a section on how to handle the scenario of the victim’s consent. The last part of the Case Digest consists of the in-depth analysis of cases that pulls together the variety of evidential
issues which may arise in actual cases.
The overall rationale behind the structure of the Case Digest is to clarify to the reader how to best “build a case” concerning traficking in persons or an allied crime. To use a metaphor
for this structure, it can be compared to a manual on how to construct a house. The “kinds of evidence”, discussed at the beginning of the Case Digest, are like the tools used in this
endeavour; the “mosaic of evidence” can be compared to an array of building materials, which together, contribute to the construction of the house: the materials are not all of the
same weight or centrality, but each can strengthen the ediice. And the “in-depth case analysis” at the end shows how tools and materials bring it all together to produce the house itself.
Thus, the Case Digest can be read as a coherent whole, from beginning to end, in order to help a practitioner understand how to “build” the house of evidence necessary to lead to a
conviction. However, the Case Digest can also be used by practitioners who wish to focus on one speciic evidential aspect that is relevant to the extant case. In order to facilitate such
use, the details of cases are often repeated when such cases are used in different sections of the Digest.
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2. Kinds of evidence
2.1 Introduction
Traficking in persons and allied crimes cases reviewed in this Case Digest rely on a variety of kinds of evidence, including testimonial, documentary and “real” evidence. Testimonial
evidence is evidence rendered in the form of testimony which can be obtained from sources such as victims, defendants, law enforcement oficials, experts, and eye witnesses, such as
neighbours, customers or family members. Documentary evidence can include inancial and business records, contracts, e-mails, text messages or invoices. “Real” evidence can include
witness demeanour, photographs, biological materials, traces, ingerprints and other proofs obtained at the crime scene.
It appears that the most common form of evidence used to obtain traficking in persons convictions is testimonial. Thus, testimonial evidence was critical in most of the cases reviewed
for this Case Digest. In particular, victim testimony seems to be the most relied upon source of evidence in human traficking cases. Traficking cases often stand or fall on the availability
quality of victim testimony. However, as we will see below, victim testimony is often characterized by weaknesses. These weaknesses may create challenges for criminal justice
practitioners, and can pose barriers to successful convictions.
The following chapter analyses the problems linked to the kinds of evidence that can potentially be used in traficking cases and at giving practitioners tools to overcome possible evidentiary
challenges.
2.2 Victim testimony
While varied forms of evidence are used in traficking in persons cases, in many cases around the world the central piece of evidence is victim testimony.
18
Indeed, often this may be the only, or the main, piece of evidence available. Even when other kinds of evidence are submitted,
victim testimony is often necessary to explain them. For example, while expert medical opinions may attest to the existence of bruises or injuries on the victim’s body, often, only
18
See National Rapporteur on Traficking in Human Beings and Sexual Violence against Children 2014. Traficking in Human Beings: Visible and Invisible II. Summary of the Quantitative Report 2008-2012. The Hague: National
Rapporteur, pp. 16-17, by which an analysis of 77 investigations in 2012 showed that criminal investigations rely to a large extent on the statements of victims.
he or she can explain how they were inlicted. Oftentimes, however, criminal justice systems and actors may too heavily rely on the statements of victims, where additional evidence might
be available but more dificult to gather.
However, many challenges are linked to victim testimonies in traficking cases. Some victim testimonies do not appear to be candid, straightforward and unwavering, but rather seem to
be inconsistent, irrational, unpersuasive or clearly untruthful. In some cases, there is no other credible evidence to corroborate testimony. Additionally, victims will not always come forward
to report the crime, and there may be no or only limited victim testimony available.
The next section focuses on how the various problems related to victim testimonies were handled by courts worldwide.
2.2.1 Typical weaknesses of victim testimony
2.2.1.1 Inconsistent statements and outright falsehoods In cases of traficking in persons, statements by victims are often inconsistent or even include
outright falsehoods. While in general the consistency of a witness statement will be an impor- tant element for courts to consider in their assessment of credibility, in cases of traficking,
inconsistencies may arise from a range of reasons other than lack of credibility.
Victim inconsistencies as a chronic problem
In addressing the prevalence of inconsistent or false victims’ statements in human traficking cases, practitioners at the UNODC Expert Group Meeting on the Digest 6-8 May 2014 shared the
following insights: • “Victim inconsistencies are normal in a traficking context.”
• “Inconsistencies and falsehoods are a chronic problem in traficking cases.” • “Victim testimony is always the weak link in a case.”
• “In traficking cases, it is a challenge to ind the case amid the weaknesses, rather than to
ind the weaknesses in the case.”
