Kentucky Human Trafficking Legal Assistance Program

1. Funded by a grant from the Kentucky Bar Foundation

2. Purpose & principles The Goal is that Attorneys be able to represent trafficking victims in a holistic, trauma-informed manner: • Possess a solid knowledge base about human trafficking and related laws and regulations • Understand the effects of trauma • Communicate with clients in a culturally sensitive manner • Pursue safety planning • Empower victims to make their own informed choices • Learn about what resources exist • Connect with non-legal professionals to support victims’ other needs

3. Seeking Justice Guide • Review of TOC – what is included? • Key features – resources, contact information • Online Availability at www.kasap.org/HT.html

4. What is Human Trafficking?

5. human trafficking in Kentucky • A foster child in a small community is forced by her foster mother toengage in sex acts with an adult man in exchange for furniture and other items of monetary value. • Two children are dressed up in provocative clothing and paraded in front of a movie theater by their parents, who arrange for adult men to pay them in return for sex with their children.

6. human trafficking in Kentucky • A farmworker is forced into labor on a farm in rural Kentucky and monitored at all times. When she escapes and runs almost 10 miles to safety, she is rescued by a fire department and connected to services and safety. • Restaurant workers labor under extreme conditions, working long hours without a day off, until they are rescued by law enforcement and the traffickers are charged criminally.

7. human trafficking Sex Trafficking: Commercial sex act induced by force, fraud or coercion,or in which person performing the act is under age 18. Victims can be found working in massage parlors, brothels, strip clubs, escort services

8. Exception for minor victims Important Exception: When minors (under 18) are exploited in commercial sex, there is noneed to show force, fraud or coercion Therefore, every minor involved in stripping, pornography or prostitution is per se a victim of trafficking under the Federal law (TVPA) and KRS 529.010

9. human trafficking Labor Trafficking: Using force, fraud or coercion to recruit, harbor, transport, obtain or employ a person for labor or services in involuntary servitude, peonage, debt bondage or slavery. NO exception for minors. Victims can be found in domestic situations as nannies or maids, sweatshop factories, janitorial jobs, construction sites, farm work, restaurants, panhandling

10. “force, fraud or coercion” = controlling victims • Force(beatings, assault, physical restraint, rape, kidnapping, forced drugging) • Fraud(lies, deceptive offers of employment or legal immigration status, marriage or a better life), or • Coercion(threats of serious harm to, or physical restraint of, any person; any scheme, plan or pattern intended to cause victims to believe that failure to perform an act would result in restraint against them; or the abuse or threatened abuse of the legal process. “Serious Harm” includes serious psychological, financial, reputational harm

11. Coercion: KentuckY law • Coercion is defined in KRS 529.010 by reference to kidnapping statute in KRS 509.010. • Force, fraud, or coercion = accomplished by physical force, intimidation, or deception, or BY ANY MEANS, including if victim acquiesces, if victim is under age 16, or if victim is substantially incapable of appraising or controlling his/her behavior. = Enough latitude to cover forms of coercion commonly found in state human trafficking cases.

12. Scope in Kentucky 332 victims of human trafficking have been identified since 2008. Of those victims, 78% were identified as victims of sex trafficking. • Children made up 60% of identified victims (Rescue & Restore, Catholic Charities) • DCBS Annual Report on child trafficking: 40 reports in 2013, 96 reports in 2015.

13. Who are victims? • KEY CHARACTERISTIC: VULNERABLE • Young children, teenagers, and adults • Male and Female • U.S. Citizens and Non-citizens • Affluent and Poverty-stricken • Educated and Un- or Under-Educated Children in child welfare/juvenile justice systems, runaway and homeless youth, migrant workers, rural populations, LGBTQ youth, people with limited English proficiency, foreign nationals working in domestic households, people with disabilities, children working in agriculture.

