Human Trafficking Definitions and Legal Considerations

Original Editor - Stacy Schuirring

Top Contributors - Stacy Schiurring, Tarina van der Stockt, Jess Bell and Kim Jackson  

Trigger warning. This page contains information about Human Trafficking, including physical abuse, sexual assault and abuse.

Introduction

"Human Trafficking is the recruitment, transportation, transfer, harbouring, or receipt of people through force, fraud or deception, with the aim of exploiting them for profit. Men, women, and children of all ages and from all backgrounds can become victims of this crime, which occurs in every region of the world." -United Nations, Office of Drugs and Crime

The United States Department of State describes "trafficking in persons" "human trafficking" and "modern slavery" as interchangeable terms.

Human trafficking is a global issue. It affects all races, genders, ages, and socio-economic groups. Recently, researchers, policymakers, and survivors of human trafficking are pushing to change the perception of human trafficking from a purely law enforcement issue to a public health issue.

These crimes are widespread and occur in every segment of society. However, human trafficking is often hard to identify and remains hidden from view. Gallo et al. have suggested that regular screening and monitoring for trafficked persons at locations they are likely to visit could improve the possibility of identifying and assisting more trafficked people. An estimated 22-88% of trafficked persons will come into contact with a healthcare professional during their exploitation. Due to the nature of rehabilitation medicine assessment, documentation, and surveillance, healthcare professionals are well-suited to identify and assist trafficked persons.

This article will provide an overview of key definitions and concepts, and the different types and dynamics of human trafficking. It will also discuss how healthcare providers can identify, assess, and assist survivors of human trafficking.

Trafficking Victims Protection Act of 2000 (TVPA) - United States Federal Law

Signed into law on October 28, 2000 by President Clinton, the Trafficking Victims Protection Act of 2000 (TVPA), amended (22 U.S.C. §7102) was created to “ensure just and effective punishment of traffickers, and to protect their victims.” The 2000 Act had three main components, commonly referred to as the three P's.

A summary of the TVPA as quoted by the Alliance to End Slavery and Trafficking:

"Protection: The TVPA increased the U.S. Government’s efforts to protect trafficked foreign national victims including, but not limited to:

• Providing assistance to victims of trafficking, many of whom were previously ineligible for government assistance; and
• Establishing non-immigrant status for victims of trafficking if they cooperated in the investigation and prosecution of traffickers (T-Visas, as well as providing other mechanisms to ensure the continued presence of victims to assist in such investigations and prosecutions).

Prosecution: The TVPA authorized the U.S. Government to strengthen efforts to prosecute traffickers including, but not limited to:

• Creating a series of new crimes on trafficking, forced labor, and document servitude that supplemented existing limited crimes related to modern slavery and involuntary servitude; and
• Recognizing that modern slavery takes place in the context of force, fraud, or coercion and is based on new clear definitions for both trafficking into commercial sexual exploitation and labor exploitation

Prevention: The TVPA allowed for increased prevention measures including, but not limited to:

• Authorizing the U.S. Government to assist foreign countries with their efforts to combat trafficking, as well as address trafficking within the United States, including through research and awareness-raising; and
• Providing foreign countries with assistance in drafting laws to prosecute trafficking, creating programs for trafficking victims, and assistance with implementing effective means of investigation"
  

In 2009, then Secretary of State Hillary Rodham Clinton identified a fourth P, “Partnership,” to serve as a “pathway to progress in the effort against modern-day slavery.”

Concepts and Definitions

Below is a list of definitions and concepts within the context of human trafficking. Please refer to this list as needed throughout the Rehabilitation's Role in Human Trafficking Awareness course.

