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NYSBA proposals to combat human trafficking OK’d

Proposals in a new report by the New York State Bar Association would give more tools to prosecutors to combat human trafficking and provide additional training and services to protect victims, particularly children.

The 60-page report, prepared by the association’s Special Committee on Human Trafficking, was approved Saturday by the House of Delegates, which met at the Bar Center in Albany.

Human trafficking is a $32 billion business, Bernice K. Leber told the delegation, noting half of the victims are children. She said the committee looked at three specific areas: sex, child and labor trafficking.

Human trafficking, often referred to as “modern-day slavery,” involves thousands of people being taken from their families and forced into hard labor or prostitution, as noted in the report. The victims are often threatened and physically abused.

At one hearing before Congress this year, a witness from the Polaris Project confirmed that trafficking is not only on the rise, but many victims enter prostitution in their teens with nowhere to go for safety. Only 1,644 beds were available in the U.S. last year while some 9,000 calls were made by victims to a hotline.

Leber, a partner at the New York City office of Arent Fox LLP who served as NYSBA president in 2008-09, co-chairs the 18-member committee with Sandra D. Rivera, counsel with the Albany office of Manatt, Phelps & Phillips LLP.

On Monday, Leber noted human trafficking is not just a problem in larger cities like New York and Buffalo. She mentioned there have been recent arrests in Henrietta, Syracuse, Amherst, Lancaster and Orchard Park.

She said statistics show that approximately 48 percent of the victims are children and the rest are woman, although labor trafficking affects them, as well as men.

Leber said the first legislative response to human trafficking came from the U.S. Congress in 2000 with the Trafficking Victims Protection Act.  She said it was not until 2007 that New York passed an extensive anti-trafficking act and, in 2008, attempted to address the commercial exploitation of minors.

One thing the committee would like to see added to the 2008 Safe Harbor Act, aimed at providing services for sexually exploited children, is the elimination of criminal prosecution of 16 and 17-year-old victims by raising the age of criminal responsibility to 18.

Younger victims are handled through Family Court, which helps match them to treatment and services. Leber would like to see the same available for 16- and 17-year-old victims.

The Subcommittee on Child Trafficking is also recommending improved training for Family Court professionals and amending mandated reporter requirements under Social Services Law to include human trafficking.

Combatting human trafficking was one of the initiatives of immediate past President Seymour W. James Jr., who recognized the need to review and update New York’s laws on human trafficking to ensure victims were treated fairly and their needs met and to assure more convictions of traffickers.

He established the special committee which first met in December and began looking at existing laws and resources.

At its first meeting, the committee formed the three subcommittees to focus on the different aspects of trafficking.  Each came up with its own set of recommendations to present to the House of Delegates at its Nov. 2 meeting.

“I think one of the most important facets of this report really deals with children and the labor component,” Leber said. “A fundamental and profound change we’d like to see made in these areas is trying to enhance the prosecution by eliminating the requirement of duress and creating an affirmative defense and enhancing the penalties for those who traffic adults.”

The most common forms of labor trafficking involve domestic and farm workers and those in the restaurant and hospitality business, according to the report. There are other cases where workers were trafficked from foreign countries to work in large American factories and had their travel documents taken upon arrival so they could not leave.

New York, as noted in the report, is one of the few states that have passed significant laws to combat human trafficking, but the Subcommittee on Labor Trafficking found they fall short. It recommends establishing a private right of action, available in 29 states and the District of Columbia, to allow victims to recover damages and act as a deterrent to traffickers.

Also recommended is requiring businesses with annual revenues of $100,000 or more to file an oath with the state Department of Labor that they do not engage in trafficking and providing monetary awards and whistleblower immunity to employees or citizens who report suspected trafficking.

Recommendations to combat adult sex trafficking include amending the penal law to make it a Class B violent felony crime; expanding eavesdropping and video surveillance to include third-degree prostitution as a designated offense; expanding the victim referral services; and amending the Vacating Convictions Law by including non-prostitution offenses, eliminating due diligence requirements and developing uniform court rules to protect the identities of trafficking survivors.

James’ initiative is being continued by current President David M. Schraver of Rochester (Nixon Peabody LLP).

Rivera, a governmental relations lawyer, said the report will be presented next month to the Interagency Task Force on Human Trafficking, a part of the state Division of Criminal Justice Services.

The plan is to engage the Legislature to start working on reforms.

”This is a milestone in the history of the state bar,” Leber said. “There’s been a series of very very critical reports issued by the state bar to the executive and judicial branches. We are often viewed as the voice of reason. We pride ourselves in providing a balanced view of the law. It’s a milestone because in one very detailed report, we put down in great detail what all of the existing framework is, where it is, where it should go and how it can be improved to make things better for people and enhance prosecutions and convictions.”