WI Anti Trafficking Law
I Policy Considerations Related to State Statutes
The most important advantage of state anti-trafficking legislation is that it removes the fear/threat of prosecution from the victims and provides advantages for their co-operation in prosecuting the trafficker.
The second major advantage of using trafficking statutes verses regular state statues is that trafficking legislation provides stiffer penalties.
The major disadvantage is the length and cost of the investigation necessary to win convictions. However, states have found ways to do this for drug investigation.
In its Model Trafficking Legislation (MTL), the DOJ has mitigated the advantage victim/witnesses receive by a including a“lack of consent” requirement. In DOJ-MTL victim “consent” absolves traffickers of liability.
“Lack of consent” to exploitation is an necessary proof element in the DOJ model legislation. Therefore, one of the elements prosecutors must prove beyond a reasonable doubt under the DOJ-MTL is that illegitimate means were used to gain the victim’s consent/cooperation, namely either force, coercion or fraud.
However, consent should be irrelevant. Because of the 13th amendment to the US constitution, the Fair Labor Standards Act and UN conventions, a person cannot consent to slavery. In the US, it is illegal to use wage or sex slaves . Commercial sex is illegal in most states. Kidnaping/bondage/is unlawful. Individuals cannot contract for illegal activities - no such contract will be upheld. Slavery can only be defined, rejected and criminalized. Requiring lack of consent is unnecessary and blaming the victim.
Prosecution should not be based on the lack of consent or the methods used by the trafficker. DOJ wants to distinguish trafficking from smuggling so they can prosecute or deport the smugglers and their clients.
However consent is not the factor distinguishing smuggling from trafficking - the conditions in which victims are held are the distinguishing factor. That their labor is exploited and they are not free to leave distinguishes trafficking from smuggling.
The law has consistently failed, and treated as criminals, slaves who co-operate with their captors and abusers to survive. Patti Hearst is one example. It will be the job of the advocate to push back against the legal system’s desire to prosecute victims whose oppression it does not yet understand.
The trafficker’s acts, benefits and the ultimate consequence to the slave (bondage, deprivation of liberty, exploitation) should be the only elements needed to convict the trafficker and those who participate and facilitate the trafficking enterprise.
That the traffickers benefit in some way from the illegal sexual or wage services of the victim should be enough to show they are traffickers.
Perhaps it will be necessary to show the fact finder the means traffickers used to hold the victim when describing why the slave could not escape. That is different from the beyond a reasonable doubt standard that elements must reach. Additionally, there are many ways to enslave a person and if “means used”are not an element, the prosecutors can adapt the explanations to the particular circumstances.
Sweden has model language that the US trafficking and related state statutes might consider. Sweden prosecutes pimps, johns and brothel keepers, but not prostitutes, because prostitutes are viewed as victims who are treated as commodities in the sex trade. The Swedes claim that since the Sex Purchase Law was implemented, prostitution is down by 40%. Such claims are hard to verify but the concept is consistent with US studies showing that convictions are hampered because the victims are afraid of prosecution and in the case of immigrants, also deportation and reprisals in the country of origin. ( See: Sept. 2008, Sex Trafficking Needs Assessment for the State of Minnesota by The Advocates for Human Rights)
Policy makers in the US need to pay closer attention to Sweden’s statute rather than tinkering endlessly with language that ultimately is just a sexist, racist and classist assumption of free choice consent to slavery. Trafficking penalties however should remain stronger than Sweden’s sanctions. (http://www.iht.com/articles/ap/2008/03/15/news/Sweden-Prostitution.php)
Amending the original Trafficking Victims Protection Act, the House of Representatives’ William Wilberforce Act H.R.3887, properly makes the “means used” ( fraud coercion or force) penalty enhancers rather than elements of the crime. However, in response to H.R.3887, then Senator Biden introduced S.3061 which retains the force, coercion, fraud language.
The DOJ model and its’ proof of non consent requirement has infected state statutes and threatened the efficacy of many state trafficking statutes.
To end commercial sex exploitation and economic exploitation advocates must carefully scrutinize state statues and cleanse them of the DOJ virus.
If the senate rejects the Biden Bill, the House Wilberforce Act H.R.3887 will force DOJ to rewrite the Model anyway. Hopefully that will justify the revision of state statutes already passed.
It is important that our state senators are made aware that significant numbers of the electorate want them to pass a bill that does not change H.R.3887' treatment of consent.
There are a few provisions in Biden's Bill that enhance the ability to prosecute and these could be the compromise between the 2 bills. The House could accept:
Sec 22)requires pretrial detention - adds conspiracy and obstruction as possible charges,
Sec 203)requiring written employee contracts for foreign workers and time for complaints to be resolved before deportation is attempted.
