 2 years (with the President able to make exceptions – only up to two additional years – if he makes positive findings are made regarding the country’s efforts). This provision will end the current practice of protecting politically sensitive countries from being given otherwise deserved Tier 3 ratings, by allowing them to remain indefinitely in a Tier category involving no sanctions. Further, at the end of the maximum Special Watch list periods, countries are effectively required to be given Tier 3 ratings unless the President reports to Congress that they have formulated plans providing for significant anti-trafficking reforms and have dedicated sufficient resources to make the reforms possible. Section 107
7. The Act makes clear that no provision in the original TVPA, its subsequent reauthorizations, or in the Chapter 117 Mann Act crimes can be construed as treating prostitution as a valid form of employment. The Act also makes clear, however, that the above provision does not limit the applicability of existing federal or state criminal laws in such areas as income tax reporting or engaging in commercial relations with illegal aliens. Section 225
8. The Senate bill contained a provision that required TIP grantees to certify that they had been trained in and collaborated with those who had been trained in “severe forms” of trafficking in persons. At the coalition’s insistence, this provision has been broadened to require training in all forms of trafficking, severe (i.e. of children or with fraud, force or coercion) or otherwise.
9. Statement language recognizes the importance of the TIP Director position and calls on the State Department to explore increasing the pay rate for the position, a step that would raise the Director’s Ambassadorial rank. The Statement also calls on the State Department to consider allocating space closer to the main State Department Office Building. The Statement language is intended to raise the status and effectiveness of the TIP Office and its Director, and to send a signal to State Department Bureaus and desks to no longer engage in efforts to marginalize its importance.
10. The Act makes the TIP Office responsible for all policy, funding and programming decisions related to its direct grantees, a provision that will give the Office, for the first time, real control over its own grant programs. The provision will also eliminate current, lengthy delays of as long as nine months that now take place before TIP Office grantees receive their funds. Section 102
11. The Act requires that anti-trafficking programs conducted by other State or USAID entities must consult and coordinate their activities with the TIP Office. This is a highly important provision that, in connection with the interagency SPOG [Senior Policy Operating Group] process, will greatly enhance the role of the TIP Office within the State Department and USAID in such areas as “public health” and other programs that deal directly with traffickers. This section will allow real meaning to be given to the floor statement made by Senator Brownback in connection with the passage of the 2005 TVPA Reauthorization. Section 102
12. The Act requires all domestic grant programs to be coordinated by the SPOG, which is chaired by the TIP Office Director. This provision gives the Director important influence over matters related to domestic anti-trafficking policy. Previously, under the TVPA, Federal agencies were expressly able to decide whether or not to subject their anti-trafficking grants and major anti-trafficking policies to SPOG coordination and review, and to do so in such manner “as [they] determine[d] appropriate.” [The SPOG has express statutory authority to review all grants and major anti-trafficking policies of the agencies within its jurisdiction before such grants can be awarded or before such policies can be implemented.] Section 233
13. The Act requires the TIP Director, in coordination with other federal officials, to prevent “the use of good produced or extracted with [slave labor]” from being used by U.S. citizens – and to enter into partnerships with private “foundations, universities, corporations, community based organizations, and other non-governmental organizations” to ensure that this occurs. The Act further expands the types of technical assistance that can be provided to foreign countries, including assistance regarding the prosecution of traffickers, the prevention of trafficking and the protection of its victims. Section 102, 103, 104
14. The Act provides that all grants awarded under the TVPA be distributed on a competitive basis and in transparent fashion, and requires the President to create a system for evaluating such grant programs based on measurable performance goals. Section 105
15.
