Civil Litigation on Behalf of Trafficking Survivors

Once a trafficker has been identified and caught, criminal prosecution is one avenue to bring justice. While pursuing a criminal case may be the most obvious way to make a trafficker answer for her or his crime, civil litigation is another option that, depending on the circumstances, might be appropriate in addition to or instead of pursuing a criminal case. A booklet published by the Immigrant Justice Project of the Southern Poverty Law Center "Civil Litigation on Behalf of Victims of Human Trafficking," authored by Daniel Werner and Kathleen Kim, provides an overview of the role of civil litigation in combating trafficking and aiding survivors.

There are many reasons to pursue a civil case on behalf of a trafficking victim. Werner and Kim suggest that "Civil litigation gives power to the powerless and is a critical tool to correct deep and pervasive wrongs" (xvii). In a presentation entitled "Civil Remedies for Victims of Human Trafficking," Kim suggests that such cases can be empowering for survivors, since they have more control over these cases than criminal cases. While survivors sometimes may receive restitution in criminal cases, Kim also points out that sometimes the damages exceed the amount they are awarded; moreover, civil cases require a lesser burden of proof than criminal cases, meaning that they can be successful even when a criminal case was not. In their booklet, Kim and Werner suggest that "[l]itigation also discourages would-be-traffickers and employers hiring trafficked persons from engaging in these practices" (1).Thus, civil cases can be another source of deterrence, since they are another way to punish traffickers where it hurts the most: in the pocketbook.

Civil cases on behalf of trafficking survivors are certainly not easy. Though they can be empowering for survivors, they can also be painful and difficult. Werner and Kim point out that such cases require cultural competence and an ability to work closely with the client as an equal and collaborator. These cases can also require a great deal of resources in terms of time, energy, and money (Werner and Kim 1).

Depending on the type of human trafficking, civil cases may face certain limitations. For a variety of reasons, sex trafficking cases have not lead to many civil cases. As Werner and Kim point out, testifying can be traumatic and re-victimizing for survivors of sex trafficking (11). Participating in a civil case, far from being empowering, may be extremely harmful and hinder rehabilitation. Moreover, given that commercial sex work is often "not recognized as legal work"(11), many of the laws used for civil cases on behalf of labor trafficking victims will not apply to victims of sex trafficking; locating defendants can also be difficult. Since criminal sex trafficking cases have been more successful than criminal prosecution in labor cases, pursuing the criminal angle may be more effective.

Civil suit on behalf of domestic workers who are trafficked also poses challenges, albeit for different reasons. Many of the United State's labor laws do not apply to domestic workers (Werner and Kim 10). This lack of protection makes people more vulnerable to exploitation as domestic slaves, and makes it harder to seek restitution on behalf of victims. Moreover, foreign diplomats have been identified as perpetrators in these cases, and they are immune from civil and criminal liability in the United States. As an aside, this problem is certainly not confined to the United States (indeed, according to the 2009 Trafficking in Person's Report, Belgium and France also face problems with foreign diplomats using domestic slaves).

Civil action can be brought against traffickers under a number of different causes of action. The Trafficking Victims Protection Reauthorization Act of 2003 amended the 2000 TVPA to include a private right of action. As of the 2008 booklet by Werner and Kim, over 20 civil lawsuits have been filed under this law; for cases under the TVPRA, plaintiffs must have been victims of forced labor, sex trafficking, or trafficking into servitude (Werner and Kim 29). Though many states have enacted anti-trafficking legislation, only California has adopted state level private right of action legislation for victims of trafficking (Werner and Kim 38).

Cases can also be brought under other laws that are not specific to trafficking. For example, successful cases have been brought under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). Cases brought under this act "must be based on a 'pattern' of 'racketeering activity'" (45); under the TVPRA, human trafficking crimes is considered racketeering activity. Cases can also be brought under various labor laws, such as the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. Claims can be brought under many other acts relating to discrimination and torts. Depending on the situation, defendants may be liable for a variety of damages, including back pay, over-time pay, punitive damages, compensatory damages, treble damages, restitution, and attorney's fees.

In May, the Human Trafficking Project reported on a successful case on behalf of farm workers in Denver who were victims of trafficking; each of the five workers received $1.5 million in compensation. As noted earlier, many cases are at various stages under the TVPRA. Civil litigation on behalf of survivors of human trafficking can be a powerful tool to empower survivors, provide some payment of damages that can help survivors rebuild their lives, and deter would-be traffickers; nonetheless, such cases are difficult and can be costly, and depending on the type of trafficking may actually be harmful.