104G
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 11, 2013
RESOLUTION
RESOLVED, That the American Bar Association urges local, state, territorial, tribal and federal
governments to enact legislation allowing adult or minor human trafficking victims charged with
prostitution related offenses or other non-violent offenses that are a direct result of their being
trafficked to assert an affirmative defense of being a human trafficking victim.
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REPORT
The Trafficking Protocol defines “trafficking in persons” as “the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of exploitation.”1
In March of 2012 President Obama directed his Cabinet to redouble efforts to eliminate
human trafficking—or modern-day slavery.2 While there are numerous government
organizations and non-governmental organizations that publish data on human trafficking, the
data can vary greatly depending on the methodology used and how human trafficking or modern
slavery is defined for the study.3 The following statistics about the number of people impacted
by human trafficking are offered in this report in order to provide a general depiction of the
extent of human trafficking. According to the International Labor Organization, it is estimated
that there are 20.9 million victims of modern slavery around the world at any given time.4
According to the U.S. Department of State’s Trafficking in Persons Report, each year about
600,000 to 800,000 people are trafficked across international borders.5 There are about 14,500 to
17,500 people trafficked into the United States annually.6 Presently, most of the data available
focuses on international trafficking and does not specifically estimate domestic trafficking within
the United States.7 However, one revealing statistic is that there are about 244,000 to 325,000
American youth who are at risk of sexual exploitation within the United States.8
Adult or minor victims of human trafficking endure terrible and inhumane treatment,
which results in lasting physical, emotional, and psychological scars. These victims are beaten,
sexually assaulted, starved, imprisoned, threatened, and/or psychologically controlled. It is
unfortunate that the nature of human trafficking either directly or indirectly results in commercial
sex acts, illegal sexually explicit performances, labor violations, or other crimes being committed
by victims of human trafficking. Often, victims of human trafficking are arrested and convicted
for prostitution and other related offenses.9
1
Jill Laurie Goodman & Dorchen A. Leidholdt, Lawyer's Manual on Human Trafficking: Pursuing Justice for
Victims, available at http://www.courts.state.ny.us/ip/womeninthecourts/LMHT.pdf (last visited Dec. 11, 2012)
(citations omitted).
2
U.S. Department of Justice, The Justice Blog, Helping the Victims of Human Trafficking,
http://blogs.justice.gov/main/archives/2492 (last visited Dec. 11, 2012).
3
PBS Frontline, Sex Slaves: Estimating the Numbers, http://www.pbs.org/wgbh/pages/frontline/slaves/etc/stats.html
(last visited Dec. 11, 2012).
4
U.S. Department of State, Trafficking in Persons Report (June 2012), at 45, available at
http://www.state.gov/documents/organization/192587.pdf.
5
U.S. Department of State, Trafficking in Persons Report, (June 2005), at 6, available at
http://www.state.gov/documents/organization/47255.pdf.
6
Id.
7
Heather J. Clawson, et al., Human Trafficking into and within the United States: A Review of the Literature,
August 2009, available at http://aspe.hhs.gov/hsp/07/humantrafficking/litrev/#Introduction.
8
Id.
9
Melissa Broudo & Sienna Baskin, Vacating Criminal Convictions for Trafficked Persons: A Legal Memorandum
for Advocates and Legislators, URBAN JUSTICE CENTER, April 2012, available at
http://www.sexworkersproject.org/downloads/2012/20120422-memo-vacating-convictions.pdf.
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Today, there is increasing awareness of human trafficking, and criminal justice
professionals recognize that those individuals who are arrested for prostitution are often
victimized. Despite this awareness, the “default for those arrested for prostitution is
criminalization.”10 Practices in place currently put a substantial burden on victims to come
forward if they want to avoid criminalization.11 Usually, when “the arrest process is set in
motion, it is difficult to reverse, and even more difficult to undo the overwhelming harm that can
result.”12 In order to stop criminalization from occurring, an affirmative defense of human
trafficking must be established and the arrest and prosecution policies must be reevaluated.