The Act requires the creation of an integrated database by the Human
Smuggling and
16. The Act creates a Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons. The awards will be given annually to five individuals or organizations – domestic and/or foreign -- for extraordinary efforts to combat forced labor and/or sex trafficking. The provision authorizes the Secretary of State to pay the travel expenses to the United States for each recipient and a guest by the recipient to receive the awards. The provision builds on the current TIP report practice of designating anti-trafficking “heroes,” by ensuring the presence of the recipients to receive their awards and by elevating the awards to the status of statutory Presidential awards. The Presidential awards, properly administered, will greatly enhance and protect their work, and greatly enhance worldwide governmental and press interest in the anti-trafficking initiative. Section 109
17. The Act requires the Department of Labor to report by January 2010 on its implementation of prior TVPA requirements, including providing a list of goods that it has reason to believe have been made with forced labor or child labor. This provision will increase the pressure on the Department of Labor to fulfill its responsibility to implement this section and more aggressively pursue child and forced labor violations. Section 110
18. The Act includes a “Sense of Congress” provision calling on the Secretary of State to seek the establishment of a multilateral framework to ensure that migrating persons are protected from trafficking. Section 111
Title II – Domestic Trafficking
19. Under current law, federal prosecutors bringing cases under the TVPA trafficking of minors provision were required to prove that the defendants had knowledge of their minor victims’ age. Under the Act, no such proof requirement will exist for any defendant who had “reasonable opportunity to observe” the trafficked person – a condition applicable to all but a few traffickers -- and prosecutors will only need to prove that the trafficker knew or recklessly disregarded that the victim was caused to engage in a commercial sex act. For persons such as offsite brothel landlords who have not had reasonable opportunity to observe the victims, the Act lowers the proof requirement standard to “reckless disregard,” thus permitting ancillary supporters of trafficking to be convicted if they were willfully blind to the minor status of the victims engaged in commercial sex,. The provision – which carries a mandatory minimum sentence of 10 to 15 years and requires no proof of fraud, force or coercion for convictions, will greatly enhance the ability to prosecute traffickers and such ancillary supporters as brothel landlords. Section 222
20. Under the Act, the sentencing guidelines for “alien harboring” are significantly heightened if the harboring is in furtherance of prostitution – a conviction that can take place without proof of fraud, force or coercion. Conviction under this section will occur if the trafficker knows or is recklessly blind to the victim’s illegal immigrant status. As to the reckless indifference standard, Statement language makes clear that traffickers have the same affirmative obligation to check the immigration status of their victims as do lawful employers. The provision will effectively make traffickers of illegal aliens criminally liable on a per se basis, subject only to their ability to prove that they exercised reasonable due diligence in seeking to determine their victims’ legal status, and were misled about it. Section 222
21. The Statement clarifies that preying on a victim’s drug use or addictions (whether pre-existing or created by the traffickers) will, in and of itself, form the basis for convicting traffickers under the TVPA. The Statement makes clear that it is criminal for traffickers to utilize “nonviolent and psychological coercion” and will thus significantly enhance the ability to prosecute traffickers who exploit their victims’ addictions or use drugs to facilitate coercion. Given the high proportion of adult trafficking victims who use or are dependent on drugs, this provision, properly implemented by DOJ, will result in provable federal criminal liability for a correspondingly high proportion of traffickers.
22. With respect to sex trafficking through
force, fraud or coercion, the Act lowers the standard of proof from “knowing”
to “reckless disregard” on all matters requiring knowledge of sex trafficking
acts, an act that will permit the prosecution of persons who willfully refuse
to examine whether victims are subject to coercion and abuse. Thus, participants in the commercial sex
industry will no longer escape convictions by willfully ignoring indicia of
abuse of the persons they traffic. Section 222
23. The definition of “serious harm” in the
U.S. Code no longer equates commercial sex acts with “labor or services,” as
the Senate bill, S.3061, had done. Section
222
24. The Act creates a new obstruction crime for
persons interfering with any trafficking investigation. Section
222
25. The
Acts creates criminal liability for persons conspiring to engage in unlawful
trafficking – a potentially major enforcement tool that will foster the
bringing of multi-defendant cases. Section 222
26. The Act
specifies, in an important provision added by the Senate bill to both the
forced labor and sex trafficking sections of the TVPA, that proof of fraud,
force or coercion is now to be gauged through the eyes of the persons in the
victims’ particular circumstances, rather than being viewed through a
“reasonable person” standard. As
trafficking victims are more subject to intimidation or manipulation by acts
that would not generate fear in most other persons, this provision will make it
significantly easier to prove fraud or coercion in cases brought against the
traffickers of forced labor or adult sex trafficking victims. Section
222
27. The Act significantly strengthens the
financial provisions of prior law to ensure that traffickers disgorge the financial
gains of their criminal activities. The
government regularly seizes assets derived from or used in carrying out federal
criminal offenses. Assets forfeited in
trafficking cases will, under the provision, no longer go to the U.S Treasury;
instead, they will be paid to trafficking victims through a “restoration and
remission” process. The Act also opens
up the possibility that victims will be able to obtain civil damages from
anyone who knowingly benefits -- financially or by receiving anything of value
-- from participating in an act in violation of federal Title 77 peonage,
slavery or trafficking in persons crimes.
