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.
