Category Archives: Slavery

Breaking the Bonds, Slavery in Modern Day America

Breaking the Bonds, Slavery in Modern Day America

Katherine Reeves

          To most Americans, slavery in the United States is a thing of the past. It’s just a part of history and nothing to be concerned about in the Modern Day United States.  This idea could not be farther from the truth.  In fact, four times the amount of people in the United States have been sold into slavery in 2013 then the year before the Civil War.[1] There are many organizations dedicated to bringing about awareness to this worldwide epidemic of human trafficking and to assisting the victims.  Both state and federal legislatures have begun to recognize a need for laws to help regulate this activity within the United States, but there is still work to be done.

The most common form of human trafficking exists in the form of sex trade.  Up to 75% of people entered into slavery in 2013 become part of sex trafficking.[2] It occurs in forms of prostitution, sexual entertainment, sexual servitude, exotic dancing, pornography, and servile marriage.[3] It’s a big business.  Sex trafficking is estimated to be second only to the drug trade in illegal business revenue in the United States.[4] In our own back yard, Interstate 20 (specifically from Birmingham to Atlanta) is known to have the highest volume of sex trafficking in the United States.[5] This interstate has earned the nickname of “the sex trafficking Superhighway.”[6]

What is being done about this terrible epidemic? In 2000, The United Nations recognized the need for action and passed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol).[7]  The Protocol identifies human trafficking as an international epidemic and encourages states to enact anti-trafficking legislation to begin dealing with the problem.[8] The United States signed the Protocol and, shortly thereafter, enacted federal legislation following the recommendations of the Protocol.

The legislation on Human Trafficking stems from the well-known 13th Amendment of the Constitution.[9] Following the 13th Amendment, Section 152 of the United States Code, led to the Supreme Court defining involuntary servitude to only by physical or legal coercion, not psychological coercion.[10]  After the passing of the Palermo Protocol, Congress expanded the definition to include psychological protocol in the Trafficking Victims Protection Act (TVPA).[11] TVPA also entitled victims to federal aid and authorized the Department of State to deliver reports of human trafficking worldwide.[12] Congress also expanded the legislation in 2003 to allow victims to seek civil remedies against their traffickers.[13] Reauthorization of TVPA in 2005 and 2008 expanded trafficking legislation to include “recruited, enticed, harbored, transported, provided, or obtained.”[14] Also, the reauthorizations established rehabilitation facilities and, most importantly, recognized human trafficking as a domestic crisis and authorized the Attorney General to research the extent of the domestic impact.[15]

The recognition of human trafficking as a domestic issue in the United States leads to a call for more localized action by the states.[16] State legislation to combat human trafficking falls into three trends: the Model Structure, the Individualistic Approach, and the Structuralist Trend.[17]  The Model Structure, following a model produced by the Department of Justice, indicates a single piece of legislation defining sex trafficking and other forms of human trafficking.[18] It is known for focusing on the prosecution of offenders.[19] This type of legislation, however, limits the distinction between sex crimes and other, less serious, offenses and provides difficulty in establishing enhancements for sexual crimes against children over labor crimes.[20] The Individualistic Approach includes legislation focused more on the human-rights side of trafficking.[21] This type of legislation aims to protect individual choices and often decriminalizes acts of the victims that would otherwise be illegal and provides for extensive victim services to assist in victim rehabilitation.[22] The Structuralist Approach adopts blanket protection for women involved in the sex trade and juvenile trafficking of all forms. These forms of legislation are often called “safe-harbor” laws, which “allow courts to forgive trafficking victims for unlawful acts they have committed during the course of their trafficking experience.”[23]

Alabama falls somewhere in the middle of all of these trends. Representatives Jack Williams and Merika Coleman Act of the Alabama Code lays out the State’s approach to human trafficking.[24] Alabama Law defines human trafficking and grants victims the right to seek civil relief against their traffickers, although statutes of limitations do apply.[25] Additionally, Alabama is one of eight states that allow the award of punitive damages.[26] Applying concepts of the Structuralist Approach, Alabama also provides an affirmative defense for all acts of “sexually explicit performance” preformed by victims of human trafficking. [27]

