Last summer, the North Carolina legislature unanimously passed the Safe Harbor/Victims of Human Trafficking Act. This was an impressive feat not only because of the bill’s unanimous support, but also because it exemplifies an increased awareness across the nation of the slavery that persists in the United States today. “White slavery” in the United States is no long white. Sexual slaves no longer conform to the Eastern European stereotype. Rather, the majority of victims of sex trafficking in the United States come from Thailand, Mexico, Guatemala, the Philippines and China. Further, trafficking in persons is not limited to sex trafficking. In fact, many men, women and children are victims of forced labor. The most impressive reconceptualization that has occurred in the past decade in the United States, however, is the redefinition of prostitution to accommodate the effects of sex trafficking. Since North Carolina just recently legally changed its definition of prostitution, I would like to focus on how the Safe Harbor Act amended state definitions of slavery and prostitution.
The purpose of the Safe Harbor Act, also known as SB 683, is to “create a safe harbor for victims of human trafficking and for prostituted minors.” This stated purpose necessarily implies an acknowledgement of the powerless position of victims of human trafficking who are forced to prostitute themselves. Rather than prosecute minors who would not be prostituting themselves but for their being trafficked, SB 683 provides immunity from prosecution for minors. If it is determined, after a “reasonable detention for investigative purposes,” that an individual charged with prostitution is a minor, he or she will be put into temporary protective custody. This new immunity for minors reflects an understanding that minors who are being sold for sex necessarily cannot legally consent to that conduct, and are actually the victims of prostitution. Rather than punish exploited individuals who prostitute themselves, this immunity allows law enforcement to focus its efforts on catching and prosecuting those higher up in the hierarchy: the traffickers, pimps and johns.
This new focus on prosecuting the orchestrators of prostitution rather than the women and men who work the streets is further bolstered by the increase of pimping and solicitation of a prostitute from misdemeanor crimes to felonies, and also by the increase of penalties for trafficking in minors and adults. Given that there are at least 100,000 child victims of prostitution and trafficking each year, continued efforts to target traffickers rather than the trafficked and help exploited victims reintegrate into society are imperative. Prostitution is not just the career of last resort for the woman (or man) who is down on her luck and has only her (or his) body to fall back on as a source of income. There are more than just economic motivators at play in many cases, and when the strings are being pulled by real live people rather than economic and societal pressures, the puppeteers are the ones who need to be brought to justice.
The need for amnesty is particularly strong in the case of international trafficking, where a victim’s immigration status is held over her head as an additional power mechanism. Under Immigration and Custom Enforcement’s Secure Communities program, trafficked individuals who might otherwise have the ability to seek refuge in reporting the crimes committed against them to police are faced with an impossible quandary. If they stay with their traffickers, often in rural areas, they will likely escape detection by ICE agents and thereby avoid deportation. Under the Secure Communities program, however, individuals arrested by local law enforcement are supposed to have their prints run through both the FBI criminal database and ICE’s database to check their immigration status. If a hit comes up in the latter database, ICE will begin deportation proceedings. Thus, a victim of sex trafficking who gets caught for prostitution can face detention and possibly deportation if she is unable to prove that she was a victim of trafficking.
Luckily, since 2,000 trafficking victims have had the option of applying for a T Visa, which grants a visa and path to legal permanent residency and citizenship to individuals who can demonstrate that they are victims of trafficking, that they are in United States because of that trafficking, that they reasonably helped law enforcement in the prosecution of the trafficker and that they would suffer “unusual and severe harm” if they were removed from the U.S. Unfortunately, the application process is lengthy and involves writing a declaration testifying to the victim’s experiences as a victim of trafficking. Not only does recounting this story often prove traumatizing for victims, but also victims are not automatically appointed counsel in their immigration case. As a result, nonprofit and pro bono immigration legal services must strive to fill the gaps.
The North Carolina Safe Harbor Act is certainly a watershed moment in the state’s understanding of powerless forms of prostitution. The act, however, is far from a panacea. Immigration pressures in particular continue to lurk in the background, feeding the modern slave trade.
Joline Doedens is a second-year law student. Her column runs every other Wednesday. Send Joline a message @jydoedens.