Sec )waves filing fees for T Visa, U Visa and VAWA Self Petitions
Sec 232) requires an audit of Defense contractors re trafficking
When state advocates analyze proposed state anti-trafficking laws, check for the following:
1. Strict Liability
Under 18 - Knowledge of age should not be an element of the crime or an affirmative defense when the victim is under 18. So say the federal appeals courts in the 2nd, 3rd , 4th, 6th, 9th and 10th circuits. Knowledge should be the trafficker’s responsibility.
Nor should there be a proof requirement that the trafficker has knowledge that the victim is being trafficked
All that should be necessary for conviction is that the victim is under 18, the trafficker is benefitting and the victim is exploited. Strict liability should be the norm for crimes against children.
Over 18 - The prosecutor should not have to prove that the trafficker knows the victim is being trafficked. Lack of knowledge should be the defendant’s proof burden when the victims are
2. “By Means of” Test: The law should criminalize sex trafficking without any mitigating behavior on the part of the victim. Because of the DOJ model, at this time most state legislation will require some proof of “means used” as an element to show lack of consent (force, coercion, fraud). Advocates should oppose “means used” in proposed legislation. Use the House Wilberforce Act which removed the “means test” as justification for removal in state statutes. Your opponent will be the Defense Bar and the ACLU.
3. Debt bondage: Look for the conditions of labor/ services and its definitions. Labor services involves the deprivation of liberty because of unreasonable terms and conditions. The term debt bondage should be included. Debt should not be a defense to economic exploitation. Remember not all traffickers receive cash but some demand services in exchange for food and shelter. Make sure the definitions use the Model’s for debt bondage and payment is not limited to cash exchanges but is “anything of value”.
4. Commercial Sex Labor or Services: Advocates often oppose the use of this term. Yet it is the term that does not limit sexual commerce to prostitution. Sex trafficking should include more acts than prostitution or sexual contact. Soliciting victims for pornography, strip clubs and massage parlors should also be included or at least prosecution allowed under the elements and definitions. Therefore, if the definition of this phrase includes trafficking for work in pornography, strip clubs and massage parlors and/or prostitution (sexual contact) it is preferable to the narrower language of “commercial sex acts” which is limited to sexual contact. If the phrase “Commercial Sex Labor or Services” language is too offensive then the phrase “sexually explicit performances” can be added to “commercial sex act” for a comprehensive definition of trafficking for sexual exploitation.
5. Penalty Enhancers: Fraud, force or coercion, along with all other methods of dominating the victim should enhance the punishment not be an element of the offense. The act of enslavement, economic or sexual, should be per se an offense unrelient on the complaint of the victim. Lack of Knowledge if proved by the defendant can mitigate the penalty.
6. Resource Funding: Statute should contain data collection funding and the establishment of a state Trafficking Enforcement Unit in the state Dept of Justice. Statue should contain training, consultant and convention funds, especially for legal system professionals and advocates. Training can be part of continuing legal education requirements. Look for funds for a Public Awareness Campaign.
Most importantly state laws should contain investigation resources (staff) and funding. Enforcement efforts will fail without the resources for long complex investigations, undercover investigators and the funding to support their work.
7. Victims Bill of Rights: State laws should contain a victims bill of rights which facilitates co-operating victim’s economic rehabilitation, provides restitution and witness protection services including support to obtain certification for U and T visas. State law should prohibit prosecution of victims who cooperate with prosecution. Victim support should not be time limited but last until co-operating victims are self sufficient, up to 5 years. Victims should be provided legal assistance to sue their traffickers in civil court, for compensatory, punitive damages, attorney fees and costs of litigation. The state should be a party to all such cases to provide attorneys and to recoup its costs of prosecution.
Some advocates propose support services whether or not victims co-operate with prosecution. This is not practical or compatible with the goal of eliminating trafficking. In fact, support without cooperation in prosecuting the trafficker will encourage traffickers and increase the prevalence of trafficking.
8. Jurisdictional Accountability: Look for jurisdictional sections. Who prosecutes; how are jurisdiction and venue problems solved; who prosecutes and investigates at the local level. Trafficking statutes should not require transportation of victims across borders or state lines but the state DOJ Trafficking Unit can prosecute if venue conflicts arise. Cases can be prosecuted in state and then in fed court as racism cases are under different statutes. The federal house bill (Wilberforce) has an "in or affecting interstate commerce" jurisdictional requirement.
9. Penalties: Advocates should also review the existing state statutes. Local criminal statute’s penalties usually need to be increased. State laws are not usually the best choice for enforcement because they usually require prosecution of the victims. Most local DA’s do not have the investigative funds required to expend for the minimal sentences contained in such statutes. It is easier to prosecute the victim or the johns under local statutes and that is what they will do. Be sure to check the state trafficking statute for penalty enhancers such as force used to control victims.
