Measuring Human Trafficking: “If You Can’t Measure It, It Doesn’t Exist”

by Debra Brown Steinberg with Qian Wang

“Global modern slavery is hard to measure… . [In] management speak, if you can’t measure it, it doesn’t exist.” 1

In remarks delivered at the Clinton Global Initiative on September 25, 2012, President Obama committed to “prepare a new assessment of human trafficking in the United States so we better understand the scope and scale of the problem.”2 The U.S. State Department’s 2012 Trafficking in Persons Report similarly recognized, and recommended, that the United States must “[i]mprove data collection on and analysis of human trafficking cases at the federal, state, and local levels… .”3

“Knowing how to measure human trafficking in practice is the first and pivotal step in understanding and, in turn, curbing and controlling it.” 4 “Reliable data … are a pre-requisite for effective trafficking prevention and intervention policies. The proliferation of such policies in the absence of reliable data—locally, at the state level, and nationally—present the distinct risk of misdirected interventions and missed opportunities.”5 “The problem can be cyclical—without accurate estimates of the prevalence of human trafficking, it can be difficult to know how to allocate resources to study the issue.6

Yet, “[d]espite growing awareness of the issue and an influx of resources from such influential bodies as the United Nations and other intergovernmental organizations, foundations, non-governmental organizations and the U.S. government, the field is still hampered by its inability to measure the size and scope of trafficking.”7 “As in other fields of research and policy, clear and consistent definitions are essential bases for the accumulation of knowledge.”8 “‘Defining key terms and understanding and applying them uniformly are at the heart of establishing standardized data and of ensuring reliability of statistics.’”9 A clear, concise operational definition of human trafficking, uniformly applied, is fundamental to reliable data collection, while different definitions and methods of reporting victimization lead to “a number of adverse consequences.”10

The lack of a uniform definition is a primary barrier to obtaining reliable data on the prevalence of domestic human trafficking. “Problems associated with defining someone as a victim of human trafficking, and then as a victim of sex trafficking versus labor trafficking, result in data being inconsistently recorded.”11 “[C]ontradictory laws and a history of law enforcement and others treating prostitutes, including children, as criminals continue to blur the meaning of domestic (sex) trafficking and make identification of domestic victims difficult.”12

“The drafting of anti-trafficking legislation, at the national, international, and state levels, was accompanied by fierce debate over the very definition of human trafficking. Nearly a decade after the enactment of the first anti-trafficking statutes, the debate continues.”13 “In defining human trafficking, all of these laws specify the various components of trafficking victimization and thus offer guideposts for developing a screening tool. However, the three laws do not define human trafficking or trafficking victimization in exactly the same way… . The points of contention in these legislative and ancillary debates have important implications for the design of research tools.”14

The inconsistencies between the federal Trafficking Victims Protection Act of 2000 (TVPA) and New York State’s anti-trafficking legislative framework are the subject of an authoritative article authored by Judge Toko Serita, a New York City Criminal Court judge presiding over the Queens County Human Trafficking Intervention Court, titled “In Our Own Backyards: The Need for a Coordinated Judicial Response to Human Trafficking.”15 Judge Serita’s insightful analysis underscores the importance of “standard definitions to promote uniform victim identification and to leverage separate data collection efforts so that information can be more efficiently and effectively used for programmatic and research purposes.”16

“… New York does not define ‘trafficking victim’ in the Penal Law, as the federal government has in the TVPA. Part of the federal definition includes a per se finding that anyone under the age of eighteen is a victim of a severe form of trafficking if she takes part in a commercial sex act. This means that, under federal law, a victim’s age automatically renders her a sex trafficking victim without the necessity of proving ‘force, fraud or coercion.’ New York law, on the other hand, does not have a similar provision governing the trafficking of minors. As a result, promoting or advancing the prostitution of a minor does not qualify as sex trafficking unless one of the other provisions in the statute is met. Force, fraud, or coercion must, therefore, be proved in all cases in order to establish the offense of sex trafficking, even when the trafficked person is younger than eighteen-years-old.”17

Internally, within the New York legislative framework, inconsistencies also abound. For example, “[t]he [New York Safe Harbor for Exploited Children Act (SHA)] amended provisions of the Family Court Act and the Social Services Law to provide rehabilitative services to sexually exploited youth under the age of eighteen. For the first time, the New York Legislature recognized that any child under the age of eighteen arrested on prostitution charges was a ‘sexually exploited child,’ and created a presumption that this child was a victim of severe trafficking as defined by federal law.”18

