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End of visit statement, United States of America (6-16 December 2016) by Maria Grazia Giammarinaro, UN Special Rapporteur in Trafficking in Persons, especially Women and Children

Washington DC, 19 December 2016- I am grateful to the Government of the United States of America for the invitation to carry out an official country visit from 6 to 16 December 2016. I would also like to thank the authorities I have met at the Federal, State and city levels, as well as the diplomatic community and businesses for their openness to engage in frank discussions with me. During my visit, I also had the opportunity to meet with representatives from civil society, who play an eminent role in assisting victims in this country, as well as with survivors, whom I would like to warmly thank for courageously sharing their painful experiences and aspirations with me.

Both US citizens and foreign nationals mainly from Central America and South East Asia are trafficked within and into the US. While efforts to combat trafficking in persons have focused primarily on sexual exploitation thus far, trafficking for labor exploitation, domestic servitude as well as trafficking for the purpose of removal of organs and forced begging have also been brought to my attention. Women and girls, migrant workers and unaccompanied children, runaway youth, Native Americans, LGBTI individuals and domestic workers, including in diplomatic households, are particularly exposed to trafficking and exploitation. African American women and girls are disproportionately affected by involuntary domestic servitude.

To address the situation, the United States has developed an impressive number of laws and initiatives which focus on the protection of victims. Amongst these, I particularly welcome the Victims of Trafficking and Violence Protection Act (TVPA) of 2000 which provides for a long term form of immigration relief for trafficked persons – known as the T visa –, the TVPRA of 2008 which authorizes foreigners to apply for T-visa when they are, inter alia, unable to participate in a law enforcement interview because of physical or psychological trauma; and the TVPRA of 2013 which addresses child labor trafficking. The fact that the TVPA has been reauthorized with additional provisions for the protection of victims four times since 2000 is an indication of the Government’s commitment to address emerging forms of trafficking in persons and adopt a victim centered approach. I further welcome the Preventing Sex trafficking and Strengthening Families Act of 2014 and the Justice for Victims of Trafficking Act of 2014 which enable survivors to provide formal input in Federal anti-trafficking policies and establish the Advisory Council on human trafficking that provides strategic advice to the Government. I now look forward to the implementation of the 2016 National Strategy for Child Exploitation, Prevention and Interdiction which assesses the nature and scope of the dangers facing children, including child sex trafficking.

However, I would urge the Federal authorities to close any protection gaps by ratifying without any delay the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and pertinent ILO conventions.

Since the ratification of the Palermo Protocol to prevent and punish trafficking in persons, the United States has championed the struggle against trafficking in persons worldwide. I particularly welcome the leadership of the United States in facilitating the first Security Council meeting dedicated to the issue of human trafficking in situations of conflict during its presidency of the United Nations Security Council in December 2015. At the international level, the unilateral compliance mechanism established by the Department of State’s Office to Monitor and Combat Trafficking in Persons, which undertakes an annual assessment of the trafficking situation in States worldwide, is also a useful tool to promote and share good practices amongst States. In this context, I am encouraged by the Government’s invitation extended to my mandate, the first of this kind since its inception, as it implies political will to strengthen a human rights based approach to the struggle against trafficking in persons.

Such an effort to adopt and revise legislation, train professionals, refine internal regulations demonstrate that anti-trafficking efforts are a long standing commitment in the US.  Yet, the purpose of this country visit is also to shed light on persisting problems, issues to be dealt with, challenges faced, and to offer recommendations to address them in a spirit of cooperation.

Areas of concern:

TRAFFICKING FOR LABOUR EXPLOITATION

Unfortunately, official estimates of the total number of human trafficking victims in the United States are not available, which, in my view, prevents Federal authorities from having a comprehensive overview of the problem and allocating adequate resources in regions and sectors that require most attention. According to Polaris statistics, 75% of reported cases concerned sex trafficking, 13% labor trafficking, 3% sex and labor trafficking and 9% non-specified trafficking. The number of trafficked persons identified and supported is still low compared with the estimated dimension of trafficking, especially regarding trafficking for labor exploitation. During my visit, I was also repeatedly informed that labor exploitation of women and girls is generally accompanied by sexual abuse.

With these considerations in mind, I would like to offer the following preliminary recommendations:

There is a disproportionate focus on sex trafficking as opposed to trafficking for labor exploitation. While authorities justify this imbalance by highlighting the apparent ease to detect sex trafficking, there is a need for Federal and State authorities to engage in a more proactive and systematic effort to prioritize the detection of trafficking for forced labor and labour exploitation. Workers in the agriculture, hospitality and construction industries are particularly vulnerable to labor trafficking. They often work in precarious conditions on temporary or short-term contracts, on temporary visa if they are migrant workers, cumulating more than one job and encountering little opportunities to unionize to defend their rights, which expose them to labor exploitation. Mindful that many migrant victims of trafficking are undocumented, a coordinated approach based on the use of common indicators should be used by the different agencies to identify trafficking victims and to provide them with remedies including compensation.

