Women and Justice: Keywords

Domestic Case Law

杨恩光、李文建等拐卖妇女案, 云南省红河哈尼族彝族自治州中级人民法院 (Yunnan Province v. Enguang Yang, Wenjian Li) People’s Procuratorate of Honghe Harniyizu District Court (2014)

Forced and early marriage, Sexual violence and rape, Trafficking in persons

The defendants Yang and Li trafficked 17 Vietnamese women who were prostitutes in Vietnam to Yunnan Province, China. Yang and Li pretended to be clients and brought the women to hotels and restaurants where they kidnapped the women and transported them to China. The defendants offered the women to villagers in remote rural area of Yunnan Province, China and forced the women to marry buyers by force or threats. Under Article 48 and Article 240 of Criminal Law of the People’s Republic of China, the two defendants were sentenced to the death penalty and their private property was confiscated by the court. The women were provided with assistance to return to Vietnam.

包办婚姻与早婚、性暴力与强奸、人口拐卖

被告人杨某和李某将17名从事卖淫活动的越南妇女拐卖至中国云南省。被告人以嫖娼为名,采用暴力手段,强行将越南籍妇女被害人绑架并带入中国。被告人将这些妇女转卖至云南省偏远地区的村民并强迫和威胁他们嫁给买家。依照中华人民共和国刑法第四十八条和第二百四十条,两名被告人被判决死刑、并处没收全部个人财产。中国司法机关将被解救妇女全部安全地送返国籍国。



Jiangsu Province v. Erming Wang People’s Procuratorate of Quning District Court (2014)

Domestic and intimate partner violence

The defendant Wang “bought” a woman with intellectual disabilities for RMB 10,000 to have a male heir. Wang chained her feet and hands and raped her several times. The imprisonment and rape lasted for two months until police rescued her. Quning District Court, Jiangsu Province found that defendant Wang trafficked the woman, imprisoned, and raped her. Therefore, according to Article 236 section 1 and Article 238 section 1 and Article 240 of Criminal Law of the People’s Republic of China, Wang was sentenced to 10 years’ imprisonment.



R v. Tyrrell [1894] 1 Q.B. 710 Crown Case Reserved (1984)

Trafficking in persons

The defendant was tried and convicted at the Central Criminal Court on an indictment charging her, in the first count, with having unlawfully aided and abetted, counselled, and procured the commission by one Thomas Ford of the misdemeanour of having unlawful carnal knowledge of her whilst she was between the ages of thirteen and sixteen, against the form of the statute, and, in the second count, with having falsely, wickedly, and unlawfully solicited and incited Thomas Ford to commit the same offence. In this case it was held that one cannot be found guilty of aiding and abetting a law that is solely in place to protect them. A girl between the ages of 13 and 16 aided and abetted a man over 16 to have intercourse with her, however she was found not guilty of aiding and abetting by law because this law was in place to protect her and her peers.



蓝树山拐卖妇女、儿童案、最高人民法院 (People’s Procuratorate of Hechi City Guangxi Province v. Lan Shushan) Supreme People’s Court of PRC (2014)

Trafficking in persons

The defendant Lan Shushan was charged of the crime of trafficking women and children for trafficking one woman and 34 children. Throughout 1988 to 2008, the defendant Lan Shushan independently and with his colleagues Tan Ruxi etc trafficked one woman and 34 children to Fujian Province, and traded them for money with the help of accomplice Lin Chuanxi, Su Ermei etc. Lan Shushan benefited approximately RMB 500,000 from the transactions. According to Article 240 section 1 & 2, the ring leader of a large scale trafficking shall be sentenced to death penalty. Thereby, Lan was convicted and sentenced to death by the Appellate Court of Hechi City. Lan appealed to the Supreme Court of Guangxi Province and the judgment is affirmed. The Supreme People’s Court of PRC reaffirmed decision and approved Lan’s death.

