Criminal and Civil Responses to
Forced Labor: A Close Look at
Domestic Servitude
Amanda Kramer
April 2, 2014
Relevant Federal Criminal Laws
• Forced Labor, Attempt/Conspiracy
(18 U.S.C. §§ 1589, 1594)
• Passport Confiscation While Trafficking
(18 U.S.C. § 1592)
• Fraud in Foreign Labor Contracting
(18 U.S.C. § 1351)
• Visa Fraud (18 U.S.C. § 1546)
• False Statements (18 U.S.C. § 1001)
• Willful Underpayment (misdemeanor)
(29 U.S.C. § 215(a)(2)
Penalties
Crime
Statute
Mand.
Min.
Max. Sent.
Forced Labor,
Attempt/Conspiracy
18 U.S.C. § 1589
n/a
20 yrs. life
Passport Confiscation
18 U.S.C. § 1592
n/a
5 yrs.
Fraud in Foreign Labor
Contracting
18 U.S.C. § 1351
n/a
5 yrs.
Visa Fraud
18 U.S.C. § 1546
n/a
10 yrs.
False Statements
18 U.S.C. § 1001
n/a
5 yrs.
29 U.S.C. § 215(a)(2)
n/a
6 mos.*
Willful Underpayment
Statutes of Limitations
• 10 years
– Forced labor (18 U.S.C. § 1589)
– Passport confiscation while trafficking (18 U.S.C.
§ 1592)
• 5 years
– Everything else
See 18 U.S.C. § § 3298, 3282.
Forced Labor (18 U.S.C. § 1589)
Knowingly providing or obtaining
labor or services by one or more of
the “prohibited means”
Prohibited Means
1. Force, threats of force, physical restraint, or threats
of physical restraint
2. Serious harm or threats of serious harm
3. Abuse or threatened abuse of law or legal process
4. Any scheme, plan, or pattern intended to cause the
person to believe that, if that person did not perform
such labor or services, that person or another person
would suffer serious harm or physical restraint
Forced Labor: Overview
• Penalizes giving or receiving services by force
or coercion (unlike with sex trafficking, fraud
is not one of the prohibited means)
• Minor victim w/o force, coercion not enough
(but see 29 U.S.C. §§ 212, 215 re oppressive
child labor).
• No travel required
• No effect on interstate commerce required
Domestic Servitude
• Work done in home of employer
• Employee lives in employer’s home in U.S., away
from home country
• Passport/visa confiscated
• Underpayment/nonpayment
• Restrictions on freedom of movement
• Other mistreatment (verbal/physical abuse, food
rationing, threats, abuse of law)
Domestic Servitude: The Parties
• Employees/Victims:
– Housekeepers
– Cooks
– Child care providers
• Employers/Traffickers:
– Diplomats
– Consulate officers
– UNGA delegates
– UN employees
Principles of Federal Prosecution
“At the outset, the attorney for the government
. . . should not include in an information or
recommend in an indictment charges that he/she
cannot reasonably expect to prove beyond a
reasonable doubt by legally sufficient evidence
at trial.”
U.S. Attorney Manual 9-27.300(B)
Investigative Challenges
• Translation
• Corroboration of victim’s statements
– Crime occurs primarily behind closed doors
– Any witnesses likely inaccessible (because of
immunity or privilege (e.g., marital) or both)
• Financial records and assets often in employer’s
home country
– Process to get records is lengthy
– Request for records makes investigation overt
– Limited enforcement measures
Corroboration
• It is critical to corroborate even non-criminal facts
given by the victim
• Examples of corroborating evidence:
– Outcry witnesses
– Surveillance (e.g., live and video surveillance from
hotels and apartments)
– Photos of scars, cuts, bruises on victim
– Cell phone photographs/texts
– Payment records
– Visa records
– Employment contract
Immunity-Related Challenges
• Inviolability of missions, consulates, and
residences of diplomats
• Official communications inviolable
• Limited ability to enforce subpoenas and compel
testimony of persons with immunity
• Other restrictions in applicable conventions (e.g.,
treatment at arrest, movement within U.S.)
• Potential for obtaining higher level of immunity
through new posting
Immunity from Criminal Charges
• Full Criminal Immunity
– Diplomatic agents at an embassy and members of their
families
– Diplomatic agents at a mission to the UN or OAS and
members of their families
– Representatives traveling to US as part of UN delegation
– Some others
• Criminal Immunity for Official Acts Only
– Consular officers and consulate employees (including
honorary)
– Service staff at embassy
– Lower level officials at UN, OAS
Immunity from Criminal Charges
• Arrest of Those Immune for Official Acts Only
– Arrest ability varies depending on posting
– Typically no arrest for official acts of holder of
official act immunity
– Typically arrest of consular officer permitted for
felonies with arrest warrant
• Arrests of Those with Full Immunity
– No arrests
Potential Outcomes
• Criminal charges filed, arrest made
• Criminal charges filed, no arrest made
• Civil suit filed (18 U.S.C. § 1595)
• Continued presence, T visa, no court filings
Civil Litigation: Challenges
• Confirming immunity level of putative
defendant
• Service of process
• Identifying and locating assets
• Lack of incentive to submit to U.S. court’s
jurisdiction
Other Challenges
• Reciprocity concerns
• Public perception
• Likelihood of conviction/arrest
• Cultural views of submitting to U.S. justice
system
• Negotiating “settlement”