Taking Rape Seriously: Rape as Slavery

New project, published by the Harvard Journal of Law and Gender, and available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1810948.

Introduction excerpted below: 

            In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real.  At this very moment, there are approximately twenty million women in the United States who have been raped during their lifetime,[1] and in one year, over one million women are raped in the United States.[2]  The numbers are staggering, but not unfamiliar.  One in four women are victims[3] of attempted or completed rape in the United States.[4] 

            Despite the devastating and continued prevalence of rape in the United States,[5] estimated state rape conviction rates are as low as two to nine percent of total instances of rape (reported and unreported).[6]  At the state level, a local robber is thirty percent more likely to be convicted than a rapist, and a rape prosecution is twice as likely to be dismissed vis-à-vis a murder prosecution.[7]  Similarly, federal conviction rates for non-rape crimes, such as immigration and narcotics crimes, average as high as ninety-six percent.[8]  In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists[9] questions the commitment and priority of law enforcement, lawmakers, courts, and the public in treating rape as seriously before the law as it is treated in name.  If rape is serious, why don’t we take rape prosecution seriously?

            In the 1980s, rape reform advocates predicted that rape law reforms would create instrumental changes—namely, higher rates of investigation, prosecution, and conviction for rape crimes.[10]  Continuously low conviction rates in the United States, however, indicate that instrumental change has not occurred and that adequate investigation and prosecution of rape is an illusion.[11]  While legal scholars and advocates have raised the issue of impunity for rape and sexual assault crimes in the past,[12] forty years after the emergence of the rape law reform movement in the United States[13] and more than fifteen years after the passage of the Violence Against Women Act (“VAWA”),[14] it is important to reexamine the progress or stagnancy of rape impunity in the United States in order to devise new ways to tackle an old problem.

            This Article identifies and challenges the incongruity between the purportedly accepted gravity of rape crimes and the pervasive continuance of rape impunity in the United States.  This Article argues that rape should be considered a form of slavery prohibited by the Thirteenth Amendment of the Constitution, allowing for the creation of a federal criminal regime to prosecute and prioritize rape in conjunction with state regimes.    

            Part I presents the problem of local or state rape tolerance through the improper legal conceptualization of rape and the inadequate investigation and prosecution of rape crimes.  Discussing the problematic consequences inherent in local rape law, Part I highlights the grading of rape that defines legitimate rape as rape-and or rape-plus and marginalizes “mere” rape as rape-alone or rape-lite, with the latter as less deserving of prosecution than the former.  Part I also reveals that neither rape-and nor rape-alone crimes are adequately investigated or prosecuted. 

            Part II discusses federal rape tolerance by comparing the Supreme Court’s incongruent maximization of congressional authority for the longstanding federal crimes of mail fraud and extortion alongside the Court’s minimization of violence against women as a local problem.  The purposes of this Part are threefold: to explain the current status of rape in U.S. federal law; to compare rape to widely accepted federal crimes; and to reveal federal rape tolerance in the fictional and inconsistent limits of congressional authority advanced by the Court.

            Part III explores the prospect of federal rape law.  Examining the broad intentions and application of the Thirteenth Amendment, Part III challenges Congress’s hesitancy to advance federal anti-rape laws under the Thirteenth Amendment and argues that rape falls within, and is prohibited by, the Thirteenth Amendment.  Rape is slavery.[15]  While the idea that the Thirteenth Amendment might apply to rape will undoubtedly strike some readers as “novel, if not farfetched,”[16] this Article “ask[s] these readers for patience and remind[s] them that, for example, only a generation ago, the ideas that abortion and pornography implicate equality rights for womenideas now widely heldwere seen by many as similarly novel and farfetched.”[17]  Part III also applies and incorporates rape as slavery to existing federal civil rights legislation, concluding with an assessment of the necessity, practical advantages, and challenges involved in the prospective implementation of federal rape law.   

            In order to construct and prosecute rape in a manner consistent with its purported gravity, rape must be effectively prosecuted, prohibited, and abolished under the Thirteenth Amendment.  Continued federal rape tolerance or federal inaction against rape impunity stems from an unwillingness rather than an inability to intervene.  Federal inaction against rape is a constructed choice, not an inevitability. 