If these provisions are robustly implemented, they will ultimately
result in significant transfers of trafficker wealth to their victims, and will
sharply reduce the incentives for and risks of engaging in trafficking. Section
221
28. The Act expands federal jurisdiction to
U.S. citizens and permanent residents (or anyone later found in the United
States) who, while abroad, commit, attempt to commit or conspire
to commit federal slavery, forced labor or sex trafficking crimes. Under the Act, these persons will now be
subject to prosecution in the
29. The Act expands criminal liability to anyone financially benefiting or receiving anything of value from any federal trafficking crime, so long as the defendants have the required level of knowledge that their victims were subject to force, fraud or coercion. This liability previously extended only to those benefiting from sex trafficking crimes, but is now applied to all of the slavery and forced labor crime, significantly expanding the reach of prosecutions beyond slave-holders and those who directly recruit, harbor, transport, provide or obtain victims, but to all those up the chain of command or ancillary to it who may profit from the venture. Section 222
30. The Act establishes passport restrictions
for persons convicted of crimes related to child sexual exploitation (18 USC §
2423) if they crossed international borders to carry out their crimes. Section
237
31. The Act requires DOJ to create a new model state law to further a “comprehensive approach” to investigating and prosecuting human trafficking, and to do so by drafting provisions that criminalize sex trafficking without proof of force, fraud or coercion, and whether or not the victim is a minor. The new model law, and D.C. Criminal Code D.C. Code §22-2701 et seq. which makes all acts of pandering and pimping per se crimes even if no proof of fraud, force or coercion or victim minor age is offered, will be required to be posted on the DOJ website and distributed to the Attorney General of each state. Given the fact that the current DOJ state model law only authorizes sex trafficker prosecutions if fraud, force, coercion or the sex trafficking of minors is proven, this provision is extremely important to the coalition and was a key element of numerous coalition letters to DOJ and to Congress. Monitoring the promotion and passage of the new model law will be a major coalition responsibility in order to ensure better state prosecutions of sex-traffickers and in order to ensure that DOJ promotes the new model law at least as actively as it promoted the present one. Section 225.
NOTE: Items 32 – 39, involing DOJ reports to
Congress, were added to the Act
although not in the original House-passed or Senate bill.
32, This highly important reform was added to the Act to mandate that states can no longer report a single number for “prostitution and vice crimes” when submitting their annual crime statistics to the FBI. Under the new provision, States will be required to separate their reports into three categories of violations under their criminal laws: those unlawfully assisting or promoting commercial sex acts, i.e. traffickers; those unlawfully purchasing commercial sex, i.e. johns; and those unlawfully providing the commercial sex acts, i.e., the victims. This reform should dramatically reveal the extent to which State enforcement is disproportionately focused on arresting victims rather than their traffickers and johns. Under the reform, human trafficking crimes will also now be placed in the most serious crime category under the two principal State reporting mechanisms (UCR and NIBRS). Section 237(a-b)
33. DOJ is required
to report on its activities to enforce Chapter 117 (Mann Act) crimes from 2001
to 2009, including number of prosecutions, convictions, and multiple-defendant
cases. Section 237(c)(1)(A)
34. DOJ is further
required to report regarding the number of prosecutions, convictions and
multiple defendant cases, for crimes against minors, when the victims above the
age of 18 when their traffickers are arrested or otherwise identified (i.e.
