Our Problems With Human Trafficking Don't End With an Arrest

This is part of an ongoing series from the National District Attorneys Association highlighting local criminal justice issues. Previous articles can be found here.

Once viewed as just an international problem, human trafficking has now been identified as a crime reaching epidemic proportions in the United States. Along with this change, prosecution of human trafficking cases has become increasingly more challenging.  

This can be attributed in part to the dynamics of human trafficking cases, which oftentimes present the same challenges as gang, domestic violence and sexual assault cases combined, but also to the transitory nature of the crime and the need for heightened cooperation among state and local governments.

When it comes to sex trafficking, many of the general assumptions about the “standard profile” for victims are incorrect. There are, however, certain vulnerabilities that can make one more susceptible to victimization. A high percentage of victims who are targeted by traffickers have a history of sexual and/or physical abuse, and many minor victims lack familial support or are homeless.

Recent studies also suggest that a significant number of human trafficking victims suffer from mental health challenges, to include post-traumatic stress disorder, memory loss, depression, and anxiety and mood disorders. Many victims also lack formal education and have learning disabilities. Given the adversities that many victims have already endured, and the daily trauma that they are exposed to, drugs and/or alcohol are frequently used as a coping mechanism.  

Victims are also typically manipulated by their traffickers. Many traffickers initiate a romantic relationship as a means of controlling and exploiting the victims. In return, many victims believe that they have a special relationship with their trafficker, and that testifying against the trafficker is a form of disloyalty.

As such, the control that the trafficker has over the victim can best be analogized to a domestic violence relationship, creating very powerful bonds that can be difficult to overcome when prosecuting cases.

To make matters more difficult, human trafficking cases don’t arrive pre-packaged and the lines between victims and traffickers are not clearly delineated at first glance. In what can best be described as a self-preservation effort, some victims of human trafficking cross the line and work alongside the trafficker. 

Referred to as a “bottom,” these young women recruit and train other victims on behalf of the trafficker. The victim, who is also in this case the defendant, creates a legal dilemma for prosecutors with respect to their level of criminal involvement.

While a majority of states have enacted laws that allow sex trafficking victims to vacate criminal convictions for conduct that occurred as a direct result of being a victim of human trafficking, prosecutors must determine what type of proof is necessary for someone to establish themselves as a victim of human trafficking to avail themselves of this statute. Many states have enacted Safe Harbor laws that typically aim to protect human trafficking victims that are minors from criminal conduct. However, for adult trafficking victims associated with commercial sex acts, many laws do not provide protection for other crimes that victims may be involved in.

Another significant challenge we all face is the transitory nature of the victims. Sex traffickers routinely move their victims around from city to city, oftentimes referred to as the “circuit.” This is done for several reasons, including alienation of the victim from any friends or family and to avoid detection from law enforcement. 

Therefore, it is not uncommon for victims recovered in your county to be from another city or state. This makes obtaining requests for testimony and examinations a multijurisdictional affair, where a judge in another county or state may deny the motion if the court determines that returning the victim for trial and testifying creates an undue hardship on the victim.

While controversial methods to secure the victim’s attendance at trial do exist, including temporary incarceration, prosecutors should consider alternative methods to secure witness attendance.  Alternatives include placing the victim under house arrest or using a GPS tracking monitor. The use of non-governmental agencies (NGOs) can also be extremely beneficial to prosecutors. NGOs may be able to provide shelter to the victim pending trial and can often assist in forging a relationship, as well as cooperation, from the victim.

As states continue to identify human trafficking, prosecutors continue to see an increase in the volume of human trafficking cases. 

Understanding victim dynamics can assist us all in determining the best way to meet the victim’s needs, thereby encouraging the development of laws that focus on a victim-centered approach. Recognizing the transitory nature of this offense, heightened cooperation between jurisdictions will contribute to successful prosecutions.