Wilberforce Act Highlights The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ­ TheHighlights 1/1/2009 By Brenda Zurita After almost two years of crafting, revising, negotiating and draftingcompromise legislation, both the House and the Senate passed the WilliamWilberforce Trafficking Victims Protection Reauthorization Act of 2008(H.R. 7311) by unanimous consent on December 10, 2008. Following are someof the highlights of this extraordinary bill. International Provisions The U.S. State Department will base Country Tier ratings in theannual Trafficking in Person's (TIP) Report on whether countries havemade "serious and sustained efforts to reduce the demand forcommercial sex" and "serious and sustained efforts to reduce …participation in international sex tourism." The 2009 TIP Report will now cover all countries, not just those with"a significant number" of trafficking cases. In past years,unless the Trafficking in Persons Office could prove the existence of 100or more victims in previous years, a country would not be included in thereport. The time a country remains on the Tier 2 Watch List (used forcountries that are on the brink of falling into the worst category, Tier3) is now limited to two years. The President may make exceptions for upto two additional years if he finds the country is making positiveefforts. This is significant because the Tier 2 Watch List is being usedas a way to protect politically sensitive countries that deserve a poorranking from being placed on Tier 3. The Act gives the TIP Office responsibility for all policy, funding,and programming decisions related to its grantees, effectively placingcontrol of grant programs in the hands of the TIP Office for the firsttime since its inception. The Act enforces the role of the TIP Office in two ways. It nowrequires consultation and coordination by the TIP Office for allanti-trafficking programs conducted by the State Department and the U.S.Agency for International Development (USAID). In addition, all federalagencies must now submit all grants for review by the Senior PolicyOperating Group (SPOG), which the TIP Office Director chairs. Domestic Provisions Under the Act, prosecutors no longer have to prove that a defendantknew the victim was a minor; they just need to show that a defendant hada "reasonable opportunity to observe" the victim. In addition,the standard of proof is being lowered to "reckless disregard"for traffickers or defendants who come into contact with victims forcedto engage in commercial sex acts. This broadens the scope to allowcharges against ancillary participants such as landlords. The Act lowers proof requirements for those who harbor illegal aliensfor prostitution purposes. If the trafficker knows or recklesslydisregards the victim's illegal immigration status, the trafficker can beconvicted - even without proving force, fraud or coercion. The Act lowers the proof standard in sex trafficking cases involvingforce, fraud and coercion from "knowing" to "recklessdisregard," thereby removing the means of participants in thecommercial sex industry to escape conviction by ignoring indicia of abuseof trafficking victims. The U.S. Code definition of "serious harm" no longerequates commercial sex acts with "labor or services." Theprevious definition made the relationship between victim and pimp ortrafficker a normative one. The Act creates several new crimes, punishments, and liabilities suchas: obstruction for persons interfering with any traffickinginvestigation, criminal liability for persons conspiring to engage inunlawful trafficking, and criminal liability for anyone financiallybenefitting or receiving anything of value from a federal traffickingcrime. It also expands federal jurisdiction to U.S. citizens andpermanent residents who commit, attempt to commit, or conspire to commitfederal slavery, forced labor, or sex trafficking crimes abroad. The Act and report language acknowledges the plight of the victims inseveral ways: the report language clarifies that preying on a victim'sdrug use or addictions will, in and of itself, form the basis forconvicting traffickers under the Trafficking Victims Protection Act(TVPA); the Act states that proof of force, fraud, and coercion will nolonger be gauged by the "reasonable person" standard butinstead be gauged using the same backgrounds and circumstances as thevictim. The Act also strengthens the financial provisions of the TVPA toenable victims to receive restitution through traffickers' forfeitedassets and enhances the ability of victims to obtain civil damages fromanyone benefitting from engaging in federal peonage,1 slaveryor trafficking in persons crimes. The Act requires the Department of Justice (DOJ) to create a newmodel law that "furthers a comprehensive approach to investigationand prosecution" based in part on D.C. Criminal Code §22-2701 etseq. which makes all acts of pimping and pandering per secrimes, even without proof of force, fraud or coercion or a victim'sminor age. The Act changes the way "prostitution and commercializedvice" arrests are categorized in the Uniform Crime Reports. Thearrests will no longer be lumped together. They must now be broken downto show how many prostitutes, johns and pimps/traffickers were arrested.In addition, a new category of "Human Trafficking" will appearin the serious crimes category. The Department of Justice must report to Congress within 90 days whenthe study of the illegal commercial sex industry will be complete. The Act also requires several new reports and studies from theDepartment of Justice: a report on its activities to enforce Mann Actcrimes from 2001 to 2009; a report on the number of prosecutions,convictions, and multiple defendant cases against minors when the victimsare above the age of 18 when their traffickers are arrested ("lookback crimes"); a report on the use of restitution and forfeitureprovisions in human trafficking cases; a report on its activities toenforce RICO offenses in sex and forced labor trafficking cases; a reporton its use of D.C.'s pimping and pandering laws (federal prosecutors areresponsible for enforcing these per se statutes in the District ofColumbia); subject to fund availability, the Act mandates that DOJconduct an comprehensive study of Internet-based crime in the sexindustry and a comprehensive study of the application of state humantrafficking statutes and the impact of the current Model Law onenforcement of existing State pandering statutes. The Department of Health and Human Services and the DOJ must submit areport to Congress on the extent of any "service gap" betweendomestic and foreign national survivors of trafficking. The Act requires the creation of an integrated database by the HumanSmuggling and Trafficking Center to collect data from all federalagencies to make better estimates of human trafficking statistics. The Act requires the Department of Labor to provide a list of goodsit has reason to believe have been made with forced labor or child labor. The Act authorizes funding for a new program to provide services toU.S. citizen survivors of human trafficking.