Section 108 of the Trafficking Victims Protection Act, as Amended [5]
(a) Minimum standards
For purposes of this chapter, the minimum standards for the elimination of trafficking applicable to the government of a country of origin, transit, or destination for victims of severe forms of trafficking are the following:
(1) The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.
(2) For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.
(3) For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.
(4) The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.
(b) Criteria
In determinations under subsection (a)(4) of this section, the following factors should be considered as indicia of serious and sustained efforts to eliminate severe forms of trafficking in persons:
(1) Whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons, and convicts and sentences persons responsible for such acts, that take place wholly or partly within the territory of the country, including, as appropriate, requiring incarceration of individuals convicted of such acts. For purposes of the preceding sentence, suspended or significantly reduced sentences for convictions of principal actors in cases of severe forms of trafficking in persons shall be considered, on a case-by-case basis, whether to be considered an indicator of serious and sustained efforts to eliminate severe forms of trafficking in persons. After reasonable requests from the Department of State for data regarding investigations, prosecutions, convictions, and sentences, a government which does not provide such data, consistent with a demonstrably increasing capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted or sentenced such acts.
(2) Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked, including by providing training to law enforcement and immigration officials regarding the identification and treatment of trafficking victims using approaches that focus on the needs of the victims.
(3) Whether the government of the country has adopted measures to prevent severe forms of trafficking in persons, such as measures to inform and educate the public, including potential victims, about the causes and consequences of severe forms of trafficking in persons, measures to establish the identity of local populations, including birth registration, citizenship, and nationality, measures to ensure that its nationals who are deployed abroad as part of a diplomatic, peacekeeping, or other similar mission do not engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, a transparent system for remediating or punishing such public officials as a deterrent, measures to prevent the use of forced labor or child labor in violation of international standards, effective bilateral, multilateral, or regional information sharing and cooperation arrangements with other countries, and effective policies or laws regulating foreign labor recruiters and holding them civilly and criminally liable for fraudulent recruiting.
(4) Whether the government of the country cooperates with other governments in the investigation and prosecution of severe forms of trafficking in persons and has entered into bilateral, multilateral, or regional law enforcement cooperation and coordination arrangements with other countries.
(5) Whether the government of the country extradites persons charged with acts of severe forms of trafficking in persons on substantially the same terms and to substantially the same extent as persons charged with other serious crimes (or, to the extent such extradition would be inconsistent with the laws of such country or with international agreements to which the country is a party, whether the government is taking all appropriate measures to modify or replace such laws and treaties so as to permit such extradition).
(6) Whether the government of the country monitors immigration and emigration patterns for evidence of severe forms of trafficking in persons and whether law enforcement agencies of the country respond to any such evidence in a manner that is consistent with the vigorous investigation and prosecution of acts of such trafficking, as well as with the protection of human rights of victims and the internationally recognized human right to leave any country, including one’s own, and to return to one’s own country.
(7) Whether the government of the country vigorously investigates, prosecutes, convicts, and sentences public officials, including diplomats and soldiers, who participate in or facilitate severe forms of trafficking in persons, including nationals of the country who are deployed abroad as part of a diplomatic, peacekeeping, or other similar mission who engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, and takes all appropriate measures against officials who condone or enable such trafficking. A government’s failure to appropriately address public allegations against such public officials, especially once such officials have returned to their home countries, shall be considered inaction under these criteria. After reasonable requests from the Department of State for data regarding such investigations, prosecutions, convictions, and sentences, a government which does not provide such data, consistent with a demonstrably increasing capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted, or sentenced such acts.
(8) Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant.
(9) Whether the government has entered into effective, transparent partnerships, cooperative arrangements, or agreements that have resulted in concrete and measurable outcomes with –
(A) domestic civil society organizations, private sector entities, or international nongovernmental organizations, or into multilateral or regional arrangements or agreements, to assist the government’s efforts to prevent trafficking, protect victims, and punish traffickers; or
(B) the United States toward agreed goals and objectives in the collective fight against trafficking.
(10) Whether the government of the country, consistent with the capacity of such government, systematically monitors its efforts to satisfy the criteria described in paragraphs (1) through (8) and makes available publicly a periodic assessment of such efforts.
(11) Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year.
(12) Whether the government of the country has made serious and sustained efforts to reduce the demand for –
(A) commercial sex acts; and
(B) participation in international sex tourism by nationals of the country.
