Human trafficking is a crime against a person wherein an individual is exploited for work or sex. There is a long history of human trafficking in the world, and the practice persists today among cases coming before our courts. Unlike state court judicial circuits, human-trafficking circuits cross state lines and follow major interstate highways, depositing victims at various points alongside legitimate businesses such as farms, tourist sites, hotels, construction projects, theme parks, and military bases. These clusters create rural, suburban, and urban pockets of service need, often in languages other than English. Providing access to victims with limited English proficiency (LEP) in human-trafficking cases poses specific considerations for the court manager, but there are ways to increase effective communication.
Do You Speak Human Trafficking?
In recent years, public awareness of human trafficking has grown with publicity surrounding high-profile sex-trafficking cases. However, sex trafficking is believed to be less widespread than labor trafficking in the United States. Labor trafficking hides in plain sight and creates opportunities for those who are trafficked to cross paths with those who are not. While it would seem to make sense for labor-trafficking cases to end up in court more often, society does not always recognize those who are trafficked for work as victims. It is difficult to admit local businesses and neighbors could force people to work for little money and use threats to coerce them to remain in a trafficking situation. So, a customer will not always recognize human trafficking if a nail salon worker avoids eye contact while the boss hovers in the background. And though nannies take neighborhood children to appointments, parks, schools, shops, etc., and will interact within a broader community, trafficked nannies rarely reveal their work conditions, abuse, or lack of pay to a stranger. The general public may also encounter trafficking victims at doctors’ offices, free clinics, and emergency rooms, but again preconceived notions of these types of crime prevent society from identifying victims of human trafficking.
Law enforcement can uncover some sex-trafficking cases through online ads. However, labor trafficking does not overtly advertise, making it more difficult to identify and investigate. From a disposition standpoint, labor-trafficking cases take longer to build and are harder to prosecute. In most places around the country, general labor performed by people who might have the legal ability to work seems less like a legal infraction than commercial sex acts. This does not mean a victim of one type of trafficking is any less forced than the other, but explains how someone who cleans a hotel room may not be reported as a possible victim of human trafficking as quickly as someone exchanging a sex act for money, goods, food, shelter, drugs, etc. The latter victim more frequently comes to a community’s notice as a potential perpetrator of crime. Specifically, where sex trafficking is concerned, the alleged crime adds complexity as some local practices can hinder agencies from providing victim services to someone also charged with a crime. In this way, a victim’s pending prostitution charge can keep them disconnected from services intended to support those who have been trafficked for sex.
Getting to the root of labor trafficking in an area can hinge on enforcement of local fire and housing ordinances, displacing victims who have been living within a business operation. Farm labor in some areas creates labor-trafficking victims who are on the move seasonally. These factors make it challenging to find victims to later appear in court. Many traffickers keep government identification papers as a way of maintaining control over victims. So, positively identifying those who have been trafficked can be a challenge. For the court manager, a case involving someone with little documentation as to their identity, who may have moved or been removed from a housing situation due to human-trafficking allegations, and who may be a victim but is charged with a crime themselves, can make case management a challenge—no matter whether language access is involved or not.
The Limited-English-Proficient (LEP) Human-Trafficking Victim Is Different in Important Ways
Human trafficking is an exercise in victim control and isolation. Those without LEP are guarded to the degree they have few uncontrolled movements and rarely possess enough information to even be aware of their location. The same holds true for those with LEP, but their isolation is greater, because were they able to leave the direct control of the trafficker, they would still be linguistically isolated from largely English-speaking communities in which they reside. This contributes to their continued bondage, as do past life experiences, which can color their expectations of immigrant life and their perception of how the situation may change once captivity ends.
One main tool of oppression in human trafficking involves reinforcing the notion that things will get worse if the victim leaves the current situation. For those without LEP, this develops into sex-trafficking victims feeling loyalty toward a pimp who feeds them daily because the next one might not feed them as regularly or may also beat them. For the victim with LEP, thoughts of leaving the current pimp are complicated by being read within a different cultural context, which may underscore feelings of intense shame related to sex work such that it cannot be spoken of, or notions about a narrow spectrum of acceptability in terms of gender/age roles, and be internalized from the experience of having experienced earlier abuse. These factors resonate with English-speaking trafficking victims as well, but the ability to discard perceived social norms may not as easily exist in the experience of victims with LEP.
