JURIST Guest Columnist Pauline Wein, Valparaiso University Law School Class of 2016, discusses why sex workers should be paid even though their work is illegal…Suppose your employer fails to pay you for work you have done. The US Department of Labor states that your employer owes you back pay and that you can file suit for lost wages. Now suppose that you are sold for sex, you are forced to continue the work and your trafficker keeps everything that you have earned. Then he or she is arrested and convicted and is ordered by the court to pay you restitution—compensation for your losses. The law states that mandatory wages are due to you, but the courts may still deny you some or all of the total amount owed—even if you were forced, coerced or induced into the work—because your work is illegal and you are considered a criminal.
In 2000, the US Department of State instituted the Victims of Trafficking and Violence Protection Act, an Act that was meant to combat human trafficking, with special attention given to slavery, the sex trade and involuntary servitude. Section 1593 of the Act, which is entitled “Mandatory Restitution,” states that “the court shall order restitution for any offense” committed against anti-trafficking laws. It further states that victims shall be compensated the full amount of their losses. However, mandatory apparently no longer means mandatory.
The Human Trafficking Pro Bono Legal Center and the law firm of William Cutler Pickering Hale and Dorr LLP recently co-published and released a report concerning criminal restitution obtained in federal prosecutions of human traffickers. The report summarized the results of a review of federal criminal human trafficking indictments brought between 2009 and 2012. The results revealed that courts failed to provide legally required criminal restitution to human trafficking victims in almost two-thirds of the cases. Restitution was only awarded to sex and labor trafficking victims in thirty-six percent of the 186 cases resulting in guilty pleas or guilty verdicts. Though sex trafficking in the US is far more lucrative than other forms of domestic human trafficking, the report also noted that victims of other types of forced labor in the US are more likely to receive higher restitutions than sex trafficking victims.
But how is it possible that the courts can deny adequate compensation to sex trafficking victims—assuming that the courts award restitution at all—when the federal statute mandates compensation for the victims’ losses?
According to the report, it is the federal prosecutors who hold the proverbial ball in their courts. A key determinant of whether and how much the defendants are ordered by the courts to pay restitution to any human trafficking victims depends on how hard the prosecutors fight for monetary compensation—if they fight for it at all. The report also notes that prosecutors failed to request any compensation in nearly half of the trafficking indictments that were brought in the federal criminal courts over the four year span. When compensation was requested, the average court order in sex trafficking cases only awarded to victims about $46,000, which was much lower than the $214,000 obtained in forced labor cases.
But why the vast difference? It is likely that the facts, which surrounded each situation, along with the illegality of the activities involved with the sex trafficking cases in particular, were factors that influenced the prosecutors’ decisions—even when the victims were forced, or induced, in situations concerning child sex trafficking victims. Though restitution is mandatory and would help to deter and punish traffickers and make their victims whole, the disconnect between the illegal work and the statutory restitution requirement makes restitution requests difficult for prosecutors to defend and gives ample grounds upon which defense attorneys may object.
With the exception of eleven rural counties in Nevada, prostitution is illegal in the US. Thus, the defense attorney may say, if a person voluntarily enters into the sex industry, he or she is considered a criminal and the work is illegal. Whatever their losses, whether adults or children, whether they are forced, coerced, threatened or entered the industry willingly, defense attorneys often argue that sex workers should not be compensated for their ill-gotten gains.
But suppose that restitution is ordered by the courts. The defense attorney may return the proverbial ball back to the prosecutor with a couple of important questions in mind: how can the courts measure the value of illegal work and from where would the compensation come?
The physical, emotional and economic damages that human trafficking victims experience can be difficult to measure in terms of monetary awards. The value of sex services is also much greater than what one earns working for minimum wage, but again, the work is illegal. The Victims of Trafficking and Violence Protection Act of 2000 thus provides a formula to calculate the mandatory restitution and counter the effects of being trafficked. The formula is derived from the Fair Labor Standards Act (FLSA) and requires that awards in sex trafficking cases must include whichever is greater: the value of the work under the FLSA or the value to the defendant of the victim’s forced or induced services. Section 1593 requires that the recovery must come from the defendant, so the defense would have to present a compelling reason to successfully argue against the order.
At this point in the debate of whether sex trafficking victims should be awarded back wages, as is guaranteed under the FLSA, the tax payer should not readily fear any out-of-pocket payments in order to make the sex worker whole again. Human trafficking in general has become the second fastest criminal industry—just behind drug trafficking—and according to the restitution report, sex trafficking is much more prevalent and profitable than other forms of trafficking. Because pimps and traffickers often force sex workers to give up their earnings, prosecutors should have a storehouse from which they may have money or property seized [PDF] and applied toward restitution to the victim. Stripping the defendant of their ill-gotten gains would be an effective way to help make the victims whole and give them an opportunity to leave the industry behind.
But why should the average citizen advocate to pay sex workers compensation for their losses? After all, their work is still illegal, and many citizens working in legitimate jobs experience wage violations and are due payment for their services.
Suppose a person is laid off and needs some quick income. Maybe the worker is a single mom who has bills to pay and kids to feed. Or the person is a college graduate or law student looking to pay off his or her loans. Maybe someone’s adult child is offered an alluring work opportunity across the country and neglects to check out all of the details. What if the worker is you, or worse? What if it is your under-aged child who has been kidnapped and enslaved in the sex industry?
You are desperate to get your child back and make the trafficker pay. Maybe you are ready to quit your own work, but your trafficker forces you to keep working, threatens you or your family and demands all of your past and future income. Arresting and convicting the traffickers would free you and your child from the bonds of sexual slavery. The law states that the traffickers must pay, but the courts declare you and your child will not be compensated because the work was illegal. How will your bills get paid? How will you feed your kids? How will your child be made whole again? From where will your back pay come?
Remember, mandatory apparently no longer means mandatory.
Pauline Wein is a second year law student at Valparaiso University Law School in Indiana. She is currently working towards practicing criminal and international law with a focus on human trafficking and modern day slavery. Her current e-mail address is: email@example.com.
Suggested Citation: Pauline Wein, Back Pay in the Sex Industry: Why Sex Workers Deserve Their Pay, JURIST – Student Commentary, Jan. 14, 2015, http://jurist.org/student/2015/01/Pauline-Wein-sex-workers.php.
This article was prepared for publication by Yuxin Jiang, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
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