Abstract

Excerpted From: Annie Isabel Fukushima, Jens Nilson and Kaden Richards, Seeing Race & Sexuality: Child Welfare & Forced Labor, 77 Arkansas Law Review 283 (2024) (100 Footnotes) (Full Document)

In 2021, California couple Nery Martinez Vasquez and Maura Martinez made headline news after pleading guilty to conspiracy to commit forced labor for “forcing a Guatemalan relative and her two daughters to work long hours under poor conditions. They kept the girls out of school with threats that they would be deported.” Vasquez and Martinez trafficked the family into restaurant services and cleaning and janitorial services for minimal to no pay from September 2016 to February 2018, compelling the mother and her two children to overstay their visas as part of their forced labor. This case was recognized as human trafficking, leaving one to wonder: Why were children involved in forced labor for nearly one-and-half years without intervention? As the case of Vasquez and Martinez made headline news as a “successful prosecution,” other questions emerged surrounding the role of the state in responding to child labor trafficking and how race and sexuality came to matter in furthering the invisibility of child labor despite child labor laws, human trafficking laws, and requirements for children to attend school. In part, the invisibility of addressing child labor exploitation is due to the persistence of a common misperception: The passage of the Fair Labor Standards Act addressed major labor violations against children. Notwithstanding growing interest and understanding about human trafficking, current U.S. policy, practice, and research is insufficient in describing how systems respond to child abuse comprised of forced labor.

This Article examines how child welfare responds to children who are forced to labor through a case study of California. We use an intersectional framework to argue that a conceptualization of current sociolegal responses to human trafficking cannot be delinked from racialized and sexualized forms of governmentality. In using an intersectional framework, we hope to draw upon intersectionality as a way to “point[] to the ways that structural inequality, persistent disadvantages, and structural abandonment are some of the root causes of microlevel violent interactions and at the same time influence how effective macrolevel justice policies are at responding to or preventing violent victimization.” By examining the differential role of child welfare responses as a localized response to a global form of exploitation, human trafficking, it is shown that race, gender, and national origin continue to impact those who are perceived as “victims” of human trafficking in the United States. This perception of victimhood is predicated on protecting whiteness and is rooted in institutional efforts to normalize the victimization of people of color, immigrants, and the financially vulnerable. As this study occurred prior to and concurrent with the COVID-19 pandemic (2019-2021), the context of how minoritized communities experienced marginalization during a global crisis is also important to acknowledge.

Human trafficking is legally defined by the Trafficking Victims Protection Act as a crime that involves exploiting a person for labor, services, or commercial sex. Labor trafficking occurs when an employer secures labor through coercion, force, or fraud. Children who experience labor trafficking experience it in a range of industries, including being forced into illicit drug economies (sales, transportation, handling products), pan handling, labor in clothing industries, agriculture (pine trees, flower picking, dairy industry, fruit), hospitality, festival work, domestic work (housekeeping, nannying, cooking), street vending, and door-to-door sales (chocolate and magazine sales). The varying legal perceptions of human trafficking mean that it is not the industry that makes it “human trafficking,” but rather the coercion, work conditions, and the experience with exploitation.

Forced labor includes conditions of human trafficking and involuntary work that impact people across the life course. In this Article, we focus on the experiences of children--people who are under eighteen years of age. In 2020, the Bureau of International Labor Affairs found that 155 goods imported by the United States were from seventy-seven countries that used forced labor and exploited 73 million children through hazardous labor. There are limited data about child labor trafficking in the United States due to the decentralized data collection about human trafficking and the limited identification of children who are labor trafficked. In 2021, the National Human Trafficking Hotline received 32,709 phone calls regarding human trafficking. In 2018, the National Human Trafficking Hotline identified 1,651 cases of human trafficking reported in California, with 167 of these cases not specifying the type of trafficking. During Fiscal Year 2022, the U.S. Department of Justice opened fifty-five investigations into domestic labor trafficking, leading to eight convictions. In the same year, the U.S. Department of Health and Human Services provided Eligibility or Interim Assistance Letters to 2,264 foreign national children, 77% of whom had experienced labor trafficking. Seemingly small numbers, human trafficking trends represent the tip of the iceberg. Not all victims of human trafficking are counted where “victims” are legible in systems where prosecutions occurred, a Victims of Trafficking in Persons nonimmigrant visa or T-Visa for victims of human trafficking were issued, or the case was counted by state institutions. Not all victims of human trafficking are counted by reproducing a “tethered subjectivity” where survivors of human trafficking are bound to be seen in dualities of victim or criminal, “illegal” or legal, or those who have access to citizenship or those who are denied. This duality makes it difficult to recognize that a person can simultaneously experience victimization while participating in criminalized activities.

To prevent abuse in supply chains, California enacted the California Transparency in Supply Chains Act, which requires businesses and manufacturing companies to disclose their “efforts to eradicate slavery and human trafficking.” This law does not apply to sellers or manufacturers with less than $1 million in annual worldwide gross receipts, meaning that laborers in small businesses in some states may be invisible to responses to prevent trafficking. During the global pandemic, the United States implemented Executive Order 14001, “On a Sustainable Public Health Supply Chain,” to create a national strategy to establish standards and governance of biological threats and security threats that included sub-goals to “[e]nsure equitable labor conditions by promoting best practices and U.S. adherence to child labor and forced labor laws and regulations in supply chains.” Although some states--including California--have child labor laws and mandatory school attendance laws, the legal response varies by state, while children continue to experience labor trafficking.

