Subtle means of coercion

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. One of the issues arising in regard to “abuse of a position of vulnerability” is the question of the required level of involvement of the perpetrator in creating or using this position: Does it sufice that the perpetrator knows that the victim is vulnerable without taking any action? Or is it necessary that the perpetrator actively abuses this vulnerability and takes some action in this regard. 280 Various jurisdictions answer this question in different ways, as can be seen in the UNODC Issue Paper on this topic. 281 While vulnerability is a crucial part of the discourse about traficking in persons, it is not always evident that the victim is, in fact, vulnerable. Nor is proof of a person’s vulnerability an indispensable requirement to secure a conviction. Indeed, there have been cases of well- educated victims with support systems in the place of exploitation, who have nevertheless been considered victims, as will be seen in the sections below. 282 In fact, it is important to bear in mind that anyone can potentially become a victim of traficking, no matter whether well-educated or illiterate, old or young, man or woman, national or foreigner. Only if there are no false preconceptions about what a “traficking victim” looks like, will it be possible to detect them. Vulnerabilities can assume many forms. The following vulnerabilities are particularly frequent and have been highlighted by the cases below. 3.2.5.1 Immigration Status The fact that an individual does not have a legal permit to work in a country may create or heighten the individual’s vulnerability to being traficked and thus help to support a conviction. In Siliadin European Court of Human Rights, 283 the court found that France violated its obligations under Article 4 of the European Convention on Human Rights according to which “no one shall be held in slavery or servitude” and “no one shall be required to perform forced or compulsory labour”. In inding that the victim was subjected to forced labour, the court noted the victim’s immigration status and how it was abused by the perpetrators. The Court notes that, in the instant case, although the applicant was not threatened by a “penalty”, the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat. She was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police. Indeed, Mr and Mrs B. nurtured that fear and led her to believe that her status would be regularized. Siliadin v. France, App. No. 7331601 ECHR, 26 July 2005, the European Court of Human Rights, para. 118. 280 See UNODC Issue Paper on “the Key concept of abuse of a position of vulnerability”, 2012. Moreover, this question is yet broader than the issue of vulnerability and arises in regard to many circumstances used to support convictions, and for example, in regard to threats when the perpetrator does not actively threaten the victim, but knows that external circumstances make it impossible for him to lee. See above, section 3.2.2 on “Threats”. It may also appear in restrictions of freedom when the perpetrator does not actively restrain the victim’s freedom, but knows that due to factors such as the remote location of the premises or the victim’s unfamiliarity with the language and culture of the country of destination, he will not be able to leave the premises. 281 See Index of all cases. 282 See section 3.2.5.7 on “Lack of education and little education” and section 3.3.3 on “The victim’s support system”. 283 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.9 of the Case Digest. Other cases in which courts stressed the vulnerability attaching to lack of legal immigration status include Wei Tang Australia, 284 Alzanki United States, 285 and Desabato y Vargas Leulan Argentina. 286 However, the following cases show that traficking can take place even among victims who have a legal work permit or are citizens of the country. See, for example, Bradley United States, 287 Kaufman United States 288 and Urizar Canada. 289 3.2.5.2 Socio-economic status Evidence of a victim’s socio-economic vulnerability has been used to prove that the defendant abused the victim’s position of vulnerability. In Desabato y Vargas Leulan Argentina, 290 two Paraguayan females were recruited to Argentina for the purpose of providing sexual services at a bar. The court explicitly found that the victims in this case were vulnerable because of their economic hardships and life circumstances. Moreover, the defendant who recruited the victims was aware of these vulnerabilities, which made it easy for her to convince them to take the job by painting a false picture of what their lives would be like in Argentina. The court found that she abused the victims’ positions of vulnerability and convicted her of being a co-perpetrator of the crime of traficking in persons for sexual exploitation, where the victims were older than 18 years of age. In Mondo Juan Carlos Argentina, 291 two defendants were convicted and sentenced for the crime of human traficking of minors. The minor victims were sold for sexual exploitation in a whisky bar. The court ruled that the socio-economic vulnerability of the victims proved the MEANS element of “abuse of a position of vulnerability”. 