A Comparative Analysis of

Human Trafficking
Legislation and Case Law:
Suggestions for Best Practices in
Creating Laws Against Human
Trafficking

-Dena Hamat & John Tribbett-

Bridges Across Borders South East Asia

R76 Project
UNODC
Lao P.D.R. Country Office

June/July 2009
Table Of Contents
i. Introduction

“Human trafficking is one of the most heinous crimes in the contemporary world: people are
bought and sold, forced to work in the underground economy or sex industry, and often subjected to
brutal violence and terrifying threats. Trafficked persons are moved across national borders; they lead
invisible lives while trying to escape the police for fear of expulsion, and often endure violence and
fear of retaliation. Even if these victims manage to escape, they are exposed to serious threats from
their traffickers who try to find and punish them, or their families, in order to deter others from
escaping. Moreover, if they are found by the police, they are normally expelled, as they are illegal
immigrants. As a result, the crime perpetrated against them cannot be prosecuted, since the most
informed witnesses are no longer available. Concentrating on punishing the traffickers, without
offering any protection to their victims, appears to be counterproductive: victims are left to face
retaliation and further violence, and the trial is often bound to end in an acquittal . . . The most recent
international documents on trafficking require the adoption of a three-pronged policy, the so-called
‘three-Ps approach,’ focusing on prevention, prosecution and protection.”

—Rose Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of
Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J. 205, 205-06
(2009).

The United Nations Convention against Transnational Organized Crime (TOC) and the
supplemental Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children (TIPP), was signed in Palermo, Italy, in December 2000. Since that time, an increasing
number of states have ratified both the convention and the protocol and as a result, have enacted state-
specific laws dealing with the crime of human trafficking. How closely the state legislation mirrors
the actual convention and protocol varies.

As a result of this legislation, the number of convictions from jurisdictions from around the world
has been increasing as well. With the increase in prosecutions, convictions, case law, and legislation,
a number of best practices have begun to emerge that should be considered when drafting effective
laws to prosecute human trafficking. Also, a number of results and consequences have emerged from
actual practices. Some of these have been positive, while others were unforeseen and negative.

What follows is broad overview of laws and prosecuted cases that demonstrate what are and are
not effective elements of a human trafficking law. To complete the analysis, a number of law review
articles and other forms of scholarly work have been incorporated. Much of this academic work has
been written in recent years in an effort to analyze this emerging body of law.

The main body of the report will be followed by a list of human trafficking cases that have been
prosecuted around the world along with other materials cited in this report. Included will be an
electronic compilation of the full version of case briefs, legislation, news articles, law review articles,
and other items that are referenced in the main body of the report. Additionally, other relevant
material not specifically mentioned in the report will be included for future reference.

ii. Developing an International Legal Framework to Combat Human Trafficking: Utilizing the
TIPP to Create a Cohesive Globalized Response

The past decade has seen a significant increase in the number laws that states have put in place
in order to combat human trafficking. As a result, the crime of human trafficking has been prosecuted
several times in a variety of jurisdictions and settings. As mentioned, the following report details a
number of best practices for the drafting of legislation against human trafficking based on actual
prosecutions and the experiences of legal systems throughout the world. It is extremely important that

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states look to the experiences of other states to both replicate the positive outcomes, and to avoid the
negative consequences that may arise from a law that appears to be otherwise well-drafted.

Beyond the utilization of this shared global experience, it is also important to look towards
international legal tools already in place. The global community has already spoken about the
importance of combating human trafficking through the TOC and the TIPP. In particular, the TIPP is
a mechanism that can be used by all states to formulate cohesive legislation that acts in concert with
all states. The perpetrators of transnational crimes, such as human trafficking, thrive in an
environment in which state laws are inconsistent, non-existent, or in conflict with one another.
Persons involved in the illegal international enterprises are well-versed in manipulating the forces of
globalization and the present reality of easily traversed state borders.

Using the TIPP (as well as the TOC) to develop an international legal framework to combat
human trafficking is the most effective way to insure the laws of all states work harmoniously to
prevent and prosecute human trafficking. A universal approach is vital. It is in the best interest of each
state to cooperate with other states in order to prevent human trafficking within their own borders. As
such, this report is written as a means to elaborate upon the legal strategies included within the TIPP.
In many instances, the best practices that follow are demonstrations of the way in which the TIPP may
be incorporated within a specific jurisdiction.

However, other practices elaborated on here may exceed the standards presented in the TIPP or
they may develop in much greater detail the effective and precise manner in which TIPP principles
may be incorporated. In all ways, the TIPP can be seen as the basic supporting structure in which
legislation should be drafted. States are always free (and should be encouraged) to adopt more robust
standards for all parties involved (including the rights of the accused). The recommendations of this
report, in tandem with the TIPP, can be used by states to create a model law to combat the grave
human rights violation that is human trafficking and to formulate a state policy that is most proactive
for creating a secure society within a states own borders. In this way, the world may work towards a
universal mechanism that addresses all aspects of the suffering that the trafficking in humans
perpetuates.

iii. A Brief Primer on Key TIPP Elements

The TIPP has a number of components that are fundamental for its full and effective
implementation. Article 3 of the TIPP defines trafficking in persons as:

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the

threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person, for the purpose
of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs.”

This definition can be further broken down into three distinctive elements that robust legislation
should include and two additional considerations. They are:

• Elements (all three of which must be present):

a. The action
b. The means
c. The purpose

• Two additional considerations:

a. Relevancy of consent

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 b. Child under the age of eighteen: when the trafficked person is a child under the
age of eighteen years of age, means are irrelevant and only the act and purpose are
necessary

These three distinctive elements and two additional considerations should also be at the forefront
when conceptualizing the crime of human trafficking for policymakers and those working in all areas
related to human trafficking. For the purposes of this report, when considering the best practices for
human trafficking law, they should also be kept in mind. An understanding of each of these elements
should be further elaborated.

To begin, human trafficking is a process crime. That is, it involves a series of transactions most
often involving numerous people, taking place over a substantial period of time, and occurring in
more than one location (frequently across at least two states or more, but also within the same state).
These transactions include:

• Recruitment
• Transportation
• Illegal/legal entry, if transnational
• Exploitation of victim
• Laundering of profits by traffickers

The process of human trafficking begins with recruitment. Frequently, recruitment occurs in the
form of an offered inducement. It is important to note the process does not require inducement, the
human trafficking chain may begin with an abduction. If the chain begins with inducement, it
typically takes the form of an offer of employment. Such an offer may appear entirely legitimate and
present no indication of exploitation

Recruitment is itself a part of the first element, action. Action can be further understood to include
a number of processes involving the trafficked person. They are:

• Recruitment
• Transportation
• Transfer
• Harbouring (concealment)
• Receipt

The second element is the means. The means include:

• Threat or use of force

• Other forms of coercion (may not include actual force to victim)
• Abduction
• Fraud
• Deception
• Abuse of power
• Abuse of position of vulnerability
• Force is not essential (e.g. a person may be told by a parent, spouse or community leader that s/he
must go and the potential victim cannot refuse and submits to the order)
• Giving or receiving payments or benefits to obtain consent of person having control over potential
victim

The third element of the crime of human trafficking is the purpose. The purpose for trafficking the
person includes, at a minimum:

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• Exploitation of prostitution
• Other forms of sexual exploitation (eg. pornography, stripping)
• Forced labour or services
• Slavery or similar practices
• Servitude
• Removal of organs

The three elements involved in human trafficking are coupled with the two additional
considerations. First, the issue of consent must be considered. When looking at the definition included
in the TIPP, the fact that the victim may have consented in anyway to the process of human
trafficking is irrelevant if any of the means listed above are used. A trafficked person cannot
“consent” to being trafficked if the consent occurs as a result of threats, force, abduction, fraud, etc.
As such, a human trafficker’s contention the trafficked person agreed to the conditions is irrelevant. If
any of the means are present the victim’s consent is no defense for the accused. For instance, if a
person agreed to migrate and engage in sex work but is held by force and coerced to perform sex work
for long hours and not paid as promised, that person has been trafficked. The fact the person agreed to
go but is then held by force and coerced nullifies the presence of consent. The person has been, in
fact, trafficked.

The second additional consideration is understanding how these three elements operate when the
trafficked person is a child under the age of eighteen years of age. Under the TIPP, a child is a person
under eighteen years of age (Article 3(d)). Article 3(c) states the “recruitment, transportation, transfer,
harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in
persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article.”
That is, the “threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of
the abuse of power or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person (Article 3(a))” need not
occur in order for child to be a victim of human trafficking. Only the elements of action and
exploitation need be present. A means need not be present.

—Description of elements and considerations involved in the TIPP courtesy of Dr. Jayampathy
Wickramaratne, Legal Expert for UNODC Lao P.D.R. R76 Project (2009).

The TIPP contains many other principles that should be considered when drafting human
trafficking legislation. A full and careful reading of the full text of the TIPP is necessary. But for the
purposes of this report, the above outlines critical elements and considerations that need to be
understood when looking at the best practices for the development of effective human trafficking
laws.

Best Practices: Key Elements of Human Trafficking Law

A. Human Trafficking Laws Should Prevent Re-Victimizing the Victim

Case law and country studies show that trafficked persons are often stigmatized for crimes that
were committed during a time that they were powerless. This can have an adverse affect on the
participation of victims in the trial process, and may subsequently decrease the conviction rate of
traffickers. We contend that legislators and judges should draft and apply laws in ways that prevent
re-victimizing the victim.

“In many countries of destination, victims of trafficking continue to be arrested, detained,

charged, and even prosecuted for unlawful activities such as entering illegally, working illegally,
holding false documentation, or engaging in illegal activities such as prostitution, criminalization of
trafficked persons is commonplace, even where it would appear obvious that the victim was an

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unwilling participant in the illegal act. In addition to the denial of their rights, the routine detention
and prosecution of trafficked persons will inevitably have an adverse effect on the ability of the state
to investigate and prosecute traffickers. It is already a difficult task for law enforcement to persuade
victims to cooperate because of trauma, fear of reprisals, and (an often well-founded) distrust of
national law enforcement authorities.”

—Anne Gallagher & Paul Holmes Developing an Effective Criminal Justice Response to Human
Trafficking, 18 I.C.J. Rev. 318, 319-320 (2008).

“Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry
into or residence in countries of transit and destination, or for their involvement in unlawful activities
to the extent that such involvement is a direct consequence of their situation as trafficked persons.”
Recommended Principles on Human Rights and Human Trafficking, Preventing Trafficking, Principle
7.

—Mary Robinson, High Commissioner for Human Rights, Office of the High Commissioner for
Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking 1
(2002) (Text presented to the Economic and Social Council as an addendum to the report of the
UNHCHR (E/2002/68/Add. 1)), available at http://www.unhchr.ch/html/menu6/2/trafficking.doc

1. Recognize Persons as Trafficked persons and Protect Them from Criminal Charges

a. Prostitution:

• Case Study: Kosovo. In a “case investigated by the Kosovo Police Service in Prizren in October
2006, the police asked several women from Moldova to provide incriminating evidence against
their alleged exploiters. Despite substantial evidence (including undercover police investigations)
showing the likely occurrence of trafficking, the police told the victims that, in the absence of
statements showing their involvement in trafficking activities as victims, they would face charges
of prostitution.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 19 (Oct. 2007).

• Case Study: Kosovo. “On 27 July 2005, after a hotel raid, the Prishtinë/Priština Kosovo Police
Service arrested three men on trafficking and four women on prostitution charges. Immediately
thereafter, the Prishtinë/Priština District Prosecutor filed a request to initiate a minor offence
procedure against the four women before the Ferizaj/Uroševac Minor Offences Court. Two days
later, on 29 July 2005, the Minor Offences Court heard the women as suspects, found them guilty
of prostitution, and sentenced them to 20 days of imprisonment. However, the same day, the
women were heard as injured parties/witnesses in the case against the alleged traffickers, in an
extraordinary investigative opportunity before the Prishtinë/Priština District Court. On 15 August
2005 the Prishtinë/Priština District Prosecutor filed an indictment against the three men for
trafficking. On 23 November 2006 the Kosovo Supreme Court entered a final conviction against
the men for facilitating prostitution.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 20 (Oct. 2007).

b. Immigration Violations:

• Case: U.K., R v O (2008) EWCA Crim 2835. “[Appellant] was a young person sentenced to
imprisonment. She was arrested trying to leave the UK. She was using false identity documents
that inflated her age. She was escaping sexual exploitation for which she had been trafficked from

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 Africa. This was the first appeal by a trafficked person who had been prosecuted and convicted of
an offence under the Identity Card Act. It highlighted general ignorance in the criminal justice
system about how such victims should be treated. The case raised issues about the UK’s
obligations to trafficked persons, together with international law principles on the status of
international conventions and their application in domestic law, the common law and art 6 of the
European Convention on Human Rights alike require far higher standards of procedural
protection than were given here. There was no fair trial. We hope that such a shameful set of
circumstances never occurs again. Prosecutors must be aware of the protocols which, although not
in the text books are enshrined in their Code. Defence lawyers must respond by making enquiries,
if there is before them credible material showing that they have a client who might have been the
victim of trafficking, especially a young client. Where there is doubt about the age of a Defendant
who is a possible victim of trafficking, proper inquiries must be made, indeed statute so required.
All this is obvious. It marches with what was said by the report of a joint Committee in the House
of Lords and House of Commons on human trafficking published in October 2006 (see in
particular paras 134 and 159). We hope that this case serves as a lesson to drive these messages
home.”

