Drafters should note that “abuse of a position of vulnerability” is a widely disputed element of the definition of sex trafficking in many international instruments and national laws.
The UN Trafficking Protocol Interpretive Note further defined abuse of a position of vulnerability to mean “as referring to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.” While this offers clarification as to the apparent consent of a victim, it raises additional questions for its use as a ‘means’ element of trafficking in persons. (See:UNODC travaux preparatories, (C) Interpretive Note, Subparagraph (a), UNODC, 2006) Additional clarification is needed by further defining vulnerabilities and also how this definition relates to both the “acts” and “means” by which a person is trafficked.
For guidance on this issue, drafters should consult the UNODC Issue Paper on Abuse of a Position of Vulnerability and other “Means” Within the Definition of Trafficking in Persons. (See: UNODC Issue Paper on Abuse of a Position of Vulnerability and other “Means” within the Definition of Trafficking in Persons, 2012
Drafters should include additional clarifications in sex trafficking laws to explicitly describe the vulnerabilities of trafficking victims, and how this relates to the means by which an individual is trafficked. Various legal instruments describe this vulnerability as follows:
Having entered the country illegally or without proper documentation; or
Pregnancy or any physical or mental disease or disability of the person, including addiction to the use of any substance; or
Reduced capacity to form judgments by virtue of being a child, illness, infirmity or a physical or mental disability; or
Promises or giving sums of money or other advantages to those having authority over a person; or
Being in a precarious situation from the standpoint of survival; or
(See: UNODC Model Law Against Trafficking in Persons, Art. 5 commentary)
“Trafficking in human beings” means the recruitment, transportation, transfer, harbouring or receipt of a person for the purpose of sexual commercial or non-commercial exploitation, through forced labour or services, in slavery or in conditions similar to slavery, use in armed conflicts or in criminal activity, removal of organs or tissues for transplantation, performed through: threat with the use or actual use of physical or mental violence not dangerous to the life and health of the persons, including kidnapping, seizure of documents and bondage, aimed at the repayment of a debt, the amount of which is not reasonably established; deceit; abuse of the vulnerable condition or abuse of power, offering or acceptance of payments or other benefits in order to obtain the consent of a person holding control over another person, with the use of violence dangerous for the life and physical or mental health of the person; torture, inhuman or degrading treatment, in order to ensure the obedience of the person, or rape, taking advantage of physical dependence, use of arms, threat of disclosure of confidential information to the family of the victims or to other persons, as well as through other means.
The Court continued, clarifying that, “any kind of vulnerability: mental, affective, family, social or economic. It encloses the range of desperate situations that may make a human being accept his/her own exploitation.” ( See: Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons, UNODC Issue Paper, p. 34-35, 2012)
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