The Importance Of Legal Liability

When drafting human trafficking legislation, drafters should establish the liability of legal persons (i.e. corporations, organizations, unions and associations). Traffickers often use businesses to facilitate human trafficking or to launder the proceeds of human trafficking. Penalties should include confiscation of assets which could then be used to aid victims.

The importance of legal liability was recently demonstrated in the case of Global Horizons, a company based in Los Angeles, that recruited people in Thailand for the purpose of labor exploitation on farms in Utah. More than 1,000 Thais were brought to the U.S. between 2004 and 2005, making this case potentially the largest case in U.S. history. Read more here.

U.S. State Department Gets It Wrong Again Part 2

In the 2010 Trafficking In Persons Report, the State Department lists the elements that it believes are necessary to "make a good trafficking in persons law", unfortunately, State completely misses the elements that are crucial to drafting a comprehensive, effective anti-trafficking law.

State asserts that a "good anti-trafficking law" should include "a broad definition of the concept of 'coercion'" and "a well-articulated definition of trafficking that facilitates effective law enforcement". Both statements are too vague to be useful (many governments have different ideas as to what constitutes "effective law enforcement" and definitions can be drafted to be so broad as to be unlawful) and should not be listed as best practices for drafting an anti-trafficking law.

The definition of human trafficking should contain the following:
(1) A list of suspect activities: recruitment, transportation, transfer, harboring, receipt of persons
(2) A list of means: threat or use of force, other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, giving or receiving of payments or benefits to achieve the consent of a person having control over another person
(3) Purpose: exploitation
(4) A list of the types of exploitation: exploitation of the prostitution of others, other forms of sexual exploitation, forced labor or services, slavery, practices similar to slavery, servitude, removal of organs
(5) A definition of human trafficking that defines the offense as a separate crime and not as an element of another crime
(6) A definition of human trafficking that requires individuals to have intentionally engaged in human trafficking
(7) A definition of human trafficking that clearly establishes that the consent of the victim is irrelevant when the trafficker has used any of the means (force, fraud, coercion, abduction, etc.) against the victim
(8) A definition of human trafficking that clearly establishes that, as per the UN Protocol, "the recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in persons'" even if it does not involve any of the means (force, fraud, coercion, abduction, etc.)
(9) A definition of human trafficking that defines a child as any person under eighteen years old
(10) A definition of human trafficking that establishes that the list of the types of exploitation is at a minimum, in other words the list is not exhaustive
(11) A definition of human trafficking in which every term contained within the definition is clearly defined

If all of these elements are included in the definition of human trafficking, the anti-trafficking law will be comprehensive and effective in combating human trafficking.

U.S. State Department Gets It Wrong Again Part 1

On June 14, the U.S. Department of State released the 2010 Trafficking In Persons Report. In the Report, the State Department presented a list of activities that are not trafficking in persons. The list is incorrect.

To begin with, the UN Trafficking Protocol represents standards that are required at a minimum to be included in anti-trafficking legislation in order to effectively combat human trafficking. This means that governments can include other elements in addition to those presented in the Trafficking Protocol to establish a comprehensive definition of human trafficking and to address unique aspects of human trafficking that occur within and across their borders.

In its list of what is not human trafficking, State included child pornography and the trade in human organs. State argues that child pornography is not human trafficking because it is not included in the U.S. definition of human trafficking. While this is legally true for the U.S., it does not mean, as State concludes, that child pornography can never be considered human trafficking anywhere in the world. Child pornography can and should be included within the definition of human trafficking and the law would still comport with the UN Protocol. State should use its power of diplomacy to advocate for the inclusion of child pornography in the definition of human trafficking not to advocate for its exclusion.

The paragraph on the trade in human organs is confusing at best. State begins by asserting that the trade in human organs is NOT a form of human trafficking and concludes that exploitation occurs when organs are purchased for a low price and that "such practices are prohibited under the Palermo Protocol...when traffickers use coercive means such as force or threats of force to secure the removal of the victim's organs". The list of the "means" contained within the Protocol is broader than force or threats of force. Human trafficking includes the means (threat or use of force, abduction, fraud, deception, abuse of power or of a position of vulnerability or giving or receiving payments or benefits to achieve the consent of a person having control over another person), the purpose (exploitation) and the type of exploitation (removal of organs). Instead of broadly stating that the trade in human organs is not human trafficking, State should follow the law and correctly state that when the trade in organs meets that criteria listed above, it is human trafficking and should be prosecuted as such and that price has nothing to do with whether human trafficking has occurred.

More On Legalized Prostitution And Human Trafficking

In an earlier post, I wrote that countries that legalize prostitution should not use the legalization of prostitution as an excuse to forgo passing anti-trafficking legislation. This statement is certainly true but I must emphasize that despite what advocates of legalized prostitution say, legalized prostitution does not decrease human trafficking, in fact, legalized prostitution increases the incidence of human trafficking. Governments that are serious about combating human trafficking should not legalize prostitution.

A recent German Study found that human trafficking for sexual exploitation increased after Germany passed laws legalizing prostitution. Not only was there an increase in the forced prostitution of African and Eastern European women by international criminal organizations, there was an alarming increase in the number of minors forced into prostitution.

In Nevada, a state that has legalized prostitution, there is significant and increasing human trafficking of women and children for sexual exploitation.

Legalizing prostitution is not the solution to human trafficking, it is part of the problem.

A Very Short Note On The Liability Of Legal Entities

Although not required by the UN Trafficking Protocol, governments should establish the criminal and civil liability of legal entities in their anti-trafficking laws. Traffickers often use legal entities such as travel agencies and employment agencies as a front for human trafficking. Traffickers also use legal entities to launder the proceeds of human trafficking.

A Note On Consent

The UN Trafficking Protocol states that "[t]he consent of a victim of trafficking in persons to the intended exploitation...shall be irrelevant where any of the means set forth...have been used." For example, if a person agrees to work for another person and upon arrival to the job, their documentation is confiscated or the person is held against their will, the fact that the person consented to work is irrelevant. If a victim consents at any time during the process of being trafficked and traffickers have used any of the illicit means, the consent of the victim is still irrelevant.

The UN Trafficking Protocol also states that "[t]he recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in persons' even if this does not involve any of the means set forth..." A prosecutor does not have to prove any of the illicit means in order to establish a case of child trafficking against a defendant.

It is important that states and governments properly address the issue of consent in their anti-trafficking legislation in order to effectively combat human trafficking and to be in compliance with the UN Trafficking Protocol. If the issue of consent is left unresolved, it will negatively affect implementation of anti-trafficking legislation by allowing the consent of the victim to be a defense to the charge of human trafficking.

A Primer On The Definition Of Human Trafficking

These are the required elements that must be included in a comprehensive definition of human trafficking:

(1) Acts: recruitment, transportation, transfer, harboring or receipt of persons

(2) Means (this list is not exhaustive and represents elements that should be included at a minimum): threatened use of force, use of force, coercion, fraud, threatened abuse of the legal process, abuse of the legal process, abuse of power, giving or receiving payments or benefits to achieve the consent of a person having control over another person

(3) Purpose: Exploitation
It is the purpose that defines the state of being trafficked. Therefore, it is exploitation, not smuggling or crossing international borders, that defines the state of being trafficked.

(4) Forms of Exploitation (the list is at a minimum): sexual exploitation, forced labor or services, involuntary servitude, peonage, debt bondage, slavery, removal of organs