In contrast to the plethora of research on trafficking into sexual economies, child labor trafficking into commercial industries beyond sex industries is viewed as hidden or understudied. It is widely known that poverty is a major predictor of human trafficking, where the “[l]ack of employment opportunities, access to education and affordable housing means survivors, even those identified by law enforcement and participating in prosecutions, continue to struggle post-trafficking.” Recognizing that labor trafficking is part of labor markets, both formalized and informalized, immigrant victims of labor trafficking arrive in the United States for work opportunities and/or to improve the quality of life for their family members and themselves. Research shows that a lack of upward mobility, perceived economic opportunity in the United States, and conflict in their home countries drives labor migrants to seek employment overseas in countries like the United States, where immigrant precarity is also a central factor contributing to human trafficking. Human trafficking is complex and caused by interlocking forms of oppression, including sexism, racism, and nativism. Few studies examine child welfare responses to child labor trafficking by examining the centrality of race and sexuality in sociolegal responses; therefore, this Article offers a unique intellectual and policy theoretical intervention.

This Article contributes to the scholarly literature on labor trafficking by bringing to the center the role of race and sexuality in anti-trafficking institutional responses to child labor and abuse. While most would agree that no child should experience trafficking, the role of governmentality means that even in seemingly uncontroversial cases, responding to child abuse and the rights of the child and the inability to see race and sexuality as a core aspect of institutional responses has legal and social repercussions leading to limited responses to child labor trafficking. To understand how race and sexuality are seen in the social and legal responses by child welfare to child labor trafficking, this study employed a mixed-methods analysis of case study analysis of child welfare responses to child labor trafficking in California. Data for this study were gathered between 2019 and 2021, including surveys conducted in two stages (n=186 and n=1,384) and semi-structured interviews (n=11).

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As new laws are introduced to address human trafficking, it is essential that the racial and sexualized logic of who is to be protected historically and whose bodies are relegated as exploitable at present, are part of the sociolegal response. In 2022, California Assembly member Eloise Gómez Reyes introduced Assembly Bill 2628, Dependency: victims of human trafficking. For children who were labor trafficked, there were no protections available when a parent or guardian had participated in the labor trafficking of their dependent child (unlike what is afforded to children who are sexually exploited). However, the history of U.S. separation policies cannot be delinked from current systems of child welfare response to child separation from their families. On the one hand, there is a need to support children who need to leave exploitive conditions. On the other hand, does the racist history of child separation impacting Native children haunt current anti-trafficking response and the child welfare system? Opponents of the law continue to deprioritize responding to child labor exploitation. As described by the County Welfare Directors Association of California opposing Assembly Bill 2628,

In his veto message on AB 2035, Governor Brown indicated that he believed the bill was premature in expanding [Welfare & Institutions Code] 300 to include labor trafficking. We concurred at the time and continue to believe that while the child welfare system continues to build services and supports for these children, it is premature to add labor trafficking to the definition of abuse and neglect.

Although U.S. federal anti-trafficking laws have been in existence for twenty-two years, child labor trafficking continues to be debated as a form of abuse and neglect.

The culture of legal response must not only contend with discussing labor, but the racial and sexual underpinnings of whose bodies are expected to labor in low-wage and informal industries. There is a need for further training, community dialogues, and policy implementation that contends with how children experience forced labor and how current responses are tied to interlocking systems such as race, class, and sexuality. This is much needed to contend with how child welfare and legal failures are due to the experiences children have with a “revolving door” of entering carceral systems, a consequence of disproportionate minority contact where communities of color are disproportionately coming into contact with juvenile justice systems that further the school-to-prison pipeline.

A lens that contends with race and sexuality recognizes that it is not only the carceral responses to certain bodies, but also the expectation that certain bodies labor. As described by a medical social worker, not only are communities not talking about child labor trafficking, but this silence is tethered to how it is assumed that certain bodies are expected to work in low-wage and arduous labor.

Labor trafficking? You know I think it's something that we don't talk about. Like let's say when I was in school we talked about the industrial revolution and children working in factories and working on farms and we really don't discuss labor trafficking of children. And even doing my own research, children make up a large amount of let's say farm accidents, industrial accidents like for OSHA. You know so even in California let's say we have a huge agricultural community, and a lot of children under the age of 18 make up a lot of the folks or children that are injured through industrial accidents or accidents on farms and so forth. I didn't even know that until I looked into labor trafficking of children ... it's concerning because obviously that's when we talk about agriculture in California it may be children that are undocumented and their parents are undocumented and so forth. So, it has so many layers.

Recognizing the problems that persist, what would it look like to address child labor trafficking through labor rights, closing the wealth gap, and recognizing that the history of excluding some bodies as having experienced maltreatment is tied to racial and sexual governance? What would it look like to seriously consider how communities labor in exploitive conditions that also involve child laborers? Who counts as experiencing abuse is bound to a history of racialized sexualities--protecting white children's innocence--where children of color and migrant communities continue to be seen as invisible in their conditions that are compounded by poverty, anti-immigration policies and practices, and nativism.

A fundamental socio-legal shift with addressing child labor trafficking requires a contending with how race and sexuality are imbricated in the logics that perpetuate notions of “invisibility” and perceptions of why child labor trafficking is hidden. A recent case of a Subway franchise owner, John Michael Meza, made headline news when it was alleged he violated labor laws by employing children as young as fourteen years old to operate dangerous equipment, had children working hours not permitted by law, failed to pay his employees, and threatened his employees when they raised concerns about their legal rights. While not called trafficking, the use of threats is a form of coercion and reifies that while there is much to be concerned about illicit economies, formal industries also continue to perpetuate child labor violations in California. However, child labor violations are met with resistance, as seen in the recent claims regarding an Oakland Popeyes where employees went on strike after labor violations occurred when a thirteen-year-old girl who worked forty hours a week until midnight and on school nights. As some communities organize to respond to child labor violations, survivors of labor trafficking continue to be policed, fear the systems that should support them, and continue to have basic needs unmet.