• Case: Thailand/Cambodia/Malaysia, Ms. Khunthea (Cambodian national prosecuted and

convicted in Thailand). Malaysian authorities failed to recognize arrested persons as trafficked
persons. They were arrested and detained as illegal migrants. Eventually, this case resulted in a
successful rescue and prosecution of a cross-border human trafficking case (Cambodia, Malaysia,
and Thailand).

Although this case has been upheld as a model of interregional cooperation, it also
demonstrates the failure of a state (Malaysia) to properly identify victims of trafficking and to
instead see them as persons who had committed immigration violations. As a result, the victims
were trafficked a second time to Thailand. This, no doubt, increased the victims suffering and
exploitation. This second level of trafficking could have been avoided had the authorities properly
indentified each of the persons in custody as trafficking victims. Additionally, a more rapid
identification would potentially allow the authorities to pursue a more successful prosecution
strategy.

“[The] case involved eight Khmer girls from Banteay Meanchey province who were duped to
believe that they would be hired to sell food and clothes in Thailand near the Thai-Cambodian
border. After crossing the border, they were trafficked through Thailand to Malaysia to work in
karaoke bars. Malaysian authorities later arrested them as illegal migrants, and kept them in
detention for three months. Several of the girls were indentified (through the intervention of H.E.
Mu Sochua, then Cambodian Minister for Women’s and Veteran’s Affairs) as trafficking victims
and repatriated back to Cambodia by IOM, but several were missed, deported to the Thai-
Malaysian border, and then trafficked again within Thailand.”

—Updates from Around the Region—UNIAP Assists in a Case of Khmer Girls Trafficked to
Thailand, United Nations Inter-Agency Project Newsletter, Phase Two 2004, Issue 1 at 3,
available at http://www.un.or.th/TraffickingProject/Publications/issue13.pdf

Eventually, one of the traffickers, Ms. Khunthea, (a Cambodian national) was convicted of
procuring under-aged women for prostitution and sentenced to 85 years in prison through a
coordinated regional response orchestrated by the United Nations Inter-Agency Project in the
Greater Mekong Sub-region (UNIAP).

It is crucial that effective human trafficking legislation protect the trafficked person from
being arrested for immigration violations and to mandate systems and persons responsible for
monitoring arrested individuals for evidence they are trafficked persons.

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B. Human Trafficking Law Should Have Adequate Mechanisms Built In to Protect the
Trafficked Person

Trafficked persons are often subsequently traumatized, and may face serious physical,
psychological, social, and economic repercussions. Legislation, must be in place to ensure that
trafficking victims are protected, and are not placed in a position where their welfare is in jeopardy.
Furthermore, such legislation should insure that a state’s humanitarian obligations to trafficked
persons are institutionalized in specific laws.

“Many of the States that have adopted measures intended to protect trafficked persons require
them to cooperate with national authorities in order to obtain protection, assistance, and a residence
permit. Often, the permit is not renewed after the trial against the trafficker has come to an end. For
instance, in the Netherlands, victims are given a temporary residence permit only if, after a three-
months reflection period, they decide to report the crime. Such a permit is only valid for the duration
of the investigation and trial, although it can be converted, in some cases, into a permanent residence
permit. In the United States, the so-called T-Visa is only granted to victims of severe trafficking who
have complied with any reasonable requests for assistance in the investigation or prosecution of the
crime, and only if the victim would suffer extreme hardship, involving unusual and severe harm, upon
removal. In some countries, the temporary residence permit can become a permanent one, but
conversion is subject to the outcome of the trial. However, this appears to be an unreasonable
condition, as convictions of traffickers do not depend upon the victim.”

— Rose Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of
Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J. 205, 213-14
(2009).

1. Built-In Reflection Period to Allow Victim of Trafficking to Decide if They Wish to Assist
With Prosecution of the Alleged Traffickers

• Case Study—Negative Outcome: Kosovo. “In May 2006, the Prizren Kosovo Police Service
Trafficking in Human Beings Section interviewed a sixteen year-old girl from Albania suspected
of having been trafficked. However, she was not identified as a presumed victim of trafficking
because she refused to provide the police with information about her traffickers. The police
officers detained the girl for 72 hours to allow her ‘some time to reconsider her statement’.
Eventually, she was charged with illegal stay in Kosovo and deported to Albania.”

–The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 19 (Oct. 2007).

• Legislative Responses: “States committed to strengthening their criminal justice response to

trafficking should, therefore, consider providing genuine incentives for victims to cooperate over
and above the mandated support and protection requirements set out above. Such incentives must,
of course, be developed and implemented in a way that will not affect the credibility of the
witness or otherwise compromise the integrity of the trial process. Some destination countries
(including Australia, Belgium, Canada, Italy, the Netherlands, the United Kingdom [USDOS,
2008], and the United States [USDOJ, 2007] now provide special visa arrangements for victim–
witnesses. These arrangements usually include provision for victims to take some time, ‘a
reflection period,’ to think about whether or not they wish to be involved in criminal proceedings.
The most generous schemes envisage, at the end of this reflection period, the granting of
residence permits to victims of trafficking who choose to cooperate. This approach, pioneered by
the European Union (Council Directive 2004/81/EC, 2004), has now been adopted as the
European legal standard (European Trafficking Convention, 2005, Art. 13). State practice is
beginning to demonstrate its value in providing victims with time, information and power to
decide their future. The rate of convictions of traffickers based on victim–witness testimony has,

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 according to the U.S. State Department, increased in all major destination countries cited above
since these support measures were implemented (USDOS, 2008).”

—Anne Gallagher & Paul Holmes Developing an Effective Criminal Justice Response to Human
Trafficking, 18 I.C.J. Rev. 318, 327 (2008).

2. Built-In Residency Options for Potentially Trafficked Persons

• Legislation: Netherlands, Dutch temporary residence permits for victims of trafficking—

Immigration law circular B-9. “The mainland Netherlands government provides a temporary
residence mechanism (the B 9 visa) that gives trafficking victims three months to consider
pressing charges against their traffickers. A victim who does so may remain in the country until
the legal process has been completed. During this period, the victim receives legal, financial, and
psychological assistance, and may work or receive vocational training. Victims may request a
permanent residence permit on humanitarian grounds. The Dutch authorities consider it of the
utmost importance that victims or witnesses of trafficking who report an offence remain available
to the Public Prosecution Office for an extended period of time in order to provide evidence. The
B-9 regulation reflects these concerns.

The B-9 regulation is twofold: It stipulates the provision of facilities for the investigation and
prosecution of perpetrators of trafficking, as well as the provision of shelter and protection for
victims. Persons who may be victims of trafficking can obtain (temporary) residence in the
Netherlands, as well as shelter and reception, medical assistance, legal aid and special provisions
for maintenance. Even if there is only the slightest indication that a person is a victim of
trafficking, the police must bring to their notice the rights linked to regulation B-9. Once
identified, the possible victim will be offered a three-month reflection period. During this time,
the person must decide whether to officially report the crime of trafficking in human beings. If the
victim decides to report the offence, this is automatically taken as an application to grant a
residence permit for a certain time. The application is honoured in the case of a criminal
prosecution or investigation.

Victims who fall under the Dutch anti-trafficking law must decide immediately whether they
want to report the offence. The reporting of the crime is considered an automatic application to
grant a residence period for a limited amount of time.”

–International Labour Office, Human Trafficking and Forced Labour Exploitation: Guidelines
for Legislation and Law Enforcement, at 41 (2005).

It is crucial to include provisions for a reflection period that lasts for a sufficiently long period
of time to allow the trafficked person to decide if they wish to assist with prosecution. It is equally
crucial that human trafficking legislation contains specific language to allow for the granting of a
residence permit once the reflection period has expired. However, unlike the Dutch anti-
trafficking law, a residence permit should not be contingent upon the human trafficking victim
choosing to follow through with prosecution. Such a system of “rewarding” the victim with a
residence permit for cooperating creates additional difficulties for the prosecution of human
traffickers and ignores the humanitarian plight of the affected individual. Consider the Italian
legislation and experiences discussed below.

3. Residence Permit for Victims of Trafficking Should Not be Contingent Upon Acting as a
Witness Against Alleged Traffickers

"One of the main advantages of granting a residence permit, even to victims who are not willing
to act as witnesses, is that it allows prosecution of the traffickers to begin even when the victims do
not report the crime. Indeed, offering a residence permit to those victims who are not willing to

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cooperate allows the police to have knowledge of a higher number of trafficking cases through the
applications for the residence permit. In addition, many NGO's stress that victims are often too afraid
to cooperate at first, as they mistrust the police. Thus, if required to testify in order to obtain a permit,
they would probably decide not to apply for it, but to either leave the country (thus reducing chances
that their traffickers will ever be successfully prosecuted), or to remain in an illegal residence status
(which increases their chances of re-victimization). In the Italian system, victims are encouraged to
apply for the permit independent of their willingness and ability to cooperate. Later, during the
process that leads to the issuance of the permit, they have the time to recover completely and learn
how national authorities work, and thus often decide to testify. Another advantage of not conditioning
issuance of permits upon victim cooperation regards the reliability of their statements. Benefits that
depend upon the victims' willingness and ability to cooperate might affect the credibility of the
witnesses, as they may be induced to exaggerate the importance of the information they possess in
order to obtain the permit.”

—Rose Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of
Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J. 205, 216-17
(2009).

“Trafficked persons need to recover from the harm they suffered before they can be expected to
cooperate; moreover, they often mistrust the police, as they have seen law enforcement authorities in
their countries of origin being bribed by their traffickers, or cooperating with them in exploiting their
victims. It is only once they have completely recovered, feel safe, and understand how the Italian
police are working that they can start to collaborate.”

— Former Anti-mafia Prosecutor quoted in Raffaelli. Id. at 219.

• Legislation: Italy, Article 18—Legislative Decree no. 286/98, Article 13—Law 228/03, and
Article 6—Law Decree 300/06, converted in Law 17/07. European States are “obliged to adopt
protective measures for trafficking victims with the adoption of the European Council Directive
2004/81/EC and of the Council of Europe 2005 Convention.” Id. at 206. “The Italian law related
to human trafficking offers a standard of care that is higher than many other states. The law offers
a comprehensive protection program that allows persons to obtain a residences permit if needed.
Much of these protections are found in Article 18 (Legislative Decree no. 286/98). The 1998
Immigration Law already included this rule (article 18), which has recently been amended in
order to allow EU citizens to participate in the protection programs even though they do not need
a visa [See Law Decree 300/06, converted in Law 17/07, article 6]. Moreover, the 2003 law,
which amended the criminal code by modifying the crimes of enslavement and trafficking, [Law
228/03, article 13] includes another provision on the protection of trafficking victims, open to
citizens of every nationality.” Id. at 214.

“Article 18 of the immigration law was adopted as a consequence of the unsuccessful

application of previous laws, which only granted a residence permit to those victims who were in
danger due to their statements at trial [Law Decree 477/96, article 5]. In 1998, it was already clear
that conditioning the issuance of permits on a previous decision to cooperate with the justice
authorities, would not persuade many victims to testify.” Id.

“Once the residence permit is issued, it is valid for at least six months, and can be renewed
for one year, or even longer, if justice so requires. The permit gives access to education, health
care, and the labor market. Moreover, once the permit expires, it can be converted into a work or
study permit.” Id. at 217.

“Article 18 describes two different situations that may lead to the adoption of a protective
program, and two different procedures to obtain a residence permit—the permit can only be
issued to victims who take part in the assistance program. The conditions that must be satisfied in
order to be admitted into a protection and assistance program, which precedes the issuance of a

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residence permit, are (1) that the victim finds himself in a situation of violence or of serious
exploitation, and (2) that his safety is at risk, either as a consequence of his attempts to escape the
influence of a criminal organization, or as a result of the statements he made during the pre-trial
investigations or at trial. Victims are thus granted protection if they are facing a serious risk for
their lives or safety. According to the law, the situation of the victim can be ascertained either by
social services or in the course of police investigation. Once a victim is identified as such, he
should be offered admittance into a protective program. The services offered in the course of this
program may vary, as each program is tailored on the specific needs of the victim; however, the
Minister for Equal Opportunities has listed certain activities that every program must offer in
order to obtain public funding, which include accommodation, medical and psychological
treatment, legal aid, help to obtain the residence permit, education and assistance in finding a
job.” Id. at 215

“Once a victim is admitted into the protection program, there are two different procedures
which can lead to the issuance of a residence permit. One procedure, the so-called “judicial path,”
necessarily involves justice authorities. This procedure applies when the victims are already
cooperating with national authorities, and the residence permit is issued by the police
superintendent (the Questore) at the Prosecutor's request. On the contrary, the other procedure,
the so-called “social path,” does not require any action by the Prosecutor, as it only involves the
social services (including registered NGO's and associations) and the police superintendent. The
decision to issue a residence permit is taken by the Questore on the basis of a detailed request
coming from the association which is taking care of the victim in the course of the protection and
assistance program. Although in this case the crime may not yet have been reported, the request
for a residence permit always gives rise to the opening of a criminal investigation: indeed, the
police officer who receives the application has a duty to inform the judicial authorities, as he is a
public officer and, as such, has the duty to report crimes.” Id. at 216.