[1] Dean G. Kilpatrick, Heidi S. Resnick, Kenneth J. Ruggiero, Lauren M. Conoscenti & Jenna McCauley, Med. Univ. of S.C., Drug-facilitated, Incapacitated, and Forcible Rape: A National Study 2 (2007), available at https://www.ncjrs.gov/pdffiles1/nij/gran….

[2] Id. (citing data from 2006–07).

[3] The terms “victim,” “victim-survivor,” and “survivor” are used interchangeably in this Article.  Where possible, “victim-survivor” is used.  Where victims are not survivors or where criminal law uses the term “victim,” “victim” is employed.

[4] Catharine A. MacKinnon, Sex Equality 753 (2d ed. 2007) (citing, e.g., Mary P. Koss, Lisa A. Goodwin, Angela Browne, Louise F. Fitzgerald, Gwendolyn Puryear Keita & Nancy Felipe Russo, No Safe Haven: Male Violence Against Women at Home, at Work, and in the Community 167–71 (1994) (collecting major studies on rape prevalence completed as of 1994, many showing approximately twenty percent of women raped, some lower, some higher)).

[5] See Women and Violence: Hearing Before the S. Comm. on the Judiciary, 101st Cong. 7, 12 (1990) (statement of Sen. Joseph R. Biden, Chairman, S. Comm on the Judiciary) (describing how a woman is raped every six minutes); Staff of S. Comm. on the Judiciary, 102d Cong., Violence Against Women: A Week in the Life of America 3 (Comm. Print 1992) (reporting that a women has between a one-in-five and one-in-seven chance of being raped); Kilpatrick, et al, supra note 3, at 8 (estimating that one-in-seven U.S. women have been raped at least once during their lifetime); Diana E.H. Russell, Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment 35 (1984) (finding that twenty-four percent of women in this study had experienced a completed rape).

[6] These percentages were calculated using two different reporting rates (forty percent as offered by RAINN and sixteen percent as offered by the Medical University of South Carolina). These reporting rates were then multiplied by the average arrested rate (50.8%), the average prosecution rate (80%), and the average conviction rate (58%), as provided by RAINN.  Kilpatrick, et al., supra note 3, at 2; Rape, Abuse & Incest National Network, Reporting Rates, RAINN, http://www.rainn.org/get-information/sta… (last visited Oct. 11, 2011) [hereinafter RAINN]; see also Staff of S. Comm. on the Judiciary, 103d Cong., The Response to Rape: Detours on the Road to Equal Justice 2 (Comm. Print 1993) [hereinafter Senate Response to Rape] (ninety-eight percent of rape victims never see their attacker caught, tried, and imprisoned).

[7] Senate Response to Rape, supra note 8, at 2.

[8] U.S. Dept. of Justice, Exec. Office for U. S. Attorneys, United States Attorneys’ Annual Statistical Report: Fiscal Year 2009, at Fiscal Year 2009 Statistical Highlights (2009), available at http://www.justice.gov/usao/reading_room….

[9] See Jennifer Temkin & Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude 1, 23 (2008) (discussing the “justice gap,” or the discrepancy between rape convictions and the incidence of rape).  Under the aegis of existing legal approaches, most sexual assaults remain unreported, unprosecuted, and unremedied—legally undistinguished from sex.  MacKinnon, supra note 6, at 742; see also Federal Bureau of Investigation, U.S. Dep’t of Justice, Crime in the United States, 2010 Uniform Crime Reports tbls. 1 & 29 (2011), available at http://www.fbi.gov/about-us/cjis/ucr/cri… (noting that in 2010, 84,767 forcible rapes were reported to authorities and only 20,088 arrests for forcible rape were made); Joan McGregor, Introduction to Philosophical Issues in Rape Law, 11 Law & Phil. 1, 2 (1992) (estimating the likelihood of rape complaints ending in conviction at two to five percent); Lee Madigan & Nancy C. Gamble, The Second Rape: Society’s Continued Betrayal of the Victim 7 (1991); see also RAINN, supra note 8 (reporting that fifteen out of sixteen, or approximately ninety-four percent, of rapists walk free); supra notes 7–8 and accompanying text.