The legal framework governing temporary visas for migrant workers, especially H-2A visa for temporary or seasonal agricultural work and H-2B visa for temporary or seasonal non-agricultural work visas, is of particular concern as it exposes applicants to the risk of exploitation, including human trafficking. Workers holding these temporary visas are tied to a specific employer who can exercise extensive control over them. Employers often confiscate passports, withhold  wages, terminate contracts arbitrarily and threaten employees with job loss and deportation. Some live in deplorable housing conditions, commute long distance and enjoy low benefits. This is a serious problem in itself, but it is exacerbated by the fact that concerned workers may fear that if they report abuses, they will be deported or denied future visa applications. This situation creates vulnerabilities to labour exploitation, such as unsafe working conditions and isolation, especially in rural areas where there are fewer service providers. In order to prevent further harm, it will be essential to amend the regulation governing these temporary visas, as well as to those of Exchange visitor (J-1) and domestic workers (G-5) visas, and make visa “portable” to allow workers to change abusive employers.

Moreover, I am concerned that many recruitment agencies offer lower wages and benefits and charge future employees with recruitment fees. While some companies, notably in the electronic industry, have taken actions to address trafficking in their chains of supply, Federal authorities should better support business’ efforts to establish and implement an unequivocal no fees policy. In many cases, workers can find themselves in an inextricable situation that makes reporting human rights violations, or voluntarily returning to their home countries impossible because of the debts they incur from recruitment agencies’ fees, which often also includes migration and settlement expenses. A viable solution needs to be put in place to allow workers to report human trafficking without being afraid of losing their jobs or being deported. A confidential procedure protecting the workers’   identity and privacy could be put in place to allow them to report abuses to law enforcement officers, while at the same time receiving services they are entitled to if they are recognized victims of human trafficking.

Diplomats and the staff of international organizations may bring domestic workers to the United States. As their work is performed in private households, where oversight is by nature limited, domestic workers are vulnerable to abuse and exploitation. I note with appreciation that migrant domestic workers employed by personnel working at foreign missions and international organizations are required to physically register (without their employer present) at the annual appointment at the Department of State which enables the review of their working conditions. I urge relevant authorities to take further steps to integrate the recommendations of the OSCE handbook on human trafficking for domestic servitude in diplomatic households, which provides useful guidance to address allegations or complaints regarding such exploitation.

A careful and extensive analysis of the root causes of human trafficking should allow Federal authorities to develop indicators and obtain greater results in identifying vulnerable people and preventing trafficking. Social and economic inequalities, humanitarian and economic situation in neighborhood countries, as much as the increasing stigmatization of migrants in the political discourse, make it essential for Federal authorities to engage in a more pro-active investigation approach on the basis of risk assessment. []. I also urge the Department of Interior to continue strengthening its prevention and outreach work by addressing root causes of trafficking of American Natives.  The Department of Agriculture, which is one of the few Federal agencies that has a presence in every State, could also play a pertinent role in intensifying training of its staff and in closely monitoring companies that often employ seasonal and temporary workers and in conducting targeted labor inspections in the agriculture sector.

TRAFFICKING FOR SEXUAL EXPLOITATION

Adult and children are compelled to engage in commercial sex acts against their will by family members, individuals with whom they are romantically involved or gangs who have forced them into prostitution or lured them with a promise of a false job. Trafficked persons for sexual exploitation are US citizens and foreign nationals alike. Sex trafficking of women and girls, runaway and homeless children, Native Americans, LGBTI individuals often occurs in fake massage parlours, via online ads or escort services, in residential brothels, on the street, or at hotels and motels.

Since 2007, the National Human Trafficking Hotline, operated by Polaris, has received reports of 14,588 sex trafficking cases inside the United States.

In the context of sexual exploitation, it is important to be aware that the way anti-trafficking action is currently implemented has an adverse impact on trafficked persons and potential victims of trafficking.