“The only condition for being issued the residence permit is that the foreigner must be a
victim (and as such might be too traumatised or afraid to collaborate). Accordingly, the first thing
to do is to remove the foreigner from the violence and exploitation of which he or she is the
victim as in this way it is possible to save a human being and deprive criminal organisations of
some of their resources. The residence permit may be extended on the grounds of justice
requirements, studies or employment and can therefore help with the naturalisation of the
foreigner. It may also be issued to foreigners who have completed a sentence for a crime
committed when a minor, where they have taken part in prison in a social integration and
assistance programme.”

—28th Conference of European Ministers of Justice, Report presented by the Minister of Justice of
Italy, Emerging Issues of Access to Justice for Vulnerable Groups, in Particular: Migrants and
Asylum Seekers; Children, Including Children Perpetrators of Crime” Council of Europe MJU-
28(2007)07 E at 4 (October 2007).

“The principle underlying these provisions is one of facilitating access to justice for victims,
while avoiding subjecting them to a trial for any offences committed (for example in the field of
immigration) or exerting constraints or conditions to turn them into unwilling accusers: if
foreigners report an offence they do this because they are fully convinced of the need to do so and
not because they have been obliged to take this step. So, by breaking the victim-witness link, the
foreigner can become a conscious player in the judicial proceedings and not be subjected to
administrative procedures and constraints, which would be tantamount to making them victims all
over again.” Id.

The application of the Italian human trafficking law with its allowances for a substantial
residential permit that is not contingent upon cooperating with prosecution has not been without
difficulties. “One of the first problematic issues concerns the very essence of the residence permit.
Although it is clearly not to be used as a reward for victims who cooperate with the police, NGO's

11
have noted that in some areas, the permit is not issued when the victim refuses to provide
information on the crime, or withdrawn if he ceases to cooperate or when the trial ends in a
dismissal. In one case, the victim appealed against the decision to withdraw the permit and the
Central Administrative Tribunal admitted her claim, reaffirming that the residence permit is not to
be considered as a reward for the victim's testimony, and that it is therefore not linked to the
outcome of the trial. Moreover, the Minister of the Interior has also given instructions on this
point, stressing that the humanitarian residence permit is not dependent upon the victim's
cooperation and that the police, when deciding whether to issue the permit, should also consider
the harm that the victim could suffer if repatriated.”

—Rose Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council
of Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J. 205, 217-
18. (2009).

“Another problematic issue concerns the role of the Prosecutor's opinion. Some police
superintendents still subordinate issuance of the permit to the Prosecutor's approval. In his
directives, the Minister of the Interior has clarified that the Prosecutor's opinion is only needed
when the request for the permit follows the so-called “judicial path,” and should never be required
when it comes from the social services. Moreover, even when such an opinion is necessary, it is
not to be deemed binding, as the final decision is to be made by the police, not the justice
authorities.” Id. at 218.

“The last problematic issue to be taken into consideration concerns the conversion of the
permit. The residence permit, which is granted on humanitarian grounds, might at some point
need to be converted into either a work or a study permit. Unfortunately, many non-EU workers
in Italy are employed in the underground economy. Consequently, they are not entitled to a work
permit, as in the eyes of the law, they are unemployed. Moreover, even those who are working
legally rarely find a steady job that would secure them a permanent residence permit. As a result,
they are under constant threat of expulsion, as their residence permit is only renewed as long as
they are employed.” Id.

Italian law enforcement agents have indicated that the assistance and protection programs
coupled with the residence permit are important legal tools that facilitate the reporting of crime.
Data on the full implementation of protective programs states: “between 2000 and 2007, 54,559
persons were contacted by social services and NGO's and offered medical, psychological, and
legal assistance. 13,571 victims were accepted into protection programs, and 5,653 residence
permits were granted, although there were 6,662 requests. The percentage of successful
applications for a permit, therefore, is around 84 percent. According to the same source, 9,663
persons received professional training or education, and 6,435 started working.” The data also
indicates that there have been increases in the number of trials but that many criminal
investigations still do not lead to actual prosecution. Id. at 218-19.

However, “[t]he data just examined show that the protection and assistance programs have
been fully implemented, and by offering victims unconditional help and assistance, the authorities
obtain more cooperation than could be expected if these measures were viewed as a rewards for
‘cooperative’ victims. Indeed, the number of permits issued according to article 18 has
immediately increased in comparison to the permits issued according to law decree 477/96, and
the number of victims who have decided to cooperate has grown.” Id. at 219.

“Offering a short-term residence permit in return for the victim's testimony at trial is clearly
not enough to induce victims to cooperate: from this point of view, persuasive measures should
include high chances of obtaining a permanent residence permit for the victims and their relatives,
who will face the consequences of the victims' decision to testify.” Id. at 220.

12
4. Protect the Human Trafficking Victim from Improper Interaction with Accused Traffickers
and Insure Appropriate Interview Techniques

• Case Study: Australia. “The alleged victim was a young Thai woman referred to as Ms K,
whom the NSW police initially intercepted after a 000 call. At trial, Ms K gave evidence that she
had been deceptively recruited in Thailand before being forced to have sex with men in Sydney
brothels over a 10-day period. As the key witness, Ms K was in the witness box for 11 days. This
included six days of cross-examination by three defence counsel (each defendant was represented
separately). Ms K was questioned about what she wore on particular days, her prior sexual
history, which 'clients' she had sex with in Australia and what this involved. She had to respond to
repeated questions that suggested she was a liar, that she just wanted a visa and that she really
wanted to marry an Australian man so she could remain in Australia.

Defence counsel brought various men, whom they alleged were former clients, into the
courtroom and asked her to identify them. Throughout her evidence, she sat in open court with the
three co-defendants (transcript of R v Tran, Xu&Qi, 2005). After the trial, the jury was unable to
reach a verdict on any of the 10 counts (except one, in which they acquitted one of the
defendants). Following her evidence, Ms K returned to Thailand. While in theory a retrial might
have been possible, she was unwilling to appear as a witness for a retrial, as the experience of
giving evidence was too traumatic defence counsel drew attention to Ms K having mixed up the
names of several of the co-accused in her initial interview with police. On this basis, the defence
counsel accused her of having fabricated her story.”

–Fiona David, Australian Institute of Criminology. No. 358, Prosecuting Trafficking in Persons:
Known Issues, Emerging Responses (June 2008) at 3.

• Legislative Approaches: Italy, Protocol for the Identification of and the Approach to
Potential Victims of Trafficking in Human Beings. The Teramo Court of Justice, Italy, has
adopted specific directives to be used by authorities when interacting with potential victims of
trafficking in humans. These directives provide a set of clear and definitive procedures to insure
that potential victims are treated with the respect and care needed by those who are potentially
suffering from the effects of extremely serious criminal acts. They also clearly outline which
authorities are responsible for identifying victims of trafficking and the procedure to do so. The
following is a portion of the directive which was issued by the Public Prosecutor’s Office of the
Teramo Court of Justice:

Criteria for approaching potential victims:

A) When the first contact with a potential victim of trafficking in human beings or
exploitation is initiated by members of the law enforcement agencies on the street or in indoor
locations, officers shall:

1. not lose sight of the fact that they may be dealing with potential victims of
extremely serious crimes;
2. bear in mind the possibility that behind even the simplest case of “illegal”
immigration there may lie a story of trafficking, exploitation or aiding and abetting
these crimes;
3. avoid intimidating behaviour;
4. keep the Immigration Office contact person fully informed about the person being
watched and keep him/her up to date;
5. inform the investigative contact person from the criminal police force in question
(obviously the need for this will be obviated when the official contact persons in
question are working directly and in the front line such as, for example, where a
victim is being accompanied to a police station by one of the protection agencies to

13
 make a report);

In any case, moreover, the investigative contact person attached to the

criminal force has a duty to:

1. inform the person concerned that information and help are available 24 hours a day
on Toll Free Hotline - Numero Verde Number 800.290.290, where female mediators
who speak all the languages of the victims’ main countries of origin are available;
2. inform the social services (accredited public or private services) operating in the
field so they can verify whether there are possible situations of exploitation or
trafficking;
3. set the victim identification procedures in motion, based on the “interview”
models, subject to contact with the cultural mediator (as per the registers provided by
the Immigration Office reporter). The interview procedures shall be adopted as the
standardised model to be used by the Immigration Office at the Questura and,
therefore, by all the criminal police forces. They should be drawn up in writing and
kept among the official records;
4. should they consider the person to be a possible victim of trafficking, they shall
make contact with an accredited association or the social service. Once contact has
been made, the aforementioned referent, subject to agreement with the contact person
under Art. 18 of Legislative Decree No. 286/98, should accompany the potential
victim to the accredited bodies or invite them, in writing, to appear before the
Immigration Officer;
5. simultaneously, they shall inform, also in writing, the Counsel for the Prosecution
(in charge of an existing procedure or whosoever is on duty) for the adoption of
instructions in the case, both in terms of the immediate instigation of the
investigations and in terms of the provisions of Art. 18 of Legislative Decree No.
286/98.

B) When the first contact with a potential victim of trafficking or exploitation takes
place inside the Questura involving members of the Immigration Office staff.
The Immigration Office staff shall:

1. Inform the contact person at the Immigration Office immediately,

who should then:

a) take the possible victim away from the place in which potential
traffickers/exploiters or persons who might make contact with them may be
found. To this end, a room should be assigned inside the Police Headquarters,
possibly free of distinguishing features and in which the victim can be sure
that his or her primary needs will be satisfied (possibly overseen by the
accredited social services);
b) inform the possible victim, in easily-understood language, about the
provisions offered by the Italian legal system;
c) contact the cultural mediator (on the basis of the aforementioned lists),
together with whom a preliminary interview with the possible victim will be
conducted, based on the agreed procedures;
d) depending on the outcome of the interview, the contact person under Art.
18 of Legislative Decree No. 286/98 shall agree the potential victim
management procedure and referral with the accredited association or the
social service, in order to plan the follow-up visit to the Immigration Office
to submit the relevant documentation in conformity with Art. 18 of
Legislative Decree No. 286/98.

The contact person and the Immigration Office employees shall, however:

14
 2. bear in mind the fact that despite appearances they could be dealing with a possible
victim of extremely serious crimes;
3. bear in mind the possibility that behind even the simplest case of “illegal”
immigration there may lie a story of trafficking, exploitation of aiding and abetting
these crimes;
4. set the victim identification procedures in motion in line with the aforementioned
interview protocols, above all when dealing with “at risk categories” (children,
prostitutes, etc.);
5. within the bounds of the investigation, where there is strong evidence of the
distinguishing signs of trafficking or exploitation, advise the investigative contact
persons at the flying squad without delay, advising in writing the Counsel for the
Prosecution so that the investigative procedures can be instigate

The following steps shall be followed even outside the interviewing

environment:

a) inform the person about the provisions of the Italian legal system: the
workings of “Social Protection” Art. 18 (and the correlative legalisation,
which carries no obligation to denounce the trafficker) and assisted voluntary
return; inform the person that information and help are available 24 hours a
day on Toll Free Hotline – Numero Verde Number 800.290.290, where
female mediators who speak all the languages of the victims’ main countries
of origin are available;

b) where possible, pamphlets dealing with legal matters and information in

several languages should be circulated to and made available in the
Immigration Office centres where the desks dealing with the receipt of
applications and the consignment of permits are located, as well as in other
places that foreign citizens may frequent for whatever reason;

c) inform detainees that they have a right to the services of a lawyer and
possibly also to free legal aid;

- There is clear evidence, even at this stage, that there is a need for (six
monthly) meetings to be organised, on the initiative of any one of the
participants, among the Immigration Office contact persons, the responsible
investigating officers in each law enforcement agency, the officers of the
accredited associations and social services involved to the greatest extent, in
order to monitor the results of activities carried out in line with this directive
and suggest any updates and/or amendments. The same directives apply to all
cases, whether the potential victim is referred to the Public Prosecutor's
Office or to the Immigration Office by the accredited public or private social
services.

—Jointly drawn up by the Public Prosecutor's Office in Teramo, the Associazione On the
Road, the Immigration Office at the Teramo Questura, and the other Law Enforcement
Agencies, Protocol for the Identification of and the Approach to Potential Victims of
Trafficking in Human Beings, 2-3 (Sept. 2005) (The Protocol was circulated by the Public
Prosecutor's Office in Teramo to all the Law Enforcement Agencies within the province),
available at http://www.osce.org/documents/cthb/2008/09/32950_en.pdf

5. Human Trafficking Legislation Should Acknowledge that Victims of Trafficking Can

Constitute a Particular Social Group (PSG), Thereby Requiring the State to Offer Protection

15
Under International Refugee and Asylum Law

• Legislation: UK, SB (PSG-Protections Regulations-Article 6) Moldova CG [2008] UKAIT

00002. “This case has Country Guidance status and it is therefore binding on the Asylum and
Immigration Tribunal (AIT). This case established that ‘former victims of trafficking’ are capable of
forming a particular social group (PSG) under the Refugee Convention 1951 and in so doing she
won the right to refugee status for SB, a victim of trafficking from Moldova. This reported case has
set an important precedent in the UK and has impacted upon Home Office policy. The AIT
overturned para 95 of MP (Trafficking, Sufficiency of Protection) Romania [2005] UKIAT 00086
and para 18 of JO (internal relocation – no risk of re-trafficking) Nigeria [2004] UKIAT 0025, in
which previous Tribunals had found that this group was incapable of forming a PSG. As to the facts,
SB was a young woman who had been trafficked for sexual exploitation to the UK. She escaped,
gave evidence against her trafficker (her trafficker was convicted and sentenced to 7 years
imprisonment) and yet the Home Office continued to refuse SB international protection in the UK.
The Secretary of State for the Home Department (SSHD) eventually granted SB Humanitarian
Protection but refused to recognise her as a refugee by reason inter alia that ‘former victims of
trafficking’ could not constitute a particular social group under the Refugee Convention. An appeal
was brought against the SSHD’s decision to refuse SB asylum status with the hope of achieving
some positive guidance on the asylum issue for SB and other victims of trafficking.”

