Convictions

Civil Litigation on Behalf of Trafficking Survivors

Once a trafficker has been identified and caught, criminal prosecution is one avenue to bring justice. While pursuing a criminal case may be the most obvious way to make a trafficker answer for her or his crime, civil litigation is another option that, depending on the circumstances, might be appropriate in addition to or instead of pursuing a criminal case. A booklet published by the Immigrant Justice Project of the Southern Poverty Law Center "Civil Litigation on Behalf of Victims of Human Trafficking," authored by Daniel Werner and Kathleen Kim, provides an overview of the role of civil litigation in combating trafficking and aiding survivors.

There are many reasons to pursue a civil case on behalf of a trafficking victim. Werner and Kim suggest that "Civil litigation gives power to the powerless and is a critical tool to correct deep and pervasive wrongs" (xvii). In a presentation entitled "Civil Remedies for Victims of Human Trafficking," Kim suggests that such cases can be empowering for survivors, since they have more control over these cases than criminal cases. While survivors sometimes may receive restitution in criminal cases, Kim also points out that sometimes the damages exceed the amount they are awarded; moreover, civil cases require a lesser burden of proof than criminal cases, meaning that they can be successful even when a criminal case was not. In their booklet, Kim and Werner suggest that "[l]itigation also discourages would-be-traffickers and employers hiring trafficked persons from engaging in these practices" (1).Thus, civil cases can be another source of deterrence, since they are another way to punish traffickers where it hurts the most: in the pocketbook.

Civil cases on behalf of trafficking survivors are certainly not easy. Though they can be empowering for survivors, they can also be painful and difficult. Werner and Kim point out that such cases require cultural competence and an ability to work closely with the client as an equal and collaborator. These cases can also require a great deal of resources in terms of time, energy, and money (Werner and Kim 1).

Depending on the type of human trafficking, civil cases may face certain limitations. For a variety of reasons, sex trafficking cases have not lead to many civil cases. As Werner and Kim point out, testifying can be traumatic and re-victimizing for survivors of sex trafficking (11). Participating in a civil case, far from being empowering, may be extremely harmful and hinder rehabilitation. Moreover, given that commercial sex work is often "not recognized as legal work"(11), many of the laws used for civil cases on behalf of labor trafficking victims will not apply to victims of sex trafficking; locating defendants can also be difficult. Since criminal sex trafficking cases have been more successful than criminal prosecution in labor cases, pursuing the criminal angle may be more effective.

Civil suit on behalf of domestic workers who are trafficked also poses challenges, albeit for different reasons. Many of the United State's labor laws do not apply to domestic workers (Werner and Kim 10). This lack of protection makes people more vulnerable to exploitation as domestic slaves, and makes it harder to seek restitution on behalf of victims. Moreover, foreign diplomats have been identified as perpetrators in these cases, and they are immune from civil and criminal liability in the United States. As an aside, this problem is certainly not confined to the United States (indeed, according to the 2009 Trafficking in Person's Report, Belgium and France also face problems with foreign diplomats using domestic slaves).

Civil action can be brought against traffickers under a number of different causes of action. The Trafficking Victims Protection Reauthorization Act of 2003 amended the 2000 TVPA to include a private right of action. As of the 2008 booklet by Werner and Kim, over 20 civil lawsuits have been filed under this law; for cases under the TVPRA, plaintiffs must have been victims of forced labor, sex trafficking, or trafficking into servitude (Werner and Kim 29). Though many states have enacted anti-trafficking legislation, only California has adopted state level private right of action legislation for victims of trafficking (Werner and Kim 38).

Cases can also be brought under other laws that are not specific to trafficking. For example, successful cases have been brought under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). Cases brought under this act "must be based on a 'pattern' of 'racketeering activity'" (45); under the TVPRA, human trafficking crimes is considered racketeering activity. Cases can also be brought under various labor laws, such as the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. Claims can be brought under many other acts relating to discrimination and torts. Depending on the situation, defendants may be liable for a variety of damages, including back pay, over-time pay, punitive damages, compensatory damages, treble damages, restitution, and attorney's fees.

 

Causes of trafficking (2)

• Lack of economic opportunity- with no jobs at home, people are forced to go abroad or starve
• Feminization of migration- as the international labor market shifted its focus to women-staffed occupations, the population vulnerable to trafficking ballooned
• Organized crime syndicates- elusive and adaptive, crime syndicates have maximized their profits from trafficking by taking advantage of the large number of people seeking work abroad
• Government corruption- trafficking will be difficult to solve with customs officials and other government staff accepting bribes to facilitate the trafficking
• Poor education- many uneducated, desperate men and women are duped into trafficking by manipulative recruiters
• Low awareness of trafficking- the fewer people that know about trafficking, the less awareness there is, and the less chance that an effective movement can be mobilized to effectively fight the issue

