The Trafficking in Persons (Prohibition) Enforcement and Administration Act, originally passed in 2003 and amended in 2005 and 2015, criminalizes human trafficking and related abuses. The Act provides trafficked persons with access to adequate health services and protection against discriminatory treatment. The Act establishes a National Agency for the Prohibition of Trafficking in Persons (Part II), establishes Agency Transit Shelters for rescued trafficked persons, and establishes a Victims of Trafficking Trust Fund to provide compensation for victims (Part X). The Act provides protections against discriminatory treatment, barring discrimination on account of gender or sex or on the basis of the victim "having worked in the sex industry." Part IX, Section 61(a). The Act serves as implementing legislation for Nigeria’s international obligation under the Trafficking in Persons Protocol Supplementing the Transnational Organized Crime Convention (TOC), to which Nigeria became a signatory on December 13, 2000. Part Two available here.
Women and Justice: Topics: Gender discrimination, Trafficking in persons
This Act criminalizes slavery in all forms and provides protection and support for victims of trafficking. As defined by the Act, "'exploitation' includes, at the minimum, induced prostitution and other forms of sexual exploitation, forced marriage, forced or bonded services, or practices similar to slavery, servitude or the removal of human organs." The definition of trafficking is comprehensive and defined in Part 2, Section 5(3) of the Act. The Act proscribes further that victims “shall not be liable for crimes committed in connection” to their own trafficking and that “the past sexual behavior of a victim of trafficking is irrelevant and inadmissible for purpose of proving that the victim was engaged in other sexual behavior or to prove sexual predisposition of the victim.” The Act provides an aggravated trafficking designation in cases where the trafficked person dies, becomes disabled physically or mentally, suffers mutilation, contracts a sexually transmitted disease including but not limited to HIV or AIDS, or develops a chronic health condition. The Act also mandates the temporary material support and care for any child victim; provision of accommodation, counseling, and rehabilitation services for victims; and mandates attempted reintegration of adult victims into their families and communities.
This Act prohibits human trafficking and establishes protective measures for the victims of human trafficking. It establishes a Human Trafficking Prohibition Committee to oversee the implementation of the Act and calls for the establishment of centers for victims and the creation of a victims’ fund.
Section 6 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits sexual slavery or trafficking. It includes the following provisions: 1) No person shall be held in slavery or servitude. (2) No person shall be required to perform forced labour. Section 7 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits sexual violence that constitutes torture. It includes the following provisions: (1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution. Section 15 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits the making of discriminatory laws
The law defines and prohibits human trafficking. The penalty for human trafficking is 16 - 20 years imprisonment. Longer prison sentences are recommended when the victim is a woman or a child. The law provides that victims can benefit from witness protection measures and other forms of assistance, such as medical services and counseling.
This Act prescribes measures to prevent and combat trafficking in persons with particular regard to victims who are women and children, and aims to assist victims of trafficking and facilitating efficient investigation of cases of trafficking. The offence of trafficking is committed if a person recruits, transports, transfer, harbors or receives another person within Jamaica, from Jamaica to another country, or from another country to Jamaica. A person found guilty of an offence in terms of the Act is liable to a fine or imprisonment for a term not exceeding 20 years.
The Offences against the Person Act lists acts recognized in law as punishable offences and details the ways in which the law deals with the offenders under the said acts. Child stealing is recognized as a felony and any person convicted for child stealing shall be imprisoned for a term not exceeding seven years. Kidnapping is recognized as a felony and any person convicted shall be liable to imprisonment for life. Attempts to procure abortion (by virtue of the pregnant woman unlawfully administering any substances to terminate her pregnancy by whatsoever means) is recognized as a felony and shall be liable for imprisonment for life. Infanticide (the act by which a woman willfully causes the death of her child under the age of twelve months) is a punishable offence recognized as the offence of manslaughter of a child.
