Monday, June 19, 2017
As I wrote in an earlier post, the Special Rapporteur on Trafficking, Maria Grazia Giammarinaro conducted an official visit to the U.S. last December. Her final report issued last week emphasizes that the U.S. needs to do more to address inadequate labor protections, restrictive immigration policies, discrimination and poverty, which are the root causes of trafficking. She also criticizes U.S. laws and policies that criminalize trafficking victims for acts they were forced to commit.
The report had a strong labor focus, noting the U.S.’s “limited identification of trafficking for labor exploitation and forms of trafficking other than for sexual exploitation.” It emphasizes that “economic inequality and social exclusion, discrimination, organised crimes such as drug trafficking, and insufficient labour protections are causes of vulnerability to human trafficking.” As a result many workers “have been compelled to work in precarious or informal employment, on short-term or part-time contracts, on temporary visa if they are migrants rendering them vulnerable to human trafficking.” In particular, the report emphasized that non-immigrant visas that tie immigrants to an employer create vulnerabilities for abuse and trafficking. The report noted that “40 percent of labour trafficking reported to the national hotline/textline are linked with temporary visas.”
The report recommends that the U.S. strengthen protections for workers, including laws that require fair terms of employment and increase the minimum wage. It also states that the U.S. should ensure that migrant workers with temporary non-immigrant visas are free to leave or change employment or return to their country of origin.
The report recognizes that criminalization of prostitution also makes people more vulnerable to trafficking. Prostitution related arrests and raids create “fear of arrest, prosecution or deportation” which increases the insecurity of trafficking victims and forces them “to work underground in dangerous environments; which in turn renders their identification as victims of trafficking more difficult.”
In addition to making it more difficult to identify trafficking victims who fear coming forward, criminalization of victims of trafficking for acts they were forced to commit violates international standards. The report emphasizes the U.S. should fully implement the “non-punishment principle” which requires that “trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries . . . , or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” The report also notes with concern that in many states minors can be prosecuted for prostitution/sex work. The report recommends that the U.S. decriminalize the selling of commercial sex and raise the age of criminal responsibility to ensure that children under 18 are immune from prosecution for prostitution/sex work.
In order to mitigate the impact of criminalization, the Special Rapporteur welcomed state efforts to adopt laws that allow trafficking victims to vacate convictions for crimes committed as a result of their status as trafficked persons. However, she criticized gaps in laws including only providing relief for minors or limiting the types of offenses that can be vacated and recommends that vacatur laws be adopted that allow vacatur of all convictions that result from being subjected to trafficking.