Victim or Criminal? The Law’s Failure to Recognize Modern Slavery.
Amelia Slaughter
Human trafficking is often viewed as something distant and completely removed from ordinary life, but its consequences develop in plain sight–both in courtrooms and criminal records. Every year, there are millions of men, women, and children trafficked and forced to commit illegal acts through coercion so severe that it strips them of all dignity and personal liberties. Instead of being recognized for who they are, trafficking victims are often rounded up and prosecuted, treated like criminals, and lost in the very legal system that failed to protect them from the beginning. This raises the fundamental question of whether or not people should be held liable for actions committed under what can be considered modern-day slavery. Under the Thirteenth Amendment, which prohibits involuntary servitude, this question becomes even more pressing. Despite the explicit promise of freedom, this amendment has often been interpreted very narrowly, excluding all forms of psychological coercion, something often central to modern trafficking. There has been progress made at the state level, with some states passing statutes to protect trafficking victims. Unfortunately, this is limited and not guaranteed. As a result, the law risks punishing those it was meant to protect. Because of this, the Thirteenth Amendment should offer constitutional protection for trafficking victims, guaranteeing that these protections are permanent and equal across all fifty states.
To examine how this gap between constitutional promise and lived reality emerged, it is necessary to understand how the U.S. has previously viewed the topics of coercion, trafficking, and involuntary servitude. The foundation begins with the Thirteenth Amendment in 1865, which abolished slavery and involuntary servitude, across the United States, except in the case of punishment. [1] While early on its wording seems clear, there were different interpretations of what was classified as involuntary servitude. Most early renditions of the Thirteenth Amendment focused solely on physical restraint and human ownership, leaving no space for other forms of coercion. This narrow understanding led to the creation of new legal responses, such as the Mann Act of 1910, which criminalized transporting individuals across state lines for purposes deemed immoral by the law. [2] Although this act was framed as a method to combat exploitation, it only reinforced the inability to distinguish between victims and criminals, often charging those who should be treated as victims. This pattern persisted into the modern world with “NSS [(National Survivor Study)] data [finding] that of 439 participating trafficking survivors, 62 percent had been cited, arrested, or detained by law enforcement at least once. Digging further into the data to see if the arrests might have come before or after the trafficking experience, 80 percent said the arrests came while they were being trafficked.” [3] Such data does more than illustrate a systematic failure; it exposes a structural contradiction. If the Thirteenth Amendment forbids involuntary servitude and ownership, yet individuals working under coercion are not constitutionally protected, this creates an issue of definitional deficiency. Due to the lack of recognition for more modern-day trafficking techniques, including manipulation, dependency, control, etc., the legal system fails to help the very people it was sworn to protect. This disconnect between modern-day trafficking techniques and the legal system leads to the need for evolving the law's understanding of involuntary servitude from a purely historical perspective to an updated perspective that involves the realities of modern-day trafficking.
With these differing interpretations of the Thirteenth Amendment, the courts have played a key role in defining what qualifies as a violation. In United States v. Kozminski (1988), the Supreme Court confronted the question of what qualifies as involuntary servitude. The case covered two elderly men, with the mental capacity of young children, being forced to work on the Kozminski dairy farm for seventeen hours a day. [4] Originally, the two were paid money, but eventually it turned into free labor. The two men were told not to call their families or friends, and whenever they thought of leaving, they were threatened with institutionalization. So, the question asked in court was, “Does the protection from involuntary servitude guaranteed by the Thirteenth Amendment extend to the use of psychological coercion?” According to current precedent, the answer is no. The court unanimously believed that involuntary servitude was limited to physical restraint and legal coercion, explicitly excluding psychological pressures. In doing so, the court created a rigid boundary, excluding modern trafficking techniques. This created fear, manipulation, and dependency legally insufficient under the Thirteenth Amendment. There was much pushback, with the Trafficking Victims Protection Act (TVPA) being established, United States v. Dann (9th Cir. 2011), and United States v. Calimlim, 538 F.3d 706 (7th Cir. 2008), including psychological coercion. [5] If statutory and lower-level courts can recognize modern-day trafficking techniques, constitutional interpretation should too.
This legal inconsistency shows the issue is not whether psychological coercion can be recognized, but whether the Constitution has been interpreted too narrowly. With this logic, the amendment should not be viewed in a rigid light but instead should reflect the overarching purpose of said amendment. The Thirteenth Amendment was not only created with the intent to abolish slavery, but also to eliminate the entire concept of forced labor. So, if the goal is eliminating forced labor, then what matters is whether or not someone has a choice or agency. Lack of freedom does not automatically correlate with chains; it is the ability to choose to stay or leave. As stated previously, lower-level courts have acknowledged psychological coercion as a method of inducing forced labor. For example, in United States v. Calimlim (2008), a District Court case located in Wisconsin, two wealthy doctors brought in a nineteen-year-old Filipino woman to work as their housekeeper. [6] For nearly two decades, with seven seventeen-hour shifts, the couple withheld her passport, allowed minimal familial contact, failed to pay her a salary, etc. There was no physical restraint, but with the constant threats, the unnamed woman was terrified to leave the couple. In this case, her obedience was not something voluntary but instead was seen as the product of psychological control that stripped her of any significant choice. This case demonstrates that coercion operates not only through force, but through the tactics of manipulation and dependency. This goes on to produce similar conditions that are functionally indistinguishable from traditional forms of involuntary servitude. Yet, under the framework created by United States v. Kozminski, forms of coercion presented in such cases would risk falling outside of constitutional protection, despite producing the same practical result. Therefore, psychological coercion destroys autonomy. This is not a one-off situation; courts have repeatedly encountered this form of coercion. United States v. Dann, a Ninth Circuit Court of Appeals case, found the trafficker guilty, despite no physical restraints being used on the victim. [7] With common methods of threatening deportation, false accusations, lack of pay, etc. being used. Like in Calimlim, the absence of physical force does not equate to genuine freedom, as the victim's autonomy was undermined through deep psychological control.
Ultimately, as psychological coercion destroys personal autonomy, it should fall under involuntary servitude. The Supreme Court's decision in Kozminski was too narrow and failed to protect those without the physical manifestation of force. As a result, constitutional interpretation that excludes psychological coercion not only fails to protect its victims and ignores the modern techniques of trafficking, but also undermines the very purpose of the Thirteenth Amendment. Therefore, the Thirteenth Amendment should offer constitutional protection through a less narrow interpretation for trafficking victims, guaranteeing that protections are permanent and equal across all fifty states.
[1] U.S. Const. amend. XIII
[2] White-Slave Traffic Act (Mann Act), 18 U.S.C. §§ 2421–2424 (2018).
[3] "Study Confirms Trafficking Victims like Zephi Trevino Are Being Consistently Criminalized," Polaris Project, March 28, 2023, https://polarisproject.org/blog/2023/03/study-confirms-trafficking-victims-like-zephi-trevino-are-being-consistently-criminalized/.
[4] United States v. Kozminski, 487 U.S. 931 (1988)
[5] Trafficking Victims Protection Act of 2000, 22 U.S.C. §§ 7101–7115 (2018).
[6] United States v. Calimlim, 538 F.3d 706 (7th Cir. 2008)
[7] United States v. Dann, 652 F.3d 1160 (9th Cir. 2011)