The Child Pornography (Prevention) Act prohibits the production, distribution, importation, exportation or possession of child pornography and the use of children for pornography A “Child” is a male or a female person under the age of 18 years. Child pornography constitutes any visual representation, any audio recording or written material depicting engagement of a child in sexual activity or depicts body parts of child for sexual purposes, or depicts a child subject to torture, cruelty, or physical abuse of a sexual context. A person who has custody of, charge or care of a child and knowingly causes or incites the involvement of a child in the production of child pornography commits an offence and will be liable for a fine or to imprisonment (or both) for a term not exceeding 15 years. The production or distribution of child pornography carries a penalty of imprisonment for a term not exceeding 20 years. Possession of child pornography carries a penalty of a fine or imprisonment (or both) for a term not exceeding 8 years. The receipt of any financial benefit from any offence in terms of the act carries a penalty of a fine or imprisonment (or both) for a term not exceeding 20 years. The act preserves the identity of the victims, thereby preventing any disclosure in relation to the victim. Any person that publishes information in contravention of the act shall be liable for a fine not exceeding one million dollars or imprisonment for a maximum period of 12 months.
The Sexual Offences Act specifically outlaws many sex-based crimes, including rape, sexual assault, marital rape, sexual touching or interference, inducing or encouraging the violation of a child, indecent assault, violation of persons suffering from mental or physical disabilities, forcible abduction, procuration, unlawful detention with the intent to have sexual intercourse, and living on earnings of prostitution. It also amended certain laws and standards regarding consent. It abolished the common law presumption that a boy under fourteen years of age could not commit rape, and further noted that consent is “immaterial” in any offences involving a child. The Act restricts evidence that can be brought at rape trials, specifically preventing the complainant from being asked about his or her sexual history. It preserves the possibility of anonymity for persons bringing claims under the Sexual Offences Act. Finally, it creates a sex offender registry and mandates registration for persons convicted of sexual offences.
Art. 264e provides for a criminal penalty of not less than three years for any person who commits certain specified offenses in connection with an armed conflict, including (among other things) raping a person of the female gender protected by international humanitarian law or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person protected by international humanitarian law into prostitution or to be sterilized. In especially serious cases, and in particular where the offense affects a number of persons or the offender acts in a cruel manner, life imprisonment may be imposed. In less serious cases, imprisonment of not less than one year may be imposed. Unofficial English translation available here.
Provides for a criminal penalty of not less than five years for any person who commits certain specified offenses as part of a widespread or systematic attack directed against any civilian population, including (1) assuming and exercising a right of ownership over a person, in particular in the form of trafficking in persons, sexual exploitation or forced labor; and (2) raping a person of the female gender or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person into prostitution or to be sterilized. Unofficial English translation available here.
Provides for criminal penalties of imprisonment for not more than three years or a monetary penalty for any person who carries out sexual acts with a minor or induces a minor to carry out such acts in return for payment or promises of payment. Unofficial English translation available here.
Art. 182 provides for criminal penalties of imprisonment or a monetary penalty for any person who as a supplier, intermediary or customer engages in the trafficking of a human being for the purpose of sexual exploitation, exploitation of his or her labor or for the purpose of removing an organ. If the victim is a minor or if the offender acts for commercial gain, the penalty is imprisonment for not less than one year. In every case, a monetary penalty must also be imposed. The statute also provides that the soliciting of a person for these purposes is equivalent to trafficking, and that any person who commits the act abroad is also guilty of an offense. Unofficial English translation available here.
This article provides that a person who is sentenced to a custodial sentence of more than six months or to indefinite incarceration or involuntary commitment for offenses committed during the exercise of a professional activity or organized non-professional activity shall be prohibited from carrying on the exercise when it involves regular contact with any minors for 10 years. The offenses include: statutory rape or other child sexual abuse, rape and sexual coercion, child pornography, encouraging prostitution, and human trafficking. Unofficial English translation available here.
Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here.
