Climate of fear Circumstances which can contribute to convictions

In ECLI:NL:RBMNE:2013:2679 Netherlands, 471 the defendant instructed his grand- daughter on one occasion to shoplift in a supermarket. The court discussed whether this behaviour amounted to human traficking. The court concluded that the defendant trans- ported and transferred the victim to the supermarket for the purpose of gaining a inancial beneit. Although there was no evidence that such exploitation took place on any other occasions, the court explained that there is no minimum time duration required in order for exploitation to occur and convicted the defendant of human traficking. Relevance of duration to convictions and sentencing While there is no minimum duration of exploitation necessary to convict on charges of traficking and allied crimes, the longer the period during which the exploitation is carried on, the easier it may be to prove the crime. Thus, in Kaufman United States, 472 victims were held for periods ranging from one year to 25 years; the defendants were convicted of involuntary servitude and forced labour. In Veerapol United States, 473 the victim was exploited for a period of 6 years. In Siliadin, 474 the period of involuntary servitude was measured in years. While in these cases the courts did not explicitly mention the importance of the long duration to the convictions, in Giulani Israel 475 the court explicitly mentioned the relatively long period of abuse 22 months in enumerating the facts which led to the conviction of holding a person under conditions of slavery. Furthermore, duration of abuse may also be a factor relevant to sentencing once the crime has been established. For example, in the sexual exploitation case Lifshin and Ben Israel, 476 the court mentioned the extended duration of abuse as an aggravating factor when determining the amount of punitive damages after a conviction on traficking for prostitution. In 6 K 310 Serbia, 477 the defendants forced the victim to prostitute for four days, after which the victim managed to escape. The court found the defendants guilty of traficking in human beings but considered the short duration of abuse as a mitigating factor when deciding on the sentence. Duration of exploitation • Duration may be considered as a factor in establishing the crime, but is not conclusive. • Convictions have been attained even in cases with short duration. • The longer the duration, the easier to convict and the more severe the sentence may be and conversely the shorter the duration, the more dificult it may be to convict and the less severe the sentence may be. 471 Previously cited. 472 Previously cited. 473 Previously cited. 474 Previously cited. For detailed facts, see the in-depth analysis in section 5.9 of the Case Digest. 475 Previously cited. It should be noted that this case is pending appeal in the Supreme Court. 476 Anonymous v Alexander Lifshin and Armen Ben, 25 January 2010, District Court Tel Aviv-Yafo, Israel. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. ISR006. 477 6 K 310, 30, March 2011, Higher Court in Subotica, Serbia. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. SRB012.

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.