How to prove traficking where the intended exploitation never transpired?

Liu LiRong Tonga, 586 the court in its legal ruling differentiated between victims of sexual crimes, where lack of consent is an element of the crime, and victims of traficking for sexual exploitation, where lack of victim consent is not an element of the crime, in order to rule that victim consent was irrelevant. It is of note that the actual facts of this case supported the non-consent of the victims in that they were initially deceived regarding the nature of their work and later forced to be prostitutes, threatened not to complain to the authorities and their passports coniscated. However, the court ruling goes beyond these facts to provide general legal guidance that consent is irrelevant in crimes of traficking in persons. Similarly, Israeli case law explicitly states that lack of consent is not an element of the crime of traficking for prostitution, as can be seen in Aldenko Israel. 587 This holds true even when the traficker does not make use of violence or overt threats. 588 Similarly, in the crime of “holding a person under conditions of slavery”, courts have accepted this approach and anchored it in fundamental values similar to those which pertain to the crime of traficking. In both crimes, courts have stressed that consent cannot justify insufferable violations of basic human rights and dignity. 589 However, even if courts recognize that victim consent is not relevant, it appears that consent is often highly relevant in practice. 590 The UNODC Issue Paper on the Role of Consent in Traficking in Persons observed that heavy reliance on victim testimony in traficking cases may also enhance the focus on consent. 591 In addition, it found that apparent consent, in particular in situations when asserted by the victim himselfherself, can make cases dificult to prosecute and lead prosecutors to be reluctant to submit indictments. 592 That said, as the following examples illustrate, cases may involve victims’ consent and still result in a conviction. Convictions, where the court examined the “totality of circumstances” when addressing the issue of victim consent In LB-2012-63028 Norway, 593 the defendants interviewed some 50 Filipino women for an au-pair job in Norway and exchanged a series of e-mails and chats with the women while they were still in the Philippines. Most of the chats were conducted by the male defendant and during the course of subsequent e-mails and chats it was made increasingly clear by him that sexual services would be required. Nevertheless, the victims agreed to come to Norway. The irst victim arrived six months earlier than the second and was required to have sexual relations with the defendant. The victim testiied that although she knew this would happen, she hoped it would not. She was reluctant at irst, but the male defendant reminded her that 586 Previously cited. 587 Criminal Appeal 1054504, Israel. 588 See Criminal Appeal 320403 State of Israel v. Yaish Ben David in which the Supreme Court handed down a more severe sentence than the District Court because it viewed the crime of traficking as violating fundamental human rights, including liberty and freedom of will. This case is available at the UNODC Human Traficking Case Law Database Case No. ISR007. 589 See D.A. and A.M., previously cited, page 41, para. 45, and Giulani, previously cited, p. 14, para. 12. Case D.A. and A.M., pending appeal in the supreme court. Case Giulani, conviction afirmed by the supreme court, 6 September 2016, Criminal Appeal 623712. 590 This is one of the key indings of the UNODC Issue Paper on “Consent” previously cited. https:www. unodc.orgdocumentshuman-traficking2014UNODC_2014_Issue_Paper_Consent.pdf. 591 Ibid. p. 9. 592 Ibid. 593 Previously cited. she had agreed. The defendants did not employ violence or lock and key imprisonment. At most, there was a subtle threat that people in the Philippines would ind out if the victim did not consent. The victim was also told that if she did not agree, she would need to pay her own ticket to return to the Philippines. The same situation repeated itself with the second victim who arrived six months later. However, she reneged on her initial consent and sought help. A large part of the trial in the district court was devoted to the issue of victim consent. The court convicted the defendants of human traficking, noting that consent can always be withdrawn and that the irst victim’s reluctance to engage in sexual relations showed that her consent had been withdrawn. The appeals court took the position that the victims could not validly consent and noted that the vulnerability of the victims had been abused. 594 The Wei Tang Australia 595 case highlights how courts address the subject of victim consent. While the court held explicitly that lack of consent was not an element of the crime of slavery, it still addressed it by building a proile of the victims in order to understand the circumstances which led to traficking and the place of victim vulnerability in the seeming consent. In this case, the victims signed a contract with the defendants promising to work as prostitutes in Australia. The contracts stated that each of the victims would owe a debt of between 40,000– 45,000 to the defendant. The defendant did not employ deception, violence or lock and key imprisonment against the victims and the defence argued that evidence of consent should go against the defendant’s culpability. The court, on appeal, disagreed and found that voluntarily signing the employment contracts and agreeing to work in prostitution