(The following is an excerpt from my book, The Essential Abolitionist: What you need to know about human trafficking & modern slavery (2016). Beginning on January 11th, every other day I’ll be posting excerpts from my book to help readers learn more about this issue during National Slavery and Human Trafficking Prevention Month. The Essential Abolitionist answers the most often-asked questions about human trafficking, and the response to modern slavery.)
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When examining any incident to determine whether it could be considered human trafficking, we must look for force, fraud, or coercion. Only one of these elements needs to be present, not all three. When examining an incident to determine whether a person should be considered a victim of trafficking, we must establish how force, fraud, or coercion was used to obtain the commercial sex act or labor or service from the victim.
When looking for force, fraud, or coercion, we must look at it from the victim’s perspective, or state of mind. The degree of force needed to make one person do something they don’t want to do may be far greater, or far less, for any given individual. As a result, determining the type of force, fraud, or coercion—and the extent, or degree, to which it was used—in the case of a trafficking victim is especially difficult. Investigators and prosecutors seeking proof of force, fraud, or coercion must examine the evidence in detail and will often find, for example, that fraud is difficult to distinguish from coercion. Because even professionals debate among themselves what constitutes force, fraud, or coercion, illustrating each element in more detail can be helpful.
Force is the use, or potential use, of physical power or violence. Physically assaulting or threatening to assault a victim in order to force them to perform an act of labor or commercial sex is the most common example of force. A trafficker need not actually assault the victim; simply threatening to assault the victim can constitute force. Also, violence threatened against another person can be considered force—even if the trafficker does not have the ability to actually commit the violence—so long as the victim reasonably believes they do. For example, a trafficker may threaten to harm a victim’s family if the victim does not comply with the trafficker’s demands. Even if the victim’s family is located in another state or country and the trafficker has no realistic way to carry out the threat, if the victim reasonably believes the threat is real, this threat can be regarded as force (or coercion, as we will learn).
Force can also be seen as constraint if, for example, a victim is locked in a sweat shop and forced to sew clothing. But constraint does not always mean being locked in a room; a victim who is not allowed to eat if they do not perform or complete their labor is constrained from eating; often, victims of street-level commercial sex trafficking are not allowed by their pimp or trafficker to eat until they have performed a certain number of “tricks” (i.e., performed sex acts with a purchaser).
In legal terms, fraud commonly refers to misrepresenting facts through words or conduct, or by concealing or omitting facts that should have been disclosed with the intention to deceive another person. Perhaps the most common method of recruiting a slave is simply offering them a job. If a trafficker offers a job they know does not, in fact, exist, or if they lie about the working conditions and salary of a job, they are using fraud to obtain the victim’s labor or services. Let’s say a trafficker offers a woman a job working as a domestic servant in another country and offers to pay the transportation costs, which the woman will repay through her earnings. The trafficker promises the victim a certain salary and work conditions. However, when the victim arrives she finds she is forced to work more hours or for less pay than originally promised. The victim may feel compelled to continue to work simply because she does not have the money to return home or because she is hopeful conditions will improve. If it can be shown that the trafficker never intended to pay the victim as offered, this could constitute fraud.
Fraud can also lead to the use of force. Suppose the trafficker in the above scenario offers the same woman the same job, but the trafficker knows, in reality, no such job exists and when the woman arrives she will be forced to work in a brothel to “repay” the transportation costs. When the woman refuses to work in the brothel, violence is used (or threatened) to force the woman to work. Fraud was used to get the woman to voluntarily travel from her home to the country in which the commercial-sex exploitation occurs, and force was used to compel her to do work she did not want to do.
Traffickers also defraud victims by telling them the salary they will earn will be paid to family members, yet the earnings are never sent to the family. The trafficker is obtaining labor from the victim who works willingly, believing their family is receiving the money. In this scenario, the trafficker will have to monitor any communication between the victim and their family so the ruse will not be discovered. Despite the fact that the labor in this case is provided willingly and the victim is not constrained or threatened with force, this situation meets the definition of human trafficking.
Coercion can be a more difficult element to understand. Luckily the term is defined in the United States Code, Title 22, Chapter 78, § 7102.[i]
The term “coercion” means—
- threats of serious harm to or physical restraint against any person;
- any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or
- the abuse or threatened abuse of the legal process.
The definition speaks to “threats of serious harm” or a “pattern intended to cause a person to believe that failure to perform an act would result in serious harm.” Coercion does not require an actual act of violence; coercion is used to control a victim’s state of mind, or their perceptions, and gain compliance through fear. It is also important to understand that the threatened harm can be against “any person” and not necessarily against the victim. A trafficker may threaten to harm a victim’s family member, and if the victim complies with the trafficker based upon the fear his family member may be harmed, that equals coercion.
This example also illustrates how the terms “force” and “coercion” can both be used to describe the same activity, in this case threats of physical violence made by the trafficker. This overlap can lead to confusion, but the exact legal definition of these terms is most important to prosecutors and should not interfere with our general definition of human trafficking.
Section C of the definition of coercion refers to “the abuse or threatened abuse of the legal process.” A common example of this form of coercion occurs when a foreign national victim either arrives in the United States without legal documentation or enters the United States on a valid short-term visa but then overstays the visa’s time frame (i.e., they do not leave the United States before their visa expires), and their traffickers threaten to turn them over to law enforcement or immigration authorities. The trafficker might tell the victim she will be imprisoned for being in the United States illegally. If the victim continues to perform the commercial sex acts, labor, or services, as demanded by the trafficker because of her fear of being imprisoned, she is being coerced. The supreme irony of this scenario is that the TVPA created victim protections to stop exactly this type of coercion! (These protections will be discussed in Chapter 4.)
In truth, most incidents of human trafficking involve some degree of two or even all three elements of force, fraud, or coercion. And though the TVPA does not require force, fraud, or coercion in incidents where the victim is under age 18 and involved in commercial sex, any force, fraud, or coercion used should be investigated and documented by investigators. (After receiving proper training it should be easy for investigators to articulate these criminal elements.) Mastering these terms is especially important for investigators and prosecutors since many laws have greater prison sentences for traffickers who use force, fraud, or coercion. For instance, under California law, a trafficker who exploits a minor through a commercial sex act—and whose use of force, fraud, coercion, fear, duress, or other means are not shown in court—can be sentenced to 5, 8, or 12 years in prison. However, if the investigator can articulate how force, fraud, and/or coercion were used to compel the victim, the trafficker can receive a sentence ranging from 15 years to life!
These are just some common examples of how modern slaves are compelled by their traffickers to perform sex acts or labor. Every instance of trafficking must be closely examined on its own merits. Sometimes, when a trafficking incident is suspected, the most difficult part of the process is simply identifying the form and degree of force, fraud, or coercion involved.
[i] Trafficking Victims Protection, U.S. Code Chapter 78, § 7102. (2000). Available from Cornell University Law School: https://www.law.cornell.edu/uscode/text/22/7102