STU Scholarly Works (St. Thomas University)
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The Legal Nature of Trafficking in Human Beings
No full textIt is incorrect to say that people trafficking is a breach of human rights for the same reason that it is incorrect to say that 2+2=5: because it is wrong and there is an inherent good in getting things right. This article assesses what, legally, is actually happening when trafficking in human beings (THB) takes place, and considers the practical ramifications arising from that assessment. What actually is THB? The most widely accepted definition is contained in the Palermo Protocol (the Protocol) to the United Nations Convention on Transnational Organised Crime (UNCTOC), which entered into force in December 2003. Article 3(a) provides: Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitudeor the removal of organs .... While the definition relates to THB only across States frontiers (because of its adoption as part of UNCTOC) and therefore does not include THB within States, it has received widespread acceptance and the core elements are equally present in THB within States. From the definition, it is evident that THB consists of three elements: the act (recruitment etc), the method (force, etc.) and the purposes (exploitation). When THB occurs it is evident that a victim may be the object of severe exploitation as well as serious criminal offences. Several areas of law may be relevant to THB. Let us consider what actually happens when a person is trafficked - deprivation of their freedom of movement, forced labor, sexual exploitation, sexual, physical and mental abuse, illegal entry to a State, breach of conditions of entry to a State - may all be involved. THB may therefore raise issues of criminal law, human rights, migration law, employment law and anti-vice laws. It is a complex activity, thus a proper understanding of the legal issues requires awareness of the various rules, regulations and regimes that might apply. The principal issue discussed here is whether THB is fundamentally a matter of criminal law or human rights and why this matters. The argument put forward is that it is primarily a matter of criminal law, albeit with a human rights dimension
Post-Traumatic Stress Disorder and Victims of Human Sex Trafficking: A Perpetuation of Chronic Indignity
No full textAs a child, my parents taught me that Communism was the great threat to the world. They told me that people who lived under a Communist government could not travel outside their country, and they had to obey the government\u27s decisions about their life- where they lived, what jobs they could work, and even what they could and could not believe in spiritually. My mother showed me where the U.S.S.R. was located on the globe, and all of the countries around it that were also Communist. Visually, I saw that Communism encompassed what looked like half of the globe, and the sight impressed on me the reality that half of the people living in the world did not know what it was like to go outside of the doors of their home and be free. This weighed greatly on my little mind, and I wanted those people to escape Communism and to find freedom. Yet, for millions of people, the fall of Communism did not bring freedom; it brought a trap of mental and physical suffering barely rivaled by the atrocities of dictators
Big Bill Haywood\u27s Revenge: The Original Intent of the Exclusionary Rule
No full textWe have been given fair warning. In two recent cases, Hudson v. Michigan and Herring v. United States, the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule - that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant\u27s right to be free from unreasonable search and seizure will not be received in court. Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of redress for Fourth Amendment violations. Chief Justice Roberts, writing for the same five-justice majority in Herring, expressed the same dissatisfactions. The two cases differ factually, but the Supreme Court\u27s message is the same in both
International Trafficking in Persons: Suggested Responses to a Scourge of Humankind
No full textInternational Trafficking in Persons: Suggested Responses to a Scourge of Humankind , a statement presented by Rev. Monsignor Franklyn M. Casale (St. Thomas University President) to the Distinguished Members of the United States House of Representatives Committee on Foreign Affairs
Puerto Rico as a Critical Locality: Is a Post-Colonial Puerto Rico Possible - A Game-Theoretic Analysis of the Impasses over Puerto Rico\u27s Status
No full textThe author applies the game-theoretic concept of the truel (or three-person duel) to the Puerto Rico status debate. In summary, the debate over Puerto Rico\u27s future political status resembles a three-person, sequential, random-order truel in which no single player is able to eliminate the other two players. In addition, the author applies some concepts from evolutionary biology (path dependence) and behavioral economics (loss aversion) to explain the current impasse over Puerto Rico\u27s status. Finally, the author examines recent strategic behavior in the U.S. Congress over Puerto Rican status
Pareto Negativity: The Enemy of My Enemy is Not Necessarily My Friend - Latin Leadership, Coalition Building, and Predatory Globalization