did not mitigate the defendant’s criminal responsibility: “But this was very serious offending nonetheless [regardless of consent], for the reasons we have given. The women were, as the jury found, enslaved by the applicant. They were not free to choose whether or when they worked in the brothel. The evidence of one complainant was that she was not permitted to refuse customers. Two others gave evidence that, although they had never sought to refuse a customer, they did not believe they could do so.” R. v. Wei Tang 2009, 23 VR 332; 2009 233 FLR 399; [2009] VSCA 182 17 August 2009, para. 43. Consent in this case was understood by the court in the context of the totality of circumstances. The Court considered that the victims were “effectively restricted” to the premises. Only on rare occasions did they leave with the consent of the defendants or under supervision. The circumstances which effectively restricted them included the long hours of work, the fear of detection by immigration authorities and law enforcement, fostered by the defendant’s warnings and instructions not to leave without someone to accompany them, and the detention of their passports. In addition, the victims underwent dificult working conditions, isolation, absence of pay six out of seven days, debt bondage and signs of ownership, as they were “purchased”. The victims’ vulnerabilities are particularly emphasized by the court, consisting of illegal immigration status, dificult economic situation and lack of familiarity with language and 594 The Norwegian Penal Code, section 224 includes in the MEANS “misuse of another person’s vulnerability”. 595 R. v. Wei Tang 2009, 23 VR 332; 2009 233 FLR 399; [2009] VSCA 182 17 August 2009. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. culture of country of destination. 596 The defendant’s conviction of ive counts of possessing a slave and ive counts of using a slave was afirmed. In Ho and Anor Australia, 597 the victims came to Australia from Thailand knowing that they were going to work as prostitutes and knowingly using false documentation. Nonetheless, the court found that the victims were held under conditions of slavery. To support this inding the court focused on the situation of the victims and on the totality of circumstances. These included: “highly exploitative debt arrangements”; coniscation of passports; constant supervi- sion by the defendants, including transporting the victims between the brothels and their residence and supervision on the rare occasions when victims were permitted to go shopping or purchase food; not giving the victims keys to their residence; being required to work 6 days a week to pay off the debts the defendants claimed they owed; minimal remuneration for services; and long hours. Another example of a conviction despite the victim’s seeming consent, appears in Mariño Héctor Oscar Argentina. 598 The case concerns an 18 year old Paraguayan girl who was sexually exploited in a night club brothel. The victim arrived in Argentina knowing she would be engaging in prostitution; no deception or force was employed in recruiting her for this purpose. However, the conditions in the brothel were different from what she had been told. Once she arrived, the defendant exercised physical and psychological violence against her. The victim’s testimony was ambiguous. She stated in her written testimony that she knew she would be engaged in prostitution and along with her story of being beaten and threatened by the defendant, expressed positive feelings towards him, stating that he sometimes treated her kindly and that he took care of her. The court used other evidence, besides this testimony, to form a full picture of the case. This included a medical forensic report which conirmed that the victim had been beaten and a psychological report which established that she had relatively low intellectual capacity, a lack of social skills and a very poor level of education. She also had a problematic past including mistreatment by her parents. This report, issued by the National Rescue Team, 599 also included an explanation of her positive feelings for the defendant in that the fact of living with him had generated in her a mechanism of identiication with him, which led her to feel that the exploiter was taking care of her. Thus, she normalized the exploitation. The defendant was found guilty of traficking an adult for sexual exploitation. The court held that the testimony of the victim that she was not victimized but rather taken care of by the traficker must be considered within the constellation of other circumstances, and not in isolation from them, including the indings of the medical and psychological reports. In Urizar Canada, 600 the victim initially consented to engage in exotic dancing at the suggestion of the defendant. Subsequently, when the victim did not wish to do so, she testiied: “… he’d say, you wanted this, you were the one who wanted this, because the irst time I had said yes.” 601 Not only did her initial consent not prevent the defendant’s conviction on traficking charges, but it was shown that he used that consent to exert psychological pressure upon her to remain in the same situation. In afirming the conviction 596 Discussed in section 3.2.5 on “Vulnerabilities of victims”. 597 Previously cited. 598 Previously cited. 599 An Argentinian expert explained that the Rescue Team Program State Government, provides immediate assistance to victims. 600 Previously cited. For detailed facts, see the in-depth analysis in section 5.2 of the Case Digest. 601 See Court of Appeals case, page 20.