Why It Might Not Be a Bad Thing if the Senate’s Human Trafficking Bill Dies (Updated)

Some advocates don’t think the Justice for Victims of Trafficking Act is worth trying to save in the first place. At best, they say, the JVTA has a few useful provisions and might give some more money to victims and services. At worst, it could make life more difficult for the vulnerable populations that the bill seeks to protect.

Anti-choice legislators are notorious for writing abortion bans with medically inaccurate language about gestational age. Shutterstock

UPDATE, March 17, 12:45 p.m.: Senate Democrats blocked a motion to advance the trafficking bill on Tuesday. A motion to end debate and vote on the bill failed 55-43, with four Democrats joining Republicans to try to break the filibuster. Debate on the bill will continue.

Senate Democrats and Republicans have been bickering since last week over whose fault it is that they’re now fighting over abortion in what had been a popular, bipartisan human trafficking bill. The bill is set for a vote on Tuesday, but it’s likely to die in the reproductive health standoff.

Democrats say Republicans slipped anti-choice language into the Justice for Victims of Trafficking Act (JVTA) that would expand the already onerous Hyde Amendment—and how dare Republicans attack women’s health in a bill designed to help young victims of rape and abuse.

Republicans say Democrats should have known that the language was in this version of the bill from the start—and how dare Democrats hold up this crucial bill over what has been settled law for 39 years.

The Hyde Amendment, a longstanding restriction on federal funding for abortion care, isn’t actually “settled law.” Its renewal is more of a yearly tradition, and the Republican add-on to JVTA would indeed expand its power and duration.

Some reproductive rights and justice advocates who are already campaigning to end Hyde, as well as anti-trafficking advocates who want Congress to move forward on their issue, have joined Democrats in condemning the Republican approach. They’re pushing for the Hyde language to be removed before discussion about the legislation continues.

But other advocates don’t think the JVTA is worth trying to save in the first place. They say that although the Hyde language is obviously a bad idea, that’s not the only problem with the bill. While domestic human trafficking is certainly an issue of national importance that affects thousands of people, these advocates say the JVTA in its current incarnation isn’t the right approach to combat it. 

At best, they say, the JVTA has a few useful provisions and might give some more money to victims and services. At worst, it could make life more difficult for the vulnerable populations that the bill seeks to protect.

A “Wrong-Headed” Approach

The JVTA has become “a stone soup of trafficking provisions,” Kate D’Adamo, national policy advocate at the Urban Justice Center’s Sex Workers Project, told Rewire. Similar bills have been introduced since 2006, she said, and the legislation has only gotten bigger and more unwieldy as more ideas have gotten thrown into the mix.

There are a few good elements, D’Adamo said. The JVTA provides for a federal advisory council made up of trafficking survivors, and it expands the FBI’s “Innocence Lost” mandate to include child labor trafficking as well as sex trafficking. D’Adamo said it’s “shocking” that the FBI hasn’t already done that, given how often minors face labor exploitation.

Unfortunately, D’Adamo said, these provisions are tacked on to a “rotten apple” of a bill that focuses too much on criminalization and too little on the needs of survivors.

Several provisions in the JVTA “prioritize the needs of the state, prosecution, and law enforcement over the needs of people who have experienced trafficking,” Alix Lutnick, senior research scientist with the Urban Health Program at RTI International, told Rewire in an email. “History has shown that it is not possible to prosecute or legislate our way out of this social issue.”

The JVTA establishes or enhances “specialized training programs” for officials like police officers, first responders, and prosecutors. But those training programs are “only as good as their content,” Lutnick said, and similar programs at the state level have proven themselves lacking.

She cited as an example California’s Proposition 35, which gives law enforcement officials a two-hour “specialized training program” featuring a video that perpetuates wrong ideas about sex workers. The video conflates all sex work with trafficking, Lutnick said, and doesn’t offer guidance on how to deal with transgender people, male sex workers, or any adult engaged in sex work.

The JVTA also creates or bolsters task forces that investigate child trafficking offenses and rescue victims. Task forces are a popular model for addressing human trafficking, but Lutnick said available data hasn’t proven that model to be effective.

Fewer than half of the 42 anti-trafficking task forces funded by the Office for Victims of Crime and the Bureau of Justice Administration since 2003 had high-quality data (meaning they regularly entered new cases into the system, provided individual-level information for at least one suspect or victim, and updated case information on a regular basis). Task forces have often been poorly monitored and coordinated and given ineffective guidance by officials.

