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Richelle C. Mitchell
UNC Policy Clinic – Spring 2006
Professor Deborah Weissman
(919) 962-4107
COMPONENTS OF A COMPREHENSIVE
STATE STATUTE ON HUMAN
TRAFFICKING©
Please do not quote or distribute without permission.
Components of a Comprehensive State Statute on Human
Trafficking
RichelleC.Mitchell
UNCPolicyClinic
1
June 28, 2017
GENERAL GUIDELINES

Avoid overemphasis on criminalization at the expense of victim services, benefits, and
protections. The best policy is to have a comprehensive state law.1

The provisions of the statute should be victim-friendly, focusing on the inherently
coercive conditions of trafficking rather than the victim’s undocumented status or
engagement, while in the power of traffickers, in illegal activities (like prostitution).2

Develop preventive measures designed to decrease potential victims’ vulnerability to
trafficking.

Search state codes for all state-provided services, benefits, and protections that may be
available to trafficking victims, immigrants, victims of crime, etc. For example, useful
services that may meet the needs of trafficking victims include housing, job placement
services, child care, elder care, psychological counseling, substance abuse treatment,
medical care, language skills, vocational training, and legal aid. Provision of these
benefits should be as generous as state resources allow.

Determine which services needed by trafficking victims cannot be adequately provided
by the state (like witness protection programs which not all states have) and may require
federal assistance.

Sentences and gradations of human trafficking offenses (harsher sentences for more
severe abuses of victims by traffickers) should be comparable to those outlined in the
federal statutes.

A state definition of “trafficking” should either match that of the TVPA (not being any
more restrictive) or (preferably) be broader and more inclusive so that as many victims
as possible can receive benefits.

There is no need to copy federal statutes in all matters but a level of uniformity among
various state anti-trafficking statutes is desirable to avoid confusion. A
review/comparison of the state statutes that have been passed so far (in Arizona,
Arkansas, California, Kansas, Louisiana, New Jersey, Texas, Washington State,
Missouri, Minnesota, Florida, and Illinois)3 would be useful.

A victim does not need to choose between proceeding with her case under a state antitrafficking law or the federal statutes. In order to receive the greatest amount of benefits
and protections, it is recommended that a victim file federal and state claims.
1
Derek Ellerman, Co-Founder and Co-Executive Director of the Polaris Project, Address at the Sexual
Trafficking: Breaking the Crisis of Silence International Conference, Research Triangle Park, North
Carolina (April 8, 2006).
2
Daniel J. Bryant, Assistant Attorney General, U.S. Dept. of Justice, Address at the Conference on
Human Trafficking, Tampa, Florida (July 16, 2004).
3
National Institute on State Policy on Trafficking of Women and Girls, A Program of the Center for
Women Policy Studies, Fact Sheet on State Anti-Trafficking Laws, (February 2006).
2
June 28, 2017

Care should be taken to ensure the privacy and confidentiality of victims. Identifying
information and sensitive documents of victims and their family members should be
closely guarded and not disclosed to the public.4

The Model Anti-Trafficking Statute produced by the Department of Justice (DOJ)5 is
too crime-oriented and does not provide a full range of remedies or services for victims.
The State Model Statute developed by Global Rights6 is better organized than the DOJ
Model and offers a much wider range of definitions, trafficking concepts (like debt
bondage, “vulnerable victims”), benefits and protections to victims of trafficking. For
these reasons, it is recommended that a state statute be organized like the Global Rights
Model and include all of this model’s main categories and elements (to the extent that
state resources allow for these measures).
ELEMENTS TO INCLUDE IN A STATE STATUTE ON HUMAN TRAFFICKING
Introductory Material
A brief and general background of the particular human trafficking problems faced by the urban
and rural areas of North Carolina could be described here (the “vital statistics” of trafficking in
humans in the state.) For example, North Carolina’s large population of undocumented
immigrants are especially vulnerable to being trafficked into forced agricultural work on
migrant farms, compelled into prostitution, or forced to work as domestics in private homes.
Many of these victims are Latino. Also, about 80% of victims are female.7
Definitions/Rationales

“Blackmail” – should be included to emphasize that a person can be forced into
trafficking through the threat of revelation of sensitive personal information.8

“Financial harm” – to emphasize the use of credit extortion, fraudulent employment
contracts, and debt bondage.9