The life history of those with LEP complicates their perception of the trouble caused by asking for help. Not having identity documents is challenging for the English-speaking victim of human trafficking. For the LEP person without the ability to regain those documents from another country, it seems insurmountable. Living in a country different from one’s birth country feels foreign to the most well-traveled of us. We use our prior life experiences to develop expectations about what will happen in the new country. When a human-trafficking victim hails from a country with political unrest, inconsistent application of the law, or unprofessional law enforcement, they might become convinced seeking help from authorities in this country could be risky or even add to their life’s turmoil.
If someone without the legal right to work in this country goes unpaid or is provided little beyond a bare subsistence in exchange for labor, that person may accept nonpayment or underpayment to stay within an environment where they lack a work visa. If someone is concerned about having overstayed on an entry visa, victims resist meaningful connections with authority figures by reciting practiced statements, which were carefully coached by the trafficker. If someone has been smuggled into the country for a fee and there is a remaining debt due for passage, a victim feels obligated to work it off as debt bondage or may be afraid what would happen if they did not do so. Human traffickers have chosen victims for whom silence is preferable, and the victim with LEP fits into this picture. This silence extends to social connections. Victims may feel subject to a con job but be unwilling to admit their situation—especially among relations who can be dependent on receiving some share of meager earnings, which are sent back to their home country to improve family finances. So, even friends and family members may be unaware of what has happened.
Victimhood surrounding those with LEP trapped by human trafficking can challenge systems seeking to facilitate justice. In some areas, a human-trafficking case might be the first time a complex case involving language access crosses many service providers’ desktops. While an individual of any native language proficiency may not self-identify as having been trafficked and may make violent denials about it, a service agency being told outright through an interpreter the person with LEP is not a victim may cause the agency to dither about the next step. One’s victimhood becomes murky, and the service provider can feel pressured by vocal denials and the very real expense of providing language-access services. Victims who are themselves charged with crimes may possess concurrent mental-health or drug-dependency challenges. These factors are used by human traffickers to maintain control over victims. As far as criminal charges go, courts have experience providing language access to those with LEP. However, mental-health and substance-abuse providers may not have as lengthy a résumé, and the result can be a victim who has had more effective communication in court but less effective communication in treatment.
One “tell” of having experienced trauma is when a victim smiles while reporting gruesome details of abuse. This coping method helps victims manage to speak about traumatic experiences. For those with LEP, the emotion can be so uncomfortable and unable to be expressed, the mode of trauma so culturally bound, that the victim may giggle at inappropriate times or laugh while telling a graphic and horrifying story. Upon hearing the rendering (including giggles), an English-speaking service provider unused to working with interpreters can become embarrassed themselves or divert the conversation away from emotional territory out of consideration for the interpreter without realizing the interpreter is accurately conveying the speaker’s vocal patterns without regard to the interpreter’s sex, age, sensibilities, etc. These victim traits make it difficult for providers beyond courts to navigate communications with an LEP human-trafficking victim.
Considerations for Providing Access to Human-Trafficking Victims with LEP
- Array your communications to maintain a professional vocal and physical demeanor. It is easy to speak through an interpreter as if we are not seen since the attention of the primary speaker is drawn to interpreters themselves. When a victim smiles broadly while discussing difficult matters, replying in kind and using upbeat facial expressions or vocal inflections is inappropriate. Being pleasant and professional and doing one’s job completely as if language access were not involved is important, because interpreters will not minimize inappropriate jovial delivery or giggles when court staff unwittingly assume the speech and facial patterns of victims who use mirth to manage difficult emotions.