Art. 5 provides that the Swiss Penal Code also applies to any person who is in Switzerland, is not being extradited, and has committed any of the following offenses abroad: (1) Trafficking in human beings (Penal Code Art. 182), sexual coercion (Penal Code Art. 189), rape (Penal Code Art. 190), sexual acts with a person incapable of proper judgment or resistance (Penal Code Art. 191) or encouraging prostitution (Penal Code Art. 195) if the victim was less than 18 years of age; (2) sexual acts with dependent persons (Penal Code Art. 188) and sexual acts with minors against payment (Penal Code Art. 196); (3) sexual acts with a child (Penal Code Art. 187) and sexual acts with a minor of age less than 14; or (4) aggravated pornography (Penal Code Art. 197, para. 3 and 4) if the objects or representations depict sexual acts with minors. Unofficial English translation available here.
Division 270 of the Criminal Code Act prohibits slavery and slavery-like offenses. Section 170.1A defines these offenses and related terms including coercion, forced labor, and forced marriage. Section 270.2 specifies that slavery offenses are unlawful, whether committed inside or outside of Australia. Section 270.4 criminalizes servitude offenses, 270.6A criminalizes forced labor offenses, section 270.7B criminalizes forced marriage offenses, section 270.8 criminalizes slavery-like offenses, 271.2 criminalizes trafficking in persons, 271.4 criminalizes trafficking in children, and 271.5 criminalizes domestic trafficking in persons. Section 270.11 clarifies that for all above offenses it is not a defense that a person consented to or acquiesced to prohibited conduct.
The Act defines and prohibits human trafficking. The PCTP Act adopts a broad definition of human trafficking, namely, that a person is guilty of human trafficking if he or she delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person, through various means, including the use of force, deception, or coercion, aimed at the person or an immediate family member for the purpose of exploitation. Furthermore, a person who adopts a child, facilitated or secured through legal or illegal means; or concludes a forced marriage with another person, for the purposes of exploitation of that child or person, is guilty of an offence. The PCTP Act criminalizes various acts that constitute or relate to trafficking in persons and imposes harsh penalties, including life imprisonment for trafficking in persons; 15 years’ imprisonment for engaging in conduct that causes a person to enter into debt bondage or benefiting from services of a trafficking victim; and 10 years’ imprisonment for facilitating trafficking. The PCTP Act also provides for severe fines and enables the state to confiscate the assets of traffickers.
Die Wet op Voorkoming en Bestryding van Handel in Persone (2013)
Gedwonge en minderjarige huwelike, seksuele geweld en verkragting, statutêre verkragting of besoedeling, mensehandel
Die Wet definieer en verbied mensehandel. Die Wet aanvaar ‘n wye definisie van mensehandel, naamlik dat ‘n persoon skuldig is aan mensehandel indien hy of sy betrokke is by die werwing, vervoer, verskuiwing, huisvesting of ontvang van persone of gebruik van dreigemente, geweld of ander vorme van dwang, teen ‘n persoon of familielid met die doel van uitbuiting. Verder, ‘n persoon wat ‘n kind aanneem deur wettig of onwettige middele te gebruik; of ‘n gedwonge troue af te dwing met ‘n ander persoon, met die doel om uitbuiting van die kind of persoon, is skuldig aan ‘n oortreding. Die Wet kriminaliseer verskeie dade wat bestaan uit of verband hou met mensehandel, en dit stel swaar strafmaatrëels daar, insluitend lewenslange tronkstraf vir mensehandel; 15 jaar tronkstraf vir gedrag wat lei tot die skuldigbevinding van ‘n persoon wat betrokke was en voordeel trek uit die dienste van ‘n mensehandel slagoffer; en 10 jaar tronkstraf vir die fasilitering van mensehandel. Die Wet maak ook voorsiening vir strawwe boetes en gee die staat die reg om bates van mensehandelaars te konfiskeer.
The Sexual Offences Act recognizes in its preamble that women are particularly vulnerable to becoming victims of sexual offences, particularly adult prostitution. The Act prohibits prostitution, the operation of brothels, and other activities related to prostitution and brothel-keeping.