• Coercion is a means of control. It is the act of persuading another person into action by means of threats or force. According to the TVPA (22 U.S.C. §7102), coercion "may be understood as threats of serious harm to or physical restraint against any person; any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or the abuse or threatened abuse of the legal process.". Drugs and alcohol can be used as a form of coercion to assert and maintain control over trafficked persons.
• Commercial Sex Act, according to the TVPA (22 U.S.C. §7102) is "any sex act on account of which anything of value is given to or received by any person."
• Debt Bondage (also known as debt slavery, bonded labour, or peonage), according to the TVPA (22 U.S.C. §7102), is "the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined."
• Force, in the context of human trafficking, is a means of control over trafficked persons. The use of monitoring and/or confinement is often used during the early stages of victimisation to erode the trafficked person's resistance. Physical forms of force used in human trafficking can include physical restraint, and physical and sexual assault. This is related to harbouring of a trafficked persons which involves isolation, confinement, and monitoring.
• Fraud, according to the TVPA (22 U.S.C. § 7101(b4)), "consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. In the context of human trafficking, fraud often involves false promises of jobs or other opportunities."
• Human Smuggling is the exchange of fees or services to gain transportation or fraudulent documentation to illegally cross a border into a foreign country.
• Involuntary Servitude (also known as involuntary slavery), according to the TVPA (22 U.S.C. §7102), "includes a condition of servitude induced by means of (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process."
• Labour trafficking (also known as forced labour), according to the TVPA, is defined as, “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”
• Obtaining, in the context of human trafficking, is the forced taking or exchange of something to gain control over another person.
• Patronising, in the context of sex trafficking, is receiving a sexual act or sexually explicit performance.
• Recruiting is the proactive targeting of vulnerable persons and the grooming of wanted behaviours by means of fraud and coercion by human traffickers.
• Sex trafficking, according to the TVPA (22 U.S.C. §7102(12)), is defined as, “the recruitment, harboring,  transportation, provision, obtaining, patronizing, or soliciting of a person  for the purpose of a commercial sex act.”
• Slavery, in the context of human trafficking, is when a controlled person is forced to provide labour and/or services against their will.
• Soliciting, in the context of sex trafficking, involves the offering a sexual act or sexually explicit performance.
• Transporting includes the movement and arrangement of travel for persons being trafficked.

Human Trafficking versus Human Smuggling

	Human Trafficking	Human Smuggling
Consent	Trafficked persons are forced, defrauded, or coerced into trafficking If consent was initially offered it is rendered null by exploiting labour, services, or commercial sex	Individuals give consent to being illegally smuggled and are involved a transaction of some sort The transaction is mutual and ends at the arrival at the agreed-upon destination
Victim of the crime	Committed against an individual	Committed against a country
Domestic or Transnational	Victimisation can be transnational or domestic Trafficking does not require crossing international or state borders	Smuggling is transnational by definition
Information in the above table is adapted from the Human Trafficking Fact Sheet created by the US Department of Health and Human Services Office on Trafficking in Person.

Human trafficking is involuntary

The individuals are trafficked by force, fraud, and/or coercion to provide labour or services against their will. Trafficked persons do not have to be moved, relocated, or transported in any way. It can occur in the trafficked person's own town or home. In the United States, any person under the age of 18 who is a victim of sex for profit is automatically considered a trafficked person.

The crime of human trafficking is defined by three core elements: the act, the means, the purpose. This is also known as the Action-Means-Purpose (AMP) Model. This model illustrates the federal definition of a “victim of severe forms of trafficking in persons,” contained in 22 USC §7102.

According to the Polaris Project: "Human trafficking occurs when a perpetrator, often referred to as a trafficker, takes any one of the enumerated Actions, and then employs the Means of force, fraud or coercion for the Purpose of compelling the trafficked person to provide commercial sex acts or labor or services."It should be noted that a "means" is not required for any trafficked person under the age of 18.

This image is adapted from information provided by the United Nations Office on Drugs and Crime.

Human smuggling is voluntary

It is the exchange of fees or services to gain transportation or fraudulent documentation to illegally cross a border into a foreign country. Human smuggling does not involve coercion, most people seeking out these services are fleeing violence or poverty.

To further your understanding of the differences between human trafficking and human smuggling, please view the following optional 9-minute video.

Consensual Commercial Sex versus Sex Trafficking

"Sex work is consensual. Human trafficking is not. When you conflate the two, and you label all sex workers as victims of human trafficking, it totally takes away from the folks who are being trafficked" -Julia Baumann, founder and coordinator of Safe Space

	Consensual Commercial Sex	Sex Trafficking
Consent	All involved individuals give consent Not a violation of the sex worker's human rights	Trafficked individual does not give consent, but is coerced into the sexual act or performance Sex trafficking is a violation of the trafficked person's human rights
Person involved	Sex workers are consenting adults	Survivors of sex trafficking can include men, women, and children
Payment for Services	Sex workers earn and keep income	All income or services go to the trafficker, not the trafficked person

Consensual Commercial Sex (also known as sex work) is when a person willingly takes part in the sale of a consensual sexual act or conduct.

Sex Trafficking (also known as Sexual Exploitation) is the sale of nonconsensual sexual acts or conduct through force, fraud, or coercion. Survivors of sex trafficking include all races, genders, ages, socioeconomic backgrounds, and nationalities.

Optional Reading: please read this personal account of sex trafficking to learn more about the different types of grooming used to control trafficked persons.

