Balancing the equity of mental health injuries: examining the “trauma exception” for sex trafficking T-VISA applicants

• DOI: https://doi.org/10.1108/IJMHSC-11-2013-0042
• Pages: 159-191
• Date: 09 September 2014
• Published date: 09 September 2014
• Author: Benjamin Thomas Greer,Scott Davidson Dyle
• Subject Matter: Health & social care,Vulnerable groups,Inequalities & diverse/minority groups

Balancing the equity of mental health

injuries: examining the “trauma exception”

for sex trafficking T-VISA applicants

Benjamin Thomas Greer and Scott Davidson Dyle

Benjamin Thomas Greer is

a Special Deputy Attorney

General of Human Trafficking

Special Projects Team,

Legislative Office, Sacramento,

California, USA.

Scott Davidson Dyle is

a member of Special Projects

of California Department of

Justice: Human Trafficking

Special Projects Team,

Sacramento, California, USA.

Abstract

Purpose – The purpose of this paper is to explore and expand the legal discussion on T-Visa requirements

and how it can be better structured to provide support for victims of sex trafficking that suffer from

severe mental health injuries.

Design/methodology/approach – The authors conducted extensive US legal and sociological research

compiling human trafficking mental health report data, primarily conducted in Europe. Based on these

finding, the authors interviewed practitioners in the legal field to verify assumed legal hurdles. Once validated

the author’s attempted to address and design an equitable approach towards mitigating the demonstrated

legal shortfall.

Findings – There is a dearth of US research on mental health trauma survivors of trafficking endure.

This void prevents the legal system from adequately addressing likely outcomes suffered by the victims of

this crime and prevents policy makers from structuring legal requirements equitably. Policy makers often

need concrete examples of problems before reacting. This paper attempts to demonstrate how the current

T-Visa requirements fail to fully recognize mental health injuries of sex trafficking and begins to provide

a pathway to balance.

Originality/value – While the statistical data was previously conducted by outside sources, the legal

analysis is completely original by the author’s and is likely to have a very high value to policy makers

when addressing these issues. This paper also highlights the need for a more robust research program into

human trafficking and mental health injuries within the US so that many of the analogies and assumptions

can be supported.

Keywords Immigration, Human trafficking, I-914, Sex trafficking, T-Visa

Paper type General review

I. Introduction

Human trafficking and sexual exploitation are unspeakable atrocities that devastate the lives of

trafficking victims. Human trafficking is classified and organized into three chief categories: first,

Commercial Sexual Exploitation or CSE[1]; second, Forced Labor[2]; and third, Domestic

Servitude[3]. Federal and State statutory definitions of human trafficking vary; however they

contain common elemental threads. Human trafficking is generally defined as the recruitment,

transportation or harboring of a person against their own will through the use of force, coercion,

fraud or deception to be exploited for sex or labor purposes.Traffickers treat bodies as

renewable resources. Too often victims sustain horrific physical and psychological abuse from

their traffickers and exploitative consumers[4]. The nature of trafficking leaves survivors,

especially those who are sexually trafficked and abused, with enduring mental trauma[5].

Without a nuanced understanding of trafficking and the injuries survivors sustain, this trauma

could prevent the victims from obtaining the services and legal benefits afforded them

under law.

DOI 10.1108/IJMHSC-11-2013-0042 VOL. 10 NO. 3 2014, pp. 159-191, CEmerald Group Publishing Limited, ISSN 1747-9894

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Human trafficking and forced labor infects almost every corner of the globe[6]. According to the

State Department, there are as many as 20.9 million adults and children in forced labor, bonded

labor, and forced prostitution worldwide (see footnote 6). Human trafficking is widely recognized

as the fastest growing[7] and the third most widespread criminal enterprise in the world[8].

Global profits from forced labor are estimated to be in excess of $32 billion annually[9].

This pernicious crime infests 161 countries, either by being classified as a source, transit, or

destination country[10]. Victims have been known to originate from 127 different countries to be

transported and exploited in 137 destination countries[11]. Over the past few years the US

government has increased their awareness of this heinous crime, and enhanced immigration

laws focused on restorative justice for the trafficked victim[12]. However, the piece meal

approach taken by legislatures often leaves disjointed or contradictory statutory language. This

chapter will highlight the evolution of the T-Visa statutory requirements, how the application

process was amended to provide equity for trafficked victims suffering mental trauma and will

expose continuing discrepancies in the statutory construction with proposed amendments.

T-Visa

n 2000, Congress created the T-Visa[13]. This new visa allows a victim of severe forms of human

trafficking to reside, receive services, and work legally in the US for up to four years. Issuance

of a T-Visa requires a victim meet certain requirements[14]. For victims of severe forms of

trafficking, likely manifesting mental trauma and/or Post-traumatic Stress Disorder symptoms,

adhering to the requirement to comply with all reasonable law enforcement requests may prove

to be a daunting or insurmountable request. “Severe forms” of human trafficking have been

defined as: either “sex trafficking[15] in which a commercial sex act[16] is induced by force, fraud

or coercion, or in which the person induced to perform such act has not attained [eighteen]

years of age,”[17] or “the recruitment, harboring, transportation, provision, or obtaining of a

person for labor or services, through the use of force, fraud, or coercion for the purpose

of subjection to involuntary servitude[18], peonage[19], debt bondage[20], or slavery[21].”

