The Cracks in the Consensus on Combating Human Trafficking

Mention climate change, immigration rules or health policy, and it is as if one lit a match in a room full of gas fumes.  Stark differences and entrenched positions on the left and the right produce not intelligent debate but hostility and immediate dismissal of proposed solutions.

However, historically there has been one topic on which there has been broad agreement:  the elimination of human trafficking.   Who could be in favor of the scourge of human trafficking – other than the traffickers?  Whether we were talking about sex trafficking or labor trafficking, everyone seemed to concur that this form of modern slavery is unacceptable today and it must be stopped.  Yet, we now may be reaching a point where the unanimity on how to combat sex trafficking is breaking down.  The looming questions have become: “Can you eliminate sex trafficking without stopping the “demand” for trafficked victims?”  Moreover, if one wants to stop demand, what is the most effective and fair way to do so?

This article will provide a brief overview of the current state of human trafficking in the U.S. and Florida and a short analytical history of legislation on trafficking.  Finally, it will look at bills currently before the Florida legislature that attempt to address the issue of demand for commercial sex.  Is sex trafficking emerging as another issue on which the Florida legislature, the people of this state, and the country are deeply divided? 

The Extent of Human Trafficking

Human trafficking is a global problem.  The International Labor Organization (ILO) estimates that there are 40.3 million victims of human trafficking globally. ^[i]   In the United States, more than 49,000 total cases of human trafficking have been reported to the National Trafficking Hotline in the last ten years, and most years the number of human trafficking cases reported increases significantly.^[ii]In 2017, there were 10, 615 victims identified.^[iii]Many suggest that these figures skim the surface of the real problem.   Polaris, the most respected national organization addressing the problem of human trafficking, states that while there is no official U.S. figure, the “total number of victims nationally reaches into the hundreds of thousands when estimates of both adults and minors and sex trafficking and labor trafficking are aggregated.” ^[iv]

The problem is particularly severe in Florida.   The state ranks third in the nation for reported cases of human trafficking, after California and Texas. ^[v] This should not be surprising since one only needs to open the newspapers in many of our major cities to see frequent reports of victims rescued and traffickers arrested and prosecuted.   

The situation becomes even more heart-rendering when we realize that about 25% of the reported cases in Florida involve minors. We also know that children as young as 12 (or even younger) are being targeted by traffickers to be used for commercial sex.  Women and girls are more likely to be victims, but boys also are trafficked. ^[vi] 

Why has human trafficking become such a problem?  Simple answer:  it is very profitable.  In fact, along with drugs and guns, it has become the world’s most profitable industry with forced labor and human trafficking estimated as a $150 billion industry worldwide. ^[vii] .  Sadly, the view among traffickers is that, unlike such commodities as drugs which can only be used once, human beings can be sold repeatedly over time making them much more profitable for the trafficker.

Legislative Framework

The source of legislative authority concerning human trafficking is based on its characterization as modern-day slavery.  The 13^th Amendment to the U.S. Constitution, which came into effect in 1865, abolished “slavery and involuntary servitude” in this country.  However, as we all know, a law, no matter how momentous, does not always completely change how society behaves.  It took more than 125 years for Americans to recognize that, despite the 13^th Amendment, types of slavery persist on the streets, behind closed doors and in agricultural fields in this country. ^[viii]

By 2000, international institutions were waking up to the major problem of human trafficking across the globe. That year, the United Nations General Assembly adopted the Protocol to Prevent Suppress and Punish Trafficking in Persons, Especially Women and Children (The Palermo Protocol) which committed signatory countries (of which there are now 173) to undertake initiatives to prevent and combat human trafficking

Also that year, the U.S. Congress passed The Trafficking Victims Protection Act of 2000 (TVPA)  which gave the U.S. Government new tools and resources to try to eliminate modern forms of slavery domestically and internationally.  Significantly, the TVPA provided a definition of human trafficking that is still the one we use today.  Human trafficking is defined as:

 “(a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or

 (b) 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.”^[ix]

The TVPA has been updated several times, with new provisions and resources.  The most recent reauthorization was the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018.^[x]

All fifty states have also enacted laws to combat human trafficking.  Some organizations assign “grades” to the states for the quality and effectiveness of their human trafficking laws.  This provides ongoing pressure on states to advance and improve their legislation.^[xi]  

Florida law on human trafficking can be found in several statutes, the principal one being the 2018 Florida Statute 787.06 that defines human trafficking for state purposes, sets out penalties for traffickers and some protections for victims.^[xii] 

Another significant Florida statute is 409.1678, known as a “Safe Harbor” law. ^[xiii]It was designed to make it crystal clear that “child prostitute” is an oxymoron and that anyone under 18 who is engaged in commercial sex is, by definition, unable to give consent and is, therefore, a trafficked victim and should be treated as such.  Before this law, children were too often locked up as prostitutes. 