14. Recognizing “red flags” • Not free to come and go as they wish • Poor physical health, including malnutrition, poor dentition, signs of abuse • High security measures at work/living location (cameras, barbed wire) • Owe a large debt they can’t pay off • No control over passport, ID, bank accounts, money • Tattoos or brands • Disoriented to time and place, not sure where they are • Not permitted to speak for themselves (third party insists on being present or answering questions)

15. Myths & misconceptions Myth FACT Trafficking occurs wherever there are vulnerable victims and there is a market for commercial sex & cheap labor. U.S. citizens make up a large number of identified victims. Men and boys are trafficked in both the labor & sex contexts. Smuggling is a crime against a country’s border whereas trafficking is a crime against a person. Trafficking does not require movement or transport of the victim. Trafficking often occurs in a person’s country of origin. Only occurs in big cities or border states. Only happens to foreign nationals. Only women are trafficked. Trafficking = smuggling Find on page 14

16. Myths & misconceptions Myth FACT Victims may be coached by traffickers to avoid detection by law enforcement, social services, and health care practitioners. Victims also find it difficult to self-identify due to fear, shame, lack of trust and continued trauma-bonding to their traffickers. Payment is irrelevant so long as the victim’s acts meet the elements of trafficking. The federal definition of trafficking does not require physical harm or abuse. Restraint can include threats to safety to the victim or their family, abuse of the legal process, and fraud. Victims will quickly self-identify and ask for help. Receipt of payment for sex acts or labor negates the crime. Trafficking requires physical restraint and abuse. Find on page 14

17. Federal & state laws

18. Federal law Focus is on: • Prevention • Prosecution • Protection • Partnerships

19. Federal “Trafficking in persons” • 18 U.S. Code Chapter 77 – Peonage, slavery and trafficking in persons. Trafficking = federal crime • §1584 – Sale into involuntary servitude • §1589 – Forced Labor • §1591 – Sex trafficking of children or by force, fraud or coercion

20. Selected Federal trafficking laws Trafficking Victims Protection Act (TVPA/TVPRA) • Codified at 22 U.S.C. §§7101-7113 • Provides protections to both U.S. citizens and non-citizens • Mandates criminal restitution to victims • Creates a civil cause of action for trafficking victims • Addresses human trafficking abroad

21. Selected Federal trafficking laws Justice for Victims of Trafficking Act of 2015 (PL 114-22) • Establishes funding for the domestic trafficking victims’ fund via a special assessment levied against convicted traffickers • Clarifies that U.S. citizen and LPR victims do not require a certification from HHS to receive federally funded services and benefits • Creates a victim-centered model block grant program for state and local govtstodevelop additional programs • Adds language to TVPA to help reduce demand for sex trafficking • Allows prosecutors to request a wiretapping warrant for trafficking crimes

22. selected federal laws • Mann Act – 18 U.S.C. §§2421-2424 • Criminalizes transport of minors and adults across state & national lines for the purposes of engaging in a federally prohibited sex act. • Fair Labor Standards Act (FLSA) 29 U.S.C. §201 et seq • Governs overtime pay, working conditions, record keeping, minimum wage standards • Title VII of the Civil Rights Act of 1964 42 U.S.C. §2000e-4 • EEOC enforcement for discrimination based on national origin

23. selected federal laws • RICO statutes (18 U.S.C. §§1961-1968) • Alien Tort Statute (28 U.S.C. §1350) • STOP Act (Stop Trafficking on Planes) – part of recent FAA reauthorization in July 2016. Requires airlines to train pilots and other employees to recognize and report human trafficking • Proposed Legislation – Bipartisan support for Visa Transparency Anti-Trafficking Act (introduced in April 2016, modification of Immigration & Nationality Act to allow greater public access to data reporting on nonimmigrant visas)

24. State laws • Kentucky Constitution – Section 25 • 2007 – Passage of initial anti-trafficking laws • 2013 – Human Trafficking Victims Rights Act (HTVRA) Kentucky was designated a “Tier 1” state (highest designation) by the Polaris Project in its last survey of state anti-trafficking laws. Polarisproject.org

25. Human Trafficking Crimes Human Trafficking (KRS 529.010): refers to criminal activity whereby one or more persons are subjected to engaging in: • Forced labor or services; or • Commercial sexual activity through the use of force, fraud, or coercion except that if the trafficked person is under the age of eighteen, the commercial sexual activity need not involved force, fraud, or coercion (emphasis added) Crime of Human Trafficking (KRS 529.100): A person is guilty of human trafficking when the person intentionally subjects one or more persons to human trafficking See Appendix A, p. 66