- Boutique requests for court interpreters should generally be disregarded unless carefully considered and ordered by an appointing authority, which is normally a judicial officer. The most qualified interpreters suitable for court work can satisfy most individuals’ linguistic needs in the most impartial way. They will be more adept at ensuring meaningful access than any member of the public, known or unknown to the LEP party. An LEP victim may be controlled to the point of insisting a “friend or family member” should interpret, citing comfort or companion concerns. In the case of sex trafficking, this ad hoc interpreter may be a victim’s pimp or protégé (perhaps the same sex and age as the victim), who has been assigned supervisory functions within a trafficking organization. These individuals work to recruit, train, and retain victims and should never be involved in court-related communications with a victim (to include phone calls, offsite attorney office meetings, and jail visits). A court manager should be wary about interpreter preference requests and select resources that put courts in the best position to communicate completely and confidentially. Generally, ad hoc interpreters are only satisfactory in sharing a brief statement that the court will coordinate language access, asking if the person can wait a few minutes until the court can locate an interpreter.
- When the court is in the position of returning a customer’s identification paperwork, it should normally be physically handed to the person identified in the paperwork. In possible trafficking cases, it is best to assume a victim’s companion may be connected to the case and will not ensure a victim’s best interest. A purported friend of an LEP primary party to a case might possess more English-speaking ability and make a fine payment at a busy clerk’s office window. It would be easy to ask that English-speaking companion to hand identification papers to an LEP customer, who may be standing a bit further away. In this situation, easier is not as effective. If a clerk’s office staff person returns someone’s identification documents and insists on handing them directly to the person whose documents they are, this tilts control toward the victim and there is a chance they may not be given back immediately to someone connected to a human-trafficking concern.
- Initiate conversations about language-access services provided by service providers. Non-court agencies may be unfamiliar with addressing language-access services. Having a discussion now to identify who pays for interpreters at various stages of the case establishes that courts expect language-access services will be provided to those with LEP. An early conversation can avoid the return date discovery that services were not provided (or were provided using a possibly biased ad hoc interpreter) because a non-court entity did not know where to begin. Courts often have contracts for over-the-phone interpreting (OPI) services procured through a public bid process. Some contracts allow other government entities to piggyback on these contracts and purchase OPI services (direct billed to an outside agency) at court-system-negotiated rates. Decide now if this is an option for a non-court government entity before the need arises. Non-court entities can also prepare by evaluating their intake process (which may rely heavily on forms and brochures) so they can decide whether to address language access with sight translation and form fillers (underscoring the need for reputable confidentiality screening), written translations (relying on victim literacy), or some combination thereof. Courts in some areas rely on bilingual staff. In specialized service fields, direct service provision in a language other than English may be uncommon, and non-court entities may have little experience in qualifying staff seeking to perform primary work functions in a language other than English. Collaborating now reduces the gap between access provided at various steps in the process and increases the likelihood that what the court has ordered will happen effectively for someone with LEP.
- Consider suggesting community or medical interpreters for non-court assignments. When front-line responders from law enforcement, a fire marshal’s office, the local housing authority, etc., communicate with possible human-trafficking victims, one goal is to connect people with services. Initial questions between officials and possible victims seek to develop trust and revolve around whether a victim would like food, a shower, clothes, a head scarf, etc. In many situations a medical or community interpreter can be more effective than a court interpreter because initial conversations do not center on court terminology or criminal case processing. The medical interpreter code of ethics allows some advocacy for an LEP party, and the glossary centers on bodily functions and body parts (in both clinical and non-clinical terms). Medical interpreters are best suited to interpret during mental-health or substance-abuse counseling service events in part because these allow some flexibility while the provider develops rapport. The rigid role of court interpreters makes them best suited for court-related work, which requires more faithful redaction within a rigid structure. Most importantly, an interpreter used during an investigation (which initial victim contact may be) should not be used during any resultant court case. Considering medical or community interpreters at an earlier stage in the process not only fits the interpreter to the function, but also conserves valuable in-person court interpreters for court-related services, since a medical interpreter would not later be selected to interpret in court. In languages of lesser diffusion or areas where in-person interpreters are not readily available, this becomes important. When a non-court entity has used the one suitable court interpreter in a rare language for an investigation, the court may have fewer interpreting resources for the case before a judge.