As will be seen in the cases described below, inconsistencies among statements may arise from a wide range of reasons, including lapses in memory, confusion about the chain of
events or traumatic reactions.
19
In addition, victims may be afraid that their trafickers will harm them or their families. In some cases, victims are related to the trafickers or feel a
sense of love or loyalty to them. In other cases, they have been indoctrinated by trafickers to tell a certain story; in yet others, victims may not trust those who are questioning them.
These feelings and loyalties can present complexities for prosecutors attempting to rely on victim testimony and may reawaken when victims face their trafickers in court.
Courts in various jurisdictions worldwide have arrived at various solutions to address this problem and to differentiate between credible and non-credible victim- witnesses according
to the circumstances of each individual case.
19
See Lindholm, Police, Practice and Research 2014: “Adolescent girls exploited in the sex trade: informative- ness and evasiveness in investigative interviews”, Police Practice and Research: An International Journal, DOl:10.10801
5614263.2014.880839.
The following are a number of examples of cases in which victims contradicted themselves or even told falsehoods, and yet courts still found them credible in recognition of the reasons
that may have led to such behaviour. The reasoning of the various courts is instructive in providing tools for practitioners to deal with weaknesses in victim testimony.
The case Correa Perea Argentina
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concerned the traficking of three minor girls for sexual exploitation where the two defendants used threats, violence and intimidation to control
the victims. The court noted minimal contradictions in the testimony of one of the victims but found that the victim’s testimony was credible enough to prove, at least in part, the
recruitment, harbouring, abuse and subjugation required for the human traficking conviction. Additional evidence in this case included testimony from the other two victims, law
enforcement oficials and the mother of one of the victims. In relying upon the victim’s testimony, the court considered the lapse of time between the four occasions in which her
testimony was given, the human motivations behind the contradictions, including fear, and the court’s understanding of the functioning of the human psyche which may tend to attempt
to delete dificult events. The supporting testimony may also have played a part in the court’s assessment. Both defendants were convicted of traficking for sexual exploitation of minors
and of promotion of prostitution of minors.
In López López Argentina,
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two defendants, a man and a woman, ran a brothel in which minor girls were sexually exploited. Two of the victims were related to the female defendant;
one was her daughter and the other one was her niece. Both victims grossly contradicted themselves in their testimony compared to the statements they had given during the
investigation. The court expressed its understanding of the effects of family relationship on the victims’ behaviour,
22
and found that it could be assumed that these victims were likely not to tell the truth, in order not to cause any harm to the defendant. The evidence in the
case did not rely solely on the testimony of these victims; it included a statement by the landlord who rented out the dwelling that was used as a brothel, testimony from other victims
who were not related to the defendants and an expert psychological evaluation of one of the victims which demonstrated indicators of psycho-emotional and sexual abuse. The defendants
were found guilty of human traficking of minors and related charges.
23
In Urizar Canada,
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the defendant traficked his girlfriend for sexual exploitation, abusing her physically, verbally, emotionally and sexually. The victim’s testimony in court included
omissions and lapses of memory, a few exaggerations, contradictions, moments of hesitation, and inconsistencies. Despite these weaknesses, and despite the fact that her testimony was
not corroborated, the court ruled that the victim was still credible, using the tools of common sense, the reasonableness of the testimony, the lack of proven motivation to lie, the victim’s
20
Correa Perea, Mendoza, August 2013, case 2853-C, Argentina. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. ARG060.
21
López López y Novello, TOCF II, Córdoba, 0613, Argentina. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. ARG056.
22
The court stated that victims of traficking in persons, because of their great vulnerability, seem reluctant to tell the truth or give testimonies which are totally coherent. But in this speciic case, the victims are not only victims
of traficking but also the daughter and niece of the lady LLL, which adds an extra element that explains why they are not telling the truth. If she told us the truth, she would expose her mother to the risk of a ten years or more
penalty. So she has an additional, understandable and valid justiication to lie.
23
The additional charges were: a managing andor operating a brothel; and b promoting or facilitating the prostitution of minors.
24
R. v. Urizar, File No. 505-1-084654-090, L-017.10, Court of Québec, District of Longueuil, Criminal Division J.C.Q., 2010-08-13, 13 August 2010, Canada and Urizar v. R., No. 500-10-004763-106, Court of
Appeal, Quebec, 16 January 2013, Canada. The trial court case is available in the UNODC Human Traficking Case Law Database UNODC Case No. CAN005. For detailed facts, see the in-depth analysis in section 5.2 of
the Case Digest.