Despite the tens of millions of dollars allocated to expanding trafficking task forces in recent years, Lutnick said, “It is not apparent how their expansion will result in more young people being identified.”

The biggest reforms in the JVTA aim to get tougher on traffickers. The bill uses an “end demand” strategy—the idea that there will be less sex trafficking if there is less demand for sex work—and makes patronizing or soliciting a minor a crime equal to trafficking itself.

It also funds both new law enforcement initiatives and victims’ services through a new “Domestic Trafficking Victims’ Fund.” Those funds would come from an extra $5,000 fine levied against people convicted of human trafficking, sexual exploitation, or “transportation for illegal sexual activity.”

There are potential civil rights complications with effectively expanding the definition of and prosecuting more people as traffickers. This would include, for instance, someone who genuinely didn’t know he was buying sex from an underage person. Some advocates point out that it could even target a friend of a sex worker trying to help that person out by giving him or her a ride to a job.

It’s also not clear whether the JVTA’s new victims’ fund would get anywhere close to the advertised $30 million from the new fines. Its funding for victims’ services and restitution is heavily dependent on whether convicted abusers are wealthy, and whether police catch enough of them.

“Most 21-year-old pimps don’t have $5,000 lying around,” D’Adamo said.

D’Adamo said that law enforcement already too often relies on “john stings” or vice raids, which might boost arrest counts but don’t actually do much to combat trafficking.

“A law-enforcement approach to human trafficking is completely wrong-headed,” said Darby Hickey, an analyst at Best Practices Policy Project and an advocate for sex workers.

Service providers say most victims don’t come to them as a result of law enforcement activity. For instance, a large number of D’Adamo’s clients at the Sex Workers Project escaped exploitation because one of their clients, the few contacts they had with the outside world, helped them out. Raids can create traumatic situations for sex workers and trafficked persons, who often have their civil rights violated in the process or come away with a deeper mistrust of law enforcement.

Making more patrons of sex work equal to traffickers in the law’s eyes, and making funding dependent on their arrests and convictions, will only increase the reliance on ineffective raids, D’Adamo said. There will be more people to arrest and convict and more incentive to arrest and convict them, but not more solutions to the deeper problems of trafficking.

Making Bad Options Worse

Not only is the law enforcement focus ineffective, advocates say; it could actively harm vulnerable youth.

Supporters of bills like the JVTA often focus on a particular vision of the people their legislation affects—namely, children who have been kidnapped or physically forced into brutal sex trafficking rings.

D’Adamo said lawmakers’ focus on child sex trafficking is much too narrow and sensationalized.

“One of the most gut-wrenching things that I hear people say is, ‘If I were a trafficking victim, maybe somebody would care about me, but right now I’m just a homeless mom.’”

In fact, the best predictor of whether someone will end up a trafficking victim, D’Adamo said, is whether that person is already vulnerable or marginalized due to their poverty, homelessness, abuse, bad living situation, immigration status, or gender or sexual identity.

She talked about one violent trafficking ring that preyed upon transgender Latina women, who faced disproportionate levels of homelessness and isolation.

“One of the reasons why they pick those women—it’s easy to say, even if you know you’re going into the sex trade, ‘You might have a better life here, because look at what you have right now, and this could be better,’” D’Adamo said. “It’s not hard to exploit something that, at its core, is kind of true.”

In other words, traffickers would have a harder time recruiting and exploiting people who were less vulnerable to begin with. That’s why it’s more important to reduce the “supply” of trafficked sex labor (by reducing the homelessness and poverty that lead to it), some advocates say, than try to “end demand” by making a show of getting tougher on johns.

“We really need to think about our priorities,” D’Adamo said. “Do we want to lock up people based on fake stings, or do we want to actually fund the resources that keep people from getting into exploitative situations?”

People in true trafficking rings also aren’t the only ones who need aid, D’Adamo said, and they’re not the only ones who could be affected by the JVTA. 

At the Sex Workers Project, D’Adamo offers legal services to a broad range of people—from trafficking-ring victims, to homeless youth who trade “survival sex” for food or shelter, to club dancers or webcam performers who need help with custody battles.

