Page 54 - FMR64_Trafficking and smuggling & Climate crisis and local communities_2020_web

FMR 64
54 Trafficking and smuggling
www.fmreview.org/issue64 June 2020

injury or harm suffered. In some jurisdictions, to note, however, that large sums are not an
courts may also award punitive damages indication that a survivor has actually received
to hold traffickers financially accountable any financial compensation. Traffickers
and deter similar acts. The most important often have hidden or inaccessible assets,
difference between civil and criminal cases, making it very difficult to collect the monies
however, is that justice in the civil context is that are due from the convicted trafficker.
survivor-led. Civil action proceeds within And focusing on monetary judgements
a framework that is more responsive than can belittle the lengthy process of litigation
the criminal prosecution framework to the and the courage exhibited by survivors.
goals and interests of trafficking survivors. This case also shows how civil cases can
The primary goal of trafficking prosecution be part of a trauma-informed, victim-centred
is often to obtain convictions accompanied approach. Betsy Hutson, an attorney who
by lengthy prison terms but the process led the pro bono team representing Ross,
by which prosecutors obtain convictions has described a gradual process of building
may come at a cost to victims. For example, trust. Because of her past trauma, Ross was
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authorities have temporarily detained reticent in initial meetings. Her attorneys
trafficked persons in order to compel them to did not start drafting her complaint until
testify. Survivors may have various reasons six months after meeting her, and her case
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for not cooperating with authorities but even was not filed until a year and a half after the
when they are willing to testify appearing in first meeting. As the case proceeded, Hutson
court may be a stressful and traumatic ordeal. facilitated a trauma-informed approach by
And it is not always the case that retributive asking open-ended questions, creating a
justice outcomes like lengthy prison terms space for empathy and continually checking
align with what survivors understand as in with Ross about her goals and needs. The
‘justice’. Survivors, who may themselves fact that a civil case proceeds only when a
face criminalisation or deportation due to survivor is ready to pursue it is a crucial
involvement in sex work or having irregular feature that is unique to the civil context.
migration status, may not view the criminal And because a trafficking survivor has an
justice system as aligned with their interests. active role in the case, the very process of
For example, survivors may seek substantive seeking civil damages is a recognition of their
outcomes – such as stable housing and autonomy, and can support their evolving
employment – that are not achieved through needs and their journey to recovery.
criminal prosecution because remedial
measures like restitution are often not ordered Civil litigation in an international context
in the criminal context. Finally, because Although the vast majority of civil trafficking
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civil cases often require a lower standard cases have been filed in US courts, there have
of proof, trafficked persons may be more also been cases in a number of other countries
likely to be successful in a civil proceeding. including Australia, Uganda, Belgium and
Israel. In contrast to criminal cases, civil
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A trauma-informed and victim-centred cases mostly involve labour rather than sexual
approach exploitation. Civil litigation is well-suited
Labour trafficking survivor Kendra Ross to labour trafficking cases for a number of
filed a civil case in the US District Court reasons. First, criminal statutes are often
for the District of Kansas, alleging that limited with regards to labour trafficking and
her trafficker, a leader of a nationwide it may therefore be difficult for prosecutors to
cult, forced her to work more than 40,000 bring labour trafficking cases through criminal
uncompensated hours, starting when she prosecution. In the civil context, attorneys
was just 12 years old. Ross was awarded may use a wide variety of existing, alternative
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more than US$8 million in restitution and legal frameworks, such as tort law or labour
damages, the largest single victim judgement law. Second, courts may be unwilling to view
in a US civil trafficking case. It is important certain instances of labour exploitation as