“look-back” cases). This reporting
requirement will put prosecutors under serious pressure not to disregard cases
they could be prosecuting without force, fraud or coercion proof requirements,
and to bring trafficking of minor cases even when the victims were above the
age of 18 when the prosecutions of their traffickers take place. Section
237(c)(1)(A)
35. DOJ is further required to report
regarding the use of restitution and forfeiture provisions in human trafficking
cases. Restitution and asset forfeiture
are required under the TVPA, but have been relatively rarely used. (See the 6th bulleted point under
item 15 above.) This reporting
requirement will put pressure on DOJ and U.S. Attorneys to use restitution remedies
more frequently and should deter trafficking crimes by increasing the financial
risks of the traffickers. Section 237(c)(1)(B)
36. DOJ is further
required to report regarding its activities to enforce Chapter 95 and 96
(racketeering RICO offenses) in sex and forced labor trafficking cases. Prosecutors able to prove that sex
traffickers violated state anti-pimping statutes can (and have) obtained RICO
convictions by merely offering additional proof that the traffickers furthered
their unlawful state conduct by using such instrumentalities of interstate
commerce as cell phones or condoms manufactured outside the state where the
offenses occurred. The RICO Act is
thus, under current law, a functional equivalent of the original House-passed
bill’s Mann Act provision -- and it has been sparingly used in the past to
convict sex traffickers. The Act’s
provision calling on DOJ to report on its intended use of the RICO Act to
convict traffickers could lead the way to further, vigorous federal
anti-trafficking prosecutions. Section 237(c)(1)(C)
37. DOJ is further required to report regarding its activities to enforce the DC Code’s pimping and pandering laws, which include per se statutes that federal prosecutors are responsible for enforcing. The report must include identifications of the multiple-defendant cases brought under the DC Criminal Code provisions which do not require proof of force, fraud or coercion for the conviction of sex-traffickers of adults. This provision will create strong pressure on DOJ and the U.S. Attorney’s Office for DC to bring multiple-defendant cases in D.C., where the only proof required will be that sex-traffickers sex-trafficked their adult victims. If such cases are brought, they can serve as important federal leadership models for state prosecutors throughout the country, encouraging them to prosecute traffickers under similar criminal statutes in effect in their jurisdictions and, when proposed and enacted, under the new model law that DOJ is required to prepare and submit to the states. Section 237(c)(1)(D)
38. Subject to the availability of
appropriations, DOJ’s National Institute of Justice [“NIJ”] is mandated to
conduct a comprehensive study of Internet-based crime in the sex industry, as
well as best practices in investigation and prosecution of these crimes. (This is a new provision, not present in the
original House-passed or Senate bills.) Section 237(c)(2)
39. Also subject to the availability of appropriations, NIJ is mandated to conduct a comprehensive study of the application of state human trafficking statutes, including statutes based on the DOJ model law, and the impact of the current model law on enforcement of existing State pandering statutes. Section 237(c)(2)
40. DOJ is
required to report to Congress within 90 days on the status of its study on the
commercial sex industry, as mandated in the TVPRA of 2005, and on its projected
completion date. When completed, this
study should reveal, for the first time, such facts as the extent of the unlawful
commercial sex industry, the incomes generally derived by traffickers and
others in the industry, the median ages and medical/psychological conditions of
victims, studies of the nature of johns and identification of the different
modes of trafficking (e.g. massage parlors, pimp-controlled street
prostitution, internet-based, brothels, etc.).
Section 237(c)(3)
41. Within one year of the Act being signed into law, HHS and DOJ will be required to submit a report to Congress on the extent of any “service gap” between domestic and foreign national survivors of trafficking. Under current law, domestic victims are not provided specialized services that are offered to foreign national victims, even if subject to the same acts. The study should help end this discrimination, and could provide important justification for appropriations to fund all the TVPRA-authorized programs for domestic and foreign national victims. Section 213(b)
42, Authorized programs to serve victims of human trafficking:
i. The Act authorizes a new program for providing services to U.S. citizen survivors of human trafficking. The new program is authorized up to $2.5m for 2008; $5m for 2009; and $7m each year for 2010 and 2011 for HHS and DOJ respectively. Section 213(a)(1)
ii. The Act also reauthorizes the TVPRA 2005 programs, including the authorization to support shelters for minors that has never been funded. Title III
iii. The Act also reauthorizes TVPA programs for services to trafficking survivors which have been used to fund services for foreign nationals, and other HHS programs like the “rescue and restore” initiative and the national hotline. Title III
43. The Statement calls on DOJ to review the relationship between its Criminal Division’s Child Exploitation and Obscenities Section (CEOS) and the Civil Rights Division’s Human Trafficking Prosecution Unit (HTPU), and to promote a coordinated approach to trafficking prosecutions. Currently, CEOS is responsible for prosecuting sex trafficking of minor and other child exploitation cases; other units of the Criminal Division prosecute Mann Act cases (transportation for illegal sexual activity and related crimes); while HTPU is theoretically responsible for all other slavery, forced labor and sex trafficking of adults with force/fraud/coercion crimes. The split in responsibility has created a lack of accountability within DOJ in prosecuting sex trafficking cases and has created controversies because of differing policies of the different units. The Statement replaces a provision in the original House bill that assigned all responsibility for prosecuting sex trafficking cases to the Criminal Division and all forced labor trafficking cases to the Civil Rights Division.