人口拐卖

被告蓝树山因拐卖一名妇女和三十四名儿童被控拐卖妇女、儿童罪。1988年至2008年,被告蓝树山单独并伙同同案犯谭汝喜等人拐卖了一名妇女和三十四名儿童至福建省,并在同案犯林传溪、苏二妹的帮助下将这些妇女儿童出卖。蓝树山因此共非法获利约五十万元人民币。根据刑法第三百五十条,在共同犯罪中,蓝树山系地位作用最突出、罪责最严重大型拐卖人口活动的主犯,应依法判处死刑。河池市中级人民法院认定蓝树山犯拐卖妇女、儿童罪,并判处死刑。蓝树山上诉至广西省高级人民法院,法院维持原判。中国最高人民法院维持原判并核准死刑。



Sentencia Número 677 (Ruling 677) Provincial Court of Madrid (2012)

Sexual violence and rape, Trafficking in persons

In 2010, Spain amended its Penal Code by enacting Article 177 to prohibit human trafficking. Spain did so in response to international human rights agreements regarding human trafficking. This ruling was the first conviction under this new article. Two women reported to authorities that the defendants had lured them from Paraguay under false pretenses, forced them to work as prostitutes, and physically and emotionally assaulted them. The Provincial Court of Madrid found that the defendants' actions constituted: 1) crimes against the rights of foreign nationals (Article 318 bis), 2) human trafficking for purposes of sexual exploitation (Article 177 bis), 3) solicitation by coercion to commit prostitution (Article 188.1), and 4) sexual assault (Article 179). According to the court, the fact that the defendants promoted, encouraged, or facilitated illegal immigration with the intention of using the women for prostitution was enough to find criminal sexual exploitation. The court found the victims’ testimony to be credible, realistic, and consistent, and used their testimony as the base for this decision.

En 2010, España modificó su Código Penal al promulgar el artículo 177 para prohibir la trata de personas. España lo hizo en respuesta a los acuerdos internacionales de derechos humanos relativos a la trata de personas. Esta sentencia fue la primera condena en virtud de este nuevo artículo. Dos mujeres informaron a las autoridades que los acusados las habían atraído desde Paraguay con falsas pretensiones, las obligaron a trabajar como prostitutas, y las agredieron física y emocionalmente. El Tribunal Provincial de Madrid determinó que las acciones de los demandados constituían: 1) delitos contra los derechos de los extranjeros (artículo 318 bis), 2) trata de personas con fines de explotación sexual (artículo 177 bis), 3) solicitud por coacción para cometer prostitución (artículo 188.1), y 4) agresión sexual (artículo 179). Según el tribunal, el hecho de que los acusados promovieron, alentaron o facilitaron la inmigración ilegal con la intención de utilizar a las mujeres para la prostitución fue suficiente para encontrar la explotación sexual criminal. El tribunal determinó que el testimonio de las víctimas era creíble, realista, y coherente, y utilizó su testimonio como base para esta decisión.



Chile v. Nelly Viviana Condori Nicolas Oral Criminal Court (2006)

Trafficking in persons

The female defendant was charged with trafficking in person for the purpose of sexual exploitation. The defendant used an employment agency in Peru to offer Peruvian women waitress jobs at her residence in Chile. She would assist them in crossing the border and would pay travel costs. Upon arrival, the victims were kept at the defendant’s residence and were forced to provide sexual services to clients arranged by the defendant. The defendant also kept the victims’ passports so that they would be unable to leave until their debts were paid. The defendant was found guilty and sentenced to six months of imprisonment.



RUC 1100440193-1 RIT199-2012 Oral Criminal Court (4° Tribunal de Juicio Oral en lo Penal de Santiago) (2012)

Trafficking in persons

Five defendants were charged with participating in an organized criminal group for the purpose of trafficking in persons. Each defendant was charged with having a specific function in the group for facilitating the entry of several Dominican women into Chile. The women were deceived into coming to Chile, with promises of legitimate work, such as employment in the tourism field. Upon arrival in Chile, however, the women were forced into prostitution. Four of the defendants were found guilty, and imprisoned for various amounts of time depending on their position within the criminal organization. One defendant was found not guilty on the basis that he did not have knowledge of the criminal acts.



