Drafters should ensure that a trafficker’s assets, including overseas assets, may be forfeited and the proceeds from the sale of these assets be directed toward the trafficking victim’s rehabilitation. (See: UNODC Model Law Against Trafficking in Persons, Art. 29, 2009) Drafters should clarify that both tangible property and cash may be forfeited and re-directed toward victim rehabilitation funds. Seized assets should be used first in paying restitution to victims and secondly in paying damages awarded to a victim in a civil action.
(See: UNODC Model Law Against Trafficking in Persons, Art. 29, 2009; Polaris Project Model Comprehensive State Legislation to Combat Trafficking in Persons, 1.9, 2006; Model Provisions for State Anti-Trafficking Laws, Center for Women and Public Policy, Asset Forfeiture, 4, 2005; State Model Law on Protection for Victims of Human Trafficking, Division B, Section 10, 2005)
Illustrative Examples
- Polaris Project, a United States based anti-trafficking nongovernmental organization, recommends the following model language for Asset Forfeiture provisions:
(A) Any person who violates [state human trafficking offenses] shall forfeit to the State any profits or proceeds and any interest or property that the sentencing court determines to have been acquired or maintained as a result of committing [state human trafficking offenses].
(B) The following shall be subject to forfeiture to the State, and no property right shall exist in them:
(1) All assets, foreign, domestic, and within this State:
(a) of an individual, entity, or organization engaged in planning or perpetrating an act in this State which violates [state human trafficking offenses] and all assets, foreign or domestic, affording a person a source of influence over a trafficked individual;
(b) acquired or maintained by a person with the intent and for the purpose of supporting, planning, conducing, or concealing an act in this State which violates [state human trafficking offenses]; or
(c) derived from, involved in, or used or intended to be used to commit an act in this State which violates [state human trafficking offenses].
(C) The court shall, upon petition by the Attorney General or State's Attorney [or: District Attorney/ County Prosecutor] at any time following sentencing, conduct a hearing to determine whether any property or property interest is subject to forfeiture under this section.
(D) Upon conviction of a person for [state human trafficking offenses], the court shall direct the Attorney General to seize all property or other interest declared forfeited under this section. All monies forfeited and the proceeds from sale of all property forfeited and seized under this section shall first be used to pay restitution to victims of human trafficking and subsequently to pay any damages awarded to victims in a civil action. Any remaining assets shall go to the state crime victims’ fund and toward the reimbursement of any local police department which has used its own funds in the detection, investigation, apprehension, and prosecution of persons for the violation of [state human trafficking offenses].
(E) Overseas assets of persons convicted of [state human trafficking offenses] shall also be subject to forfeiture to the extent they can be retrieved by the State.
(See: Human Trafficking Legislative Issue Brief: Asset Forfeiture, Polaris Project, 2012)
- The Belgian Law related to trafficking in human beings allows for forfeiture of the assets of sex traffickers consistent with forfeiture provisions in its criminal code. The Belgian law states “The special confiscation provided for in Article 42(1) of the Criminal Code may be applied even where ownership of the objects in question does not lie with the convicted person.” (See: Belgian Law containing provisions to combat trafficking in human beings and child pornography, Chapter 1, Art. 1 amending Art. 77bis §1, 1995)
- The Israeli “Prohibition of Trafficking in Persons” law also contains a forfeiture provision:
377D. Forfeiture
(a) In this section and in section 377E –
"Combating Criminal Organizations Law" means the Combating Criminal Organizations Law, 5763 – 20032;
"victim of an offense" means a person who is directly injured by an offense and a family member of a person who died as a result of the offense;
"offense" means the offense of holding under conditions of slavery according to section 375A and the offense of trafficking in persons according to section 377A;
"property" and "property related to an offense" have the same meaning as in the Combating Criminal Organizations Law.
(b) The provisions of sections 5 to 33 of the Combating Criminal Organizations Law, except for sections 8, 14(2) and 31 of the said law, shall apply to the forfeiture of property related to an offense, as the case may be and mutatis mutandis.
(c) Subject to the provisions of subsection (b), property that is subject to forfeiture according to the provisions of this part and also according to the provisions of the Combating Criminal Organizations Law or the Prohibition of Money Laundering Law, 5760 – 2000, shall be forfeited according to the provisions of this Law, unless there are special reasons justifying that the forfeiture of the property not be carried out according to the provisions of this part.
(d) The Minister of Justice, with the approval of the Constitution, Law and Justice Committee of the Knesset, shall promulgate in regulations provisions regarding procedural rules in the matter of an application for a forfeiture order in a criminal or civil proceeding, proceedings for the hearing of objections to the forfeiture, application for steps to safeguard property, temporary relief, rehearing, appeal, and also provisions on the ways to effectuate the forfeiture, administer the assets and give notice to persons claiming right in the property.
(See: Israel Prohibition of Trafficking in Persons Law, 2006; available in English)