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[5]This section reproduces section 108 of the Trafficking Victims Protection Act of 2000 (Div. A, Pub. L. No. 106-386) as amended by the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018 (Pub. L. 115-425) and the Trafficking Victims Protection Reauthorization Act of 2017 (Pub. L. 115-427), on January 8 and 9, 2019, respectively.
Section 110(B) of the Trafficking Victims Protection Act, as Amended [6]
(b) Reports to Congress
(1) Annual report
Not later than June 1 of each year, the Secretary of State shall submit to the appropriate congressional committees a report describing the anti-trafficking efforts of the United States and foreign governments according to the minimum standards and criteria enumerated in section 7106 of this title, and the nature and scope of trafficking in persons in each country and analysis of the trend lines for individual governmental efforts. The report shall, to the extent concurrent reporting data is available, cover efforts and activities taking place during the period between April 1 of the year preceding the report and March 31 of the year in which the report is made, and should include-
(A) a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments fully comply with such standards based only on concrete actions taken by the country that are recorded during the reporting period;
(B) a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments do not yet fully comply with such standards but are making significant efforts to bring themselves into compliance based only on concrete actions taken by the country (excluding any commitments by the country to take additional future steps during the next year) that are recorded during the reporting period;
(C) a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments do not fully comply with such standards and are not making significant efforts to bring themselves into compliance;
(D) information on the measures taken by the United Nations, the Organization for Security and Cooperation in Europe, the North Atlantic Treaty Organization and, as appropriate, other multilateral organizations in which the United States participates, to prevent the involvement of the organization’s employees, contractor personnel, and peacekeeping forces in trafficking in persons or the exploitation of victims of trafficking;
(E) reporting and analysis on the emergence or shifting of global patterns in human trafficking, including data on the number of victims trafficked to, through, or from major source and destination countries, disaggregated by nationality, gender, and age, to the extent possible;
(F) emerging issues in human trafficking;
(G) a section entitled “Promising Practices in the Eradication of Trafficking in Persons” to highlight effective practices and use of innovation and technology in prevention, protection, prosecution, and partnerships, including by foreign governments, the private sector, and domestic civil society actors; and
(H) for each country included in a different list than the country had been placed in the previous annual report, a detailed explanation of how the concrete actions (or lack of such actions) undertaken (or not undertaken) by the country during the previous reporting period contributed to such change, including a clear linkage between such actions and the minimum standards enumerated in section 7106 of this title.
(2) Special watch list
(A) Submission of list
Not later than the date on which the determinations described in subsections (c) and (d) are submitted to the appropriate congressional committees in accordance with such subsections, the Secretary of State shall submit to the appropriate congressional committees a list of countries that the Secretary determines requires special scrutiny during the following year. The list shall be composed of the following countries:
(i) Countries that have been listed pursuant to paragraph (1)(A) in the current annual report and were listed pursuant to paragraph (1)(B) in the previous annual report.
(ii) Countries that have been listed pursuant to paragraph (1)(B) pursuant to the current annual report and were listed pursuant to paragraph (1)(C) in the previous annual report.
(iii) Countries that have been listed pursuant to paragraph (1)(B) pursuant to the current annual report, where—
(I) the estimated number of victims of severe forms of trafficking is very significant or is significantly increasing and the country is not taking proportional concrete actions; or
(II) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, including increased investigations, prosecutions and convictions of trafficking crimes, increased assistance to victims, and decreasing evidence of complicity in severe forms of trafficking by government officials.
(B) Interim assessment
Not later than February 1st of each year, the Secretary of State shall provide to the appropriate congressional committees an assessment of the progress that each country on the special watch list described in subparagraph (A) has made since April 1 of the previous year.
(C) Relation of special watch list to annual trafficking in persons report
A determination that a country shall not be placed on the special watch list described in subparagraph (A) shall not affect in any way the determination to be made in the following year as to whether a country is complying with the minimum standards for the elimination of trafficking or whether a country is making significant efforts to bring itself into compliance with such standards.
(D) Countries on special watch list for 2 consecutive years
(i) In general
Except as provided under clause (ii), a country that is included on the special watch list described in subparagraph (A) for 2 consecutive years after December 23, 2008, shall be included on the list of countries described in paragraph (1)(C).
(ii) Exercise of waiver authority
The President may waive the application of clause (i) for up to 1 year if the President determines, and reports credible evidence to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, that such a waiver is justified because—
(I) the country has a written plan to begin making significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking;
(II) the plan, if implemented, would constitute making such significant efforts; and
(III) the country is devoting sufficient resources to implement the plan.