Ministerio Publico v. Jose Luis Castro Juzgado de Garantia de Antofagasta (Warranty Court), Antofagasta (2007)

Trafficking in persons

The defendant was charged with trafficking in persons. He was accused of recruiting Peruvian women to come to Chile, where they then were engaged in prostitution. The defendant used an employment agency in Peru to recruit the women, who signed labor contracts to serve as waitresses in the defendant’s premises. The women victims were forced to wear provocative clothing and drink alcohol with the premises’ clients. There also was prostitution at the premises. The defendant was found guilty and sentenced to six years in prison.



Regina v. Shahnawaz Ali Khan, Raza Ali Khan and Perveen Khan United Kingdom Court of Appeal (2010)

Trafficking in persons

The defendants recruited nine men from the Middle East and the Indian continent between 2004 and 2008 to work in a restaurant owned by one of the defendants. The men were found to have been subjected to economic exploitation, including many or all of the following: having their documents taken away from them by the defendants upon arrival in the UK, being required to work 12 hours or more a day for 6-7 days a week without adequate recompense for overtime and in some cases without receiving even the basic salary, being asked to arrive with bond money (which was not returned) or accept deductions from income, not being provided with national insurance numbers or wage slips, not being registered with the NHS, being discouraged from visiting the town or talking with customers. The Crown Court convicted the defendants of conspiracy to traffic people for exploitation under s. 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and sentenced each to three years’ imprisonment. The Attorney General and the defendants appealed against the sentences.



R v. O United Kingdom Court of Appeal (2008)

Trafficking in persons

O, a Nigerian national and apparently only 17 years old, appealed against a conviction for the offence of possessing a false identity document. One of the submissions on her behalf, supported by a senior outreach worker for The Poppy Project, was that she had been the victim of trafficking for sexual exploitation and used the false identity document in an attempt to escape. The Court of Appeal granted her appeal, stating that it regretted that neither the prosecution nor the defense had considered her age or the possibility that she might have been a victim of sex trafficking at first instance. It was unlawful to impose a prison sentence as such on a person aged 17. Further, the Court of Appeal noted that common law and article 6 of the European Convention on Human Rights alike require far higher standards of procedural protection than were given to O at first instance. The Court of Appeal expressed the hope that the case would drive home the message that proper inquiries need to be made where there is doubt about the age of a Defendant who is a possible victim of trafficking.



A-G Ref (No. 44 of 2010) United Kingdom Court of Appeal (2010)

Trafficking in persons

Two offenders were convicted at first instance of (i) trafficking AH, a 19 year old girl, from Romania to the UK for sexual exploitation (s 57(1) of the Sexual Offences Act 2003) and (ii) controlling the prostitution of AH for gain (s. 53(1) of the Sexual Offences Act 2003).   The first offender received a sentence of 30 months imprisonment for the first offence and 24 months’ imprisonment for the second offence.  The second offender was sentenced to 24 months imprisonment for the first offence and 18 months imprisonment for the second offence.  The Attorney General appealed to the Court of Appeal to review the sentences on the grounds that the judge at first instance had not taken account of aggravating factors and the impact of the offences on AH.  The Court of Appeal agreed that the sentences did not reflect the totality of the offences, which involved bringing AH into the UK by deception and then coercing her to work as a prostitute and corrupting her in the process.  Therefore, the Court of Appeal imposed a harsher sentence of 4 years’ imprisonment on the first offender and 3 years’ imprisonment on the second offender for the first offence.   The sentences in relation to the second offence were not changed. 



Bangladesh National Women Lawyers Association v. The Cabinet Division Bangladesh Supreme Court (2011)

Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Trafficking in persons

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.



International Case Law

L.R. v. United Kingdom European Court of Human Rights (2014)

Sexual violence and rape, Trafficking in persons

The applicant is an Albanian national who was abducted and brought into the UK where she was forced to work as a prostitute. She escaped and requested asylum for fear of retribution from her abductor if she returned to Albania. Her request for asylum was rejected by the UK government and she complained that her removal was in violation of Articles 2, 3, 4, and 8 of the Convention. The UK did grant her application though, so the issue was resolved without having to consider whether there was a violation of the Convention.



