Moving Toward a Decade of Delivery - Prosecution
The majority of the world’s countries have ratified the Palermo Protocol, which requires the prohibition and punishment of human trafficking crimes. Most of these countries have enacted adequate legislation to criminalize trafficking in persons as defined by the Palermo Protocol. Although 62 countries have yet to achieve a trafficking conviction, the aggregate number of prosecutions and convictions has been steadily rising over the last three years – from 5,212 prosecutions and 2,983 convictions obtained globally in 2008, to 6,017 prosecutions and 3,619 convictions in 2010.
Sadly, the number of prosecutions is far outweighed by the number of arrests and investigations. And successful prosecutions of sex trafficking offenses far outnumber successful forced labor prosecutions. Confronting labor trafficking can be more difficult, both politically and socially. Unlike sex trafficking, labor trafficking crimes are often committed by persons perceived as respected members of society or accomplished business leaders, who are less likely to be investigated than unsavory characters involved in organized crime or living unlawfully off the proceeds of the commercial sex trade. Despite this obstacle, an increasing number of countries have been able to identify, prosecute, and criminally punish forced labor cases. These successes are driven by commitments of political will, ongoing law enforcement training, and a fuller understanding of trafficking as a crime of modern slavery. These successes can be intensified by publicity that opens the public’s eyes to the full scope of this crime and outreach that assures vulnerable groups that they will be protected if they seek help.
Interviewing Trafficking Victims: A Little Goes a Long Way
Building a successful prosecution against a trafficker will typically require some level of assistance and cooperation from the victim. By employing careful interviewing strategies, law enforcement officials are more likely to gain victims’ trust, thereby increasing the odds of their participation in the criminal justice process.
Many trafficked persons have suffered months or years of physical and psychological abuse, displacement from familiar surroundings, and negative interactions with law enforcement or other government officials. Law enforcement officials must consider the fear the victim may be experiencing, the victim’s fragile emotional state, and the victim’s physical needs, and they must adapt the interview accordingly.
While specialized police or prosecution units can focus on cultivating interviewing expertise, everyone can benefit from the following basic victim-centered interview techniques.
Allay fears. Traffickers often hold victims in servitude through fear of their arrest and deportation by police and immigration authorities. Once identified by law enforcement, victims’ first thoughts are often not of rescue, but of the trauma of a raid and fear of arrest, deportation, and potential retaliation by the trafficker. They may have been provided with a cover story by their captors. Thus, their initial statements are often either incomplete or even falsely exculpate the trafficker.
To help avoid this situation, the following techniques have proven effective:
- Hold the interview in a non-threatening and comfortable location;
- Hold the interview outside the presence of others swept up in the operation that freed the victim (even other potential victims can have a negative effect, not to mention enforcers or accomplices who have blended in with the victim population);
- Never interview the victim within sight of the trafficker;
- Explain that the focus of the investigation is the trafficker, not the victim;
- Describe the victim’s rights, the interview process, and the roles of everyone involved;
- Express prior knowledge and experience with similar cases;
- Cross-reference information from other interviews being conducted and incorporate facts into the questions, giving the victim the feeling that the interviewer has done a sophisticated investigation into the traffickers’ operation and that the traffickers will not be released or able to retaliate;
- Make it known that a non-governmental service provider will arrange shelter, medical care, and food for the victim; and
- Ask if the victim has any questions or fears.
Demonstrate care and respect. Counteracting the victim’s preconceptions or fear of law enforcement can put survivors at ease and encourage candor. Police and prosecutors can use the following simple techniques to emphasize that they are trying to assist rather than arrest:
- Wear street clothes without obvious signs of law enforcement status, such as weapons;
- Provide food and drink, and incidentals including tissues, regular breaks, and a place where the victim can gain their composure;
- Use a professional interpreter who signed a confidentiality agreement to ensure accurate communications and to ensure that the trafficker’s associates are not involved and that the victim’s community is not informed of the crime;
- Be knowledgeable about the victim’s cultural background including social etiquette, religious observances, societal status, ethnic ties, clothing, and attitudes toward prostitution;
- Accommodate, when appropriate, the victim’s preference for an interviewer and interpreter of a specific gender or culture.
Meet physical needs. If immediate basic needs such as medical care, food, and housing are not met, it may be difficult for a victim to engage fully in an interview process. To overcome this potential impediment, law enforcement could conduct a brief initial interview and then plan for a more extensive interview after the victim has been assisted by a non-governmental service provider. When mounting a rescue for which there has been advance notice, United States Immigration and Customs Enforcement agents now use a pre-packed care kit that contains a casual shirt and pants, underwear, socks, and basic toiletries, and they will often provide victims with temporary housing so they can sleep and eat before being interviewed. Relationships between law enforcement agencies and service providers are extremely beneficial; the latter can be available during a pre-planned trafficking raid, and the former can have reliable referrals at a moment’s notice.
At best, NGOs could participate in raid planning so that they are prepared to engage quickly and bring their insight into the victims’ particular culture or ethnic community.
Obstacles to Effective Prosecutions: Notions of Consent and Denouncement
Article 3(b) of the Palermo Protocol establishes that the consent of trafficking victims to their exploitation shall be irrelevant where any of the means set forth in the protocol have been used. These means include threat or use of force or other forms of coercion, abduction, fraud, deception, the abuse of power or of a position of vulnerability, and the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. In a nutshell, victims’ initial agreement to immigrate illegally or to do a certain type of activity – such as farm labor or prostitution – does not excuse their subsequent enslavement in that activity. This legal norm is in keeping with the notion that core human rights cannot be waived.
In many countries, however, due to an incomplete understanding of Palermo provisions or of human trafficking as modern slavery, victims are blamed for being trafficked, and prosecutions fall apart. This directly undercuts the modern recognition that force, fraud, and coercion overbear the victims’ will. The notion that people exercised agency in their initial agreement to work or travel does not show that they did not later withdraw their consent to appalling working conditions, little or no pay, and intimidation or violence. Likewise, sex trafficking victims’ previous engagement in prostitution does not mean that they consented to activities like forced drug use, unprotected sex, forced abortions, or sex against their will for the profit of a pimp. In the case of children, moreover, no improper means need to be established for the trafficking act to constitute a criminal offense, as children cannot consent in these circumstances.
A similar impediment to trafficking prosecutions is that some governments, including many in Latin America, require a formal complaint, or denunciation, to be filed by a private citizen for a trafficking prosecution to be initiated. In countries with high levels of organized crime or violence, an NGO or private citizens who are not trafficking victims often refrain from linking their names with such public complaints for fear of compromising their own safety. Victims themselves will typically refrain from filing an official complaint because they fear retaliation, distrust that the system will work for them as opposed to the trafficker, or desire anonymity. This may be the most rational choice where victim protections are nonexistent, inadequate, or insufficient in protecting the victims’ families.
But if the system is waiting for a denunciation, and nobody comes forward, then there will be no prosecutions, and traffickers will operate with impunity.
A solution to this problem is a legal system allowing authorities to initiate investigations and prosecutions of human trafficking offenses without a complaint filed by the victim or a private individual. This can take the form of a proactive investigation into organized crime networks or a system that allows the state, rather than the victim, to file the complaint, an innovative legal reform recently announced by the Government of Argentina for forced labor cases.