The Plight of 'Unreasonable' Trafficking Victims: Replacing the Trafficking Victims Protection Act's Reasonable Person Standard for Coercion with a Genuine Belief Standard

Since the enactment of the Trafficking Victims Protection Act of 2000 and its requirement that victims and prosecutors make a showing of coercion under a reasonable person standard, an entire class of victims effectively became unprotected and no longer deemed victims. The inability to meet such a high burden not only produces a lower rate of successful criminal and civil prosecutions, but also—and most alarmingly—precludes many a victim’s participation in basic and highly needed governmental services, required both to cope with and recover from the trauma. The consequences are particularly egregious in the context of domestic servitude, where traffickers successfully rely on the prosecution’s inability to disprove consent. From the perspective of Policy-Oriented Jurisprudence, this article analyzes the conditioning factors leading to the adoption of the reasonable person standard in our trafficking legislation, all relevant judicial, legislative, and executive actions enforcing it. In addition, it criticizes the standard’s conceptual and practical limitations. In the interest of making our anti-trafficking regime better approximate a public order of human dignity and current international.