26. Human trafficking crimes Promotion of Human Trafficking (KRS 529.110) A person is guilty of promoting human trafficking when the person intentionally: • Benefits financially or receives anything of value from knowing participation in human trafficking; or • Recruits, entices, harbors, transports, provides or obtains by any other means, or attempts to recruit, entice, harbor, transport, provide, or obtain by any means, another person knowing that the person will be subject to human trafficking

27. KY: Minor victims • Age is presumed to be under 18 if appears that victim is under 18 KRS 531.330 (KRS 529.180 – Buyer beware) • Perpetrators are subject to sex offender treatment and defined as violent offenders for sex trafficking against minors KRS 532.043 • Court protections for childhood sexual abuse apply to minor victims of sex trafficking KRS 431.350

28. KY Criminal penalties • Human trafficking is a class C felony, unless • Serious physical injury, whereby it is a class B felony • If minor involved, one class higher • Promoting human trafficking is a class D felony, unless • Victim is under 18, whereby it is a class C felony

29. Htvra – Safe harbor “Safe Harbor” = Children are victims who need services, not criminals who should be locked up • Prohibits prosecution of anyone under 18 for prostitution or loitering for prostitution and requires law enforcement to report those cases to CHFS as possible victims of HT. KRS 529.120 • Prohibits charging for or finding guilt for status offenses related to conduct arising out of the HT of the child unless it is later determined child was not a victim of HT. KRS 630.125

30. Htvra – safe harbor • Requires report to Cabinet for Health and Family Services (CHFS) if there is reasonable cause to believe a child is a victim of forced labor or commercial sex. • Adds human trafficking to the mandatory reporting statute for child abuse. • The case is required to be treated as a dependent, neglected, or abused (DNA) case, regardless of whether the perpetrator was a parent, guardian,or someone exercising custodial control or supervision.KRS 620.030 (3).

31. HTVRA – Additional & Amended laws Document Servitude Amends forgery in the second degree to include coercing another person to falsely make, complete, or alter a written instrument in the commission of a human trafficking offense. KRS 516.030 (1). A farm owner makes agricultural workers use false identification to evade immigration enforcement. A pimp makes a child victim use false identification to strip in a club.

32. Htvra – labor trafficking • Provides punitive damages at least three times the amount of wages and overtime due, as well as costs and attorney’s fees, when an employer fails to pay the employee the full amount due, and the court finds the employer has subjected the employee to forced labor or services. KRS 337.385 (3). • Requires the Labor Cabinet to report all suspected incidents of human trafficking to law enforcement; immunity from liability for anyone in the cabinet reporting in good faith. KRS 336.075 Many human trafficking complaints originate when the victim complains to government agencies that the trafficker refused to pay for the victim’s labor.

33. Htvra – asset seizure & forfeiture • Requires asset forfeiture for property used in connection with or acquired as a result of human trafficking or promoting human trafficking. KRS 529. • The terms and processes of the asset forfeiture provisions in the bill mirror the controlled substances forfeiture provisions. KRS Chapter 218A.

34. Htvra – human trafficking victim fund • Additional penalty – Human Trafficking victims’ service fee: $10,000 fee required for persons convicted of human trafficking or promoting human trafficking. KRS 529.130 • Creates a human trafficking victims fund that consists of forfeited assets, the human trafficking victims service fee, grants, contributions, appropriations, and other monies. KRS 529.140.

35. Htvra – training & investigation • Amends statutes pertaining to training for law enforcement, prosecutors, and victims’ advocates to include human trafficking training. KRS 15.334 • Requires KSP to designate a unit to receive and investigate human trafficking complaints and to cooperate and assist other agencies in these investigations. (This would not require KSP to hire additional staff). KRS 16.173

36. Rights of victims under KY law • Right not to be imprisoned or detained for underlying offenses, unless • Detention is least restrictive alternative • Necessary for safety • Poses threat to community safety KRS 431.063 • Communications between trafficking victim and trafficking counselor are privileged KRS 422.295(c) • Victims should not be held culpable for crimes that were committed as a direct result of their victimization (TVPA)

