Gretchen Scavo is a partner at Winston Strawn LLP.

A new law in Illinois makes it easier for human trafficking victims to sue their perpetrators.  The law is called the Trafficking Victims Protection Act, and it took effect January 1, 2019. It helps victims deal with real-life obstacles they face in seeking justice.  This post summarizes some important parts of the Act and the rights it provides.

Victims of Human Trafficking and Involuntary Servitude

Under the Act, victims of human trafficking and involuntary servitude can sue their perpetrators.  Involuntary servitude is when a person forces another person to perform labor or services by:

• Physical harm or restraint
• Abusing the law or legal process
• Taking someone’s passport or other immigration document
• Financial control, or
• Threats

Human trafficking includes:

• recruiting,
• harboring, or
• transporting someone who will be subjected to involuntary servitude, and
• a person who knowingly benefits from involuntary servitude, even if the person did not individually engage in the conduct.

Victims of the Sex Trade

The Act also lets victims of the sex trade sue their recruiters. They can also sue anyone who profits from a sex trade act, or hurts a victim of the sex trade.  The sex trade includes:

• prostitution,
• pandering,
• pimping,
• exploiting a child,
• child pornography, and
• other related conduct.

Who can sue under the Act?

A victim of involuntary servitude, human trafficking, or the sex trade can sue under the Act. But the Act doesn’t stop there.  It also says that a legal guardian, agent, court appointee, or organization can sue on the victim’s behalf. Finally, the government may also sue.

What can a victim get?

If they win the case, a victim can get “all relief that would make him or her whole.”  That includes money, including the money that was received because of the acts. Some examples include:

• Monetary loss, including loss of the ability to earn money
• Money for death, personal injury, disease, and mental and emotional harm, including medical and rehabilitation expenses, pain and suffering, and physical impairment, and
• For victims of human trafficking or involuntary servitude, any wages required bylaw

How long does a person have to sue?

Victims have 25 years from the date they find out about the act and that the perpetrator caused it. In other words, the clock doesn’t start ticking until the victim knows about the abuse and also knows the perpetrator’s identity.

Special rules apply in certain circumstances to delay or pause the 25-year clock.  First, if there are two or more continuous acts by the same perpetrator, then the clock doesn’t start ticking until the victim finds the following two things. First, the last act occurred, and second, the perpetrator caused was responsible for or profited from the act.  Also, the clock doesn’t run while the victim is subject to threats, intimidation, manipulation, or fraud by the perpetrator or anyone acting on the perpetrator’s behalf.  And finally, the clock doesn’t start ticking until the victim is 18 years old. And if the victim is under a legal disability at the time the victim turns 18, the clock is further delayed until the disability is removed.

What is the victim’s burden of proof?

A “burden of proof” is how strong the evidence must be for a judge or jury to believe someone’s side of a lawsuit. In a criminal lawsuit, the government must prove its case “beyond a reasonable doubt.” A victim’s case under the Act is a civil one, so the burden of proof is “preponderance of the evidence.” In other words, “more likely than not.”  This is an important part of the law, especially because of the difficulties in locating physical evidence and convincing witnesses to speak out against perpetrators.

The Act expressly rejects several key “defenses”

The Act has an entire section of arguments that a perpetrator is not allowed to make when accused under the Act. These are termed “Non-defenses.” They include:

• The victim and the perpetrator had a marital or consenting sexual relationship
• The victim and the perpetrator are related by blood or marriage, or have lived together in any formal or informal household relationship
• The victim was paid or otherwise compensated for the sex trade, human, or other services
• The victim had engaged in sex trade activity or had been subjected to involuntary servitude or human trafficking before the perpetrator became involved
• The victim did not attempt to escape, flee, or otherwise end contact with the perpetrator
• The victim consented to engaging in acts of the sex trade, human, or other services;
• The offending act was a single incident or that it involved no physical contact
• The perpetrator has been acquitted or has not been investigated, arrested, or prosecuted for criminal law violations for the conduct at issue in the civil lawsuit, and
• It was illegal for the victim to engage in the sex trade activity, human or other services

Conclusion

The Trafficking Victims Protection Act of Illinois marks a significant step toward addressing the burdens and obstacles that victims of human trafficking, involuntary servitude, and the sex trade face in seeking justice from their perpetrators.  

Note: This blog was updated 9/30/19 to reflect the new statute of limitations under SB 1890. The limit went from 10 to 25 years.

This information is posted as a public service by Illinois Legal Aid Online and its partners. Its purpose is to inform people of their legal rights and obligations. Talk to a lawyer if you have questions about how this information applies to you.