Illegal organ trade in Pakistan: men selling their kidneys. Source: Corbis

Stakeholders

• Governments- Integral in creating anti-trafficking legislation and enforcing it through a strong justice system, governments also have the resources to develop effective awareness campaigns to educate the public and outgoing migrants on trafficking as well as provide direct services to victims.
• Non-Governmental Organizations (NGOs)- Key in advocating to create or amend existing legislation, developing new legislation in conjunction with governments, and, because of their in-the-trenches perspective, training law enforcement and social workers about trafficking as well as running awareness campaigns, providing legal assistance to victims, and offering direct services to victims of trafficking. The shortcoming of NGOs is that they often work with extremely limited resources and because of this, operate at the whim of grant stipulations, which can alter their programming and put the stability of their services in jeopardy without guarantees of long-term funding.
• Law Enforcement- Integral in conducting raids to free victims and enforcing anti-trafficking legislation on the streets. Training on recognizing trafficking situations is needed to have a well-informed police force that is aware of the issue in its various forms.
• The Media- Plays a key role in raising awareness and framing the issue in the public's eye. It is important for the media to portray trafficking as not only limited to sexual exploitation but also forced labor and its other forms. Further, the media should portray trafficking not as an exotic, isolated issue but, where appropriate, as an ongoing problem that exists within our communities.
• The Public- Everyday people can do much to stem the tide of trafficking. Awareness by itself is a big step- we cannot begin to effectively address this issue unless we know of it. Further, the more people that are educated about trafficking, the more eyes and ears there will be to recognize a trafficking situation, making it harder for traffickers to conduct their business.

A child soldier in Africa. Often times children can be forcibly removed
from their communities and forced to join armies. Source: Corbis

The Connection to International Labor Migration

The Philippine economy today is heavily dependent on the export of human capital or migrant labor. The resulting income, or remittances, has various macro & micro economic benefits and provides much-needed cash to families who generally spend it on education, health, and homes; however, the wealth is not distributed equally throughout the population. Because higher education is generally private in the Philippines (almost 80% of students in higher education in the Philippines are attending private schools), only those with money can afford it. Because higher education is an important factor in finding work abroad, generally only those with money to begin with benefit from migration and the resulting remittances. This means that families receiving remittances are generally not poor, thus the income gap between rich and poor increases (Tullao et al.). Migration's ability to alleviate poverty, therefore, remains unproven.

Although migration and trafficking are not the same, they share many similarities. In the case of the Philippines, trafficking is an industry that benefits from a culture of migration and newfound remittance-funded economic power that fuel the romanticism and mystique of working abroad. Trafficking thrives on weak economies with large uneducated, poor populations. It comes hand-in-hand with unemployment and underemployment. Trafficking is a bi-product of an unhealthy economy in that only when a sizable group of the population has become financially vulnerable and desperate does it reach its full exploitative, profitable potential. The unemployment and low wages that migrant workers and trafficking victims want to leave behind is the same. In the end, they chase the same dreams except that migrant workers, while still at risk to abuse, are given the chance to fulfill them while trafficking victims never come close.

Culture of Migration

Mega shopping malls reflect the materialistic side of Philippine culture (Source: Corbis)
International labor migration is ingrained in the Philippine consciousness as a path to financial stability and a way to effectively provide for one's family. Over the decades migrants have returned home wearing designer brands, carrying boxes of foreign made goods, and possessing the most valuable resource of a poverty infected nation- cold hard cash. Returning migrants, or balikbayans as they are referred to in the Philippines, bring with them stories of life abroad in the UK, Qatar, the US, Hong Kong, or Australia. They dazzle relatives and neighbors with their newfound worldliness and financial power and as a result move up in their social standing. This is the culture of migration in the Philippines. Migrants promote overseas work simply by coming home, bringing gifts, and perhaps telling a few stories. They are the most effective promoters of international labor migration for their brothers, sisters, cousins, nieces, and nephews will observe this wealth and view migration as the key to financial success. Often times, as we have seen from the state of the Philippine economy, they are not wrong.

This migration culture makes it easy for traffickers to sell a dream to vulnerable men, women, and children. As previously mentioned, higher education is generally closed to those without money, yet is integral to working abroad. This is where traffickers move in. They offer provincial women jobs in the city or abroad as waitresses or singers. They offer men well paying jobs in factories or farms. They promise money, enough to take care of the family, but their promises are empty. The reality is forced prostitution, domestic servitude, forced labor, or some other form of exploitation. The culture of migration helps convince these poor, often uneducated men, women and children that migration is worth the risk because they have seen the gleaming remittance-funded house down the street and heard stories of life abroad.

