Punishing Trafficking Offenders Adequately
Samya lived with her mother, step-father and three brothers in a small Cairo apartment. When her stepfather raped her, she ran away from home and started living on the streets at the age of 14. She met a group of street kids who, like her, had fled abuse at home. After two months on the streets begging for food and avoiding harassment from police, she met Shouq, an older lady who allowed some of the street girls to stay with her. The first night Samya stayed at Shouq’s apartment, Shouq told her she would have to earn her keep by having sex with male clients for the equivalent of $16. Samya, afraid to live on the streets and fearful of returning home, had sex with several men a day for nearly one year; Shouq kept all of the money.
The minimum standards found in the Trafficking Victims Protection Act call on foreign governments to prohibit all forms of trafficking, prescribe penalties for those acts that are sufficiently stringent to deter the crime and that adequately reflect the heinous nature of the crime, and vigorously punish offenders convicted of these crimes.
Legally Prescribed Penalties: In assessing foreign governments’ anti-trafficking efforts in the TIP Report, the Department of State holds that, consistent with the 2000 U.N. Convention Against Transnational Organized Crime (which is supplemented by the U.N. TIP Protocol), criminal penalties to meet this standard should include a maximum of at least four years’ deprivation of liberty, or a more severe penalty.
Imposed Penalties: The Department of State holds that imposed sentences should involve significant jail time, with a majority of cases resulting in sentences on the order of one year of imprisonment or more, but taking into account the severity of an individual’s involvement in trafficking, imposed sentences for other grave crimes, and the judiciary’s right to hand down punishments consistent with that country’s laws. Convictions obtained under other criminal laws and statutes can be counted as anti-trafficking if the government verifies that the offenses involve human trafficking.
Protecting Victims Adequately
The TVPA minimum standards’ criterion on victim protection reads:
“Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked.”
In every country narrative of the TIP Report, these three numbered elements are specifically addressed. In addition, the Department of State has decided to implement this criterion with the following guidelines:
In evaluating whether a country fully complies with this minimum standard for victim protection, the State Department considers the following to be critical factors:
1) Proactive identification: Victims should not be expected to identify themselves. They typically are afraid of coming forward and being considered criminals, irregular migrants, or disposable people by authorities. Formal screening procedures should go beyond checking a person’s papers. Some form of systematic procedure should be in place to guide law enforcement and other governmental or government-supported front-line responders in the process of victim identification.
2) Shelter and temporary care: A government should ensure that victims receive access to primary health care, counseling, and shelter that allows them to recount their trafficking experience to trained social counselors and law enforcement at a pace with minimal pressure. Shelter and assistance can be provided in cooperation with NGOs. Part of the host government’s responsibility includes funding for, and referral to, NGOs providing services. To the best extent possible, trafficking victims should not be held in immigration detention centers, or other detention.
The Department of State also gives positive consideration to two additional victim protection factors:
A. Victim/witness protection, rights and confidentiality: Governments should ensure that victims are provided with legal and other assistance and that, consistent with its domestic law, proceedings are not prejudicial to victims’ rights, dignity, or psychological well-being. Confidentiality and privacy should be respected and protected to the extent possible under domestic law. Victims should be provided with information in a language they understand.
B. Repatriation: Source and destination countries share responsibility in ensuring the safe, humane and, to the extent possible, voluntary repatriation/ reintegration of victims. At a minimum, destination countries should contact a competent governmental body, NGO or international organization in the relevant source country to ensure that trafficked persons who return to their country of origin are provided with assistance and support necessary to their wellbeing. Trafficking victims should not be subjected to deportations or forced returns without safeguards or other measures to reduce the risk of hardship, retribution, or re-trafficking.
Prevention: Spotlight on Addressing Demand
Kunthy and Chanda were trafficked into prostitution at ages 13 and 14. Held captive in a dilapidated structure in Phnom Penh that locals called the “Anarchy Building,” the girls were raped nightly and routinely beaten, drugged, and threatened by the brothel-keeper and pimps. The girls were released thanks to police intervention and placed in safe aftercare homes. The brothel owner and pimp were prosecuted, tried, and sentenced to 15 and 10 years in prison, respectively, for trafficking and pimping children. Today, Chanda lives in a local aftercare home where she receives excellent care; she wants to become an English translator. Kunthy’s dream is to own an Internet café and design Web sites for businesses. Right now, she works at a local NGO, attends a computer training school, and lives in a transitional housing facility that allows her both freedom and security.
Human trafficking is a dehumanizing crime which turns people into mere commodities. On the supply side, criminal networks, corruption, lack of education, and misinformation about employment opportunities and the degrading nature of work promised, together with poverty, make people vulnerable to the lures of trafficking—this is true of both sex trafficking and slave labor. Significant efforts are being made to address these factors that “push” victims into being trafficked, but they alone are not the cause. Increasingly, the movement to end human trafficking is focusing on the voracious demand which fuels this dark trade in human beings.
