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Relief Not Arrests: Strengthening Laws for Survivors of Human Trafficking

Author: Erin Marsh

Logically, survivors of human trafficking should not be punished for activities they were forced to commit by a trafficker. Yet it is common for survivors of human trafficking in the United States to have criminal arrests or convictions on their records that were incurred because of their trafficking situations. Criminal records stand in the way of survivors’ rebuilding their lives — affecting everything from the ability to find a job or a safe place to live to eligibility for programs like food stamps. In other words, survivors are being punished, de facto, for their victimization.

Since 2010, many states have tried to correct this problem, enacting laws that create a path for survivors of human trafficking to clear criminal records related to being trafficked. Unfortunately, there are still many states that have not done so or have limited relief, only for minors. The broader laws that do exist are woefully ineffective for most survivors.

State Report Cards: Grading Criminal Record Relief Laws for Survivors of Human Trafficking, analyzes and ranks the existing state laws to illuminate best practices, as well as flaws and gaps. The project — a collaboration between Polaris, the American Bar Association’s Survivor Reentry Project, Brooklyn Law School, the University of Baltimore Law School, and numerous survivor consultants — offers a roadmap for policymakers looking to enact or improve state laws and create a fair and just path to criminal record relief for survivors of human trafficking.

Defining Criminal Record Relief?
While admittedly clunky, the term “criminal record relief statutes” represents the full range of statutes that allow for some form of setting aside an arrest or conviction and prohibiting disclosure of its existence.

Importance of Criminal Record Relief
While there is no official nationwide data on how many trafficking survivors have a criminal record as a result of their victimization, we do know that people in trafficking situations are frequently arrested, detained, prosecuted, convicted, incarcerated, or deported without ever being identified as a victim of human trafficking by the criminal legal system.

When trafficking survivors encounter law enforcement for the first time they generally do so as offenders, not victims. Sex trafficking victims are commonly arrested on prostitution charges, or for other crimes such as possession of weapons, drugs, or identity theft — all of which may well have been orchestrated in some way by their trafficker. Labor traffickers may force their victims to manufacture or sell drugs or to move drugs from place to place. Labor trafficking victims can also be arrested for various things such as possession of false identification documents, financial crimes, or minor crimes like trespassing. Children who are trafficked for both sex or labor are often charged with status offenses like truancy and running away.

A criminal record has a profound impact on the ability of any individual to obtain future gainful employment and find affordable and safe housing. Employers and landlords often run background checks and can exclude survivors based on their past convictions. Individuals with criminal records may be unable to begin or continue their education at college, obtain financial aid for tuition, retain custody of their children, and it can affect an individual’s access to crucial government benefits. For foreign national survivors, their ability to remain and/or work in the United States depends greatly on their criminal record.

In 2010, New York became the first state to enact criminal records relief specifically for trafficking survivors. The New York law allowed survivors of trafficking to vacate prostitution and related convictions that were a result of having been trafficked.

Today, all but six remaining states (Alaska, Iowa, Maine, Minnesota, South Dakota, and Virginia) and the federal government offer some form of criminal record relief specific for survivors of trafficking. Some states (Georgia, Louisiana, Missouri, and Tennessee) restrict relief to only minor victims. Most states received failing grades on providing effective relief to survivors.

There are steps forward though. Enacting new legislation or amending existing laws is the first and most important step toward creating a consistent and fair system that supports survivors. These laws must also be comprehensive. They must cover all types and levels of offenses that survivors can be compelled to commit. More reasonable time limits or no time limits or wait times for survivors to apply for relief should be instituted. Statutes should allow survivors to waive their right to appear in court or grant them the ability to utilize alternative methods of appearance if safety is a concern. These statutes should include provisions designed to protect confidentiality throughout the process to protect a survivor’s identity.

Thankfully, six states currently have legislation that is being drafted or is in some stage of consideration that would increase relief. Of course, the work of supporting survivors does not begin and end with the passage of a law. There must, for example, be consistent and reasonable implementing regulations, data collection, and financial resources available so that we can learn what works and make additional improvements and corrections along the way.

The hope, though, is that this report and the report cards will become a tool for policymakers and advocates to identify where there is room for improvement. They will be a resource for states that want to begin the process of drafting or amending existing state law.

*Data and Research Associate at Polaris

New FAR Provision Implements Sweeping Definition of “Recruitment Fees” in Human Trafficking Prohibition

On January 22, 2019, a new rule went into effect providing much-needed guidance on the definition of “recruitment fees” under the FAR human trafficking prohibition.  Many government contractors may be surprised to learn that a wide range of seemingly-innocent policies requiring employees or applicants to pay (whether upfront, through deduction, or in any other way) the employer for costs relating to hiring, recruitment, or training may now qualify as impermissible “human trafficking” and subject the contractor to potentially rigorous penalties under the FAR.

