The legal system responsible for addressing the victims, survivors, and offenders of sexual exploitation and sex trafficking of minors comprises two justice systems that operate in different but related realms: the adult criminal justice system and the juvenile justice system. Both systems encompass federal, state, county, local, and tribal law enforcement agencies; police officers and investigators; probation officers; parole officers; corrections officers; prosecutors and defense attorneys; victim advocates; and judges. The adult criminal justice system encompasses the individuals and systems responsible for the detection and apprehension, prosecution and defense, and punishment and rehabilitation of individuals who are suspected or convicted of criminal offenses. In contrast, although the juvenile justice system performs some functions parallel to those of the adult criminal justice system with respect to juvenile offenders, it was originally established to respond to the developmental differences between adolescents and adults, specifically to focus on treatment as the means for rehabilitation rather than enforcement and punishment (NRC, 2013). Thus, the actors in the adult and juvenile systems often bear the same labels but have different albeit related functions and roles.
As part of its charge, the committee was asked to review selected efforts in law enforcement to prevent commercial sexual exploitation and sex trafficking of minors and to intervene with victims and offenders. This chapter describes how the legal system—specifically law enforcement personnel, attorneys, the juvenile justice system, and in some instances the adult criminal justice system—interacts with the victims and survivors of commercial sexual exploitation and sex trafficking. It also describes what
is known about how traffickers, exploiters, and purchasers interact with law enforcement and the adult criminal justice system. Since law enforcement often is the first point of contact with the legal system for the victims, survivors, and offenders of commercial sexual exploitation and sex trafficking, the chapter includes noteworthy examples of current law enforcement practices and describes existing challenges and opportunities. The chapter concludes with the committee’s findings and conclusions about the role of law enforcement in preventing, identifying, and responding to commercial sexual exploitation and sex trafficking of minors in the United States.
This chapter should be read with some caveats in mind. First, several of the studies, reports, and efforts cited in this chapter (Clawson et al., 2006; Farrell et al., 2008, 2012) describe law enforcement responses to human trafficking broadly, and are not specific to commercial sexual exploitation and sex trafficking of minors. Second, while this chapter describes a range of law enforcement task force models and activities, it should be noted that participation in task forces is only one way for law enforcement agencies to address human trafficking. Finally, multisector and interagency task forces are covered in greater detail in Chapter 10.
CURRENT LAW ENFORCEMENT PRACTICES WITH VICTIMS
Law enforcement personnel often are the first to respond to commercial sexual exploitation and sex trafficking cases. Their knowledge and ability to identify victims, investigate cases, and make appropriate referrals is crucial to the development of an overall response to commercial sexual exploitation and sex trafficking of minors in the United States. Law enforcement personnel at all levels—local, county, state, and federal—may encounter these cases and need to be prepared to respond appropriately.
Federal Law Enforcement Practices
Although only 9 percent of law enforcement agencies in the United States operate at the federal level, a considerable amount of activity related to the commercial sexual exploitation and sex trafficking of minors takes place at this level. The Federal Bureau of Investigation (FBI), for example, responds to commercial sexual exploitation and sex trafficking of minors in several ways. Three significant areas of FBI activity are described briefly in the subsections that follow: the Innocent Images National Initiative Unit, the Crimes Against Children Unit, and the Innocence Lost National Initiative.
Innocent Images National Initiative Unit
The Innocent Images National Initiative Unit, part of the FBI’s Cyber Division, started in 1995. Its focus is on crimes against children that are facilitated through the use of technology such as computers, digital cameras, and audio equipment, including online sexual exploitation of children, activities by traffickers and exploiters who entice minors through online activities, and online entities that profit from crimes against children (DOJ, 2009, 2010; FBI, 2012a, undated). More than 300 FBI special agents work on cyber crimes against children and participate in a number of multisector efforts aimed at fostering federal, state, and local interagency cooperation and collaboration. These efforts include the Project Safe Childhood Initiative and the Department of Justice–funded Internet Crimes Against Children Task Forces, described in more detail below. (See Chapter 10 for further discussion of multisector and interagency efforts to address commercial sexual exploitation and sex trafficking of minors.)
Crimes Against Children Unit
Established in 1997, the FBI’s Crimes Against Children Unit, housed within the agency’s Violent Crime Section, has oversight over a variety of crimes against children, including child abduction and interstate transportation of and obscene matter involving children (DOJ, 2009). A further responsibility of this unit that is germane to this report is oversight over the sexual exploitation and sex trafficking of children. More than 100 special agents in the FBI’s 56 field offices are designated as crimes against children coordinators. It is from this unit that the Innocence Lost National Initiative, described below, originated (DOJ, 2009).
Innocence Lost National Initiative
Innocence Lost is a national initiative launched by the FBI in 2003. Working together with the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice and the National Center for Missing and Exploited Children, this initiative specifically addresses domestic sex trafficking of minors in the United States through 47 dedicated task forces and working groups that meet regularly (FBI, 2012a). The task forces generally are headed by an FBI special agent and include representatives of law enforcement agencies at the local, state, and federal levels; prosecutors; representatives of U.S. Attorney’s Offices; social service providers; and others. Those participating in the groups receive regular training provided by the National Center for Missing and Exploited Children in conjunction with the FBI regarding the nature of sex trafficking, including
characteristics and behaviors of victims and related topics. In addition, task force members and working groups share information gathered that is suggestive of sex trafficking of minors. Leads on sex trafficking of minors also originate from local law enforcement operations and observation, Internet monitoring, and tips reported directly to the National Center for Missing and Exploited Children’s 24-hour CyberTipline (see Box 5-1). If appropriate, a federal-level investigation of domestic sex trafficking of minors may be initiated as a result of these collaborations and leads (DOJ, 2009).
An important tool used by Innocence Lost is a database of information on both children who have been exploited through force and/or coercion and exploiters, first deployed in 2008 (DOJ, 2009). Data are available to authorized local law enforcement agents and FBI personnel only through the shared Law Enforcement Online network. This database provides information on interstate movement, names, aliases, and physical characteristics
Use of Tips from the Public and Electronic Service Providers to Enhance the Law Enforcement Response to Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States
The National Center for Missing and Exploited Children’s (NCMEC’s) CyberTipline is an Internet-based reporting tool operated in partnership with the Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement, the U.S. Postal Inspection Service, the U.S. Secret Service, military criminal investigative organizations, the U.S. Department of Justice, and the Internet Crimes Against Children Task Force program, as well as other state and local law enforcement agencies (Allen, 2012). Reports to the CyberTipline are made by the public and by U.S.-based electronic service providers (i.e., companies that provide electronic communication services or remote computing services to the public) as required by federal law* (NCMEC, 2013). CyberTipline reporting categories include, among others, possession, manufacture, and distribution of child pornography; online enticement of children for sexual acts; child prostitution; and sex tourism involving children (NCMEC, 2013).
According to the National Center for Missing and Exploited Children, since 1998 the CyberTipline has received more than 1.6 million reports of suspected child sexual exploitation. Information gathered via the CyberTipline is shared with law enforcement and prosecutors to assist them in detecting, investigating, and prosecuting child sexual exploitation crimes.
*18 U.S.C. § 2258A.
SOURCES: Allen, 2012; NCMEC, 2013.
The Innocence Lost National Initiative’s
Operation Cross Country:
A Federal, State, and Local Law Enforcement
Response to Commercial Sexual Exploitation and
Sex Trafficking of Minors in the United States
In June 2012, the Federal Bureau of Investigation (FBI) announced that the Innocence Lost National Initiative’s Operation Cross Country, a 3-day law enforcement effort, had led to the recovery of 79 victims of commercial sexual exploitation and sex trafficking of minors (see www.fbi.gov; www.justice.gov; or www.ncmec.org for more detail about the Innocence Lost National Initiative). In addition, local and state law enforcement had arrested 104 exploiters and traffickers on a variety of prostitution-related charges (FBI, 2012b). This effort was the sixth such nationally coordinated law enforcement operation conducted to respond to commercial sexual exploitation and sex trafficking of minors in the United States (FBI, 2012b).
Through Operation Cross Country, local law enforcement officers gather information on and make arrests for violations of local and state laws related to prostitution and solicitation in their respective jurisdictions. FBI agents, in partnership with U.S. Attorney’s Offices and the U.S. Department of Justice’s Child Exploitation and Obscenity Section, use information gathered from these local arrests to file federal charges, as appropriate (FBI, 2012b).
