Expanding Criminal Restitution and the Potential Deterrence of Civil Filings by Victims of Sex Trafficking Under the TVPRA
Written by Adam Sims, second year law student at the Ohio State University: Moritz College of Law
The Trafficking Victims Protection Reauthorization Act [TVPRA] seeks to compensate victims of sex trafficking by both criminal and civil means, neither of which should be expanded or amended at the expense of the other.
First, the TVPRA requires that a court grant mandatory restitution to victims of human trafficking, for the “full amount of the victim’s losses,” plus the greater of the value of the victim’s services or minimum wage under the Fair Labor Standards Act when a defendant is convicted of a crime of sex or labor trafficking. 18 U.S.C. § 1593.
Second, the TVPRA includes a civil cause of action for victims of trafficking against traffickers to seek compensation for their injuries, including emotional damages, punitive damages, and attorney’s fees. 18 U.S.C. § 1595. Even though these claims are based on violations of criminal trafficking statutes, a victim may file a civil suit even if criminal charges are not brought against the defendant. Furthermore, victims may file a suit against anyone who “knowingly benefits” from trafficking, even if that knowledge is constructive.
Section 1595 civil actions benefit trafficking victims in five main ways. First, Section 1595 gives a trafficking victim control over the legal process, permitting the victim to obtain compensation when a prosecutor declines to charge the trafficker. Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action: Civil Rights for Trafficked Persons in the United States, 16 Hastings Women’s L.J. 1, 3, 17 (2004). Second, procedural differences in civil litigation such as the lower burden of proof and more permissive evidentiary rules typically benefit the victim. Id. Third, trafficking victims are given the important opportunity to advance their substantive civil rights in a public forum. Id. at 16.
Fourth, a civil action can provide more appropriate compensation than restitution by including non-economic damages and, when applicable, third-party liability. Id. at 16–17. This is particularly important in sex trafficking cases, when victims typically cannot recover fees for illegal activities such as prostitution. Theodore R. Sangalis, Elusive Empowerment: Compensating the Sex Trafficked Person Under the Trafficking Victims Protection Act, 80 Fordham L. Rev. 403, 426 (2011).
Finally, civil awards complement criminal restitution by providing additional deterrence of trafficking in the form of “financial disincentives”. Economic deterrence is key given the low number of convictions of traffickers obtained by criminal prosecutions in the years since the TVPA’s passage. See Jennifer S. Nam, The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims, 107 Colum. L. Rev. 1655, 1665–66 (2007). When obtaining an order for restitution does not ensure that it is always collected, broad availability of civil remedies should be available to help increase general deterrence of trafficking. Sangalis, at 426.
And yet to this day very few—if any—victims of sex trafficking have brought civil suits against traffickers. See, e.g., Nam, at 1673–76 (concluding that, up until 2007, none of the civil suits filed under 1595 included sex trafficking violations). Given that §1595 codifies “the most straightforward and comprehensive compensation scheme,” this lack of filings is likely not due to victims simply choosing among other alternative causes of action. Sangalis, at 427.
One explanation for the low number of civil filings by sex trafficking victims is the frequent criminal prosecution of sex trafficking cases. Nam, at 1687. Victims have less incentive to pursue civil damages after receiving restitution and may not want to pursue a civil claim after enduring the unpleasant experience of participating in the prosecution. Id. Civil rights attorneys and NGOs with limited funding may prefer to allow federal prosecutors to handle sex trafficking cases given the likelihood that the victim will receive some compensation, albeit sometimes inadequate, in a successful prosecution. Id.
Thus, Congress arguably has two viable methods of rectifying this issue to increase victim compensation: 1) by expanding the restitution awards to include emotional losses, punitive damages, and other types of recoverable damages; and 2) facilitating the filing of civil claims by providing more power and protection to the victim, as well as collaboration with and funding to civil rights attorneys and NGOs. Id. at 1692–94.
Expanding restitution, however, may undermine efforts to increase the filing of civil claims; any expansion of the restitution remedy in criminal prosecutions would likely deter a greater number of victims satisfied with restitution from seeking compensation through civil claims. Id. at 1694.
To some degree, if providing adequate and just compensation to trafficked persons is the ultimate goal, “[w]hether victims receive much needed compensation through a criminal prosecution or a civil action does not matter.” Id. Furthermore, expanding restitution would “ensure that those trafficking victims who have cooperated with a criminal prosecution, but who are unable or unwilling to file a civil action, will be appropriately compensated for their victimization.” Id. Given the fact that at least some sex trafficking victims are likely receiving monetary damages through criminal restitution while none are through civil redress, it may simply be more pragmatic to attempt to compensate victims fully through restitution rather than encouraging them to file civil suits.
Nevertheless, Congress should take caution not to increase the compensation through restitution without a corresponding effort to encourage victims, civil rights attorneys, and NGOs to bring civil suits. Furthermore, if Congress expands restitution to include emotional losses and punitive damages, it should ensure that the victim receiving restitution is given some ability to present her case without being constrained by her role as prosecutorial witness.
As noted above, one of the key advantages of civil actions, in contrast to the prosecutorial approach, is that civil can provide more appropriate compensation to the victim who has suffered exploitation by allowing her to control and direct the legal process. Kim & Hreshchyshyn, at 2–3. The current scheme, which restricts emotional losses and punitive damages to civil cases, grants the victim autonomy in making a case for the non-economic and third-party damages owed her. Unencumbered by the prosecutor’s duty to secure a conviction or decisions not to prosecute certain suspects, the victim has more freedom and input in making her claim. As plaintiff, rather than witness, she has more control in presenting non-economic damages. This autonomy is perhaps most needed in a case in which a prosecutor declines to include a potentially liable third party or knowing beneficiary in a case, but the victim should at least have some ability to frame discussion of what non-economic damages she incurred if restitution is expanded to include them.
Particularly because sex trafficking victims seem to be most susceptible to the effects of trauma that prevent them from being able to support the efforts of the prosecution, expanding restitution to cover other types of damages may result in inadequate or unjust compensation. If the victim is unable or not fully able to aid the prosecution in her voluntary capacity, the best possible case for her compensation is not presented. Whereas the prosecution may focus more on the actions of the victimizer, appropriate compensation owed should be determined in light of the victim.
Two recent proposals to amend the TVPRA call for an award of treble damages in §1595 civil actions and a process to collect and analyze data relating to the issuance and enforcement of mandatory restitution orders under §1593. S. Rep. 1733, 113th Cong. (2013); see also, H.R. 3610, 113th Cong. (2013). Although the proposed legislation also requires that the Attorney General implement a National Strategy for Combating Human Trafficking, that encourages “cooperation, coordination, and mutual support between private sector and other entities and organizations . . .” increasing the potential damage award without requiring an assessment of its impact on the availability and frequency of civil suits could undermine the goals of compensation and deterrence. Id. For instance, the number of victims that feel satisfied with the compensation granted to them in restitution may be deterred from seeking what they or others perceive to be a windfall to the plaintiff.
Accordingly, Congress should be cautious in expanding restitution for victims of sex trafficking without a corresponding emphasis on enabling the victim to bring a civil claim herself. Prosecutors will hopefully succeed in compensating victims of sex trafficking through restitution. At the very least, though, both the criminal and civil remedies are relatively underutilized and in need of further promotion, and any particularly impressive short-term gains made by expanding restitution should be tempered.
Adam is a 2L with interests in criminal and public interest law. He currently works as a law clerk with the Franklin County Public Defender.