Jose Espinosa de Dios, was also an unaccompanied minor who was smuggled into the United
States from Mexico and then recruited into MS-13.100
Research has shown that children are increasingly trafficked for criminal activities.101
These children are often classified as perpetrators instead of victims. Arrest frequency data from
the Coalition to Abolish Slavery and Trafficking (CAST) indicates that human trafficking victims
are arrested seven times more frequently for activity directly related to their trafficking than for
non-trafficked activity.102 A recent CAST study indicated that, in a sample of sixty-one victims
from 2005 to 2015, forty-two individuals (69%) had arrest records.103 Of those forty-two victims,
twenty-eight (67%) had at least one arrest directly related to their trafficking.104 Among the twenty-eight victims with at least one directly related arrest, fifteen (54%) of those victims only had arrest
records directly related to their trafficking.105 Most of these victims were minors when their
Children should not be convicted of crimes they were forced to commit while they were
victims of trafficking. Apart from the immediate punishment of jail terms, the convictions remain
on the victims’ records for the rest of their lives. A criminal record can make it much more difficult
for a child to shake off the hardships he or she has experienced and grow into a responsible and
successful member of society. It is unjust to saddle victimized children with a criminal record,
especially when the crime was not of the victim’s volition.
Another suggested statutory amendment to U.S. anti-trafficking laws, based on the United
Kingdom’s 2015 Act, is to expand the definition of labor trafficking. Under current U.S. law,
victims of labor trafficking, including children, must show evidence of fraud, force, or coercion to
prove that they are actual victims.107 There is no such requirement in the United Kingdom; forced
labor is not specifically defined in the 2015 Act. This flexibility makes it significantly easier to
prosecute labor trafficking offenses, especially in cases without demonstrated force or coercion.
The boundaries of forced labor and labor trafficking are not always easy to define. There
are a very small number of egregious cases worldwide where perpetrators have been successfully
prosecuted and have received heavy convictions.108 When subtle forms of coercion are difficult to
prove in court, there has been a tendency in national legislatures and judiciaries to focus on the
objective conditions of exploitation, rather than on the coercive or deceptive means by which
people ended up in those conditions.109
U.S. courts have recognized as far back as 1880 that a child’s age is important when
determining whether he or she is a victim of involuntary servitude. In United States v. Ancarola, a
101 TRAFFICKING FOR FORCED CRIMINAL ACTIVITIES AND BEGGING IN EUROPE: EXPLORATORY STUDY AND GOOD
PRACTICE EXAMPLES 5 (Sept. 2014), http://www.antislavery.org/wp-
102 STEPHANIE RICHARD, VICTIMS OF HUMAN TRAFFICKING SHOULD NOT BE ARRESTED FOR CRIMES THEIR
TRAFFICKERS FORCE THEM TO COMMIT: A STUDY OF DATA FROM THE COALITION TO ABOLISH SLAVERY &
TRAFFICKING (CAST) 1 (Jan. 2016), available at http://castla.org/assets/files/arrest_is_not_the_answer.pdf.
103 Id. at 5.
104 Id. at 6.
107 18 U.S.C. § 1589(a)(1)-(4) (2012).
108 See Roger Plant, Forced Labour, Slavery and Human Trafficking: When Do Definitions Matter?, in ANTI-
TRAFFICKING REVIEW 153, 155 (Rebecca Napier-Moore et al., eds., 2015).