Remedying the Injustices of Human Trafficking through Tort Law

Article excerpt

Every year, approximately 600,000 to 800,000 victims of trafficking are bought, sold, or forced across international borders. (1) Trafficking is the third largest criminal industry in the world, (2) with revenues totaling $9.5 billion annually, (3) and is expected to soon surpass the two largest criminal industries, narcotics and firearms. (4) Although tragic stories of women and children trafficked into commercial sex work in other countries have been extensively documented, the problem of trafficking in the United States had received little publicity until recently. The issue finally attracted the attention of policymakers and the general public when the CIA issued a report in 2000 estimating that 45,000 to 50,000 individuals were trafficked into the United States annually. (5) More recent reports estimate that 14,500 to 17,500 trafficking victims enter the country each year. (6) In response to several high-profile cases that sparked public outrage, (7) Congress enacted the Trafficking Victims Protection Act (TVPA), (8) which seeks to combat trafficking through prosecution of traffickers, protection and support for victims, and prevention of trafficking on a global level. Recognizing that the law represents a major step forward in the global effort to combat trafficking, practitioners have nonetheless observed that the current legislative framework subordinates protection of victims to prosecution of traffickers and has thus led to inadequate protection for victims. (9) While many commentators have continued to press for much-needed reform of the TVPA, others have begun to develop innovative legal strategies to promote security and support for trafficking victims.

This Note builds on recent literature exploring the potential for trafficking victims to recover under civil causes of action. Commentators have extensively developed the framework for claims under various statutes that have, in many cases, led to promising recoveries for victims of trafficking. (10) Although recent civil suits have also raised common law tort claims, these claims have been less thoroughly developed in the literature, likely due to significant variations in state tort law. This Note seeks to explore the potential for civil redress under tort claims, focusing on California law as a model. (11) Part I briefly describes trafficking in the United States, discussing tactics frequently employed by traffickers and conditions of forced labor in the United States. Part II outlines the existing legal framework, providing an overview of relevant international conventions and a closer analysis of domestic statutes. Part III addresses the need for civil causes of action for trafficking victims by discussing the inadequate protections afforded victims under the current legislative framework. Part IV briefly considers common statutory claims that have been raised in civil suits by trafficking victims and explores their weaknesses to highlight the importance of supplementing statutory claims with tort claims. It then uses California law as a model to explore promising tort claims that may allow trafficking victims to recover from their abusers. Part V concludes.

I. TRAFFICKING IN THE UNITED STATES

A. Strategies Employed To Lure Victims into Trafficking Schemes The structures of trafficking rings range from complex transnational organized crime networks to family operations to individuals. (12) Regardless of the size and sophistication of the operation, trafficking generally involves a network, with different individuals responsible for forging documents and recruiting, purchasing, and transporting victims. (13) Traffickers typically employ a combination of four primary strategies to lure their victims into trafficking schemes. First, they may induce individuals to cross borders through false promises of job opportunities, including positions as nannies, restaurant employees, models, dancers, and factory workers. (14) Upon arrival in the destination country, these individuals are instead forced into commercial sex work or other industries. …

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