Tuesday, November 24, 2015

Child Advocacy Practicum Hosts "Advocating for our Adolescents" Forum

Hurt people hurt people. It's a vicious cycle that oftentimes began in the home for many United States juveniles lost within the pipeline.

On Thursday, November 19, Regent University School of Law's (LAW) Child Advocacy Practicum hosted "Advocating for our Adolescents," a panel discussion exploring what serves "the best interest of the child" in the realm of crime and punishment.
Special guests were brought to campus by Brittany Tabb '16 (LAW), who currently works with Lynne Kohm, associate dean of LAW Faculty Development & External Affairs and the Child Advocacy Program, and The Clapham Group, which represents clients to address modern-day injustices.

Abby Skeans '14 (LAW), an associate at The Clapham Group, took the practicum at Regent when the program was in its infancy. Kohm said that she is happy to see her students care for such important issues such as making sure incarcerated children are "treated like human beings."

"I knew Brittany was very interested in juveniles as in terms of the legal requirement for how to treat children when they're in court. I knew it should be Brittany, and she's done a great job," said Kohm. "She just has a heart for this."

The juvenile reform panel included Judge Patricia West, distinguished professor and associate dean of students in LAW, and Linda Filippi, executive director of Tidewater Youth Services Commission. Together they discussed the past, present and future of juvenile justice reform in the Commonwealth of Virginia.

"I believe that prevention is cheaper than correction," said Gabriel Morgan Sr., sheriff of Newport News, Virginia, who was present for the panel. He said the "do the crime, do the time" philosophy of punishing non-violent juvenile delinquents is nothing more than a "codification of sound bytes."

He noted that it takes up to $31,000 a year to house one adult in a correctional facility and $155,000 to place one juvenile. On the flip side, $8,000-$9,000 is the average annual cost per student for K-12 education.

"We need to put our money up front and help them read, so that we don't have to pay in the back end," said Morgan.

According to Linda Bryant, deputy attorney general for Virginia's Criminal Justice and Public Safety Division, children who witness traumas at a young age are more likely to replicate them. This is why she believes in a mentorship, having spent much of her career finding children who had run away – and even going so far as to become a godmother to a six-year-old client who had witnessed her mother's violent death.

"If you're a decent person, you can't turn your back when the case is done," said Bryant. For Judge Randall Blow, who serves in the Virginia Beach Juvenile and Domestic Relations District Court, the solution for dropping crime statistics among juveniles is finding more programs for parents.

"Children have to learn that they can't walk all over authority," said Blow. "Most of the time this happens, because 'the apple doesn't fall far from the tree.'"

He called for a "creative" and more flexible sentencing process that has less "zero tolerance policies" and uses "common sense." To him, "sparing the rod" isn't always an effective method for crime-prevention.

But for Gina Lyles, program leader at Art 180 Atlas Center, "prisons don't work." By many accounts, Lyles admittedly fits the description: witnessed trauma at a young age, an absent father figure, and a mother who was in and out of drug recovery programs. It was this chronic trauma which led her to landing in what she calls the "prison pipeline" herself at the age of 23.

"What helped me was watching my mother recover – she is my role model," said Lyles. "I went to therapy and acquired self-love and became a part of society."

The event also included a Juvenile Justice Art Exhibit & Panel of artwork by youth in the Richmond Juvenile Detention Center through an exhibit entitled, “Performing Statistics” featured in Robertson Hall. 
Learn more about Regent University's School of Law.

Tuesday, November 10, 2015

CAS Moot Court Team Takes Top Three - Prepares for National Tournament

Battling 44 teams and 88 competitors, Regent University undergraduate students took the top three places in the Moot Court Mid-Atlantic Regional Tournament November 6 and 7 at Regent University. These top teams will go on to compete in a national tournament at California State University at Long Beach.

Eight teams from Regent competed in the tournament. Five of these teams placed within the top 16. Two Regent students received top-five speaker awards. Michael Maunder received second and Abigail Lisa received fourth. Marie Dienhart, a third-year law student in Regent’s School of Law, coached the team to success.

"Regent Law's Moot Court Board enjoyed hosting the ACMA Competition to foster the appellate advocacy skills of aspiring law students," said 3L Matthew Dunckley,Vice Chairman and Legal Research Director of Regent Law's Moot Court Board. 