Generally, the laws on the books in Florida (and throughout the nation) take a three-pronged approach to tackling human trafficking:

1. Prevention of human trafficking
2. Protection of the victims
3. Prosecution of the traffickers

 

• Prevention of Human Trafficking

Whichever side of the political spectrum one is on, there is general agreement that one of the best ways to prevent human trafficking is to create an awareness of what it really is, the damage it does to its victims, and what one should do if one sees or experiences it.  This has resulted in laws in Florida that require posting of signs for the National Human Trafficking Hotline (which operates 24/7 across the country) in airports, on highways, railroad stations, and other key locations. ^[xiv]  It has also produced a variety of laws that require training of law enforcement officers, emergency room nurses^[xv]It is hoped that by this awareness and training of those individuals who frequently come into contact with victims, trafficking can be prevented or, at least, stopped in its tracks.

Another approach has been to focus on teaching students how to recognize the signs and risks of being trafficked.  School boards (e.g., Palm Beach County) have approved programs to train middle and high school students.  However, since so many of the programs across the state are voluntary (and therefore hit-and-miss in getting at the most targeted groups), there are now efforts to get legislation approved for the state (SB 982) that would mandate human trafficking training in Florida schools.

 

(b) Protection of the Victims

Everyone agrees that we must help sex trafficked victims.  The damage done to victims who have been sold for sex trafficking can be devastating – physical, psychological, social.  ^[xvi]We know that these victims need help in many forms, sometimes referred to as “wrap-around services.”  They need shelter, food, counseling, protection, health care, education, a job, etc.  Sometimes victims have been forced by their traffickers to commit ancillary crimes, or they have been arrested for prostitution before law enforcement recognizes that they are being trafficked.  They need to have such convictions expunged, so they can try to reconstruct their lives.^[xvii] If they are foreign nationals, they need protection so that they will not be summarily removed from this country.^[xviii]

Legislation and funding are in place (although it is never enough) to achieve these goals. Typically, these provisions receive unanimous support by the Florida legislature.  Who could think that we should not give generously to help a 16-year old who has been sold for sex repeatedly over two years, beaten, and, not infrequently, barely fed?

 

• Prosecution of traffickers

There is universal agreement that traffickers should pay with significant prison time for their crimes.  Over the years, as the extent and seriousness of human trafficking (and especially sex trafficking) in America has been more widely recognized, there has been a growing demand for increased penalties, not just for the traffickers, but also for anyone who knowingly facilitates or financially benefits from the trafficking transaction.

Currently, in Florida, human trafficking is a first-degree felony, punishable by up to 30 years in prison and a $10,000 fine if the trafficking is of an adult by coercion or a child for labor or services.  It the trafficking is for commercial sexual activity with a child or mentally defective or incapacitated person, it is punishable by up to life in prison.  ^[xix]

While there has been a broad societal discussion recently on the problems of mandatory sentences, over-sentencing, and alternatives to long-term incarceration, none of this has focused on how to deal with traffickers.^[xx] Child trafficking is regarded as such a heinous crime, that no one is willing to question the increasing severity of the penalties.  Moreover, with life in prison as a possible sentence, we may have reached the limits on what we can do through sentencing to provide a deterrent to trafficking.

 

With all the legislative activity on prevention, protection of victims and prosecution of traffickers, human trafficking remains a significant problem in America.

 

The Current Debate

A bill has been filed during the 2019 Florida Legislative Session that includes another approach to combating human trafficking that is much more controversial.  This is SB 540, “Human Trafficking” sponsored by Senator Lauren Book (D). The House companion, H 851, was introduced by Representative Heather Fitzenhagen (R). 

The bill include requirements that hotel workers and law enforcement officers be trained on how to identify human trafficking.   We know that there is a great deal of sex trafficking occurring in motels and hotels, so it is essential to turn the staff into the “eyes and ears” of law enforcement.  ^[xxi] Also, in the past, training of law enforcement officers did not always occur.  This legislation will ensure that this happens.

In response to massive outcries after law enforcement raided several massage parlors in Palm Beach, Martin and Indian River counties in February 2019, a provision was added to the bill that would require training for massage therapists and employees.   Illicit spas, their windows darkened, are everywhere in Florida.  According to Polaris, a non-profit that aims to combat human trafficking, an estimated 9,000 “illicit massage businesses” operate in the United States, reaping a suspected $2.5 billion in profits.^[xxii] Women are frequently imported under false pretenses from Asian, forced to surrender their documents and frightened into commercial sex in these parlors.  So, anything that can be done to shutter these spas sounds as if it is a good idea.  Whether a “training requirement” could be adequately enforced and have any effect is open to question.  However, still, this is within the traditional uncontroversial approaches to tackling human trafficking.