“Maintain” – include because it demonstrates that a person can become a trafficking
victim when subjected to inhumane conditions and held against his/her will even if the
individual originally agreed to the work.10
4
Global Rights, the State Model Law on Protection for Victims of Human Trafficking (2005).
U.S. Department of Justice, Model State Anti-Trafficking Criminal Statute.
6
Id.
7
Shawn Flynn, FBI Wants to End Human Trafficking, News 14 Carolina, (Jan. 30, 2006) at
http://www.news14charlotte.com/content/local_news (Online News).
8
U.S. Dept. of Justice, supra note 5, at 1, and Global Rights, supra note 4, at 2.
9
Global Rights, supra Note 4, at 3.
10
U.S. Dept. of Justice, supra note 5, at 2, and Global Rights, supra note 4, at 3.
5
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June 28, 2017

“Sexually-explicit performance” – include to highlight more recent trafficking trends of
forcing individuals into exotic dancing and strip club settings rather than brothels to
avoid the penalties for forced prostitution. This may also include forced participation
in the production of pornographic materials. The effect on victims of this kind of
exploitation is similar to that found in other cases of sexual abuse. This definition
should be distinct from a “commercial sex activity” definition.11

“Vulnerable Victims” – to make clear the predatory nature of human trafficking,
offering promises of steady pay and good work conditions to the most desperate of
individuals who lack the real choice to refuse the offer or find an alternative.12

“Debt Bondage” – the use of a person’s debt to compel that person or a family member
of that person into trafficking.13

“Minor” – a person under the age of 18; indicates that human trafficking involving
children and individuals who have not reached the age of majority carries harsher
penalties for violators.14 In the case of sexual trafficking especially, the policy should
be similar to statutory rape laws with no requirement of demonstrating consent or the
use of coercion.15

“Coercion” – a broad definition is needed to include everything from physical assault or
restraint to direct threats to more subtle forms of force like psychological pressure or the
use of religious, cultural, or social norms and mores. For example, some traffickers
have been known to exploit victims’ religious beliefs to “persuade” individuals into
forced service.

“Sex Tourism” – occurs when, for financial gain (commercial or private) an individual
induces, procures, or facilitates the travel of a person knowing that such a person is
traveling for the purpose of engaging in prostitution. This also should apply to larger
entities like companies and organizations. For example, a statute may state “no travel
agency or tour operator shall sell, advertise, or offer services or packages that solicit,
encourage, or facilitate travel for the purpose of engaging in prostitution.”16 Definitions
of and penalties for sex tourism should include and extend to those individuals who
purchase sex or travel with the intent of purchasing sexual services.

“Accomplice(s)” – an individual or group of individuals who: (1) assist in trafficking in
humans; (2) conspire to subject another person to human trafficking; or (3) benefit from
the forced labor of trafficked people (Examples: “Johns” who purchase the sexual
services of individuals forced into prostitution or sellers who market products
manufactured by trafficking victims.)
11
Id.
Global Rights, supra note 4, at 5.
13
Id. at 2.
14
Id. at 3.
15
Bryant, supra note 2.
16
National Institute on State Policy on Trafficking of Women and Girls of the Center for Women Policy
Studies, Resource Guide for State Legislators: Model Provisions for State Policy on Trafficking of
Women and Girls, at 17 (July 2005).
12
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June 28, 2017
Criminal Provisions

Forced Labor17

Involuntary Servitude, Peonage, Debt Bondage, & Slavery

Sexual Servitude (of a person who has attained the age of majority) – includes not only
forced prostitution and “sexually-explicit performances” but also forced participation in
the production of pornography. Individuals who are punishable under this offense
include those who procure trafficking victims and those who produce and sell the
services or products resulting from the sexual exploitation of victims. Appreciation of
the subtle but effective manipulation used by traffickers should be taken into account in
any requirement of coercion or force under this provision.

Sexual Servitude of a Minor – includes the use of minors in the production of
pornography.18 This provision should not include any requirement of the use of force,
fraud, or coercion.19 It should be noted that minors cannot give legally recognized
consent to sex with an adult or to any other form of sexual exploitation, thus the
procurement of a minor victim’s “consent” is no defense.