• Issues with PSG Status: Mechanisms, such as the PSG for refugee or asylum status, may be an
effective alternative to residence permits, particularly if the residence permit is predicated on
participating in the prosecution of the accused trafficker and the victim does not wish to
participate. However, relying on the use of the PSG is problematic. “The chances of obtaining
refugee status . . . will not be very clear at [the time of application], while the risk of being found
and punished is very high.” Rose Raffaelli, The European Approach to the Protection of
Trafficking Victims: The Council of Europe Convention, The EU Directive, and the Italian
Experience, 10 German L.J. 205, 220 (2009). For that reason, it is important to have a residence
permit in place that is not contingent upon cooperation in the prosecution. Yet, in the alternative
PSG status may be a means for a victim to obtain protection within the destination country.

6. Additional Elements Required for Human Trafficking Legislation in Order to Insure

Protection of the Human Trafficking Victim

Beyond all of the measures discussed above, there are a number of additional elements that should
be considered in drafting an effective piece of legislation that will adequately protect the victims of
trafficking. As has been demonstrated in the above discussion, it is important to not make protective
elements contingent upon whether or not the protected person decides to cooperate in the actual
prosecution. By not making the protective measures contingent upon such participation, evidence
suggests, the state may actually increase the possibility of becoming aware of human trafficking
networks and crimes and so may increase their ability to prosecute such crimes. Additionally, by
offering protections without contingencies, states will be upholding their humanitarian obligations.

a. Protective Measures for Trafficked Persons Should be Holistic to Insure All the Needs of a
Trafficked Person are Met

• Legislative Strengths and Weaknesses: European Union, Council of Europe 2005

Convention on Action against Trafficking in Human Beings. “Once the victims have been
identified, the treaty requires States to assist them ‘in their physical, psychological and social
recovery.’ A minimum standard of assistance is set forth, which includes: secure accommodation;
psychological and material assistance; emergency medical treatment; interpretation services;
counseling; information on their rights; assistance to ensure their rights are presented in criminal
proceedings; and in the case of children, education. These protective measures, which are not
conditional upon the victim's willingness to cooperate, are much broader than those granted by the

16
 EU Directive, and they address some of the problems typically experienced by trafficking victims,
such as a lack of information on their rights, safe accommodations, and medical treatment.
However, the Convention does not include some of the most important amendments that the CoE
Parliamentary Assembly had proposed, such as the right to appeal any decision refusing to grant a
person victim status and the extension of protective measures to the victim's family.” Id. at 210.

b. Offer Protective Measures, Such as Residence Permits, to Family Members and Not Just the
Trafficked Person

An important element of legislation is language that requires protection for members of the
human trafficking victim’s family. This protection can include offering members of the family
residence permits. Frequently, traffickers will use threats to family members as a means to manipulate
the trafficked person. Also, human traffickers may target other family members as potential persons to
be trafficked. Including mechanisms for state to state cooperation is also critical. Often the family
members may be located in the source country in close proximity to the traffickers, while the
trafficked person is in the destination country. This scenario creates easy opportunities for
manipulative and predatory behavior by the human traffickers which may impact the ability of the
authorities in the destination country to effectively protect the trafficked person or to prosecute a
criminal case against the traffickers.

• Legislative Shortfalls: European Union, European Council Directive 2004/81/EC. “The

European Parliament, in approving the Commission's proposal for the Directive, had suggested
introducing a new clause, in which States, when issuing a residence permit to trafficking victims,
would need to consider granting to victims' family members a permit of the same length.
However, this provision has not been included in the final text of the Directive, which does not
address the protection of families. The lack of any provision on this subject might impinge on the
effectiveness of the Directive, as trafficking victims often refuse to cooperate due to fears of
retaliation against their families.” Id. at 208.

c. Protective Policies Should Not be Contingent Upon Severing All Ties with Alleged Traffickers

• Legislative Shortfalls: European Union, European Council Directive 2004/81/EC. “It is also
clear that the Directive does not entirely trust trafficked persons, as it requires them to sever all
relations with the criminals who trafficked them, and allows for withdrawal of the permit if they
renew contact with them, regardless of their reasons for doing so. These conditions deserve
deeper analysis as they are indeed typical measures adopted when dealing with members of
criminal organizations who decide to cooperate with justice authorities, and are adopted in order
to ensure that such a decision is not taken in the interest of the organization, but of the justice
system. Although Article 8 is not directed at the criminals, but at their victims (who were never
members of the criminal organization), the purpose of these provisions is unclear. There may be
cases where victims maintain ties with the organization (for instance, when its members threaten
them or their families), but these ties have nothing to do with criminal law or with the reliability
of the victim's statements, and should not be considered when deciding on the issuance of a
permit.” Id. at 209.

C. Human Trafficking Law Should Encompass All Forms of Forced Labor Exploitation

Historically, legislators in some jurisdictions criminalized prostitution for the purpose of

ultimately curbing human trafficking. Case studies show that such an approach has had negative
repercussions. We believe human trafficking laws should encompass all forms of labour exploitation
in order to be truly effective.

17
 “The term ‘labour trafficking’ also needs to be understood alongside the concept ‘trafficking for
the purposes of sexual exploitation’. Frequently, the language of ‘labour trafficking’ is used to signal
that the area of focus is exploitation that takes place somewhere other than in the commercial sex
industry. This reflects the history and drafting of the Protocol [U.N. Protocol to Prevent, Suppress and
Punish Trafficking in Persons], which is itself the result of various difficult political compromises. In
particular, the inclusion of both ‘sexual exploitation’ and ‘forced labour’ as examples falling within
the Protocol’s definition of trafficking suggest that there is (or was intended to be) a distinction
between these two concepts. The distinction is not, however, always clear. For example, how should
we describe trafficking involving exploitation in the commercial sex industry where this industry is
both legal and regulated? How should we differentiate between ‘labour trafficking’ and trafficking for
the purposes of ‘sexual exploitation’ of a person who has been subjected to multiple forms of abuse
(for example, forced domestic labour and sexual abuse by a member of the household)? These issues
cannot be resolved by recourse to the UN Trafficking Protocol, the language of which appears
deliberately equivocal [see Munro 2005 at 96, Munro V. A Tale of Two Servitudes: Defining and
Implementing a Domestic Response to Trafficking of Women for Prostitution in the UK and Australia.
Social and legal studies 14(1): 91–114].”

—Australian Government: Australian Institute of Criminology, Labour Trafficking: Key Concepts

and Issues 1 (Transnational Crime Brief No. 03 March 2009), available at
http://www.aic.gov.au/en/publications/current%20series/tcb/1-20/tcb003.aspx.

1. Legislation Must Differentiate Between Sex Work and Human Trafficking

Legislation must be carefully targeted at the specific crime of human trafficking. Countries, which
are often under international pressure to implement action against human trafficking, must be careful
to draft legislation that targets human trafficking and not conflate the particular crime of human
trafficking with the actual exploitive action that results from human trafficking. That is, conflating
human trafficking with prostitution may cause the victims to be criminalized and may actually make it
more difficult to discover and prosecute actual cases of human trafficking.

• Legislation—Unintended Consequences: Cambodia, Law on the Suppression of Human

Trafficking and Sexual Exploitation. “In February 2008, Cambodia's new Law on the
Suppression of Human Trafficking and Sexual Exploitation was promulgated and went into
effect. The law criminalizes sex for money, public soliciting for prostitution and many forms of
financial transactions connected to sex work. The law has been criticized for conflating sex work
and trafficking.

UNAIDS Cambodia country coordinator Tony Lisle stated that ‘[the human trafficking
legislation] has had unintended consequence that have interrupted HIV prevention services in the
sex industry.' According to Lisle, NGOs are having ‘significant’ difficulty working on HIV
prevention among sex workers because they working from the streets and bars as opposed to
brothels, in order to evade police. In 1999, Cambodia adopted a 100 percent condom use policy
that mandated the provision of condoms in all brothels. The policy has been credited as a main
factor in a decline in Cambodia's HIV prevalence rates. Between 1998 and 2003, HIV prevalence
was almost halved among brothel-based sex workers, and decreased significantly among non
brothel-based sex workers. According to Tia Phalla of Cambodia's National AIDS Authority,
‘Enforcement of the anti-trafficking law harms the 100 percent condom use in brothels.’
[As a result of the crackdown an observer noted] ‘a number of sex workers were arrested and
brothels closed across the country. The sex workers were sent to rehabilitation centres where they
were held in communal cells without bathrooms or running water. They received little food and
some reported being beaten or raped. Those living with HIV were reportedly denied antiretroviral
drugs (ARVs).’ One outcome of the crackdown among sex workers has been an increased fear
that condoms may be considered evidence of a crime, making sex workers reluctant to carry and
use them.”

18
 —Cambodia: Human Trafficking Legislation Threatens HIV Response, 13 HIV/AIDS Policy and
Law Rev., Dec. 2008, at 1-2.

• Legislation: Korea. “In response to international pressure the Korean government established an
“inter-ministry task force to combat trafficking and subsequently introduced a prostitution
prevention law. Despite protests by sex worker rights groups, Korea has instituted a sweeping
anti-prostitution law, the first of its kind since 1961. The reform includes prison sentences and
fines for traffickers and for women in the sex industry. The Korean government, encouraged by
its subsequent ranking at Tier 1, claims it will eliminate prostitution by 2007. This illustrates the
large-scale negative impact of the anti-prostitution and prosecution-oriented framework of the
TVPA.

Various problems arise due to the conflation of trafficking and prostitution, in definition and
in subsequent practice. As a result, administrative agencies substantively and procedurally utilize
policies to enforce the criminalization of prostitution, rather than to combat human trafficking.

Advocates reported that in legal terms, the Korean government understands human
trafficking only to mean prostitution. This interpretation did not change with the introduction of
the Palermo Protocol, and only grew worse after introduction of the TVPA, and Korea's initial
ranking as a Tier 3 country in 2001.”

—Grace Chang & Kathleen Kim Re-Conceptualizing Approaches to Human Trafficking, 3 Stan.
J.C.R. & C.L. 317, 330-31 (Aug 2007).

2. Legislation for Human Trafficking Should Encompass All Forms of Forced Labor

“While there is no formal definition of labour trafficking, terminology such as ‘trafficking for the
purposes of labour exploitation’ and ‘labour trafficking’ tend to be used to refer to trafficking the end
purpose of which involves forced labour on fishing vessels, the enslavement of migrant domestic
workers, bonded labour in agricultural settings, and sweatshop labour (see for example UNODC
2008) . . . Under the UN Trafficking Protocol, exploitation is defined to include several overlapping
but potentially different kinds of conduct, including forced labour or services, slavery or practices
similar to slavery, and servitude. These terms are particularly relevant to the meaning of ‘labour
trafficking’. Though these terms are not defined in the Protocol, they have been used in other
international legal instruments. [See Transnational Crime Brief No. 03 for additional resources
defining these terms].

—Australian Government: Australian Institute of Criminology, Labour Trafficking: Key Concepts

and Issues 1 (Transnational Crime Brief No. 03 March 2009), available at
http://www.aic.gov.au/en/publications/current%20series/tcb/1-20/tcb003.aspx.

• Case Study: U.S.A., Jose Ramiro and Juan, R&A Harvesting Company in the US. “From the
late 1990s, Jose Ramiro and Juan Ramos’ farm labour contracting company, R&A Harvesting,
supplied labour to harvest oranges and other citrus products for some of the largest citrus growers
in the US. Between January 2000 and June 2001, the Ramoses forced as many as 700 Mexican
and Guatemalan workers, mostly men, to work without pay, or for far less than the minimum
wage, under the threat of violence. They instituted this coercive control under the pretence of
collecting debt owed for transport from Arizona to Florida, and for charges made for supplying
work equipment, housing utilities and other necessities. After R&A Harvesting employees
attacked a van driver suspected of helping the workers, the Coalition of Immokalee Workers
(CIW), a local community organization, pressured prosecutors to investigate allegations of forced
labour. The owners of R&A Harvesting were tried and convicted of forced labour charges in
2002.”

19
 – International Labour Office, Human Trafficking and Forced Labour Exploitation: Guidelines
for Legislation and Law Enforcement, at 36 (2005).

D. Human Trafficking Law Should be Drafted to Avoid Gaps in Detection, Rescue, Prosecution,
and Coordinated Responses Between States and Between States and Non-State Actors

Human trafficking laws must be asserted at the local levels in order to have any significant
deterrent, rehabilitative, or punitive effects. In the alternative, there must also be interregional
cooperation so that human traffickers can’t make use of a gap in one country’s legislation.

