Proving Coercion & Defeating Common Defenses
Jamie Schoen, Assistant United States Attorney United States Attorney’s Office, District of South Carolina U.S. Department of Justice Sean Tepfer, National Program Manager Human Trafficking Prosecution Unit Civil Rights Division U.S. Department of Justice Objectives
• Understand legal definition of coercion
• Review key coercion concepts
• Discuss coercive schemes and how to articulate theories
• Discuss common defenses used in human trafficking cases
HUMAN TRAFFICKING PROSECUTION UNIT Coercion Baseline
• Kozminski & Pre-TVPA (2000)
• 1581 & 1584: peonage & involuntary servitude
• Limited to physical or legal coercion
• Brennan concurrence: “Certain psychological, economic, and social means of coercion can be just as effective as physical or legal means, particularly where the victims are especially vulnerable.”
• TVPA (2000) & Human Trafficking
• Established 1589 & 1591 to address nonviolent coercion
• Recognition of “increasingly subtle methods of traffickers”
HUMAN TRAFFICKING PROSECUTION UNIT Coercion Baseline
• Physical coercion / legal coercion / nonviolent coercion
• Statutorily defined in § 1591(e)(2) as three means: 1. Serious harm; physical restraint 2. Abuse of law; legal process 3. Scheme, plan, or pattern intended to coerce
• Same three means set forth in § 1589(a)
• Any harm that’s sufficient to compel
• Directed towards any person
• Other coercive means not labeled “coercion” 1. Force 2. Fraud
• Think of your cases in terms of coercion puzzle
HUMAN TRAFFICKING PROSECUTION UNIT What Does Coercion Look Like?
HUMAN TRAFFICKING PROSECUTION UNIT Some of the Challenges
1. Fact intensive analysis
2. Individualized/gradual/graduated process Easy Answer 3. Conduct occurs over period of time
4. “Good” and “bad” facts involved
5. Relies heavily on testimonial evidence
6. Educating, advocating & expectations
HUMAN TRAFFICKING PROSECUTION UNIT Coercion Framework
1. Focus on trafficker’s conduct • “Scheme, plan, pattern”
2. Focus on victim’s perspective • “Serious harm”
Sufficient Victim Scheme Circumstances Harm + + + = to Coerce?
HUMAN TRAFFICKING PROSECUTION UNIT Legal Framework: Part One
FOCUS ON TRAFFICKER’S CONDUCT
HUMAN TRAFFICKING PROSECUTION UNIT Legal Framework: Part One
Coercive Scheme
“Scheme, plan, or pattern intended to cause the victim to believe that failure to perform an act would result in serious harm”
1. Totality of trafficker’s conduct, not a specific means 2. Coercive effect of that conduct on victim 3. Trafficker’s intent to coerce victim’s labor/commercial sex
HUMAN TRAFFICKING PROSECUTION UNIT Sum Of The Parts
Coercive Scheme
Serious Abuse of Nonviolent Force Fraud Harm Law Conduct
HUMAN TRAFFICKING PROSECUTION UNIT Scheme (what did the trafficker do)
Scheme (totality of conduct) Threats Physical Abuse Sexual Assault Isolation Atmosphere of and/or Harassment Violence
Rules False Documents Verbal Abuse and Poor Working Debt Manipulation or Illegal Entry Insults Conditions
Denial of Food, No Key to House Denial of Medical Use of Alcohol, Withholding of Pay Water, Sleep, Care Drugs, Other Shelter Intoxicants Punishment No Days Off or False Promises Restricted Use of False Accusations by Sick Days Phone / Computer Subject
Branding/Tattoos Document and Forced Abortions Public Emotional Passport Embarrassment Manipulation Confiscation
Demeaning Not Allowed to Excessive or Monitoring and Subject Brags of Behavior / Sex Handle Money Unnecessary Surveillance Power & Chores Connections
HUMAN TRAFFICKING PROSECUTION UNIT Legal Framework: Part Two
FOCUS ON VICTIM’S PERSPECTIVE
HUMAN TRAFFICKING PROSECUTION UNIT Legal Framework: Part Two
Serious Harm
“Any harm that’s sufficiently serious, under all surrounding circumstances, to compel a reasonable person with the same background and in the same circumstances”
1. Physical, legal, and nonviolent coercion (any harm) 2. Coercive effect of conduct from victim’s perspective 3. Take into account effect of situational circumstances
HUMAN TRAFFICKING PROSECUTION UNIT Victim Background, Experiences, Vulnerabilities
HUMAN TRAFFICKING PROSECUTION UNIT Just a Lake?