“The clear import of the SHA,” Judge Serita explained, “is that youths who engage in commercial sex must be treated as victims, not perpetrators, of crimes, and that they are in need of services instead of criminal prosecution.”19 Nevertheless, “[d]espite the profound implications of the SHA, there has been no corresponding amendment to New York’s Penal Law. Although the New York legislature has declared that any child arrested for prostitution is a trafficking victim, it has not carried this recognition to its logical conclusion by amending the criminal laws to prohibit prosecution of minors for prostitution.”20 Judge Serita concluded: “As a result, sixteen- and seventeen-year-olds charged with prostitution offenses may be prosecuted as adults in criminal court, where they are treated as criminal defendants instead of as sexually exploited youth.”21

“Another contradiction in the treatment of minors under New York laws,” identified in Judge Serita’s article, “is that a minor can be prosecuted for prostitution despite the fact that under the criminal laws a child younger than seventeen-years-old cannot legally consent to any sex act because of infancy. In New York, a sixteen-year-old who has sex with an adult is deemed legally incapable of giving consent, regardless of whether the sex is actually consensual. A sixteen-year-old is, therefore, considered a victim of rape if she has sex with an adult who is over twenty-one years of age. That sixteen-year-old can, however, be arrested for prostitution under the same scenario if there is an exchange of sex for money.”22 As Judge Serita points out: “A child who is legally incapable of consenting to sexual intercourse cannot logically be deemed capable of consenting to the crime of prostitution simply because money is exchanged.”23

“In August 2010, New York enacted its third, and perhaps most significant, piece of legislation for sex trafficking victims by amending its post-conviction relief statute” to “allow[] judges to vacate convictions for prostitution or loitering for the purpose of engaging in a prostitution offense is the arrest ‘was a result of having been a victim of sex trafficking under [the New York statute] or of trafficking in persons under the [TVPA].’ [Criminal Procedure Law (CPL) §440.10(1)(i)]. By explicitly incorporating the federal definition of a trafficking victim, this new post-conviction statute also provides relief to any prostituted minor who can establish that she was a minor at the time of her arrest.”24 Judge Serita identified the “contradiction in the treatment of trafficked youth in the criminal justice system” created by CPL §440.10(1)(i).25 “The cruel irony,” she wrote, “is that while the law explicitly recognizes that children under the age of eighteen are trafficking victims entitled to retroactive relief through the dismissal of their convictions, there are no legal grounds to protect juveniles when they are initially being prosecuted on prostitution charges. It is only post-conviction that courts recognize prostituted minors as trafficking victims.”26

The identification problem created by New York’s incoherent anti-trafficking legislative framework is compounded by the fact that traffickers and buyers are often “prosecuted for different offenses, such as rape, kidnapping or pandering,” which “poses an obvious problem in crime reporting. For example, the 2008 reauthorization of the Trafficking Victims Protection Act mandates that the FBI collect information about human trafficking offenses through the Uniform Crime Reporting (UCR) program. But, unless state and local law enforcement routinely investigate human trafficking cases as such, crime data reported through the UCR will inevitably undercount instances of human trafficking. Underreporting could be more harmful than no reporting at all, particularly when agencies tie funding decisions to what the crime data show are the most prevalent problems.”27 Such unintended adverse consequences may also be the result of New York City’s new Local Law 23-2013, which requires the Administration for Child Services (ACS) to document annually the number of sexually exploited children who self-report to, or are identified by, ACS, without benefit of an operational definition.

It has been said: “[T]o end modern slavery[,] find a metric to quantify it.”28 New York’s “inadequate provision for trafficked juveniles”29 and its hopelessly confused anti-trafficking legislative scheme renders its “criminal justice system … unable to adequately identify those defendants that might be victims of trafficking.”30 Absent needed systemic reform of New York law to align it with federal law based, for example, on the Trafficking Victims Protection Reauthorization Act of 2013’s Model State Criminal Law Protection for Child Trafficking Victims and Survivors,31 “the TVPA offers the most practical definitional anchor for data collection” on both the federal and state levels.32


  1. E. Behrmann, Gates Helps Australia’s Richest Man in Bid to End Slavery, Bloomberg News (April 11, 2013), quoting Andrew Forrest (Founder, Walk Free: The Movement to End Modern Slavery, and Chairman, Fortescue Metals Group) available at [http://www.bloomberg.com/news/ 2013-04-10/gates-helps-australia-s-richest-man-in-bid-to-end-slavery.html](http://www.bloomberg.com/news/ 2013-04-10/gates-helps-australia-s-richest-man-in-bid-to-end-slavery.html). 