1. Human Trafficking Legislation, Decrees, and Directives Require Language Specifying

Mechanisms for Identifying Trafficked Persons

In order protect trafficked persons it is first necessary to identify them. In order for human
trafficking legislation to be effective it is necessary to create robust mechanisms for identification of
the victims. Too often trafficked persons are not recognized as victims, but instead are treated as
criminals. It is imperative that specific provisions are put in place to mandate specific measures so
that persons dealing with migrants, labourers, and sex workers have the capacity to recognize human
trafficking victims.

• Legislation: The European Council Directive 2004/81/EC and the Council of Europe 2005
Convention on Action against Trafficking in Human Beings. The European Union has enacted
several pieces of law dealing with human trafficking including the European Council Directive
2004/81/EC and the Council of Europe 2005 Convention on Action against Trafficking in Human
Beings. States are obliged to adopt protective measures for human trafficking victims as a result
of this law. However, there have been criticisms due to the laws failure to require states to create
robust mechanisms for victim identification.

“The Directive [European Council Directive 2004/81/EC] requires Member States to inform
victims of their rights (art. 5), but it does not mention the adoption of special procedures in order
to identify victims. If States do not train their police officers to distinguish between illegal
immigrants and potential trafficking victims, the Directive will not be fully implemented, and
compounding this problem is the fact that police officers training often focuses on identification
and expulsion of illegal immigrants.” Rose Raffaelli, The European Approach to the Protection
of Trafficking Victims: The Council of Europe Convention, The EU Directive, and the Italian
Experience, 10 German L.J. 205, 207 (2009). “With regard to the protection of victims (articles
10 ff.), the Convention [Council of Europe 2005 Convention on Action against Trafficking in
Human Beings] first addresses the problem of victim identification. States are required to provide
law enforcement authorities with trained and qualified personnel and to ensure cooperation
between different public authorities and support organizations.” Id. at 210.

To that end, Teramo Court of Justice, Italy, has adopted specific directives in order to create
designate authorities trained to recognized trafficked persons. The following is a portion of the
directive which was issued by the Public Prosecutor’s Office of the Teramo Court of Justice:

Appointment of responsible officers and contact persons

A) The appointment of one or more contact persons (and their substitutes) within the Teramo
Questura Immigration Office is a matter of priority – in line
with Ministerial Circulars. Under the umbrella of and in line with the objectives set out in Art.
18 of Legislative Decree No. 286/1998, this person or persons would be responsible for:

20
 a) ensuring that all organisational procedures and administrative regulations are fully
explained to the entire staff of the various law enforcement agencies who, by nature
of their office, come into contact with potential victims of trafficking and
exploitation. To this end, the afore-mentioned contact person may also hold meetings
for the purposes of information and planning;

b) coordinating the activities of the aforementioned members of staff (in relation to

the identification and initial support of potential victims of trafficking and
exploitation) and any needs and requirements of an administrative nature under
Legislative Decree No. 286/98;

c) maintaining contacts with the referring Counsel for the Prosecution’s Office and
the accredited public and private social services within their own area of competence.

B) The provincial chiefs of the State Police, the Carabinieri and the Financial Police, each
within their own sphere of competence, shall identify one or more officers to be responsible
for:
1) procedures for identifying potential victims of trafficking and exploitation;
2) managing inquiries into crimes as detailed in Articles 600, 600 bis, 601, 602 of the
Criminal Code, Art. 12 of Legislative Decree No. 286/1998, Art. 3 of Law No.
75/1958 (and related crimes).

The aforementioned officers should always work in tandem with the contact person under
Art. 18 of Legislative Decree No. 286/1998 (Immigration Office Contact Person), with a view
to planning investigative requirements that dovetail with those of an administrative nature,
undertaken by the Immigration Office.

They should, furthermore:

- deal directly with the Counsel for the Prosecution;
- conduct relationships with the accredited public and private social services, heedful of
victim management obligations during on-going investigations, and mindful of victim
protection and the latter’s active collaboration with these investigations.

—Jointly drawn up by the Public Prosecutor's Office in Teramo, the Associazione On the
Road, the Immigration Office at the Teramo Questura, and the other Law Enforcement
Agencies, Protocol for the Identification of and the Approach to Potential Victims of
Trafficking in Human Beings, 2-3 (Sept. 2005) (The Protocol was circulated by the Public
Prosecutor's Office in Teramo to all the Law Enforcement Agencies within the province),
available at http://www.osce.org/documents/cthb/2008/09/32950_en.pdf

2. Local Enforcement of Human Trafficking Law: Insure Frontline Police Officers, Judges,
Lawyers, and Other Members of the Justice System are Aware of and are Asserting the Law

“First of all, incidents of trafficking are local by nature. Thus, state law enforcement officials are
the most likely to uncover incidents of trafficking. "[State] officers are often most familiar with the
locations, victims, and perpetrators of these crimes in their jurisdiction and provide critical facts and
observations that can lead to larger interstate or international investigations." Witnesses are also more
likely to call local police rather than federal officials to report trafficking crimes. For example, dialing
‘9-1-1’ [the general U.S. emergency services phone number] to report a crime connects to local
police, not federal agents.”

–– Eileen Overbaugh, Comment, Human Trafficking: The Need for Federal Prosecution of Accused
Traffickers, Seton Hall Law Rev. at FN21.

21
3. Include Mechanisms to Mandate that Prosecutors Initiate or Expand Investigations Against
Persons Suspected of Trafficking

• Case Study: Kosovo. “In October 2006, the Kosovo Police Service failed to initiate an
investigation against a known person who was involved in the airport pick-up of a number of
alleged Moldovan victims. The reason the prosecutor cited for not investigating was that this
latter person was “no longer in business” with the defendant. In the same case, the prosecutor
failed to investigate the possible involvement in trafficking activities of a lawyer, in whose office
the defendants signed ‘labour’ contracts with the victims.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 13 (Oct. 2007).

• Case Study: Kosovo. “In a case investigated by the Prizren District Prosecutor, in her statement
of 12 February 2007, an alleged trafficking victim mentioned having worked in a bar – other than
that of the defendant – where several Bulgarian women worked as prostitutes. Another trafficking
victim mentioned the name of the same bar owner in a separate case. Despite these two
corroborating testimonies, the prosecutor failed to investigate this bar or its owner.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 13 (Oct. 2007).

• Case Study: Kosovo. “In a case investigated by the Prizren District Prosecutor involving the
possible crime of trafficking, several Moldovan women working as dancers or prostitutes in a bar
near Prizren stated that one of the defendants had recruited them in Moldova. However, the
prosecutor failed to investigate further and omitted this information in the indictment filed on 12
December 2006. Thus, despite credible evidence meeting all the elements of trafficking, the
alleged perpetrators were charged with the less serious offence of facilitating prostitution.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 13 (Oct. 2007).

• Case Study: Kosovo. “In another case of possible trafficking investigated by the
Prishtinë/Priština District Prosecutor in October 2006, the prosecutor failed to determine if the
Moldovan injured parties (waitresses and alleged victims of trafficking) had been forced to have
sexual relations with clients. He also never questioned why they came to Kosovo to work as
waitresses, asked about their past, or sought information on their relationship with the
defendants.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 13 (Oct. 2007).

• Case Study: Kosovo. “In a case in Prishtinë/Priština, the District Prosecutor on 21 March 2006
received a police criminal report stating that a man had recruited a woman from Albania by
deceiving her, and then forcibly kept her for 15 days in his house. He allegedly beat her and
demanded that she pay him 3.000 Euro. If she refused, he would sell her as a prostitute to
someone in Macedonia. Despite the presence of the “acts”, the “means” and the quite apparent
intent to exploit the victim, the District Prosecutor forwarded the case file to the Ferizaj/Uroševac
Municipal Prosecutor, as he believed that the case did not contain elements of trafficking.”

—The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 10 (Oct. 2007).

22
4. Human Trafficking Law Should Have Mechanisms for Interregional Cooperation Built
Directly into the Law

“Harmonization is crucial because it avoids that traffickers can make use of gaps in the
legislation.”

—Jill E.B. Coster Van Vorhout Human Trafficking for Labour Exploitation: Interpreting the Crime, 3
Utrecht Law Rev. 44, 53 (Dec. 2007).

a. Human Trafficking Law Should Include Provisions for Networking with Other States to Help
Prevent Transnational Organized Crime Groups from Exploiting Inconsistently Robust Human
Trafficking Laws

• Case: Thailand/Malaysia/Cambodia, Ms. Kunthea (Cambodian National Prosecuted and

Convicted in Thailand). The case is an example of a successful rescue and prosecution of a
cross-border human trafficking case between Cambodia, Malaysia, and Thailand. Ms. Khunthea
—(a Cambodian national) was convicted of procuring under-aged women for prostitution and
sentenced to 85 years in prison through a coordinated regional response orchestrated by the
United Nations Inter-Agency Project in the Greater Mekong Sub-region (UNIAP).

“[The] case involved eight Khmer girls from Banteay Meanchey province who were duped to
believe that they would be hired to sell food and clothes in Thailand near the Thai-Cambodian
border. After crossing the border, they were trafficked through Thailand to Malaysia to work in
karaoke bars. Malaysian authorities later arrested them as illegal migrants, and kept them in
detention for three months. Several of the girls were indentified (through the intervention of H.E.
Mu Sochua, then Cambodian Minister for Women’s and Veteran’s Affairs) as trafficking victims
and repatriated back to Cambodia by IOM, but several were missed, deported to the Thai-
Malaysian border, and then trafficked again within Thailand. One was later able to contact her
parents in Cambodia by mobile phone, and in turn they reached out to a local non-governmental
organization based in Banteay Meanchey that contacted UNIAP Cambodia. Through UNIAP’s
linking function, the Cambodian Minister again intervened and in February 2004 prompted a
Royal Thai Police rescue of the girl. Miss Nit Sum (name changed to protect identity), from a
restaurant in Golok, on the Thai-Malaysian border.

The girl was then sent to the Sri Surat Protection and Occupational Development Centre in
Surat Thani Province, and later sent to Ban Kredikam in Nonthaburi. This rescue was a clear case
of successful cross-border cooperation facilitated by UNIAP. In this case, the girl remembered the
mobile phone number of the trafficker in Samut Prakan, enabling Royal Thai Police to arrest Mrs
K., a Khmer citizen (residing in Thailand), who had allegedly trafficked the girls to Malaysia.
However, with only one witness, concern was that the Thai courts might release the trafficker
because of an insufficiently strong case. The Cambodian Minister again asked UNIAP for
assistance, and UNIAP played a linking role between the Thai Ministry of Social Development
and Human Security (MSDHS), and the Royal Thai Police, in arranging for six victims of this
trafficking ring to come from Cambodia to Thailand to present evidence against Mrs. K.”

—Updates from Around the Region—UNIAP Assists in a Case of Khmer Girls Trafficked to
Thailand, United Nations Inter-Agency Project Newsletter, Phase Two 2004, Issue 1 at 3,
available at http://www.un.or.th/TraffickingProject/Publications/issue13.pdf

The process further involved coordination of Thai and Cambodian NGOs, UNIAP, the U.S.
embassy, the Thai Attorney General’s Office, and Cambodian police, among of host of other
players. The Kunthea case, though not prosecuted specifically for human trafficking, did result in
the conviction and sentencing of Khunthea. “Ms. Khunthea, a Cambodian national, was sentenced
to 85 years in prison for procuring under-aged women for prostitution. According to Thai
Criminal Procedure, article 91(3), Khunthea will only serve a 50-year jail term. This successful

23
 prosecution is the first time that Cambodia and Thailand have worked together to prosecute a
trafficker. The case involved movement across three countries, and required officials and non-
governmental agencies to join forces.”

—Human Trafficking.org, Ms. Kun Thea sentenced to 50 years according to Thai Criminal Code,
March 2005, http://www.humantrafficking.org/updates/108/ (last visited July 8, 2009).

The case is hailed as a model example of a coordinated regional effort to successfully

prosecute a transnational case of human trafficking. The case also demonstrates the need for
human trafficking law to be flexible enough to allow for coordinated efforts between both state
and non-state actors as well as various sectors within each state. Most importantly, the law must
allow for coordinated efforts across transnational borders so that actors may be prosecuted under
human trafficking law.

Additionally, it can be extrapolated that within a given country, the various levels of the state
in wide-spread provinces, and between state and non-state actors, there needs to be legal
structures which allow for coordinated efforts in rescue, prosecution, protection, and sentencing.

• Legislative Recommendations: “Whether trafficking statutes have a deterrent effect must center
on whether the punishment outweighs the benefits of human trafficking; the potential for massive
trafficking profits makes this particularly difficult. Traffickers undoubtedly conduct a cost-benefit
analysis before engaging in trafficking. Traffickers consider the opportunity for and profits from
legitimate income, the profits of illegal activity, the probability of being arrested, and the potential
punishment. To combat these massive benefits, punishment must be proportional and swift.
Further, to guarantee that the benefits of trafficking do not outweigh the potential for arrest and
punishment, uniformity in trafficking laws is necessary to prevent traffickers from shifting their
activities to states with weak human trafficking laws. The international sex trade can be
eliminated by using uniform international barriers to trafficking rather than individualized
national prosecutions. In other words, criminalization at a national level is insufficient because a
single country cannot reach suppliers and consumers outside of the country and cannot protect
women and children who are victimized outside the nation's borders.”

—Eileen Overbaugh (Comment) Human Trafficking: The Need for Federal Prosecution of
Accused Traffickers, Seton Hall Law Rev. at FN146.