Patronization of Prostitutes – most states have laws prohibiting the purchase of sexual
services. However, this is usually considered a misdemeanor. States should consider
raising the penalty for “buying sex” to the felony level. These laws should be separate
from state prostitution laws usually utilized to prosecute persons who provide sexual
services.20

Traveling for the Purpose of Purchasing Sexual Services – individuals who travel out of
state (whether nationally or abroad) for the purpose of purchasing sex should be guilty
of a felony. Penalties should be enhanced for an individual who purchases the sexual
services of persons who the individual knows or reasonably should know are victims of
trafficking. In keeping with the federal PROTECT Act of 2003, it is always illegal for
U.S. citizens and permanent residents to engage in international travel with the purpose
of purchasing the sexual services of a minor, regardless of the laws governing
prostitution and age of consent in the destination country.21

Unlawful Document Tampering in Furtherance of Trafficking – includes penalties for
altering, destroying, fabricating, confiscating, or withholding identifying documentation
such as passports, driver’s licenses, social security cards, etc.22
17
U.S. Dept. of Justice, supra note 5, at 1, and Global Rights, supra note 4, at 4.
U.S. Dept. of Justice, supra note 5, at 3, and Global Rights, supra note 4, at 4.
19
Donna Hughes, Ph.D., Professor and Eleanor M. and Oscar M. Carlson Endowed Chair, the University
of Rhode Island, Address at the Sexual Trafficking: Breaking the Crisis of Silence International
Conference, Research Triangle Park, North Carolina (April 8, 2006).
20
General Comment at the Sexual Trafficking: Breaking the Crisis of Silence International Conference,
Research Triangle Park, North Carolina (April 8, 2006).
21
“Prosecutorial Remedies and Tools to End the Exploitation of Children Today” (PROTECT) Act of
2003, available at http://judiciary.senate.gov/special/S151CONF.pdf.
22
Global Rights, supra note 4, at 4.
18
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June 28, 2017

Accomplice Liability – those individuals and legal institutions, businesses, or agencies
that assist in trafficking humans, conspire to subject another person to human
trafficking, or benefit from the forced servitude of victims should face the same
penalties as the traffickers who carried out the offense.23 This provision also includes
“online” businesses that benefit from the use of trafficking victims in internet
pornography and prostitution.

Sentencing Enhancements – more severe penalties (to statutory maximum) for inflicting
extensive bodily injury (especially involving rape, kidnapping or attempted kidnapping,
forced prostitution, extreme violence, or death), holding a victim in captivity for an
extended period of time, and for subjecting a large number of victims to trafficking.

Inadmissible Evidence – includes prohibitions on introducing a victim’s sexual history
or inclinations.24

Prosecutorial Immunity/Affirmative Defense – victims of trafficking should not be
treated as criminals but as crime victims. They should not be jailed or held responsible
for illegal acts committed under coercion while being trafficked (like prostitution or
assisting in the trafficking of others).25 Some states have created an affirmative defense
to protect a victim from prosecution.26

Asset Forfeiture – allows for the seizure of assets gained in the commission of human
trafficking offenses.27

Sex Offender Registry or “John” List – individuals who purchase sex may be placed on
a state’s sex offender list (especially if a person pays a minor for sexual services) or a
state can create a similar but separate list for “Johns.”

Mandatory “John” School for Convicted Offenders – states may institute a “restorative
justice” system of court-ordered attendance at a “rehabilitation” program for individuals
convicted of purchasing sex. States may also consider an “either/or” system whereby
individuals who participate in and complete the “John” program may be exempt from
going to trial, serving jail time, or having their names placed on sex offender or “John”
lists.28

REMEMBER: States should prohibit the use of a victim’s “consent” as a defense by
traffickers. “Consent” gained through deception and fraud is not legally binding.
Mandatory Restitution and Civil Remedy

Mandatory restitution calculations should include the greater of: (1) the gross income or
value to the defendant of the victim’s labor, or (2) the value of the victim’s labor as
23
Id. at 5.
Id.at 6.
25
Id.
26
National Institute on State Policy on Trafficking of Women and Girls, supra note 16.
27
Global Rights, supra note 4, at 6.
28
General Comment, supra note 20.
24
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June 28, 2017
calculated under minimum wage and the provisions of the Fair Labor Standards Act
(FLSA).29

The civil action should allow at least as many types of damages (actual, compensatory,
punitive, injunctive, treble etc.) as the federal statute and would be even more effective
if it extended the types of damages available to victims. Attorney’s fees should also be
included for a successful plaintiff. However, defendants should not be allowed to
recover attorney’s fees from unsuccessful plaintiffs.30

Victims may bring a civil action regardless of the victim’s immigration status.31

Victims may file a civil claim even if they are not participating in or assisting law
enforcement investigations.32

In the federal statute, a civil action is stayed while a criminal case concerning the same
instance of trafficking is pending.33 There may be no need to require this in a state
statute. It can be left to the victim to decide whether or not to pursue both criminal and
civil claims simultaneously.

