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We worked from 4pm till late night or early morning with three to four clients a day. Sometimes we used condoms, but sometimes we didn’t. Most of the clients were foreigners who didn’t speak my language and didn’t care about my age. I didn’t know how to contact the police and I didn’t know if the police would even care. I wanted to run away, but was scared the gang would find me and kill me. My self-loathing grew, so I began injecting myself with drugs. I tried to numb myself from the pain so I wouldn’t feel anything at all.¹

These are the words of a young girl who was a victim of human trafficking.² Loreta is not the only victim of this horrific crime, as human trafficking is an ever-increasing industry.³ The International Labour Organization estimates that more than 20.9 million individuals are currently the victims of forced labor, and an estimated 4.5 million of these individuals are forced into human sex trafficking.⁴ Human sex trafficking is “the fastest-growing business of organized crime and the third-largest criminal enterprise in the world.”⁵ Many victims of this crime are adult and adolescent women.⁶ According to the Federal Bureau of Investigation:

[T]he business of human sex trafficking is much more organized and violent. These women and young girls are sold to traffickers, locked up in rooms or brothels for weeks or months, drugged, terrorized, and raped repeatedly. These continual abuses make it easier for the traffickers to control their victims. The captives are so afraid and intimidated that they rarely speak out against their traffickers, even when faced with an opportunity to escape.⁷

It is assumed that if an individual knows that a prostitute was coerced into sex trafficking, then the individual will not have sex with the prostitute; however, this is not always the case.⁸ Individuals who have sex with girls involved in sex trafficking typically have knowledge of the sex trafficking industry and potentially even know that their prostitute has been sex trafficked.⁹ One instance of this abnormality is the continued sexual exploitation of young women by private military contractors.

Over the last decade there has been a rise in the military’s use of private military contractors (PMC) as the United States has sought to reduce its budget.¹⁰ The United States has acknowledged that this increase in PMC deployments has contributed to the issue of human trafficking, as there have been several negative side effects of the implementation of PMCs.¹¹ First, there has been an increased number of incidences of PMCs involvement in labor and sex trafficking (often during peacekeeping operations).¹² Second, there is little to no way of policy enforcement to reprimand PMCs involvement in human sex trafficking.¹³ Third, incidences of PMCs involvement in sex trafficking have led to a plethora of bad publicity for the United States and its military.¹⁴

This Note first examines the military’s increased use of Private Military Firms (PMF) and PMCs. This Note next discusses previous PMF and PMC labor and sex trafficking violations. This note further analyzes the current laws in place to prevent PMF and PMC involvement with human trafficking, and the implementation of prior policies. Likewise, this Note analyzes why current laws, such as the Trafficking Victims Protection Act (TVPA), have failed. Finally, this Note concludes by proposing a solution that will provide a way to prosecute PMFs and PMCs involved in sex trafficking violations while forcing governmental agencies to cut ties with PMFs and PMCs that violate trafficking laws.

I. HISTORY

A. History of Military Sexual Exploitation

“Throughout history, women have been treated as spoils of war; wherever there has been military occupation, incidents of rape and sexual assault have been prevalent. . . . [S]exual abuse of women has been regarded as an inevitable feature of war.”¹⁵ Over time, the nexus between military deployment and sexual assault has not diminished.¹⁶ Even today, the effects of military deployment in otherwise cold conflicts nevertheless negatively impact women.¹⁷ Recently, a Department of Defense (DOD) report on human trafficking showed women being rushed to an area of war by traffickers to meet the needs of the military personnel stationed in the area.¹⁸ The culture of the military and its views and actions towards women and sexuality are largely to blame for these demoralizing problems.¹⁹ The recent trend towards utilizing PMCs in place of military personnel has intensified hostile actions towards women in various PMC job locations since PMCs often carry the same cultural views towards women;²⁰ yet there is a lack of current legislation to provide for efficient and adequate prosecution of PMC involvement in human trafficking.²¹

