Modern Day Slavery in the Age of Mass Incarceration: How the TVPA has failed Victims of Human Trafficking
On October 28, 2000, President Bill Clinton signed into law the Victims of Trafficking and Violence Protection Act of 2000 (TVPA). Aimed at both protecting victims and heavily prosecuting crimes related to human trafficking, the law’s purpose is to, “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Prior to the implementation of this law, the outdated laws often resulted in the victims of trafficking being punished more harshly than the criminals.
In contrast, the new law increased the sentence for selling someone into “slavery” from 10 years to 20 years and extended the penalty to related crimes e.g., peonage, involuntary servitude, and sale of false immigration documents in the furtherance of trafficking. In addition to the new federal crime for trafficking, the new legislation also created a special visa (T-visa) for up to 5,000 victims. In addition to cooperation with law enforcement, victims must have been subjected to severe trafficking and face severe retribution in their home country in order to qualify for a t-visa. With a goal of protecting victims of trafficking, the laws and provisions written into the legislation seem to do just that, but with 50,000 victims of trafficking entering the United States. What is on paper, however, does not reflect what happens to victims of trafficking years after Bill Clinton signed this Act into law in the fall of 2000.
In the four-year period between 2001, when the services for victims of trafficking were first made available under the TVPA, and 2005, less than 1,000 trafficking victims were assisted by the government through these services. This is in comparison to the estimated 17,000 to 50,000 new victims of trafficking that enter the United States annually. The striking contrast between the number of people assisted by the TVPA and the estimated number of annual victims trafficked in the United States becomes more stark when, according to the DHS, only 520 applications for t-visas have been filed in this time period and less than half (136) were approved. This naturally raises the question of: If there are so many victims of trafficking, why are the protections of the TVPA only reaching the smallest of fractions of them?
The DOJ provides four explanations for the stark contrast between victims of trafficking and victims being serviced under the TVPA. The estimates provided by these reports are inflated and that victims of trafficking are, in fact, not victims. Instead, they are smuggled persons or illegal aliens that also happen to be prostituting themselves. They also argue that identifying and assisting victims is very difficult due to the fact that trafficking often occurs in private. Third, the DOJ says that by dismantling trafficking rings through prosecution, they are indirectly affecting other victims of the same ring who are not being formally accounted for through direct assistance. The last factor that the DOJ attributes the low numbers of assisted victims to is that local and state officials are better positioned to combat trafficking and account for assisted victims than the federal government.
None of these explanations by the DOJ address the systemic problems with the law and how it limits the designation of victim and eligibility for benefits to a strict set of rules interpreted by government officials. I want to take this assertion a step further and argue that the language of the law and the implementation was not intended to ever truly help victims. Instead, it is used as a divisive tool to separate a few “deserving” victims from a larger “undeserving” biopolitcal threat to society. The divisive nature of this law and the discourse surrounding human trafficking is intentional in that it disrupts any union of descendants of chattel slavery, migrant forced laborers, and victims of forced prostitution (some of whom are all three) under a shared goal of liberation. This is only further exacerbated by the increasingly white, female face of human trafficking, even though the DOJ published a report stating that black women accounted for 40% of victims of human trafficking.
The emphasis on penal repercussions in the legislation results in the prosecution of many, including victims themselves, and contributes to constitutional “modern day slavery”: mass incarceration. By putting marginalized people, especially black women, in a particularly vulnerable state where they are targeted rather than helped, the TVPA in making strides to end illegal “modern day slavery” (human trafficking) reinforces legal “modern day slavery” (mass incarceration as new slavery under the 13th amendment).