HUMAN TRAFFICKING PROSECUTION UNIT Tell Me About The Victim
• “Reasonable person of the same background and in the same circumstances.”
• Vulnerabilities are relevant in determining “whether coercion could plausibly have compelled the victim.”
• Evidence of victim’s “troubled past” established how she was “more susceptible” to the defendant’s “coercive methods.”
HUMAN TRAFFICKING PROSECUTION UNIT But The Victim Has Issues . . .
• Yes, Exactly • “Weakness is the best trait a person can find in someone they want to control. If you can’t find a weakness, you have to create one.”
• Targeted & Exploited “Issues” • Pre-existing drug addictions • Criminal & arrest history • Undocumented status & complicity in smuggling • Complicated feelings & emotions
• Prior/Subsequent Involvement in Prostitution • Doesn’t mean this trafficker didn’t coerce victim to do the same • Consent on one occasion doesn’t mean consent on all occasions • Standard isn’t to cause a person to “become a prostitute” • Irrelevant whether victim otherwise would have engaged in prostitution • Rule 412 applicability and considerations
HUMAN TRAFFICKING PROSECUTION UNIT Victim (why this person could be coerced)
Background & Vulnerabilities (“a reasonable person of the same background”)
Age Immigration Status “Station in Life” Socioeconomic Status
Physical or Mental Life Experience Sexual Experience Debt Condition
Education Level Religion Cultural Background Family Hardships
English Language Ability Drug or Alcohol History of Sexual Abuse Witness or Victim of Addiction Traumatic Event
Power Imbalances Victim’s Attachment to Family/ Friends Criminal History between Victim and Subject’s Family Resources Subject
HUMAN TRAFFICKING PROSECUTION UNIT Victim’s Experiences & Background
1. Tell me about the victim • Vulnerabilities are “relevant in determining whether coercion . . . could plausibly have compelled the victim.” Kozminski, 487 U.S. at 952. • Evidence of victim’s “troubled past” established how she was “more susceptible” to the defendant’s “coercive methods.” Bell, 761 at 913-14 • Coercion must be considered in light of victim’s “special vulnerabilities.” Alzanki, 54 F.3d at 1005 n.10.
2. What did the trafficker know • Why did the trafficker target this victim? • What vulnerability did the trafficker seek to exploit? • “[T]o rely upon some hidden emotional flaw or weakness unknown to the [trafficker] would raise various problems (e.g., scienter).” Bradley, 390 F.3d at 153.
HUMAN TRAFFICKING PROSECUTION UNIT Circumstances (why victim has no or limited choices)
Circumstances (resulting and contributing factors)
Lack of support Power disparity Gang ties Significant debt Undocumented status system
Restricted Limited Financial Emotional Incentives movement Alternatives Dependence Dependence
Language Barriers Cultural Barriers Physical Exhaustion Diminished Self- Trauma Bonding Worth
Punishment Anxious Self Loathing Physical Mental Exhaustion Attachment Dependency
Hopelessness Dehumanized Loss of Moral Dispensable Financial Duty to Values Others
HUMAN TRAFFICKING PROSECUTION UNIT Harm (what did victim reasonably fear)
Harm (physical, financial, psychological & reputational)
Violence Drug Withdrawal Homelessness Loss of Child Arrest & Deportation Custody
Shame Financial Loss & Bankruptcy Embarrassment Family/Other Learning Hardship Through Release of of Victim’s Illicit Photos/Videos Embarrassing Behavior
Cultural Shunning False Information Physical Harm to Trafficker Leaving Betrayal of Trafficker or Given to Third Parties or not Liking the Others Family/Others Victim Anymore
HUMAN TRAFFICKING PROSECUTION UNIT Putting It All Together
HUMAN TRAFFICKING PROSECUTION UNIT Coercion Framework
Sufficient Victim Scheme Circumstances Harm + + + = to Coerce?
