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Conchita Sarnoff

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When The Trafficking Victims Protection Act Fails

Posted: 09/07/11 02:00 PM ET

According to the Department of Health and Human Services' fact sheet on the Trafficking Victims Protection Act (TVPA):

The TVPA ... created new law enforcement tools to strengthen the prosecution and punishment of traffickers, making human trafficking a Federal crime with severe penalties.

For example, if a trafficking crime results in death or if the crime includes kidnapping, an attempted kidnapping, aggravated sexual abuse, attempted aggravated sexual abuse, or an attempt to kill, the trafficker could be sentenced to life in prison.

Traffickers who exploit children (under the age of 14) using force, fraud or coercion, for the purpose of sex trafficking (a commercial sex act) can be imprisoned for life. [As defined by the Trafficking Victims Protection Act of 2000, the term "commercial sex act" means any sex act, on account of which anything of value is given to or received by any person.] If the victim was a child between the age of 14 and 18 and the sex trafficking did not involve force, fraud or coercion, the trafficker could receive up to 20 years in prison.

Moreover, the law addresses the subtle means of coercion used by traffickers to bind their victims in to servitude, including: psychological coercion, trickery, and the seizure of documents, activities which were difficult to prosecute under preexisting involuntary servitude statutes and case law.

According to WPBF, ABC's West Palm Beach affiliate, two women who were victims of a sex crime when they were underage but who settled their civil lawsuit with their attacker, Jeffrey Epstein, "are now suing the federal government, saying their civil rights were violated when prosecutors chose not to try Epstein."

Jane Doe Nos. 1 and 2, the two victims, are suing the government because they weren't consulted while Epstein was negotiating his plea deal with the Department of Justice. Their attorney, Brad Edwards, argues that is a violation of the Crime Victims' Rights Act of 2004.

According to the WPBF report, Epstein's attorney, Roy Black, argued that the written negotiations between Epstein and federal prosecutors shouldn't be made public. He said:

We are here because these are important issues for the client ... And I don't mean to make light of that, but these are important issues both for crime victims, for defendants, for defense lawyers, for prosecutors. These are important things that the courts are going to have to wrestle with. Congress passed statutes that have to be followed, and the court now is going to have to determine what are the contours of that.

If Black's argument is correct, then the most important question for the court remains: why wasn't Epstein prosecuted under the Trafficking Victims Protection Act to begin with?

Brad Edwards, the attorney representing the victims, said he just wants what is right for his clients. "What we really want is for the victims to have fair rights in court," he said. "Everybody's always catering to the defendant, and before the defendant gets a sweetheart deal, maybe we can prevent some of that if the victims were given the rights that the Legislature says they deserve."

As Black points to in his argument, "Congress passed statutes that have to be followed" -- only those that he refers to aren't exactly what should have been argued on behalf of his client. Instead, the TVPA, which should have applied in the first instance, can still be pursued today if new victims come forward in the same jurisdiction (Florida), or a different jurisdiction, such as New York, London, Los Angeles, Santa Fe or the U.S. Virgin Islands, where other victims might not have filed charges.

The Trafficking Victims Protection Act was made into public law (PL 106-386) by Congress in October 2000 to prosecute child sex traffickers. Child sex traffickers are defined as those who commit sexual crimes against minors. The TVPA aims to prosecute sex traffickers while at the same time protecting and helping rehabilitate underage victims who suffered sexual abuse under the TVPA criteria.

April Rieger wrote a compelling report in the Harvard Journal of Law & Gender that clearly explains why the TVPA at times fails to protect victims in the United States. In her report, "Missing the Mark: Why the Trafficking Victims Protection Act Fails to Protect Sex Trafficking Victims in the United States," Rieger quotes Susan W. Tiefenbrun, who explains:

Traffickers successfully lure women into sex work because these women are victims of poverty, of the social practice of marginalizing women, of the failure of some cultures and societies to place a value on traditional women's work, and of the lack of education and employment opportunities for women in developing and transition countries.

In Jeffrey Epstein's case, although he was not convicted of trafficking underage girls, his minor victims living in the United States certainly fit some of the criteria that facilitated his sexual abuse, including lack of a formal education, underprivileged families and lack of employment opportunities, by the sheer fact of their age coupled with stringent U.S. child labor laws.