Deception Circumstances which can contribute to convictions

Deception Deception is one of the MEANS by which trafickers lure victims into an exploitative situation. Deception often relates to the following issues: • Nature of job e.g., in forced prostitution cases • Working conditions working hours, rest days • Pay excessive deductionsno paylow pay • Living conditions • Pretext of marriage Deception can be employed directly towards the victim or indirectly towards his family members, particularly if he or she is a minor. Sometimes the victim’s family can take part in the deception.

3.2.4 Subtle means of coercion

Violence, threats and deception are not the only circumstances which need to be considered in traficking in persons or allied crimes. The Traficking in Persons Protocol also includes the MEANS of “coercion” 261 and “abuse of a position of vulnerability”, both of which may include other, more subtle means of control. In States where the national jurisdiction adopts the language of the deinition of the Traficking in Persons Protocol, the establishment of a situation of coercion or abuse of a position of vulnerability would contribute towards proving the MEANS element. In jurisdictions which do not explicitly require a MEANS element, the establishment of a situation of coercion or abuse of a position of vulnerability may still be relevant in order to prove the PURPOSE OF EXPLOITATION or the ACT. Such subtle means are of central importance in modern traficking cases. Indeed one practitioner who participated in the Expert Group Meetings convened to develop this Case Digest called the use of them “an essential strategy in the business plan of the modern traf- icker”, while another made the point that since violence is resource intensive, necessitating the physical presence of the traficker and often also requiring tools to exert violence, trafickers often prefer to employ subtle means. An example of a case with subtle means is Wei Tang Australia. 262 This case did not include threats or physical violence. Moreover, the victims were not locked up, and were properly fed, given accommodation and had access to medical care. Still, the defendants were convicted of slavery. The court took into account a constellation of circumstances, such as long hours of work; the defendant’s fostering the victims’ fear of detention or arrest by immigration and law enforcement for illegal stay and visa offences and heightening such fear by instructions to fabricate stories for the authorities if caught; withholding the victims’ wages; coniscating their passports; not giving them keys to the premises so that if they left, they could not return and had nowhere else to go; and giving the victims instructions so that they would not readily leave the premises without someone to accompany them. 261 It is instructive to note that the Travaux Préparatoires, which record the deliberations which preceded the adoption of the Traficking in Persons Protocol, refer to “coercion” as a broader term than force. Thus, some delega- tions suggested the word “coercion” in the deinition of “forced labour” under the assumption that this was a broader term than “force”. Other delegations expressed reservations about this term see p. 340, footnote 8. 262 R. v. Wei Tang before the Supreme Court of Victoria, Australia [2007], VSCA 134 and before the High Court of Australia [2008], HCA 39, Australia. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. As can be seen in the Wei Tang case, various subtle means of coercion can be employed by trafickers to control the victims. As the subtle means of coercion touch upon many circumstances which can contribute to convictions, examples of them are discussed throughout section 3.2. In particular, please refer to cases of subtle threats in section 3.2.2 including the use of ‘”juju practices” and subtle restrictions of freedom in section 3.2.6. In Siliadin European Court of Human Rights, 263 the court found the crimes of servitude and forced labour established. The victim was permitted to leave the premises where she was exploited numerous times for speciic purposes such as to take the children to their schools or buy groceries and was not supervised on those occasions. In addition, no overt violence was used against her. However, the court considered the lack of free time and warnings about possible arrest to have effectively coerced her to remain under servitude and forced labour. Another case which expressly addresses subtle means is Bradley United States. 264 The defendants were convicted of forced labour for bringing several groups of workers from Jamaica to work in a lumber factory. The workers worked long hours for much lower remuneration than had been promised, were held in dificult living conditions with no running water, electricity and heating, denied medical treatment and threatened. The court clearly stated: “The government … need not prove physical restraint: such as, the use of chains, barbed wire, or locked doors, in order to establish the offense of forced labour…” U.S. v. Bradley, 390 F.3d 145 N.H.2004. It is important to note that there is not necessarily a clear-cut distinction between overt and subtle forms of coercion. Sometimes, trafickers use both kinds and move gradually from kindly behaviour calculated to “seduce” the victim to physical violence, restrictions of freedom and overt threats. This can be seen in two cases detailed below under “emotional abuse”: D.A. and A.M. Israel 265 and Urizar Canada, 266 and in addition in Campbell United States, 267 where the defendant at irst enticed the women into joining his “family” by offering them comfortable places to live and jobs in massage parlours with no expecta- tion that they perform sexual services. Once he had gained their trust, the offender required the women to break their ties with their relatives and friends and coniscated their identi- ication, immigration documents and money. He then renamed them, branded them with tattoos, abused them and forced them to engage in prostitution for his beneit. He was convicted of sex traficking. 263 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.9 of the Case Digest. 264 U.S. v. Bradley, 390 F.3d 145 N.H.2004. 265 Criminal Cases 6749, 6774-08-11 in Jerusalem District Court, State of Israel v. D.A. and A.M. issued on 10 September 2013, pending appeal in Supreme Court, Israel, pp. 41-43, paras. 46-48. Please refer, in addition, to the next subsection on “Emotional abuse” for more details. 266 See Index of all cases. Please refer in particular to the Court of Appeals case pp. 2 and 19 and to the next subsection on “Emotional abuse” for more details. For detailed facts, see the in-depth analysis in section 5.2 of the Case Digest. 267 770 F.3d 556, 559 7th Cir. 2014 cert. denied, 135 S. Ct. 1724 2015 reh’g denied, No. 14-8610, 2015 WL 2340955 U.S., 18 May 2015, United States of America. See also a case from Finland 268 concerning a businessman who pretended to own a modelling company in Finland. He invited twelve young Finnish women to interviews during which the women were photographed naked and touched, and some were even raped. Their subsequent work involved providing erotic shows, pornography, striptease and prostitution. The women were also sexually exploited and raped. When the modelling company came to the attention of the police, the man had already run the business for more than a decade. A forensic psychiatrist testiied that in sexual violence and exploitation cases, control over the victim is often accomplished by a gradual process of the victim renouncing her bodily integrity and by advanced manipulation techniques. He explained that this incremental process makes it dificult even for the victim herself to deine the point where she did not give her consent any longer. It also erodes her trust in other people and in the ability of society to protect her. The defendant was convicted of traficking and other sexual offences, including rapes and sentenced to over 11 years of imprisonment. 269 The following cases illustrate two speciic forms of subtle means of coercion that appear in many traficking cases, namely emotional abuse and humiliation of victims. Emotional abuse Emotional abuse is often achieved by defendants who win the victims’ trust and then gradually exert control over them. In D.A. and A.M. Israel, 270 a man gathered around him a number of women by means of his purported religious powers and insights. He gradually exercised more and more control over them—isolating them from their families and friends; requiring them go out daily to beg and to bring back large sums of money each day; controlling the most basic life functions such as going to the bathroom, eating, drinking, making any purchase, no matter how trivial; punishing them in sadistic ways, purportedly for their spiritual good; and manipulating them to feel guilt and self-hatred. Not only did the women accept this abuse willingly, but they also initiated punishments in order to ind favour in his eyes, because they believed in him and trusted him. He was convicted of holding persons under conditions of slavery in the District Court, pending appeal in the Supreme Court. In Urizar Canada, 271 the Court of Appeals stressed the gradual nature of the defendant’s methods of control over the victim and their variety—moving from kindness and presents to physical violence, restrictions of freedom, isolation and threats. As a result of this progression of events, the victim loved the defendant, which made it hard for her to leave him. Constant verbal abuse may be considered another form of emotional abuse. It appears for example in Pipkins United States, 272 in which the defendants were convicted of involun- tary servitude for prostituting minor girls who were wholly dependent upon them. While the case included threats of violence and sexual violence, the court also noted continual verbal abuse by the defendants which it termed “mentally sapping wordplay”. 273 268 See Index of all cases. 269 The Supreme Court did not afirm the conviction of traficking. 270 See Index of all cases. 271 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.2 of the Case Digest. 272 See Index of all cases. 273 Ibid. p. 1291. Humiliation of victims Conduct which may cause a victim to feel humiliated may assist trafickers in controlling victims through instilling in them a sense of their worthlessness. Examples of traficking or allied crime cases in which courts mentioned humiliating practices can be found in the following cases: In the domestic servitude case Veerapol United States, 274 the defendant forced the victim to work long hours performing housework and childcare. In addition, the court noted as background that she was required to kneel on one knee when she brought food to guests. The court convicted the defendant of involuntary servitude and other charges. In Kaufman United States, 275 the defendants ran a home for the mentally ill. The patients were told that nudity was therapeutic and were required to do their work while naked. In addition, on occasion their clothes were taken away as a means of punishment. Furthermore, the victims were coerced into performing sexual acts with one another and this was videotaped. These facts were part of the factual background in the case. The defendants were convicted of numerous charges, including involuntary servitude. In the labour exploitation case, Connors United Kingdom, 276 as part of the recitation of the facts the court noted that the victims were forced to shave their heads. The defendants were convicted for holding another person in slavery or servitude or requiring them to perform forced or compulsory labour.

