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«MICHIGAN’S FIRST HUMAN TRAFFICKING COURT ELIZABETH CAMPBELL* Federal law identifies adults compelled to engage in commercial sexual activity as ...»

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SAINT LOUIS UNIVERSITY SCHOOL OF LAW

MICHIGAN’S FIRST HUMAN TRAFFICKING COURT

ELIZABETH CAMPBELL*

Federal law identifies adults compelled to engage in commercial sexual

activity as victims of a severe form of trafficking,1 commonly known as human

trafficking.2 The media, politicians, government agencies, and non-profits increasingly focus on human trafficking as a gross injustice. Nevertheless, individuals compelled to engage in commercial sex acts are arrested, charged, and convicted every day in local courts.3 Most of these individuals will only be * Clinical Assistant Professor of Law, University of Michigan Law School. I am grateful to my colleagues, Bridgette Carr and Suellyn Scarnecchia, for their guidance regarding the Court, and their assistance in writing this article. I want to thank Julia Toce for her assistance. My thanks to the partners in the Washtenaw County Human Trafficking Court—the Honorable Judge Charles Pope, the Honorable Magistrate Nelson, and Toni Malone.

1. 22 U.S.C. § 7102(13)–(14) (2012). Throughout this article, I rely on federal definitions as established in the Trafficking Victims Protection Act (TVPA). The TVPA identifies a “victim of trafficking” and a “victim of a severe form of trafficking.” Id. A victim of a severe form of trafficking has been subjected to “severe forms of trafficking in persons,” which is “(A) 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 attained 18 years of age; or (B) 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.” Id. § 7102(8). Victims of trafficking include those who have been subjected to a severe form of trafficking in persons, and those who have been subjected to sex trafficking, which is “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.” Id. § 7102(9). By definition, adults compelled to perform commercial sex acts have been subjected to a severe form of trafficking in persons and sex trafficking. Consistent with the TVPA, my use of the term sex trafficking encompasses commercial sex acts with or without the presence of force, fraud, or coercion. See id.

2. Id. § 7102(8). When I use the term “human trafficking,” I am referring to the definition of severe forms of trafficking in persons, which includes both compelled sex acts but also other types of labor trafficking. Labor trafficking is “(B) 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.” Id.

3. See Kate Mogulescu, The Public Defender as Anti-Trafficking Advocate, an Unlikely Role: How Current New York City Arrest and Prosecution Policies Systematically Criminalize Victims of Sex Trafficking, 15 CUNY L. REV. 471, 474 (2012) (“Despite a robust anti-trafficking discourse, these notions have not permeated the spheres of urban policing and local criminal courts. Instead, many victims of sex trafficking are arrested and prosecuted for conduct that they

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98 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 60:97

recognized and treated as prostitutes and criminals. This is because, despite the rhetoric regarding human trafficking, most states continue to criminalize prostitution broadly; and many do not train law enforcement, probation officers, prosecutors, or judges on human trafficking. For these victims, the government, public, and media focus on assisting victims of human trafficking is a myth.

When governments fail to enact legislation that effectively protects victims of human trafficking from criminalization, an alternative path is to use existing legal systems and community resources to improve how we respond to and assist victims. One example of this alternate path is the Washtenaw County Human Trafficking Court (“the Court”), which launched in Michigan in 2014.4 The Court aims to identify adult victims of sex trafficking, divert them from jail, and instead offer them services via probation.5 While courts in Michigan have diversion programs responding to prostitution,6 this is the first time a Michigan court has addressed the issue of commercial sexual activity in the context of sex trafficking.

In this article, I will describe how the Court was developed. Specifically, I will detail the catalyst for the Court, how the initial idea was conceived, the team players, and the goals and structure of the Court. I will close by identifying some of the lessons learned after a year of operation.