Human Trafficking by the Numbers

It is difficult to find reliable statistics regarding human trafficking. Quality data collection is hampered by the hidden nature of trafficking, challenges of survivor identification, gaps in data accuracy, and safety and privacy concerns of sharing survivor information. Data and statistics on human trafficking may not reflect the full scope of the problem due to these reasons.

The extent of human trafficking is difficult to establish and the tracking of trafficking is challenging for many complex reasons: (1) navigating legal definitions, (2) trafficker movement restrictions and isolation of trafficked persons, (3) the fear and stigma of trafficked persons self-reporting, and (4) the lack of frontline professionals trained in identification and monitoring of human trafficking.

The International Labour Organization (ILO) and the Walk Free Foundation, in partnership with the International Organization for Migration (IOM) attempted to document the extent of human trafficking worldwide. They released a report on the norm/---ipec/documents/publication/wcms 854733.pdf Global Estimates of Modern Slavery in September 2022. This report estimates that, in 2021, approximately 27.6 million people were in forced labour. Of these, “17.3 million are exploited in the private sector, 6.3 million in forced commercial sexual exploitation, and 3.9 million in forced labour imposed by state.” The report also estimates that in 2021 approximately 49.6 million people were in “modern slavery." This figure includes both the estimate for forced labour and forced marriage.

Types of Human Trafficking

The US State Department recognises two types of human trafficking and classifies them as federal crimes:

1. Labour trafficking (also known as forced labour) involves the use of force, fraud, and/or coercion to obtain labour from the trafficked person. Labour trafficking can occur within any industry or sector: agriculture and meat farming, factory work, hospitality industry such as restaurants, hotels, or massage parlours; retail, mines, private homes, or drug trafficking operations.
   Two widespread forms of labour trafficking include:
   • Domestic servitude involves a trafficked person performing forced labour in a private residence.
   • Forced child labour involves children being forced or coerced to work. Unfortunately, forms of slavery including the sale of children, and debt bondage of children continue to exist across the world. Forced child labour is different from children who are able and choose to legally seek employment and work.
     • Some indicators of forced child labour include (1) when the child appears to be in the custody of a non-family member and their work benefits that person, (2) withholding food, rest, or schooling to a child who is working.
2. Sex trafficking involves the use of force, fraud, and/or coercion to perform a commercial sex act or conduct. The trafficked person can suffer threats of serious physical or psychological harm, threats to friends or family, or debt bondage. Sex trafficking can occur in any location including physical locations and on the internet. Examples of sexual exploitation can include prostitution, escort agencies, phone sex lines, stripping on a webcam or internet chat rooms, and pornography.
   • Child sex trafficking involves sex trafficking with a person under the age of 18 years. The use of force, fraud, or coercion is irrelevant, children engaging in commercial sex is illegal in most countries around the world.
     

The United Nations, private and not-for-profit organisations, such as Stop the Traffick, acknowledge other types of human trafficking, including:

1. Forced marriage occurs when a person is forced into marriage under threats of force, fraud or through coercion. Situations where forced marriage may occur include: as access into a country or access to benefits.
2. Forced criminal activity involves a person carrying out a criminal activity under threats of force, fraud or through coercion. Forced criminality can include drug distribution, cannabis cultivation, begging, pickpocketing or bag snatching, ATM theft, or the selling of counterfeit goods.
3. Child soldiers involves a child serving as a soldier or committing a crime to the benefit of the trafficker under threats of force, fraud or through coercion.
4. Organ harvesting and trafficking involves the removal of an organ or body part to sell on the black market. The trafficked person can be cheated out of an agreeable price for the organ, have an organ removed without their knowledge during treatment for another medical condition, or be kidnapped and have an organ removed without their consent.

Dynamics of Human Trafficking - Trafficker and Trafficked Person

Trafficker

People who deal in human trafficking do so for monetary and financial gain. These crimes go undercounted and unrecognised because they are often difficult to detect.

Trafficker Profiles

Both US and international law state that human traffickers can be classified as corporations or other legal entities, or private persons. An extensive review of federal human trafficking prosecution in the United States since the TVPA was enacted in 2000 found that the vast majority of prosecuted human traffickers were private persons. The review found that in 2020, the average defendant was a 36-year-old man, and 81% of all human trafficking case defendants were male. When comparing sex and labour trafficking cases from 2020, men made up 82% of defendants in sex trafficking cases and women made 43% of defendants in labour trafficking cases. This data was found to track with global trends. However, there is no one human trafficker's profile type and they could come from any segment of the population. Human traffickers can be foreign nationals or local citizens, family members, spouses/partners, friends, acquaintances, or strangers. They can be individual actors or part of a larger organisation. They can be pimps, gang members, diplomats, or business owners.

