In a domestic servitude case Sabhnani United States,
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one victim was a witness to the other’s violent maltreatment and was even required to maltreat her by taping her body and
then pulling the tape off. These facts were mentioned as the background to an afirmation of a conviction on forced labour, peonage and other charges.
In an involuntary servitude case United States v. Pipkins United States,
219
on a back- ground of prostitution, the defendant pimps sometimes brutally enforced their control over
the victims by means of beatings with belts, baseball bats, or “pimp sticks” two coat hangers wrapped together. The pimps also punished their prostitutes by kicking them, punching
them, forcing them to lie naked on the loor and then have sex with another prostitute
while others watched, or “trunking” them by locking them in the trunk of a car to teach them a lesson.
Another case in which victims participated in violence against one another is D.A. and A.M. Israel.
220
The case concerned a man who 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, including prompting them to punish themselves and to participate in the punishment of others. He was convicted of holding persons under conditions of slavery in
the District Court, pending appeal to the Supreme Court.
Violence is not a requirement for a traficking in persons case However, conversely, in order to establish traficking in persons or allied crimes, it is not
necessary to prove violence. This can be seen in a number of cases which did not include this circumstance.
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Violence seen in traficking cases can be: • Used to force victims to submit toremain in the situation of exploitation;
• Not necessarily directed against the victim, but, for example, against co-workers to create a climate of fear; and
• Used as a form of punishment of victims. Non-exhaustive examples of violence used in traficking cases include:
• Beatings • Forcing victims to eat foods that could be harmful
• Electric shock treatment • Stabbing
• Choking • Causing scalding
• Sexual assaults and rapes
218
See Index of all cases.
219
378 F.3d 12812004, United States of America.
220
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.
221
See, for example, Wei Tang and Siliadin, which appear in the next subsection.
3.2.2 Threats
The Traficking in Persons Protocol deinition requires that the ACT element be accomplished through the use of speciied MEANS, which include threat of force. Many national jurisdic-
tions include this MEANS in their traficking legislation, but even if they do not, it can serve as a circumstance to support the ACT
222
or PURPOSE OF EXPLOITATION.
223
Moreover, threats can assume various forms, which may be more subtle than threats of force, and for
example threats that if the victim leaves the house she will be arrested by the immigration authorities or shot by police. Thus threats can be related to an action by the defendant or
by others like an immigration oficer.
Threats of force The use of threats and the actual use of violence or force seem to be closely linked. Most
cases mentioned in the previous section on “Violence or force” also involved the use of various threats, including, for example, Afolabi United States, Sabhnani United States,
3K-9712 Serbia, Samaesan Thailand, Connors United Kingdom, III K 11408 Poland.
224
The use of threats of force can be seen in many traficking cases and can assume various forms. It can be employed against the victim or his family member or friend.
In Farrell United States,
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workers were threatened that they would be sent back in a small wooden box to the Philippines should they not repay their debt. The court mentioned
this fact as indisputable evidence of a threat of physical force which supported the peonage conviction.
In a sexual exploitation case, Grigore Germany,
226
the defendant told the victim something would happen to her child or her family if she ran away. The defendant was convicted for
traficking by means of deception.
In Chen United Kingdom,
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the defendant traficked Chinese women into the United Kingdom and exploited them as prostitutes. The victims testiied that the defendant threatened
them by telling them that her boyfriend was a powerful member of a gang, that because of their irregular immigration status they could not go anywhere and that if one of the victims
ran away she would murder them. The court noted these threats as part of the coercion employed by the defendant against the victims. The defendant was convicted of all charges,
including traficking for sexual exploitation.
222
For example, threats might be seen as a support to the ACT of traficking according to the Canadian Criminal Code. See section 270.01 which includes in the “acts”: “… exercises control, direction or inluence over
the movements of a person…”.
223
For example, if the purpose is “forced labour”, this can include “menace of penalty”.
224
All previously cited.
225
See Index of all cases. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest.
226
Case against Constantin Grigore and others, Az. 528 Qs 10513 255 Js 78313 of 23 September 2013, High District Court Landgericht Berlin, Germany. For detailed facts, see the in-depth analysis in section 5.10 of the
Case Digest.
227
The Queen v. Rong Chen, Simon Dempsey and Jason Owen Hinton [2012] NICC 26, 6 July 2012, Belfast Crown Court, United Kingdom. The case is available in the UNODC Human Traficking Case Law Database
UNODC Case No. GBR015.
In 7 T 82006 Czechia,
228
the defendants used threats to force the victim to engage in prostitution. In particular, they used threats of violence and bodily harm towards the victim
by means of acid and harm to the victim’s mother. The court found the defendants guilty of human traficking, rape and extortion.
Subtle threats As previously mentioned, threats of force are not the only kinds of threats which can help
to build a conviction in traficking cases. There are an array of more subtle threats which can serve this purpose such as threats of inancial damage, deportation or shaming.
The following subsections illustrate some forms of such subtle threats. A particular form of threat: threatening with inancial harm
Sometimes the threats relate to inancial harm to the victim or his family members. An example may be found in Calimlim United States,
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in which the defendants exploited the victim as a domestic servant in their home. The appeals court found that the threat to
stop paying the victim, which would impact on her poor family’s well-being, constituted serious harm for the purpose of forced labour and supported the defendant’s conviction on
that charge.