Through Operation Cross Country and the Innocence Lost National Initiative, the FBI has worked with more than 8,500 local, state, and federal law enforcement officers and agents representing more than 400 separate agencies (FBI, 2012b). According to the FBI, these efforts have led to the identification of and assistance to more than 2,200 minors exploited through prostitution and sex trafficking (FBI, 2012b). Investigations of these crimes have led to 1,017 convictions of exploiters and traffickers and the seizure of more than $3.1 million in assets (FBI, 2012b).
SOURCE: FBI, 2012b.
of identified exploiters and victims. It includes images and audio files (DOJ, 2009).
The Innocence Lost National Initiative often is seen as successful in providing a federal law enforcement-based mechanism for responding to cases of commercial sexual exploitation and sex trafficking of minors. As of June 2012, more than 2,100 children had been removed from exploitive circumstances such as sex trafficking; more than $3.1 million of real property, money, and vehicles had been seized; and approximately 1,010 convictions (including life sentences) of exploiters and others engaged in and benefiting from the sex trafficking of minors had been secured (FBI, 2012a). The Innocence Lost National Initiative also conducts periodic law enforcement activities in collaboration with state and local law enforcement agencies. (See Box 5-2 for a description of one such activity.)
State and Local Law Enforcement Practices
As discussed in Chapter 4, law enforcement has found it challenging to view behavior by youth that is technically criminal (prostitution) as part of the victimization of youth by the perpetrators of a more serious crime (commercial sexual exploitation or trafficking) (Farrell et al., 2008). The committee is encouraged that an increasing number of police departments are moving away from arresting young victims suspected of engaging in prostitution and focusing on investigating exploiters and traffickers (Fassett, 2012; Gavin, 2012; Goldfarb, 2012). A review of case files from six police agencies in major U.S. cities indicates that police viewed 60 percent of youth involved in prostitution as victims and 40 percent as offenders (Halter, 2010). Similarly, researchers determined from a survey of case investigators that police considered 69 percent of youth involved in prostitution to be victims rather than offenders (Wells et al., 2012). Police were more likely to consider a youth to be a victim if she or he cooperated, if police identified an exploiter, and if the youth came to the attention of police through a report rather than through an arrest (Halter, 2010).
The committee heard anecdotal evidence from several sources that police struggle to balance treating youth involved in trafficking as victims and ensuring that the youth will cooperate in investigations of traffickers and purchasers. Police report that their greatest challenge in investigating trafficking cases is lack of victim cooperation (Clawson et al., 2006; Farrell et al., 2008). As noted in earlier chapters, youth involved in sex trafficking often do not identify themselves as crime victims (Fassett, 2012), which may make them hesitant to cooperate with police investigations. Some police agencies and officers have responded to this hesitation by detaining youth to ensure their cooperation (Bortel et al., 2008; Brickhead, 2011; Bryan, 2012; Puig-Lugo, 2012). However, secure detention deprives youth of opportunities that are vital to healthy development, including access to activities that lead to self-efficacy and critical thinking, connections with peers who exhibit prosocial behavior and value academic success, and adequate health and mental health care (NRC, 2013). In addition, during its site visits and public workshops the committee heard expert testimony that secure detention can be an additional trauma and is therefore especially harmful to minors who are victims of commercial sexual exploitation and sex trafficking (Puig-Lugo, 2012; Serita, 2012; Sherman, 2012). As discussed in Chapter 4, some police agencies believe that detaining youth has the additional benefit of protecting them from further involvement in trafficking (Farrell et al., 2012; Fassett, 2012; Letot Center, 2012). Other police agencies have stopped arresting juveniles for prostitution, and instead work to build cases against traffickers with the voluntary participation of victims or without victim participation (Gavin, 2012; Hersh, 2012; Hooven et al.,
2012). Neither of these approaches has been evaluated for effectiveness from the perspective of either advancing police investigations or protecting victims’ interests. However, an approach that addresses youth consistent with the developmental characteristics of adolescents and focuses on treatment as opposed to punishment is consistent with the science behind and the purpose of the reform efforts under way in the juvenile justice system (NRC, 2013).
Police agencies vary widely in their perception of the prevalence of trafficking. Among a random sample of state, county, and municipal law enforcement agencies, nearly 60 percent thought domestic sex trafficking was nonexistent, and only 6 percent thought it was a widespread or occasional problem (Farrell et al., 2008). Respondents to surveys of larger agencies and those with experience with trafficking are more likely to view domestic sex trafficking as a problem. Respondents from only 25 percent of agencies serving 75,000 or more people (Farrell et al., 2008) or within cities with known human trafficking activity (Clawson et al., 2006) viewed domestic sex trafficking as nonexistent. Even more dramatic, among respondents from agencies participating in a human trafficking task force, none perceived domestic sex trafficking to be nonexistent, while 38 percent viewed it as a widespread or occasional problem (Farrell et al., 2008).
Police agencies can take several steps to prepare to handle cases of commercial sexual exploitation and sex trafficking of minors: dedicating a unit or personnel to handle cases, training officers about trafficking, developing protocols for trafficking cases, and participating in human trafficking task forces. In a multivariate regression model, whether an agency had specialized personnel, training, and protocols was among the strongest predictors of whether the agency had investigated a case of human trafficking (Farrell et al., 2008).
Agencies with a dedicated unit or personnel appear to be more likely to investigate cases of human trafficking, although the causal relationship between dedicated staff and cases is not clear. In a random sample, nearly 44 percent of agencies with dedicated staff had investigated a human trafficking case, compared with 5.7 percent of agencies without a specialized unit (Farrell et al., 2008). However, the officers most likely to contact trafficking victims are patrol officers rather than those in specialized units (Farrell et al., 2012), highlighting the importance of educating all officers about trafficking.
Despite their importance for dealing with commercial sexual exploitation and sex trafficking of minors, few agencies have dedicated human trafficking units or personnel. Only 4 percent of a random sample of agencies reported having such specialized units or personnel, although that number increased to 16 percent for agencies serving 75,000 or more people and to 77 percent for those involved in a trafficking task force (Farrell et al.,
2008). Of the four cities the committee visited, only Chicago and Boston have dedicated units. However, 37 percent of agencies in a nonrandom sample indicated they had a unit whose duties would include addressing human trafficking cases; these units included vice, narcotics, organized crime, special victims/sexual assault, crimes against persons, child exploitation, and detective bureaus (Wilson and Dalton, 2008; Wilson et al., 2006).
Agencies whose officers receive training in human trafficking also appear to be more likely to investigate such cases, although the causal relationship between training and cases likewise is not clear. Approximately 20 percent of agencies with trained officers had identified a human trafficking case, compared with 4.4 percent of agencies without such officers (Farrell et al., 2008). Agencies increasingly are training officers to address human trafficking. This was the case for approximately 18 percent of agencies in a random sample, increasing to 39 percent of agencies serving 75,000 or more people and more than 90 percent of agencies involved in a trafficking task force (Farrell et al., 2008). Police reported that training was most needed on the following topics: methods for identifying and responding to trafficking, methods for identifying victims, and understanding trafficking laws (Clawson et al., 2006). As mentioned previously, police report that their greatest challenge in investigating trafficking cases is lack of victim cooperation (Clawson et al., 2006; Farrell et al., 2008), and many officers report challenges in communicating with victims (Clawson et al., 2006; Farrell et al., 2012); therefore, training needs to include a significant focus on working with victims of trafficking (Farrell et al., 2012). Local law enforcement officers may also need training in the roles of federal law enforcement and victim services providers in trafficking investigations; 90 percent of a convenience sample of local and state investigators indicated that they did not understand those roles. A nonrepresentative sample of federal stakeholders indicated that local law enforcement needs training in obtaining victim testimony, corroborating stories, obtaining physical evidence, and following paper trails (Clawson et al., 2006). Officers can be trained in a variety of ways, including events sponsored by the federal government, victim service providers, and local and state law enforcement (Clawson et al., 2006). The committee is unaware of evaluations of any police training curricula related to commercial sexual exploitation and sex trafficking of minors; however, the need for and value of such training was consistently mentioned in testimony before the committee.
Agencies with a policy or protocol for trafficking cases appear to be more likely to investigate cases of human trafficking, although the causal relationship between having a policy or protocol and cases again is not clear. Approximately 26 percent of agencies with such a policy or protocol had identified a human trafficking case, compared with 5.6 percent of agencies without one (Farrell et al., 2008).