Since March 2015, all federal government contracts and solicitations have included a clause prohibiting human trafficking pursuant to FAR 22.1705 and 52.222-50.  One of the proscribed forms of trafficking-related conduct is charging “recruitment fees” to employees or potential employees.  While “recruitment fees” were previously undefined in the FAR, the new rule makes clear that the term has a sweeping definition, encompassing “fees of any type” that are “associated with the recruiting process.”

The rule takes a functional approach and makes clear that the manner, form, or timing of the payment is not relevant.  Charges can be recruitment fees if they are paid up front by the employee or potential employee, deducted from the person’s wages, or even if they are collected by a third-party such as a labor broker, recruiter, staffing firm, or agent.  The rule and its agency commentary are clear, however, that contractors may require employees or applicants to incur charges themselves in connection with the recruiting process, so long as the payment is not made to the contractor or any of its agents.

The new rule lists several categories of exemplary recruitment fees, including fees for:

  • Soliciting, identifying, considering, interviewing, referring, retaining, transferring, selecting, training, providing orientation to, skills testing, recommending, or placing employees or potential employees;
  • Advertising;
  • Obtaining labor certifications, visas, or processing applications or petitions;
  • Acquiring photographs and identity or immigration documents, such as passports;
  • Medical examinations and immunizations;
  • Background, reference, and security clearance checks and examinations;
  • The employer’s recruiters, agents, or attorneys;
  • Language interpretation or translation;
  • Government-mandated fees such as border crossing fees, levies, or worker welfare funds;
  • Transportation and subsistence costs;
  • Security deposits, bonds, and insurance; and
  • Equipment charges.

Contractors should note that the listed categories are only examples, and other charges “associated with the recruiting process” qualify even if the specific type of charge is not listed.

Because every federal government contract prohibits contractors from charging these fees and some require annual certifications and compliance plans, contractors should review their hiring processes to ensure that no such fees are being charged to employees or potential employees, including applicants.  The penalties for non-compliance with the human trafficking clause can range from the suspension of contract payments to contract or subcontract termination or even debarment. Because contractors are responsible under the rule for fees charged by agents like recruiters (or even sub-recruiters), contractors should ensure that their contracts with recruiters, staffing agencies, or others prohibit passing along any recruitment costs to employees or applicants.

The need to audit the recruitment process is only the tip of the iceberg of new issues created by the new rule.  In a subsequent blog, Polsinelli will analyze some potential contractor responses to the new, broad definition of “recruitment fees” and other, less obvious implications of the rule.

The Women Abandoned by Peace

Victims of sexual violence and forced abortion during Colombia’s long years of conflict have yet to see justice.

By Erika Piñeros
October 18, 2018, 8:00 AM

“If I have to die to speak the truth, I will,” Vanessa García said. Her hands trembled as she recounted the abuses she endured during her time as a child soldier in the now disbanded Revolutionary Armed Forces of Colombia (FARC), the country’s largest guerrilla group. Read More

VENTURA COUNTY SHERIFF NEWS STORY GEOFF DEAN, SHERIFF www.VCSD.org

Nature of Incident: Human Trafficking Arrest Report Number: 18-44512 Location: City of Camarillo – multiple locations Date & Time: 3/21/2018 @ 8:00 PM Unit(s) Responsible: Special Crimes Unit, Major Crimes Unit, Narcotics Unit, Camarillo Police Department (S)uspects, (V)ictims, (P)arty, (D)ecedent City of Residence Age (S) James Powell (V) Adult Female (V) Adult Female (V) Juvenile Female (V) Juvenile Female (V) Juvenile Female Sacramento, CA Rohnert Park, CA Sacramento, CA Sacramento, CA Sacramento, CA Sacramento, CA 31 22 20 17 16 14

Narrative: On March 20th and 21st 2018, detectives with the Ventura County Sheriff’s Office conducted an investigation that led to the arrest of one suspect and discovery of 3 juvenile and 2 adult human trafficking victims.

On March 20, 2018, the Ventura County Sheriff’s Office received information from a Citrus Heights Police Department detective about a 14-year-old female runaway that may be in the Camarillo area. The detective believed the 14-year-old girl was possibly a victim of Human Trafficking based on an internet post with a picture of the 14-year-old female advertising sexual services.

