Sexual Assault Ignored in New Anti-Trafficking Rules

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By Derrick C. Goode, U.S. Air Force

By Derrick C. Goode, U.S. Air Force

Human trafficking is a little-known and devastating feature of the U.S. military actions in Iraq and Afghanistan. Third-Country Nationals (TCNs) from developing nations support the U.S. military presence in those and other countries: when you think of peeling potatoes or constructing barracks, you should be picturing TCNs, not PFCs. TCNs are extremely vulnerable: among other things, they are poor, and they frequently do not speak either English or the local language(s). They are employed by the U. S. Government through contractors. Actually, the U.S. Government is the largest single purchaser of goods and services on Earth. As such, the measures that it takes to ensure that the products and labor it purchases don’t come from the forced work of trafficked people have immense implications for companies, and more importantly, workers, the world over. President Obama’s administration has now proposed two new federal procurement rules, modeled on an Executive Order from 2102, that are likely to go into effect in the near future. However, these rules repeat the mistakes of previous anti-trafficking regulations: they ignore the pervasive and overwhelming problem of sexual assault in both the military and the huge network of military-supporting contractors.

The proposed procurement rules, and the Executive Order on which they are based, mention coerced sex obliquely in their definitions of activities defined as “trafficking,” which include: (1) the recruitment, transportation, harboring, provision or obtaining of a person for labor through the use of force, fraud or coercion for the purpose of subjecting the person to involuntary servitude, debt bondage, peonage or slavery; and (2) the procurement of a commercial sex act or sex induced by force, fraud or coercion, or in which the person induced to commit the sex act is under 18 years of age. Both the new rules and the Executive Order fail to include anti-rape efforts among the positive duties they impose on contractors employing TCNs. Instead, the rules are limited to requiring that contractors must ensure that their recruitment practices are not fraudulent or misleading: charging recruitment fees from employees is prohibited, as is destroying, confiscating or otherwise denying access to employees’ identification documents, and contractors and subcontractors must pay return transportation costs for employees travelling to expatriate jobs, and permit full audits and inspections, and notify the Inspector General of the pertinent agency of any non-compliance. The new rules also require companies to interview and protect any TCN who the company thinks might have been forced into labor, before the TCN returns to their country of origin. The rule also requires that the company create and file various reports about their workforce. Further, companies with contracts worth more than $500,000 that are to be performed outside the U.S. have to make compliance plans, and publish them on their websites and post them in their workplaces. These compliance plans must include information about the rights TCNs have, and how to report non-compliance. 

The compliance and reporting obligations in the new rules impose a duty on contractors to inform TCNs of their rights. All signs support the conclusion that the committee who wrote the rules understands that poor people from developing countries who are far from home have virtually no power compared to either their contractor employers or members of the U.S. military. That same power imbalance makes TCNs extremely vulnerable to all types of coercion, including sexual assault. The rules completely fail to impose any duties on corporations to prevent sexual assault, protect or support survivors, make it easier and less potentially dangerous to report, or even separate perpetrators from their previous targets. This is a major oversight, since sexual assault features prominently in TCNs’ reports of their hellish time being forced to work for the U.S. military. Indeed, sexual assault is a pervasive problem throughout the U.S. military itself. It is truly disappointing that, despite with the increased attention on military sexual assault, no committee members thought to extend any protections whatsoever to TCNs.

The military insists on contracting out nearly all of the functions that its soldiers themselves used to perform. That means that every human rights violation that contractors commit, or permit, reflects upon the American people in the exact same way it would if the U.S. military itself had done it. It is inexcusable to ignore the rampant problem of sexual assaults against TCNs, the most vulnerable members of the “army behind the army.” Hopefully even more new rules are forthcoming, to deliver on the promise of a true “zero-tolerance” policy against trafficking.

Rad-Femme Lawyer

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