[10] See Cassia Spohn & Julie Horney, Rape Law Reform: A Grassroots Revolution and Its Impact 77 (1992).

[11] See id. at 100–05 (“[L]egal changes did not produce the dramatic results that were anticipated by reformers.  The reforms had no impact in most of the jurisdictions.”).

[12] See Susan Estrich, Real Rape 15–20 (1987).

[13] See Spohn & Horney, supra note 12, at 20.

[14] Violence Against Women Act of 1994 (VAWA), Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codified as amended in scattered sections of 16, 18, and 42 U.S.C.).

[15] Literature discussing rape and Thirteenth Amendment has found rape to be a “badge or incident” of slavery, but has not discussed rape as slavery.  While rape may certainly constitute a “badge or incident” of slavery, this Article focuses on rape as slavery.  See, e.g., Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1144–45 (1998) (discussing rape as a badge or incident of slavery); Lawrence G. Sager, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. Rev. 150, 152–53 (2000).

[16] Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1360 (1992) (discussing potential litigation of child abuse under the Thirteenth Amendment).

[17] Id.; see also Neal Kumar Katyal, Note, Men Who Own Women: A Thirteenth Amendment Critique of Forced Prostitution, 103 Yale L.J. 791, 792 (1993) (“While the idea that forced prostitution is slavery may not be immediately apparent to some readers . . . .”).

Prosecuting Human Trafficking as a Crime Against Humanity under the Rome Statute

New paper, published on Columbia Law School’s Gender and Sexuality Online (GSL Online, 2011), and available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1779263.

Abstract:  Bought and sold, consumed and exploited: human bodies, labor, personhood, and dignity have become the most valuable, reusable, and profitable products in the 2011 world market. In the early twenty-first century, increased awareness and international concern mobilized several legal mechanisms to combat the 32 billion dollar human trafficking industry. In 2002, the Rome Statute of the International Criminal Court entered into force, with specific reference to “trafficking in persons” as a crime against humanity. Despite the developments in human trafficking law, awareness, and policy over the past decade, the International Criminal Court’s (ICC) potential treatment of trafficking as a crime against humanity remains a question mark.

This paper examines the potential of the ICC in prosecuting human trafficking as a crime against humanity, identifying the complex contexts of trafficking, the opposition that ICC prosecution will likel! y face, and approaches that the ICC could take in investigating and prosecuting human trafficking. Highlighting the challenges of defining trafficking, the shadow of armed conflict in the ICC’s developing jurisprudence, and the risk of overlooking the gravity of human trafficking, this paper concludes by urging the ICC to look beyond the situations to which international law has traditionally applied. To realize the promise of the Rome Statute, this paper urges the ICC to incorporate the Palermo Protocol, common purpose, and the exceptional and global effects of the trafficking market in approaching human trafficking as a crime against humanity.

Trafficked: Domestic Violence, Exploitation in Marriage, and the Foreign-Bride Industry

New project, published by the Virginia Journal of International Law, and available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720789.

Introduction excerpted below: 

       Sized at 32 billion dollars,[1] the human-trafficking industry is the second largest and fastest growing criminal industry in the world, exploiting upwards of 12.3 million people at any given time.[2] Direct profits and reported abuses, however, represent only the tip of the iceberg,[3] as these figures do not capture the expansive and destructive economic, political, and societal consequences that permeate national economies, global business, transnational borders, private homes, human relationships, and world culture. Human trafficking, or trafficking in persons, is a form of modern-day slavery.[4] Such trafficking is internationally defined as the recruitment, transport, transfer, harboring, or receipt of persons through means of threat, force, fraud, coercion, deception, payment, or abuses of power or vulnerabilities for the purpose of exploitation.[5]