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1 EQUALITY NOW, SURVIVOR STORIES: LORETA 22 (2014), http://www.equalitynow.org/sites/default/files/Survivor_Stories.pdf.
2 Id. See also Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, adopted Nov. 15, 2000, 2237 U.N.T.S. 319, 344 (entered into force Dec. 25, 2003) (defining trafficking in persons as “the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”).
3 Amanda Walker-Rodriguez & Rodney Hill, Human Sex Trafficking, FBI L.
ENFORCEMENT BULL., Mar. 2011, at 2, https://leb.fbi.gov/2011/march/leb-march-2011. See generally Human Trafficking, UNITED NATIONS OFF. ON DRUGS & CRIME, https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html (last visited Oct. 29, 2015) (noting that every year human trafficking affects thousands of men, woman, and children).
4 New ILO Global Estimate of Forced Labour: 20.9 Million Victims, INT’L LABOUR ORG. (June 1, 2012), http://www.ilo.org/global/about-the ilo/newsroom/news/WCMS_182109 /lang–en/index.htm.
5 Walker-Rodriguez & Hill, supra note 3, at 2.
6 U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 6 (2006), http://www.state. gov/documents/organization/66086.pdf.
7 Walker-Rodriguez & Hill, supra note 3, at 3.
8 Cf. Angela Snell, Note, The Absence of Justice: Private Military Contractors, Sexual Assault, and the U.S. Government’s Policy of Indifference, 2011 U. ILL. L. REV. 1125, 1139– 40 (2011) (noting that while the U.S. government implemented regulations to guarantee their employees did not engage in human trafficking, “it is doubtful that the regulations will accomplish their laudable objective, since [c]ontractors are unlikely to self-report.”) (alternation in original).
9 Cf. id. at 1139–40, 1160 (noting that even though the Department of Defense “adopted a zero-tolerance policy on trafficking activities for military personnel” trafficking scandals involving military contractors still persisted).
10 See id. at 1129.
11 See Enforcing U.S. Policies Against Trafficking in Persons: How Is the U.S. Military Doing?: Briefing Before the Comm’n on Sec. & Cooperation in Eur. & the H. Armed Servs. Comm., 108th Cong. 4, 7 (2004) (statement of Rep. Christopher H. Smith, Chairman, Comm’n on Sec. and Cooperation in Eur., and Ambassador John R. Miller, Director, Office to Monitor and Combat Trafficking in Persons, U.S. Department of State).
12 See id. at 2, 7.
13 See id. at 4 (statement of Rep. Christopher H. Smith, Chairman, Comm’n on Sec. and Cooperation in Eur.).
14 See id. at 2–3.
15 Snell, supra note 8, at 1127–28, 1134. “In 2003, nearly thirty percent of female veterans from Vietnam through the first Gulf War surveyed by psychologist Anne Sadler and her colleagues said they were raped in the military. A 1995 study of female veterans reported that ninety percent had been sexually harassed, which was defined broadly as anything from being pressured for sex to being leered at by fellow service members. Military reports placed the number of sexual assaults in the military at 2670, but the Pentagon itself estimates that eighty to ninety percent of military sexual assaults are never reported and that the figure given is probably grossly inaccurate.” Id. at 1133.
16 See id. at 1158–59. See also Mindy Kotler, The Comfort Women and Japan’s War on Truth, N.Y. TIMES (Nov. 14, 2014), http://www.nytimes.com/2014/11/15/opinion/comfortwomen-and-japans-war-on-truth.html?_r=0 (discussing the Japanese military’s official policy of using comfort women during WWII, and recent attempts by the Japanese government to discredit the historical record).
17 Snell, supra note 8, at 1132.
18 See U.S. DEP’T OF DEF., ASSESSMENT OF DOD EFFORTS TO COMBAT TRAFFICKING IN PERSONS: PHASE II—BOSNIA-HERZEGOVINA AND KOSOVO 7 (2003), www.dodig.mil/ FOIA/ERR/HT-Phase_II.pdf (discussing evidence of sex trafficking by various multinational military related personnel in post-conflict Bosnia and Herzegovia).
19 Snell, supra note 8, at 1132–33.
20 See id. at 1133.
21 U.S. DEP’T OF DEF., supra note 18, at 7, 10.

† B.A. 2010, Vanguard University of Southern California; J.D. 2016, Regent University School of Law.