The part of the bill that has raised the most eyebrows is a proposal for the creation of a “Soliciting for Prostitution Public Database.”  This would create a database of anyone in Florida who is convicted or pleads guilty to “soliciting, inducing, enticing, or procuring another to commit prostitution, lewdness or assignation, pursuant to s 796.07(2)(f), F.S.”  In other words, the “johns” would be listed in a public database, which would include their names, addresses, color photos, etc.  The person would remain on the list for a minimum of five years.  If the individual does not commit another offense, his name could then be removed.  If, however, he does commit a second offense in this period, it seems that his name would remain on the list permanently.[xxiii]

 Prostitution is illegal in Florida, as it is throughout the U.S. (except for a few counties in Nevada), and there are already penalties ranging from a misdemeanor of the first degree for the first violation to a felony of the second degree for third or subsequent violations. The penalties can include community service, an educational program about the negative effects of prostitution and mandatory 10-day incarceration for a second or subsequent offense. [xxiv]However, a public database is something different.  It is premised not just on punishing someone for a crime or educating them about why they should not have done it, but also on shaming them publicly as a further deterrent. 

However, why has a measure related to prostitution found its way into a bill on human trafficking?

The answer that might be given by one prominent group, Demand Abolition, is this: “Men who buy sex create the “demand” that fuels the illegal sex trade. Without buyers, prostitution (and by extension sex trafficking) would cease to exist.”[xxv] In other words, to stop sex trafficking, we must stop prostitution. Since prostitution is currently illegal, we need to take the situation and law more seriously in order to ultimately eradicate sex trafficking.  Since current penalties for prostitution are demonstrably inadequate, we must take more dramatic actions to stop it.  Hence, the proposal for a public database.

Historically, legislators and advocates have gone out of their way to distinguish sex trafficking from prostitution.  Sex trafficking is inherently coercive.  There is no consent and no room for consent by the victim in sex trafficking.  Sex trafficking is a form of modern-day slavery.   Prostitution, on the other hand, has frequently been viewed as involving an element of free will or consent.  Some sex worker rights groups go so far as to argue that “all sex workers have a right to self-determination; to choose how we make a living and what we do with our bodies.” [xxvi]

However, the claim that prostitution is consensual has always been strongly debated. [xxvii] Many argue that given the very dangerous and difficult life that most prostitutes face, this is not a “career choice” for the vast majority of prostitutes.  Others suggest that all commercial sex, whether sex trafficking or prostitution, is just another manifestation of the normalization of violence against women. [xxviii] Moreover, indeed, there are grey areas in the line between human trafficking and prostitution.  For example, why is a 17 -year old who is engaged in commercial sex regarded as a human trafficking victim, while the day after she turns 18, she is considered a prostitute? The complexities of real life do not always correspond to neat definitions.  

However, it is the clear line that has been drawn between sex trafficking and prostitution that has enabled all fifty states in the U.S. to build a significant legislative framework to protect and help trafficking victims and prosecute traffickers.  The universal support for combating human trafficking has been built on the claim that sex trafficking is different from prostitution – that it is always coercive in nature and a form of modern slavery. 

Now, the proposal to create a public database of “johns” in Florida has reopened the whole conversation on how to combat sex trafficking.  This conversation became even more complicated after the major law enforcement raid on massage parlors in February 2019 referred to earlier.

In the days following the raid, the press widely proclaimed: “Massive sex trafficking bust.” [xxix]  Law enforcement announced that this was the “tip of the tip of the iceberg” of a major sex-trafficking ring.[xxx] Some law enforcement officials highlighted the importance of the link between demand for commercial sex and sex trafficking.  For example, Jupiter Police Chief Daniel Kerr indicated that “if there are customers, then these types of business can flourish.” Sheriff Deryl Loar of Indian River County said the sex buyers involved in this sting “either knowingly or not knowingly were certainly supplying the funds to perpetuate” human sex trafficking.[xxxi]

However, by April 2019, no one from the sting has been charged with sex-trafficking.  Hundreds of johns had been arrested, many charges of prostitution had been filed, and eight Chinese-born women had been arrested for managing illicit business operations.  It appeared that the victims, so far, had refused to cooperate (which happens very frequently).  Without such cooperation, law enforcement has not been able to bring charges of sex trafficking.[xxxii]

Meanwhile, the press & public were having a field day with the story about the highest profile man who was caught in the sting:  Robert Kraft, the owner of the New England Patriots.  Shortly after he was charged with misdemeanor solicitation of a prostitute, the sympathetic (perhaps coordinated) backlash occurred. [xxxiii]

Kraft was characterized as a very charitable, elderly widower who could not have possibly known if there were sex trafficking victims in the spa. Moreover, the skeptics asked: How do we even know whether there really was sex trafficking taking place in the spa?  After all, not a single charge of sex trafficking has been filed.  Is this about stopping sex trafficking or are these charges the actions of the same “morality police” who would like to establish a public database of johns, using “sex trafficking” as an excuse to stop consensual prostitution?  Until sex trafficking charges are filed – and cases won — these questions are going to be raised, even though the background research shows that there is ample reason to suspect that spas are fronts for sex trafficking and that the “employees” are actually sex trafficked victims imported for that purpose from China. 