       Omnipresent, human trafficking takes numerous forms. Persons may be trafficked into sex exploitation, prostitution, forced labor, slavery, practices similar to slavery, forced combat, child begging, servitude, or organ removal.[6] Sex exploitation is the most common form of trafficking, constituting 79 percent of reported cases and often resulting in pornography, bride-enslavement, and the sexual abuse of children, among other types of exploitation.[7] For this reason, it is not surprising that trafficked persons are disproportionately female (79 percent total; 66 percent are women and 13 percent are girls).[8] Forced labor is the second-most common form of trafficking, constituting 18 percent of cases.[9]

        Veiled behind the widely celebrated and sanctified institution of marriage and behind protections of liberty and privacy,[10] one segment of the human-trafficking industry continues to be overlooked, tolerated, and often excluded from criminalization: the trafficking of foreign brides. By analyzing two seemingly disparate foreign-bride markets — the Chinese market for North Korean brides and the United States market for foreign brides — this Note argues that the foreign-bride industry constitutes human trafficking under international law and calls for both immediate legal reforms and the ultimate criminalization and prosecution of foreign-bride trafficking. This Note also examines conceptions of consent, exploitation, and marriage under U.S. and international trafficking laws and how those concepts may be used to hinder or advance efforts to regulate the trafficking of foreign brides.

        Part I of this Note will present the two leading definitions of human trafficking as advanced by the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (commonly known as the “Palermo Protocol”)[11] and the United States’ Trafficking Victims Protection Act (TVPA).[12] Part I will highlight the differences between the “means element” and “purpose(s) of exploitation element” in the Palermo Protocol and the TVPA. Both elements can limit or expand the activities and relationships that constitute trafficking.[13] This Part will argue that the United States’ definition of trafficking is incomplete because it focuses on “severe forms of trafficking,” requiring a level of physical force, fraud, or coercion that fails to recognize the power dynamics and realities of human trafficking.[14] Advocating for the Palermo Protocol’s definition of trafficking, Part I will argue that the international definition is more complete, inclusive, and realistic because it recognizes that traffickers exploit the vulnerabilities of trafficked persons in order to force submission and it focuses on the exploitation of trafficked persons rather than the severity of physical force or coercion exerted by traffickers.

        Part II will examine two seemingly disparate foreign-bride markets: the North Korean bride market in China and the foreign-bride market in the United States. In particular, this Part will discuss the transfer of North Korean refugee women to men in China and the “brokering” of foreign brides via “international marriage brokers (IMBs)” or “international marriage broker-traffickers (IMB-Ts)” (used interchangeably)[15] to men in the United States. Part II will also discuss the endemic exploitation, violence, and abuse that foreign brides within these marriages often experience.            

        Part III will highlight the striking commonalities across the foreign-bride industry, namely, similarities in the abuse of power and vulnerability as the means of trafficking and similarities in violence and exploitation in marriage as the purposes of foreign-bride trafficking. This Part will advance four arguments. First, the transfer of North Korean refugee women as brides to men in China and the brokering of foreign women as brides to men in the United States through IMB-Ts constitute trafficking under the Palermo Protocol. Second, foreign-bride enslavement, conducted under the guise of marriage, often results in domestic violence, abuse, and exploitation in marriage, and it is facilitated by the abuse of power differentials that exist between foreign brides and receiving grooms and between sending and receiving countries.[16] Thus, Part III will argue that the foreign-bride industry constitutes trafficking under international law and should therefore be criminalized and prosecuted. To believe otherwise is to buy into the constructed spectrum of force and consent discussed in this Part, to believe that force, fraud, or coercion are necessary to establish the means of trafficking, and to trivialize the exploitation in marriage that foreign brides experience. Third, U.S. law follows a longstanding practice of prioritizing physical force as the keystone to crimes of violence against women, creating a spectrum of force and consent that protects the virility of the bride trafficking industry by ignoring the power differentials that drive bride trafficking. Fourth, the institution of marriage creates a legal fiction of consent and obscures exploitation in trafficked marriages, marginalizing bride trafficking as a legally non-cognizable harm.