The post FIGHTING WAR AND FURTHERING SLAVERY: THE ALARMING TRUTH ABOUT PRIVATE MILITARY FIRMS AND THE SOLUTION TO END THEIR INVOLVEMENT IN HUMAN SEX TRAFFICKING appeared first on Regent University School of Law.

BAD LAW AND BAD POLICY: WHY THE MILITARY SELECTIVE SERVICE ACT IS UNCONSTITUTIONAL IN LIGHT OF THE POLICY DECISION TO ALLOW WOMEN TO SERVE IN COMBAT ROLES IN THE MILITARY

JGJPP — Mon, 19 Aug 2024 21:42:33 +0000

BAD LAW AND BAD POLICY: WHY THE MILITARY SELECTIVE SERVICE ACT IS UNCONSTITUTIONAL IN LIGHT OF THE POLICY DECISION TO ALLOW WOMEN TO SERVE IN COMBAT ROLES IN THE MILITARY

Zachary S. Whiting* | 1 Regent J. Glob. Just. & Pub. Pol. 293 (2015)

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Constitutional Law, Domestic Law, Military, Public Policy

INTRODUCTION

This Note analyzes the legal and policy considerations of the Military Selective Service Act (“MSSA”), military conscription, and the role of men and women in combat. The author begins this Note by providing a historical context, reviewing the various legislative iterations of the Selective Service System and selective implementations of the registration and conscription requirements. The author then reviews the case law interpreting the Selective Service System, with a heavy review of the seminal case Rostker v. Goldberg,^[¹^] in which the Supreme Court of the United States upheld the constitutionality of the MSSA against a Fifth Amendment due process challenge.

The author proceeds to make several legal and policy arguments and presents possible solutions. First, the author considers the constitutionality of the MSSA in light of the Defense Department’s decision to end restrictions on women in combat roles and open up combat positions to women in all branches of the military. The author argues that in light of recent developments, Rostker v. Goldberg is no longer the controlling precedent and the MSSA is unconstitutional. Second, the author considers possible solutions to remedy these constitutional concerns. While requiring women to register with the Selective Service System may alleviate some of the constitutional infirmities of the MSSA, the author argues that this is bad policy. Ultimately, the author concludes that Congress should repeal the MSSA and eliminate the registration and conscription requirements altogether and rely on an all-volunteer force.

HISTORICAL BACKGROUND

A. Various Legislative Iterations of the Selective Service System

1. Selective Service Act of 1917

The origins of the modern registration and draft regime began with the Selective Service Act of 1917 (“the 1917 Act”), enacted on May 18, 1917.^[²^] Even before the United States entered World War I, Congress and the President sought to increase the size of the regular army and reserve component through the National Defense Act of 1916.^[³^] Frustrated that volunteer enrollment was not meeting the benchmarks set by the National Defense Act, Congress passed and President Woodrow Wilson signed the Selective Service Act of 1917.^[⁴^]

The Selective Service Act of 1917, passed a month after Congress declared war against Germany, was designed to increase the number of troops available to fight in World War I.^[⁵^] The phrase “Selective Service” “refers to the need to be selective when conscripting from the local community because of the economic hardship placed upon the Nation during a draft.”^[⁶^] The goal of the 1917 Act was to increase the regular army to full force and increase the reserve component.^[⁷^] The means of achieving this goal was a regime of systematic registration for conscription rather than voluntary enlistment.^[⁸^] The 1917 Act contained a registration provision that “made it the duty of those liable to the call to present themselves for registration on the proclamation of the President so as to subject themselves to the terms of the act and provided full federal means for carrying out the selective draft.”^[⁹^]

The 1917 Act created conscription categories into which registrants were placed, created local boards that facilitated the registration and classification process, and allowed for certain classes to be deferred or exempted from the registration and conscription requirements (e.g., ministers, divinity students, married persons with dependents, or conscientious objectors).^[¹⁰^] There were three registration cycles during World War I:

The first, on June 5, 1917, was for all men between the ages of 21 and 31. The second, on June 5, 1918, registered those who attained age 21 after June 5, 1917. (A supplemental registration was held on August 24, 1918, for those becoming 21 years old after June 5, 1918. This was included in the second registration.) The third registration was held on September 12, 1918, for men age 18 through 45.^[¹¹^]