Currently, there are thirteen states that have some form of affirmative defense for human
trafficking victims; these states include Alabama, Connecticut, Indiana, Iowa, Minnesota, New
Hampshire, New Jersey, New Mexico, Oklahoma, Rhode Island, Texas, Vermont, and
Wisconsin.13 In Alabama, the Human Trafficking Statute states “[i]n a prosecution for
prostitution, or a sexually explicit performance defined in this article, of a human trafficking
victim for the victim’s illegal acts engaged in or performed as a result of labor servitude or
sexual servitude, it shall be an affirmative defense that the person was a victim of human
trafficking.”14 In Minnesota, legislation states that “[i]t is an affirmative defense to a charge
under section 609.324 if the defendant proves by a preponderance of the evidence that the
defendant is a labor trafficking victim…or a sex trafficking victim…and that the defendant
committed the act only under compulsion by another who by explicit or implicit threats created a
reasonable apprehension in the mind of the defendant that if the defendant did not commit the
act, the person would inflict bodily harm upon the defendant.”15 In Oklahoma, the Penal Code
provides “[i]t is an affirmative defense to prosecution for a criminal offense that, during the time
of the alleged commission of the offense, the defendant was a victim of human trafficking.”16
This resolution builds upon 103A that was adopted at the American Bar Association’s
2011 Annual Meeting, which urges government authorities not to treat children who are the
victims of human trafficking as criminals. This resolution expands the scope to include all
victims of human trafficking. This resolution also builds on 102A that was adopted at the
American Bar Association’s 2010 Midyear Meeting, which urges governments to limit the
collateral consequences of juvenile arrest, adjudications and convictions. This resolution
expands the scope to include all victims of human trafficking and seeks to limit the collateral
consequences of convictions for survivors of human trafficking through enactment of uniform
legislation providing for, clarifying, or modifying an affirmative defense in criminal proceedings
that those victims of human trafficking have the ability to assert that defense for non-violent
crimes directly resulting from being a trafficking victim.
10
Public Roundtable on Examination of the Adequacy of Outreach and Social Services for Human Trafficking
Victims, New York State Assembly (October 16, 2012) (statement of Kate Mogulescu, Trafficking Victims Legal
Defense & Advocacy Project, The Legal Aid Society) [hereinafter “Human Trafficking Victims Hearing”].
11
Id.
12
Id.
13
Polaris Project, Report on States with Affirmative Defenses Including Specific Defenses, and Duress, Necessity
and Choice of Evils Defenses (September 2011).
14
ALA. CODE § 13A-6-159 (2011).
15
MINN. STAT. § 609.325 (2011).
16
OKLA. STAT. Penal Code § 21-748 (2010).
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Enacting legislation that creates the affirmative defense of human trafficking would
obligate criminal justice professionals to investigate prostitution-related cases to determine if
trafficking exists and would require instituting policies on how to appropriately and effectively
identify victims of human trafficking.17 Legislation establishing the affirmative defense of
human trafficking could lead to two significant results. First, victims of human trafficking facing
criminal prosecutions can avoid unjust convictions and gain access to social services and benefits
to alleviate their plight. Second, identifying victims of human trafficking and obtaining their
cooperation can lead law enforcement to their traffickers and possibly result in trafficking rings
being shut down.
Respectfully submitted,
William Shepherd
Chair, Criminal Justice Section
February 2013
17
Human Trafficking Victims Hearing, supra note 6.
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GENERAL INFORMATION FORM
Submitting Entity:
Criminal Justice Section
Submitted By:
William Shepherd, Chair
1. Summary of Resolution(s).
The Resolution encourages lawmakers to enact legislation allowing adult and minor human
trafficking victims charged with prostitution related offenses or other non-violent offenses
that are a direct result of their being trafficked, to assert an affirmative defense of being a
human trafficking victim.
2. Approval by Submitting Entity.
This Resolution was approved by the Criminal Justice Section Council by e-vote on Monday
October 12, 2012.
3. Has this or a similar resolution been submitted to the House or Board previously?
This resolution is similar to Resolution 103A that was adopted at the American Bar
Association’s 2011 Annual Meeting. Resolution 103A urges government authorities not to
treat children who are the victims of human trafficking as criminals.
This resolution is similar to Resolution 102A that was adopted at the American Bar
Association’s 2010 Mid-Year Meeting. Resolution 102A urges governments to limit the
collateral consequences of juvenile arrest, adjudications and convictions.
