Drafters should create a right for trafficking victims or their legal guardian, family member or representative to sue their traffickers for damages as a result of being trafficked. (See: UNODC Model Law Against Trafficking in Persons, Art. 27, 2009) The civil right of action should include:
- Actual, punitive and compensatory damages, or any combination of those;
- Injunctive relief and other appropriate relief;
- Attorney’s fees and costs;
- A statute of limitations that does not start until a minor reaches the age of majority or a ten year statute of limitations for an adult victim, and the statute of limitations should be suspended when:
o A trafficking victim becomes disabled;
o A trafficking victim could not have reasonably discovered the right due to the circumstances of the trafficking situation;
- A provision stating that the defendant may not assert a defense of the running of the statute of limitations when the expiration is due to conduct by the defendant;
- A provision stating that the victim’s immigration status, return to his/her home country or the absence of the victim from the jurisdiction shall not prevent relief under the civil right of action; and
- A provision stating that the civil action shall be stayed during the pendency of any criminal action arising from the same occurrence in which the claimant is a victim.
(See: UNODC Model Law Against Trafficking in Persons, Art. 27, 2009; Polaris Project Model Comprehensive State Legislation to Combat Trafficking in Persons, 3.1, 2006; Model Provisions for State Anti-Trafficking Laws, Center for Women and Public Policy, Providing for Private Right of Action Proposed Language, 9, 2005; State Model Law on Protection for Victims of Human Trafficking, Division C, Section 6, 2005)
Illustrative Example:
The State of California in the United States has enacted a civil liability law which has been successfully used to secure damage awards for the harm suffered at the hands of sex traffickers.
California Civil Code: Civil Action
52.5. (a) A victim of human trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney's fees and costs.
(b) In addition to the remedies specified herein, in any action under subdivision (a), the plaintiff may be awarded up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater. In addition, punitive damages may also be awarded upon proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking.
(c) An action brought pursuant to this section shall be commenced within five years of the date on which the trafficking victim was freed from the trafficking situation, or if the victim was a minor when the act of human trafficking against the victim occurred, within eight years after the date the plaintiff attains the age of majority.
(d) If a person entitled to sue is under a disability at the time the cause of action accrues, so that it is impossible or impracticable for him or her to bring an action, then the time of the disability is not part of the time limited for the commencement of the action. Disability will toll the running of the statute of limitation for this action.
(1) Disability includes being a minor, insanity, imprisonment, or other incapacity or incompetence.
(2) The statute of limitations shall not run against an incompetent or minor plaintiff simply because a guardian ad litem has been appointed. A guardian ad litem's failure to bring a plaintiff's action within the applicable limitation period will not prejudice the plaintiff's right to do so after his or her disability ceases.
(3) A defendant is estopped to assert a defense of the statute of limitations when the expiration of the statute is due to conduct by the defendant inducing the plaintiff to delay the filing of the action, or due to threats made by the defendant causing duress upon the plaintiff.
(4) The suspension of the statute of limitations due to disability, lack of knowledge, or estoppel applies to all other related claims arising out of the trafficking situation.
(5) The running of the statute of limitations is postponed during the pendency of any criminal proceedings against the victim.
(e) The running of the statute of limitations may be suspended where a person entitled to sue could not have reasonably discovered the cause of action due to circumstances resulting from the trafficking situation, such as psychological trauma, cultural and linguistic isolation, and the inability to access services.
(f) A prevailing plaintiff may also be awarded reasonable attorney's fees and litigation costs including, but not limited to, expert witness fees and expenses as part of the costs.
(g) Any restitution paid by the defendant to the victim shall be credited against any judgment, award, or settlement obtained pursuant to this section. Any judgment, award, or settlement obtained pursuant to an action under this section shall be subject to the provisions of Section 13963 of the Government Code.
(h) Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim. As used in this section, a "criminal action" includes investigation and prosecution, and is pending until a final adjudication in the trial court, or dismissal.
(See: California Civil Code, Section 52.5, 2009)