Child Protection/Trafficking Legal Remedies
by Norma Abbene
When Nadine was five years old, her mother suggested a game of “dress-up.” She remembers her mother putting make-up on her and dressing her in provocative clothing, and that one day, a man came over and proceeded to abuse her in exchange for money. Her mother continued to sexually exploit her, and so did her own boyfriend. She ran away from home at age 11, only to find herself being exploited once more, this time prostituted by professional pimps.
Nadine wanted to go back to school. Her trafficker refused, not wanting to grant her any measure of independence, and threatened to kill her. Soon after, Nadine became pregnant, and risked her life to escape. Her child was stillborn. Her captor soon found her, and brought her back under his control, going to great lengths to isolate her. When Nadine’s aunt recognized her in a restaurant, her pimp made it clear that she wasn’t to say a word. She knew that other girls had been beaten for talking to outsiders. She stayed quiet.
Girls like Nadine are not anomalies. Sex trafficking occurs right under our noses, in our own backyards, and it’s not just strangers smuggling girls across foreign borders. These are young women and girls being forced into sexual slavery, often by the people they trust the most. And when they do break free, if they do, there needs to be a system in place that treats them like what they are – children.
New York State family courts do not have jurisdiction over persons over the age of sixteen, despite their legal status as minors. Sixteen and seventeen year olds are treated as criminals when, in cases like Nadine’s, they need to be treated as victims. Currently, New York prosecutors need to prove that 16- and 17-year-olds being prostituted were subject to force, fraud, or coercion in order for them to be considered victims under the law.
In order to adequately combat human trafficking and create a protective environment for survivors, we need a new, multi-modal approach combining legal, medical, and service strategies. Most current policies and programs to combat human trafficking face challenges in implementation due to the patchwork nature of the anti-trafficking laws, which offer little operational guidance and unfunded mandates. This is particularly daunting when assisting children, as the core-operating principal should always be the best interest of the child.
One solution to countering these challenges may be to enhance current child protective laws and policies to include human trafficking. These laws were designed to prevent child abuse and exploitation in addition to punishing the perpetrator. By enhancing existing child protection laws, we can better address the realities faced by children and teens like Nadine.
Government-sponsored child protective services began in 1962 when medical professionals began publishing accounts of medical conditions resulting from child abuse and neglect. Among the best received of these reports was The Battered Child Syndrome, written by pediatrician Henry Kempe.1 The report brought unprecedented national media attention to the issue of child abuse, creating public awareness and leading to public demand for reform. In direct response to public outcry, Congress amended the Social Security Act to include recommendations that individual states create child protection services and suggested an implementation deadline of July 1, 1975.
That same year, the Federal Children’s Bureau recommended passage of state legislation requiring medical doctors to report suspicion of child abuse to government authorities. By 1967, every state had passed mandatory reporting laws.
The United States government recognized the insufficiency of passing state-by-state laws, and in 1974 Congress passed the Child Abuse Prevention and Treatment Act (CAPTA)2, which incentivized state action by funding the mandate for training in regional multi-disciplinary centers. CAPTA also focused on improved investigation and reporting of child abuse and maltreatment.
Today, child abuse polices and laws continue to be modified as we learn more about the crimes that are committed. New polices, however, seldom recognize that children and teens who are victims of child abuse are at greater risk of child exploitation in the community and are often victims of related/concurrent crimes.
Many children from troubled homes, like Nadine, run away leading to further exploitation. Existing child protection/trafficking strategies, laws and policies seldom capture the interrelationship between child abuse, human trafficking and other exploitative crimes against children.
The Trafficking Victims Protection Act (TVPA), passed in 2000,3 was a good start in the government’s response to trafficking. However, it does not focus specifically on children, creating confusion for legislators, law enforcement and service providers. This weakness is compounded by many state laws, enacted after the TVPA, failing to provide definitional clarity of child trafficking. In New York State, for example, because of the gaps in state statutes, having sex with a child who is being prostituted is not treated as rape, but as a transactional “victimless crime” that all parties have entered into willingly.
In order to make laws more effective, they need to be (1) uniform and (2) specific to children. Talking to children and their advocates is an integral part of this. The Uniform Law Commission (ULC), which provides nonpartisan draft legislation to states aimed at providing clarity and stability to statutory law, is currently working on model state anti-human trafficking legislation. The ULC is focusing specifically on human trafficking involving exploitation of a minor and human trafficking that amounts to involuntary servitude. The ULC has the opportunity to study model laws and incorporate effective aspects into draft legislation.
Among the models that may be considered is the recent Violence Against Women Reauthorization Act, which includes the Trafficking Victims Protection Reauthorization Act.4 Section 1243 of VAWA is a model state criminal law for child trafficking victims and survivors. The model law calls for protection of children exploited through prostitution by (1) treating minors arrested for engaging in a commercial sex act as a victim of a severe form of human trafficking, (2) prohibiting charging or prosecuting such a victim, (3) requiring the referral of such a victim for appropriate services, and (4) eliminating the requirement to prove force, fraud or coercion for such a victim to be protected by the law.
A 2011 piece of legislation introduced by California Congresswoman Karen Bass, the Strengthening the Child Welfare Response to Human Trafficking Act of 2011 (H.R. 2730),5 offered a prescriptive solution to some of the shortcomings of current human trafficking laws by following the model set by the federal government in response to child abuse in 1975. The act would have amended the Social Security Act to require child welfare agencies to document and report data on children who they identify to be trafficking victims under federal law. Agencies would also be required to document measures they take to ensure the child is safe and the extent to which the child is receiving services designed specifically for trafficking victims. The bill died in committee, despite bipartisan support.
Taking cues from VAWA and H.R. 2730, as well as from the federal government’s past success with enacting uniform child abuse guidelines, laws, and policies, the ULC has the opportunity to produce draft legislation that addresses many of the shortcomings of current human trafficking laws. A return to considering the best interest of the child and a model that offers clear formulas for addressing the problem can provide proper support for Nadine and those like her and take steps toward preventing further exploitation of children.
©2013, Norma Abbene
Norma Abbene is an observer on The Uniform Law Commission Drafting Committee on Prevention of and Remedies for Human Trafficking
C. Henry Kempe, et al., The Battered-Child Syndrome, JAMA, 181:17-24 (1962), available at (http://jama.jamanetwork.com/article.aspx?articleid=327895)[http://jama.jamanetwork.com/article.aspx?articleid=327895] ↩
Child Abuse Prevention and Treatment Act of 1974, Pub. L. 93-247 (1974), available at (http://www.gpo.gov/fdsys/search/pagedetails.action?st=public+law+93-247&granuleId=STATUTE-88-Pg4&packageId=STATUTE-88)[http://www.gpo.gov/fdsys/search/pagedetails.action?st=public+law+93-247&granuleId=STATUTE-88-Pg4&packageId=STATUTE-88] ↩
Trafficking Victims Protection Act of 2000, Pub. L.106-386 (2000), available at (http://www.gpo.gov/fdsys/pkg/PLAW-106publ386/content-detail.html)[http://www.gpo.gov/fdsys/pkg/PLAW-106publ386/content-detail.html] ↩
Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (2013), available at http://www.govtrack.us/congress/bills/113/s47/text ↩
Strengthening the Child Welfare Response to Human Trafficking Act of 2011, H.R. 2730, Introduced Aug. 1, 2011 (112th Congress, 2011-2013); Status: Died, available at (http://www.govtrack.us/congress/bills/112/hr2730)[http://www.govtrack.us/congress/bills/112/hr2730} ↩