Testimony of the Honorable Jack Whelan, District Attorney, Delaware County, Before the Senate Judiciary Committee Regarding Senate Bill 851

Good Morning Chairmen Greenleaf and Leach and members of the Judiciary Committee. My name is Jack Whelan, and I am the District Attorney of Delaware County. I am joined today by assistant district attorneys who specialize in human trafficking cases and will speak about their work and perspectives on improving our laws. On behalf of the Pennsylvania District Attorneys Association, thank you for the opportunity to speak about human trafficking, SB 851, and the concept of safe harbor legislation.

Human trafficking is an odious crime. Its victims are subject to sexual and labor servitude, and their victimization is typically ongoing. Often – although not always – perpetrators of human trafficking seek out the most vulnerable girls and boys, such as those who come from broken homes, foster care, those who have been victimized before, and those who may be addicted to drugs and/or alcohol. Victims of human trafficking need justice and healing, and accomplishing these important goals is not easy. Victims have been broken and traumatized. Many have a sense of helplessness. Others have an unfortunate loyalty to their perpetrator, which means getting them the best and proper assistance is not easy. The needs of juvenile victims of trafficking are complex and require a comprehensive and intensive approach, including addressing trauma, sexual abuse, medical needs, various safety concerns, as well as emergency and social services.

To understand the problem of human trafficking, we also need to take a step back and remind ourselves where human trafficking occurs.

There are some who think that human trafficking only occurs when young foreign girls and boys are transported to the United States and forced into the sex trade. That description only captures one aspect of human trafficking. Human trafficking is not always international; nor does it always involve the transport of young girls and boys across state lines. All of us here knows that there are cases where perpetrators conduct their activities within Pennsylvania and victimize girls and boys from our state. It is those cases that are subject to the jurisdiction of the county district attorney in which they occur.

We also need to realize the depravity and brutality of these perpetrators. We know that traffickers are master manipulators, using threats of violence, economic support, fraud, and coercion to force their victims into performing sex acts or labor. But the horror often goes even further: In some cases traffickers tattoo their victims like cattle; they sexually and physically abuse victims; they even brainwash victims into recruiting new potential victims. Think about how awful that last point is: perpetrators of human trafficking actually convince their victims to bring them other girls and boys. This is just one of the horrible ways the cycle perpetuates.

Pennsylvania took an enormous step to update our laws in 2014 by enacting Act 105. We are grateful to you Senator Greenleaf for your leadership. Assistant District Attorney Pearl Kim, from my office and who is seated with me here, was a member of the Joint State Government Committee that drafted the original set of recommendations that formed the basis for Act 105. Act 105 gives us many more tools to attack human trafficking and hold those who commit crimes related to human trafficking accountable.

The assistant district attorneys with me will discuss some of the specific cases and issues they have worked on, either individually or with prosecutors in other jurisdictions. You will recall the testimony of Judge Dumas, who runs the human trafficking court in Philadelphia. Philadelphia is fortunate to have a specialized human trafficking court which makes use of our juvenile justice system to divert and treat victims and upon completion of programming to expunge their records. Although Delaware County does not have a specialty court, we have dedicated resources and staff to addressing human trafficking.
I would like to this Committee to consider what are the important things we can do to better root out human trafficking, hold perpetrators accountable, and help heal our victims? I have several suggestions:

• We need more regional teams to receive and gather tips from law enforcement and regulatory agencies, social service organizations and individuals reporting human trafficking.
• We need proactive investigations of human trafficking by conducting undercover investigations of sex service websites and interviewing sex workers and law enforcement personnel to detect human trafficking.
• We need further training of law enforcement, ethnic and cultural groups, labor unions and business associations to help educate them to identify and report human trafficking.

Of course, and you have heard this before, all of this takes resources. For the most part, we have not seen any additional funding on the local level. We are making due with what we have, and I believe our collective efforts have been extraordinary.

Mr. Chairman, these are the issues surrounding human trafficking we ought to be addressing together. If we can achieve these goals, I can guarantee you we will apprehend more perpetrators, save more victims, and ultimately reduce future victimizations.

By contrast, imposing a blanket safe harbor, such as that contained in SB 851, will not help us achieve any of these goals and, in fact, will impair our ability to break the cycle of victimization and to ultimately help heal these girls and boys.

