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Harvard Law School > Berkman Center > Open Education >
Violence Against Women on the Internet
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| Given the wide range of trafficking
cases that occur in the US, debates on the definition often focus
on whether or not the women were witting or unwitting about the type
of work. It makes no legal difference, however, whether or not the
victim initially knew or agreed to perform the labor voluntarily.
A person cannot consent to enslavement or forced labor of any kind.
The Thirteenth Amendment outlawing slavery prohibits an individual
from selling himself or herself into bondage, and Western legal tradition
prohibits contracts consenting in advance to assaults and other criminal
wrongs. If a person desires to stop performing the work, and then
is forced to remain and perform the job against his or her will, then
the work is involuntary regardless of the victim's purported consent.
The use of force-be it physical or psychological-to hold someone against his or her will has also been debated when discussing the definition. Some defense attorneys for the traffickers have sought to argue that if there was no physical confinement of the victims, there was no captivity. US law, nonetheless, recognizes that more subtle forms of restraint can be used to detain someone, and the victims' vulnerabilities are relevant. If defendants use force, threats of force, or threats of legal coercion to create a "climate of fear" to compel service, they are guilty of involuntary servitude. Additionally, the definition of force or coercion in the draft version of the International Protocol to Prevent, Suppress, and Punish Trafficking in Persons especially Women and Children encompasses both physical and psychological coercion. Force or coercion includes obtaining or maintaining through act
or threat the labor, services, or other activities of a person by
physical, legal, psychological or mental coercion, or abuse of authority.
Force or coercion also entails a person's reasonable belief that
he has no viable alternative but to perform the work, service or
activity, whether that is objectively correct or not. The definition
also includes an extortionate extension of credit and debt bondage;
threats of force, harm or violence to the victim or the victim's
family; or unlawful restriction of The full report is available online at http://www.cia.gov/csi/monograph/women/trafficking.pdf.
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