Seksuele Oortredings Wet (1998)
Seksuele teistering, Seksuele geweld en verkragting, Mensehandel
Die Seksuele Oortredings Wet erken in die aanhef dat vrouens veral kwesbaar is om slagoffers te word vir seksuele misdrywe, veral volwassenes prostitusie. Die Wet verbied prostitusie, die bedryf van bordele, en ander aktiwiteite wat verband hou met prostitusie en bordeelhouding.
In March 2013, the State Council of China updated the China National Plan of Action to Combat Trafficking in Women and Children (2008-2012). The stipulated goal for this national plan is to reduce the occurrence of human trafficking and to improve the network to prevent human trafficking crimes. This national plan provides guiding opinions on various topics relevant to human trafficking, including but not limited to, cracking down on prostitution, increasing support for rural populations in low-income areas, guaranteeing nine-year compulsory education for all school-age children and adolescents, improving the protection mechanism for homeless minors, encouraging rural women to work, and encouraging the following people to find employment: people with disabilities, urban unemployed women, female college students and abducted women and trafficking victims who have been rescued.
This law makes it a felony to knowingly engage in, or benefit from, knowing participation in recruiting, enticing, harboring, transporting, providing, or obtaining by any means another person, intending or knowing that the person will be subjected to forced labor in order to commit a commercial sexual activity. The statute also mandates the creation and composition of a council on human trafficking to provide victims services, analyze human trafficking in Rhode Island, conduct a public awareness campaign, coordinate training on human trafficking prevention and victim services for state and local employees. It creates an affirmative defense to prostitution charges for victims of human trafficking, enumerates aggravating factors, and outlines criminal procedure details.
The Combating of Immoral Practices Act aims to prevent and reduce prostitution and the existence of brothels. The Act imposes a criminal penalty for keeping a brothel of imprisonment for a period not exceeding three years or imprisonment and a fine. The Act punishes procuring or attempting to procure any female to have unlawful carnal intercourse with imprisonment for a period not exceeding five years. The Act also imposes criminal sentences for offenses related to prostitution and various immoral acts, such as the owner or occupier of a property permitting such acts, living on earnings of prostitution, or enticing someone to commit an immoral act.
Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.
Woman and Child Service Units (UPPA) handle all cases of violence against women, including human trafficking, domestic violence, sexual violence, and other related crimes, in all 305 Indonesian units. UPPA’s units range from district police levels and up. Ideally the Integrated Services for Women and Children Units (P2TP2A) should handle not only cases of violence, but also should serve as centers where women can go for information and empowerment.
This law criminalizes the act of human trafficking and sets out minimum and maximum sentencing standards (up to 15 years) for its various permutations, such as in assisting or abetting such a crime. It also states that Indonesia will cooperate with regional and international authorities in order to thwart any actions relating to human trafficking and sexual exploitation.
Article 9 defines crimes against humanity to include violent acts such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or other forms of sexual violence.
The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.
The Law also provides a number of rights and remedies for victims of human trafficking. Section 3 provides that a victim has a right to restitution including damages to compensate for costs of medical treatment, rehabilitation, transportation costs, lost income, legal fees, and general compensation for distress and pain as well as any other loss he or she suffered. Compensation is paid by the defendant directly to the victim upon conviction. The right to restitution is not affected by the victim returning to his or her home country or by the victim not being present in Liberian jurisdiction. Section 9 provides immunity to any immigration offence that may have been committed as a direct result of being trafficked. Additionally, under Section 8, the Law confirms that consent to sex is not a valid defence to trafficking when violence is used to commit the crime. The Law also imposes corporate liability on international transport companies that fail to verify that passengers in company vehicles which enter other countries have the requisite travel documentation. A company may be fined for failing to comply. Additionally, a company that knowingly facilitates trafficking is liable for the cost of accommodating and providing meals to the victim and any dependent.
Art. 124: A person who seriously injures a female’s genitals can be sentenced to up to 10 years in prison or fined. A person may be punished for causing such injuries abroad if the person is not extradited.
