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Matrimonial Matters: Human trafficking – What family lawyers need to know

Sara Stout Ashcraft

Sara Stout Ashcraft

The continued widely publicized escape of three missing Cleveland women and a child from years’ long captivity by a man along with his subsequent arrest and indictment and the revelation of the abuse these women suffered has focused the public’s attention on such crimes. However, similar crimes often go unnoticed by most people.

These crimes fall under the general label of “human trafficking.” Over the past few years, there have been efforts to make the public more aware of the serious ongoing abuse of many by human traffickers, but the enormity and extent of these crimes is almost incomprehensible.

Human trafficking is a worldwide problem that includes sex trafficking and labor trafficking, and all lawyers should be aware of it. The New York State Judicial Committee on Women in the Courts, First Appellate Division of the New York Supreme Court has issued the Lawyer’s Manual on Human Trafficking, edited by Jill Laurie Goodman and Dorchen A. Leidholdt (2011).

The manual is comprehensive and covers various areas in which lawyers may help combat human trafficking, including representation of victims and prosecuting the traffickers. While most family lawyers probably never consider that issues related to human trafficking could be present in their practice, once we think about it we can see the connection.

One way this can happen is explored in a chapter titled “The Nexus Between Domestic Violence and Trafficking for Commercial Sexual Exploitation.” The titles of the sections in this chapter alone point out how these two crimes are related: “Victims of sex trafficking and domestic violence suffer similar abuse and harm;” “Traffickers and perpetrators of domestic violence use similar tactics of power and control over their victims;” “Victims of sex trafficking often are also victims of domestic violence;” “Victims of sex trafficking and domestic violence are victims of similar crimes;” and “Survivors of sex trafficking, like domestic violence survivors, need comprehensive social and legal services.”

Physical and sexual violence often occur together, in both sex trafficking and domestic violence, and lawyers who have worked in domestic violence cases likely can see the parallels without much difficulty.

In addition to this connection to family law issues, problems of sexually exploited youth can be tied up in juvenile delinquency and PINS cases. In 2008, New York was the first state to enact a law recognizing that young people involved in commercial sexual exploitation are not criminals but victims.

The Safe Harbor for Exploited Youth Act (SAFE) has several provisions, including: A child charged with prostitution in a Family Court delinquency action is presumed to be victim of human trafficking (FCA §311.4(3)), and the Social Services Law now defines a “sexually exploited child” as “any person under the age of 18 who has been subject to sexual exploitation because he or she (a) is the victim of the crime of sex trafficking; (b) engages or agrees or offers to engage in sexual conduct with another person in return for a fee; (c) is a victim of the crime of compelling prostitution; or (d) engages in loitering for the purpose of prostitution. (SSL §447-a1).

The court is usually required to convert the delinquency proceeding to a PINS proceeding. Additionally, specialized services must be provided for the child. The delinquency proceeding can continue only if the child has previously been found to have committed an act of prostitution or refuses to accept the specialized services. Further, SAFE provides for services to sexually exploited children who have not been criminally charged by amending the PINS provisions in both the Family Court Act and the Social Services Law to allow services for a child under 18 “who appears to be a sexually exploited child” if the child consents to the filing of a PINS petition. FCA §712(a).

With the growing recognition by legislators that children involved in human trafficking are often forced into prostitution by those controlling them, several other states have enacted laws similar to New York’s, and Congress has passed a number of laws to fight human trafficking in its various incarnations. The Lawyer’s Manual on Human Trafficking is available free online at www.nycourts.gov/ip/womeninthecourts/publications.shtml, and it is worth printing out for current reading and future reference.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.