Camarillo Patrol deputies began checking lodging establishments in Camarillo and located the 14-year-old female along with a 17-year-old female and a 22-year-old female in a hotel in Camarillo. Detectives from the Special Crimes Unit and Major Crimes Unit responded to begin an investigation.

Detectives conducted interviews, obtained a search warrant for the hotel room, conducted a search of the hotel room and collected evidence. Based on all of the evidence and information obtained during the investigation, detectives determined the females were being sexually exploited and were victims of human trafficking. Detectives determined there was a 16- year-old juvenile female, a 20-year-old adult female and the suspect that were unaccounted for.

Detectives were concerned for the safety of the two females and obtained assistance from the Page 2 of 2 Sheriff’s Narcotics Unit and Camarillo Police Department Special Enforcement Detail. Detectives from these investigative units continued with the investigation and search for the two females.

After approximately 24 hours of ongoing investigation and searching, the 16-year-old juvenile victim was located in the Sacramento area, the 20-year-old female was found with the suspect, James Powell, preparing to check into a hotel in Manhattan Beach. Powell was arrested and transported back to Ventura County where he was booked into the Ventura County Jail on human trafficking charges with a bail set at $510,000.00.

The District Attorney’s Office filed 2 counts of human trafficking 236.1(c)(2) PC and 2 counts of human trafficking 236.1(a) PC on Powell. A Preliminary Hearing for Powell is scheduled for April 6th 2018 in Ventura Superior Court. The Ventura County Sheriff’s Office has a dedicated human trafficking investigator assigned to the Special Crimes Unit. This investigative unit is responsible for investigating various criminal organizations operating throughout Ventura County.

The Sheriff’s Office investigates human trafficking cases with a victim centered approach as these victims are often in need of additional resources because they lack a support base. The Sheriff’s Office teams up with public and private organizations to bridge the gap in resources for these victims. In this particular case, Interface and the Federal Bureau of Investigations victim services unit provided assistance to the victims in this case.

Prepared by: Sergeant Jason Hendren News Release Date: March 29, 2018 Media Follow-Up Contact: Detective Aaron Grass 805-383-8753 Aaron.Grass@Ventura.org Approved by: Captain Robert Thomas Ventura County Crime Stoppers will pay up to $1,000 reward for information, which leads to the arrest and criminal complaint against the person(s) responsible for this crime. The caller may remain anonymous. The call is not recorded. Call Crime Stoppers at 800-222-TIPS (8477).

Human Trafficking Mandate

  1. The notice must be posted by the following categories of California businesses:
    1. On-sale general public premises licensees as defined in the Alcoholic Beverage Control Act;
    2. Adult or sexually oriented businesses, as defined in Penal Code section 318.5(a);
    3. Primary airports, as defined in 49 U.S.C. section 47102(16);
    4. Intercity passenger rail or light rail stations;
    5. Bus stations;
    6. Truck stops, which are defined as privately owned and operated facilities providing food, fuel, shower or other sanitary facilities, and lawful overnight truck parking;
    7. Emergency rooms within general acute care hospitals;
    8. Urgent care centers;
    9. Farm labor contractors, as defined in Labor Code section 1682(b);
    10. Privately operated job recruitment centers;
    11. Roadside rest areas; and
    12. Establishments offering massage or bodywork services for compensation.

The notice must be posted in a conspicuous area accessible to the general public, either near the public entrance of the business or in another location where similar notices are customarily posted but in clear view of both employees and the public.  The penalty for violating the human trafficking posting requirement is $500 for a first offense and $1,000 for each subsequent offense.  The law allows enforcement by government agencies, but is silent on private enforcement.

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United States Conference of Catholic Bishops:  Webinar on How to Combat Human Trafficking, Thursday, February 8

The United States Conference of Catholic Bishops is presenting a St. Josephine Bakhita Day Webinar, “Become a Shepherd:  Stop Human Trafficking and Exploitation; Protest, Help, Empower, and Restore Dignity.”  It will take place on Thursday, February 8, at 10:00 a.m.  The webinar will assist parishes and dioceses interested in launching anti-trafficking ministries, as well as parishes and dioceses seeking to move from awareness-raising to action.  The U.S.C.C.B. hopes participants will feel less trepidation and greater enthusiasm about prioritizing human trafficking as a vital social justice/respect life issue.  The U.S.C.C.B. also wants to equip participants with a wide variety of practical and replicable ideas for engaging parishioners and local community members in this issue.  Three parishes and one diocese (including St. Joseph Parish in Long Beach) will be featured and participate in this webinar.

Webinar

or call (267) 279-9000.  The passcode is 175766#

Webinar Mobile

The room ID is 444-451-224