Because of the controversies these issues raised, the Florida House removed the Public Database proposal from the House bill H851.  Only then, were they able to pass it out of the Appropriations Committee — unanimously.  However, in the Florida Senate, at the time of writing, the Public Database proposal is still being debated behind the scenes and the bill, for the moment, has stalled.

 

Conclusion

For the past couple of decades, legislators, law enforcement and anti-human trafficking advocates have struggled internationally and in America to create a consensus around the need to define and act on human trafficking –and particularly sex trafficking.   We have made real progress.   Now, there is a new focus on the more difficult debate about the root causes of trafficking.  While this is no doubt a very important discussion, it seems clear that If our attention shifts from the “traffickers” who are out to make “big money” to the buyers of sex (the demand), it will be harder to build a consensus to act against sex trafficking.  [xxxiv]

 

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[i] https://www.ilo.org/global/topics/forced-labour/lang–en/index.htm

 

[ii] https://humantraffickinghotline.org/states

 

[iii] https://polarisproject.org/2017statistics

[iv] https://polarisproject.org/human-trafficking/facts

 

[v] https://humantraffickinghotline.org/states

 

[vi] https://humantraffickinghotline.org/state/florida

 

[vii] https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_243201/lang–en/index.htm

 

[viii] https://polarisproject.org/blog/2017/03/29/why-we-need-classify-types-human-trafficking

 

[ix]https://www.state.gov/documents/organization/10492.pdf

[x] https://www.congress.gov/bill/115th-congress/house-bill/2200

 

[xi] https://polarisproject.org/state-laws-issue-briefs

 

[xii]http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=human+trafficking&URL=0700-0799/0787/Sections/0787.06.html

[xiii] https://www.flsenate.gov/laws/statutes/2017/409.1678

 

[xiv] http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0787/Sections/0787.29.html

 

[xv] and others to help them recognize and report human trafficking cases. https://www.flsenate.gov/Laws/Statutes/2018/Chapter464/All – see section 464.013

 

[xvi][xvi] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3651545/

 

[xvii] http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Human-Trafficking-Expungement.aspx

 

[xviii] https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes

 

[xix] 5 S. 787.06(3)(g), F.S. 36 S. 787.06(3)(f), F.S.

[xx]  See, for example, https://www.nytimes.com/2019/04/05/opinion/mass-incarceration-sentencing-reform.html and https://www.sentencingproject.org/issues/sentencing-policy/

 

[xxi] https://polarisproject.org/sites/default/files/A%20Roadmap%20for%20Systems%20and%20Industries%20to%20Prevent%20and%20Disrupt%20Human%20Trafficking%20-%20Hotels%20and%20Motels.pdf

 

[xxii] https://polarisproject.org/sites/default/files/Full_Report_Human_Trafficking_in_Illicit_Massage_Businesses.pdf

 

[xxiii] http://www.flsenate.gov/Session/Bill/2019/540/BillText/c1/PDF

 

[xxiv] s. 796.07(2)(f), F.S.

 

[xxv] https://www.demandabolition.org/the-issue/

 

[xxvi] /www.nswp.org/members/red-umbrella-project

 

[xxvii] https://www.nytimes.com/roomfordebate/2012/04/19/is-legalized-prostitution-safer

 

[xxviii] https://soroptimistdcr.org/wp-content/uploads/2014/09/wpprostitution.pdf

 

[xxix] https://www.nbcmiami.com/news/local/Dozens-Arrested-in-Massive-Sex-Trafficking-Busts-in-Florida-506217161.html

 

[xxx] https://www.palmbeachpost.com/news/20190219/authorities-investigate-human-trafficking-at-area-day-spas

[xxxi] https://www.usatoday.com/story/opinion/2019/03/21/robert-kraft-prostitution-plea-deal-offer-hurts-sex-trafficking-victims-column/3222601002/

 

[xxxii] https://www.miamiherald.com/news/local/crime/article226942349.html

 

[xxxiii]    https://www.ccn.com/robert-kraft-charged-but-backlash-builds-with-sham-sex-trafficking-sting

[xxxiv] http://epaper.palmbeachpost.com/html5/reader/production/default.aspx?pubname=&pubid=daf23f94-2232-4d82-b9c7-dbfb5ce03674