Drafters should include provisions that explicitly state that “Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” (See: UN Recommended Principles and Guidelines on Human Rights and Human Trafficking, Principle 7 and Guideline 4(5); UN Convention against Transnational Organized Crime, Article 18(12) and 18(27); Model Provisions for State Anti-Trafficking Laws, Center for Women Policy Studies, Protections for Trafficking Victims Proposed Language, 6, 2005; State Model Law on Protection for Victims of Human Trafficking, Division D, Section 3, 2005; Council of Europe Convention Against Trafficking in Human Beings, Art. 26, 2005; UNODC Model Law Against Trafficking in Persons, Art. 10, 2009)
CASE STUDY
The European Roma Rights Centre and People in Need published a report in 2011 evaluating human trafficking among Roma in Bulgaria, Hungary, the Czech Republic, Romania and Slovakia. The report found that Roma were overrepresented among trafficking victims as compared to total population and, perhaps most concerning, that Roma were being arrested and prosecuted for crimes committed as a result of being trafficked.
Like other marginalized or minority groups, Roma are highly vulnerable to trafficking for sexual exploitation due to discrimination, poverty, social marginalization, lack of access to law enforcement and legal protection, lack of education and other traditional practices, such as forced or child marriage. However, of the countries studied in the report, only Bulgaria, Slovakia and Romania identify Roma as a vulnerable group. The report also found that many of the victims interviewed did not want to contact law enforcement because they were fearful of arrest or detention for crimes committed as a result of being trafficked. Romani trafficked persons are also highly vulnerable to being re-trafficked because, in addition to being arrested or detained, they often do not have access to the services or befits needed to recover from a trafficking situation.
Law enforcement and other legal professionals and services providers should proactively screen potential victims and those at risk for sexual exploitation. Trafficking victims should not be detained, charged, prosecuted or otherwise held for any crime that was committed as a result of being trafficked. Outreach and training should be done with law enforcement and services providers to better identify victims of trafficking and to ensure victims will be connected with the needed services rather than arrested or held for crimes committed as a result of being trafficked. The treatment and arrest of Roma, or other similarly marginalized groups for crimes related to being trafficked raises additional concerns regarding access to services, non-discrimination provisions and statelessness.
For more information, please see the sub-sections on Non-discrimination, Statelessness and Provision of Services and Benefits.
(See: Breaking the Silence: Trafficking in Romani Communities, A Report by the European Roma Rights Centre and People in Need, 2011)
Illustrative Example:
- Articles 6 and 10 of the Republic of Korea Act on the Punishment of Procuring Prostitution and Associated Acts provide an example of this non-detention approach.
Article 6 (Exceptions to the Punishment for Victims of Prostitution and the Protection thereof)
(1) The victims of prostitution shall not be subject to punishment for prostitution.
(2) In case where there is a good reason to believe that the accused or a witness is a victim of prostitution in the process of an investigation, the prosecutor or the judicial police officer shall immediately notify the victim's legal representative, family members, relatives, or legal counsel, and take appropriate actions to protect the victim including personal protection, confidentiality of investigation, transfer of victims to family members, relatives, or assistance facilities and counseling centers for the victims.
A prosecutor or a judicial police officer may not give notification when unavoidable circumstances exist such as protecting the privacy of the accused or the witness.
(3) In case where the court or law enforcement agencies investigate or question as witnesses, reporters (report includes complaints and claims hereinafter) of crimes defined under this Act or victims of prostitution (hereinafter collectively referred to as “reporter, etc.”), Article 7 or Article 13 of Protection of Reporters, etc. of Specific Crimes Act shall be applied mutatis mutandis. In such case, existence of concerns for retaliation are not required except for Article 9 and Article 13 of Protection of Reporters, etc. of Specific Crimes Act.
Article 10 (Invalidation of Claims Arising from Illegal Causes)
(1) The claim that a person who procures prostitution and does associated acts, a person who employs and recruits those who sell sex or introduces and mediates prostitution, or a person who has trafficked another person for the purpose of prostitution has on those who sell sex or is planning to do so regarding one's deed shall be invalidated regardless of the form or pretext of the contract. The same shall apply when the claim is transferred to a third party or the liability is undertaken.
