Complicity in traficking by victim’s family

the parents’ claim that they did not know the marriages were a sham and may have also considered the parents’ own dificult inancial situation which was exploited by the network. In addition, it seemed to adopt an assumption that as parents, they would want their daughters to be married through legitimate channels and would not intentionally collude at engaging them in prostitution. On the other hand, the court of cassation, in its ruling, seems to be expressing a doubt about the parents’ innocence, perhaps in view of the fact that the victims were exploited several times. Interestingly, the Egyptian Traficking Law expressly states that in regard to minors the consent of the person responsible for the minor is irrelevant, thus recogniz- ing the possibility of parents’ and guardians’ complicity in this crime. Family complicity in traficking and allied crimes Family complicity in traficking and allied crimes is not a rare phenomenon. This complicity may be innocent, with the family member believing that the traficker will change the victim’s life to the better, OR it may be with criminal intent. Family complicity can create the following complexities: • Tendency of victim to believe the family member and thus allow himself to be traficked, even if he initially suspects the offer is not bona ide • Unawareness on the part of the victim that he has been victimized • Unwillingness of victim to testify against the family member • Dificulty in deciding if the family member is an innocent victim of deception or a traficker Cases with family members as defendants may call for special treatment: • A particularly sympathetic treatment of victim by the court • An understanding by the court of the inluence of the family relationship on the victim’s testimony • The reframing of questions by the prosecution andor the court • Submission of evidence other than the victim’s testimony • Submission of expert testimony