       Finally, this Note will conclude by discussing potential interim and supplementary measures that may be taken in advance of achieving the ultimate goal of prohibiting and criminalizing the foreign-bride industry as trafficking under U.S. and international law.

[1]. U.N. Office on Drugs and Crime, UNODC Launches Global Initiative to Fight Human Trafficking, http://tinyurl.com/25d857z (last visited Sept. 23, 2010) [hereinafter UN GIFT].

[2]. The size of the human trafficking industry is tied with that of the nuclear arms market and is second only to the narcotics trade. U.S. Dep’t of Health & Human Servs., Admin. for Children & Families, About Human Traffickinghttp://tinyurl.com/yg4pohc (last visited Sept. 23, 2010).

The International Labor Organization (ILO) “estimates that there are at least 12.3 million adults and children in forced labor, bonded labor, and commercial sexual servitude at any given time.” U.S. Dep’t of State, Trafficking in Persons Report 8 (2009) [hereinafter TIP Report 2009]. Moreover, given the global economic crisis, rates of trafficking are likely to further escalate with the demand for cheap labor and human capital. Id. at 37 (placing states in tiers based on their efforts toward implementing the Trafficking Victims Protection Act’s definition of trafficking).

[3]. UN GIFT, supra note 1.

[4]. U.N. Office on Drugs and Crime, Global Report on Trafficking in Persons 6 (2009), available at http://tinyurl.com/lq25x9 [hereinafter UNODC Report].

[5]. United Nations Convention Against Transnational Organized Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children art. 3, opened for signature Dec. 15, 2000, T.I.A.S. No. 13127, 2225 U.N.T.S. 209 (entered into force Sept. 29, 2003) [hereinafter Palermo Protocol].

[6]. Palermo Protocol, supra note 5, art. 3; UNODC Report, supra note 4, at 6.

[7]. UNODC Report, supra note 4, at 6.

[8]. Id. at 11.

[9]. Id. at 6.

[10]. See infra notes 231–33 and accompanying text (discussing protections of liberty, privacy, and the right to marry, including consent to marriage).

[11]. Palermo Protocol, supra note 5.

[12]. Trafficking Victims Protection Act, 22 U.S.C. §§ 7101–12 (2006).

[13]. Palermo Protocol, supra note 5, art. 3; 22 U.S.C. § 7101(b)(2)–(8).

[14]. See infra notes 28–40 and accompanying text (discussing the realities of trafficking that the Palermo Protocol addresses).

[15]. The terms “international marriage broker-trafficker,” “IMB-T,” “enslaved marriage,” “bride-slave,” and “enslaving husband” are not commonly used. They are used in this Note for four purposes: first, to highlight the effect of language on perceptions of certain industries and institutions, thus combating normalization produced by the term “international marriage broker” and the positive connotations of “marriage”; second, to emphasize the exploitative purposes of such marriages, which constitute a modern form of slavery; third, to emphasize that trafficking itself constitutes modern form of slavery, thus combating the trivialization of the word and practice of “trafficking”; and fourth, to identify the roles of trafficking in the facilitation of foreign marriages. These terms are not intended to further objectify or dehumanize persons trafficked into exploitative marriages. They are employed to emphasize the severity of such forms of trafficking.

International marriage brokers (IMBs) or IMB-traffickers (IMB-Ts) (used interchangeably) are agencies that profit from connecting U.S. men to foreign women for the purposes of marriage. IMB-Ts may receive payment for dating or social referral services, including managing communications between parties and filing immigration documents. See infra Part II.B.1 (explaining how IMB-Ts operate). IMB-Ts may not be able to receive payment upon marriage, as these contracts may be found void and unenforceable as a matter of public policy. SeeUreneck v. Cui, 798 N.E.2d 305, 306 (Mass. App. Ct. 2003) (finding an international matchmaking services agreement arranged by marriage broker unenforceable as a matter of public policy because such contracts have been “condemned and declared unenforceable in [U.S.] jurisprudence without exception or equivocation”).

[16]. Under the Palermo Protocol, the “abuse of power or of a position of vulnerability” is recognized as a means of trafficking. Palermo Protocol, supra note 5, art. 3.