Part of the Family?. Sheila Bapat

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СКАЧАТЬ individual in a market of juridical equals governed strictly by economic laws of supply and demand, is the bedrock of the purportedly universal category of labor under capitalism.”²⁵ The vestiges of slavery flourish along with this demand, as does the economic vulnerability of people who provide cheap labor.

      As far in the past as slavery may seem, the practice continues to play a role in today’s America. Domestic servitude in the United States (and around the world) influences how many domestic workers are treated, and is often rife with abuse. Legally termed “human trafficking,” the abuse of domestic workers includes the denial of compensation, the demand that laborers work around the clock, and, above all else, the threat or infliction of physical or emotional abuse. The International Labour Organization (ILO) estimates that 2.4 million people are trafficked worldwide each year, about 17,500 of them in the United States.²⁶ Over the years, human trafficking specifically for labor purposes has continued to plague the United States: in 2012, a report released by California attorney general Kamala Harris pointed out that many of those who are trafficked into or within the United States each year are hired into domestic labor situations.²⁷ According to the US government’s Trafficking in Persons Report:

       A century and a half [after emancipation], slavery persists in the United States and around the globe, and many victims’ stories remain sadly similar to those of the past. It is estimated that as many as 27 million men, women, and children around the world are victims of what is now often described with the umbrella term “human trafficking.” The work that remains in combating this crime is the work of fulfilling the promise of freedom—freedom from slavery for those exploited and the freedom for survivors to carry on with their lives.²⁸

      While human trafficking is often associated primarily with sex trafficking, labor trafficking is in fact more common, but far less likely to be reported.²⁹ Commercial sexual exploitation represents a sizeable part of forced labor and tends to be more widely known and understood among the general public, but the majority of forced laborers actually engage in domestic, agricultural, or sweatshop labor; work in nail salons, factories, construction projects, farming, or hotels.³⁰ There are approximately 8.1 million forced laborers in the non-sex economy around the world, and it is estimated that the United States profits to the tune of $4.5 billion annually through labor trafficking, equaling approximately $4,500 per laborer.³¹ Worldwide, $32 billion is made annually by the exploitation of trafficked victims.

      Trafficking victims who end up in domestic servitude are often imprisoned or forced to live in the homes of their employers, who confiscate their passports and other documents. From 2007 through 2012, the United States human trafficking hotline received nearly nine hundred calls related to domestic servitude.³² And given how daunting it is for most trafficked victims to ask for help, many illegal or exploitative situations are believed to go unreported. Much like Shanti Gurung, who lived through unbearable conditions for over three years, many trafficked victims either never seek help or wait until their lives are hanging by a thread.

      The Shield of Diplomatic Immunity

      Compounding the lack of protections for domestic workers who work for diplomats, the diplomats themselves are immune from prosecution for the crimes they commit against their workers. Under the Vienna Convention on Diplomatic Relations, a current diplomatic agent enjoys near absolute immunity from civil jurisdiction. This immunity is given full effect under United States law, pursuant to the Diplomatic Relations Act, which states that “any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the [VCDR] ... shall be dismissed.”³³ As the preamble to the VCDR recognizes, “The purpose of such ... immunit[y] is not to benefit individuals but to ensure the efficient performance of functions of diplomatic missions as representing States.”³⁴

      Under the Vienna Convention, diplomats can argue that their position as a state officeholder means they cannot be held liable for crimes they commit against people who work in their homes. However, there are narrow exceptions to diplomatic immunity, including:

       1. A real action relating to private immovable property.

       2. An action relating to succession.

       3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.³⁵

      There is a dispute as to whether “domestic labor” is considered a commercial activity. As the American Bar Association points out in its guide Meeting the Legal Needs of Human Trafficking Victims:

       Many advocates contend that hiring a domestic servant also constitutes a commercial activity. Circuits are split on this issue. A suit brought under the Vienna Convention disagreed with that view, although a suit brought under the Foreign Sovereign Immunities Act, did recognize domestic work as a commercial activity…. The arguments for the commercial activities exception to apply are arguably weaker in the context of an intersections case where there is not likely to be any formal hiring process or contractual employment relationship.³⁶

      In actuality, however, the commercial activities exception has not often been a successful way of securing relief for domestic workers, given how expansive the reach of diplomatic immunity tends to be.³⁷ The only times domestic workers have been able to obtain legal judgments against their diplomat employers have been after the employers’ service ended and they no longer held diplomatic status, a far more narrow status known as “residual immunity.”³⁸

      In 2009, Vishranthamma Swarna became the first domestic servant to win a default judgment against her diplomat employer based on the theory of residual immunity. Since a former diplomat has immunity only for “‘acts performed . . . in the exercise of his functions as a member of the mission,’” the court had to determine whether Vishranthamma’s employer’s actions were “private acts,” and therefore not covered by immunity, or “official acts,” which fell within residual immunity. The court ruled that the diplomat’s hiring of Swarna was not connected with his diplomatic role with the state because, as attorney Jennifer Hoover Kappus has written, “the employment of a household worker was intended strictly to manage his personal affairs, and thus did not fall within Article 3 of the Vienna Convention which stipulates the official functions of a diplomat.”³⁹ While the ruling in this case is encouraging, deeper reforms of the Vienna Convention are necessary to ensure that workers are able to hold their diplomat employers accountable in court.

      Ultimately, while the Malhotras could have tried to hide behind the shield of diplomatic immunity in the Shanti Gurung case, they chose not to. In fact, they did not defend themselves at all, as they failed to respond to the original complaint or make any court appearances. They simply ignored the case, as well as the judgment against them, and Shanti has yet to receive the $1.5 million judgment owed to her. Despite this, with Adhikaar and the Urban Justice Center’s support, Shanti has been connected to a better work situation, knows her rights and how to access resources, and is now leading a life free from abuse.

      Access to Justice

      Fortunately, as the case of Shanti Gurung shows, there is a network of resources available to assist trafficking victims and mistreated domestic workers. While many domestic workers can access these resources only if they are able to leave their abusive situation long enough to connect with someone from the outside world, recent years have brought a surge of activists and lawyers who are committed to aiding, empowering, and representing domestic workers.

      One of the first avenues for relief for many domestic workers is the Trafficking Victims Protection Act (TVPA) of 2000 (subsequently reauthorized in 2003, 2008, and 2013).⁴⁰ The TVPA defines trafficking as follows:

       Sex trafficking in which a commercial sex act is induced by force, СКАЧАТЬ