5. Human Trafficking Law Should Recognize that Human Trafficking Crimes Do Not Require
the Crossing of an International Border.

It is important to note the crime of human trafficking does not necessarily require the
element of crossing an international border in order to constitute an offence.

a. Intrastate Trafficking Specifically Recognized and Designated Within the Law

• Legislative Study: Netherlands. “Cross-border movement is not a requirement in Dutch cases. It

is certainly not required in cases with national victims. Such cases are deemed ‘loverboy’ cases in
which young men usually seduce Dutch women whilst pretending to be searching for a loving
relationship with them and force them into prostitution. Nonetheless there are also cases (although
until now just one) with a Dutch victim who was not in a relationship. Movement thus might also
constitute transportation within the country.”

–Jill E.B. Coster Van Vorhout Human Trafficking for Labour Exploitation: Interpreting the
Crime, 3 Utrecht Law Rev. 44, 49 (Dec. 2007).

24
E. Human Trafficking Law Should Include Specific and Robust Sentencing Guidelines

A human trafficker is motivated by the substantial profit that he can receive from cheap, long-
term labour. Legislators must therefore deter traffickers by ensuring that penalties for traffickers are
severe. Article 11 of the United Nations Convention against Transnational Organized Crime explicitly
states that states should maximize the effectiveness of the deterent aspect of anti-human trafficking
legislation. It further notes states should be consider the gravity of the offense committed when
considering the degree of sanction imposed by the state.

“Article 11. Prosecution, adjudication and sanctions

1. Each State Party shall make the commission of an offence established in accordance with
articles 5, 6, 8 and 23 of this Convention liable to sanctions that take into account the gravity of
that offence.

2. Each State Party shall endeavour to ensure that any discretionary legal powers under its
domestic law relating to the prosecution of persons for offences covered by this Convention are
exercised to maximize the effectiveness of law enforcement measures in respect of those offences
and with due regard to the need to deter the commission of such offences . . .

4. Each State Party shall ensure that its courts or other competent authorities bear in mind the
grave nature of the offences covered by this Convention when considering the eventuality of early
release or parole of persons convicted of such offences.”

— United Nations Convention against Transnational Organized Crime art. 11, Palermo, Italy,
in December 2000.

“Prosecution deters further trafficking, incapacitates current traffickers, and removes the powerful
financial incentive to traffic through both asset forfeiture and mandatory restitution. Prosecution
protects trafficking victims by removing them from immediate danger and averting further harm or
exploitation”

– Eileen Overbaugh, Comment, Human Trafficking: The Need for Federal Prosecution of Accused
Traffickers, Seton Hall Law Rev. at FN59.

1. Strong Sentencing Guidelines to Establish the Grave Nature of Human Trafficking and to
Act as a Deterrent to Human Traffickers

• Case: Canada, R. v. Imani Nakpangi, (24 June 2008), Brampton AG 0087 (Ont. Ct. J.).
“Atwood J. Imani Nakpangi, Canada’s first convicted child trafficker earned a total of over
$360,000 over a two and a half year period by selling ‘Eve’ (her real name has been protected) – a
15-year-old girl who had been homeless – for sex. His illicit profits were used to purchase a
BMW and a large home in Niagara Falls for himself. Nakpangi brutally controlled Eve by
assaulting her, threatening her, and threatening to kidnap her brother. Nakpangi was convicted of
human trafficking on 24 June 2008 by Atwood J. in Brampton, Ontario, and sentenced to just
three years on that count. Factoring in his pre-trial custody credit, Nakpangi will spend less time
in jail for this conviction than he spent exploiting this vulnerable girl whose life he has
destroyed.”

—Benjamin Perrin, Bill C-268: Minimum Sentences for Child Trafficking Needed, Alb Law
Rev. (Mar. 12 2009), http://ualbertalaw.typepad.com/alr_supplement/2009/03/bill-c-268-
minimum-sentences-for-child-trafficking-needed.html

25
 • Case: U.K. R. v. Shaban Maka [2005] EWCA Crim 3365 Court of Appeals CA (Crim
Div) Held. “A total sentence of 18 years' imprisonment for offences of trafficking for sexual
exploitation was not manifestly excessive, as the need to deter those in Eastern Europe and the
United Kingdom from such activities was a highly material consideration.”

• Case: U.K., R. v Agron Demarku [2006] EWCA Crim 2049 [2007] 1 Cr. App. R. (S.) 83.
“The appellant was convicted of six counts of trafficking in women for sexual exploitation. A 16-
year-old Lithuanian girl was tricked into travelling to London where she was met by two men and
driven to Sheffield where she was told she was going to work as a prostitute. She was later driven
back to London were she was told she would be sold and would have to work as a prostitute. She
was employed at a brothel run by the appellant and others working for seven days a week. When
her family contacted the police, the police visited the premises where she was and found a number
of women. Observation was kept on six other brothels operated by the appellant and his co-
accused. Sentenced to a total of 18 years' imprisonment. The Court considered that the offences
were exceptionally serious and involved a degrading, despicable activity producing untold misery
and in so far as the girls who were unwilling and forced into prostitution were concerned, had
echoes of slavery. The Court could not see anything wrong with the total sentence of 18 years'
imprisonment. Those who committed these offences must expect very lengthy sentences. The
appeal would be dismissed.”

***NOTE: consideration of aggravating factors.

2. Human Trafficking Violations are Distinct Crimes and are Not Multiplicitous with Other
Crimes Such as Involuntary Servitude

“In United States v. Maka, the United States Court of Appeals for the Ninth Circuit held that
human trafficking charges are not duplicative of involuntary servitude, alien smuggling, or alien
harboring charges, allowing a defendant to be convicted of each count and enabling federal
prosecutors to bring multiple charges against a trafficking defendant.”

—Eileen Overbaugh, Comment, Human Trafficking: The Need for Federal Prosecution of Accused
Traffickers, Seton Hall Law Rev. at FN177.

• Case: U.S.A., U.S. v. Lueleni Fetongi Maka, 237 F. 225, (9th Cir. 2007), appeal filed, (U.S.
May 14, 2007) (No. 06-10339). “The court rejected defendant's contention that the human
trafficking counts were multiplicitous of the involuntary servitude counts because each required
proof of a fact that the other did not. Thus, charging and sentencing defendant with both crimes
did not violate the Fifth Amendment. Similarly, the human trafficking charges were not
multiplicitous of the alien smuggling and harboring counts. However, the district court erred by
failing to vacate defendant's convictions with respect to the forced labor counts that it held to be
multiplicitous. Although the district court did not impose any sentence or special assessment on
these counts, 18 U.S.C.S. § 3013 required the imposition of a $100 special assessment for each
felony count of conviction. Therefore, if the court remanded for the district court to comply with
this requirement, imposing the special assessment would result in cumulative punishments in
violation of the Double Jeopardy Clause. Therefore, the only appropriate remedy was for the
district court to vacate the convictions on the forced labor counts, thereby eliminating the
requirement for the additional punishment.

Under 18 U.S.C.S. § 1584 (involuntary servitude), the defendant has to actually hold another
to involuntary servitude, something not required for a conviction under 18 U.S.C.S. § 1590
(human trafficking), which requires knowledge that the laborer will be used by someone for such
purposes, but does not require that the recruiter or transporter be that person. Likewise, a
conviction under 18 U.S.C.S. § 1590 requires proof that the defendant recruited, transported,
harbored or otherwise obtained the laborer with the knowledge he or she would be used in

26
 involuntary servitude, whereas an "end-user" defendant could be convicted under 18 U.S.C.S. §
1584 even if not involved in the acquisition or transportation process.

Human trafficking counts under 18 U.S.C.S. § 1590 are not multiplicitous of alien smuggling
and harboring counts under 8 U.S.C.S. § 1324. The alien smuggling and harboring statute, 8
U.S.C.S. § 1324, does not require that the smuggling or harboring be with the intent to use the
individual for "labor or services" as required by 18 U.S.C.S. § 1590. 18 U.S.C.S. § 1590 does not
differentiate between trafficking in aliens versus United States citizens, whereas 8 U.S.C.S. §
1324 requires proof the person smuggled or harbored was an unauthorized alien. Because each
offense requires proof of a fact the other does not, the offenses are not multiplicitous.”

• Case: U.S.A., U.S. v. Victor Powell, No. 04 CR 885, 2006 U.S. Dist. LEXIS 28858
(Filed Apr 28 2006). “Victor Powell has been charged in an 18-count superseding indictment
with sex trafficking adult and minor females during 2003 and 2004. See 18 U.S.C. §§ 1591,
2422(a), and 2423(a) . . . [i]n conclusion, the counts the government brought under § 1591
encompass Powell's alleged intrastate activities which affected interstate commerce, while the
counts brought under §§ 2422(a) and 2423(a) involve allegations of specific instances of crossing
state lines. Therefore, despite some overlap, each statute requires proof of a different group of
facts and therefore the various counts against Powell involving Individual A are not
multiplicitous.

(A defendant violates 18 U.S.C. § 1591 by causing a person to engage in a sex act for money
when either (1) the person was under 18, or (2) the defendant used "force, fraud or coercion."
Counts 1, 8, 15 and 18 involve one victim each. In counts 1 and 8, Powell is charged with
violating § 1591 both because (1) the victims were underage, and (2) Powell allegedly used
"force, fraud or coercion." In counts 15 and 18, Powell is charged only with using force, fraud or
coercion.)

(18 U.S.C. § 2423(a), which requires the government to prove transportation of a minor
across state lines to engage in criminal sexual activity, while count 3 alleges a violation of 18
U.S.C. § 2422(a), which requires the government to prove coercion to travel across state lines to
engage in prostitution)”

F. Human Trafficking Law Should Ensure that the Rights of the Accused are Protected
While stringent laws are needed to deter traffickers, it is also important to protect the rights of the
accused so the rule of law and the administration of justice are respected.

“It is not uncommon for national criminal justice agencies to be placed under intense political
pressure to find and punish traffickers. In some cases, such pressures can lead to over enforcement,
shortcuts, and unacceptable trade-offs. For example, in May 2004, Thailand’s Prime Minister declared
a “war on trafficking.” Coming on the heels of a similar “war on drugs” that resulted in thousands of
extrajudicial killings (Human Rights Watch, 2004), the declaration was widely interpreted as
providing criminal justice officials with implicit authority to use any means possible to secure arrests
and convictions. The pursuit of traffickers should never be at the expense of international rules
governing the administration of justice.”

—Anne Gallagher & Paul Holmes Developing an Effective Criminal Justice Response to Human
Trafficking, 18 I.C.J. Rev. 318, 326 (2008).

• Case: U.K., R. v. LorencRoci & Vullnet Ismailaj [2005] EWCA Crim 3404 Court of
Appeal Nov 16th 2005. “The sentencing judge took account of their pleas of guilty, although they
were entered on a rearraignment as the jury were about to be sworn. The judge accepted that the
women had come to the United Kingdom for the purposes of prostitution and had not been

27
 corrupted in any way. They had been coerced by reason of the conditions in which they were
required to work. There had been a high degree of planning and organisation and there was some
evidence of threats and restriction of the women's liberties and the confiscation of their passports.
It was noted, in contrast to the case of Maka [2006] 2 Cr.App.R.(S.) 14 (p.101), that the victims of
the offences were adult prostitutes and came to the country for the purpose of carrying on trade as
prostitutes. The coercion to which they were subjected was extremely minor compared with the
coercion and corruption to which the victim in Maka was subjected. Looking at the circumstances
of the case, although the Court considered that the sentencing judge was entirely right to impose a
deterrent sentence, the sentences were excessive. The sentence on the first appellant would be
reduced to three years and the sentence on the second appellant would be reduced from 11 years
to nine years' imprisonment.”

***NOTE: presence of mitigating factors.

• Case: U.K., Court of Appeal - case of R. v Elisabeth Delgado-Fernandez Godwin

Zammit (2007) EWCA Crim 762 2007 WL 2041801. “The remaining elements of the
trafficking offence lacked most of the aggravating factors identified by the Sentencing Guidelines
Council. There was no deception or coercion. There was assistance for prostitutes who wanted to
come to this country — assistance with their entering the country illegally and organisation of
their business while they were here on a substantial scale and for a substantial profit. In these
circumstances we have reached the conclusion that the sentences imposed on Godwin Zammit
were manifestly excessive. We shall grant his application for leave to appeal and we shall reduce
the sentences on both count 1 and count 3 from seven years to five years' imprisonment, to be
served concurrently, so that the overall sentence is reduced to five years' imprisonment. We
consider that the judge was entitled to treat Miss Delgado-Fernandez more leniently, despite the
fact that she did not plead guilty. She was very much under the control of Zammit and only
received a modest share of the profits of the enterprise. Far from being unduly lenient, we
consider that her sentence also was manifestly excessive. We will allow her application and
reduce the sentence to four years on counts 1 and 3, to be served concurrently, so that the overall
sentence is reduced to four years' imprisonment. The Attorney General's application is dismissed
(mitigating factors).”

H. Crucial Elements Legislative Drafters Should Consider in Formulating an Effective Human

Trafficking Law

There are several other important factors that legislators should consider when drafting
effective human trafficking laws.

