Duration of abuse Circumstances which can contribute to convictions

3.2.16 The relevance of cultural beliefs and practices

Sometimes, cultural beliefs and practices of victims may provide an explanation for their behaviour. In particular, victims may behave in a way which at irst glance seemingly erodes their credibility, whereas a closer look reveals that the behaviour is a function of their cultural background. Thus, as seen in previous sections, among communities which believe in “juju”, a form of witchcraft, these ceremonies may prove to be effective threats which govern the behaviour of victims. For more details on this issue, see section 2.2.1.5 on “Seemingly irrational beliefs”; section 2.6. on “Expert and professional testimony”; and section 3.2.2 on “Threatsseemingly unreasonable threats”. Another example of the impact of cultural beliefs can be found in U.S. v. Farrell. 478 In this case the defence claimed that Filipino workers voluntarily gave their employers their passports. However, in reality they did not act “voluntarily” but rather acceded to their employers’ request as part of the Filipino culture of honour and respect towards employers, as established by the court. Sometimes cultural stigma causes victims to refrain from leeing their situations. Such a case was Kovacs Australia, 479 where the victim, although repeatedly raped, did not lee and did not complain immediately. The court found that “shame and embarrassment in Filipino society, not just to her but also her ailing mother, had stopped her saying anything”.

3.3 Circumstances which may weaken a case

In order to illustrate the full spectrum of the mosaic of evidence, we will touch upon evi- dentiary circumstances that may militate against a conviction on traficking in persons or allied crimes. We do not purport to address all possible defence claims or all possible sources of weakness, but only those of most weight and most often used in actual cases. Such circumstances may include, for example, evidence that supports the thesis that the victim was free to move or that he was free to say “no” with impunity or that he or she had a support system on which to rely. Further weaknesses may arise in cases where there is selective treatment of alleged victims compared to similarly situated persons or when the family of the victim is complicit in his or her traficking. This relationship may raise various psychological impediments which may weaken the prosecution case and require special treatment in order to counter. In addition, victim behaviour during the crime is one of the most common circumstances used by defence advocates to try to weaken the prosecution’s case. Some of these behaviour patterns are discussed in detail in section 2.2 on “Victim testimony” and focus on the victim’s reactions in the context of the trial process in the wake of the exploitation or abuse, whereas here we focus on the victim’s reactions in the context of the exploitation or abuse. In addi- tion, a central set of circumstances which may weaken a case relates to a victim’s consent 478 Previously cited. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest. 479 Previously cited. or seeming consent to the crime. Most of the material in this section revolves around this reality. The issue of victim consent is crucial to any case on traficking in persons. It is for this reason that it appears in other sections strewn over the breadth of this Case Digest, including section 2.2.1 on “Typical weaknesses of victim testimony” and section 3.2, dealing with circumstances which may contribute to convictions and in particular the sections regarding “Threats”, “Subtle means of coercion”, “Restrictions of freedom”. Because of the centrality of the issue of consent in traficking cases, it is also addressed in section 4.4 which is dedicated to this topic. While there is a risk of repetition, there may also be a value in highlighting how important this factor can be.

