Drafters should define sex trafficking to include:
- The acts of: recruitment, receipt, enticement, harboring, obtaining, providing, transferring, or transportation of persons;
- The means of:
- By any means (this language recognizes that no one can consent to being trafficked for the purpose of sexual exploitation and is recognized as a best practice); or
- By one of the following means to achieve the consent of a person having control over another person, for the purpose of exploitation (except where the trafficking victims are under age 18, in which case drafters should ensure that the means element of the definition of sex trafficking in not required):
- Threats or use of force; or
- Other forms of coercion, of abduction, of fraud, of deception; the abuse of power or a position of vulnerability;
- The facilitating or controlling a victim's access to an addictive controlled substance; or
- The giving or receiving of payments or benefits to achieve the consent of a person having control over another person; AND
- The purpose of: Sexual exploitation, which must include at a minimum, the exploitation of the prostitution of others.
Drafters should ensure that the means element of the definition of sex trafficking is not a required element for the sex trafficking of children, where a child or children is defined as any person under the age of 18.
Drafters should ensure that the definition of sex trafficking does not create a hierarchy of victims. The UNODC Model Law Against Trafficking in Persons suggests that governments draft definitions of sex trafficking that focus on the offender rather than on the state of mind of the victim. For example, at times, law enforcement and other first responders fail to identify trafficking victims and instead may detain, arrest or charge a trafficking victim with a crime, such as prostitution. Such an approach clearly focuses blame on the victim rather than holding the perpetrator accountable for his/her criminal behavior.
The fourth guideline in the Report of the High Commissioner for Human Rights to the Economic and Social Council detailing Recommended Principles and Guidelines on Human Rights and Human Trafficking reinforces this approach, stating that an adequate legal framework should “[Ensure] that legislation prevents trafficked persons from being prosecuted, detained or punished for the illegality of their entry or residence or for the activities they are involved in as a direct consequence of their situation as trafficked persons.” (See: UN Recommended Principles and Guidelines on Human Rights and Human Trafficking, Guideline 4(5))
Protecting women and children from sex trafficking requires an understanding that sex trafficking and prostitution are part of a continuum of criminal activity committed by those who seek to profit from the sale of human beings for sex. Donna Hughes, a leading United States scholar on prostitution and sex trafficking, has discussed the elements that contribute to the demand for the purchase of human beings for sex. The elements include:
- A culture that tolerates or promotes sexual exploitation;
- Men who buy commercial sex;
- Exploiters who make up the sex industry;
- States that are complicit in providing safe haven for traffickers either as source or destination countries.
(See: The Demand for Victims of Sex Trafficking, Donna Hughes, 2005)
Module 1 of the UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners provides case studies and practical examples of how the definitions contained in the UN Trafficking Protocol may be proven. (See UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, Module 1, 2009.)