Victim (Background, Vulnerabilities, Weaknesses) • Age, education level, socio-economic status, family & living situation, language ability, religion & culture, immigration status, drug addiction, mental capacity, prior abuse, etc.
Scheme (Totality of Conduct) • Beatings, false promises, verbal & emotional abuse, intimidation, debt manipulation, threat of deportation & child custody, monitoring & surveillance, drugs, ominous comments, confiscation of documents, manipulation & control, work conditions, third part threats, etc.
Circumstances (Resulting & Contributing Factors) • Isolation, lack of support system, power disparity, gang ties, significant debt, undocumented status, restricted movement, limited alternatives, financial & emotional dependence, incentives, language & cultural barriers, exhaustion, diminished self-worth, etc.
Harm (Actual/Perceived Consequences) • Violence, drug withdrawal, homelessness, child custody, arrest & deportation, shame & reputational damage, financial hardship & bankruptcy, psychological harm, etc.
HUMAN TRAFFICKING PROSECUTION UNIT Nonviolent Methods of Coercion
HUMAN TRAFFICKING PROSECUTION UNIT Identifying Nonviolent Coercion
• Let power, control, and greed be your guides
• Instilling sense of helplessness and dependence
• Wearing down ability and will to resist
• Isolating victim from alternatives
• Discouraging victim about alternatives
• Demonstrating trafficker’s power or appearance
HUMAN TRAFFICKING PROSECUTION UNIT Nonviolent Coercive Means • Separation & Isolation • Deprive support & create dependency
• Humiliation & Degradation • Feelings of incompetence & exhaustion
• Trivial Demands • Reinforces power & control
• Malnourishment & Exhaustion • Reduce will to resist
• Distortion of Perceptions • Manipulation of feelings
HUMAN TRAFFICKING PROSECUTION UNIT Yes, There’s an Instruction Manual
• Psychological Manipulation • “Instead of using terror and violence, I use psychological warfare to get what I want which is often more treacherous than physical abuse.”
• Complete Dependency • “The more someone depends on you, the more power you have over them. To master someone completely, they have to depend on you for everything.”
• Separation & Isolation • “Without strong ties to a place, family, or loved ones, people can be easily manipulated and controlled. If you can keep a person off-balance, they’ll be too busy trying to regain stability to try to unbalance you.”
HUMAN TRAFFICKING PROSECUTION UNIT Identification Documents
“Since she ain’t got no ID she couldn’t go nowhere.”
HUMAN TRAFFICKING PROSECUTION UNIT Drug Addiction & Coercion
HUMAN TRAFFICKING PROSECUTION UNIT Drug Addiction & Coercion
Survival Coping Maintaining Severe Harm Sex
Addiction
Coercion
HUMAN TRAFFICKING PROSECUTION UNIT Manipulating Drug Addictions
• Initially supplying them with drugs • Suddenly cut them off and demanded payment • Exploited their addiction, which his previous supply of free drugs had cultivated • Withheld heroin until she went to prostitution sessions • Using her addiction as an incentive to prostitute herself
HUMAN TRAFFICKING PROSECUTION UNIT So What’s The Harm?
• Painful physical and psychological symptoms • seizures, fever, chills, cramping, vomiting, and diarrhea
• Fear of severe withdrawal symptoms meets the definition of serious harm
• Not only severe physical pain
• But the threat of withdrawal sickness constitutes psychological harm that is sufficiently serious.
HUMAN TRAFFICKING PROSECUTION UNIT Immigration & Coercion
HUMAN TRAFFICKING PROSECUTION UNIT Threat of Deportation
• Just innocent warnings about the law? o “The immigration laws do not aim to help employers retain secret employees by threats of deportation.”
• “Abuse or threatened abuse of law or legal process” o Using the law “in any manner or for any purpose for which the law was not designed” to “exert pressure on another person”
• Is the threat of deportation sufficient to coerce? o Defendant told victim she’ll be arrested and deported if she goes outside, talks to others, and stops working for him.
o What’s the harm in the victim just going home?