No full textThis Essay is based on my presentation at the LatCrit VII conference, which was part of a panel discussion on Coalition Building, Globally and Locally. The purpose of the presentation and of this Essay is to reflect upon the significant role of Latin civil society organizations ( CSOs ), not only in that region\u27s political, social and economic development of other regions, but also in the historical trajectory of the U.S. As I prepared my remarks and noted the achievements of Latin CSOs, I began to question why there are so few Latino and Latina leaders in transnational CSOs and in the so-called global civil society movement ( GCS ), particularly in the movement to resist the predatory effects of globalization. Consider, for example, the citizen-led groups in Latin America such as the cocaleros and campesinos who fought the Bolivian Water and Gas Wars and then helped elect cocalero Juan Evo Morales Ayma as the country\u27s first indigenous head of state in 2005. Consider also, the broad-based coalition that led Luiz Indicio Lula da Silva to victory in the Brazilian presidential elections in 2002 and 2006. Groups such as these have been instrumental in effecting monumental political and social changes in their home countries. Why, then, have Latinos and Latinas not been more prominent within GCS networks? As I will explain, what I have discovered might cause a less sanguine person to sink into a pit of despair, therefore, this Essay also could accurately have been titled Why Dreams Die: The Soul-Crushing Disillusionment of a Naive Optimist. Yet, in a stunning display of the power of positive thinking and of faith in the influence of the academy, I conclude on a positive note
Moving on Up: Different Faces of Upward Mobility in an Interracial Couple
No full textI grew up working-class, aware of the difference between me and those with money. Now, as I finish my doctorate in counseling psychology and begin life with my husband Reggie Oh ( Reggie ), a law professor, I find myself with money. Reggie grew up differently, coming to the United States from South Korea when he was five years old. He was expected to be upwardly mobile. I was not. As a white American woman, I have interpreted some of his habits as middle-class or upper middle-class. He protests that it is not always about class but can be about culture. In this essay, I describe some of the difficulties of upward mobility and some of the intersections between class and race in the creative enterprise of an interracial relationship
Racial Migrations
No full textThe following three articles by Dominique Legros, Robert Koulish, and Cesar Cuauhtémoc Garcia Hernández concern laws, politics, and philosophies involving transnational migration. Individually and in sum, these articles productively engage with the radical multidimensionality of both racial identity and racial governance. In this introduction, I will briefly describe the articles and offer very few comments thereon, most of which emphasize what I believe to be the articles most important cumulative contribution regarding the complexity and centrality of race within forces and discourses of citizenship, territory, sovereignty, and nationality. Hence, the title of this introduction, which is intended to suggest both that those who cross the physical and other borders of nationstates are often racialized, and that race itself crosses and collapses numerous conceptual borders, operating as an opportunistic and inconsistent reification of often related but irreducible attributes, interests, and identities
A Pluralistic Approach to Oppression and Latino Terra Nullius
No full textThis paper contains the substance of a talk that I gave at LatCrit XII in Miami, Florida on Panel C4: Coalition Building, Globally and Locally. It is an outgrowth of my observation of the relative lack of participation by indigenous peoples from the Americas, particularly from the South, within LatCrit itself. It draws on my lived experiences at LatCrit\u27s South-North Exchange on Theory, Culture, and Law in San Juan, Puerto Rico in May of 2005 (SNX 2005) as well as the comments of my hotel roommate, June McCue at the University of British Columbia law school in Canada. The topic of that South-North Exchange was The Americas and their Indigenous People: Assessing the International Decade of the World\u27s Indigenous people (from 1994-2004). Professor McCue aptly summed up the SNX 2005 conference well in one phrase - latino terra nullius. My purpose at LatCrit XII in Miami was to draw on these experiences as well as the theory of Chela Sandoval\u27 to achieve praxis with respect to the participation of indigenous peoples within LatCrit. Because my reflections are intimately connected to my personal background, I begin with a brief synopsis of who I am. I am a forty-eight year old law professor of Eastern Cherokee and African American ancestry\u27 who has long engaged in work on issues involving indigenous peoples. I have also done some work on red/black relationships. I am a former Tribal Attorney for the Shoshone-Bannock Tribes in Fort Hall, Idaho. I have also made several trips to Geneva to observe the workings of the United Nations\u27 Working Group on Indigenous Populations and two trips to New York City as an observer of the Permanent Forum on the Rights of Indigenous Peoples. Although my family is originally from the Tennessee area, as someone born and raised in Chicago, Illinois, my views are also colored by the urban experience. LatCrit has long used a variety of theoretical methodologies - including doctrinal deconstruction, policy-based political analysis of current affairs, personal narratives, and social psychology -to effectuate its goals. There has also been ongoing discussion about the relationship between LatCrit and others in the critical jurisprudential movement dating from at least LatCrit Ill. Most of these relationship questions revolve around Critical Race Theory, most notably as it and LatCrit itself relate to the Black experience. The participation of indigenous peoples within LatCrit has been sporadic and miniscule at best. Those individuals who identify as being of indigenous origin who have participated in LatCrit have been primarily, if not exclusively, from the North in spite of the fact that the largest indigenous populations of the Americas are in the South. This is so in spite of the fact that there are also numerous indigenous intellectuals from the South.