The “survival sex” youth are D’Adamo’s biggest worry when it comes to the JVTA. They technically meet the government definition of being trafficked—automatically if they’re a sex worker under 18, and probably at any age if they’re engaged in survival sex, since feeling the need to trade sex for basic needs likely involves “coercion” that is “subtle or overt, physical or psychological.”

But these youth also have no good options and are just trying to get by, D’Adamo said. They may have run away from a horrible home life or an abusive foster care system. They are victimized by circumstance, but not necessarily by the kinds of criminals that Congress envisions when it passes bills like the JVTA.

Survival sex “might be the option that one person might be choosing, but they might be shoplifting the next day,” D’Adamo said. “They might be turnstile-jumping the next day, they might be sleeping on a subway car.”

And over-policing makes their bad options worse or more dangerous. For instance, D’Adamo said, JTVA’s “tough on crime” approach to johns might make fewer men willing to buy sex, but the ones who will are more likely to be a violent, criminal element.

Meanwhile, youth who have become afraid of police will often put up with more violence before they finally decide to come to the police about it.

“If we look at this as a criminal justice problem, our focus will always be on prosecuting the trafficker and not supporting the victim,” D’Adamo said.

“Idea Bills” vs. Saving Lives

Darla Bardine is the executive director of the National Network for Youth, an advocacy organization for homeless and disconnected youth.

Her nonpartisan organization doesn’t take a position on abortion one way or another, but Bardine still sent a letter on behalf of National Network for Youth to Sen. Patrick Leahy (D-VT) urging Congress to “remove the partisan piece” about abortion from the JVTA.

This moment of bipartisan cooperation in the Senate on what should be a nonpartisan issue is too important to waste, she said. Bardine’s letter, which referred to trafficking as a “dark mark on society,” called the JVTA “desperately needed.”

But her endorsement of the JVTA in an interview with Rewire was more lukewarm.

“We certainly don’t oppose the legislation,” she said.

She thinks the bill will give more “clarity” to prosecutors and law enforcement, and she likes the idea of increased money for victims’ services.

“I’m not convinced that it will actually result in millions of dollars like they say,” she said, “but fingers crossed!”

Bardine’s organization is much more interested, though, in a different bill: Leahy’s Runaway and Homeless Youth and Trafficking Prevention Act. It would reauthorize, update, and give more funding to the Runaway and Homeless Youth Act, a 40-year-old federal grant program funding street-level outreach and youth shelters around the country. That process is supposed to be done every five years, but it’s been overdue since 2013 due to congressional inaction.

Republicans in this session of Congress have blocked Leahy’s bill because of its non-discrimination clause for LGBT youth. Bardine said that provision is crucial because up to 40 percent of homeless youth are LGBT, primarily because their families reject them, and it’s been documented that not all LGBT youth are treated appropriately or welcomed into the government-funded programs designed to help them.

Darby Hickey of Best Practices Policy Project noted that Republicans have set the tone of the legislative debate over trafficking for 15 years.

Hickey says the dominant voices in the trafficking debate are “an alliance between conservative Christians, who see this as part of their ‘save the children, save the women’ crusade, and anti-sex-work feminists—as well as people who are doing the real anti-human trafficking work, who have been trying to do harm reduction and get the right thing done.” But these latter advocates, Hickey said, “have a less powerful bargaining position in all of these negotiations.”

Leahy has proposed his bill as an amendment to the JVTA. Others have proposed amendments that bolster services or further protect survivors from prosecution. It’s not clear whether any of them will get a vote.

The congressional stalling has real consequences, Bardine said. Until the Runaway and Homeless Youth Act is reauthorized, homeless youth can’t benefit from a number of other improvements. The reauthorization would let homeless youth stay in emergency shelters longer; give shelter staff additional training to screen for sex or labor trafficking; and collect updated data on homeless youth to help serve them better.

Crucially, the reauthorization will also increase funding from $115 million to $165 million. That’s still woefully inadequate to address the “horrendous” turn away rates at existing centers, Bardine said, or to build them in the many communities that don’t have them at all. But it’s a badly needed funding increase that could make homeless youth less vulnerable to the pressures that lead to trafficking and other exploitation.

The JVTA is really just “an idea bill,” Bardine said, meaning that it is largely untested. “That’s why our focus is the Runaway and Homeless Youth and Trafficking Prevention Act, because it’s not an idea. It’s an existing 40-year federal program that saves lives.”

“Our hope is that leadership will just focus on what we agree upon and get all this better legislation through and be productive for once,” she said.