The constitutionality of the 1917 Act was challenged in the courts and upheld by the Supreme Court of the United States in 1918 in the Selective Draft Law Cases.^[¹²^] Approximately twenty-four million men registered for the draft^[¹³^] and more than 1.66 million men were drafted under the 1917 Act.^[¹⁴^] The World War I Selective Service System, originally designed to be temporary, was liquidated and eventually phased out:

After the signing of the armistice of November 11, 1918, the activities of the Selective Service System were rapidly curtailed. On March 31, 1919, all local, district, and medical advisory boards were closed, and on May 21, 1919, the last state headquarters closed operations. The Provost Marshal General was relieved from duty on July 15, 1919, thereby finally terminating the activities of the Selective Service System of World War I.^[¹⁵^]

2. Selective Training and Service Act of 1940

Another looming world war led to the adoption of the first peacetime registration and conscription regime in American history.^[¹⁶^] The Selective Training and Service Act of 1940 (“the 1940 Act”) was enacted on September 16, 1940.^[¹⁷^] Similar to the 1917 Act, the 1940 Act initially “authorized the President to ‘create and establish a Selective Service System . . . and [to] establish within the Selective Service System civilian local boards . . . .’”^[¹⁸^] The World War II regime employed a lottery system to draft soldiers.^[¹⁹^] When the United States entered into World War II, the 1940 Act was amended to require men between the ages of eighteen and sixty-five to register, and made men between the ages of eighteen and forty-five eligible for conscription.^[²⁰^] By the end of World War II, more than ten million men had been drafted under the 1940 Act.^[²¹^]

The 1940 Act also contained a number of deferments and exemptions from the registration and conscription requirement for those in certain occupations, married with dependents, ministers and divinity students, and conscientious objectors.^[²²^] The constitutionality of the 1940 Act was challenged in the courts on a number of grounds—namely, lack of Congressional authority, the nondelegation doctrine, and religious freedoms—but the lower federal courts consistently upheld the 1940 Act.^[²³^]

Like the 1917 Act, the 1940 Act was intended to be temporary; the Act was allowed to expire, and the System was liquidated:^[²⁴^]

The Selective Service System created by the 1940 Act was terminated by the Act of March 31, 1947, which established an Office of Selective Service records “to liquidate the Selective Service System, which liquidation shall be completed as rapidly as possible after March 31, 1947, but in any event not later than March 31, 1948 . . . .”^[²⁵^]

3. The Current System: The Military Selective Service Act

The beginning of the Cold War and concerns about the rise and spread of communism led to a renewed call for a registration and conscription regime.^[²⁶^] The result was the creation of the current Selective Service regime, which has gone through several name changes and substantive amendments since it was adopted in 1948 as the Selective Service Act of 1948.^[²⁷^] The 1940 Act had expired and the previous regime had been liquidated by the time the 1948 Act was enacted.^[²⁸^] The court in Groupp noted, “although patterned after the organization created in 1940, the Selective Service System established in 1948 was a new and separate system. It has remain[ed] in existence, albeit with amendments, extensions, and changes of name, since 1948.”^[²⁹^]