1. Drafters of Legislation Should be Aware of Potential Conflicts Between Domestic Law and
the law of Neighboring States, Regional Laws and Agreements, and International Law

• Case Law: U.K., S v Slough Borough Council and others Family Division [2009] All ER (D)
182 (Apr) 14 November 2008. “On the facts, the child was habitually resident in Romania at the
material time and her parents had consented to her coming to England, a consent that was still
valid on the dates in issue. Further, pursuant to Romanian law, the mother had rights of custody as
defined under the Hague Convention and had not abandoned the child. Those rights did not
include the right to commit a criminal offence in Romania or abroad by exploiting the child. On
the evidence, including the father's conviction and the incredibility of the mother's evidence, the
parents knew and intended that the child would be earning money in England by selling
newspapers. That was trafficking of a child, which could also be described as 'exploitation'; a
criminal offence in the UK and Romania. That was the case notwithstanding the fact that the
activities that the child carried out might have been a norm in her society. Slough Borough
Council recently had a case of a young Romanian girl, whose mother was ruled by the UK courts
to have been complicit in the trafficking of the child. However, as the child’s habitual place of

28
 residence was legally deemed to be Romania, the courts ruled that she had to be returned to her
home country. Slough Borough Council tried to argue, that, under the Council of Europe
Convention, a victim should not be returned if they are deemed to be at risk, but it was ruled that
EU legislation trumped the Convention in this case. This ruling may have significant
consequences for other councils dealing with trafficking cases concerning EU nationals.”

–SOLACE, Human Trafficking Report at 25 (2009),

http://www.newport.gov.uk/stellent/groups/public/documents/report/cont372291.pdf

2. Drafters Should be Aware of Issues Related to Diplomatic Immunity and Human Trafficking
Laws

• Legislative Example: U.S.A. “Domestic workers employed by foreign diplomats cannot hold
their employers accountable for workplace violations as diplomats enjoy immunity from civil,
criminal, or administrative liability within the United States. While an exception to immunity
exists for "any professional or commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions," the 4th Circuit ruled in Tabion v. Mufti that
"commercial activity" includes only activities for personal profit, explicitly stating that domestic
workers are not "commercial activity." Thus, pursuant to Tabion, domestic workers are denied
claims against their diplomat employers in the civil justice system.”

—Grace Chang & Kathleen Kim Reconceptualizing Approaches to Human Trafficking, 3 Stan.
J.C.R. & C.L. 317, Aug 2007, at 337.

• Case: U.S.A., Mani Kumari Sabbithi, et al., v. Major Walleed KH N.S. Al Salef, et
al., 605 F. Supp. 2d 122, 07-115 (U.S. Dist. 2009), aff’d (2009) LEXIS 22593.
“Defendants argued that they had diplomatic immunity, and that their immunity deprived the
present court of jurisdiction, pursuant to the Vienna Convention on Diplomatic Relations
(Convention). In view of the State Department's determination that they were diplomats and its
certification that as diplomats they were immune from suit pursuant to the Convention, they were
entitled to diplomatic immunity. Despite defendants' status as diplomats, the workers contended
that diplomatic immunity should not shield them from liability in the present case. Defendants'
conduct in bringing the workers from Kuwait to the United States and employing them as
domestic servants, albeit for marginal wages, was not commercial activity outside of defendants'
official functions. As to the workers' Thirteenth Amendment claim, they did not cite a single case
in which diplomatic immunity was withheld in order to provide redress for a constitutional
violation. Defendants' conduct did not constitute human trafficking; thus no jus cogen norm was
at issue. The workers' argument that the TVPA overrode the Convention pursuant to the
subsequent-in-time rule was wholly unavailing.”

3. Drafters Should be Aware of Possible Mechanisms for Pursuing Civil Claims

Related to Human Trafficking

• Case: U.S.A, Alberto, Justo, Rodriguez, Licea, and Others v. Curacao Drydock Co., 584 F.
Supp. 2d 1355; 2008 U.S. Dist. LEXIS 89504; 21 Fla. L. Weekly Fed. D 429 (Oct. 31
2008). “The case is a function of the Alien Tort Claims Act, a US law which allows foreign nationals
to sue non-US officials or entities in US federal courts for major violations of international
humanitarian law. Cases brought to date have included torture, murder, efforts to crush democratic
dissent and inhuman working conditions. While the US has not joined the ICC, the Alien Tort Claims
Act is a major precedent for prosecution of human rights abuses internationally ALSO punitive
damages (Alien torts act Grants federal jurisdiction for “any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.

29
 Asserting claims under the Alien Tort Statute, 28 U.S.C.S. § 1350, the Racketeer Influenced
and Corrupt Organizations Act (RICO), 18 U.S.C.S. § 1962(b), and state law, for forced labor,
false imprisonment, negligence and civil RICO, plaintiff Cuban laborers alleged defendant
Drydock company conspired with the Republic of Cuba to force them into labor camps to repair
ships and oil platforms to evade the U.S. Embargo. A non-jury trial was held.

The laborers testified credibly as to intimidation, threats of persecution and imprisonment,

and being told their work was important to the Castro regime for generating United States
currency and breaking the Embargo. They were shipped to Curacao where they were held in
captivity and their passports were taken. They were ordered to work 16 hour days for up to 45
days straight, performing dangerous and physically demanding work without safety measures of
medical care for their serious injuries. They lived in inhumane barracks like slaves, finally risking
their lives, imprisonment, persecution of their families, and being denied ever seeing their
families again by escaping. There was no doubt that the severe, ongoing physical and emotional
harms and deprivations mandates sizable awards. Given that the company's customers were major
cruise lines, oil, and shipping companies, it was safe to say it profited greatly from the forced
labor. Disgorgement was proper. And, significant punitive damages were proper to act as a
deterrent and to reflect international revulsion against international human trafficking and
forced labor.”

4. Drafters Should Consider Specific Language That Mandates a Restitution Award for the
Trafficked Person

Incorporating language that specifically mandates that convicted human traffickers pay
restitution to victims of human trafficking accomplishes several objectives. First, and foremost, it is a
means by which the trafficked person can be compensated for the value of the exploitive labor that
they were forced to endure. Second, it can be used by the trafficked person as a means to compensate
them for the harm they received and to help them cope with economic costs they may incur while
dealing with the emotional and physical aftereffects of their abuse. As well, it can be used to help the
person reestablish a new livelihood to substitute for the exploitive practices they were subjected to.
Furthermore, restitution insures that the trafficking network is disgorged of any economic value they
may have received as a result of their exploitation. Restitution weakens criminal enterprises by
removing economic resources. Lastly, restitution acts as a deterrent to those that feel they will be able
to benefit economically even if they suffer criminal sanctions.

Case: U.S.A.. U.S. v. Maksimenko (E.D.Mich.,2007) Not Reported in F.Supp.2d, 2007 WL

1834708 (Only Westlaw citation is currently available).

• “Aleksandr Maksimenko, age 27, was sentenced today to serve 168 months (14 years) in prison
and pay more than $1.5 million in restitution for his role as one of the ring-leaders in a
conspiracy to force Eastern European women to work as exotic dancers in Detroit area strip clubs
. . . Maksimenko [was sentenced] following his conviction for an involuntary servitude,
immigration and money laundering conspiracy . . . According to court papers, Maksimenko and
his business partners operated a human trafficking ring which exploited Eastern European women
and used the guise of a legitimate business - Beauty Search, Inc. - to cover their criminal conduct.
Maksimenko and his partners smuggled women into the United States and compelled them
through threats and coercion to work as dancers in strip clubs. To force the women to keep
working, Maksimenko and his partners took a number of steps, including confiscating the dancers'
passports; imposing large debts; isolating the dancers; threatening physical violence; searching
the dancers' apartments; and threatening to turn the dancers into authorities because of their illegal
immigrant status . . . The Court also found that Maksimenko unlawfully took over $1.5 million in
earnings from the dancers. The Court entered a preliminary order of restitution requiring
Maksimenko to pay the dancers a total of $1,570,450, the amount of earnings the victims were
forced to turn over to Beauty Search. The Court further ordered that $537,043.84 in cash seized

30
 by government agents from Maksimenko's home and safety deposit boxes, as well as about
$30,000 worth of jewelry, be used to satisfy a portion of the Court's restitution award.”

— Press Release, Department of Justice United States Attorney’s Office Eastern District
of Michigan, Livonia Man Sentenced to 14 Years in Prison and $1.5 Million in
Restitution for Forcing Eastern European Women to Work at Detroit Area Strip Clubs
(June 25, 2007), available at
http://www.legislationline.org/documents/action/popup/id/6765.

Summary

In order to create a comprehensive and holistic human trafficking law, it is vital that states use
both positive and negative experiences to instruct future legislation. A globalized framework is
needed so that states can work in tandem with each other to protect victims and prosecute traffickers.
Human trafficking thrives in an environment in which states fail to cooperate with one another or
when states have enacted legislation that is inconsistent with one another and is insufficiently
comprehensive and robust.
Keeping in mind the use of the TIPP as the primary universal mechanism for constructing
legislation that combats human trafficking, it is hoped that readers of this report will take into
consideration the lessons already learned. The very nature of transnational crime is that of mutation,
adaptation, and exploitation of changing global conditions. In order to effectively combat human
trafficking, all states must recognize they have a role to play. It is imperative that states join together
in order to support one another in establishing and maintaining security both internally and externally.
The adaptation of robust and comprehensive laws against trafficking in human beings by utilizing
the TIPP principles and the best practices outlined in this report will go a long way to end the
suffering of potentially and currently trafficked persons.

31
 Cited Materials*

Laws and Legislation Cited in Report

• International: United Nations Convention against Transnational Organized Crime, Palermo,

Italy, December 2000.

• International: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, supplementing the United Nations Convention against Transnational
Organized Crime, Palermo, Italy, December 2000.

• U.S.A..: “T-Visa” 8 U.S.C.A. § 1101 (T)(i)

o Added by § 107(e), Division A (Trafficking Victims Protection Act of 2000), of the
Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114
Stat. 1464 (Oct. 28, 2000) (hereinafter " TVPA 2000").
o “T-Visa” amendments:
 Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. 108-193,
HR 2620 (December 19, 2003).
 Violence Against Women and Department of Justice Reauthorization Act of
2005, Pub. L. 109-162 (January 5, 2006).

• International: Select Destination countries that provide special visa arrangements for victim–
witnesses: Australia, Belgium, Canada, Italy, the Netherlands, the United Kingdom [USDOS,
2008], and the United States [USDOJ, 2007].

• E.U.: Council Directive 2004/81/EC, 2004.

• E.U.: European Trafficking Convention, 2005, Art. 13.

• Netherlands: B-9 Visa.

• Italy: Article 18—Legislative Decree no. 286/98,

• Italy: Article 13—Law 228/03.

• Italy: Article 6—Law Decree 300/06, converted in Law 17/07.

• E.U.: Council of Europe 2005 Convention on Action against Trafficking in Human Beings.

• Italy: Jointly drawn up by the Public Prosecutor's Office in Teramo, the Associazione On the
Road, the Immigration Office at the Teramo Questura, and the other Law Enforcement Agencies,
Protocol for the Identification of and the Approach to Potential Victims of Trafficking in Human
Beings, 2-3 (Sept. 2005) (The Protocol was circulated by the Public Prosecutor's Office in Teramo
to all the Law Enforcement Agencies within the province), available at
http://www.osce.org/documents/cthb/2008/09/32950_en.pdf.

• UK: SB (PSG-Protections Regulations-Article 6) Moldova CG [2008] UKAIT 00002.

• Cambodia: Law on the Suppression of Human Trafficking and Sexual Exploitation (2008).

32
• International: United Nations Convention against Transnational Organized Crime art. 11,
Palermo, Italy, in December 2000.

• U.S.A.: 18 U.S.C.S. § 1584 (involuntary servitude).

.
• U.S.A.: 18 U.S.C.S. § 1590 (human trafficking).

• U.S.A.: 8 U.S.C.S. § 1324 (alien smuggling and harboring statute).

• U.S.A.: 18 U.S.C. § 1591 (causing a person to engage in a sex act for money when either (1) the
person was under 18, or (2) the defendant used "force, fraud or coercion.).

• U.S.A.: 18 U.S.C. § 2423(a) (transportation of a minor across state lines to engage in criminal
sexual activity).

• U.S.A.: 18 U.S.C. § 2422(a) (coercion to travel across state lines to engage in prostitution).

• U.S.A.: Alien Tort Statute.

Law Review Articles Cited in Report

• Rose Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of
Europe Convention, The EU Directive, and the Italian Experience, 10 German L.J. 205, 205-06
(2009).

• Anne Gallagher & Paul Holmes Developing an Effective Criminal Justice Response to Human
Trafficking, 18 I.C.J. Rev. 318, 319-320 (2008).

• Munro 2005 at 96, Munro V. A Tale of Two Servitudes: Defining and Implementing a Domestic
Response to Trafficking of Women for Prostitution in the UK and Australia. Social and legal
studies 14(1): 91–114

• Cambodia: Human Trafficking Legislation Threatens HIV Response, 13 HIV/AIDS Policy and
Law Rev., Dec. 2008, at 1-2.

• Grace Chang & Kathleen Kim Re-Conceptualizing Approaches to Human Trafficking, 3 Stan.
J.C.R. & C.L. 317, 330-31 (Aug 2007).

• Eileen Overbaugh, Comment, Human Trafficking: The Need for Federal Prosecution of Accused
Traffickers, Seton Hall Law Rev. at FN21.

• Jill E.B. Coster Van Vorhout Human Trafficking for Labour Exploitation: Interpreting the Crime,
3 Utrecht Law Rev. 44, 53 (Dec. 2007).