  2. Remarks by President Obama at the Clinton Global Initiative (September 25, 2012), available at http://www.whitehouse.gov/the-press-office/2012/09/25/remarks-president-clinton-global-initiative

  3. U.S. Department of State Trafficking in Persons Report, United States Country Narrative, at p. 360, (2012), available at http://www.state.gov/j/tip/rls/tiprpt/2012/

  4. N. Weiner, N. Hala, Measuring Human Trafficking: Lessons from New York City, at pp. vii, 6, Vera Institute of Justice (August 2008), available at http://www.ncjrs.gov/pdffiles1/nij/grants/224391.pdf

  5. Id., at pp. vii, 1. 

  6. M. McGough, Ending Modern-Day Slavery: Using Research to Inform U.S. Anti-Human Trafficking Efforts, at p. 27, National Institute of Justice (NIJ) Journal (February 2013). 

  7. Id., at p. 26. 

  8. N. Weiner, N. Hala, Measuring Human Trafficking: Lessons from New York City, at pp. x, 23, Vera Institute of Justice (August 2008), available at http://www.ncjrs.gov/pdffiles1/nij/grants/224391.pdf

  9. Id., at p. 18, quoting ASEAN and Trafficking in Persons: Using Data as a Tool to Combat Trafficking in Persons, at p. 27, International Organization for Migration, (2007), available at http://www.humantrafficking.org/publications/592

  10. Id., at p. 6. 

  11. H. Clawson, Estimating Human Trafficking Into the United States: Development of a Methodology Final Phase Two Report, at p. 11, ICF International (November 2007). 

  12. H. Clawson, N. Dutch, et al., Study of HHS Programs Serving Human Trafficking Victims, Final Report, at p. 19 of 40, ASPE.hhs.gov (December 2009). 

  13. N. Weiner, N. Hala, Measuring Human Trafficking: Lessons from New York City, at pp. x, 23, Vera Institute of Justice (August 2008), available at http://www.ncjrs.gov/pdffiles1/nij/grants/224391.pdf

  14. Id., at p. 18. 

  15. Hon. T. Serita, In Our Own Backyards: The Need for a Coordinated Judicial Response to Human Trafficking, 36 N.Y.U. Review of Law & Social Change 635, 645 (2013). 

  16. N. Weiner, N. Hala, Measuring Human Trafficking: Lessons from New York City, at pp. xiii, 46, Vera Institute of Justice (August 2008), available at http://www.ncjrs.gov/pdffiles1/nij/grants/224391.pdf

  17. Hon. T. Serita, In Our Own Backyards: The Need for a Coordinated Judicial Response to Human Trafficking, 36 N.Y.U. Review of Law & Social Change 635, 647 (2013), citing 22 U.S.C. §7102(13) (2008) & N.Y. Penal Law §230.34 (McKinney 2008). 

  18. Id., at p. 648. 

  19. Id. 

  20. Id. 

  21. Id. 

  22. Id., at pp. 651-652. 

  23. Id. 

  24. Id., at p. 650. 

  25. Id., at pp. 651. 

  26. Id. 

  27. M. McGough, Ending Modern-Day Slavery: Using Research to Inform U.S. Anti-Human Trafficking Efforts, at p. 31, National Institute of Justice (NIJ) Journal (February 2013). 

  28. E. Behrmann, Gates Helps Australia’s Richest Man in Bid to End Slavery, Bloomberg News (April 11, 2013), available at http://www.bloomberg.com/news/2013-04-10/gates-helps-australia-s-richest-man-in-bid-to-end-slavery.html

  29. Hon. T. Serita, In Our Own Backyards: The Need for a Coordinated Judicial Response to Human Trafficking, 36 N.Y.U. Review of Law & Social Change 635, 648 (2013). 

  30. Id., at p. 636. 

  31. Violence Against Women Reauthorization Act of 2013, Title XII (Trafficking Victims Protection), Subtitle B (Combating Trafficking in Persons in U.S.), Part IV (Enhancing State & Local Efforts to Combat Trafficking in Persons), Section 1243 (Model State Criminal Law Protection for Child Victims and Survivors), Public Law 113-4 (2013), available at http://www.govtrack.us/congress/bills/113/s47/text

  32. N. Weiner, N. Hala, Measuring Human Trafficking: Lessons from New York City, at p. 23, Vera Institute of Justice (August 2008), available at http://www.ncjrs.gov/pdffiles1/nij/grants/224391.pdf