44. The
Act expands protection to trafficking victims and their families in several
respects, including by broadening the family members eligible for immigration
assistance when threatened; allowing witnesses to come back to the
45. Incorporating legislation that has been proposed by Congressional sponsors for many years, the Act streamlines the eligibility process for minor foreign national victims to access services, and gives greater authority to HHS manage such cases – doing so in recognition of the fact that minors need immediate access to services without first being required to collaborate with law enforcement officials. This provision provides for expedited assistance to foreign national juvenile victims of trafficking for up to 120 days, while eligibility determinations are made for longer-term assistance. Such determinations are required to be made under the exclusive authority of HHS, and other federal officials are obligated to notify HHS within 24 hours if they encounter minors believed to be victims of trafficking. The Secretary of HHS is obligated to consult with the Attorney General, Secretary of DHS, and expert private organizations in making eligibility determinations for assistance, but may not require that the minors cooperate with law enforcement as a condition for receiving it. The provision requires the Secretary of HHS to notify the Attorney General and Secretary of DHS within 24 hours after making an interim eligibility determination. Section 212
46. Further
incorporating the long-proposed legislation, the Act also contains an extensive
provision improving the treatment of all “unaccompanied alien children” found
at US borders, and for improving their care and custody if they remain in the
47. A new crime with a maximum sentence of five years is
created, to prosecute persons who recruit foreign workers overseas for
employment in the
48. The
49. The Act creates special procedures to protect holders of diplomatic domestic worker visas (A-3 / G-5 visas). The Statement makes clear that although this provision is sensitive due to its potential effect on diplomatic relations and reciprocity to U.S. diplomats abroad, it is nonetheless necessary because of the failure of the Department of State to take domestic worker abuse cases seriously. The provision requires the Secretary of State to suspend the issuance of such visas to all diplomatic personnel of specified countries “for such period as the Secretary determines necessary,” if the Secretary finds that the country’s missions or employees have abused or exploited A-3 / G-5 workers, or tolerated such abuse. The Act explicitly requires that written employment contracts be given to A-3 or G-5 visa applicants and requires the State Department to maintain a file containing the employment contracts ,contact information for the employees, the immunity levels of the employers and information regarding allegations of abuse. It further provides that if an A-3 or G-5 visa holder files a civil claim based on the violations of the TVPA, or based on violations of their contracts or U.S. or state employment laws, the visa holder may remain and work legally in the United States for a period sufficient to participate in related proceedings. The Act requires the State Department to report on the feasibility of monitoring the treatment of such workers, as well as on compensation remedies for violations of employment contracts. The Act requires the Secretary of State to cooperate with investigations into trafficking and worker exploitation of A-3 and G-5 visa holders, to the extent possible under the Vienna Convention on Diplomatic Relations. Section 203
50. Title IV – Child Soldiers. This title prevents the provision of various forms of military assistance to countries that use children in government military forces or government-supported armed groups. This will be an important tool to address the use of “child soldiers” around the world, who in addition to being placed in situation of extreme violence and danger, are regularly victimized by brutal physical and sexual abuse. The title includes an extensive “Sense of Congress” section calling on the U.S. government to engage in negotiations with foreign governments designed to end the use of children in armed groups.
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