Demand for forced labor is created by unscrupulous employers who seek to increase profits at the expense of vulnerable workers through the unlawful use of force, fraud, or coercion. One key to addressing such demand for forced labor is raising awareness about the existence of forced labor in the production of goods. Many consumers and businesses would be troubled to know that their purchases—including clothes, jewelry, and even food—are produced by individuals, including children, subjected to slave-like conditions. Yet, in the global marketplace for goods, ensuring that complex supply chains are untainted by forced labor is a challenge for both businesses and consumers. Denying forced labor-made products access to foreign markets will ultimately reduce the incentive to exploit slave labor and encourage ethical business behavior. Increased information on export products and production chains—drawn from a variety of sources, including other governments—makes such efforts more effective. Any successful effort to combat sex trafficking must confront not only the supply of trafficked humans, but also the demand for commercial sex and labor trafficking which perpetuates it. U.S. policy draws a direct connection between prostitution and human trafficking. As noted in a December 2002 policy decision, the U.S. Government opposes prostitution and any related activities as contributing to the phenomenon of human trafficking.
In 2005, the UN Commission on the Status of Women adopted the U.S. resolution eliminating Demand for Trafficked Women and girls for All Forms of exploitation. This was the first UN resolution to focus on the demand side of human trafficking—the goal being to protect women and girls by drying up the “market” for trafficking victims, including by recognizing a link to commercial sexual exploitation.
Importance of Research
Indisputably, as a new field of inquiry and activism, anti-trafficking efforts will benefit from dedicated research, especially operational research designed to inform programming. An important example of the value of research, funded by the Office to Monitor and Combat Trafficking in Persons, is a groundbreaking study by Dr. Jay Silverman on sex trafficking and HIV within South Asia published in the Journal of the American Medical Association last summer. It has been estimated that half of all female sex trafficking victims in South Asia are under age eighteen at the time of exploitation. Yet, research on HIV and sexually-transmitted infections has rarely sought to identify adult or child trafficking victims. Dr. Silverman and his team partnered with major NGOs across India, Nepal and Bangladesh involved in rescue and care of sex trafficking victims to examine the phenomena of sex trafficking, HIV prevalence, and trafficking-related risk factors.
Among Nepalese women and girls who were repatriated victims of sex trafficking, the Silverman study found that 38 percent were HIV positive. The majority were trafficked prior to age 18. One in seven was trafficked before age 15, and among these very young girls, over 60 percent were infected with HIV. Why? Very young girls were more frequently trafficked to multiple brothels and for longer periods of time.
Silverman concludes that the girls at greatest risk for being infected with HIV (and for transmitting HIV) are the least likely to be reached by traditional HIV prevention models. He proposes collaboration among HIV prevention and human trafficking experts to develop efforts that simultaneously reduce HIV risk and identify and assist trafficking victims—a policy prescription supported by the U.S. Government’s interagency working group, the Senior Policy Operating Group.
The State Department is also currently underwriting research on male victims of human trafficking, focusing on sector-specific studies that will help guide future program funding decisions. Links to anti-trafficking research supported by the U.S. Government can be found at the web site: //2009-2017.state.gov/j/tip/.
Democracy and Human Trafficking
As already noted, our assessment of a country’s performance is based strictly on the trafficking-specific criteria stipulated by the TVPA.
Nevertheless, our broad study of the phenomenon of trafficking corroborates that healthy, vital democratic pluralism is the single most prevalent feature of states conducting effective anti-trafficking efforts. A vibrant democracy is the best guarantor of human dignity and respect for the human rights and fundamental freedoms of all persons, including women, children, prostituted people, and foreign migrants, who are among the vulnerable populations susceptible to trafficking.
In many countries, the disempowerment of such groups permits trafficking to flourish, because victims are reluctant to step forward to seek protection and redress under the law.
A key indicator of a vibrant democracy is the existence of an independent judiciary and the rule of law. In the context of trafficking, these are reflected in a government’s ability to hold traffickers to fullest account, notably in the form of sentencing reflecting the severity of the crimes they have committed.
The absence of corruption—or at least effective government responses to corruption when it does occur—is one element of the rule of law and critical to the fight against trafficking. Too often, victims seeking protection under the law from police, judges and immigration officials, find that those who should be their advocates are in fact furthering their degradation.
A strong and independent civil society, including cooperation between governments and NGOs, is yet another element of a healthy democracy, and a vital tool to effectively combat human trafficking. NGOs have played particularly important roles in many countries in the area of victim identification and support. By contrast, in other countries, government ambivalence or even hostility to NGOs and other civil society actors has at times hindered victim identification efforts, thereby limiting the ability of the government to effectively combat human trafficking. In light of the magnitude and global reach of this problem, collaboration between governments and NGOs is of critical importance to efforts to eradicate modern-day slavery.
While democracy does not guarantee the absence of slavery, and some struggling democracies and even autocratic regimes have effectively fought trafficking, autocracy and weak or ‘emerging’ democracies are less equipped to tackle this horrific human rights challenge. Respecting the human rights, fundamental freedoms, and dignity in full of women, people in prostitution, and migrants, holding traffickers fully to account, and expunging corruption as the catalyst of human trafficking, are matters of governing justly. In particular, an independent judiciary, the rule of law, and a dynamic civil society are the markings of governments that are governing justly, and are central to the success of modern day abolition efforts.