Trafficking Without Traffickers

The Trafficking Victims Protection Act (TVPA) does not recognize forced labor in circumstances where work is structurally, rather than interpersonally, coerced. By locating the power to impose coercion exclusively in individual actors, the law 1) denies relief to survivors of structurally coerced trafficking and 2) shields coercive laws from blame. As the scholarship of Mitchell Berman and Kimberly Ferzan illustrates, coercion can occur without being intentionally imposed by an offending actor. Building on the work of Kathleen Kim, I argue that forced labor can result from structural coercion, e.g., from immigration laws that exclude legally vulnerable individuals from the job market. By constraining workers’ ability to safely leave or reject exploitative work, such laws can lead to instances of forced labor, even in the absence of an individual “trafficker.” To encourage anti-trafficking efforts that target the root causes of coercion, trafficking law must recognize that structural coercion can compel labor. To this end, forced labor should be conceptualized as a condition for which there may be, but is not necessarily, individual criminal liability. Under this framework, legally vulnerable workers would be able to mount a successful claim of forced labor without showing that an actor, such as an employer, intended to coerce their labor. A definitional shift of this nature would expand access to services and immigration relief, as well as focus advocates’ attention upon laws that compel many legally vulnerable workers to labor in exploitative conditions.