Art. 181a: The statute provides that anyone who coerces someone to marry or register a same-sex partnership by the use of force or threats can be punished by sentence of custody of up to five years. The statute applies even if the marriage occurred outside Switzerland if the person has not been extradited.
Art. 187: A person can be punished by up to five years in custody or a fine for (1) committing a sexual act with a person under 16 years old, (2) inciting a child under 16 to commit a sexual act, or (3) involving a child under 16 in a sexual act.
Art. 190: A person can be sentenced to between 1 and 10 years in custody or a fine for using violence, threats, or psychological pressure to force a female to engage in a sexual act, or for making her incapable of resisting.
Art. 195: A person can be sentenced to 10 years in custody or fined for (1) inducing or encouraging a minor to engage in prostitution for financial gain, (2) inducing a person into prostitution by taking advantage of their dependency, (3) restricting a prostitute’s freedom to act by controlling his or her work as a prostitute, or (4) making a person continue as a prostitute against his or her will.
Art. 198: A person may be fined for offending someone by performing a sexual act in the presence of another who is not expecting it or sexually harassing someone through physical acts or indecent language.
The Penal Code (the “Code”) covers Japanese criminal law and sentencing. The relevant provisions with respect to gender justice issues in the Code are Rape, Gang Rape, Forcible Indecency, and Inducement to Promiscuous Intercourse. Rape was initially classified as a crime only involving female victims, but was amended to include men in 2017. The Code states that a person who commits one of more of the listed crimes shall be punished by imprisonment with work for life, or for a definite term corresponding to the gravity of a crime. Further, based on the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime” adopted by the United Nations, the Code was amended in 2005 to include the crime of Human Trafficking. Under the amendment, selling or purchasing a human is a crime, with the criminal punishment being more severe in cases with the purpose of profit, indecency or marriage.
Article 7(1)(c). Enslavement as a crime against humanity. This provision is significant in identifying human trafficking as a crime against humanity. For the ICC to have jurisdiction, the perpetrator must exercise powers demonstrating ownership, such as purchasing, selling, lending, or bartering. The definition also requires the imposition of “a deprivation of liberty,” which may refer to forced domestic labour or the reducing of a woman to a servile status. To amount to a crime against humanity, it must be committed “as part of a widespread or systematic attack directed against a civilian population.” Hence, this provision also enables the prosecution of organizers of human trafficking. For example, the Prosecutor is considering an investigation in Libya and is urging States to prosecute perpetrators. The Prosecutor is particularly concerned about migrants, in particular women and children, that are held in detention centres in Libya, where there are allegations of sexual violence, forced labour, human trafficking, and of migrants being sold in a slave market.
The intention behind the Rome Statute of 2002 (“Rome Statute” or “Statute”) in establishing the International Criminal Court (“ICC”) is to prosecute the most serious crimes of international concern and to end impunity. The Rome Statute is significant in being the first international criminal law instrument that recognises forms of sexual violence, such as rape, sexual slavery, enforced prostitution, and enforced sterilization, as distinct war crimes. This legal instrument is also novel in prescribing gender-based crimes as the basis of war crimes or crimes against humanity committed during armed conflicts. In particular, the Statute gives the ICC jurisdiction over gender-based crimes if they constitute acts of genocide. In this case the crimes, such as rape, can be an integral part of the destruction inflicted upon the targeted groups and may be charged as genocide. The Prosecutor must further apply and interpret the Statute in line with internationally recognised human rights, including women’s human rights and gender equality. The States Parties should also consider the need to appoint judges with legal expertise on violence against women or children.
The Prevention of Trafficking in Persons Act of 2009 (the “PTPA”) defines and prohibits human trafficking and aggravated trafficking. The PTPA mandates punishment for trafficking in persons, trafficking in children, using the labor of a trafficked person, promoting trafficking, attempts to traffic persons, and aiding and abetting trafficking. The PTPA also provides for the protection of and non-discrimination against trafficked persons, including that they not be held liable for any crimes committed as a direct result of the trafficking, that survivors be provided with legal advice throughout the proceedings, and that survivors shall be provided with medical care or social services. The sentences for trafficking in persons, aggravated trafficking, and trafficking in children are, respectively, fifteen years imprisonment, life imprisonment, and death.
