Making children whom one is raising do chores — even on threat of child abuse — is not a federal ‘forced labor’ crime

So held the Sixth Circuit in yesterday’s United States v. Toviave; an excerpt (some paragraph breaks added):

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules. While his actions were deplorable, Toviave did not subject the children to forced labor. The mere fact that Toviave made the children complete chores does not convert Toviave’s conduct — what essentially amounts to child abuse — into a federal crime. Toviave’s federal forced labor conviction must accordingly be reversed.

Toviave immigrated to the United States from Togo in 2001 and eventually settled in Michigan. In 2006, he contacted Helene Adoboe, a girlfriend (sometimes referred to as his wife) from Togo, and asked that she and four children — Gaelle, Rene, Kwami, and Kossiwa — come and live with him in the United States. Kossiwa is Toviave’s younger sister, Gaelle and Rene are Toviave’s cousins (although their degree of consanguinity is unclear), and Kwami is Adoboe’s nephew. Adoboe and the children managed to enter the United States with false immigration documents. Adoboe initially lived with Toviave, but their relationship quickly soured, and the two separated in 2008.

Toviave apparently demanded absolute obedience from the children and was quick to beat them. Toviave hit the children with his hands, and with plunger sticks, ice scrapers, and broomsticks, often for minor oversights or violations of seemingly arbitrary rules. For example, Gaele testified that Toviave hit her in the face for using loose-leaf paper rather than a notebook to do her homework, and Kossiwa recounted an incident where Toviave hit her with a broomstick for throwing a utensil in the sink.

The children were responsible for different household chores. Toviave made the children cook, clean, and do the laundry. He also made the children pack up the house when the family moved to a new apartment, serve food to Toviave’s guests, iron Toviave’s clothes, and clean his van. Toviave also occasionally made the children babysit for the women he was dating, or for his relatives.

Toviave was not always cruel, however. He provided for the children by working two jobs, and also did yard work. Toviave bought the children sports equipment and let them play soccer. The children also participated in some recreational activities with Toviave: they exercised with him and went on family trips together. Toviave also put significant emphasis on education; many of his punishments appear to have stemmed from problems related to schoolwork. He hired a tutor to teach the children English. He also imposed mandatory study periods: the children had to be at the kitchen studying at 5:30 a.m. on school days. The children always attended school, and Toviave even created extra assignments and drills for the children to complete when they finished their school assignments….

Although Toviave’s treatment of the children was reprehensible, it was not forced labor. Three points compel this conclusion. First, forcing children to do household chores cannot be forced labor without reading the statute as making most responsible American parents and guardians into federal criminals. Second, requiring a child to perform those same chores by means of child abuse does not change the nature of the work. And third, if it did, the forced labor statute would federalize the traditionally state-regulated area of child abuse. In short, treating household chores and required homework as forced labor because that conduct was enforced by abuse either turns the forced labor statute into a federal child abuse statute, or renders the requirement of household chores a federal crime….

There are two ways, to be sure, in which Toviave’s case is distinguishable from that of ordinary parents requiring chores. One is that Toviave is not actually the victims’ parent or legal guardian, and the second is that the chores were enforced by reprehensible, abusive force. Neither distinction makes a difference, however, with respect to the federal crime of forced labor.

First, whether a person standing in loco parentis is an actual parent or legal guardian has little relevance one way or the other regarding forced labor. On the one hand a parent or guardian can commit forced labor, and is not immunized by that status. The forced labor statute contains no exception for parents or other close relatives, and at oral argument the Government said that parents can subject their children to forced labor under the statute. A forced-labor sweatshop could be run by a parent of one of the victims. For example, we have held that express parental acquiescence did not immunize cult leaders from liability under the analogous involuntary servitude statute.

On the other hand, one can easily think of a situation where a child is in the household of a thoughtful adult who temporarily brings that child into his or her home and takes responsibility for the child. Perhaps a grandmother has taken a child while the child’s single parent is in rehabilitation, or away on military duty. The law necessarily recognizes that assigning household chores does not require parental or guardian status, where there is a cooperative, homelike situation, even in far less sympathetic situations. Thus the legality of parents’ requiring their children to do chores does not depend on parental or guardian status. Indeed, so holding would undermine the ability to prosecute parents or guardians who commit forced labor of their children.

Second, the extremity of force is also not a determinant of forced labor, one way or the other. A parent who brutally beats a child to get the child to sit up straight or stop crying, or to punish a child for some slight misdeed is not guilty of forced labor. In that hypothetical, there may have been force, but there is no labor. On the other hand, paradigmatic forced labor, such as prostitution, forced sweatshop work, or forced domestic service, may be federally criminal even though the force is not physical at all, but merely psychological, such as isolation and pretended threats to the victim’s friends or relations. Thus the legality of parents’ requiring their children to do chores does not depend on the presence of physical force. Indeed, so holding would undermine the ability to prosecute those who commit forced labor by psychological coercion.

One may ask what harm is done if child abuse without forced labor is deemed to be a federal crime. The harm is the federalization of state law. If it is the degree of force that turns what otherwise is not criminal forced labor into a federal crime, then it is the degree of force that is criminalized.

In other words, the incidental presence of tasks turns the state crime of child abuse into a federal crime. “Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.” In recognition of that fact, the Supreme Court has shied away from reading criminal statutes as making “traditionally local criminal conduct … a matter for federal enforcement.” In Michigan, an individual that “knowingly or intentionally causes physical harm to a child” is guilty of child abuse in the third degree. In fact, child abuse is a crime in every other state as well. Indeed, in a case involving child abuse, albeit where the issue was abstention, the Supreme Court recognized that “[f]amily relations are a traditional area of state concern.”

The Supreme Court has moreover “cautioned … that ‘unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance’ in the prosecution of crimes.” The forced labor law contains no sufficiently clear statement that it applies to the child abuse in this case….

The line between required chores and forced labor may be a fine one in some circumstances, but that cannot mean that all household chores are forced labor, with only the discretion of prosecutors protecting thoughtful parents from federal prosecution. The facts of this case fall on the chores side of the line….

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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