Drafters should be aware that the use of the words “force” or “forced” is one of the most disputed elements in the definition of sex trafficking. Lawmakers and advocates alike have attempted to make a distinction between individuals who have been “forced” into commercial sexual activity and/or prostitution and those who have entered into such activity voluntarily. However, as clearly articulated in the core elements of this section, the consent of the trafficking victim is not a defense to the criminal offence of sex trafficking.
Countries in the process of drafting definitions of sex trafficking should be cautious with the use of the terms force, fraud, and coercion. The United Nations Office on Drugs and Crime Model Law against Trafficking in Persons recommends that legislatures consider that “the seemingly ‘voluntary offer’ of a worker/victim may have been manipulated or was not based on an informed decision.” (See: UNODC Model Law Against Trafficking in Persons, Art. 5(1)(i) commentary)
For victims 18 years of age and older, drafters should first seek to adopt a definition of sex trafficking which uses the phrase “by any means” because “the means used to place a person into forced labor, slavery or servitude are irrelevant once [the] end goals are proven.” (See: Combatting Human Trafficking in the Americas: A Guide to International Advocacy, 41, 2007.)
For legislation that includes force, fraud or coercion in the definition of sex trafficking, drafters should omit or amend legislation to eliminate such means for victims under the age of 18.
- The Ghana Human Trafficking Act of 2005 provides that “the consent of the child, parents or guardian of the child cannot be used as a defense in a prosecution. The Norwegian Penal Code also recognizes that children cannot consent to being trafficked. It provides that any person who commits human trafficking, as defined in the Penal Code, “against a person who is under 18 years of age shall be liable to a penalty independently of any use of force or threats, misuse of a person’s vulnerability or other improper conduct.” (See: Strengthening Laws Addressing Child Sexual Exploitation, 46, 2008; United Against Human Trafficking: The Government’s Plan of Action Against Human Trafficking, 2011-2014, Norwegian Ministry of Justice and The Police, 6, 2011)
- The Minnesota law adopts a definition of sex trafficking that uses the phrase “by any means,” recognizing that consent is irrelevant in cases of sex trafficking of both adults and children. (See Minn. Stat. § 609.321, subd. 7a and Minn. Stat. § 609.325 (2009))
- The Belgian law on trafficking in human beings also recognizes that consent is irrelevant and imposes criminal sanctions on “anyone, who, to gratify the passions of another, shall have recruited, enticed, corrupted or held an adult for the purposes of sexual immorality or prostitution, even with the consent of that person….” (See: Belgium Law containing provisions to combat trafficking in human beings and child pornography, Chapter 1, Art. 3 amending Art. 380bis §1.1, 1995 available at legislationline.org)
- The Colombian law states that “the consent given by the victim to any form of exploitation defined in this article will not construe a cause for exoneration from personal responsibility.” (See: Colombia Human Trafficking Law, Article 3, 2005 (Spanish))
- Some international standards such as The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (UN Protocol) recognize that traffickers often use subtle forms of “deception or the abuse of power or a position of vulnerability” to ensnare their victims. The Protocol holds a trafficker accountable if he commits the acts described in any of the following three situations:
- When the trafficker uses “threats or use of force” to achieve the consent of a person having control over another person, for the purpose of exploitation; OR
- When the trafficker uses “other forms of coercion, of abduction, of fraud, of deception, or the abuse of power or a position of vulnerability” to achieve the consent of a person having control over another person, for the purpose of exploitation; OR
- When the trafficker uses the “giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”
(See: UN Trafficking Protocol, Art. 3.)
For more information, please see the section on Abuse of a Position of Vulnerability.