Acknowledging this difficultly, the T-Visa process was modified in the Violence Against Women

Act 2005[22]. Congress recognized the untenable position in which many victims may find

themselves and provided an alternative avenue for qualified victims to achieve their rightful

visa[23]. Victims suffering from significant mental trauma can apply for T-Visa protection directly

to the United States Customs and Immigration Service without the previously required law

enforcement certification[24]. While this option is available for all forms of trafficking, as we will

discover, the type and kind of trauma most likely sustainedthrough sexual exploitation provides

the basis for the T-Visa trauma exception. The following chapter will approach the issue of

mental injuries and the strength of the current US immigration policy from a primarily legal

practitioner viewpoint[25].

II. The prevalence of huma n trafficking in the USA

While slavery, forced labor and sexual exploitation is not new a practice, the legal concept and

crime of human trafficking is quite new[26]. The terms forced labor, sexual exploitation, and

human trafficking has varying definitions; however all contain the central component of, forced

labor. Forcedlabor is generally defined as, “all work or service which is exacted from any person

under the menace of any penalty and for which the said person has not offered himself

voluntarily[27].” The worth of one’s labor and independent control of one’s body has long been

understood to be a valuable asset and an individual’s personal property[28]. For the purposes of

this chapter,we will apply two main operable definitions; the United States Federal definition and

the California state definition. California law defines human trafficking as:

[A]ll acts involved in the recruitment, abduction, transport, harboring, transfer, sale or receipt of persons,

within national or across international borders, through force, coercion, fraud or deception, to place

persons in situations of slavery or slavery like conditions, forced labor or services, such as forced

prostitution or sexualservices, domesticservitude,bonded sweatshoplabor,or other debt bondage[29].

Federal law defines trafficking in persons as “sex trafficking in which a commercial sex act is

induced by force, fraud, or coercion, or in which the person induced to perform such act has not

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attained [eighteen] years of age” or “the recruitment, harboring, transportation, provision, or

obtaining of a person for labor or services through the use of force, fraud, or coercion for the

purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery[30].”

While cross-border transit is not a required element, the US Department of State approximates

some 800,000 to 900,000 people are trafficked annually across sovereign borders globally

with approximately 18,000 to 20,000 of these people entering the US[31]. According to the

International Labour Organization, human traffickers are reaping immense profits, estimated to

be approximately $32 billion world-wide annually[32]. Primarily surpassed by the narcotics

trade, trafficking of humans is understood to be the third largest criminal industry in the world

and considered the fastest growing criminal act in the twenty-first century[33]. Facing this

evolution of criminal activity, Congress passed the Trafficking Victims Protection Act of 2000

(TVPA) with the intent to help stem the tide of this crime and provide services to its victims[34]:

The TVPA enhanced three aspects of federal government activity to combat trafficking in person:

it provided for a range of new protections and assistance for victims of trafficking in persons; it

expanded the crimes and enhanced the penalties available to federal investigators and prosecutors

pursuing traffickers; and it expanded United States activities internationally to prevent victims from

being trafficked in the first place[35].

Traffickers lack basic humanity, and with it, the concern for others. They are solely motivated by

profit[36]. They torture, defeat, starve, and fracture the lives of their victims[37]. They intentionally

attack the self-control and identity of their victims in order to strip them of their will and

self-determination[38]. In this void they insert themselves as the sole controlling force – the force

that dictates every aspect of the victims’ lives: traffickers control everything, from when to eat,

when to sleep, with whom to interact, and when to use the bathroom[39]. This complete control

of their victim is crucial to the trafficker’sbusiness model. If the victim were to retain their own free

will, the victim may seek help and the trafficker’s crime would be uncovered[40]. The extent to

which traffickers will go to maintain control knows no bounds[41]. Based on the surplus of

vulnerable people in the world, traffickers are willing to extend their abuse to murder if their

methods of mental and physical abuse are not effective[42].

These rapacious tactics place trafficked victims are at a significantly high risk for mental health

problems, stemming directly from their chronic brutalization[43]. The California Attorney

General’s Office has recognized victims often suffer from physical and developmental

disabilities, PTSD, depression, suicidal tendencies, and other dissociative disorders[44].

Because this depth of victimization carries with it lasting significant physical and emotional

symptoms, updating the T-Visa application and qualification process to account for these

symptoms must be considered an integral part of a strategic and a holistic approach to fighting

sexual exploitation and human trafficking.

Continually updating immigration laws to ensure equity for the victims suffering from mental

healthinjuries is crucial as governmentsstruggle with theconcurrent challengesof conceptualizing

what human trafficking is and modernizing criminal statues to adequately combat its practice.

III. T-Visa – form I-914

In 2000, Congress passed the TAPA thereby creating the T-Visa[45]. Congress began to

recognize the inequity of deporting trafficked victims, treating them as criminals[46]. Placing the

victim in this untenable position inhibits them from assisting law enforcement and reporting

crime, thus retarding the discovery and prosecution of human trafficking[47]. Created to provide

immigration safeguards for trafficked victims, the T-Visa provides an avenue for victims to remain

in the USA[48]. It was designed with the understanding that a victim’s undocumented presence

in the USA was not volitional, was a result of their victimization, and conditional upon their

cooperation with law enforcement to investigate and prosecute trafficking[49].

A. I-914 Application process

The I-914 application, which trafficking victims must complete to obtain a T-Visa is a nine-page

form, divided into eight parts; A-H[50]. Part C has particular importance for victims suffering

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