Several sources suggest that police would benefit from having protocols for investigating human trafficking cases (Clawson et al., 2006; Farrell et al., 2008). Approximately 9 percent of a random sample of law enforcement agencies reported having a policy or protocol for responding to human trafficking. The percentage with such a policy or protocol increased to 13.2 percent among agencies that serve populations of 75,000 or more to 100 percent among agencies that participate in a trafficking task force (Farrell et al., 2008).
Police have a number of ways to learn about instances of trafficking and build cases against traffickers. A review of sex trafficking case files indicated that nearly 40 percent of cases originated with a tip to law enforcement, 18 percent with an ongoing investigation, and 12 percent with a law enforcement sting operation (Farrell et al., 2012). Agencies that have investigated cases of trafficking indicated that they are most likely to learn about trafficking cases during the course of other investigations or undercover operations and from calls for service (Farrell et al., 2008). Agencies participating in federally funded task forces were more likely to perceive information from different investigations as a strong source of information about trafficking cases (Clawson et al., 2006; Farrell et al., 2008). Those agencies listed an alert from victim services as the second most likely source of information about trafficking cases, indicating that they may have a stronger relationship with the victim services community (Farrell et al., 2008). For example, the Boston Police Department, as part of a federally funded human trafficking task force, developed protocols that included monitoring police reports to identify potential victims of commercial sexual exploitation and sex trafficking proactively and maintaining partnerships with social service and other law enforcement agencies to facilitate referrals when appropriate (Farrell et al., 2008).
These data may indicate that police most often take a reactive approach to sex trafficking cases, relying on tips or other investigations rather than originating new cases. When trafficking victims are encountered during the course of another investigation, 81 percent of agency respondents indicated that the individual’s demeanor—acting fearful or noncooperative—is very important or important as an indicator that she or he is a trafficking victim. Other indicators frequently mentioned include not having control over identification or travel documents, makeshift living quarters, and frequent movements (Farrell et al., 2008).
Regardless of whether law enforcement operates at the local, state, county, or federal level, many of the challenges associated with identifying, investigating, and effectively responding to commercial sexual exploitation
and sex trafficking of minors are the same, as discussed at length in the preceding section. This section summarizes some of the major challenges for law enforcement in efforts to respond to the victims and survivors of these crimes.
One barrier to responding appropriately and effectively to victims and survivors of commercial sexual exploitation and sex trafficking of minors is the failure of law enforcement personnel to recognize these crimes as pressing criminal offenses (Clawson et al., 2009). As noted above, many law enforcement officials, especially those in smaller agencies and those whose agency is not involved in a task force devoted to this issue, do not identify commercial sexual exploitation and sex trafficking of minors as a problem affecting their communities.
Law enforcement officials often have a difficult time identifying minors involved in commercial sexual exploitation and sex trafficking. They are likely to rely on an individual’s demeanor (acting fearful or noncooperative), as well as the indicators of not having control over identification or travel documents, makeshift living quarters, and frequent movements, to identify trafficking victims. Criminology research indicates that adolescents of color often do not trust the legal system, believing that they and members of their racial/ethnic group will not be treated fairly (NRC, 2013). This lack of trust complicates the challenges of relying on victim cooperation as a means of determining whether or how to proceed with a case. As noted above, uncooperative behavior may be indicative of trafficking/exploitation, yet lack of cooperation is the main feature that discourages law enforcement from working with victims and pursuing trafficking cases. Halter (2010) identifies characteristics that are associated with law enforcement personnel viewing a child or adolescent as a victim. Specifically, if the victim cooperated, if police identified an exploiter, and if the victim came to the attention of police through a report rather than through police action, police were more likely to regard the child or adolescent as a victim. While the movement toward viewing these youth as victims rather than offenders is promising, this is a high threshold that most victims would not meet.
Responses to identification also vary widely. The committee is encouraged that an increasing number of law enforcement agencies are moving away from arresting youth suspected of engaging in prostitution toward treating them as victims, connecting them with services, and focusing on investigation and prosecution of those who exploited them (Gavin, 2012; Goldfarb, 2012). Yet clearly improvement is sorely needed as many law enforcement personnel continue to view these youth as offenders and to arrest them as such (see the discussion of this issue in Chapter 4). A review of case files from six police agencies in major U.S. cities indicated that 40 percent of law enforcement personnel continue to perceive such youth as offenders (Halter, 2010). Others may arrest victims to “encourage” them
to assist in prosecution—this despite current efforts in some states and jurisdictions to work with prosecutors to pursue cases against exploiters that are “victim-driven, not victim-built” or “evidence-based,” an approach that entails relying on voluntary participation of victims or building cases that do not require victim participation (Gavin, 2012; Hersh, 2012).
For such “evidence-based” approaches to work, law enforcement investigators must be aware of techniques that can be used to gather additional evidence so that cases are not completely dependent on victim testimony. A nonrepresentative sample of federal stakeholders indicated that local law enforcement needed training in investigating cases of commercial sexual exploitation and sex trafficking of minors in the United States. Specifically, officers needed training in obtaining victim testimony in ways that do not coerce or further harm the victim, corroborating stories, obtaining physical evidence, and following paper trails (Clawson et al., 2006). As discussed earlier, training in these areas is vitally important and is associated with an investigation’s being launched at all.
Each of the challenges described above suggests opportunities to improve understanding of and response to commercial sexual exploitation and sex trafficking of minors in the United States. These opportunities relate to perceiving the urgency of these problems, identifying victims, deciding whether to arrest victims, addressing a lack of victim cooperation, and handling cases of these crimes appropriately.
As discussed above, law enforcement agencies increasingly are training their personnel to recognize and respond to human trafficking. The Chicago Police Department, for example, provides roll-call training to its line officers to alert them to the fact that victims can be found in a variety of circumstances, such as massage parlors, brothels, escort services, and strip clubs, not just on the street (Walker, 2012).
One area in which training is vital is recognizing the existence and seriousness of commercial sexual exploitation and sex trafficking of minors in the United States. Such training can change departmental culture and response to these crimes. In Dallas, for example, each of the 3,700 officers in the police department has received 3 hours of training in how to recognize and identify “high-risk” victims—children and adolescents most likely to become victims of commercial sexual exploitation or sex trafficking. This training was credited with changing departmental culture and increasing
awareness of commercial sexual exploitation and sex trafficking of minors among front-line officers (Fassett, 2012).
Training also is imperative to better equip officers to identify victims (Clawson et al., 2006). As noted earlier, a challenge described by many front-line responders is the difficulty of identifying victims, especially given their reluctance to self-identify or even acknowledge they are victims. Although any child or adolescent can be a victim of commercial sexual exploitation or sex trafficking, risk is not evenly distributed throughout the population of minors. Chapter 3 outlines evidence-based factors associated with the risk of victimization by these crimes.
Training to enhance the ability to identify victims of commercial sexual exploitation and sex trafficking is available online. Examples of such training include that offered by Polaris Project (2013) and the Department of Homeland Security (U.S. Department of Homeland Security, 2013). Both offer information on how to recognize human trafficking, how to assist victims, and how to initiate investigations.
Research indicates that law enforcement personnel often feel unprepared to initiate an investigation into commercial sexual exploitation and sex trafficking of minors. This is due in part to a failure to understand the rapidly changing laws on trafficking (Clawson et al., 2006). Training is imperative for officers to feel confident in initiating a well-conducted investigation, and again, research indicates that without training, investigations are unlikely to be conducted.
Clawson and colleagues (2006) also point to the need for training that extends beyond identification of victims to focus on how to respond to trafficking. This training is important to equip officers to follow through and conduct successful investigations, as well as to make appropriate referrals for services. Specifically, local law enforcement officers need training to better understand the roles of victim services and federal law enforcement in trafficking investigations.
Lessons Learned from Related Crimes and Practice
Instructive and encouraging lessons regarding changes in culture and perceptions may be found in changes in the law enforcement response to domestic violence over the last 40 years. As noted in Chapter 3, there are many parallels between domestic violence and commercial sexual exploitation and sex trafficking of minors, including similar power and control dynamics, reluctance of victims to self-report or cooperate with the investigation and prosecution, and complex cases that necessitate the involvement of a number of diverse agencies to provide needed services.
