Holding on to Clarity: Reconciling the Federal Kidnapping Statute with the Trafficking Victims Protection Act

In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States' efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, endangers the due process rights of potential defendants, and risks rendering the criminal provisions of the TVPA superfluous. This Note argues that those broader interpretations are incorrect as a matter of proper statutory interpretation, and especially when considered in light of the passage of the TVPA. It further contends that, in kidnapping-by-deception cases, the prosecution must demonstrate that the defendant intended to back up the deception with force or the threat of force if his ruse failed.INTRODUCTIONCourts have recognized that slavery and involuntary servitude are evolving threats to human rights-likely to morph into forms designed to evade the letter of the law-at least since the period immediately following the passage of the Thirteenth Amendment.1 In the modern world, slavery and involuntary servitude manifest themselves in the form of human trafficking.2 As commentators and the public alike have become aware over the past decade, the problem of human trafficking "has reached epidemic proportions."3 Indeed, there are "more people in slavery today than ever before."4 The 2014 edition of the Walk Free Foundation's Global Slavery Index estimates that approximately 35.8 million people are held as slaves today,5 which is especially startling when compared to estimates placing the total volume of people sold into slavery during the course of the Trans-Atlantic slave trade around 12 million.6Congress responded to this threat in 2000 by passing the Trafficking of Victims and Violence Protection Act of 2000,7 more commonly known as the Trafficking Victims Protection Act of 2000 (TVPA).8 The TVPA combats human trafficking holistically by providing for the implementation of programs to prevent human trafficking, programs to protect and assist victims, and provisions focused on the prosecution of human traffickers.9 In particular the TVPA modifies the provisions of the U.S. Code criminalizing forced labor in order to combat human trafficking.10But there are also other statutes used to prosecute defendants in trafficking cases.11 The federal kidnapping statute (§ 1201(a)) is one of these independent avenues for prosecution.12Traffickers often take advantage of members of vulnerable populations by inducing them into forced labor.13 One attribute that differentiates human trafficking from other crimes is the frequency with which traffickers utilize psychological coercion and deception to control their victims, sometimes without any corresponding use of physical force or threats.14 Section 1201(a) requires both a "taking" and a "holding" of a victim.15 Although the statute clearly contemplates a "taking" by deception, it is not clear whether continued trickery or falsehood alone is enough to constitute a "holding."16 As the Second Circuit recently recognized, the question of whether the use of deception alone would allow for prosecution under § 1201(a)-without the intention to use physical force if psychological coercion fails-has divided the federal circuits.17The Fifth and Eighth Circuits have answered that question in the affirmative.18 The Eleventh Circuit, by contrast, has concluded that the prosecution must show a willingness to back up the deception, if it were to fail, with the use of force or threats. …