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453 U.S. 57, 78–79 (1981). ︎
See Selective Draft Act, ch. 15, 40 Stat. 76 (1917) (codified as amended at 50 U.S.C. § 451 et seq. (2012)). ︎
National Defense Act of 1916, ch. 134, 39 Stat. 166 (1916) (codified as amended in scattered sections of 10 & 32 U.S.C.). ︎
See Selective Draft Law Cases, 245 U.S. 366, 375–76, 380–81 (1918); see, e.g., Jeremey K. Kessler, The Administrative Origins of Modern Civil Liberties Law, 114 COLUM. L. REV . 1083, 1102 (2014). ︎
Selective Draft, 245 U.S. at 375. ︎
SELECTIVE SERV. SYS., SELECTIVE SERVICE SYSTEM: AMERICA’S INSURANCE POLICY 10, available at http://www.sss.gov/PDFs/Educational%20Materials/Primer.pdf. ︎
See Selective Draft, 245 U.S. at 375–76. ︎
See id. ︎
Id. at 376. ︎
See id; see also Anne Yoder, Military Classifications for Draftees, SWARTHMORE C. PEACE COLLECTION, http://www.swarthmore.edu/library/peace/conscientiousobjection/MilitaryClassifications.htm (last visited Dec. 15, 2013). ︎
World War I Selective Service System Draft Registration Cards, M1509, NAT’L ARCHIVES, http://www.archives.gov/research/military/ww1/draft-registration/index.html (last visited Feb. 22, 2015). ︎
Selective Draft, 245 U.S. at 381. ︎
NATIONAL ARCHIVES, supra note 11, at 1. ︎
SELECTIVE SERV. SYS., supra note 6, at 11. ︎
NATIONAL ARCHIVES, supra note 11, at 2. ︎
See Selective Service Records, NAT’L ARCHIVES, http://www.archives.gov/st-louis/archival-programs/other-records/selective-service.html (last visited Dec. 15, 2013). ︎
Selective Training and Service (Burke-Wadsworth) Act of 1940, ch. 720, 54 Stat. 885 (repealed 1973). ︎
United States v. Groupp, 459 F.2d 178, 180 (1st Cir. 1972). ︎
See Take a Closer Look at the Draft, NAT’L WWII MUSEUM, http://www.nationalww2museum.org/learn/education/for-students/ww2-history/take-a-closer-look/draft-registration-documents.html (last visited Dec. 15, 2013). ︎
See Selective Training and Service Act §§ 2–3; cf. Yoder, supra note 10 (noting the age range became eighteen to sixty-five during World War II, whereas the Selective Training and Service Act originally set the range as twenty-one to thirty-six). ︎
SELECTIVE SERV. SYS., supra note 6, at 11. ︎
See Yoder, supra note 10. ︎
See, e.g., United States v. Lambert, 123 F.2d 395, 396 (3d Cir. 1941); United States v. Herling, 120 F.2d 236, 236 (2d Cir. 1941); United States v. Newman, 44 F. Supp. 817, 822 (E.D. Ill. 1942); United States v. Garst, 39 F. Supp. 367, 367 (E.D. Pa. 1941); Stone v. Christensen, 36 F. Supp. 739, 743 (D. Or. 1940); United States v. Cornell, 36 F. Supp. 81, 83 (D. Idaho 1940) (all rejecting challenges that Congress lacked authority to require registration and conscription during peacetime). See also Seele v. United States, 133 F.2d 1015, 1019-20 (8th Cir. 1943) (rejecting challenge based on nondelegation doctrine); Rase v. United States, 129 F.2d 204, 210 (6th Cir. 1942) (rejecting challenge based on religious freedom). ︎
SELECTIVE SERV. SYS., supra note 6, at 10. ︎
United States v. Groupp, 459 F.2d 178, 180 (1972). ︎
See SELECTIVE SERV. SYS., supra note 6, at 10. ︎
Military Selective Service Act, 50 U.S.C. app. §§ 451–471(a) (1948); Groupp, 459 F.2d at 180 n.6 (“In 1951, the name was changed to the ‘Universal Military Training and Service Act.’ Pub. L. 82-51, § 1, 65 Stat. 75, June 19, 1951. The name was changed in 1967 to the ‘Military Selective Service Act of 1967.’ Pub. L. 90-40, § 1, 81 Stat. 100, June 30, 1967. In 1971, the name became the ‘Military Selective Service Act.’ Pub. L. 92-129, § 101(a), 85 Stat. 348, September 28, 1971.”). ︎
Id. at 180. ︎
Id. ︎

* Zachary graduated from the Regent University School of Law in 2014. He graduated summa cum laude and Phi Beta Kappa from Stetson University in 2010 with a B.A. in Political Science. Zachary thanks Matthew Poorman for his editorial guidance, and Professor David Wagner for his service as faculty advisor during the writing of this Note.

The post BAD LAW AND BAD POLICY: WHY THE MILITARY SELECTIVE SERVICE ACT IS UNCONSTITUTIONAL IN LIGHT OF THE POLICY DECISION TO ALLOW WOMEN TO SERVE IN COMBAT ROLES IN THE MILITARY appeared first on Regent University School of Law.