As is commonly the case today with commercial sexual exploitation and sex trafficking of minors, law enforcement was initially skeptical of
and unmotivated to address domestic violence as a criminal issue. However, the law enforcement response to domestic violence changed dramatically in the United States beginning in the early 1970s. Before this time, police used their discretion to determine whether an arrest should be made and frequently ignored victims’ requests for assistance (Buzawa and Buzawa, 1996; Phillips and Sobol, 2010; Townsend et al., 2005). Domestic violence was viewed as a private and personal matter best left to the parties involved (see, e.g., Wilt et al., 1977). The police response failed to improve as dispatchers and officers purposely delayed responding to these calls in the hope that the violent situation would resolve prior to their arrival (Oppenlander, 1982; Townsend et al., 2005). “Noninterference” and mediation were the preferred responses to domestic violence calls (Flemming, 2003; Morley and Mullender, 1992; Reuland et al., 2006). With increased political pressure and social awareness, the approach to domestic violence started to change. A number of police chiefs lost lawsuits that held them accountable for failing to provide equal protection under the law for these victims (Belknap, 1995; Dichter et al., 2011; Dobash and Dobash, 1984; Niemi-Kiesilainen, 2001). Millions of dollars in damages were awarded to victims and their families, which resulted in the implementation of mandatory or presumptive arrest policies (Townsend et al., 2005).
Careful consideration of changing law enforcement responses to domestic violence, sexual assault, and other offenses may offer insights into approaches to interacting with victims who may be reluctant to cooperate with law enforcement investigations. Additional research would help identify effective approaches used with victims of sexual assault and domestic violence. Some research suggests, however, that traditional approaches to working with victims may not translate to victims of commercial sexual exploitation and sex trafficking of minors (Ryon et al., 2012) because the typical survivor or victim of the latter crimes is characterized by an additional set of needs. Most victims of these crimes have a history of drug/alcohol abuse, have had difficulties in school (or have dropped out completely and ended their education prematurely), and have experienced severe difficulties in their homes (see Chapter 3). They require assistance for substance abuse, education, and housing. Therefore, applying what has been learned from domestic violence is valuable, but victims of commercial sexual exploitation and sex trafficking require additional attention to deal with their even more complex set of needs. Further, many victims and survivors of commercial sexual exploitation and sex trafficking who are minors experience legal limitations not faced by adult victims of sexual assault and domestic violence.
CURRENT LAW ENFORCEMENT PRACTICES WITH OFFENDERS
Strengthening and improving the law enforcement approach to victims and survivors is crucial, but it is only one part of the overall law enforcement response to commercial sexual exploitation and sex trafficking of minors in the United States. Equally important is how law enforcement—at all levels—responds to exploiters and traffickers.
Research on the law enforcement response to exploiters and traffickers is quite limited. The committee was unable to find much evidence beyond the testimony of law enforcement personnel who participated in the committee’s public workshops and site visits. However, the committee was able to draw lessons from a handful of research efforts, government reports, and testimony regarding isolated efforts across the country. For example, data from a national sample of law enforcement agencies reveal the following for the period 2000-2006:
• a 21 percent increase in arrests of individuals soliciting children and adolescents online;
• a 381 percent increase in arrests of individuals who solicited undercover investigators posing as minors online;
• increased arrests of offenders aged 18-25; and
• 4 percent of those arrested for pursuing minors online having been registered sex offenders (Wolak et al., 2008).
The authors conclude that online undercover techniques are a particularly successful tool used by law enforcement to apprehend these offenders.
Other research suggests that exploiters and traffickers perceive criminal sanctions for engaging in commercial exploitation and sex trafficking of minors as less significant than the potential benefits. For example, one study estimates that a trafficking victim may earn for her exploiter $75,000 to $250,000 annually (Hughes, 2005). Because of the hidden nature of commercial sexual exploitation and sex trafficking of minors, exploiters, traffickers, and purchasers may perceive the risk of arrest as minimal. Finally, purchasers in many states may successfully claim ignorance of the actual age of the victim and consequently not be held accountable (see Chapter 4).
The following sections document what is known about current law enforcement practices related to exploiters and traffickers and—to the extent possible—the effectiveness of such practices.
Federal Law Enforcement Practices
As noted earlier in this chapter, several federal law enforcement agencies—most notably the FBI—engage in activities and operations fo-
cused on the detection, investigation, and prosecution of crimes against children at the federal level, including the commercial sexual exploitation and sex trafficking of minors. As previously described, these practices rely on specialization, interagency collaboration, and targeted resources and are believed by many to produce not only improved outcomes for victims but also increased accountability and consequences for exploiters and traffickers. The steady increase in the number of federal prosecutions and convictions documented since passage of the Trafficking Victims Protection Act (TVPA) in 2000 provides some support for this belief, but further evaluation is warranted (Small et al., 2008).
Federal Support for State and Local Law Enforcement Efforts
In addition to providing support for the pursuit of criminal cases against exploiters and traffickers in the federal system, federal agencies and initiatives typically involve state and local law enforcement personnel in their investigations and task forces, with the goal of building stronger cases at those levels as well. One example of a federal initiative explicitly aimed at supporting state and local law enforcement efforts to investigate and hold perpetrators accountable is the Internet Crimes Against Children (ICAC) Task Force Program.
Sponsored by the Office of Juvenile Justice and Delinquency Prevention of the Department of Justice, the ICAC Task Force Program provides federal resources to improve coordination among and enhance the investigative responses of state and local law enforcement to offenders who use the Internet, online communication systems, or computer technology to sexually exploit children. These resources include investigative and forensic resources, as well as training and technical assistance designed to promote and enhance both proactive and reactive investigations and prosecutions of offenders engaged in technology-facilitated sexual exploitation of children. The program started in 1998 in response to the mandate in the fiscal year (FY) 1998 Justice Appropriations Act1 to develop a national network of state and local law enforcement cyber units to investigate cases of child sexual exploitation. The program has since expanded from 10 regional task forces to a current national network of 61 coordinated task forces across the United States that involve more than 3,000 federal, state, and local law enforcement and prosecutorial agencies and have a presence in every state. In the Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children (PROTECT Our Children) Act of 2008,2 Congress officially established the National ICAC Task Force Program within the
1Public Law 105-119.
2Public Law 110-401.
Department of Justice to continue and strengthen the program’s efforts, and designated the program as a participant in the Department of Justice’s Project Safe Childhood Initiative.
Since it began, the ICAC Task Force Program has trained more than 338,000 law enforcement officers, prosecutors, and other professionals, and ICAC Task Forces have reviewed more than 280,000 complaints of alleged child sexual victimization, resulting in more than 30,000 arrests. Historically, the ICAC Task Forces have focused their efforts on child pornography and online enticement of children by sexual predators. Since trafficking of children for sexual purposes also is included within the definition of technology-facilitated child sexual exploitation used by the ICAC Task Force Program, ICAC Task Forces across the country recently have become involved with these cases to varying degrees (Gersh, 2012). Although still a small percentage of the total number of complaints reviewed by the ICAC Task Forces, documented complaints of commercial sexual exploitation of children were reported to have more than tripled from 458 in FY 2010 to 1,493 in FY 2011 (OJJDP, 2010).
The experience of the ICAC Task Forces may make them especially well suited to becoming more involved in these cases since, as pointed out in workshop presentations to the committee, the sale of children for sexual purposes has moved “behind closed doors” because of the Internet instead of occurring primarily “on the streets” (Allen et al., 2012; Gavin, 2012). The ICAC Task Forces’ technical expertise, well-established collaborative multijurisdictional partnerships, and availability to a large number of state and local agencies are advantages that, within the constraints of available funding, present opportunities for increasing the success of law enforcement throughout the United States in addressing the commercial sexual exploitation and sex trafficking of minors.
State and Local Law Enforcement Practices
Several noteworthy practices used by state and local law enforcement to intervene with offenders and gather corroborative evidence for criminal cases have been used and recommended by experienced investigators for cases of commercial sexual exploitation and sex trafficking of minors and were also described in presentations to the committee (Clawson and Dutch, 2008; Gavin, 2012; Gentile Long and Garvey, 2012; Greene, 2012; Hersh, 2012; Knowles-Wirsing, 2012; Nasser, 2012; Walker, 2012).
Investigations undertaken by the Boston Police Department’s Human Trafficking Unit focus on holding the buyers of sex accountable by conducting undercover stings and by reaching out to hotels where commercial sexual exploitation and sex trafficking of minors are taking place (Gavin, 2012). In Chicago, police work closely with staff from the Salvation Army’s
STOP-IT program, who accompany them on investigations and help manage street outreach to victims when a “takedown” occurs. Investigators monitor calls to victims and others made by exploiters and traffickers from jail and report that some of their strongest evidence comes from these recordings. They also use wiretaps to gather evidence against buyers, traffickers, and exploiters under an Illinois law that specifically allows use of this technique in these investigations (Greene, 2012; Knowles-Wirsing, 2012; Nasser, 2012). To date, only Illinois and Massachusetts authorize the use of wiretapping for child sex trafficking cases; wiretapping as an investigative technique has previously been allowed only rarely and in other types of cases, such as suspected terrorism or drug investigations. This technique may merit further consideration by other states willing to pursue changes in legislation to allow its use.
