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

Human Trafficking: The Way Forward

The International Organization for Migration (IOM) recently released a report entitled "Human Trafficking: New Directions for Research". In the report, the IOM purports to "assess the current state of trafficking research, identify current knowledge gaps, share innovative research and data collection methods and highlight the importance of evaluation and assessment of counter trafficking programmes." Unfortunately, the report fails to address the key issues that impede international anti-trafficking programs.

The primary way forward is to stop fighting the definition of human trafficking that is contained within the UN Protocol. More time, energy and resources are spent fighting the definition of human trafficking than in fighting the problem of human trafficking. In the report, the authors argue against the definition of human trafficking and advocate broadening the definition to accomodate different cultures and social concerns. A broad, vague definition of human trafficking would make human trafficking difficult to prosecute because it would create confusion as to what actions constitute human trafficking.

The authors also complain that the trafficking of men and boys, as well as labor trafficking, are never studied. However, as long as people are focused on fighting the definition of human trafficking, these issues will never be addressed.

Finally, countries that legalize prostitution should not use the legalization of prostitution as an excuse to forgo passing anti-trafficking legislation.