Larger entities (like corporations) and third parties who benefit from trafficking can be
brought into civil suits through vicarious and agency liability.34
Benefits, Services, and Protections for Victims

Even if the lawyer’s fees are not to be paid by the state, all potential victims should be
provided a list of suitable legal advocates to contact. To ensure that victims of human
trafficking are not jailed, prosecuted, or deported (in other words, treated like
criminals), it is imperative that immigration attorneys be contacted whenever and
wherever potential trafficking victims are located before any assumptions are made
about their legal status or any adverse action is taken against them.

State benefits and services should be available to all victims of trafficking regardless
of the “severity” of their particular experiences.

States that cannot provide protection programs for victims and their families who fear
recapture or retaliation from traffickers should refer victims to federal authorities to
29
Kathleen Kim & Daniel Werner, Civil Litigation on Behalf of Victims of Human Trafficking, Legal Aid
Foundation of Los Angeles (March 2005) (a manual for lawyers).
30
Telephone Interview with Mary Lee Hall and Jennifer Stuart, Staff Attorneys, Legal Aid of North
Carolina, Raleigh Office, Raleigh, North Carolina (March 8, 2006).
31
Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action: Civil Rights for
Trafficked Persons in the United States, 16 Hastings Women’s L.J. 1 (Winter, 2004).
32
Id.
33
18 U.S.C. 1595 (2005).
34
Kathleen Kim & Kusia Hreshchyshyn, supra note 31.
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June 28, 2017
make arrangements for their security. It is important that victims not be lured back into
trafficking out of fear for the safety of their loved ones.

Qualified volunteer interpreters should be trained to assist trafficking victims and
professionals in the social services, legal, and health fields as they provide services to
victims. A statewide registry of foreign language interpreters and bilingual providers
could be developed as a useful tool for service providers.35

Trafficking victims should receive prompt medical attention for injuries and illnesses
resulting from trafficking. Many have been injured during grueling forced agricultural
labor or work in factories and victims of sex trafficking may suffer from sexually
transmitted diseases and untreated cervical cancer.

Qualified mental health providers/advocates should be enlisted to provide counseling
to trafficking victims, many of whom suffered physical/emotional control, verbal abuse,
isolation, violence, and sexual exploitation36 while under the power of traffickers. A
variety of mental health providers may be called upon to counsel victims traumatized by
their experiences – psychiatrists, psychologists, clinical social workers, mental health
counselors, etc. A psychological assessment is also helpful for individuals applying for
a T-Visa.

Substance abuse counseling and treatment should be included in the services made
available for victims, some of whom may have developed chemical dependencies in the
course of being trafficked. Traffickers frequently maintain control over victims by
supplying them with drugs, encouraging their addiction. Addicted victims who receive
no treatment may place themselves back into the power of traffickers in order to get
access to drugs.

Rape crisis centers, domestic violence programs/shelters, and programs for refugee
and immigrant women should be made aware of the assistance they can offer to
trafficking victims and victims should be referred to these resources for services and
protection. States should also consider shelters specifically designed to meet the needs
of trafficking victims.

States may implement a 24-hour crisis hotline for victims of human trafficking. The
existence of this hotline should be widely advertised.37

One of the services provided should be assistance for victims who plan to apply for
immigrant status or federal aid under the TVPA and TVPRA. Victims should have
access to attorneys who can explain how to qualify for benefits under these laws.38
Information about victim rights under the TVPA is available in several languages on the
35
Jack Holtzman, North Carolina Justice and Community Development Center, Immigrant Access to
Public Benefits in North Carolina: Overcoming Barriers to Participation, at 18 (2002).
36
Melissa Farley, Ph.D., Director of Prostitution Research and Education, San Francisco Women’s
Center, Address at the Sexual Trafficking: Breaking the Crisis of Silence International Conference,
Research Triangle Park, North Carolina (April 8, 2006).
37
General Comment, supra note 20.
38
Global Rights, supra note 4, at 15.
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internet and from the National Trafficking Alert System (NATS).39 Attorneys should
also advise victims of whether they are eligible for other federal programs such as
asylum or a U-Visa. Victims should be advised of how they may become eligible for
public benefits such as Supplemental Security Income (SSI), Food Stamps, Temporary
Assistance to Needy Families (TANF), and Medicaid.40 Trafficking victims may be
eligible for a variety of programs including emergency services under Medicaid, shortterm, non-cash emergency disaster relief, immunizations, testing for and treatment of
communicable diseases, crisis and mental health counseling, short-term shelter or
housing assistance, substance abuse assistance necessary to protect life and safety, child
and adult protective services, prenatal care and other health services, and violence and
abuse prevention programs. 41
Training, Reporting, Resource Directories, and Data Collection