3.3.1 The victim’s freedom to come and go

When the evidence shows that the victim was free to come and go as she or he liked, this may weaken a case of traficking or allied crimes. For jurisdictions which adopt the Traficking in Persons Protocol’s deinition, this can be seen to contradict the existence of MEANS. For jurisdictions that do not have the requirement of MEANS, it can impact on the EXPLOITATIVE PURPOSE. No conviction because the victim was free to move An example of the potential of this circumstance to weaken a case appears in C118 2013 Belgium, 480 where an appeals court exonerated the defendants from a charge of “labour conditions contrary to human dignity”. One of its considerations was that the victim was free to come and go as he wished. Conviction despite the defendant or the victim claiming freedom of movement Because lack of freedom of movement can be an important element in building a traficking in persons case, circumstances which prove freedom of movement will tend to weaken the case, especially when the victim himherself claims freedom of movement because he or she, for whatever reason, wants to portray his or her situation in a certain way. However, such claims may not necessarily convince the court. In the following cases, the court convicted the defendants in spite of the fact that freedom of movement was an issue. In Liu LiRong Tonga, 481 the defence claimed that the victims could have complained to the police because they were free to move about and had access to cellular phones. In view of the totality of circumstances, which included forced prostitution, threats and coniscation of passports, the court convicted the defendant nonetheless. In case Not. Nr. 121407 Belgium, 482 human traficking convictions were secured against two defendants for the labour exploitation of a victim as a sailor on a boat, even though the victim claimed he had agreed to the conditions and could come and go as he wished. 480 Previously cited. 481 Previously cited. 482 Not. Nr. 121407, 25 January 2010, Appellate Court of Gent, Belgium. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. BEL 001. In Pipkins United States, 483 the defendants challenged their conviction of involuntary servitude because the victim was “free to go at any time”. 484 In this context, the court mentioned that the rules of the trade allowed the girls to move from one pimp to another of their own initiative. Despite this, the defendants’ claim was not accepted by the court who took into consideration that the victim was forced to sell herself for sexual services and give the defendant all the money due to his threats of physical violence and his forcing her to perform sexual acts. In Giulani Israel, 485 the district court convicted the defendants of holding a person under conditions of slavery one of the elements of which is deprivation of freedom, even though the defence claimed that she had been a free agent, permitted to leave the house on occasion. The court ruled that the victim had been deprived of her freedom on the basis of a constellation of circumstances which included: no weekly vacation day or any other vacation days which would have allowed her physical and emotional distance from her work; no regular breaks which meant that she was available for the defendants all the time; even though she was given some privacy in her room, this room was in the house of the defendants and she was dependent upon their decisions with no way to oppose them and stand on her own rights, in part, because she was denied the possibility of taking care of herself as a free human being. The court mentioned as crucial facts the detention of the victim’s passport and the defendants accompanying her when she went to places at a distance from their home. In view of these circumstances the court ruled that: “[T]he defendants denied her true freedom. The relative freedom which was given … in the narrow conines of her small room … was certainly not suficient and cannot contradict … that her freedom was denied.” See also a Netherlands case, decided by a Court of Appeals and subsequently by the Supreme Court: ECLI:NL:HR:2015:1100 Netherlands 486 and ECLI:NL:GHARL:2013:8522 Netherlands, 487 in which it was ruled that the mere possibility of a victim to escape her situation, as shown by her travelling abroad, is not enough to bring about the exoneration of a defendant on charges of traficking. The victim had met the defendant in Morocco, married him and moved to the Netherlands when she was 18 years old and illiterate. She had travelled abroad several times during the alleged period of exploitation. The evidence showed that the defendant abused her and forced her to work in prostitution and to hand over what she earned to him. He was convicted of human traficking. As seen when considering the cases cited above in section 3.2.6 on “Restrictions of freedom’’, courts tend to see restrictions of movement in a far broader way than mere lack of lock and key imprisonment. Courts will carefully assess the totality of circumstances and will not draw the line at lock and key imprisonment, but include restrictions arising from far more subtle methods of control. As discussed earlier in the Case Digest, these forms of control may include supervision by the alleged perpetrators or the abuse by the perpetrator of victims’ vulnerabilities and for example precarious inancial situation, dependence upon the perpetra- tors, or immigration status. 483 Previously cited. 484 Ibid. p. 1297. 485 Previously cited. It should be noted that this case is pending appeal in the Supreme Court 486 Supreme Court, 21 April 2015, ECLI:NL:HR:2015:1100, Netherlands. 487 Court of Appeal Arnhem-Leeuwarden, 8 November 2013, Netherlands. Claims about victim freedom to come and go Courts respond in different ways to such claims: I. EXONERATIONS Do not seem to occur when there is lock and key imprisonment, constant supervision or force. More likely to occur when more subtle means are used. II. CONVICTIONS Very likely in cases of lock and key imprisonment or constant supervision. In cases with more subtle means, courts have considered the following “circumstances which effectively restricted victims”: • A relationship of dependence between traficker and victim; • The traficker cultivates a fear of the authorities; • The victim has nowhere to go—a function of external circumstances and the perpetrator’s actions; • The victim is constrained inancially though physically he could leave; • The victim has no leisure time to allow him to come and go; • The traficker withholds the victim’s passport or other personal documents.

3.3.2 The victim’s power to say “no” with “impunity”

The victim’s power to say “no” to the traficker without the traficker employing means of control against him can be interpreted to be a sign of autonomy, inconsistent with traficking in persons or allied crimes. In jurisdictions which adopt the Traficking in Persons Protocol’s deinition of traficking, this may impact on the MEANS element in that, if the traficker does not exert control over a victim who says “no” using any of the MEANS described in the Protocol, this element is missing and it is a sign that he is not committing the crime. In other jurisdictions, this may impact on the ACT element or the PURPOSE OF EXPLOITATION. Whether the victim’s ability to refuse the wishes of the exploiter will or will not be considered by the court to constitute a level of autonomy that would contravene a traficking in persons conviction, will depend on the totality of circumstances of the individual case, i.e., its indi- vidual mosaic of evidence. In Anos Philippines, 488 a victim refused to comply with the defendant’s orders to have sexual relations with customers at a bar, and was not forced to do so. However, the victim was still required to sit at a table in the bar and entertain customers. The defendant was convicted of traficking in persons. In making this inding, the court focused on the totality of circumstances in this case, which included the recruitment, transportation and transfer of the victims to Malaysia by the defendant, her receipt and harbouring of the victims once in Malaysia, her deception towards the victims, and her intent to exploit the victim for prostitution and sexual exploitation.

3.3.3 The victim’s support system

In cases where the victim is shown to have a good system of support in place which can include friends, family, or community, courts may not believe that he or she was traficked. 488 Previously cited. For detailed facts, see the in-depth analysis in section 5.6 of the Case Digest.