Economic Factors
Shanty towns dot the urban landscape in the Philippines (Source: Corbis)
Remittances are extremely important for the Philippine economy reaching $US7.6 billion by 2003 and equivalent to 20.6% of the country’s exports and 19.4% of its imports (Yue). If remittances are increasingly important to the country's economy, they therefore constitute a primary tool for local economic development- an influx of foreign currency from healthy economies abroad to be used towards creating industries and jobs at home. Depending on how they are used then, remittances play a key role in either combating or promoting the trafficking industry.

The Philippines remains a poor country. It is a place where trafficking thrives because there is a large vulnerable population that dreams of going abroad to earn foreign wages. The large influx of cash provided by remittances carries with it the potential to stimulate local development, create jobs, improve the standard of living, alleviate poverty, and as a result make a significant dent in the trafficking industry. If remittances are used productively in a way that promotes local economic growth, creates jobs, and increases wages then the Philippines will be on its way to ending modern day slavery within its borders.

Current efforts to combat trafficking are primarily reactive. For example, the government conducts rescues after the victims have been enslaved. Or NGOs counsel victims and provide temporary shelter for them once they have been trafficked. Or the courts attempt to prosecute the traffickers after the fact (there have approximately 10 convictions in the Philippines since it passed its anti-trafficking bill, RA 9208, in 2003). These reactive services are critical because they support those who have been victimized by offering rehabilitative and reintegrative services. But combating trafficking must involve a holistic approach. There must also be active efforts to address trafficking before the problem starts.


Poverty in Manila (Source: Corbis)
Prevention programs that provide information on the dangers of trafficking to at-risk populations are no doubt helpful; however, it is difficult to dissuade someone from migrating in the face of economic desperation. Even if these men and women are aware of the risks involved, this does not change their financial and economic reality and need to provide for their families. This does not change their desire to live a better life. There needs to me something more than preventative information.

The Power of the DollarRemittances provide an excellent opportunity to address socioeconomic issues like poverty and trafficking through building the local economy. Trafficking is made possible by economic desperation, but if remittances are used to build businesses and stimulate the local economy, then over time trafficking can be reduced or eliminated through an increase in living standards and a reduction in unemployment. But these improvements must reach all sectors of society and, in regard to trafficking, especially the poor. Higher education must be made accessible to all income groups. The bottom line is that the estimated $20 billion generated annually by international labor migration can do a great deal in spurring local development, creating local jobs, and eventually minimizing the need to leave the country for work; however, these funds must be managed and invested properly to be truly effective.


Money changers are a popular channel through which to send remittances (Source: Corbis)
The Philippine government currently has no control over how remittances are spent. With the rampant corruption that runs through its hallways; however, perhaps this is a good thing. Nevertheless, there needs to be an organization or coalition that can help migrants manage their funds back home in ways that help not only their families and friends, but their community and ultimately their country. In the absence of government initiatives, microcredit, social entrepreneurship-based non-governmental organizations like Unlad Kabayan become integral in organizing and distributing remittances for local economic benefit. Although distribution of remittances for local economic development would, under ideal circumstances, be the responsibility of the government because of superior funding, national reach, networks, etc., existing government corruption is a deal breaker when managing a resource that can play a large part in reviving the local economy.


Filipinos are a large part of the global sea farer industry (Source: Corbis)

Balikbayans, or overseas migrant workers, are called the heroes of the Philippines and in many ways they are having staved off economic troubles through the strength, and wages of foreign markets. But sending money home is only the first step. Remittances can truly transform the Philippine economy and over time, potentially turn the country from a labor export country into a labor import country if its economy can be brought back to life. If remittances are used to create local businesses, create local jobs, raise local wages, and in general invested in the Philippines instead of buying imported goods and focusing solely on training people to leave the country, then the Pearl of the Orient will be taking the first step towards economic independence and improving quality of life at home, including the eradication of trafficking.

An Uncertain Future
Makati, Manila- an island of wealth in a sea of poverty (Source: Corbis)
Has the Philippine government made a mistake by emphasizing the role of international labor migration in the economy? This depends on how the benefits of this decision, in this case remittances, are managed. The local economy is weak, jobs are few, and wages are low. The government cannot ignore the local economy while depending on foreign markets to keep it afloat. Migration labor is not open to all. It is mainly the rich who benefit from remittances. The government continuing to support international labor migration and ignoring local development is almost equivalent to them supporting the gap between rich and poor, which will only worsen if international migration continues in its present pattern. Higher education must be made more accessible to all. The benefits of remittances must trickle down to all levels of society.

Currently the Philippine government has been signing free trade agreements on the condition of relaxed migration laws. While this may benefit those who can afford to become nurses, accountants, computer specialists, etc. abroad, the poor are left out in the proverbial cold at home to survive in a broken economy. They are left desperate and vulnerable to the schemes of traffickers. Further, the cheap imported foreign goods that flood local markets once these agreements are signed will only further shrink local business and make it increasingly difficult for the country to stand on its own.