\u272 Even LatCrit XII reflected the difficulty that elites from the South have in placing their \u27locus of enunciation\u27 beyond mestizo-criollo consciousness. My paper attempts to address this dichotomy by incorporating personal narrative with some of the alternative modes of criticism that Sandoval has developed with the express purpose of fostering the end of academic apartheid. To that end, she has devised methods through which one can listen to and participate in conversations heretofore largely inaudible across the borders of subjectivity. It is Sandoval\u27s fourth tactic, that of cyber-love or the hermeneutic of love, which is the primary thrust of this paper. Getting to praxis requires applying that cyberlove to the indigenous peoples who are so noticeably absent from LatCrit. To put things in better context, however, I must begin with a personal narrative. Innocent Brown Faces Innocent brown faces smile you can. The white world awaits you. The time is at hand. At five you enter those structures, their design, while dads and moms stay muted behind. We weep for you. We hope for you. Indeed we pray for you. But on the day you enter, on that first fateful day, seals your destiny. Our substance flows away
A New Playground: Sexual Predators and Pedophiles Online: Criminalizing Cyber Sex between Adults and Minors
No full textThere is a danger that exists every time a child or minor logs onto the Internet, as pedophiles no longer need to confront their victims face-to-face. Within the depths of their homes and personal offices, sexual predators have been able to extend their influence across the world and into every home where a child lives that comports to the predator\u27s certain or specific tastes. In a survey conducted by the Crimes Against Children Research Center, the institution, housed at the University of New Hampshire, revealed that nearly one (1) in five (5), or nineteen percent (19%), of children using the Internet have received sexual solicitations. Before the advent of the Internet and its initiation into homes across the world, sexual predators were, for the most part, isolated from others who shared their predilection for children. However, the Internet has provided a venue in which sexual predators and pedophiles have created a virtual community. Within these online or Internet communities, sexual predators and pedophiles can communicate with one another and exchange tips or pointers on how to get close to children. They can discuss ways to ensure online anonymity and to encrypt images. Moreover, pedophiles and sexual predators no longer need to wait at school bus stops or hover about playgrounds; they no longer need to confront their victim face-toface, lollipop in hand. Sexual predators have found a haven in which to hunt, as pedophiles and predators alike, use the Internet not only to transmit and traffic child pornography, but also to enter the proverbial front door of every home that has access to the Internet and, as a result, communicate with children. Cyber sex, defined as sexual arousal using computer technology, esp[ecially] by wearing virtual reality equipment or by exchanging messages with another person via the Internet, is the potential result of this interaction between the predator and its prey. Even within the scope of the potent legislation enacted to protect children using the Internet and to punish those who intend to exploit or cause children harm, it must be determined whether further legislation is necessary in order to completely prohibit and criminalize sexually charged encounters between sexual predators and minors on the Internet and whether such legislation could survive constitutional analysis. With this objective in mind, this comment is divided into the following subsections. To begin, as to whether the online requests, or activities, initiated by sexual predators against minors that cause the child to succumb to the tactics and methodology of the sexual predator can give rise to criminal liability, it is evident that such an inquiry requires a hypothetical proposition in order to prepare the canvas for discussion. That backdrop is provided, cumulatively, by the real-life experiences of Justin Berry and his tragic coming of age story, as Justin found himself to be the target of a barrage of sexually charged requests after logging onto the Internet. This comment will continue with a discourse on the current state of pedophiles in the media and the recognition of community resources acting as watchdogs, for this issue of online sexual predators (and their abhorrent activities) has become an acute and alarming operation, with its effect possibly offending all households with Internet access as well as all children who venture to use it. A discussion of former and current federal legislation surrounding the Internet and activities involving children will follow. Such an examination serves as not only a beacon of Congress\u27s ambition to protect children online but, also, a milieu in which it can be shown what the current legislation does not specifically prohibit: the sexually explicit conversation between a sexual predator and a minor. This comment will continue with an overview of select state statutes whose construction and function would support the conclusion that there is room for this form of legislation. Moreover, certain cases from these and other states will be highlighted in order to demonstrate the activities and methods of the sexual predator, as well as elucidate the role of law enforcement in quashing these sexual pursuits and prosecuting the predators. Finally, this comment will conclude with a review and analysis of both the present defenses to online child solicitation as well as potential defenses and constitutional concerns surrounding the proposed statute that could, functionally, criminalize this predatory behavior on the Internet