Drafters should include a provision for restitution to trafficking victims where none is already included in the criminal code or other laws.
Legislation should provide that a survivor of sex trafficking must receive restitution as part of the criminal case against the offender if the offender is convicted or accepts a plea without regard for the offender’s economic circumstances.
Legislation should provide that all victims of sex trafficking must be informed of their rights to restitution and compensation.
Legislation should require a process that does not penalize victims for delaying their request for restitution or compensation. The process should take into account barriers which victims of sex trafficking face when reporting that they have been victims, such as language barriers, private spaces, literacy barriers, barriers due to displacement, and confidentiality.
Compensation should not be a substitute for other criminal penalties for the offender. (UN Handbook 3.11.5)
Legislation should provide for the creation of a government-sponsored compensation or reparations programme which entitles survivors to apply for and receive fair compensation regardless of whether the case is charged or if the offender is found guilty. (See: UN Handbook 3.11.5)
Restitution should be one of the many criminal sanctions imposed upon the trafficker upon conviction. Judges should give priority to restitution over fines. Restitution should include:
- Return of property;
- Payment for the harm or loss suffered;
- Reimbursement for expenses incurred as a result of the victimization, provision of services and restoration of rights, including:
o Costs of medical, physical, psychological or psychiatric treatment;
o Costs of physical and occupational therapy or rehabilitation;
o Costs of necessary transportation, temporary childcare, temporary housing or the movement of the victim to a safe residence;
o Lost income and due wages according to national law and regulation regarding wages;
o Legal fees and other costs or expenses incurred, including costs incurred related to the participation of the victim in the criminal investigation and prosecution process;
o Payment for non-material damages, resulting from moral, physical or psychological injury, emotional distress, pain and suffering suffered by the victim as a result of the crime committed against him or her;
o In the case of an offence resulting in death, or bodily injury that results in death, the costs and expenses of necessary funeral and related services; and
o Any other costs or losses incurred by the victim as a direct result of being trafficked and reasonably assessed by the court.
(See: UNODC Model Law Against Trafficking in Persons, Art. 28, 2009; Polaris Project Model Comprehensive State Legislation to Combat Trafficking in Persons, 1.8, 2006; Model Provisions for State Anti-Trafficking Laws, Center for Women and Public Policy, Mandatory Restitution to Victims Proposed Language, 4, 2005; State Model Law on Protection for Victims of Human Trafficking, Division C, 2005)
Illustrative Examples:
- Losses eligible for restitution under the law of California, United States, (1202.4 (a)(1) of the California Penal code) include: medical expenses, wages or profits lost due to injury, replacement value of stolen or damaged property, cost of installing security devices, retrofitting of residence or vehicle if required due to injuries sustained in the crime, mental health counseling expenses, attorney fees for loss recovery, repairs to damaged items, interest at 10% per annum, and other losses directly related to the crime. (See: Community Services Programs, Restitution Services, State of California.)
- 18 USC §3663A which states in part:
1)Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate…
3) The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense. a (1) and (3).
Drafters may also consult language in the State Model Law on Protection for Victims of Human Trafficking, Division C related to the procedure for an order of restitution and enforcement of the restitution order.
When a trafficking victim cannot be fully compensated by a convicted offender, the government should make funds available through a crime victim’s restoration fund.
Tools:
Financial Recovery: A Victim’s Guide to Restitution, CalVCP and CDCR Office of Victim and Survivor Rights and Services, available in English.
Maximizing Restitution Awards for Labor and Sex Trafficking Victims: A Guide for Federal Prosecutors and Pro Bono Attorneys, Fulbright and Jaworski L.L.P and Polaris Project, 2013, in English.