292 The victims had humble origins and marginal social status. In Wei Tang Australia, 293 the trial court found that the victims consented to work as prostitutes for the defendant and to take on a signiicant debt in order to come to Australia because of their socio-economic vulnerability. 294 The defendant contested this inding but the appeals court afirmed it. Although some evidence was brought regarding the women’s inancial situation before coming to Australia, the court ruled that even without such evidence, an inference could have been drawn about their socio-economic status thus: 284 R. v. Wei Tang 2009, 23 VR 332; 2009 233 FLR 399; [2009] VSCA 182 17 August 2009 at para 18. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. 285 See Index of all cases. 286 See Index of all cases 287 See Index of all cases. 288 See Index of all cases. 289 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.2 of the Case Digest. 290 See Index of all cases. 291 Criminal Case 8622012, Federal Criminal Court of Corrientes, 17 May 2013, Argentina. The case is also available in the UNODC Human Traficking Case Law Database UNODC Case No. ARG062. 292 This case involved victims who were minors which meant that, to attain a conviction, no proof of MEANS was necessary. However, the inding of abuse of a position of vulnerability was used as an aggravating circumstance under Argentinian law. 293 R. v. Wei Tang 2009, 23 VR 332; 2009 233 FLR 399; [2009] VSCA 182 17 August 2009 at para 18. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. 294 Ibid. at para 52. “As to economic circumstances, the submission was that, although each complainant clearly desired to make more money than she could earn in Thailand, this did not permit the conclusion that the decision to work in Australia was a product of ‘economic imperilment’. Once again, there was some evidence given by the complainants as to their inancial circumstances. But, even without such evidence, the inference which his Honour drew was almost irresistible. Who but an economically vulnerable woman would enter into a contract ‘to work for no actual cash return over the period of ... some 3 to 6 months, servicing large numbers of men? For a woman to subject herself to sexual enslavement might be thought to bear eloquent testimony to her state of economic desperation.“ R. v. Wei Tang [2009], VSCA 182 17 August 2009, Australia, para. 55. In a labour exploitation case, Connors United Kingdom, 295 the court noted in the factual background that the victims were targeted because they were homeless and because most of them did not have jobs. The defendants were convicted of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. 3.2.5.3 Age Age, whether young or old, can serve as a form of vulnerability. The United Nations Traficking in Persons Protocol recognizes the unique vulnerability of minors, as stated in Article 3c of the Protocol according to which, in order to prove the crime of child traficking, there is no need to prove the MEANS element but rather it sufices to prove the A CT and the PURPOSE OF EXPLOITATION. In addition, many jurisdictions consider traficking a minor as an aggravating factor in the sentence of a traficker. 296 Moreover, even when the victim is not a minor, his or her youth may be considered in an evaluation of vulnerability. In this context, it is interesting to note that in some jurisdictions, because of the particular vulnerability of young persons, particular attention is paid to traficking of children while adult traficking is not equally addressed by the legal and judicial systems. The 2014 UNODC Global Report on Traficking in Persons r eveals that the percentage of children among the detected victims of traficking i n p ersons, d iffers s igniicantly am ong re gions. Fo r example, between 2010-2012, children comprised a majority of the detected victims in Africa and the Middle East. In analysing this inding, the Report notes that the seeming prevalence of child traficking may be a result of the fact that certain countries in sub-Saharan A frica have only recently included adult traficking in their criminal codes. A s a result of the previous non- criminalization of adult trafficking, most or all of the victims reported by judicial authorities of these countries were children. Data for the 2016 UNODC Global Report on Trafficking in Persons confirms these patterns. 297 It remains to be seen whether and how the statistics will change, once adult trafficking is prohibited and the first cases on adult trafficking reach and are processed by the courts. 295 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.2 of the Case Digest. 296 See, for example, section 5 of the Prevention of Traficking in Persons Act 2009, Uganda, in which the maximal punishment is death; article 3883 of the Serbian Criminal Law which prescribes a minimal sentence of 5 years for traficking in minors, whereas the sentence for traficking adults is between 3 and 12 years; section 377Ab of the Israeli Criminal Law which prescribes a maximal sentence of 20 years for traficking in minors compared to 16 years for traficking adults. 297 Global Report on Trafficking in Persons, UNODC 2016.