With all the legislation in the United States aimed at ending human trafficking, the main barrier lies in identification.  Identification is difficult for many reasons.  Human trafficking is intentionally a “hidden crime” and many victims travel throughout many jurisdictions.[28] Additionally, victims do not identify themselves or seek help often due to physical or psychological constraints by the trafficker or fear of legal ramifications such as prosecution or deportation for their crimes committed while enslaved.[29]

Many organizations are dedicated to improving identification of human trafficking victims by raising awareness and offering assistance to victims.   One of the largest and most recognized of these organizations is known as the Polaris Project. The Polaris Project offers client services through case management, participates in policy advocacy, provides training and technical assistance, and operates a 24-hour hotline.[30] These organizations all push for government action, but more importantly they stress the importance of cultural change and of actions of individuals.[31]

Our government has made great strides towards the elimination of human trafficking, but individuals must step forward to make a difference. As Americans, we must recognize that human trafficking violates all basic freedoms that we stand for in the United States and we cannot continue to be complacent.  We cannot allow ourselves to be blind to the deprivation of the civil rights and liberties we so openly boast.  It is important to be educated about human trafficking, learn the signs, and to speak up in questionable situations.  Public awareness is the first major step in the mission to combat human trafficking in the United States and we must step up.  We must take action for the victims.

[1] I-20: The Sex-Trafficking Superhighway, The WellHouse, (last visited October 25, 2013)

[2] Id.

[3] T.K. Logan et al., Understanding Human Trafficking in the United States, 10 TRAUMA, VIOLENCE AND ABUSE 9 (2009).

[4] Priscila A. Rocha, Our Backyard Slave Trade: The Result of Ohio’s Failure to Enact Comprehensive State-Level Human-Sex-Trafficking Legislation, 25 J.L. & Health 415, 424 (2012)

[5] I-20: The Sex-Trafficking Superhighway, supra note 1

[6] Id.

[7] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 2 [hereinafter Protocol]

[8] Rocha, supra note 4, at 420

[9] Id at 425

[10] United States v. Kozminski, 487 U.S. 931, 941 (1988).

[11] Rocha, supra note 4, at 426

[12] Id. at 427

[13] Id.

[14] Id. (quoting Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193 § 4(a)(4)(A), § 4(b)(1)(A), and § 5(a)(3) (2003))

[15] Rocha, supra note 4, at 427

[16] Id.

[17] Leslie Klaassen, Breaking the Victimization Cycle: Domestic Minor Trafficking in Kansas, 52 Washburn L.J. 581, 594 (2013)

[18] Id. at 595

[19] Id. at 596

[20] Id. at 595

[21] Id. at 596

[22] Id.

[23] U.S. Dept. of State, Trafficking in Persons Rep. (2013) at 24.

[24] Ala. Code § 13A-6-150 (West 2011)

[25] Ala. Code § 13A-6-157 (West 2011); Ala. Code § 13A-6-158 (West 2011)

[26] Janelle Zabresky, Creating A Safe Harbor for Florida’s Children: An Overview of Florida’s Legislative Evolution in Domestic Minor Sex Trafficking, 40 Fla. St. U. L. Rev. 415, 436 (2013).

[27] Ala. Code § 13A-6-159 (West 2011)

[28] Allison L. Cross, Slipping Through the Cracks: The Dual Victimization of Human-Trafficking Survivors, 44 McGeorge L. Rev. 395, 402 (2013)

[29] Id. at 402

[30] The Polaris Project, (last visited October 27, 2013)

[31] U.S. Dept. of State, Trafficking in Persons Rep. (2013) at 27.


Protect “Shamu” Under The 13th Amendment?

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

I am a big fan of the animal we all know as, “Shamu.” I feel it would be fair to say that most people like orcas or “killer whales” as they are sometimes called. Growing up not far from SeaWorld Orlando partly has to do with my love of the cute black and white mammal. Also, I am sure being a child of the 90s contributed to my feelings about “Shamu.” Who could forget Free Willy or any of its sequels?