(E) Congressional notice
Not later than 30 days after notifying Congress of each country determined to have met the requirements under subclauses (I) through (III) of subparagraph (D)(ii), the Secretary of State shall—
(i) provide a detailed description of the credible information supporting such determination on a publicly available website maintained by the Department of State; and
(ii) offer to brief the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives on any written plan submitted by the country under subparagraph (D)(ii)(I), with an opportunity to review the written plan.
(F) Special rule for certain countries on special watch list that are downgraded and reinstated on special watch list
Notwithstanding subparagraphs (D) and (E), a country may not be included on the special watch list described in subparagraph (A)(iii) for more than 1 consecutive year after the country—
(i) was included on the special watch list described in subparagraph (A)(iii) for—
(I) 2 consecutive years after December 23, 2008; and
(II) any additional years after such date of enactment as a result of the President exercising the waiver authority under subparagraph (D)(ii); and
(ii) was subsequently included on the list of countries described in paragraph (1)(C).
(3) Significant efforts
(A) In general
In determinations under paragraph (1) or (2) as to whether the government of a country is making significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking, the Secretary of State shall consider—
(i) the extent to which the country is a country of origin, transit, or destination for severe forms of trafficking;
(ii) the extent of noncompliance with the minimum standards by the government and, particularly, the extent to which officials or employees of the government have participated in, facilitated, condoned, or are otherwise complicit in severe forms of trafficking;
(iii) what measures are reasonable to bring the government into compliance with the minimum standards in light of the resources and capabilities of the government.
(B) Proof of failure to make significant efforts
In addition to the considerations described in clauses (i), (ii), and (iii) of subparagraph (A), in determinations under paragraph (1)(C) as to whether the government of a country is not making significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking, the Secretary of State shall consider, as proof of failure to make significant efforts, a government policy or pattern of—
(i) trafficking;
(ii) trafficking in government-funded programs;
(iii) forced labor (in government-affiliated medical services, agriculture, forestry, mining, construction,
or other sectors);
(iv) sexual slavery in government camps, compounds, or outposts; or
(v) employing or recruiting child soldiers.
(D)7 the extent to which the government of the country is devoting sufficient budgetary resources—
(i) to investigate and prosecute acts of severe trafficking in persons;
(ii) to convict and sentence persons responsible for such acts; and
(iii) to obtain restitution for victims of human trafficking;
(E) the extent to which the government of the country is devoting sufficient budgetary resources—
(i) to protect and support victims of trafficking in persons; and
(ii) to prevent severe forms of trafficking in persons; and
(F) the extent to which the government of the country has consulted with domestic and international civil society organizations that resulted in concrete actions to improve the provision of services to victims of trafficking in persons.
(4) Action plans for countries upgraded to tier 2 watchlist
(A) In general
Not later than 180 days after the release of the annual Trafficking in Persons Report, the Secretary of State, acting through the Ambassador-at-Large of the Office to Monitor and Combat Trafficking and the Assistant Secretary of the appropriate regional bureau, in consultation with appropriate officials from the government of each country described in paragraph (2)(A)(ii), and with the assistance of the United States Ambassador or Charge d’Affaires in each country, shall—
(i) prepare an action plan for each country upgraded from Tier 3 to Tier 2 Watchlist to further improve such country’s tier ranking under this subsection; and
(ii) present the relevant action plan to the government of each such country.
(B) Contents
Each action plan prepared under this paragraph—
(i) shall include specific concrete actions to be taken by the country to substantively address deficiencies preventing the country from meeting Tier 2 standards, based on credible information; and
(ii) should be focused on short-term and multi-year goals.
(C) Briefings
The Ambassador-at-Large of the Office to Monitor and Combat Trafficking and all appropriate regional Assistant Secretaries shall make themselves available to brief the Committee on Foreign Relations of the Senate, the Committee on Appropriations of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committee on Appropriations of the House of Representatives on the implementation of each action plan prepared under this paragraph.
(D) Savings provision
Nothing in this paragraph may be construed as modifying—
(i) minimum standards for the elimination of trafficking under section 7106 of this title; or
(ii) the actions against governments failing to meet minimum standards under this section or the criteria for placement on the Special Watch List under paragraph (2).
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[6] This section reproduces section 110(b) of the Trafficking Victims Protection Act of 2000 (Div. A, Pub. L. No. 106-386), as amended by the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018 (Pub. L. 115-425) and the Trafficking Victims Protection Reauthorization Act of 2017 (Pub. L. 115-427) on January 8 and 9, 2019, respectively.
[7] So in original. No subpar. (C) has been enacted.