In this regard, I urge the government to stop the practice of arresting persons – especially women, girls and LGBTI – engaging in prostitution. The fear of prosecution, detention and expulsion is a major obstacle for trafficked persons who want to report their traffickers and exploiters.  This is the main reason why I advocate for a human rights based approach to trafficking which includes the de-criminalization of those who engage in prostitution in States where it is illegal. Such an approach would be a powerful tool to ensure that victims are not arbitrarily arrested, or no longer afraid to report human rights violations. This terrible situation which can amount to slavery was repeatedly shared with me by trafficking survivors in the country throughout my visit. In this context, I encourage law enforcement officials to use their discretion to avoid arresting sex workers as they can be potential victims of sex trafficking.

I also wish to highlight that exemption from criminal liability is imperative for children. Federal law recognizes that minors under the age of 18 who engage in prostitution or other related offenses are victims of sex trafficking, without necessity to prove the illicit means used by traffickers. I urge States that have not yet done so, to pass safe harbour laws with the intended goal of ensuring that all minors involved in the sex industry are shielded from criminal prosecution.  I also call for the systematic implementation of the non–punishment principle implying that trafficked persons – be they adults or children – must not be prosecuted for violations they are involved in as a direct consequence of their situation  as trafficked persons.

With regards to post-conviction reliefs, some States have adopted vacatur laws which fall short of providing full remedies to trafficked persons, for instance by sealing criminal records rather than vacating convictions. Hence, there is a need for Federal authorities to adopt a law that would enable trafficking victims to vacate criminal convictions for acts they were compelled to commit.

Moreover, I look with interest at the recently established human trafficking initiative Court in New York, which makes it possible to dismiss a criminal case on grounds of prostitution and clear concerned individuals’ criminal records. However, I regret that cases can only be brought to the Court as a consequence of an arrest for prostitution. I would recommend that victims and potential victims can directly access the Court on the basis of a complaint or a report.

In terms of immigration relief of trafficked persons, there is a need to speed up procedures for the granting of a T visa, U visa or a “Continued Presence”. I urge Federal authorities to refrain from conditioning services and residence status to victims’ cooperation with law enforcement authorities. I further urge the authorities to consider allowing persons waiting for such visas to access the labour market and support themselves during the lengthy waiting period. This will have a powerful impact on the process of regaining ownership of their lives, their sense of independence and freedom and their economic empowerment. Survival leadership is valid for any forms of trafficking, be it sexual or labour exploitation

PREVENTION

I am pleased to learn about the extensive awareness raising work undertaken by authorities at the Federal, State and local levels, as well as by CSOs and businesses to prevent human trafficking among population at risk, often developed in cooperation with trafficking survivors. These range from the Department of Homeland and Security’s nationwide human trafficking awareness Blue Campaign for front-line responders at State, local, and tribal levels; the Department of Justice’s guidance to immigration judges with respect, notably, to immigration court cases involving unaccompanied alien children, applied with professionalism and sensitivity by the judge I had the opportunity to meet in New York after observing a hearing at the New York Immigration Court; the Department of Health and Human Services’ continued awareness raising campaigns and targeted training in the health care sector; the Department of Education’s efforts to integrate trafficking information into school curricula; the Department of Agriculture and the Department of Health and Human Services’ initiative to raise awareness for food and agricultural industry partners in rural communities; the Department of Defence’s training for all its personnel, including troops prior to their deployment; the Department of Interior’s task force to combat trafficking of Native American and Alaskan Native populations; and the Department of Transportation and the Department of Homeland and Security’s human trafficking trainings for airline personnel and the car industry.

Furthermore, the “Know your rights” pamphlet delivered to temporary workers at US embassies has been praised by numerous interlocutors, including trafficking survivors I met, which should encourage the authorities to continue to translate it into numerous languages and to share it widely with every individual entering the United States, regardless of the type of visa held.

Here, I would also like to mention what I consider pertinent additional measures to prevent human trafficking in the US, especially in relation to labour exploitation:

I welcome the U.S. Government’s zero-tolerance policy on trafficking in persons for labour exploitation which notably consists of Executive Order 13627 which strengthens protections against trafficking in persons in Federal contracts and establishes specific requirements for Federal contractors and subcontractors to prevent trafficking in persons in government contracts. In this regard, I would suggest strengthening the responsibilities of labor attachés in US embassies to help the Federal Government making sure the Federal Acquisitions Regulations and other pertinent laws are implemented in practice.

In addition, I welcome the California Transparency in Supply Chains Act, which requires companies to report on their actions to eradicate slavery and human trafficking in their supply chains, though it is urgent to strengthen its implementation.  I am also hopeful that the National Action Plan on Responsible Business Conduct that aims "to promote and incentivize responsible business conduct, including with respect to transparency and anticorruption, in compliance with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises", which is due to be released on 16 December 2016, will further strengthen the struggle against labor exploitation.

