Trafficking in Persons
Article 3 of the U.N. Protocol defines "trafficking in persons" as:
[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation includes, a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Often, the U.N. trafficking in persons definition is described as composed of three necessary elements:
1. the commission of specific acts (e.g., recruitment, transportation, transfer, harboring, or receipt of persons);
2. the use of specific methods or means in the commission of the above-listed acts (e.g., threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to control another person); and
3. the primary purpose of committing the above-listed acts using the above-listed means is exploitation.
The three-part U.N. definition clarifies that human trafficking is unique among other trafficking and commodity smuggling crimes, as it does not require that victims move across national borders to trigger the human trafficking definition. Instead, the U.N. definition emphasizes the role of human exploitation and vulnerability as core components. A victim's consent in a trafficking scheme is irrelevant to the U.N. definition when exploitation occurs as a result of specified means of force, fraud, and coercion. Additionally, all persons under the age of 18 who are recruited, transported, transferred, harbored, or received for the purpose of exploitation are considered trafficking victims. (1)
Severe Forms of Trafficking in Persons
In federal U.S. statutes, there are no formal definitions of human trafficking or trafficking in persons. Instead, the TVPA defines "severe forms of trafficking in persons." Specifically, Section 103(8) of the TVPA defines this term to mean:
(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
(B) the recruitment, harboring, transportation, provision or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
This term, rather than the U.N. definition of trafficking in persons, is applied in the context of U.S. anti-TIP policies and programs. For example, the State Department applies this definition of severe forms of trafficking in persons to measure and rank foreign countries' progress in combating trafficking in its annual Trafficking in Persons report. Furthermore, a country's failure to achieve minimum standards of progress in combating severe forms of trafficking in persons has the potential to trigger restrictions that prohibit poor-performing countries from receiving certain types of U.S. foreign assistance. (2)
Several of the key terms used in the definition of severe forms of trafficking in persons are additionally defined or described by the TVPA, as amended, including the terms "coercion," "commercial sex act," "debt bondage," "involuntary servitude," and "sex trafficking."
* Coercion: "(A) threats of serious harm to or physical restraint against any person; (B) 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 (C) the abuse or threatened abuse of the legal process." (3)
* Commercial Sex Act: "any sex act on account of which anything of value is given to or received by any person." (4)
* Debt Bondage: (5) "the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined." (6)
* Involuntary Servitude: "(A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process." (7)
* Sex Trafficking: "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act." (8)
The TVPA's definition of severe forms of trafficking in persons is similar to the U.N. Protocol's definition of trafficking in persons, as both identify force, fraud, and coercion as prohibited means or methods for obtaining the services of another person and both do not require movement of persons across national borders as a necessary precondition for identifying human trafficking. The definitions differ, however, in the concept of exploitation. For example, the U.N. definition uses the term "exploitation" expansively, providing some illustrative, but not comprehensive examples of exploitation, or purposes for trafficking acts. In contrast, the U.S. definition does not use the term exploitation, but identifies, in the context of describing labor trafficking, four specific purposes for inducing another person's labor or services: (1) involuntary servitude, (2) peonage, (3) debt bondage, and (4) slavery. Notably, one of the specified examples of exploitation listed by the U.N. definition, the removal of organs, is not present in the U.S. definition of severe forms of human trafficking.
Distinctions also exist between human trafficking and human smuggling. Human smuggling typically involves the provision of a service, generally procurement or transport, to people who knowingly consent to that service in order to gain illegal entry into a foreign country. In some instances, an individual who appears to have consented to being smuggled may actually be trafficked if, for example, force, fraud, or coercion are found to have played a role.
Forced or Compulsory Labor
"Forced or compulsory labor" is defined by International Labor Organization (ILO) Convention No. 29 as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." (9)
The ILO definition is used in the context of some U.S. laws. The Trade Act of 1974, as amended (19 U.S.C. 2467), for example, identifies forced or compulsory labor, as defined by the ILO, as one of five "internationally recognized worker rights," which also include the right of association, the right to organize and bargain collectively, a minimum age for the employment of children, and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.
Separately, Section 222 of the TVPA of 2008 (P.L. 110-457) amends Section 1589 of the U.S. Criminal Code (Title 18) to describe the means by which forced labor occurs:
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint[.] (10)
Section 103(5) of the TVPA also defines "involuntary servitude" (see above), a term often used interchangeably with forced labor in the U.S. context of human trafficking descriptions.
Additionally, the Secretary of State in 2011 reportedly "approved an interpretation of the term 'trafficking in persons' that includes forced labor." (11)
Section 402 of the Child Soldiers Protection Act (CSPA) of 2008 defines "child soldier" to mean:
(i) any person under 18 years of age who takes direct part in hostilities as a member of the armed forces;
(ii) any person under 18 years of age who has been compulsorily recruited into governmental armed forces;
(iii) any person under 15 years of age who has been voluntarily recruited into governmental armed forces; or
(iv) any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state[.]
The CSPA of 2008 further specifies that the term child soldier also applies to those described above who provide support roles to the armed forces, including child cooks, porters, messengers, medics, guards, and sex slaves. At the international level, there is a U.N. treaty that addresses the recruitment and use of child soldiers, called the U.N. Option Protocol to the Convention on the Rights of the Child in Armed Conflict. This U.N. Optional Protocol, however, does not define child soldiering, aside from specifying that children are to include persons under the age of 18 and noting that, according to the Statute of the International Criminal Court, the conscription or enlisting of children under the age of 15 years or using them to participate actively in hostilities constitutes a war crime.
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||Trafficking in Persons: U.S. Policy and Issues for Congress|
|Author:||Siskin, Alison; Wyler, Liana Sun|
|Publication:||Congressional Research Service (CRS) Reports and Issue Briefs|
|Date:||Dec 1, 2012|
|Next Article:||Scope of the Global TIP Problem.|