HUMAN TRAFFICKING PROSECUTION UNIT So What’s The Harm?
• Deportation: not just a free plane ride home
• Think in terms of the financial & social harms & consequences of immigration & deportation
• “Told repeatedly” that “if anyone discovered her she could be arrested, imprisoned, and deported, and she would not be able to send any more money back to her family. Fear of that consequence kept her from leaving.
• Debt manipulation: Defendant paid smuggling debts; executed debt contracts; required victims to work at club to repay debt; added to debts by establishing rules/fines.
HUMAN TRAFFICKING PROSECUTION UNIT Threats, Violence, Fear and Consequences
HUMAN TRAFFICKING PROSECUTION UNIT “Climate of Fear”
• Coercion does not require direct connection between harm & labor/commercial sex
• Intrinsic to proving “scheme, plan, or pattern,” not 404(b) (but file your notice/motion)
• Examples: • Pattern of assaults unrelated to labor/commercial sex • Gang affiliation, reputation & related conduct • Sexual abuse as a means of dominance, power & control • Possessing firearms & other instruments of violence • Acts and threats against others, including animals • Bragging about past acts & ominous comments
HUMAN TRAFFICKING PROSECUTION UNIT Initial Consent Defense
HUMAN TRAFFICKING PROSECUTION UNIT Myth of Consent
• Initial “consent” or “agreement” • What caused the victim to acquiesce/comply? • Victims sometimes have an understanding (to what extent?)
• Always have the right to change your mind • “To perform or continue performing . . .” • Totality of trafficker’s conduct & victim’s perspective • At what point did consent end and coercion begin?
HUMAN TRAFFICKING PROSECUTION UNIT False Promises
• Fraudulent pretenses • Fraud can be coercive when used “to create weakness”
• False promises & enticement • Lure victim into position of vulnerability
• Control; isolation; feelings of helplessness
• Feelings of gratitude; future prospects & promises; love
HUMAN TRAFFICKING PROSECUTION UNIT Opportunity to “Escape”
HUMAN TRAFFICKING PROSECUTION UNIT Opportunity to Escape Defense
“Ladies and gentlemen, in December of 2002, [the defendants] went to Nigeria for a month and left [the victim] in that house in Arlington with two of their young children for a month. And that, the evidence is going to show, is just one of the times when [the victim] was sitting alone in that house with escape available at the turn of a doorknob, and friends of the [defendants] who spoke her native language, that she would be around. The evidence is going to show that over the course of eight years there were just almost hundreds of such opportunities for [the victim], if she had wanted to, to leave.”
United States v. Nnaji (N.D. Tex. 2010)
HUMAN TRAFFICKING PROSECUTION UNIT Opportunity to Escape Defense
“Ladies and gentlemen, what this trial is truly about is choice and free will. The question is what would a person do if they were in a position that some of these women were in? Would they have accepted what happened or would they just pick up the phone, call somebody and leave? What the government is going to have you believe is over lengthy periods of time is that the defendant consistently forced, tried to defraud or threatened these girls. The problem is any one of these women could have left at any time. They had a phone. They had a credit card. They had options to leave. They stayed with him. He became a person they relied on. He was part of the business.”
United States v. Yarbrough (W.D. Tenn. 2012)
HUMAN TRAFFICKING PROSECUTION UNIT Why Didn’t The Victim Leave?
• Defense in every single case
• Answer is your theory and evidence of coercion
• Placed “in such fear or circumstances that victim did not reasonably believe he or should leave.”
• “Even assuming there were moments to escape any involuntary portion of time would suffice to sustain the conviction.”
• Did the victim ultimately leave/confide?
HUMAN TRAFFICKING PROSECUTION UNIT Payment of Wages Defense
HUMAN TRAFFICKING PROSECUTION UNIT Payment of Wages Defense
“Now, on the issue of a lady from Nigeria making $2 a month, that is $24 a year times eight years. Do the math. It is less than $200. And the issue of whether or not she was able to send back money and medicine, you have testimony that she was able to do that. . . . It is substantially more money than they would have been able to provide under the same circumstances if she was living in Nigeria.”