• Benjamin Perrin, Bill C-268: Minimum Sentences for Child Trafficking Needed, Alb Law
Rev. (Mar. 12 2009), http://ualbertalaw.typepad.com/alr_supplement/2009/03/bill-c-268-
minimum-sentences-for-child-trafficking-needed.html

33
Human Trafficking Reports and Materials Cited in Report

• Mary Robinson, High Commissioner for Human Rights, Office of the High Commissioner for
Human Rights, Recommended Principles and Guidelines on Human Rights and Human
Trafficking 1 (2002) (Text presented to the Economic and Social Council as an addendum to the
report of the UNHCHR (E/2002/68/Add. 1)), available at
http://www.unhchr.ch/html/menu6/2/trafficking.doc

• The Department of Human Rights, Decentralization, and Communities, A Legal Analysis of

Trafficking in Person Cases in Kosovo, O.S.C.E. 19 (Oct. 2007).

• Updates from Around the Region—UNIAP Assists in a Case of Khmer Girls Trafficked to
Thailand, United Nations Inter-Agency Project Newsletter, Phase Two 2004, Issue 1 at 3,
available at http://www.un.or.th/TraffickingProject/Publications/issue13.pdf

• International Labour Office, Human Trafficking and Forced Labour Exploitation: Guidelines for
Legislation and Law Enforcement, at 41 (2005).

• 28th Conference of European Ministers of Justice, Report presented by the Minister of Justice of
Italy, Emerging Issues of Access to Justice for Vulnerable Groups, in Particular: Migrants and
Asylum Seekers; Children, Including Children Perpetrators of Crime” Council of Europe MJU-
28(2007)07 E at 4 (October 2007).

• Fiona David, Australian Institute of Criminology. No. 358, Prosecuting Trafficking in Persons:
Known Issues, Emerging Responses (June 2008) at 3.

• Australian Government: Australian Institute of Criminology, Labour Trafficking: Key Concepts

and Issues 1 (Transnational Crime Brief No. 03 March 2009), available at
http://www.aic.gov.au/en/publications/current%20series/tcb/1-20/tcb003.aspx.

• Human Trafficking.org, Ms. Kun Thea sentenced to 50 years according to Thai Criminal Code,
March 2005, http://www.humantrafficking.org/updates/108/ (last visited July 8, 2009).

• SOLACE, Human Trafficking Report at 25 (2009),

http://www.newport.gov.uk/stellent/groups/public/documents/report/cont372291.pdf

• Press Release, Department of Justice United States Attorney’s Office Eastern District of
Michigan, Livonia Man Sentenced to 14 Years in Prison and $1.5 Million in Restitution
for Forcing Eastern European Women to Work at Detroit Area Strip Clubs (June 25,
2007), available at http://www.legislationline.org/documents/action/popup/id/6765.

Cases Cited in Report

• Kosovo—series of case studies, specific names of parties/case briefs not located.

• U.K.—R v O (2008) EWCA Crim 2835.

• Thailand/Cambodia/Malaysia—Ms. Khunthea (Cambodian national prosecuted and

convicted in Thailand). No case brief located.

34
• Australia—Ms K., (R v Tran, Xu&Qi, 2005) (Thai national trafficked person).

• U.S.A.—Jose Ramiro and Juan, R&A Harvesting Company in the US.

• Kosovo—series of case studies, specific names of parties/case brief not located.

• Thailand/Cambodia/Malaysia—Ms. Khunthea (Cambodian national prosecuted and convicted in

Thailand). No case brief located.

• Canada—R. v. Imani Nakpangi, (24 June 2008), Brampton AG 0087 (Ont. Ct. J).

• U.K.—R. v. Shaban Maka [2005] EWCA Crim 3365 Court of Appeals CA (Crim Div) Held.

• U.K.—R. v Agron Demarku [2006] EWCA Crim 2049 [2007] 1 Cr. App. R. (S.) 83.

• U.S.A.—U.S. v. Lueleni Fetongi Maka, 237 F. 225, (9th Cir. 2007), appeal filed, (U.S. May 14,
2007) (No. 06-10339).

• U.S.A.—U.S. v. Victor Powell, No. 04 CR 885, 2006 U.S. Dist. LEXIS 28858 (Filed Apr 28
2006).

• U.K.—R. v. LorencRoci & Vullnet Ismailaj [2005] EWCA Crim 3404 Court of Appeal Nov 16th
2005.

• U.K.—Court of Appeal - case of R. v Elisabeth Delgado-Fernandez Godwin Zammit (2007)

EWCA Crim 762 2007 WL 2041801.

• U.K.—S v Slough Borough Council and others Family Division [2009] All ER (D) 182 (Apr) 14
November 2008.

• U.S.A.—Mani Kumari Sabbithi, et al., v. Major Walleed KH N.S. Al Salef, et al., 605 F. Supp. 2d
122, 07-115 (U.S. Dist. 2009), aff’d (2009) LEXIS 22593.

• U.S.A.—Alberto, Justo, Rodriguez, Licea, and others v. Curacao Drydock Co., 584 F. Supp. 2d
1355; 2008 U.S. Dist. LEXIS 89504; 21 Fla. L. Weekly Fed. D 429 (Oct. 31 2008).

• U.S.A.—U.S. v. Maksimenko (E.D.Mich.,2007) Not Reported in F.Supp.2d, 2007 WL 1834708

(Only Westlaw citation currently available).

*In approximate order of first appearance of material in body of the report text.

Research Materials Not Cited in Report

Numerous materials related to human trafficking were located during the compilation of this
report. Please see the electronic files for these materials available through the UNODC Country
Office Lao P.D.R. R76 Project.

Additional Asian Cases Not Cited in Report

Malaysia

35
• Punitha Raja

Tuesday December 23, 2008 First human trafficking conviction

By M. MAGESWARI

KUALA LUMPUR: “An Indian national was jailed for eight years for forcing a 33-year-old woman
who had been promised a maid’s job into prostitution.

Punitha Raja, 32, became the first person to be convicted under Section 13 of the Anti-Trafficking In
Persons Act 2007. However, she pleaded for leniency in a highly dramatic manner.

She knelt down in the dock, clasped her hands together and admitted to having trafficked her
countrywoman for the purpose of exploitation by means of threats and the use of force.

She pleaded guilty to committing the offence at her rented house in Jalan Kolam Air 5 in Sentul at
2.40pm on Dec 7.

Punitha, clad in a blue saree, repeatedly cried and begged Sessions Court judge Mohd Nasir Nordin
for leniency.

“I am illiterate. I am an orphan. I will not return to Malaysia anymore. I just want to return to my
country after serving my sentence here,” she said in between sobs, addressing the judge as Devame
(God).

Punitha also said that she had to take care of her child, two brothers, two sisters and her mother, who
had been hospitalised with a broken leg.

“My husband has left me. I do not know what else to say to beg for a lower sentence,” she tearfully
said, and slapped her cheeks.

DPP Adilla Ahmad pressed for a deterrent sentence saying that the court had to take into
consideration the fact that the victim had been tortured and that the case involved public interest.

In sentencing her, Mohd Nasir said the court had to give a message to the public on the seriousness of
the offence and efforts taken by the Government to curb such activities.

He ordered Punitha to serve her jail term from date of arrest on Dec 7. Upon hearing the verdict,
Punitha, hands pressed against her head, shouted: “Ayuh, my God.”

She then kept hitting her chest and yelling that she was not guilty of the crime. The court was earlier
told yesterday that the victim had been promised a maid’s job with a monthly salary of between
RM300 and RM500 by her Indian agent here.

Upon reaching Malaysia, the victim was surrendered to Punitha, who forced her into prostitution.

When the victim begged not to be forced to do the job, Punitha scolded, assaulted, slapped her in the
face and pulled her hair roughly.

Punitha had also threatened the victim by saying that she would hire gangsters to kill her family in
India if she refused to be a prostitute.

The victim had been kept at a hotel here alone for a week and forbidden from leaving the room.
Punitha would send her food and drinks twice daily. Punitha told the victim that she was continuously
watched and would be beaten up by hired gangsters if she did not follow orders.

36
The victim entertained between 20 and 25 customers daily and all the money gained from prostitution
was seized by Punitha. The victim was also forced to have sex with customers of a hotel near
Punitha’s rented house.

The victim managed to escape with the help of a taxi driver who sent her to the Indian Embassy. She
lodged a lodged a report at the Sentul district police on Dec 7.”

—Available at: http://thestar.com.my/news/story.asp?file=/2008/12/23/courts/2874046&sec=courts

(Last visited July 10, 2009)\

Vietnam

• Quan Chi Phat & Hua Hue Muoi

06/11/2008 HANOI, Vietnam - A Vietnamese court sentenced two people to prison for trafficking
dozens of Vietnamese women to Malaysia, where they were sold or forced into prostitution, an
official said Wednesday.

Quan Chi Phat was sentenced to 12 years in prison, while his female accomplice, Hua Hue Muoi, was
given 10 years after Tuesday's one-day trial in Ho Chi Minh City, said a court official who identified
herself only as Vi because she was not authorized to speak to the media.

The two were convicted of trafficking 69 Vietnamese women to Malaysia from 2004 to 2006, she
said.

They paid Vietnamese brokers up to 8 million dong (US$488) for each woman and sold them to
Malaysian men for up to US$1,800 each, Vi said. The case was uncovered two years ago when nine
victims came forward, she said. It was unclear how many women managed to escape back to
Vietnam.

The Thanh Nien (Young People) newspaper on Wednesday quoted unidentified victims as saying that
they came from desperate families and hoped to find good husbands in Malaysia who could help
support them.

However, many of them were forced into prostitution or raped, they were quoted as saying. - AP

Available at: http://www.gmanews.tv/story/100516/Vietnam-jails-2-for-trafficking-women-to-

Malaysia# (last visited July 10, 2009)

Hong Kong

• Jennifer N. Balibat & Angelita David

12/20/2007 HONG KONG – “After a 10-day trial, a district court judge on Friday sentenced to three
years in prison two Filipina women charged with trafficking persons into Hong Kong for the purpose
of prostitution.

Jennifer N. Balibat or Nicki, 28, was seen crying beside a stoic-faced Angelita David, 40, as Judge
Susanna D'Almada Remedios read out her verdict before sentencing them. David, who was referred to
in court as Ampy, only broke down in tears after the judge finished and left the courtroom.

The two also received three months each for five counts of aiding and abetting their five Filipina
victims, aged between 24 to 39 years old, to work here without valid employment visas, but all
sentences will run concurrently.

37
Vice Consul Val Roque, who heads the Assistance to Nationals section of the Philippine Consulate,
welcomed the verdict, saying it will serve as a deterrence to those who traffic Filipinas into Hong
Kong. But he regretted that those jailed for the offense are also Filipinos.

“It is unfortunate that the culprits in this case are Filipinos as well. The Consulate will continue to
visit them (in jail) and see whether they have any needs we can attend to."

Judge Remedios found “no fabrications or collusion" in the court testimonies of the victims, whom
she said were “honest and reliable witness." Much to the disappointment of Nicki’s counsel, Gordon
Wong, who argued that the victims’ failure to include much of their evidence in their police
statements spoke of their lack of credibility, Judge Remedios said that the lapse was “understandable."

“I accept that they were still disturbed by what happened in the following days. I accept that they did
not remember all the details," she added.

The judge also found that there was “unambiguous evidence" that the women had come to Hong
Kong as prostitutes and there was “irresistible inferences" that Balibat knew why the women were
coming here. The judge also accepted prosecution counsel Edward Laskey’s submission that David’s
evidence on the witness stand amounted to “admissions of guilt in respect of all the charges."

However, the judge said that she didn’t give weight to David’s evidence when it conflicted with those
of the victims’ or when she implicated Nicki as the “mastermind." She accepted that this was a “joint
enterprise" so there was no need to differentiate their roles.

“It is plain and obvious that D1 (Balibat) and D2 (David) brought the women to Hong Kong for
prostitution," said the judge. She also pointed out that the seriousness of the case turns to the number
of victims involved. She noted that there may have been other women involved who didn’t complain.

The court also rejected the submission of David’s counsel, Peter Chow, that she could not be
convicted because she didn’t do “some act or acts to enable these girls (to) work as prostitutes" such
as introducing them to potential customers. “In fact, they don’t need to find customers for sex… just
drinks," he said. “Prostitution was mentioned only as an option."

Neither did the court accept that the only intention of the defendants was for the girls to buy air tickets
from them on credit and profit from it.

Five Filipinas took the stand during the trial and told the story of how a certain person named Loida in
the Philippines, Ampy, and Nicki recruited them and brought them into Hong Kong as “entertainers…
to work as prostitutes."

They were told to pay Php60,000 for their air ticket, food, and hotel accommodations which the girls
should pay by installment once they got to Hong Kong. But when they got here they were not given
food, nor did they stay in a hotel. Their one-way tickets also cost only $800 apiece.

The victims sought the Consulate’s help on Aug. 2 and reported the matter to the police days after.
They have all returned to the Philippines after testifying in court.” - Smiley Julve, GMANews.TV

—Available at: http://www.gmanews.tv/story/73680/3-years-for-Pinays-trafficking-prostitutes-to-HK

(Last visited July 10, 2009)

Additional Resource for Future Case Law and Legislative Research

• Source for human trafficking law worldwide:

38
o http://www.legislationline.org/

39