No, Transporting Undocumented Migrants to Martha's Vineyard is Not “Literally Human Trafficking”

Hillary Clinton today agreed with MSNBC host Joe Scarborough that  Florida Gov. Ron DeSantis sending 50 undocumented migrants to Martha's Vineyard is “literally human trafficking.”  There are good-faith reasons to oppose the transportation to migrants to the island, but, as a legal matter, this is legally nonsense.

On the program, Scarborough repeated the common claim that this transportation qualifies as “human trafficking.” In fairness to Scarborough and Clinton, some law professors have echoed this view which is wholly at odds with not just the governing statutory provisions but controlling case law.

Clinton, who is a lawyer, chimed in with the same dubious analysis:

“I think, Joe, you have laid out the craziness of the time in which we're living where some politicians would rather not only have an issue but exacerbate it to the extent of literally human trafficking, as you said.”

So MSNBC and these legal experts are telling the public that the consensual transport of migrants within the country constitutes human trafficking. Human trafficking is not synonymous with moving humans in traffic. It is a legal term and a serious crime. It is always dangerous to introduce actual law into these legal claims, but it is worth noting a couple of salient facts.

This is not a program designed to put people in “peonage” under 18 U.S.C. 1581. Under 22 U.S.C. § 7102(11), prosecutions are based on “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age” and “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.”

Neither is at play in this program.

The Justice Department has long interpreted its mandate for prosecution under this provision as addressing “a crime that involves exploiting a person for labor, services, or commercial sex.”

States like California follow a similar view:

“Human trafficking, also known as trafficking in persons or modern-day slavery, is a crime that involves compelling or coercing a person to provide labor or services, or to engage in commercial sex acts. The coercion can be subtle or overt, physical or psychological, and may involve the use of violence, threats, lies, or debt bondage.”

I assume that Hillary Clinton is not arguing that Gov. DeSantis is transporting these migrants for exploitive sex or labor.

Even the more general provision in the European Union would not establish such a crime in this case. The Directive on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, 2011 O.J. (L 101) 1, defines the crime as:

The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

…

3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.

There have been allegations that the migrants were misled into joining these flights and bus trips. However, even with such alleged fraud (which has not been shown to have occurred or to be systemically present), it would not be a transport for the purposes of sexual or labor exploitation or peonage.

Once again, there are a host of objections that can be made to this program without claiming that this is actual or “literal” human trafficking.