I. THE CATALYST

The Human Trafficking Clinic at the University of Michigan Law School (“the Clinic”) represents victims of human trafficking regardless of age, gender, form of victimization, or nationality. The Clinic provides comprehensive legal services to our clients; thus, we practice in a variety of substantive areas, including immigration, family, public benefits, tax, postadjudication criminal relief (expunction), and victim rights.7 As a result of our are compelled to engage in.”). See also HUMAN RIGHTS COMM., UNITED NATIONS, CONCLUDING





OBSERVATIONS ON THE FOURTH PERIODIC REPORT OF THE UNITED STATES OF AMERICA 7

(2014), http://www.refworld.org/docid/5374afcd4.html [http://perma.cc/2VYV-Y3YZ].

4. Stateside Staff, New Court Takes Special Approach to Human Trafficking, MICH. RADIO (Apr. 13, 2015), http://michiganradio.org/post/new-court-takes-special-approach-humantraffick ing#stream/0 [http://perma.cc/TM4X-J8K4].

5. Id.

6. Amber Hunt, A Fresh Start: A Wayne County Rehabilitation Program is Giving Women Caught in a Cycle of Drugs and Prostitution a Way Out, DETROIT FREE PRESS (Mar. 16, 2007), http://www.freep.com/article/20061220/NEWS02/103160002/A-FRESH-START—A-WayneCounty-rehabilitation-program-is-giving-women-caught-in-a-cycle-of-drugs-and-prostitution-away-out [http://perma.cc/PB9X-3KSC].

7. Human Trafficking Clinic, U. OF MICH. L. SCH., http://www.law.umich.edu/clinical/hu mantraffickingclinicalprogram/Pages/humantraffickingclinic.aspx [http://perma.cc/S7R3-9FS2] (last visited Aug. 23, 2015).

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

2015] MICHIGAN’S FIRST HUMAN TRAFFICKING COURT 99 work with victims of human trafficking, we have seen the devastating impact of criminalization of victims.8 Never was this more apparent than with one client in particular—Cassandra.9 At nineteen years of age, Cassandra was a single mother struggling to care for her family. When Ken, a man she met through mutual friends, proposed that they do business with each other, she felt she had no other option. Ken said he would advertise Cassandra on commercial sex websites and transport her to “dates.”10 Ken said they would split the profits. Simultaneously, Cassandra and Ken began a romantic relationship. Ken was charming and kind.

Cassandra kept her share of the profits from the first date; however, after that first date, Ken kept all the money. He told her he would keep the money for both of them in order to take care of their needs.

A few months into their relationship, Ken assaulted Cassandra for the first time. Cassandra was frightened but was also in love with Ken and still striving to care for her family. Ken asked for forgiveness, and Cassandra forgave him, hoping it would not happen again. Unfortunately, throughout their relationship, Ken continued to beat Cassandra and call her names, telling her that he kept the money to pay for “their” needs. Ken would assault and berate Cassandra if she suggested she stop taking dates. He would remind her that law enforcement was likely to arrest her because she was “a prostitute.” He would later apologize and tell her that the commercial sexual activity was necessary for them to build their family. He told her they would one day own a home, have kids, and co-own a small business. This continued for six years.

Just before escaping, Cassandra was arrested and charged with “Transporting person for prostitution,” a felony with a potential sentence of twenty years’ imprisonment.11 After her arrest, Cassandra was immediately detained and not asked any questions about the circumstances surrounding her involvement in commercial sex. She was released on bail, and Ken was there to pick her up. The morning of her pretrial, Ken assaulted her. When she regained consciousness, she grabbed her daughter and immediately went to the local emergency room. She called the court clerk to explain that she would be late due to a visit to the emergency room. She was released from the hospital

8. 22 U.S.C. § 7102(13)–(14) (2012). Throughout the article, I use the term “victim” to refer to those subjected to forms of trafficking. I do this to maintain consistency with the TVPA and not to indicate or assert that all individuals subjected to forms of trafficking identify as victims. Id. Some identify as survivors, some as victims, and others do not want to be identified relative to their experiences with trafficking.