The review went on to say that traffickers often know and have a trusting relationship with the trafficked persons. Data on sex trafficking cases from 2020, shows that approximately 43% of defendants previously knew the trafficked persons. Of these cases: 31% were social media contacts, 21% were spouses or intimate partners, 13% knew the survivor of trafficking as a human smuggler, and 10% were a friend or classmate. Data on labour trafficking cases found approximately 57% of defendants previously knew the trafficked persons.

At what point a person transitions to a trafficker can be difficult to identify. The review points to the fact that the nature of the coercion used by the trafficker is highly personalised.

Trafficker Recruitment Techniques

Human trafficking recruitment is often based on the deception of innocent, unsuspecting persons. Recruitment techniques commonly used by traffickers include:

• Threats or use of violence
• Manipulation
• Seduction and romance
• Forced pregnancy
• False employment promises
• False promises about education or travel
• Sale by family
• Recruitment of formerly enslaved persons
• Abuse of religious beliefs
• Abduction or kidnapping

In some cases, a survivor of human trafficking will become a trafficker themselves. This is most commonly the case of female trafficked person of sex trafficking. This speaks to the grooming and psychological manipulation survivors of human trafficking suffer and endure.

The Trafficked Person

Trafficked persons can come from any segment of the population. However, traffickers tend to prey upon people with the following vulnerabilities:

• poverty/economic hardship
• limited proficiency in local primary spoken language (English in the US)
• lack of lawful immigration status
• lack of stable safe housing
• lack of a social safety net
• following a natural disaster, war or political instability
• limited economic and educational opportunities
• psychological or emotional vulnerability
• substance use challenges

Trafficked persons are often tricked or misled into trafficking by (1) false romantic intentions, (2) promises of good employment or pay, and (3) a stable life. They can be of any gender or age, and come from any educational, socio-economic, ethnicity or nationality, or religious background. However, women and girls are at a higher risk of being trafficked for sexual exploitation. Refugees are also often victimised due to dire living situations in refugee encampments.

Resources

North American Resources:

• National Human Trafficking Hotline (USA)(English and Spanish)
  • Find local services
  • Downloadable Awareness Materials, available in multiple languages
  • Call: 1-888-373-7888 (TTY: 711)
  • Text: 233733
  • Chat Online: Human Trafficking Hotline Web Chat
• Canadian Human Trafficking Hotline (English and French)
  • Find local services
  • Downloadable Awareness Materials, available in multiple languages
  • Call: 1-833-900-1010
  • Chat Online: Canadian Human Trafficking Hotline Web Chat
• National Human Trafficking Education Centre | The Joy Smith Foundation (Canada)
• Polaris Project (USA)
• HEAL Trafficking (USA)

Texas, USA

• iWatchTexas: Texas Suspicious Activity Reporting Network (Link functions in the US only)
• The Heart of Texas Human Trafficking Coalition
• Department of Family and Protective Services (abuse reporting website)

Michigan, USA

• Human Trafficking Task Force
• Michigan Law School Human Trafficking Clinic

Ontario, Canada

• Ontario Anti-human Trafficking Services and Supports (Canada)

Clinical Tools and Resources:

• Health, Education, Advocacy, Linkage (HEAL) Trafficking and Hope for Justice: Protocol Toolkit for Developing a Response to Victims of Human Trafficking in Health Care Settings. Please follow link to request the toolkit (free resource).
• Real Escape from the Sex Trade (REST) Healthcare Provider Toolkit & Resources
• Guidelines for Administering the Trafficking Victim Identification Tool (TVIT)
• Commercial Sexual Exploitation-Identification Tool (CSE-IT) Training
• Short Screen for Child Sex Trafficking (CST) for the Healthcare Setting
• Adult Human Trafficking Screening Tool (AHTST), available in both English and Spanish
• Comprehensive Human Trafficking Assessment
• Domestic Minor Sex Trafficking (DMST) Practitioner Guide and Intake Tool
• Navigating the Unique Complexities in Familial Trafficking (US Department of State)
• Familial Trafficking Warning Signs (Shared Hope International)

Clinical Tools and Resources on Substance Use Challenges

• The Intersection of Human Trafficking and Addiction (US Department of State)
• Langton L, Planty MG, Banks D, Witwer AR, Woods D, Vermeer MJ, Jackson BA. Sex trafficking and substance use: identifying high-priority needs within the criminal justice system. Rand health quarterly. 2022 Aug;9(4).