While welcoming the abovementioned initiatives, I note the considerable efforts that will now be required to implement and enforce them, including through raising awareness and building the capacity of contractors.

Finally, I would also like to pay tribute to civil society’s commendable efforts to address labor trafficking, such as the Coalition of Immokalee Workers through its Fair Food Program which empowers farmworkers in Florida. It is now implemented in other States, and must be considered as an international benchmark.

PROTECTION OF TRAFFICKED PERSONS
In order to protect the rights of victims and potential victims of trafficking, who are very often undocumented migrants, it is necessary to ensure consistency between anti-trafficking policy and immigration policy.

In general terms, walls, fences and laws criminalising irregular migration do not prevent human trafficking; on the contrary, they increase the vulnerabilities of people fleeing conflict, persecution, crisis situations and extreme poverty, who can fall easy prey to traffickers and exploiters. As President Obama made clear in his statement at the Summit on migrants and refugees in September 2016, “When desperate refugees pay cold-hearted traffickers for passage, it funds the same criminals who are smuggling arms, drugs and children and poses a challenge to [one country’s] security”. This is why I endorse calls for the establishment of safe and legal channels of migration as the main tool to prevent trafficking and exploitation.

Screening of trafficked persons and those at risk of trafficking in ports of entry should be undertaken by officials trained in identifying adequate channels for protection, including asylum, child protection and trafficking entitlements. These officials should be trained to provide affected people fleeing violence, humanitarian crisis and poverty with tailored solutions to enable them to rebuild their lives. I urge the authorities to adopt a protective approach, particularly when screening unaccompanied migrant children coming from neighboring and non-neighboring countries. In this respect, it is imperative that children exposed to violence and trafficking  are not returned back to their countries. With regard to individuals awaiting deportation, I recommend that the Immigration and Customs Enforcement operates effective and consistent practices to identify situations of trafficking that had not been detected previously. Moreover, I am gravely concerned that unaccompanied migrant children placed in Office of Refugee Resettlement facilities have on occasions been released to sponsors who subsequently forced them to work or to engage in prostitution, as a result of inefficient background checks. US Customs and Border Protection play a key role to stop transnational trafficking in persons and I thus urge the Federal authorities to provide adequate resources to ensure that CBS staff is duly trained to identify human trafficking victims.
In this regard, I am deeply troubled by the persisting practice of detaining children on immigration violations grounds. By no means can the detention of child victims be in the “best interest of the child”, as prescribed by international human rights law. As a consequence, I urge relevant authorities to take appropriate measures to ensure adequate protection to minors, including by banning administrative detention of children, in particular for violations of immigration laws and regulations.

I further learnt that existing CSO-run shelters were only available for children and women. Similar services must be provided to protect male victims of trafficking who are currently sheltered in homeless centres throughout the country.

I also salute the dedication of civil society that provides psychological, legal and social assistance to victims and I encourage the Federal authorities to increase funding to non-profit organizations and to public agencies, especially those providing housing services, as the protection of victims should never be dependent on the goodwill of private funders who may change their priorities with no prior notice or explanations.

In relation to compensation, I am aware that under the TVPA, restitution is mandatory to trafficking victims. The Labor Department clarified that restitution can be provided to victims even if they are sent back to their home country. However, civil society organizations have reported a systemic failure to ensure compensation and I thus would urge the authorities to take additional positive measures in this regard.

Finally, I would like to highlight two general issues relating to the effectiveness of the whole anti-trafficking mechanisms: coordination and data collection. I have learnt of and met with a number of initiatives in the past two weeks, such as the Anti-Trafficking Coordination Teams (ACTeam) which brings together representatives from various Federal agencies in various cities across the country, as well as the San Francisco Mayor’s Human Trafficking Task Force which adopts a broad human rights and victim-centered approach to address trafficking and protect sexually exploited peoples, including LGBTI individuals. While cooperation is key in addressing human trafficking, I note that coordination among Federal, State and local level agencies is often uneasy and I call for a more coordinated approach with universal anti-trafficking trainings to every entity. This would ensure effective anti-trafficking actions, including individualized victims’ access to services and criminal investigations and prosecutions of human trafficking offenses. Additionally, I have found that data on trafficking is either lacking or collected in an uncoordinated manner, which in turn adversely impacts the understanding of the extent and prevalence of trafficking in persons in the US. I thus call on the authorities to develop a systematic and comprehensive data collection using common indicators and disaggregated data with a view to implementing a greater human rights oriented anti-trafficking response.

I thank you.

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Polaris Statistics http://polarisproject.org/sex-trafficking

OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking, principles 7 and 8