The Philippine Stock Exchange (Source: Corbis)
The future of trafficking in the Philippines is intertwined with international labor migration because the resulting remittances are an integral factor to the development and survival of the local economy. Policy makers must consider the long-term effects of international labor migration and its impact on the local economy as well as its influence on poverty and trafficking. The government must institute and implement policies that protect its migrants and ensure maximization of remittances to fuel local economic growth. It must stop looking to the exchange rate as a barometer of economic health and develop serious measures towards poverty alleviation and job creation at home. Trafficking is a solvable problem. It cannot be fixed overnight, far from that, but significant progress can be achieved through executing well-planned development strategies that utilize existing resources to improve the local economy.

For now, the Philippines has the potential to change for the better; however, whether it meets this potential remains to be seen.

Sources:
Labor Mobility and East Asian Integration
Siow Yue CHIA
Singapore Institute of International Affairs
Asian Economic Policy Review (2006) 1, 349–367

The Human Trafficking

Source Countries vs. Destination Countries

Trafficking is an issue that connects poor countries to rich countries, the supply to the demand. The flow of trafficking victims is generally south to north, and east to west- in other words the poor moving to meet the demands of the rich. Victims are generally from South East Asia, Eastern Europe, and Latin America. Approximately 80 percent of trafficking victims are women and girls, and up to 50 percent are minors. This can be attributed to the feminization of migration. As demand for domestic help and entertainers, among other female-oriented jobs, has increased around the globe, the vulnerable population of poor women and girls from developing countries seeking employment abroad has kept pace offering up a steady stream of migrants hoping to escape poverty and support their families back home.

Child beggars in Mexico. Often girls like these are part of a larger network
of older women and young children recruited to beg. Source: Corbis

Defining Human Trafficking
The U.S. Trafficking Victims Protection Act (TVPA) of 2000 defines trafficking as:
1) 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 is under 18, or

2) 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 subjecting that person to involuntary servitude, peonage, debt bondage, or slavery.

The keywords to understanding trafficking are: deceit, coercion, forced labor, and sexual exploitation.

Filipina domestic workers in Kuwait escape to their embassy after suffering
violence and sexual advances at the hands of their employers. Source: Corbis

Human Trafficking 101Slavery was officially abolished in the United States with the passing of the Thirteenth Amendment of the Constitution in 1865.

Yet today slavery remains a thriving industry...

Human trafficking (trafficking) is modern day slavery. Trafficking generally involves organized crime syndicates who profit tremendously from the forced prostitution and/or labor performed by its victims. Trafficking has become so profitable that it has superseded the traditional cash cows of drugs and arms trade in some criminal organizations.

Trafficking vs. Smuggling

Trafficking vs. Smuggling

Trafficking and smuggling are often confused, but are NOT the same. Smuggling is the illegal crossing of a national border, and is a criminal act for the both the smuggler and the person smuggled. Trafficking, on the other hand, is the crime of slavery-like labor or commercial sexual exploitation, and may not involve any transportation at all. It is a crime committed by the trafficker against a victim, and so only the trafficker has committed a criminal act (Polaris).

Regarding forced migration or movement, while a trafficked person may experience forced movement during the trafficking, the forced movement or confinement is not by itself trafficking, absent other factors. It is the slavery-like labor exploitation or commercial sexual exploitation that determines whether trafficking has occurred. In some trafficking cases, little to no movement or transportation occurs (Polaris).

Trafficking does not necessarily require transportation, but it does always signify someone being deceived or coerced into a situation where they are forced to do some kind of labor against their will.

Trafficking is an umbrella term for persons being forced into activities such as:

• Prostitution
• Forced labor (factories, sweatshops)
• Domestic servitude
• Begging
• Soldiering
• Commercial or illegal adoption
• Camel jockeying (young boys)
• Organ trading

 

Chinese migrant laborers work 12-hour shifts at construction sites for
little pay amidst miserable work & living conditions. Source: Corbis

Conclusion

Human trafficking is a international crime, and it is unfortunately flourishing due to the current global financial crisis. With global demand for labour decreasing, impoverished workers find themselves taking greater risks than before in order to survive.

-the cooperation of the public, government, and Non-Governmental-Organizations are one of the ways to solve the problem of human trafficking in the country.

-Lastly, human trafficking is a highly complex and growing criminal industry which must be addressed now.

HOW DOES HUMAN TRAFFICKING WORK?

• Factor 1: Push/Pull of human trafficking
  
• Factor 2: Reality Factor
  
  • Vulnerability
  • False promises
  • Some children are sold/given away by parents
  • Familial and community connections
• Factor 3: Commodification of people
  
  • It is easier to smuggle people than drugs or weapons
  • Mafias or loosely organized crime net works
  • People are reusable and resalable