Another particular form of threat: threatening with deportation
Threats of deportation can be seen in Garcia United States
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where the defendant
eventually pled guilty to committing forced labour, Rivera United States
231
where the defendants in a case of forced labour either made or knew of threats of deportation that
were being addressed to the victims. Similarly in Wei Tang Australia,
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the Thai victims sold for sexual services were threatened that immigration oficials would deport them if they
went outside the premises. This information was offered as background as this case was an appeal against the defendant’s sentence. The defendant had been convicted of ive counts of
possessing a slave and ive counts of using a slave.
Another particular form of threat: shaming In some cases, the traficker threatens the victim that should he or she try to escape, he will
reveal shameful facts and, for example, sexual acts. One case in which the fear of such shame contributed to the victim remaining in her exploita-
tive situation was Kovacs Australia,
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where the victim remained in her situation though she was not locked in her room, was not prevented from leaving the store or house, had
access to a telephone, sent and received letters, and was aware that money was being paid
228
7 T 82006, 15 December 2006, Regional Court in Hradec Kralove, Czechia. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. CZE028.
229
U.S. v. Calimlim, 538 F.3d 706 2008, 9 June 2009, United States Court of Appeals for the Seventh Circuit, United States of America. The case is available in the UNODC Human Traficking Case Law Database UNODC
Case No. USA004.
230
2003 U.S. Dist. LEXIS 22088 W.D.N.Y. This decision is in response to defendant’s motion declaring the forced labour statute unconstitutional.
231
Previously cited.
232
Previously cited. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest.
233
See Index of all cases.
to her family, despite not receiving wages herself. The court held, however, that this “freedom” was “largely illusory or non-existent”, as subtle means of control were being employed by
the perpetrator and in view of the explanation of the victim that in Filipino society what she was undergoing would shame her and her ailing mother. While the case does not explicitly
state that the defendant threatened the victim with shaming, it shows how powerful such a threat could be.
In LB-2012-63028 Norway,
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the court does mention a subtle threat of shaming in its recounting of the facts. Here 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. During the course of subsequent e-mails and chats conducted
by the male defendant, it was made increasingly clear 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 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 distinction between subtle threats and innocent warnings In cases which include subtle threats such as alerting alleged victims of the possibility of
their deportation as illegal migrants, defendants may try to claim that their words were grounded in reality and were in the best interests of the victims. It is instructive to study the
responses of courts and the distinctions they draw between innocent warnings and culpable threats. For example, in Calimlim United States
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the defendants were convicted of obtaining and conspiring to obtain forced labour. They appealed the convictions and argued
that they never threatened the victim and that their warnings about potential immigration consequences were in the victim’s best interest. The court rejected this argument thus:
“[…] the [defendants] are arguing that nothing they said or did to [the victim] amounted to a threat. To the contrary, they urge, they meant her no harm and were only telling her these things
in her best interest. Perhaps another jury might have accepted this story, but the one that heard their case did not. The key to distinguishing this innocent explanation from the facts of conviction,
and the reason why the record contains evidence supporting the jury’s verdict, lies in part in what they did not tell her: that they knew how to set in motion the process that might have resulted
in a legitimate green card.”
U.S. v. Calimlim, 583 F.3d 706 2008, 9 June 2009, United States Court of Appeals for the Seventh Circuit, United States of America.
Seemingly unreasonable threats Threats do not need to be objectively reasonable as long as they accord with the requirements
of the particular national jurisdiction which may vary. Thus, it may sufice to prove that the person who utters the threat intends that it be taken seriously, or that the subject of the
threat was subjectively intimidated. In some cases, seemingly unreasonable threats did not
234
Appeals Court Case No. LB-2012-63028, Borgarting Lagmannsrett Judgement 2 April 2013. District Court Oslo Tingrett Judgement 2 February 2012, TOSLO-2011-68460, Norway.
235
See Index of all cases.
detract from a conviction of traficking or allied crimes. See also section 3.3.6.7 on “Seem- ingly irrational beliefs” and section 3.3.6.7 on “Victim behaviourseemingly irrational beliefs”.
The following are cases in which the victims, who were not native to the country where they were exploited, were threatened that if they left the premises, they would be killed, tortured
or deported, though a belief in this threat seems irrational to anyone familiar with the law enforcement situation in the countries in question United States of America and Germany.
In the irst case, Alzanki United States,
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the defendants threatened the victim, who was from Sri Lanka, that the United States police would shoot her on sight if she left the house.
Despite the “seeming” irrationality of the threat, the court viewed the witness as credible nonetheless, including her account of the threat. The defendant was found guilty of holding
a household employee in involuntary servitude.
In the second case, 215 3 St Js 72305 2007 Germany,
237
the Ethiopian victim, exploited as a cook of Ethiopian food in a German restaurant, was told that the German
authorities were racists and would deport her or even torture, beat and kill her should she seek help. The court mentioned this as one method of control employed by the defendants.
In this case the defendants were convicted of human traficking for labour exploitation.
Threats which rely on a belief in witchcraft curses or spells can be seen in Afolabi United States,