By Brennan Smith

Wednesday, April 22, 2015

JGJPP - Defending Religious Liberty Against All Enemies, Foreign and Domestic

When we think of serious threats to religious liberty, our minds naturally turn to the Middle East, Africa, and other foreign lands. They don’t primarily turn to the United States. Yet while circumstances are different and the threats are of higher magnitude overseas, it is important to remember that we are ultimately protecting and defending the same right to religious liberty—whether the battle is foreign or domestic.

Internationally, the Universal Declaration of Human Rights (“UDHR”) describes religious liberty protections as follows: “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”[1] This right is similarly described in the legally binding International Convention on Civil and Political Rights (“ICCPR”), which provides that “[e]veryone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[2] The ICCPR also provides that “[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”[3]

Domestically, religious freedom also means more than just the right to hold certain beliefs. Statutory protections meant to bolster the First Amendment’s Free Exercise Clause explicitly protect a “religious exercise” defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”[4] The Supreme Court recently affirmed the idea that “Free exercise . . . implicates more than just freedom of belief. It means . . . the right to express those beliefs and to establish one’s religious . . . self-definition in the political, civic, and economic life of our larger community.”[5] Well-developed case law supports this view.

Whether foreign or domestic, religious liberty includes the legal right to do more than merely hold certain beliefs or possess an identity. It means the ability to live out and act on those beliefs, manifesting them in various ways as they shape our humanity.

Yet this manifestation of religious exercise is being threatened—both overseas and at home. In foreign lands, opponents of religious liberty want to minimize the right described in the UHDR and ICCPR in the name of anti-conversion laws. Thus, there is “freedom of worship” but no freedom of religion, for if people changed their religion that would constitute “blasphemy.”

Domestically, the robust practice of faith is threatened by the HHS “accommodation” forced upon charities and others under the Affordable Care Act. Religious individuals running certain nonprofits have objections to being forced to be complicit in the provision of drugs and services which they believe cause abortions and end human life. Yet the federal government has sought to involve them in this process anyway, dismissing their conscience objections.

This “accommodation” issue, as is true of blasphemy laws and “freedom of worship” overseas, are ultimately battles not over whether “freedom of religion” must exist—but over what it means. Not many are arguing at this point that freedom of religion is nonexistent. They just don’t want it to interfere with what they perceive as their rights, and want to define it on their own terms. The above are only several examples meant to highlight a larger problem—the ongoing attempts to reduce the contours and chip away at the definition of the free exercise right. We must be on the lookout for all threats to this right which diminish it from its true, full, and robust form—whether foreign or domestic.

Travis Weber, Esq., is Director of the Center for Religious Liberty at the Family Research Council. Before joining FRC, Travis worked in private practice, primarily litigating federal civil rights cases, and handling military and criminal defense matters. A graduate of the U.S. Naval Academy and former Navy pilot, Travis holds a J.D. from Regent University School of Law, where he served as the Notes & Comments Editor on Law Review. Travis also graduated with an LL.M. in International Law (with distinction) and a Certificate in International Human Rights Law from Georgetown University Law Center.

[1] Universal Declaration of Human Rights, G.A. Res. 217A, art. 18, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR] (emphasis added).
[2] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), art. 18, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR] (emphasis added).
[3] Id. (emphasis added).
[4] 42 U.S.C. § 2000cc-5 (emphasis added).
[5] Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2785 (2014) (internal citation omitted) (emphasis added).

Monday, March 16, 2015

JGJPP - The Effect of South Africa’s Anti-Human Trafficking Legislation on the International Trafficking of Children