Siliadin v. France European Court of Human Rights (2005)

Employment discrimination, Trafficking in persons

Domestic slavery. The applicant arrived in France in 1994 aged 15 years with a passport and a tourist visa. She had agreed to work for Mr. and Mrs D. until the cost of her air ticket had been reimbursed. During this time, Mrs. D. was to attend to her immigration status and find her a place at school. In reality her passport was taken away and she became an unpaid housemaid for Mr. and Mrs. D. She worked seven days a week, without a day off, and was never paid, except by Mrs. B.’s mother who gave her one or two 500 FRF notes. At an initial hearing, Mr. and Mrs. B. were convicted; however, this was overturned on appeal. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out, in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established. The European Court of Human Rights rejected this decision and held that in this case there had been a domestic slavery to the fore. The Court focused on the vulnerable nature of the applicant and the fact that the work being carried out without remuneration and against her will. This case brings the issue of domestic slavery to the fore. In a report by the Committee on Equal Opportunities for Women and Men it was observed that 95% of the domestic slavery victims taken up by the Committee against Modern Slavery since 1994 were women. The case also demonstrates the specific threat that domestic slavery poses to women and highlights that over 4 million women worldwide are sold into domestic slavery each year.



Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.



Zhen Zhen Zheng v. The Netherlands CEDAW Committee (2007)

Trafficking in persons

Petitioner was trafficked into the Netherlands and request for asylum was denied because she could not give details about her trip from China and did not have identity documents.  Although the Committee held complaint to be inadmissible for non-exhaustion of domestic remedies, the dissent found that due to vulnerable situation of victims of trafficking, the complaint should be admissible and that the State did not act with due diligence in failing to recognize that Ms. Zheng may have been victim of trafficking.



Memoranda

Anti-Human Trafficking Legislation in Tanzania and 6 Countries Around the World (2013)

Gender-based violence in general, Trafficking in persons

In 2008, Tanzania adopted the Anti-Trafficking in Persons Act (ATPA) to combat human trafficking, mandate stricter investigation and prosecution, and afford protection to victims of trafficking. This report: explains and evaluates the ATPA, including the effectiveness of its implementation since its enactment in 2008; describes similar acts around the world, including an evaluation of those laws’ implementation and effectiveness; offers specific recommendations for Tanzania to enhance the effectiveness of its anti-trafficking law.



Reports

2010 Trafficking in Persons Report (2010)

Sexual violence and rape, Trafficking in persons

The U.S. State Department's 10th annual Trafficking in Persons Report covers the status of efforts against human trafficking in countries around the world, including the United States, and highlights key trends in human trafficking.


An Agenda For Change: Implementing the Platform of Action against Human Trafficking (2009)

Trafficking in persons

Organization for Security & Co-operation in Europe's Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2009.


Trafficking for sexual exploitation: Victim protection in international and domestic asylum law (2011)

Sexual violence and rape, Trafficking in persons

Research Paper No. 206 by Tyler Marie Christensen for the United Nations High Commissioner for Refugees (April, 2011).


Articles

Greasing the Palm: An Argument for an Increased Focus on Public Corruption in the Fight Against International Human Trafficking (2011)

Trafficking in persons

By Virginia M. Kendall. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.


Left Out in the Cold: Trafficking Victims, Gender and Misinterpretation of the Refugee Convention's “Nexus" Requirement (2010)

Trafficking in persons

By Martina Pomeroy. 16 Mich. J. Gender & L. 453 (2010). Reprinted from the Michigan Journal of Gender & Law, Volume 16. Copyright 2010 by University of Michigan Law School.


Rescuing trafficking from ideological capture: prostitution reform and anti-trafficking law and policy (2010)

Trafficking in persons

By Janie A. Chuang. 158 U. Pa. L. Rev. 1655-1728 (2010). Reprinted from University of Pennsylvania Law Review Volume 158. Copyright 2010 University of Pennsylvania Law Review.