(2) The prosecutor or the judicial police officer shall check and take into consideration whether money, valuables, property benefits were provided for the purpose of seducing and coercing prostitution or preventing a person from leaving the brothel when investigating a case regarding complaints and claims resulting from questionable noncompliance of a liability related to illegal causes as set forth in paragraph (1).
(3) When investigating a person who sells sex or victims of prostitution, the prosecutor of the judicial police officer shall notify the person or the legal representative the fact that claims under paragraph (1) are invalidated and that assistance facilities are available.
(See: The Republic of KoreaAct on the Punishment of Procuring Prostitution and Associated Acts, 2004)
Current research clearly demonstrates that women and girls are being detained, arrested, charged and prosecuted for criminal activity directly resulting from being trafficked. This represents one of the most pressing concerns for the protection of the human rights of trafficking victims. Law enforcement and prosecutors should proactively screen women and girls in prostitution to determine whether they have been trafficked into prostitution or other forms of sexual exploitation.
Legislation should also include provisions, where relevant, that explicitly state that victims of trafficking are included in the broader definition of victims of violence to ensure that such victims qualify for and receive all of the available services and benefits. (See also the sections on Crime Victim Rights, Restitution, and Provision of Services.)
CASE STUDY - New York, United States
New York became one of the first states to enact legislation focused on breaking down legal and cultural barriers for sex trafficking victims. On August 13, 2010 the Governor of New York signed NY 440.10 into law, which provides that victims of human trafficking may seek to vacate convictions for prostitution-related offenses. The statute reaches victims of all types of human trafficking, defined by both NY 230.34 and the Trafficking Victims Protection Act, including “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.” (See TVPA 7102(9)).
While victims of human trafficking, women are often charged and convicted of numerous criminal offenses, often related to prostitution and drug possession. Consequently, the underlying intent of NY 440.10 is to better enable victims to reenter the community and avoid the stigmatization and legal limitations that these criminal records generate. NY 440.10, therefore, gives victims the chance to clear their record, such that they can successfully seek education, employment, and legal immigration status.
Since its enactment in 2010, courts have applied NY 440.10 and granted vacatur of judgment for prostitution-related offenses. In People v. GM, 32 Misc.3d 274 (Criminal Court of NY 2011), the court granted a motion to vacate for a woman from the Dominican Republic who had been severely abused and forced into prostitution by her husband. The court found the defendant’s testimony compelling and applied 440.10(1)(i)(ii), which mandates that an “official documentation of the defendant’s status as a victim of sex trafficking . . . at the time of the offense from a federal, state, or local government agency shall create a presumption that the defendant’s participation in the defense was a result of having been a victim of sex trafficking.” Consequently, in accordance with the People’s consent, the court vacated six offenses—only two of which were technically covered by the statute as prostitution-related offenses.
In People v. Gonzalez, 32 Misc.3d 831 (Criminal Court of NY 2011), however, the court refused to broadly interpret NY 440.10 as allowing vacatur of judgments for non-prostitution-related convictions. Although the facts were very similar to People v. GM, the People opposed the motion to vacate in its entirety, arguing that the defendant could not corroborate her story and included requests for convictions not covered by 440.10. The court held that corroboration was not required by the statute, but, unlike in People v. GM, it refused to grant the motion to vacate for the non-prostitution related offenses.
NY 440.10 is an important change in increased protections for trafficking victims. However, to fully effectuate the statute’s policy goals—vacating convictions, such that criminal records do not impede reentrance into the community—courts must broadly interpret the statute to allow victims to seek vacatur of judgment for convictions not necessarily related to prostitution, but still very much the result of the victim being trafficked.
(See: New York Criminal Procedure - Article 440 - § 440.10 Motion to Vacate Judgment, New York, USA, 2012; N.Y. PEN. LAW § 230.34 : NY Code - Section 230.34: Sex trafficking, New York, USA, last accessed May 2013; 22 USC § 7102 - Definitions, United States Code, last accessed May 2013; People v. Gonzalez, 32 Misc.3d 831, Criminal Court of NY 2011; People v. GM, 32 Misc.3d 274, Criminal Court of NY 2011; People v. Doe, 34 Misc.3d 237, Supreme Court of NY 2011; Whitney J. Drasin, “New York’s Law Allowing Trafficked Persons to Bring Motions to Vacate Prostitution Convictions: Bridging the Gap or Just Covering it Up?,” 28 Touro L. Rev.489 ,2012)