            The South African Bill of Rights[1] is foundational[2] in South African democracy, and clearly states, “No one may be subjected to slavery, servitude or forced labour.”[3] The Bill of Rights also includes a special provision for children that includes, “Every child has the right . . . (f) not to be required or permitted to perform work or provide services that ­— (i) are inappropriate for a person of that child's age; or (ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development.”[4] The South African Constitution and Bill of Rights were adopted in 1996, thus making South Africa a relatively young democracy. Therefore, many of South Africa’s challenges are found in the tension between traditional customs and new law.
            In the United States Department of State’s 2013 Trafficking in Persons Report, South Africa is listed as a Tier 2[5] country, and thus does not fully comply with the minimum standards for the elimination of trafficking.[6] However, in July 2013, South Africa’s President signed into law the 2013 Prevention and Combating of Trafficking in Persons Act (the Act).[7] Before the Act[8], “South Africa [did] not have a legal definition of human trafficking, either in the common law or in statute.”[9]
            “The absence of legislation specific to human trafficking limit[ed] prosecutors to dealing only with the perpetrator directly linked to the offences resulting from the trafficking of the victim, to the exclusion of the perpetrators behind the scenes, as this is often an organised crime activity.”[10] Furthermore, prosecutors had to rely on statutory[11] and common law[12] offenses, “which [did] not individually attract necessarily as heavy sentences as a specific trafficking in persons offence . . . impose[d].”[13] It is important to note that before the Act was implemented, the South African legislature did amend acts to include some coverage of human trafficking issues,[14] and created a ‘strategy’ to approach the issue.[15]
A.        Prosecution Examples of Traffickers
            Thus far, the government’s prosecutions have been “low-level cases,” and not “larger, international syndicates involving Nigerian, Russian, Bulgarian, Chinese, and Thai traffickers who dominate the sex trade in several South African cities.”[16] There have only been three trafficking convictions in the country’s history, one of which was overturned on appeal.[17] “The March 2010 Thai sex trafficking convictions were overturned on appeal because the court translator who was fearful for her safety had covered her face during the proceedings.”[18]
            Before the Act, trafficking prosecutions were often brought under the Sexual Offenses Act (SOA) or the Basic Conditions of Employment Act of 1997 (BCEA) which prohibits forced labor.[19] The Prevention of Organized Crime Act of 1998 was also used in combination with the SOA to add additional charges, “including money laundering, racketeering, and criminal gang activity[,]” and harsher penalties.[20]            
            The first child trafficking conviction occurred in 2008 in the Gauteng province.[21]  Aldina dos Santos “was charged under the Child Care Act for exposing a child to abuse,”[22] and was sentenced to life in prison in 2011.[23] Dos Santos trafficked three girls between the ages of fourteen- and seventeen-years-old from Mozambique, and ran a brothel in Moreleta Park where the girls were used as sex slaves.[24]
            In 2012, the Grahamstown High Court convicted a sex trafficker and sentenced him to ten years imprisonment for “procuring an 11-year old girl for an Eastern Cape man” [25] This case is another example of a statutory conviction, convicting the defendant of conspiracy under the Sexual Offenses Act.[26] The prosecution of a Mozambican woman and a South African businessman for the sex trafficking of five Mozambican girls was initiated in February 2013 in the Sabie Magistrate's Court.[27]
             With the Act in place, there should be more successful prosecutions of traffickers in the future.  In addition to clearly making trafficking in persons a criminal offense, the Act also created offenses such as “debt bondage; the possession, destruction, concealment of and tampering with travel documents; and using the services of victims of trafficking . . . .”[28] Notably, the Act outlines a procedure to avoid the prosecution of a trafficking victim for an offense “committed as a direct result of the person’s position as a victim of trafficking.”[29] The Act provides a legal framework to prevent trafficking, prosecute traffickers, and protect trafficking victims.
B.        Challenges in Law Enforcement   
            South Africa’s government faces the obstacles of collusion and a lack of intervention by the law enforcement sector.
            Research studies show police collusion “range from receiving money from the gang leader to having sex with the children . . . .”[30] According to Niole Fick, a Sex Worker Education and Advocacy Taskforce (SWEAT) researcher, “[o]ur experience indicates that the highest levels of violence against sex workers come from the police and law enforcement sectors.”[31] Furthermore, SWEAT reports that “[t]hirty percent of sex workers who have made statements to SWEAT have been forced to have sex with police officers.”[32]
            There have also been reports of police involvement in child trafficking.[33] In 2010, Media 24 uncovered a trafficking ring that trafficked young girls between Mozambique and South Africa.[34] The girls were easily smuggled across the Lebombo border by “'friendly policemen.'”[35] Project Tsireledzani[36] indicates that the Lebombo border is not the only ‘friendly’ border, as children without proper documentation are allowed to cross the Bloemfontein/Maseru border with Lesotho if the child is accompanied by an adult.[37] It is also common for children to be brought into South Africa without documentation after “an adult . . . [came] into South Africa and register[ed] several children under his guardianship” with the help of collusion within government agencies.[38]
            Specific to the trafficking of children, “[a] police official to whom a report has been made . . .” is mandated by the Act to “deal with that child in terms of section 110(4)[39] of the Children’s Act . . . .”[40] Naturally, whether the police official fulfills his or her Act-mandated duties affects the prosecution of traffickers, and also the ability of supporting agencies to fulfill their duties. For example, the provincial department of social development is mandated to, “without delay, in the prescribed manner, assess whether the child . . . is a victim of trafficking, after taking into account the prescribed information obtained from the South African Police Service.”[41] Police intervention is thus crucial in the ability of supporting agencies to fulfill their duties. Therefore, effectiveness of the anti-human trafficking laws depends on the functionality of law enforcement authorities. Collusion within law enforcement authorities is impeding South Africa’s progress in providing children adequate protection from traffickers.