37. Kentucky prosecutions • See Guide, Appendix F, page 111 • Includes federal and state cases

38. Selected Prosecutions Investigation during Farm Machinery Show (17 year old & 2 adult victims)http://www.wlky.com/news/2-louisville-men-arrested-for-human-trafficking/37952746

39. Lexington, KY – Feb. 2013Tobacco Farm (Bourbon Co.)- Pedra Perez Gumeta • Female victim forced to work on tobacco farm and in domestic service while known to be pregnant. • Victim brought to US with false promises of work and good prenatal care. • Victim repeatedly beaten in stomach, threatened, never paid for work, not allowed any access to medical care. Escaped in Feb 2013. • Perez-Gumeta was arrested and charged federally in July 2014 with Illegal Re-entry, Harboring Immigrants for Financial Gain, and Payment of Less than Minimum Wage • Pleaded guilty to charges in Sept. 2014. • Ordered to pay $1311 in restitution to victim. • Sentenced to 18 months in prison.

40. Working with child victims in kentucky

41. Risk factors • Previous contact with Juvenile Justice • Previous contact with Child Welfare • Previously or currently Runaway/Homeless • Parent or caretaker with substance abuse issue • Mental health diagnosis or signs/symptoms • History of physical and/or sexual abuse

42. Indicators SexTrafficking Labor Trafficking Family relationships between children and adults unclear Excluded from family events (church, vacation, parties) Physically exhausted from working long hours Appears to be fearful of the family Many chores – including childcare, eldercare, household cleaning • Tattoos or Brands • Only ID is a fake adult ID • Multiple cell phones • Lack of concern about where to stay • Recent movement to several cities or states • Homeless, but has nice jewelry and clothes • In possession of hotel keys • Refers to being “in the life”

43. This child victim from FL was trafficked in GA and TN, arrested as an adult, sold in KY and finally rescued in NC. “Successful” was the name of her pimp/trafficker.

44. impact of trafficking ON children? “Commercially sexually exploited girls are consistently the victims of violence and degradation. They are beaten and raped by their pimps as well as the adults who are their “johns.” For a large percentage of trafficked girls, this continued exposure to violence results in meeting the diagnostic criteria for PTSD. Like soldiers returning from a war zone, these girls are damaged in mind, body and soul by that experience, and yet they must return to that war zone every night.” Source: Justice Resource Institute

45. Male Victims • 2008 New York study: estimated that as high as 50% of commercially sexually exploited youth in the United States are boys • Why do boys go unidentified or under-identified?

46. HTVRA: A multi-agency approach • Law enforcement • Cabinet for Health and Family Services (CHFS/Cabinet) • Department of Juvenile Justice (DJJ) • Court Designated Workers (CDWs of the AOC) • Use of MDTs – Multidisciplinary teams

47. Htvra: law enforcement response KRS 529.120 • Law enforcement may take a minor who is suspected of being a victim of human trafficking (sex or labor) into protective custody after making a mandatory report to the Cabinet for investigation. KSP responds to a call that a girl is going from cab to cab at a truck stop, with a suspicion that she is involved in commercial sex. The officer responds, briefly interviews the victim, contacts the Cabinet to make a report and takes her to an emergency shelter.

48. HTVRA: the Cabinet response The Cabinet must: • Provide assessment, treatment, housing, and services to the child consistent with status as a victim of HT and treat the child as a DNA child. KRS 620.040 (1) (b). • Proceed with the case in accordance with DNA statutes regardless of whether the perpetrator was a parent, guardian or someone exercising custodial control or supervision. KRS 620.040. • Respond to the report of human trafficking of a child within an hour by treating it as a high-risk case, like a report of sexual abuse

49. HTVRA: Investigations (MDT) • Child human trafficking cases involving commercial sexual activity shall be investigated by multi-disciplinary teams (MDTs). • Human trafficking advocates will now be a part of MDTs. KRS 431.600 (1).

50. HTVRA: The role of court designated workers • CDWs process juvenile complaints for public and status offenses. In 2013 CDWs processed approximately 24,000 complaints. • Permits CDWs to perform an initial human trafficking screening. KRS 605.030(1)(d). • Requires CDWs to refer positive screenings to the Cabinet for investigation as DNA cases. KRS 605.030(1)(d).