All state and local agencies that are likely to come into contact with victims should have
their personnel trained to identify and assist victims. This should include, but is not
limited to healthcare providers, law enforcement, labor, agriculture, housing, and social
service providers.

Accurate records of state investigations, prosecutions, trafficker convictions, and
victims’ information should be kept.42

A formal method of recording, verifying, and reporting a trafficking victim’s
participation in state or local investigations and prosecutions should be developed. This
will create greater efficiency in coordinating communication between state and federal
law enforcement authorities and will assist victims who are applying for a T-Visa and
federal benefits.

There should be a cooperative exchange of information between law enforcement, legal
aid, and social services, so that responses to trafficking victims are well-coordinated.
Victim identification is an important example of this. When an individual who may be
a trafficking victim is encountered in the community, law enforcement and an
immigration attorney should be contacted as well as service providers who provide care
for crime victims and trauma sufferers. A translator who speaks the victim’s native
language may also need to be contacted. Authorities should determine what the
immediate needs of the victim are – medical care, counseling, housing, child care, etc.
FUNDING CONSIDERATIONS
39
Graeme R. Newman, Problem-Specific Guides Series No. 38: The Exploitation of Trafficked Women,
Community Oriented Policing Services (COPS) of the U.S. Department of Justice, at 37 (February 2006).
40
Jack Holtzman, supra note 35, at 9.
41
Jill D. Moore, Immigrants Access to Public Benefits: Who Remains Eligible for What?, 65 Popular
Government, no. 1, 22–29, 35–37 (Fall 1999), also available at
http://ncinfo.iog.unc.edu/pubs/electronicversions/pg/immi.htm#agi.
42
Global Rights, supra note 4, at 18.
9
June 28, 2017
States do not always have the financial resources to fund large-scale trainings of law
enforcement or service providers or maintain extensive benefit/protection programs for the
victims of crime. A close study of a state’s economic situation would be beneficial as well as
discussion of strategies to achieve a cost-effective way to assist trafficking victims.
Financial support for programs that assist trafficking victims may be sought from private
foundations (corporate and non-profit). Detailed research and documentation of the exact needs
of trafficking victims will be crucial to obtaining this kind of funding.43 Faith-based relief
organizations may also be able to provide funds for trafficking victims. However, federal, state,
and local funds will still be necessary to offer the greatest amount of services to victims.
Various funding streams should be evaluated to determine which sources would be the most
efficient providers of resources for programs assisting trafficking victims. If complementary
sources of funds cannot be provided exclusively for trafficking victims, then states should
examine whether existing programs that provide assistance to victims of violence can be
expanded to include trafficked persons. Rape crisis centers and domestic violence shelters
should not be constrained by states in their funding in such a way that prevents them from
addressing the needs of trafficked individuals. If state funding to such centers is presently
construed to exclude trafficking victims, a revision should be made to define trafficked
individuals as victims of violence who are qualified to receive benefits and services from
domestic violence programs and rape centers. Federal and state funding to these programs and
shelters should be increased to accommodate the inclusion of trafficking victims.
Domestic violence shelters and other programs that help women who are victims of violence
receive funding authorized by the Violence Against Women Act (VAWA) that can also be used
to provide services to trafficking victims. The shelters, therapy/counseling services, legal aid,
and personal advocacy for victims of violence provided by VAWA grants could be expanded to
include service to trafficking victims. VAWA has established as a priority for receiving funding
programs that work to end violence against immigrant women, a segment of society frequently
underserved by law enforcement and service providers. This should be of assistance to women
who are survivors of human trafficking.44
43
Derek Ellerman, supra note 1.
S.T.O.P. Violence Against Women: VAWA Guidelines and Procedures (2004), available at
http://www.scdps.org/ojp/voca/vawa/2004_VAWA_Guidelines_&_Procedures.doc.
44
CONFIDENTIAL
10