[1]S. Afr. Const., 1996, ch. 2.
[2] “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” Id. § 7(1).
[3] Id. § 13.
[4] Id. § 28.
[5] Tier 2 countries are “[c]ountries whose governments do not fully comply with the TVPA’s [Trafficking Victims Protection Act] minimum standards, but are making significant efforts to bring themselves into compliance with those standards.” Tier Placements, U.S. Dep’t of State, http://www.state.gov/j/tip/rls/tiprpt/2013/210548.htm (last visited Nov. 11, 2014).
[6]  The Department of State “evaluates whether the government[s] fully compl[y] with the TVPA’s minimum standards for the elimination of trafficking.” The Department also “considers whether their governments [have] made significant efforts to bring themselves into compliance.” Trafficking in Persons Interim Assessment, U.S. Dep’t of State (Feb. 20, 2014), http://www.state.gov/j/tip/rls/reports/2014/221821.htm.
[7] Prevention and Combating of Trafficking in Persons Act 7 of 2013 (S. Afr.), available at http://www.justice.gov.za/legislation/acts/2013-007.pdf (last visited Nov. 11, 2014).
[8] “Technically, human trafficking in South Africa is not illegal because SA does not currently have a legal definition of human trafficking. . . . This does not mean that the traffickers cannot be prosecuted . . . . prosecutors . . . apply the existing legal framework. . . .” Frequently asked Questions, tsireledzani, http://www.tsireledzani.gov.za/Content.aspx?id=94 (last visited Sept. 5, 2014). 
[9]Human Trafficking Strategy, S. Afr. Gov’t Online, http://www.gov.za/aboutgovt/programmes/humantrafficking/strategy.htm (last visited Nov. 11, 2014) [hereinafter Human Trafficking Strategy]. The Act defines “[t]rafficking in persons” as
4. (1) Any person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of the Republic, by means of — (a) a threat of harm; (b) the threat or use of force or other forms of coercion; (c) the abuse of vulnerability; (d) fraud; (e) deception; (f) abduction; (g) kidnapping; (h) the abuse of power; (i) the direct or indirect giving or receiving of payments or benefits to obtain the consent of a person having control or authority over another person; or (j) the direct or indirect giving or receiving of payments, compensation, rewards, benefits or any other advantage, aimed at either the person or an immediate family member of that person or any other person in close relationship to that person, for the purpose of any form or manner of exploitation, is guilty of the offence of trafficking in persons.
Prevention and Combating of Trafficking in Persons Act 7 of 2013 § 4(1) (S. Afr.).
[10] Human Trafficking Strategy, supra note 9.
[11] "Statutory offences are provided for in the Sexual Offences Act, the Riotous Assemblies Act, the Immigration Act, the Basic Conditions of Employment Act, the Intimidation Act, the Domestic Violence Act and the Prevention of Organised Crime Act." S. Afr. Law Reform Comm’n: Project 131 Trafficking in Persons 12 (Aug. 2008) (footnotes omitted).
[12] Under the common law, a person can be charged with kidnapping, common assault, assault with intent to cause grievous bodily harm, attempted murder and murder, extortion, and slavery. Id. at 12–13.
[13] DN Swart, Problems Surrounding the Combating of Women and Child Trafficking in Southern and South Africa, 12(1) Child Abuse Res.: S. Afr. J. 26, 26 (2011).
[14] These additions include: Chapter 18 of the Children's Act [Children's Act 38 of 2005 §§ 281–291]; Section 50(A) of the Child Care Act [Child Care Act 74 of 1983 § 50(A) (S. Afr.)], and Chapter 5 of the Criminal Law (Sexual Offences) Amendment Bill [Criminal Law (Sexual Offences) Amendment Bill, 2003, Bill 50-2003]. U.N.E.S.C.O., Policy Paper No. 14.5(E): Human Trafficking in South Africa: Root Causes and Recommendations, at 45–48, U.N.E.S.C.O. Doc. SHS/CCT/2007/PI/H/6, (2007).