That being said, the idea that whales fall under the protections of the U.S. Constitution seems preposterous to me, but that idea is exactly what PETA is arguing in their latest lawsuit against SeaWorld. Although it appears to be a far stretch of the imagination to even consider that whales to have constitutional rights, it is even more bizarre that PETA is asserting SeaWorld has violated the 13th Amendment. PETA recently filed a 20 page complaint in the U.S. District Court for the Southern District of California in San Diego.[1] In their complaint, PETA states that 5 orca whales housed at SeaWorld, Tilikum, Katina, (from SeaWorld Orlando) and Corky, Kasatka, and Ulises (at SeaWorld San Diego) are being enslaved by the marine parks.[2]

The President of PETA believes this is a slavery issue because “[a]ll five of these orcas were violently seized from the ocean and taken from their families as babies. They are denied freedom and everything else that is natural and important to them while kept in small concrete tanks and reduced to performing stupid tricks.”[3] In the lawsuit, PETA asks the court to grant an order which will free the orcas “from bondage” and wants an injunction preventing SeaWorld from keeping the whales enslaved.[4]

SeaWorld, of course, disagrees with these accusations. SeaWorld stated “[the company] is among the world’s most respected zoological institutions…[t]here is no higher priority than the welfare of the animals entrusted to our care and no facility sets higher standards in husbandry, veterinary care and enrichment.”[5] The company contends the orcas are in the parks to provide education and enrichment to the public about whales and their habitats.[6]

It’s clear that both sides of the suit have different views about the how the whales are being cared for. However, the more important question is what the law says. The 13th Amendment states in Section 1, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” PETA argues the amendment makes no reference to human slavery, and therefore, should also apply to animals. PETA’s General Counsel asserts the 13th Amendment should not be limited in its application because “[s]lavery is slavery, and it does not depend on the species of the slave any more than it depends on gender, race, or religion.”[8] Even though it is true the amendment has no textual indication that it only applies to people, upon examination of the historical context of the amendment, it becomes overwhelmingly obvious the amendment was ratified in order to protect human beings.

The 13th Amendment was ratified in 1865, eight months after the conclusion of the Civil War.[9] The amendment, enacted to end to the institution of slavery, gave power to Congress to enforce the amendment. With this power, Congress passed the Civil Rights Act of 1866, which gave blacks “the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” However, the Supreme Court has indicated that the 13th Amendment is limited in its scope. In Butler v. Perry, the Court found “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery, which in practical operation, would tend to produce like undesirable results.”[10] It is hard to stretch the imagination to equate the treatment of whales with America’s history of slavery. Some fear that even trying to make this connection is offensive to the African-American community. On the other hand, Nicholas Johnson, a law professor at Fordham University School of Law states he was “more entertained by it in the legal context than [he was] offended by it.” It is pretty apparent from precedent that the Court will be unlikely to extend 13th Amendment protections for the type of so-called “enslavement” being alleged in this case.[11]

In addition, PETA faces another obstacle in this lawsuit. Currently, animals do not have rights and are not covered by the U.S. Constitution. Animals are considered property for the purposes of the law, and thus, do not have legal standing. However, animals are not left defenseless. Animals are, instead, protected by specialized federal laws, such as the Animal Welfare Act. Moreover, marine parks are governed through the Marine Mammals Protection Act.[12] This act permits parks, like SeaWorld, to exhibit animals for educational purposes and requires them to follow certain guidelines. So, in a sense, the government has extended some minimum protections for marine mammals in captivity. Nevertheless, for animal rights activists, these protections are not enough. Michigan State University Law Professor David Favre has proposed a new legal classification entitled, “living property,” should be developed to grant animals additional rights under the law.[13] Yet, as the law currently exists, it is highly unlikely that constitutional protections will be extended to the orcas.

Like it or not, “Shamu” is not currently protected by the U.S. Constitution. PETA has indicated this lawsuit is the first case of its kind to try to extend the protections of the 13th Amendment to nonhumans. They will most likely not be successful in this venture. In fact, most experts believe the lawsuit will be disposed of on the issue of standing. Therefore, the courts will not even hear the case on its merits. Furthermore, PETA will probably not be able to convince the courts that “Shamu” should have constitutional rights. Many animal rights groups hope this lawsuit will be a vehicle for change in the area of animal rights. If PETA’s goal was to gain attention for their cause, it appears they have succeeded. Their lawsuit has made national and international news, with headlines such as this one in The Independent (London) “Free Willy-his rights under the US Constitution are being violated; PETA says that park has violated provision banning slavery in the United States[14] (evidently Free Willy has not been forgotten in the U.K.). “Shamu” may not have rights today, but it appears there is a movement afoot to help achieve rights for orcas in the future.

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