- In the United Kingdom, the Immigration Law Practitioner’s Association enumerated additional means of subtle control traffickers may use to exert control over their victims including: instilling fear of authority, isolation, and restrictions on freedom of movement. (See: The Nature and Extent of Human Trafficking in Northern Ireland, Northern Ireland Human Rights Commission, 16, 2009)
- Drafters should seek to include a broad definition of coercion; including psychological coercion as well as physical or legal coercion. (See: Reporting on the Status of Trafficking in Women in Accordance with Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women: Guidelines on the Interpretation of the Text of Article 6 of the Convention, The Protection Project)
- Module 4 of the UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners discusses the various forms of control traffickers exert over their victims, including the more subtle forms such as relationship control, isolation, and control of religion, belief and culture. It is important to remember that “just because a person has not been assaulted or threatened with violence does not mean they are not being subjected to a control method. Some of the subtle methods of control are equally or more powerful than physical force and threats.” (See: UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, Module 4, 13, 2009)
Illustrative Examples:
- The German Criminal Code provides an example of a national law which subtly addresses the means of coercion.
“Whoever exploits another person through a coercive situation or the helplessness that is associated with their stay in a foreign country to induce them to take up or continue in prostitution, to commit sexual acts on or in front of the perpetrator or a third party through which they are exploited, or to allow them to be committed on the person by the perpetrator or a third party, shall be punished with imprisonment from six months to ten years. Whoever induces a person under twenty-one years of age to take up or continue in prostitution or any of the other sexual acts designated in sentence 1 shall be similarly punished.”
(See: German Criminal Code, Section 232)
- The Turkish Criminal Code provides an example of a national law which addresses coercion directly, but also cites the more subtle means traffickers often use to control their victims.
Sex Trafficking means to:
1. Recruit, abduct, transport or transfer or harbour persons for the purpose of subjecting to forced labour or service, prostitution, enslavement or for removal of body organs, by getting their consent by means of threat, oppression, coercion or using violence, of abusing influence, of deceit or of abusing their control over or the vulnerabilities of these persons shall be sentenced to imprisonment up to eight to twelve years and a fine corresponding to 10,000 days.
2. The consent of the victim shall be irrelevant in cases where the acts that constitute a crime are attempted with the intentions described in paragraph 1.
3. In cases where minors below the age of eighteen are procured, abducted, transported or transferred or harboured with the intentions specified in paragraph one, the penalties foreseen in paragraph 1 shall still be applied to the perpetrator, even when no intermediary actions relating to the crime are committed.
4. Legal entities shall also be subject to security measures for such crimes.
(See: Criminal Code of Turkey, Art. 80)
CASE STUDY: In the United States, where the Trafficking Victims Protection Act (TVPA) has been in effect since 2000, lawmakers and criminal justice professionals have realized the difficulty of proving an individual has either perpetrated or been victimized by sex trafficking. In the past, the most severe forms of human trafficking required the proof of “force, fraud, and coercion” to secure the toughest penalties and most effective protection of victims.
Over the years, government officials have shifted their approach, recognizing the difficulty of proving “force, fraud, or coercion.” In December 2008, the United States Department of Justice advised individual states to draft sex trafficking and/or pimping and pandering laws without the requirement for proof of “force, fraud, and coercion.” (See: The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Section 225)
In addition, Section 222 of the 2008 William Wilberforce Trafficking Victims Protection and Reauthorization Act has been interpreted to mean that “proof of fraud, force or coercion is now to be gauged through the eyes of the victim, rather than being viewed through a ‘reasonable person’ standard.” (See: The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008: 50 Key Provisions published by the Salvation Army)
This evolving approach comes closer to recognizing that one cannot consent to being trafficked for the purpose of prostitution, particularly where a trafficker or pimp is involved. As advocates on the front lines of assisting those attempting to leave prostitution often explain, the existence of prostitution – be it street prostitution or in brothels – is linked with conditions that create an environment where those seeking to profit from the exploitation of women and children may prey on those most vulnerable, thereby leading them into the clandestine world of sex trafficking.
Despite the shifting approach of the United States, concerns remain that the federal trafficking law’s difficult standards will not protect trafficking victims or enable prosecution of sex traffickers.