Also mentioned as possible sources of evidence are the following:
• journals, letters, and other written communications between victims and traffickers;
• information in police records regarding traffic stops involving victims and traffickers;
• website ads, including BackPage or Craigslist postings;
• bond receipts (useful in cases in which a trafficker may have bailed out the victim);
• credit card records and receipts;
• cell phones with walkie-talkie functions, and chirp phones that can connect a victim to the trafficker;
• data on cell phones that may show text or voice messages between victims and traffickers;
• pretext or “one-party consent” recordings in appropriate cases;
• photos of injuries, tattoos, or other branding of victims by traffickers;
• clothing, jewelry, or other items provided to victims by traffickers;
• careful documentation of the content and circumstances of out-of-court statements made by victims; and
• financial records, electronic or otherwise, that may provide evidence of money laundering or a “financial footprint” indicating suspicious or criminal activity (Clawson and Dutch, 2008; Gentile Long and Garvey, 2012; Greene, 2012; Knowles-Wirsing, 2012; Koch, 2012; Nasser, 2012; Walker, 2012).
All of these sources are used to reduce reliance on victims’ cooperation and testimony to build and prove cases against traffickers, and suggest areas for specialized training of law enforcement investigators.
ATTORNEYS AND VICTIMS/SURVIVORS
Prosecutors work with law enforcement to develop sex trafficking cases and charge traffickers, while defense attorneys represent both victims and perpetrators of trafficking.
Recently, several national legal organizations, including the American Bar Association, the National District Attorneys Association, and the National Association of Attorneys General, have turned their attention to sex trafficking, indicating growing attention and concern within the legal community. Yet trafficking prosecutions appear to be rare, with only 7 percent of a nonrandom sample of state and local prosecutors responding that they had prosecuted a human trafficking case (Clawson et al., 2008). Further, in many states that have sex trafficking legislation, prosecutors are unaware of the law (Clawson et al., 2008).
As described in Chapter 4, sex trafficking is a federal crime and in almost all states is also a state crime, so federal, state, and local prosecutors all work sex trafficking cases. The nature of trafficking cases may require prosecutors to work with numerous other agencies within and outside the legal system, including local, state, and federal law enforcement and prosecutors; the juvenile justice system; federal and state criminal justice systems; federal and state judiciaries; child welfare departments; and victim service organizations. Navigating this multiagency, multijurisdictional system and overcoming the barriers to effective collaboration discussed in Chapter 10 can be challenging. In a survey of federal prosecutors who worked in districts that had prosecuted human trafficking cases under the TVPA (sex and labor trafficking of adults and children), 91 percent of cases involved collaboration with other local, state, or federal authorities (Clawson et al., 2008). Approximately 71 percent of federal prosecutors responded that they had a positive working relationship with local law enforcement, 63 percent had a positive working relationship with federal law enforcement, and 29 percent had a positive working relationship with state law enforcement (Clawson et al., 2008). Federal prosecutors reported working with nongovernmental organizations in 57 percent of cases and reported having an excellent to very good relationship with those organizations in 43 percent of cases. A nonrandom survey of state and local prosecutors indicated that they collaborated with federal, state, and local law enforcement in approximately two-thirds of cases (Clawson et al., 2008).
Prosecutors noted several challenges and barriers to prosecuting human trafficking cases: length of investigations, lack of knowledge about trafficking issues, lack of victim cooperation, unavailability of victims and wit-
nesses, lack of collaboration, lack of training, lack of institutional support, and lack of funding (Bortel et al., 2008; Clawson et al., 2008). Presentations to the committee echoed these concerns and revealed additional obstacles. Presenters pointed out that working these cases is difficult because of the extended time and effort required, which takes a toll on investigators and prosecutors (Gelber, 2012). In addition, turnover, whether due to stress or to rotation of experienced personnel, was cited as creating the need for additional training and as detrimental to developing and maintaining the professional relationships and expertise required to be successful (Gelber, 2012; Holman, 2012; Ormberg, 2012). Professionals in Dallas have responded to the challenge of uncooperative victims by recognizing that forcing them to participate in multiple trials increases their trauma and is a discouraging factor. They now try to implement a “one child, one trial” rule and carefully plan how they will work together to bring perpetrators to justice and prioritize cases so as not to subject victims to more than one trial (Fassett, 2012).
Prosecutors mentioned the lack of precedent on human trafficking case law as a major barrier to charging cases (Farrell et al., 2012). They were particularly concerned about the lack of clarity in the salient statutes as to elements they would be required to prove and evidentiary standards (Farrell et al., 2012). Several prosecutors reported that when they prosecuted their first trafficking case (sometimes the first under state law), they had no guidance on prosecutorial techniques, common defense tactics, or jury instructions. The ambiguity and difficulty entailed in prosecuting trafficking cases may make prosecutors reluctant to charge cases, which in turn may make police less likely to investigate them (Farrell et al., 2012). Indeed, an analysis of federally prosecuted cases involving commercial sexual exploitation of children since passage of the TVPA in 2000 found that, while the number of federal prosecutions and convictions has steadily increased since then, assistant U.S. attorneys declined to file charges in nearly 60 percent of cases presented to them (Small et al., 2008). While about a quarter of these declined cases were reported to have been prosecuted by other authorities (presumably at the state level), almost as many appear to have been declined because of weak or insufficient evidence.
One federal prosecutor’s description of a recent trial during a presentation to the committee suggested another challenge that may be present for prosecutors in a number of these cases—the difficulty of overcoming a defense of “mistake of age,” in which a defendant argues he had a reasonable belief that the victim was not a minor (Nasser, 2012). While mistake of age is no longer a defense for federal trafficking charges, it may be possible to prevent this defense at the state level through legislation that makes it clear that crimes involving the commercial sexual exploitation and sex traffick-
ing of minors are strict liability offenses, that is, that mistake of age is not allowed as a defense. (See the discussion in Chapter 4.)
The lack of knowledge about elements, evidentiary standards, and effective prosecution techniques indicates that prosecutors at all levels would benefit from further training in this area. Yet several state prosecutors mentioned that most of this training, while useful, is led by federal prosecutors whose cases appear to differ significantly from local cases (e.g., they include foreign victims with immigration-related issues) (Farrell et al., 2012).
Criminal defense attorneys, and juvenile defense attorneys in particular (in delinquency, status offense, and child protection cases), may come into contact with victims of commercial sexual exploitation and sex trafficking. Given their unique role and the attorney-client privilege, defense counsel may be instrumental in identifying and assisting young people (Bryan, 2012). In Suffolk County, Massachusetts, for example, members of the defense bar are active participants in the SEEN (Support to End Exploitation Now) Coalition and are recognized as critical partners in the multisector response to commercial sexual exploitation and sex trafficking of minors (Sherman, 2012). (See Chapters 6 and 10 for more detailed discussion of the SEEN Coalition.)
With appropriate training, defense attorneys may be well positioned to identify victims of commercial sexual exploitation and sex trafficking among individuals who have been arrested for prostitution and other offenses. One former public defender suggests that all defendants arrested for prostitution should be considered potential victims of commercial sexual exploitation or sex trafficking (Bryan, 2012). In some jurisdictions, victim and support service providers have partnered with defender organizations to provide training to defense attorneys (Bryan, 2012; Los Angeles County Juvenile Court, 2011; Sherman, 2012). Such training can support an attorney’s ability to screen defendants, identify victims, provide referrals for services, and prepare robust legal defenses on behalf of victims. In addition to training for attorneys, opportunities exist to train and educate law students about commercial sexual exploitation and sex trafficking of minors (see Box 5-3).
PROSECUTORS AND OFFENDERS
As is evident from the review in Chapter 4, a myriad of laws at both the state and federal levels are potentially applicable to commercial sexual exploitation and sex trafficking of minors. Moreover, prosecutors have the option of charging defendants not only under these statutes but also with a
University of Michigan Law School: Providing Legal Services to Victims/Survivors of Human Trafficking
The University of Michigan Law School operates a legal clinic to train students and provide legal services to victims and survivors of human trafficking, including commercial sexual exploitation and sex trafficking. The clinic provides a variety of services, including direct representation of and advocacy for victims and survivors, as well as community education and training (University of Michigan Law School, 2013a).