- Interpreting protocols should be maintained. Out of consideration for an LEP party, courts may feel inclined to orchestrate language-access services such that services stray from best practices and could later be called into question. Court interpreters are officers of the court. They should not be encouraged to sit near victims or with the family of the accused. Neither should they be expected to have direct conversations with any party to a case when waiting for the case to be called, after the courtroom at the window, or as an intervening question during the interpretation. If a court tells the interpreter, “Go over there. Sit with the victim and ask them if they’d be more comfortable sitting in another room and get them a glass of water if they’d like one,” the resulting one-on-one interpreter-victim conversation may create a perception of bias in the interpreter’s later work. Court interpreters have ethical standards about physical and emotional space so they can do their best work in an impartial way. Some court staff are so sensitive as to want to appoint an individual interpreter (or team) for one party to a case. This is well-intentioned but can backfire. Best practices have it that interpreters (even for extended cases when they swap out with a partner) work such that only one interpreter is creating language equivalents for court at any one time—using interpreting equipment if needed. This is because interpreters who are certified are tested as having gotten a certain percentage of the message through. If courts let multiple interpreters interpret at the same time (e.g., a defense interpreter and a plaintiff interpreter), it is assumed identical parts of the message will not be conveyed, and everyone will not be relying on the same information. The court risks sending two different messages based on who the interpreter was. The difference can hinge on word choice, such as a sex-trafficking victim’s interpreter using the term “sex worker” while the defense team’s interpreter may use “prostitute.” Or the difference in interpretation can be more significant, changing the register to “whore” or entirely leaving out the term because the interpreter conveyed a different selection of words, which still delivers the bulk of the meaning.
As human trafficking is more defined, it will be better identified—even in areas with far-flung and linguistically diverse communities. Court managers can demonstrate effective leadership in these matters by drawing upon an improved understanding of human trafficking and their existing knowledge about how best to communicate across cultures. These complex cases create case management challenges, but as many victims speak English, human trafficking is not an LEP issue. It is a human issue. Court managers engage with stakeholders to minimize the impact of LEP in these already difficult cases. Court and non-court entities seek to ensure a consistent level of service to, and effective communication with, all patrons and do so by providing language-access services where LEP is involved. Courts may find themselves in a leadership role as they may uniquely possess established practices and experience in providing meaningful access to those with LEP. Frank discussions among stakeholders can enhance communication and establish points of collaboration and clear expectations when communicating with those with LEP involved in labor- and sex-trafficking cases.
This article is written for a criminal justice community. The term victim is used throughout.
ABOUT THE AUTHORS
Melissa McMenemy Is the statewide facilitator in the Virginia Office of the Attorney General and coordinates the Violence Against Women Act Services, Training, Officers, Prosecution (STOP) grant program, the Enhanced Collaborative Model Human Trafficking (ECM) grant program, the Integrated Services for Minor Victims of Human Trafficking grant program, and Virginia’s Address Confidentiality Program for victims of domestic violence, stalking, sexual violence, and human trafficking. Through the STOP grant program, she is responsible for coordinating regional and statewide trainings pertaining to investigating and prosecuting domestic violence, sexual violence, and stalking cases, including a focus on underserved populations and victims of human trafficking. With the Integrated Services grant, McMenemy will be creating a case management program for minor victims of trafficking in the Richmond region. Through the ECM grant, she co-leads the Hampton Roads Human Trafficking Task Force. Additionally, she develops resource materials for victims, law enforcement, and service providers and is responsible for producing the Annual Report on Domestic and Sexual Violence in Virginia each year for presentation to the Virginia General Assembly. She has been trained as a child forensic interviewer and has completed the Office for Victims of Crime National Victim Assistance Academy.
Charlene M. Watkins was a magistrate for five years before becoming the foreign language services coordinator in the Office of the Executive Secretary of the Supreme Court of Virginia. The division she has headed since 2007 ensures meaningful access in court to those with limited English proficiency. She manages the interpreter certification program and a team of spoken language interpreters, training those working around language access on best practices for court interpretation and translation, including the use of advanced technologies. Watkins was formerly an interpreter and Spanish teacher and served as senior policy advisor to the mayor of Miami. She speaks Spanish and Malay, has lived overseas in Singapore and New Zealand, and has traveled to every continent except Antarctica. She is a Certified Court Manager and Certified Court Executive through the National Center for State Courts’ Institute for Court Management.