The William Wilberforce Reauthorization Act, or S. 3061, has sat with the Senate since May 22. I made some comments about my position on it when it passed the House (basically, that the road to hell is paved with good intentions).
TITLE I-COMBATING INTERNATIONAL TRAFFICKING TN PERSONS
Section 107(a)(2) of the bill establishes an integrated human trafficking database. The Department opposes the requirement to create a database “combining all applicable data collected by each Federal department and agency represented on the Interagency Task Force to Monitor and Combat Trafficking.” The database would contain law-enforcement sensitive information, which would prevent the data from being accessible to non-law enforcement agencies, many of which are a part of the interagency task force.
Furthermore, such a database would be difficult to create, particularly within the time frame provided in the statute, because it would require information from multiple agencies that collect data in varying forms and levels of specificity. In addition, this provision as written would not provide sufficient protection for certain data which is to be included in the database. For example, the legislation does not protect data covered by the Privacy Act nor information that would identify victims.
TITLE 11-COMBATING TRAFFICKING IN PERSONS IN THE UNITED STATES
Sections 201(a)(I), as well as section 212(a)(l), provide immigration status to human trafficking victims who cooperate with law enforcement, excepting from cooperation those victims “unlikely or unable to cooperate with a request… due to physical or psychological trauma.” We offer one technical suggestion: strike the words “unlikely or”. The term “unikely” calls for speculation as to the victim’s ability to testify in the future, something that is difficult to define or assess.
Section 203(e) of the bill requires the Department of Homeland Security (DHS) to give immigration status to any worker holding an A-3 or G-5 worker visa who “files a complaint” regarding a violation of the terms of his or her contract, or any violation of law governing the terms of his or her employment or visa. This section does not, however, require a law enforcement assessment that the person is a victim of severe form of trafficking as defined in the statute, as is presently required for a Continued Presence visa in accordance with Section 7105(b) of Title 22 of the U.S. Code. Furthermore, the phrase “files a complaint” is overly broad and vague. The bill should define the term “complaint” in Section 203(a), specifying what constitutes a complaint and with whom the complaint must be filed.
Without such specificity, DHS has little guidance on what action would trigger the protections of Section 203(e). That being said, DOJ defers to the expertise of DHS with respect to this particular matter. Finally, the phrase “Attorney General” in Section 2113(e) should be struck, as the Attorney General has no statutory role in issuing employment documents.
Section 212-Interim d4ssistancefor Child Victims of Trafficking
The Department opposes the change in subsection (a)(l)(A)(ii) which would remove the Attorney General’s authority in stating whether a person’s presence is necessary in ensuring an effective prosecution. As the agency that prosecutes cases of human trafficking, DOJ’s involvement is vitally important.
The Administration recognizes the importance of including HHS at the initial stages for the purpose of facilitating prompt delivery of the full range of available benefits and services to trafficking victims but suggests several technical changes, however, that would clarify that the HHS designation would affect only the victim’s eligibility for benefits and would not be a determination of victim status for purposes of a law enforcement assessment that a crime had, in fact, been committed, which is exclusively the province of law enforcement agencies.
While we always appreciate the views of NGOs, DOJ believes that only governmental agencies should be involved in the determination of whether an individual is the victim of a crime.
Section 2 12(a)(2),in new subsection (F)(ii) requires HHS to notify DOJ and DHS within 48 hours of making an interim eligibility determination only if there is evidence of an ongoing violation. We suggest that 48 hours be changed to 24 and that the phrase “if there is evidence of an ongoing violation” be struck. As DOJ has stated in the past, law enforcement must be notified as soon as there is any evidence that a crime may have been committed. The importance of law enforcement particularly in this process cannot be underscored enough in both protecting known victims and locating victims currently held in servitude by a trafficker.
These edits would also address concerns the Department has with the proposed new sub-paragraph (G) in subsection (a)(2), which would require both Federal and State law enforcement officials to inform HHS of the existence of a potential victim but not require HHS to inform at least Federal law enforcement of such a victim. The notification requirement should be reciprocal with respect to Federal agencies because the Attorney General and the Secretary of DHS bear responsibility for investigating and prosecuting instances of human trafficking at the Federal level.
Section 2 12(a)(2) also requires a federal official to notify HHS within 24 hours of identifying a potential child victim. This 24 hour requirement should also apply to State and local officials, who currently have 48 hours to make such notifications under the bill. Federal and State officials should have parallel requirements.
Section 213-Ensuring Assistance for All Victims of Trafficking in Persons
Section 2 13 of the bill authorizes the Attorney General to make grants to assist victims of severe forms of trafficking. While the Department supports grants for the provision of services for crime victims, the Department already has such authority and does so at a levels in excess of $250 million a year. Also, the authorization of another grant program runs counter to the Administration’s proposal in the 2008 Budget to consolidate DOJ’s more than 70 grant programs.
The Department also opposes the mandatory consultation with NGOs regarding the provision of services. This creates a conflict of interest since many of the NGOs will apply for and could receive grants under the program.
Section 221-Restitution of Forfeited Assets, Enhancement of Civil Action
The Department is significantly concerned that Section 22 l(1) would disrupt the existing remission process for distribution of forfeited funds to victims. We note that the language of the provision is very broad and does not apply just to victims of trafficking, the subject of S. 3061, but rather to victims of all crimes for which restitution may be ordered by a court. The Department currently has a process governed by regulation in which the Attorney General distributes those funds according to a set of well-thought out standards. Such a major revision to the process should be subject to greater discussion between the drafters of the bill and the Department.
Section 22 l(2) creates very broad civil liability for retailers, farmers, and others who knowingly benefit from participation in a venture that engages in a violation of Chapter 77. This would include a retailer who knowingly profits from clothes the retailer bought from a factory that made them, if that factory used slave labor–regardless of whether the retailer knew about the slave labor or not. We suggest that the language be qualified to ensure that only a person who knows of the use of slave labor be subject to liability. This could be accomplished by inserting the words, “he knows or should have known” after “a venture which”.
Section 222-Enhancing Trafficking Offenses
We recommend that the definition of the term “abuse or threatened abuse of law or legal
process” be modified in Section 222 (b)(4) to mean “the use or threatened use of a law or legal process, whether administrative, civil or criminal, in any manner or for any purpose for which the law was not intended. in order to exert pressure on another person to cause that person to take, or refrain from taking, some action.”
In Section 222(b) and (c) -Proposed Section 1591 (d)(4) and Proposed Section 1589(c)(2), the definition of “serious harm” is amended to mean “physical or non-physical” harm. This is a useful change to cover all forms of harm to victims. However, for clarity’s sake, we suggest that the definition of “physical or non-physical harm” also include “physical or non-physical harm, including, but not limited to, psychological, financial, or reputational harm …”
Section 222(g) proposes to add to Title 18 a new section, 2429-Sex Tourism. The Department supports the goal of this section, and offers two technical suggestions. First, we would add the word “criminal” before the word “offense” to make the scope of the statute clear. Second, the crime does not have any mens rea requirement. That is, it does not require that the defendant acted knowingly. We suggest the insertion of the word “knowingly” before “arranges, induces, or procures”.
Finally, in order to make the proposed new crimes, 18 U.S.C. $9 1593 and 2429, money laundering predicates, we suggest they be added to the money laundering statute 18 U.S.C. 1961(1). They are both financially based crimes, so money laundering charges would also be appropriate.