In addition to its legal clinic, the University of Michigan Law School maintains the Human Trafficking Law Project as a resource for individuals and entities working to address human trafficking and to strengthen the law’s response to this problem. To that end, the project maintains a searchable database of human trafficking cases within the United States (University of Michigan Law School, 2013a). This database includes federal and state human trafficking cases, both criminal and civil, within the United States since 1980.* The project gathers details on cases from a range of sources (e.g., case opinion and news databases on the LexisNexis search engine; government websites, such as those maintained by the U.S. Departments of Justice and State; Internet search engines; and legal research services such as Bloomberg Law and Westlaw). Each case is reviewed before being added to the database.
*According to the Human Trafficking Law Project (HTLP) website: “Although the comprehensive federal anti-trafficking law, the Trafficking Victims Protection Act (TVPA), was enacted in 2000, the database includes cases going further back in time to offer a fuller view of trafficking in the United States. To achieve a thorough and consistent review, HTLP researchers analyze not only cases prosecuted under the TVPA, but also apply the TVPA standard to evaluate other potential human trafficking cases from 1980 to the present” (University of Michigan Law School, 2013b).
SOURCE: University of Michigan Law School, 2013a.
number of other crimes in addition to or instead of those specific to commercial sexual exploitation and sex trafficking. In a review of trafficking cases from 12 counties, charges included human trafficking, sex trafficking, compelling/promoting prostitution, kidnapping, sexual exploitation of a minor, and transport for purposes of prostitution (Farrell et al., 2012). Prosecutors reported using laws other than those on trafficking because these other laws had lower evidentiary standards, and judges were more familiar with them (Farrell et al., 2012). Prosecution under these other laws, however, may result in more lenient sentences (Farrell et al., 2012), although sometimes sentences can be more substantial. Testimony before the
committee stressed the importance of prosecutors being fully aware of all options and making creative use of existing laws—for example, considering use of statutory rape laws to charge perpetrators so that proving knowledge of the victim’s age is not a concern (although, as discussed in Chapter 4, the specifics of these so-called statutory rape laws can be quite complex) or approaching trafficking as organized crime (Gelber, 2012; Greene, 2012).
The array of potentially applicable laws can be a benefit, as indicated above, but can also create confusion, conflict, and a lack of accountability in the absence of strong law enforcement and prosecution participation on multiagency, multijurisdictional task forces (discussed in Chapter 10). Presentations before the committee illustrated how prosecutors in Boston, Alameda County (California), and Chicago have led efforts to improve cross-system collaboration that include task forces bringing federal and state prosecutors together. In Boston, the Child Advocacy Center of the Suffolk County District Attorney’s Office created the aforementioned SEEN Coalition (Gavin, 2012). In Alameda County, the district attorney wanted to improve investigations and aggressively prosecute traffickers, and was the driving force in establishing the H.E.A.T. (Human Exploitation and Trafficking) Watch Program—an overarching network of agencies, programs, and services (H.E.A.T. Watch, 2013). In Chicago, the Cook County State’s Attorney’s Office launched its Human Trafficking Initiative (described in greater detail in Chapter 10). In partnership with the U.S. Attorney’s Office for the Northern District of Illinois, the Law Enforcement Working Group was created to bring all interested law enforcement agencies together to exchange information and strategize about the best ways to approach trafficking cases (Greene, 2012; Nasser, 2012). As part of this effort, the U.S. Attorney’s Office and State’s Attorney’s Office agreed to “cross-designate” assistant state’s attorneys and assistant U.S. attorneys so they could appear at and pursue cases in both federal and state courts (Greene, 2012). Cross-designation of prosecutors also has been implemented by the FBI’s Innocence Lost National Initiative (described earlier in this chapter) (Pauley, 2012).
The committee learned from several sources that police and prosecutors are increasingly attempting to employ a philosophy of presenting “victim-centered, not victim-built” cases by corroborating victims’ testimony with other evidence (see also Chapter 4 and the discussion of this approach earlier in this chapter). Corroboration may be sought because the victim’s testimony is deemed unreliable, but also because corroborative evidence results in stronger cases that do not rely solely on victims to testify against their exploiters (Farrell et al., 2012; Hersh, 2012). This approach is widely supported since, as work by Adams and colleagues (2010) indicates, testifying often is difficult for victims of these crimes and can make them feel criminalized. This approach, however, requires prosecutors to be innovative
(Ryon et al., 2012). They must obtain and effectively present corroborative evidence, which often takes time and resources that some agencies may not have (Farrell et al., 2012). Examples of some of the most common types of corroborative evidence that may be used in trafficking cases were listed earlier in this chapter.
As noted in Chapter 4, prior to the enactment of the TVPA (2000), prosecutors addressed commercial sexual exploitation and sex trafficking of minors using the Mann Act of 1910.3 This act made it a felony to transport a person younger than age 18 knowing that the person would engage in prostitution or any sexual activity for which the minor could be charged with a criminal offense.
The TVPA provided federal prosecutors with more tools with which to charge purchasers and exploiters. Yet the Cook County (Illinois) State’s Attorney, Anita Alvarez, acknowledged in testimony before the United States Senate4 that these cases often are unsuccessful. Further, testimony and other evidence reveals that prosecutors must approach these cases differently from more traditional criminal cases since victims may be unavailable, unwilling, or in too much danger to testify. Adams and colleagues (2010) conducted an analysis to identify characteristics of successful federal prosecutions of traffickers and purchasers involved in commercial sexual exploitation and sex trafficking of minors. One predictor of successful prosecution is cases tried after passage of the TVPA in 2000. Clearly, this act offers prosecutors better tools with which to prosecute offenders. A second predictor of success is cases with longer processing time. While resource-intensive and costly, cases with longer processing time are more likely to end in conviction. Although the reasons are unclear, research indicates that cases based on U.S. Customs (Immigration and Customs Enforcement) investigations of international sex trafficking are more likely than FBI investigations to result in conviction. Research also shows that having a single defendant leads to a higher probability of conviction than having multiple defendants. Finally, Adams and colleagues (2010) found a higher likelihood of conviction for offenders charged with possessing or distributing child pornography than for those charged with child prostitution or exploitation.
Another approach to improving offender accountability is to prosecute exploiters under the Racketeer Influenced and Corrupt Organizations (RICO) Act,5 a federal law that specifies severe criminal penalties and forfeiture for acts committed as part of a criminal enterprise. Using
3White Slave Traffic (Mann) Act, Ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. 2421-2424 (2006)).
4U.S. Senate, Committee on the Juniciary, Subcommittee on Human Rights and the Law, In our backyard: Child prostitution and sex trafficking in the United States. 111th Congress, Second Session. February 24, 2010.
518 U.S.C. 1961-1968.
Tools for Prosecutors to Improve Accountability of Offenders
A toolkit was created for prosecutors to improve accountability of offenders and to help overcome some of the challenges related to pursuing cases of commercial sexual exploitation and sex trafficking of minors. The Barton Child Law and Policy Center at Emory Law School developed this toolkit “to send a strong message” that the State of Georgia takes the crimes of commercial sexual exploitation and sex trafficking of minors seriously (Lynch et al., 2012, p. 2). Strategies in the toolkit include how to build a case, including obtaining evidence; how to educate a jury to understand the crimes of commercial sexual exploitation and sex trafficking of minors and their victims; and how to build a case that is victim centered and protects the minor during the prosecution process (Lynch et al., 2012).
This toolkit offers prosecutors specific guidance on pursuing the range of offenses related to the exploitation and/or trafficking of a child or adolescent to maximize the likelihood of conviction and substantial sentencing (Lynch et al., 2012). These offenses include pimping, pandering and trafficking, human trafficking, other sexual offenses, related violent offenses, kidnapping, child pornography, organized crime and gang involvement, false identification, and obstruction of justice. Guidance also is offered on determining whether there is federal jurisdiction over the case.
Even though state laws related to commercial sexual exploitation and sex trafficking of minors vary, this toolkit can provide guidance for prosecutors outside of Georgia. Additional research may be necessary to determine its acceptability and utility for prosecutors in Georgia and for other states that are interested in developing similar guidance for their prosecutors.
SOURCE: Lynch et al., 2012.
the RICO Act to prosecute offenders requires demonstrating that several exploiters/traffickers worked together and that they protected one another to maximize profit (see Cornell University Law School, undated). Prosecutors in Chicago, for example, have been successful in using this approach to prosecute cases of commercial sexual exploitation and sex trafficking of minors as criminal enterprises.