United States v. Nnaji (N.D. Tex. 2010)
HUMAN TRAFFICKING PROSECUTION UNIT Wages, Benefits, and Incentives
• Not determinative • Fact to assess
• “Good” fact or “bad” fact? • Fraudulent representations • Inconsistent reward • Control & dependency • What does the math show?
HUMAN TRAFFICKING PROSECUTION UNIT What Does The Math Show?
Trafficker/victim wired $3,000 to victim’s family in Mexico
• $30,000 in same period to trafficker’s family • Each sex act profits $15
HUMAN TRAFFICKING PROSECUTION UNIT What Does The Math Show?
Trafficker paid victim $200 a month for childcare & domestic labor
• 18+ hours day, 7 days a week = $2,400 per year • Prevailing wage = $46,000 per year
HUMAN TRAFFICKING PROSECUTION UNIT What Does The Math Show?
Trafficker paid for victim’s breast augmentation and purchased designer clothes, bags, and beauty products
• How does trafficker make money? • Who gets to keep what?
HUMAN TRAFFICKING PROSECUTION UNIT Better Off Defense
HUMAN TRAFFICKING PROSECUTION UNIT Immigration Benefit Defense
“Now, when [the victim] met [the defendant], it generated a great deal of enthusiasm and interest for a pretty obvious reason. [The defendant] was from the United States, the destination that almost everybody in the world wants to get to at some point, and especially those who find themselves in somewhat less than stellar financial circumstances. Everybody is trying to get here. And [the victim] was one of those persons. And she knew that if she was able to establish a decent relationship with [the defendant], that could be her ticket. That could be her way into the United States. . . . So why are we all here today? Well, it’s the oldest reason in the world. Desire. At some point, it seemed that [the victim] learned that there were certain benefits to be had by persons who had come into the country illegally.”
United States v. Dann (N.D. Cal. 2010)
HUMAN TRAFFICKING PROSECUTION UNIT Immigration Benefit Bias
• Importance of timing & record-keeping • Use FRE 801(d)(1)(B) to admit non-hearsay prior consistent statements to rebut charges of recent fabrication or improper influence or motive. See United States v. Chang Da Liu, 538 F.3d 1078, 1086 (9th Cir. 2008) (“textbook example of when to apply [FRE] 801(d)(1)(B)”); United States v. O’Connor, 650 F.3d 839, 862-63 (2d Cir. 2011).
HUMAN TRAFFICKING PROSECUTION UNIT Happy Photo Defense
“I'm going to show you some pictures. . . . [L]ook at these pictures. Everybody [is] smiling. . . . Nicole is smiling, Michelle is smiling, Chloe is smiling, Champagne is smiling, Summer is smiling, and guess what? Sierra is smiling. . . . Look at this picture: Natisha, Chloe and Nicole, they [are] all smiling, my daughter [is] in the background and myself. As you [can see], I'm trying to look at the fish in the Hoover Dam. They're smiling, they're not taking pictures because they [are] unhappy and don't want to be there.”
United States v. Norris (N.D. Ga. 2007)
HUMAN TRAFFICKING PROSECUTION UNIT Photographs & “Good” Times
“Just because we are smiling and look happy doesn’t mean that there is not something on the other side”
HUMAN TRAFFICKING PROSECUTION UNIT Happy Photos
• Photos exist in every case – get before cross-examination • Figure out 5Ws of photos to support your theory of the case: • Consistent with imposed rules? • Background story? • Visual timeline? • Generates leads for other subpoenas, like flight, hotel, etc. • What’s on social media?
HUMAN TRAFFICKING PROSECUTION UNIT Articulating the Coercion
• What is this victim’s background/vulnerabilities? • Did the trafficker know them? • What did the trafficker do which affected them? • What were the resulting circumstances? • What was the serious harm for which a reasonable person would fear?
• Were all of these together sufficient to compel a reasonable person in the same situation to provide a labor or service or perform a commercial sex act?
HUMAN TRAFFICKING PROSECUTION UNIT Questions?
202-616-4588