III Wisconsin State Trafficking Statutes
Wisconsin enacted a state trafficking law, March 18th, 2008,titled 2007 WI Act 116.
WI Act 116, amended approximately 35 statute sections and created 17 new ones as part of WI Act 116. A through analysis is not possible in this short review of essential elements.
Briefly, using the checklist above, this is an overview of WI Act 116, which amended related state statutes and created WI Stats., 948.051, Trafficking of a Child and created WI Stats.,940.302 Human Trafficking.
(A) Wisconsin’s statute 940.302,Human Trafficking is an example of an effort to recognize the unfairness of the DOJ - MTL “means” test which requires a victim non-consent showing for conviction. Unfortunately, its' limits are recognized, not by eliminating the "means" test but by expanding the “means” traffickers use to control their victims and keep them enslaved.
WI Stats.,940.302, includes a long list of forbidden “means of” gaining consent.
“(2) (a) Except as provided in s. 948.051, whoever knowingly engages in trafficking is guilty of a Class D felony if all of the following apply:
1. One of the following applies:
a. The trafficking is for the purposes of labor or services.
b. The trafficking is for the purposes of a commercial
2. The trafficking is done by any of the following:
a. Causing or threatening to cause bodily harm to any
b. Causing or threatening to cause financial harm to
c. Restraining or threatening to restrain any individual.
d. Violating or threatening to violate a law.
e. Destroying, concealing, removing, confiscating,
or possessing, or threatening to destroy, conceal, remove,
confiscate, or possess, any actual or purported passport
or any other actual or purported official identification
document of any individual.
g. Fraud or deception.
h. Debt bondage.
I. Controlling any individual’s access to an addictive
j. Using any scheme or pattern to cause an individual
to believe that any individual would suffer bodily harm,
financial harm, restraint, or other harm.”
(B) Definitions WI Stats., 940.302
“940.302(1) (a) “Commercial sex act” means sexual contact for which anything of value is given to, promised, or received, directly or indirectly, by any person”.
The sexual trafficking definition is limited. “Contact” will not cover strip clubs and massage pallors, especially without funds for undercover investigators.
WI Stats.,948.051 Trafficking of a child includes the language “sexually explicit performance” in addition to “commercial sex act”.
(b) Debt bondage is included but as a “means test” used for the purpose of gaining labor and services.
(c) The definition of trafficking includes the necessity to prove lack of consent:
“Trafficking” means recruiting, enticing, harboring, transporting, providing, or obtaining, or attempting to recruit, entice, harbor, transport, provide, or obtain, an individual without consent of the individual.”
( C ) Elements
“WI Stats.,940.302 (2)(a) Except as provided in s. 948.051, whoever knowingly engages in trafficking...”
Under WI Act 116, the trafficker must know; that is, have the intent to traffic. This element requires proof of intent. That benefit comes from trafficking should be enough. In any other employment situation it is the employers duty to know he is not in violation of the law. Lack of Knowledge, if the fact finder believes the defendant, should be a mitigating factor at sentencing rather than an element of the crime.
WI Stats.,948.051 Trafficking of a child includes the language “sexually explicit performance” in addition to “commercial sex act” but also also requires
“(2) Whoever benefits in any manner from a violation of sub. (1) is guilty of a Class C felony if the person knows that the benefits come from an act described in sub. (1).”
Sub 2 repeats the knowledge requirement for anyone benefitting in any manner.
Here Knowledge is a substitute for consent - although the statue seems to be a strict liability statute the prosecution must prove the trafficker knew the child was going to be used sexually.
WI Stats 940.302(3) and 948.051(3) Allow anyone who incurs injury or death,to bring a civil suits against the person who injured them, punitive damages not to exceed 3x the amount of the injury and most importantly “reasonable”attorneys fees. No mention of costs. Still without the state as a party it may be difficult to fund these cases.
(D) Other Sections of the Act
Sec 12 -19, 2007 WI Act 116, amends and allows the DA to apply to the court for an order dissolving a corporation involved in trafficking
Sec 20 creates 250.04 (14) providing funds to victims if available and if the victim co-operates until 60 days after the trial or if not co-operating for 60 days.
Sec 28 gives the court discretion to admit into evidence, after a hearing, the prior sexual history of the victim.
Sec 30 creates an affirmative defense for any victim for any act they had to do because of being trafficked - an very important provision which will encourage cooperation and is a strong reason to support the use of the trafficking statute.
Sec.51 and 52 order restitution from the convicted trafficker.
I found no training or investigation support funding in
WI Act 611. This will seriously hamper enforcement.
In conclusion, I would note that the new trafficking stats amend the WI child protection statutes (Chp. 48) and these sections of the code need careful study. WI is notorious for returning children to unsafe care givers so any sections of that code relating to the trafficking statute need to be scrutinized in detail.