As mentioned at the beginning of this section, other options for prosecutors include charging exploiters and traffickers under traditional state and local laws (e.g., pimping, pandering, and solicitation; sexual assault; and kidnapping) in addition to the more recent laws on commercial sexual exploitation and sex trafficking of minors. Box 5-4 describes a toolkit developed to assist prosecutorial efforts related to commercial sexual exploitation and sex trafficking of minors.
Prosecutors can use additional creative strategies to help prove these
cases, depending on applicable law and resources in their jurisdictions. For example, they can
• seek to admit evidence of the victim’s prior testimony or out-of-court statements in lieu of having the victim testify at trial by establishing that “forfeiture by wrongdoing” applies—that is, that the defendant’s actions to intimidate the victim are the reason the victim is unable or unwilling to testify, so the defendant has forfeited his constitutional right to confront the victim at trial;
• introduce any available evidence that shows overt or subtle intimidation employed by the defendant to explain why the victim is absent from the trial, unwilling to testify, or testifying on behalf of the defendant;
• introduce expert testimony to explain victim behavior and the dynamics of child sexual exploitation and sex trafficking cases that might otherwise be misunderstood by jurors or interpreted as damaging the victim’s credibility;
• use technology and the private sector to assist in gathering and presenting evidence of money laundering, to mine cell phone data, and/or to identify a “financial footprint” that corroborates the victim’s testimony or indicates suspicious or criminal behavior;
• seek forfeiture of assets (e.g., money, houses, cars, other property) gained by the offender as a result of engaging in commercial sexual exploitation or sex trafficking of minors; and
• pursue restitution orders to make offenders pay for victim services (Clawson et al., 2008; Gentile Long and Garvey, 2012; Greene, 2012; Knowles-Wirsing, 2012; Koch, 2012; Nasser, 2012; Walker, 2012).
THE JUVENILE JUSTICE SYSTEM AND VICTIMS/SURVIVORS
As noted in a recent National Research Council report on the juvenile justice system (NRC, 2013), given the fundamental differences between youth and adults, the approach to violations of the law by juveniles historically has been to treat and rehabilitate the youth while ensuring public safety. In practice, this approach has resulted in a subset of the legal system that draws on civil as well as criminal law and attempts to blend child protection values with responses to potential criminal behaviors. In fact, involvement in the juvenile justice system as a delinquent specifically requires as an act that (1) is committed by a person below the age of jurisdiction of the criminal justice system, (2) would be criminal if committed by an adult, and (3) results in the juvenile justice system’s assuming jurisdiction over the youth (NRC, 2013).
Although juvenile court judges have considerable discretion and authority over the outcome of juvenile cases, the preferences and actions of police, attorneys, court staff, and probation staff can all influence whether and how youth proceed through the system. The discretion and preferences of each of these actors often are driven by their role or function within the legal system. For example, judges and probation staff may be considering the rehabilitation role of the system, whereas police and prosecutors may be aligned around public safety responsibilities (NRC, 2013). In addition, decisions by each of these actors “about the status of juveniles as delinquents are determined not just by the characteristics of the offense, but also by the personal characteristics of the juveniles” (NRC, 2013, pp. 3-20). It is also noteworthy that in some states, youth who are deemed status offenders may not receive court-appointed legal counsel. Therefore, it is important to consider each actor separately. This section focuses on aspects of the juvenile justice system other than police, prosecutors, and the judiciary, which are covered in other sections of this chapter.
Victims of commercial sexual exploitation and sex trafficking of minors interact with the juvenile justice system because they are detained for prostitution-related offenses or other, unrelated offenses. The juvenile justice system needs to be prepared to identify and provide services for exploited youth both when they encounter the system because of their exploitation and when they enter the system on unrelated charges. When youth are prostituted, the juvenile justice system typically approaches them in one of three ways, depending on state law: (1) prostitution of a juvenile is recognized as harm against children, so a youth should never enter the juvenile justice system on a prostitution charge; (2) juvenile prostitution is deemed a status offense, so the juvenile justice system will work to obtain services and avoid detention for a youth; or (3) juvenile prostitution is a crime, so a youth will enter the juvenile delinquency system. As of this writing, one state, Illinois, had adopted the first approach. Other states with “safe harbor” laws (see Chapter 4 for a full discussion of these laws) had adopted the second approach, essentially deeming juvenile prostitution a status offense, so that sexually exploited youth are eligible for services through the juvenile justice or child welfare system.6 In these states, if a youth does not cooperate with services, a juvenile delinquency case can be reopened. Most other states had adopted the third approach, treating commercially sexually exploited and trafficked youth as delinquents so they enter the traditional juvenile justice system. Some of these states and localities within them have diversion programs so that, as in states adopting
6Status offenders are sometimes called persons, children, or minors in need of supervision (PINS, CHINS, or MINS).
Los Angeles County Probation Department: An Example of a Juvenile Justice Response to Sex Trafficking
The Los Angeles County Probation Department provides one example of a juvenile justice response to sex trafficking in a state in which juvenile prostitution is deemed a crime, so that a prostituted youth will enter the juvenile delinquency system. This program has not been evaluated, so the committee does not intend to endorse it, but it highlights some promising practices in the juvenile justice field.
In 2011, the Los Angeles County Probation Department received grant funding from the State of California to enhance the services provided to domestic sex trafficking victims and to collaborate with several other county agencies to address the county’s trafficking problem. California has not enacted a safe harbor law, so the juvenile justice system has jurisdiction over sex trafficking victims. In 2010, 174 girls under age 18 and 2,351 women between the ages of 18 and 24 were arrested for prostitution (Guymon, 2012). Although most juvenile suspects are not detained upon arrest, girls arrested for prostitution spent, on average, 25 days in custody between arrest and adjudication (Los Angeles County Juvenile Court, 2011). County officials were concerned about these statistics, as well as the disproportionate representation of minorities and the involvement of multiple systems (e.g., child welfare and juvenile justice) among the juveniles arrested for prostitution (Guymon, 2012; Herz and Ryan, 2010).
The grant funding allowed the Probation Department to hire two full-time staff who coordinate the department’s activities, which include training, a pilot program within the district attorney’s office, a domestic minor sex trafficking subcommittee of the Los Angeles County Inter-Agency Council on Child Abuse and Neglect, development of a protocol with the Departments of Mental Health and Health Services, and collaboration with the Department of Child and Family Services (Powers, 2012). The Probation Department provided training on sex trafficking of youth to at least 1,000 county staff, including 3 deputy probation officers who provide full-time supervision, court support, assessment, and aftercare to victims of sex trafficking and at least 350 other department staff (Guymon, 2012; Powers, 2012). The department also is working to prevent trafficking within the county by offering a 10-week My Life, My Choice curriculum (see Chapter 6) in four communities and a 5-week workshop within the detention center (Guymon, 2012).
the second approach, youth identified as victims of trafficking can receive treatment as part of their rehabilitation or in lieu of punishment, but must cooperate with these services or the juvenile delinquency case will proceed or be reopened. The juvenile justice system also has opportunities to identify victims of trafficking who are in the system on charges unrelated to prostitution through intake screenings, runaway and homeless programs, and programming in juvenile detention centers (Castro Rodriguez, 2012; Guymon, 2012; Siffermann, 2012; Taniguchi and White, 2012). See Box 5-5 for an example of a juvenile justice response to sex trafficking.
THE JUDICIARY AND VICTIMS/SURVIVORS
The judiciary can promote an appropriate response to commercial sexual exploitation and sex trafficking of minors in two ways: by recognizing and treating juveniles involved in trafficking or prostitution as victims rather than delinquents or criminals, and by providing adequate sentences for traffickers and purchasers of sex. As discussed in detail in Chapter 4, the committee recognizes that many states continue to criminalize juvenile prostitution, and therefore judges may continue to see youth charged with prostitution in their courtrooms. But judges have considerable discretion over how they approach these cases. The committee was encouraged to hear about three examples of courts that treat youth charged with prostitution as crime victims in need of services. These programs have not been formally evaluated, so the committee does not intend to endorse them by including them here. Nonetheless, these programs appear to be a positive development worthy of evaluation and further exploration.
Midtown Community Court STARS Program
The Midtown Community Court in New York City has jurisdiction over all prostitution offenses in Manhattan for children and adults aged 16 and over.7 Judges and attorneys noticed that girls and women8 arrested for prostitution often had significant service needs that were not being met as they cycled between the street and the legal system. More than 80 percent of them reported past victimization, including childhood sexual abuse and sexual and physical assault, and many of the adults had been trafficked as children (Schweig et al., 2012). The court recognized that these past victimizations had led many women and girls into trafficking and prostitution, and that instead of treating the women as criminals, the court should help them receive services.