[15] The government created a “Human Trafficking Desk within the Organised Crime Unit at the South African Police Service (SAPS).” Human Trafficking Strategy, supra note 9. Also, “[t]he presidential mandate of the SOCA [Sexual Offences and Community Affairs] Unit is to deal efficiently and effectively with sexual offences,” and as such, SOCA has been tasked with the “[e]stablishment of an inter-sectoral Task Team to commence a process of coordination and refinement of activities towards the development of a multi-sectoral and comprehensive strategy.” Id.  The following departments and agencies comprise the Task Team: SAPS (the Human Trafficking Desk, Organised Crime Unit; Ports of Entry Policing); Department of Justice & Constitutional Development (Legislative Directorate); Department of Home Affairs (International Affairs); International Organisation for Migration; Department of Social Development; Department of Labour; Molo Songololo; United Nations Office on Drugs and Crime. “The Task Team identified six pillars of a national strategy to effectively address trafficking in persons, as an instance of organised crime: Information, Capacity-Building & Development, Victim Assistance & Integration, Policy & Legislation Development, Liaison & Consultation as well as Monitoring & Evaluation.” Id.
[16] U.S. Dep’t of State, Trafficking in Persons Report,335 (2013) [hereinafter Trafficking in Persons Report], available at http://www.state.gov/j/tip/rls/tiprpt/2013/index.htm (last visited Nov. 30, 2014).
[17] Id. at 334–35.
[18] Id. at 335.
[19] See id. at 334.
[20] Id.
[21] Stop Sex Trafficking of Children & Young People, Ecpat, http://www.ecpat.net/sites/default/files/Factsheet_South_Africa.pdf (last visited Nov. 30, 2014). Moreleta Park is located in the Gauteng province.
[22] Id.
[23] Human Trafficker Gets Life Sentence, News24 (July 20, 2011, 2:29 PM), http://www.news24.com/SouthAfrica/News/Human-trafficker-gets-life-sentence-20110720.
[24] Id.
[25] Trafficking in Persons Report, supra note 16, at 335.
[26] Id.
[27] Id.
[28] Anti-Trafficking Bill Signed into Law in South Africa, Int'l Org. for Migration (Aug. 6, 2013), http://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2013/pbn-listing/anti-trafficking-bill-signed-int.html.
[29] Prevention and Combating of Trafficking in Persons Act 7 of 2013 § 22(1) (S. Afr.), available at www.justice.gov.za/legislation/acts/2013-007.pdf (last visited Nov. 11, 2014).
[30] Molo Songololo, The Trafficking of Children for Purposes of Sexual Exploitation – South Africa 59 (2000), available at http://issuu.com/molosongololo/docs/the-trafficking-of-children-for-the-purpose-of-sex?e=2837260/2661184.
[31] Swart, supra note 13, at 31.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] “[A] research project commissioned by the National Prosecuting Authority of South
Africa and by the Human Sciences Research Council of South Africa on the dimensions of
human trafficking in Southern Africa.” Id.
[37] Id. at 32.
[38] Id.
[39]          A police official to whom a report has been made . . . or who becomes aware of a child in need of care and protection must—(a) ensure the safety and well-being of the child concerned if the child’s safety or well-being is at risk; and (b) within 24 hours notify the provincial department of social development or a designated child protection organisation of the report and any steps that have been taken with regard to the child.

Children's Amendment Act 41 of 2007 § 110(4) (S. Afr), available at http://web.up.ac.za/sitefile/43ChildrenAmendment41.pdf (last visited Sept. 12, 2014).
[40] Prevention and Combating of Trafficking in Persons Act 7 of 2013 § 18(4)(b) (S. Afr.), available at www.justice.gov.za/legislation/acts/2013-007.pdf (last visited Sept. 12, 2014).
[41] Id. § 18(6).