3.3.6 Victim behaviour in the course of the traficking process

Victim behaviour can present problems in securing convictions in traficking cases. In section 2.2 on “Victim Testimony”, we discussed victim behaviour in the context of the trial process and found that it can weaken a case. This section, on the other hand, is devoted to victim behaviour in the course of the traficking process. This may include not coming forth right away, not leeing when an opportunity arises, returning to an abusive employer and even consenting to severe exploitation. While all of these forms of behaviour are generally viewed by courts as impinging on the credibility of victims, cases worldwide show that these behaviour patterns are common in cases of traficking and allied crimes. In order to address this reality, courts have found various solutions and not impugned credibility on this basis alone, but rather viewed it in the context of the totality of surrounding circumstances. As said above, much of this behaviour revolves around victim consent or seeming consent to the crime—a topic which is directly addressed in section 4.4, which is devoted to victim consent. 3.3.6.1 Failure to escape or seek help There is often an expectation, either implicitly or explicitly, that legitimate victims of crime would naturally seek out help or escape at the irst opportunity. When victims fail to act in this way, sometimes courts impugn their credibility. However, analysis of cases worldwide reveals that this is behaviour typical to victims of traficking and allied crimes and that the reasons for it may not necessarily be lack of credibil- ity. It should be noted that these cases may include both those in which the victim clearly did not consent to the crime and those in which he seemingly did. Thus, while in some cases courts do view this behaviour as weakening victim credibility, in most they carefully examine all the surrounding circumstances in order to assess its signiicance. Conviction despite the victim not trying to escape In many cases, despite the victim’s failure to escape at the irst opportunity, convictions of traficking and allied crimes have been afirmed. In some of the cases in which victims failed to escape, the background is one of overt violence, clearly creating an impediment to escape. Such was the case of Samaesan Thailand, 505 where the defendant beat the victims, cut them with knives and tortured them with electric shocks. According to the court, this environment made the victims too frightened to escape, even given the opportunity to do so. The defendant was convicted of traficking for labour exploitation, traficking committed by an organized criminal group and other charges. However, even when cases do not include that type of violence, failure to escape does not necessarily prevent a conviction. In Kovacs Australia, 506 the victim worked in a takeaway food shop, in the view of the public on a daily basis, and yet it took ive months for her to escape. The court understood that the very fact that she was not under “lock and key” or “total ownership” is indicative of the level of subtle control Kovacs exerted over her. Indeed, when asked why she did not attempt to leave or report the situation including rapes to relatives, she stated as her reason the shame that she and her mother would feel as members of Filipino society. The decision highlighted that despite the apparent freedom of a person to leave, they may still be enslaved by a number of more subtle factors. In Giulani Israel, 507 the Filipino victim did not try to lee even when opportunities arose. The court ruled that this behaviour is not a reason in itself to negate the crime of holding a person under conditions of slavery. In thus ruling, the court showed awareness of the fact that often victims come from vulnerable populations, as illustrated by the facts of the case which concerned a foreign young woman not familiar with the country or with her surround- ings, whose passport was detained, who was threatened that she would be arrested should she leave the house and who had only one friend in Israel. For her, escape was a drastic step 505 Previously cited. 506 Previously cited. 507 Previously cited. It should be noted that this case is pending appeal in the Supreme Court. and she lived in the hope that conditions would improve. On the other hand, the court held that if it is proven that the victim had a continuous opportunity to lee over time and did not make use of it, this might weaken the element of “deprivation of freedom” necessary to establish the crime. In Sieders Australia, 508 the failure of the victims to escape from a brothel did not prevent the appeals court from afirming the conviction of sexual servitude, though escape was not absolutely impossible. The court considered circumstances such as social or moral pressure, and even a limitation because of economic resources or a person’s own abilities. The court added that there was no obligation on a victim to escape at the irst opportunity in order to classify the case as one of sexual servitude. It is noteworthy that this case did not include overt violence or lock and key imprisonment. In Bradley United States, 509 two men were housed on the defendants’ property and paid below minimum wage to work in the defendants’ lumber business. The victims were not held under lock and key, but were deterred from leeing by means of threats consisting of the defendants sharing what they were planning to do to the last employee who ran away. Although the victims did not escape at the irst possible opportunity, the defendants’ convictions of forced labour and related crimes were afirmed. In a labour exploitation case, Farrell United States, 510 the victims did not attempt to escape even though they held jobs at locations which were unsupervised by the defendants and often walked to and from these jobs unsupervised. This did not prevent a conviction for peonage or document servitude. In Sabhnani United States, 511 the two victims did not leave the premises where they were abused, nor did they otherwise attempt to escape during the two month periods in which the defendants left the county annually. In analysing the facts of the case, the court explained that one perpetrator told a victim that the police would shoot her if she left the premises and that her husband would be arrested in Indonesia. Their failure to escape did not prevent the afirmation of the conviction for forced labour, peonage and other crimes. In Bibbs United States, 512 the defendant, on appeal, claimed his conviction for involuntary servitude was inappropriate because the victims admitted that they had one or more opportunities to avoid continued service with the defendant. The court found that the State had proved its case by more than suficient evidence. This evidence included multiple victims testifying that they had attempted to escape on one or more occasions and had been prevented from doing so, that they were beaten for attempting to escape and threatened should they attempt to escape. One victim testiied that he did not leave the defendant’s employ because he feared that he would be physically harmed by the defendant. See also a Netherlands case decided by a Court of Appeals and subsequently by the Supreme Court, ECLI:NL:HR:2015:1100 Netherlands 513 and ECLI:NL:GHARL:2013:8522 Netherlands, 514 the Court ruled that the mere possibility of a victim to escape her situation 508 Previously cited. 509 Previously cited. 510 Previously cited. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest. 511 Previously cited. 512 U.S. v. Bibbs, 564 F.2d 1165 5th Cir. 1977, United States of America. See Index of all cases. 513 Previously cited. 514 Previously cited. as shown by her travelling abroad several times, is not enough to bring about the exoneration of a defendant on charges of traficking. 515 As these cases cited above demonstrate, when assessing the weight of evidence regarding a victim’s failure to escape, courts tend to take into consideration all the surrounding circumstances in order to understand the victim’s behaviour. As a rule, they do not automatically impugn the victim’s credibility on this basis alone. Considering the victim’s failure to escape in the context of sentencing Case law demonstrates that the failure of a victim to escape can be an important consideration in determining the sentence in a traficking in persons case. However, rather than being con- sidered a mitigating factor, courts may consider the fact that the victim failed to escape despite the opportunity to physically do so as an aggravating factor. Such a scenario can be understood to be a clear manifestation of the fact that the victim’s will has been broken by the exploiter. In Chen United Kingdom, 516 defendant Chen pled guilty and was convicted of traficking within the United Kingdom for the purposes of sexual exploitation and related charges. Though the victims weren’t physically detained and could have left the premises, this did not serve as a mitigating factor in sentencing them, but rather as an aggravating factor in that the court understood that the victims’ liberty had been denied by the defendant’s threats and by his exploitation of their vulnerabilities. In a labour exploitation case Connors United Kingdom, 517 the court, in commenting on the evidence, contextualized the failure of some victims to escape in inding that “[t]hey lost the independence of will required to leave. They even, as I heard, regarded the life of an unpaid worker as preferable to life on the streets”. 518 The defendants were convicted of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. 3.3.6.2 Returning to an abusive employer At irst glance, behaviour by which an alleged victim returns to an abusive employer may be considered to impugn his credibility, under the assumption that if a heinous crime was committed against him, he would not have seemingly voluntarily returned to the same situation. However, in traficking in persons cases worldwide, where this behaviour has occurred it has not necessarily led to exonerations of defendants. The following cases yielded convictions even in the face of such victim behaviour. The courts’ reasoning in these cases is instructive. In Khan United Kingdom, 519 the Attorney General appealed the defendants’ sentences as being unduly lenient for convictions of conspiracy to trafic persons for the purpose of exploitation. The defendants owned a restaurant in the United Kingdom and recruited nine men from the Middle East and the Indian subcontinent to work for them. Although the 515 For a fuller description of this case, see section 3.3.1 on “Victim’s freedom to come and go”. 516 Previously cited. 517 Previously cited. For detailed facts, see the in-depth analysis in section 5.11 of the Case Digest. 518 Ibid. at para 39. 519 R. v. Khan [2010], EWCA Crim. 2880. The case is available at http:www.bailii.orgewcasesEWCA Crim20102880.html.