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
This resolution would expand on 103A that was adopted at the American Bar Association’s
2011 Annual Meeting. 103A urges government authorities not to treat children who are the
victims of human trafficking as criminals. However, this resolution is different in that it
includes all victims of human trafficking.
This resolution would expand on 102A that was adopted at the American Bar Association’s
2010 Midyear Meeting. This resolution seeks to specifically limit the collateral
consequences of convictions for survivors of human trafficking and specifically calls for all
jurisdictions within the United States to enact uniform legislation providing for, clarifying, or
modifying an affirmative defense in criminal proceedings that those victims of human
trafficking have the ability to assert that defense for non-violent crimes directly resulting
from being a trafficking victim.
5. What urgency exists which requires action at this meeting of the House?
Victims of human trafficking are being prosecuted for prostitution and other crimes directly
resulting from being a trafficking victim and are not being recognized as victims. This is
leading to the unjust result of victims being criminalized and being put in potential further
harm by detention, or release to their captors.
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6. Status of Legislation. (If applicable)
Not applicable
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
The policy will be distributed to various criminal justice stakeholders in order to encourage
and facilitate legislative action. The policy will also be featured on the Criminal Justice
Section website and in Section publications.
8. Cost to the Association. (Both direct and indirect costs)
None
9. Disclosure of Interest. (If applicable)
None
10. Referrals.
At the same time this policy resolution is submitted to the ABA Policy Office for inclusion in
the 2013 Midyear Agenda Book for the House of Delegates, it is being circulated to the
chairs and staff directors of the following ABA entities:
Standing Committees
Legal Aid and Indigent Defendants
Special Committees and Commissions
Commission on Immigration
Commission on Youth at Risk
Sections, Divisions
Government and Public Sector Lawyers Division
Individual Rights and Responsibilities
International Law
Judicial Division
Litigation
State and Local Government Law
Young Lawyers Division
Centers
Center for Human Rights
Center on Children and the Law
Task Forces
Task Force on Human Trafficking
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11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Sara Dill
Law Offices of Sara Elizabeth Dill
35 E Wacker Dr 9th Floor
Chicago, IL 60601-2314
Phone: (312) 564-5670
Email: saraedill@gmail.com
William Shepherd
Holland & Knight LLP
222 Lakeview Ave Ste 1000
West Palm Beach, FL 33401-6148
Phone: (561) 650-8338
Email: william.shepherd@hklaw.com
12. Contact Name and Address Information. (Who will present the report to the House? Please
include name, address, telephone number, cell phone number and e-mail address.)
Stephen Saltzburg
George Washington Univ Law School
2000 H St NW
Washington, DC 20052-0026
Phone: (202) 994-7089
Email: ssaltz@law.gwu.edu
Neal Sonnett
Neal R Sonnett
2 S Biscayne Blvd Ste 2600
Miami, FL 33131-1819
Phone: (305) 358-2000
Email: nrs@sonnett.com
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The Resolution encourages lawmakers to enact legislation allowing human trafficking
victims charged with prostitution related crimes or other non-violent crimes to assert an
affirmative defense of being a human trafficking victim.
2.
Summary of the Issue that the Resolution Addresses
Currently, victims of human trafficking are being prosecuted for prostitution and other
crimes directly resulting from being a trafficking victim and are not being recognized as
victims. This is leading to the unjust result of victims being criminalized and being put in
potential further harm by detention, or release to their captors.
3.
Please Explain How the Proposed Policy Position will address the issue
Enacting legislation that creates the affirmative defense of human trafficking would
obligate criminal justice professionals to investigate prostitution-related cases to
determine if trafficking exists and would require instituting policies on how to
appropriately and effectively identify victims of human trafficking. Legislation
establishing the affirmative defense of human trafficking could lead to two significant
results. First, victims of human trafficking facing criminal prosecutions can avoid unjust
convictions and gain access to social services and benefits to alleviate their plight.
Second, identifying victims of human trafficking and obtaining their cooperation can lead
law enforcement to their traffickers and possibly result in trafficking rings being shut
down.
4.
Summary of Minority Views
None are known.
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