3.2.5 Vulnerabilities of victims

One of the subtle MEANS which appear in the Traficking in Persons Protocol is “abuse of a position of vulnerability”. In jurisdictions adopting this deinition, the vulnerability of the victim is directly relevant. However, even in jurisdictions which do not explicitly mention this MEANS, cases show that the vulnerabilities of victims are a crucial circumstance in achieving a conviction of traficking or allied crimes. It is these vulnerabilities that assist the court to understand why victims were persuaded to enter into a seemingly risky situation and why they remained. A summary of possible vulnerabilities appears in the UNODC Model Law against Traficking in Persons 277 and in the UNODC Issue Paper on “the key concept of abuse of a position of vulnerability and other “means” within the deinition of traficking in persons” 278 Such a summary also appears in the Traficking in Human Beings—Seventh Report of the National Rapporteur of the Netherlands, which cites several cases which point to a number of different kinds of vulnerabilities. 279 274 U.S. v. Veerapol, 312 F.3d 1128 9th Cir. 2002, United States of America. This fact was noted as background in the case. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. USA065. 275 Previously cited. 276 Previously cited. For detailed facts, see the in-depth analysis in section 5.11 of the Case Digest. 277 UNODC Model Law against Traficking in Persons 5 August 2009 includes the following examples of vulner- abilities based on an array of sources: illegal or insecure administrative status, illness, inirmity, pregnancy or any physical or mental disease or disability of the person, including addiction to the use of any substance, or reduced capacity to form judgments by virtue of being a child, age, precarious situation from standpoint of social survival see pp. 10-11. 278 UNODC Issue Paper on the Key concept of abuse of a position of vulnerability 2012. 279 See Seventh Report of the Dutch National Rapporteur, Traficking in Human Beings, 2009, p. 410 which points to cases which highlight vulnerabilities such as social situation, inluence of voodoo, addiction to narcotics and illegal stay in the Netherlands.