In conjunction with the Center for Court Innovation, the Midtown Community Court developed the Services to Access Resources and Safety (STARS) program to address the physical, sexual, and emotional trauma experienced by defendants with a history of abuse and trafficking. Through
7In New York State, everyone over age 15 is considered an adult who can be tried in criminal court. Therefore, 16- and 17-year-old youth arrested for prostitution in Manhattan are taken to Midtown Community Court. The New York safe harbor law, described in Chapter 4, does not apply to 16- and 17-year-olds. According to the Center for Court Innovation, at least 300 16- and 17-year-olds were arrested in New York State for prostitution or loitering for the purpose of prostitution during 2005-2010; at least 50 percent of those youth were convicted of a crime or violation (Bryan, 2012).
8Boys and men can also be arrested for prostitution and related offenses; however, the director of the Midtown Community Court noted to the committee that in the past year, the court saw no males for prostitution-related offenses.
the STARS program, case managers at the court screen each client for a history of trafficking and trauma. If the case manager identifies such a history, the client is referred to on-site services, including a multisession counseling group that covers such topics as staying safe on the street, trauma regulation, and healthy relationships. Girls aged 16 to 19 are often referred for services to Girls Educational and Mentoring Services (GEMS) and other offsite service providers (Bryan, 2012). Successful completion of the STARS program serves as an alternative to adjudication or detention. The director of the Midtown Community Court credits collaboration among the presiding judge, the Legal Aid Society defense attorney who represents many of the girls and women, and the district attorney for the success of the STARS program (Bryan, 2012).
Queens County Prostitution Diversion Court
The Queens County Prostitution Diversion Court provides alternatives to incarceration for people arrested for prostitution-related offenses in Queens County, New York. In 2010, the Diversion Court heard 66 percent of prostitution cases in the county (Serita, 2012). Like the Midtown court, the Queens County court hears cases for people over age 16. The Queens County Prostitution Diversion Court began in 2004 when Judge Fernando Camacho noticed that many defendants in his court had a history of trauma, and some did not appear to be engaging in prostitution voluntarily (Schweig, 2012). He partnered with GEMS (see above) to provide services to girls under age 21 and with the Mount Sinai Sexual Assault and Violence Intervention Program for women over age 21 (Bryan, 2012; Serita, 2012), among other organizations. When the court identifies girls and women as victims of abuse or trafficking, it diverts them to services at one of its partner organizations instead of placing them in detention or confinement.
Los Angeles County STAR Court
In 2011, the Los Angeles County Juvenile Court received funding for the Succeed Through Achievement and Resilience (STAR) Court, a collaborative court designed to provide enhanced supervision of youth arrested for prostitution and collaborate with the Probation Department to improve services to those youth.9 Instead of engaging youth arrested for prostitution in an adversarial court process, the STAR Court works with the district attorney and defense counsel to defer prosecution while youth are engaged in treatment. The court meets weekly with the youth and their service pro-
9The probation portion of the program is described in more detail above in the section on juvenile justice.
viders (including the district attorney, defense counsel, physical and mental health care providers, and victim service providers) to monitor and facilitate progress. The court plans to work with the school district to address educational needs and help youth approaching age 18 find transitional housing (Los Angeles County Juvenile Court, 2011). After successful completion of a treatment program, the court dismisses prostitution charges.
The court’s grant includes funding for evaluation. Criteria for evaluation include number of days in custody and/or placement; number of redetentions, rearrests, and violations; successful completion of counseling; and school attendance and grades. Outcomes for participants in the STAR program will be compared with those for other youth arrested for prostitution who do not receive special services (Los Angeles County Juvenile Court, 2011).
CRIMINAL JUSTICE AND OFFENDERS
The TVPA appears to have provided the judiciary with additional methods for dealing more harshly with those convicted of commercial sexual exploitation and sex trafficking of minors. For example, research indicates that the passage and reauthorizations of the TVPA resulted in increased prison sentences for those convicted of these crimes. Adams and colleagues (2010) found that the average sentence given following a conviction of commercial sexual exploitation or sex trafficking of minors in 1999 (prior to passage of the TVPA) was 53 months, while the average sentence following reauthorization of the TVPA in 2005 was 80 months.
Adams and colleagues (2010) also offer insight into characteristics of cases that lead to longer prison sentences for offenders involved in commercial sexual exploitation and sex trafficking of minors. Findings indicate that offenders who went to trial instead of taking a plea bargain were sentenced to an average of 61 more months in prison. It was also found that nonwhite offenders received sentences that were an average of 16 months longer than those received by similarly situated white offenders. In addition, offenders with less than a high school education were sentenced to longer terms in prisons than those with some college completed. Finally, Adams and colleagues (2010) found that sentences received by offenders charged with child sexual exploitation were an average of 47 months longer than the sentences of those charged with child prostitution or child pornography.
A study of men who purchased sex (Durchslag and Goswami, 2008) found that they viewed the following as deterrents:
• being embarrassed in front of their families,
• being embarrassed in front of their work colleagues,
• being fined, and
• having their property (e.g., automobile) confiscated.
In addition, Cedeno (2012) notes that individuals who purchase sex are most deterred if
• they are required to register as sex offenders,
• their photo/name is made public, and
• they are incarcerated.
While the information yielded by these studies is helpful, additional research is needed to understand effective deterrents for different types of exploiters. For example, one recent study suggests that individuals who habitually buy sex are less likely to be deterred by legal sanctions than those who purchase sex infrequently (Yen, 2008).
FINDINGS AND CONCLUSIONS
The committee’s review of the literature and its careful consideration of expert testimony revealed several themes related to the role of the legal system in preventing, identifying, and responding to commercial sexual exploitation and sex trafficking of minors in the United States. This chapter has highlighted a range of noteworthy and emerging efforts and drawn lessons from approaches to related and overlapping problems. The chapter also has highlighted a number of opportunities represented by current and emerging practices at various points in the legal system. However, the committee emphasizes that evaluation of these and future efforts is crucial. In addition, the committee formulated the following findings and conclusions:
|5-1||Law enforcement personnel at all levels often are the first to respond to commercial sexual exploitation and sex trafficking cases involving minors. Consequently, their knowledge and ability to identify victims, investigate cases, and make appropriate referrals is an important part of developing an overall response to these problems.
|5-2||Many law enforcement personnel and agencies continue to arrest and charge minors with prostitution.
|5-3||Few law enforcement agencies have specific protocols to follow when commercial sexual exploitation and sex trafficking of minors are suspected or disclosed.
|5-4||Many law enforcement personnel do not recognize commercial sexual exploitation and sex trafficking of minors as serious problems. As a result, they may fail to identify victims of these crimes and may be uncertain about how to handle these cases.
|5-5||Task forces are one approach used by the legal system to identify and respond to commercial sexual exploitation and sex trafficking of minors. Additional research is needed to identify specific task force strategies and components that can increase the reach and effectiveness of this approach.
|5-6||Although efforts to train personnel within the legal system to address human trafficking have increased, the majority of personnel in the system have not been trained to recognize and respond to suspected or confirmed cases of commercial sexual exploitation and sex trafficking of minors.
|5-7||Pursuing cases that are “victim-driven, not victim-built” can reduce the need for the legal system to depend on cooperation by victims and survivors of commercial sexual exploitation and sex trafficking.
|5-8||Juvenile justice personnel need training in identifying victims of trafficking who are in the system on charges unrelated to prostitution through intake screenings, runaway and homeless programs, and programming in juvenile detention centers.
|5-9||Diversion programs need to be established so that youth identified as victims of commercial sexual exploitation and sex trafficking can receive treatment as part of their rehabilitation or in lieu of punishment.
|5-10||The judiciary, juvenile justice agency personnel, and prosecutors should refer youth identified as victims of commercial sexual exploitation and sex trafficking to appropriate treatment services.
|5-11||The Trafficking Victims Protection Act and new state laws have provided prosecutors and judges with additional tools for investigating, prosecuting, and sentencing exploiters, traffickers, purchasers, and solicitors in cases of commercial sexual exploitation and sex trafficking of minors. In addition, prosecutors can use a range of existing laws to pursue convictions and more substantial sentences.
|5-12||Research on the effectiveness of the overall response of the criminal justice system to exploiters and traffickers and to solicitors and purchasers is limited. Therefore, additional research is needed to determine effective punishments for both exploiters and traffickers and solicitors and purchasers who engage in the commercial sexual exploitation and sex trafficking of minors.
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