As you know, SB 851 provides that after a reasonable detention for investigative persons, a person under 18 years of age suspected of or charged with prostitution shall be immune from prosecution under that section of the Crimes Code and may not be jailed, fined, prosecuted, charged or otherwise penalized. It also provides that these individuals may not be subject to adjudications of delinquency for other crimes, including trespass, disorderly conduct, loitering, false identification, obstructing highways, and possession of drugs.

It is just as Judge Dumas explained several weeks ago – these girls and boys need the involvement of the juvenile court system in appropriate cases. Not because we want to lock them up or treat them like criminals, but because we want to see them get better. That is and has always been our reasoning: we want them to heal. So many of the victims who have engaged in prostitution and related crimes have been broken by their perpetrators. They cannot make appropriate decisions on their own; that is among the reasons why they need the types of programming available through or facilitated by the juvenile court system. If left with the choice, as SB 851 effectively provides, of voluntarily entering a program or going somewhere else – the streets, a “friend,” or back to their pimp — only a minority of individuals will choose programming. For most, this means the victimization will continue. And for all of our good intentions, the cycle of sexual assaults and violence and forced labor will not be broken. The leverage that the juvenile justice system provides is crucial to the healing process, and we cannot just remove it. It is needed to keep the girls and boys in programming and away from their pimp or other bad influences. Without it, there will be no single existing entity or system to help these girls and boys.

Do we really think, for example, that an employee of a program can get to a rural county before the person who has been trafficked must be released? Or how can we be sure that the right program can be connected with the right juvenile in our more urban areas before the juvenile would have to be released under SB 851? In those cases where a caseworker can actually meet with the minor victim of human trafficking, what happens when the minor says that she does not want to go into the program? The answer is simple but sad: that person will likely return to the streets and to her trafficker. And law enforcement could not do anything about it because the girls and boys are free to literally walk straight back to their respective pimps. In some cases, it is the caretaker who pimps out the young boys and girls. If minors will not cooperate with law enforcement, they may be obligated to go back to their parent(s) or guardian(s) who is their chief victimizer. How tragic that would be? None of us wants to see that happen.

We all agree we need to identify, arrest and prosecute the perpetrators of human trafficking. It will be nearly impossible to hold them accountable in a significant number of cases if the juveniles do not cooperate. Even now they are reluctant to provide us any information about who has victimized them. Without the juvenile justice system, it will be even harder to identify the perpetrators, which means they will likely go unpunished for their horrific conduct. The safe harbor provision could actually prove to be a loophole for pimps, and instead of deterring them, would encourage traffickers to choose minor victims over adult victims.

Finally, I do take issue with the suggestion that we treat the victims of human trafficking as criminals. We do not. If we did, we would not be devoting resources to stop the cycle of victimization. We would not be working with our judges and with our program providers to find the best solutions. We would not be working with our police or encouraging our own employees to better understand human trafficking and identify when we are dealing with a victim.

Does that mean that every case across the Commonwealth is handled with the appropriate sensitivity? Perhaps not. But as we talk more about human trafficking, as more treatment programs come into place, as we see more state-wide training, and as we see more groups outside of law enforcement and social services learn about human trafficking, there will be vast improvement.

I know the safe-harbor provision is well-intentioned. But in practice, it will help traffickers and result in more trafficking, rapes, and forced labor servitude. That is why both the PDAA as well as the Juvenile Court Judges Commission oppose the safe-harbor.

Finally, I did want to note a few comments on other provisions in the bill that some of my colleagues have pointed out. With regard to mandating law enforcement to report instances of human trafficking of minors to DHS, I would recommend that this provision be made part of the Child Protective Services Law (Title 23), so that the procedures for reporting would be the same as for any instance of child abuse. Additionally, while we like the idea of mandated fines against human traffickers, we should also think about mandated fines against those who commit other serious crimes, like rape and murder. A person who rapes or murders a 60 year old woman, for instance, should be subject to the same mandatory fine than a person who traffics a minor.

Chairmen Greenleaf and Leach, on behalf of my colleagues, thank you for the opportunity to speak with you. While we may disagree on the approach, I know we agree on the outcome we all desire. We can and should get there. We appreciate your willingness to hold a hearing and consider our position, and I hope that following this hearing we can continue our discussions to find additional solutions to this very real problem.

I believe the assistant district attorneys seated with me today can provide further insight into this issue and provide examples some of the cases and issues they have worked on.