Human Trafficking, Survivors, and Social Science Research

 by Jonathan Todres

 Human trafficking is a gross violation of human rights. We know that victims and survivors experience physical, psychological, and emotional harm.  Yet on August 18, 2015, the U.S. Court of Appeals for the Fourth Circuit overturned a trafficker’s conviction for “possession and use of a firearm in relation to a crime of violence,” when the crime in question was sex trafficking (U.S. vs. German de Jesus Ventura).

 The relevant statutory language defines a “crime of violence” as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3).  The Fourth Circuit concluded that sex trafficking does not meet the requirements of section (A) because it can be committed “nonviolently—i.e., through fraudulent means.”  As to section (B), the court stated first that “the relevant inquiry is whether there is a substantial risk that the defendant will use physical force against the victim in completing the crime” (as opposed to any other individual, say a purchaser of sex). And then the court concludes – in a footnote – that “we are not persuaded that the ordinary case of sex trafficking by force, fraud, or coercion involves a substantial risk that the defendant will use physical force as a means to commit the offense.” The Fourth Circuit doesn’t cite to any research in support of this conclusion. In fact, research suggests that the great majority of trafficking victims suffer physical injuries (On health consequences, see, for example, C. Zimmerman et al.; Todres).

This opinion is reminiscent of the Ninth Circuit’s opinion in U.S v. Castaneda (239 F.3d 978 (9th Cir. 2001)). In that case, three Filipina women who were lured to Saipan under false pretenses found themselves in a foreign country with little or no money and the legality of their presence in country tied to their place of employment. The women were forced by their employer to provide sex to men in a night club. Yet the Ninth Circuit questioned whether these women were coerced, noting “there wasn’t a gun put to their head,” and that they weren’t forced to line up for selection by male customers but only “instructed” to do so.

 In these and other cases, courts fail to understand the experience of trafficking victims and other survivors of human rights violations. That Ventura will be left with a 30-year sentence, even after his Section 924(c) conviction is vacated isn’t a satisfactory answer. Why are courts failing to see the experience of victims of human rights violations for what it is? There may be a host of reasons, from deficiencies in the evidence presented to implicit bias.  Whatever the reason, social science offers a potential answer: it can provide evidence-based research that can demonstrate the likelihood of physical violence by traffickers, or the impact of trauma might have on a victim’s decisions whether or not a gun is put to her head.

Many cases have benefitted from such evidence, dating back to the experiments of Drs. Kenneth and Mamie Clark in Brown v. Board of Education, and even earlier. Human rights advocates, and the populations they represent, would be well served by forging more partnerships with social science to ensure future courts cannot ignore the true experience of those who suffer human rights violations.