became increasingly hostile as time progressed. Meetings were called late at night and workers were required to attend even if they had previously gone to sleep. Meetings often lasted until
the early hours of the morning and would include continuous yelling if workers did not follow orders. On one occasion a worker testiied that one of the employers was so angry that he
feared he would punch him. He also said he was paralyzed by fear. A police oficer who visited the workers testiied that the workers were terriied of the employers and refused to
speak in front of them. The defendants also represented themselves as friends of people in power, which added to the atmosphere of fear. The defendants were convicted of peonage.
In Webster United States,
463
the defendant forced victims to watch him beat other victims. The court noted that, by doing so, he created an environment of fear of physical harm if
victims violated any of his rules or refused to do as he asked.
464
The court found that this environment of fear was coercive and provided suficient evidence to sustain a conviction of
sex traficking through the use of coercion.
See also D.A.and A.M. Israel,
465
in which the Court noted this climate of fear as part of the background facts to the conviction of “holding a person under conditions of slavery”.
3.2.15 Duration of abuse
The Traficking in Persons Protocol does not require that traficking in persons take place over any speciied minimum period of time. In fact, the Protocol does not require that the
actual exploitation ever transpire in order that the crime of traficking be committed. It is suficient to prove that the victim was recruited, transported, harboured, etc., by the illegal
MEANS for the PURPOSE OF EXPLOITATION. The Protocol does not require that the PURPOSE OF EXPLOITATION be realized.
However, while a short course of exploitation does not necessarily preclude a conviction for traficking in persons or allied crimes, it may make it more dificult for the prosecution to
persuade the court to convict. In addition, the duration of abuse may be an appropriate consideration for sentencing, once the crime has been established.
Please note that a separate section is dedicated to evidential issues in traficking cases in which the actual exploitation never occurred see section 4.3 on “How to prove traficking
where the intended exploitation never transpired”. Therefore, this section does not analyse the full ambit of this issue but rather addresses the principles which govern the relevance of
duration and the application of these principles to convictions and sentencing.
Principle governing the relevance of duration
The principle governing the relevance of duration is established in Kunarac International Criminal Tribunal for the former Yugoslavia.
466
There, the court mentions duration as one of the factors that need to be taken into consideration in determining whether enslavement
was committed. However, the court also notes that duration should not be a conclusive indica- tor. In this case, two defendants were found guilty of “enslavement as a crime against humanity”
463
See Index of all cases.
464
Ibid. at 4.
465
Previously cited, page 47, para 50. It should be noted that this case is pending appeal in the Supreme Court.
466
Previously cited.
for their exploitation of a number of female victims. The victims were raped repeatedly by the defendants and were required to perform household chores. The duration of the exploitation
was approximately four months in one case and six months in the other.
467
The court held:
“The duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its
importance in any given case will depend on the existence of other indications of enslavement.”
Prosecutor v. Kunarac, Kovac and Vukovi c, Cases IT-96-23-T and IT-96-231-T ICTY Trial Chamber, 22 February 2001,
para. 542.
Convictions despite short duration of exploitation The following cases illustrate convictions despite short periods of exploitation:
In Anos Philippines,
468
the victims were recruited to work as waitresses in Malaysia but instead found themselves forced to work as prostitutes. In this case, the exploitation was for
a limited duration, approximately ive days, at which point it ended when the Malaysian Immigration Police raided the bar. The court noted that the elements of traficking in persons
were present and convicted the defendant of traficking in persons.
In 5 To 232010 Slovakia,
469
the victim was forced by the defendant and other unspeciied persons to work as a prostitute but she escaped after two days and informed the police.
Despite the short period of exploitation, the defendant was convicted of being an accomplice to traficking in persons.
In Pipkins United States,
470
the defendants were convicted of involuntary servitude and a number of other crimes. One of the victims was only with the defendant for a short time.
However, this limited time did not preclude a inding of involuntary servitude. While the court based its ruling on the language of the national statute, perhaps other jurisdictions can
still learn from the court’s reasoning. In particular, on appeal the court found that the involuntary servitude statute:
“[…] requires that involuntary servitude be for “any term,” which suggests that the temporal duration can be slight. Thus, the language of [the statute] negates [the defendant’s] argument that
[the victim] was never in involuntary servitude because she freely travelled between pimps. The record supports a inding that [the defendant] held [the victim] in involuntary servitude for at least
part of the time that she prostituted for him.”
U.S. v. Pipkins, 378 F.3d 1281 2004.
467
In the case against Defendant Kunarac, the Trial Chamber found that the victims were held for ive to six months. Prosecutor v. Kunarac, Kovac and Vukovic, Cases IT-96-23-T and IT-96-231-T ICTY Trial Chamber,
22 February 2001 at para. 732. In the case against Defendant Kovac, the victims were held for a period of about four months. Prosecutor v. Kunarac, Kovac and Vukovic, Cases IT-96-23-T and IT-96-231-T ICTY Trial Chamber,
22 February 2001 at para. 765.
468
Previously cited. For detailed facts, see the in-depth analysis in section 5.6 of the Case Digest
469
5 To 232010, 18 May 2010, Banska Bystrica Regional Court, Slovakia. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. SVK037.
470
Previously cited.
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.