9. All names are pseudonyms, and the client has provided permission for use of her information.

10. Language as an Indicator of Pimp Controlled Sexual Exploitation, ONE BY ONE PROJECT, http://www.onebyoneproject.org/language-as-an-indicator.html [http://perma.cc/XB8XTY7] (last visited Aug. 23, 2015). “Date” is commonly used to refer to the commercial sex act.

11. MICH. COMP. LAWS § 750.459 (2015).

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

100 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 60:97

and immediately went to the pretrial. She met with the public defender and within moments she was offered a plea deal. Fearful of a twenty-year sentence, she pled to a misdemeanor charge of prostitution. This was only hours after being assaulted. She did not return to the apartment she shared with Ken and instead fled to a relative’s home. Within the next few days, she called the National Human Trafficking Resource Center.12 Fearing for her safety, she cut all ties with everyone except her family and filed a personal protection order against Ken.

The Clinic began working with Cassandra after she had pled but before she had been sentenced. One of our top priorities was to minimize the impact of her guilty plea. We were able to persuade the probation and prosecutor’s offices to agree to a “delayed sentence” for Cassandra, which would allow her to avoid jail time if she was compliant with probation for one year.13 This required the Clinic to engage in extensive advocacy and education because the probation officer and prosecutor both assumed that Cassandra was willingly engaging in commercial sex. Neither of them had been trained to recognize human trafficking. As a result, Cassandra was still being treated as a criminal despite the fact that she had been compelled to perform the act for which she was arrested. It was clear that the criminal legal system did not have mechanisms or tools to recognize a victim of a severe form of trafficking.

Unfortunately, this was not the first time that Cassandra had been convicted of a crime because of an act that Ken compelled her to perform. Nearly three years later, the Clinic is still working to clear Cassandra’s record.

What if someone within the criminal legal system had talked to Cassandra about why she was engaging in commercial sex? What if someone had conducted an assessment regarding trauma, exploitation, or domestic violence?

How might things have been different for Cassandra if law enforcement and trial courts had been trained on the realities of commercial sex and exploitation? If Cassandra’s situation had been recognized the first time she was arrested, might she have had the resources and support to escape Ken years earlier?

These were the questions that guided the Clinic in seeking modifications to the existing criminal legal system that would allow for the capacity, skills, and motivation to identify and serve victims of trafficking within the commercial sex context. It was clear that reform of Michigan criminal law as it relates to

12. Mission, NAT’L HUM. TRAFFICKING RESOURCE CTR., http://traffickingresourcecenter.

org/mission [http://perma.cc/QT6M-NQ4H] (last visited Aug. 15, 2015) (“The National Human Trafficking Resource Center (NHTRC) is a national anti-trafficking hotline and resource center serving victims and survivors of human trafficking and the anti-trafficking community in the United States. The toll-free hotline is available to answer calls from anywhere in the country, 24 hours a day, 7 days a week, every day of the year in more than 200 languages.”).

13. MICH. COMP. LAWS § 771.1.

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

2015] MICHIGAN’S FIRST HUMAN TRAFFICKING COURT 101 adults was highly unlikely, given that the political will did not exist to amend Michigan law to be consistent with federal law by defining all commercial sex acts performed by minors as a severe form of trafficking.14 Without legislative reform, a community-based response that worked within existing laws and systems was the next best option. For approximately a year, the Clinic researched other models around the country, which included programs through the public defender’s office and diversion programs through the court system. I conducted site visits in other states, shadowed local public defenders, and interviewed local service providers that were already providing case management, counseling, or addiction treatment to those engaged in commercial sex.15 Throughout this time, I did not propose solutions but rather asked others to comment on the interaction between the criminal legal system and sex trafficking. It was clear that there was no one-size-fits-all solution because so much relied on the resources, strengths, weaknesses, and attitudes of each local system.



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