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, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; [or] the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.41
The TVPA mandates that the State Department provide workers with a pamphlet explaining their rights and available resources in the event of exploitation. The law also gives consular officers discretion to evaluate whether a worker will face abuse in a given situation, and requires the State Department to record workers’ arrivals and departures from the United States as well as allegations of abuse.42 Along with the federal trafficking law, most states have enacted anti-trafficking legislation of their own, with New Jersey, Washington, California, New Mexico, and New York among the states with the most robust policies in place.43
To ensure they receive the legal protections of anti-trafficking legislation, domestic workers need the support and advocacy of community organizers and direct services providers. The power of the direct services model is best illustrated by the track record of the Institute for Policy Studies (IPS), a think tank that offers case management services for victims of trafficking. From 1997 to 2010, IPS assisted hundreds of trafficking victims, all of whom were domestic workers serving within the homes of diplomats.44 Most of the workers were African, Southeast Asian, or South Asian immigrants—some of the most underserved, under-resourced, and under-networked of the domestic worker population. With funding from the Department of Health and Human Services authorized by the TVPA—as well as money from private foundations—IPS was able to connect workers to food, shelter, health care, and legal services for a thirteen-year period before staff departures in 2010 began to limit the group’s ability to provide these services. By that time, other social work agencies had begun taking on this work. “We were running a social services agency out of a think tank,” says Tiffany Williams, advocacy director of IPS’s Break the Chain campaign, “but we had to: we were their only lifeline to the outside world.”
Expanded direct services and advocacy networks on behalf of domestic workers and trafficked victims have helped more and more domestic workers to become aware of their rights and to bring cases against their abusive employers. Rocio Avila, an attorney with the Golden Gate University School of Law’s Women’s Employment Rights Clinic, represents domestic workers who sue for fair wages and overtime. Avila believes that these expanding resources, all with a presence on the Internet, enable more domestic workers to connect with advocates who can help them. Grassroots groups like the South Bay Coalition to End