The defendant was convicted for the crimes of human trafficking and association to commit crimes on May 15, 2014 in the state of Nueva Esparta. In its decision, the lower court said that in cases of rape and trafficking of persons, anyone who has been accused of having a relationship or knowledge of such crime could be deprived of liberty during trial, if it is deemed appropriate by the authorities. In the defendant’s case, he was accused of seducing and luring the female victim into the island of Margarita, where she was subjected, tortured, drugged, and raped. The defendant appealed the decision, alleging that it violated his right to be judged in freedom. The Court of Appeal for Violence Against Women on January 8, 2016 dismissed the appeal action and ratified the decision of the lower court and determined that the apprehension of the accused before his conviction did not represent a violation of the law. The appellate court ratified the criteria of the lower court according to which those defendants who are linked to the act of people trafficking and gender violence can be arrested before issuing a conviction decision, if deemed appropriate by the authorities.
The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families. The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her. That girl left after certain remarks by the appellant. The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance. During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape. Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.
A federal grand jury convicted the defendant-appellant of child sex trafficking in violation of 18 U.S.C. A minor victim testified that she started dating the defendant when she was 17 years old but had told him and others that she was 19 years old. She insisted that the defendant was only living off her income as a prostitute and was not a pimp facilitating prostitution. However, the prosecution introduced videotaped statements in which the defendant repeatedly implored Doe to make money for him and threatened her when she failed to deliver the money. Following a jury trial, the defendant was convicted of two counts of sex trafficking of a minor. On appeal, the Second Circuit considered the construction of 18 U.S.C. § 1591(c), an evidentiary provision added by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which provides that “[i]n a prosecution . . . in which the defendant had a reasonable opportunity to observe [the victim], the Government need not prove that the defendant knew that the person had not attained the age of 18 years.” The Second Circuit affirmed the judgment of the district court, holding that this provision imposes strict liability with regard to the defendant’s awareness of the victim’s age and relieves the government’s usual burden to prove knowledge or reckless disregard of the victim’s underage status under § 1591(a). The Second Circuit rejected the defendant’s challenges to this provision as lacking merit and affirmed the judgment of the district court.
The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.
The plaintiff-appellant, an Albanian citizen who entered the United States on a non-immigrant visa, fled her home country after facing three attempted kidnappings that she believed would have led her into forced prostitution. After escaping the third attempt, her uncle arranged for her to obtain a fake passport to enter the United States. After she applied for asylum with the Immigration and Nationalization Service, she was notified that she was subject to removal as an alien not in possession of valid entry documents. Both an immigration judge and the Board of Immigration Appeals denied her application for asylum. The Sixth Circuit affirmed these denials, finding that the plaintiff was unable to demonstrate that she was a member of a persecuted social group and unable to show that the Albanian government was unwilling or unable to protect her.
The defendant was found guilty of aggravated economic exploitation through the prostitution of vulnerable women, having been found to be the operator of a prostitution establishment in which the four identified victims were sexually exploited. Despite evidence that the women (1) could enter and leave the establishment as they pleased, (2) were never treated with violence, (3) were never required to work for minimum periods of time and (4) would not be charged an “exit” fee if they terminated their employment at the establishment, the court found that (1) the vulnerable status of the women was confirmed by their inability to finish their formal education and their difficulty in finding employment that would enable them to meet their basic needs, (2) the immigrant status of two of the women resulted in social, cultural and economic disadvantages that facilitated their exploitation and (3) their decision to work at the establishment was not the result of a truly free election, but rather was viewed as their only means to subsist. The court further noted that fines imposed for tardiness served as a mechanism to control the women given the financial impact of such fines. Based on these findings, the court ratified the plea bargain of five years imprisonment.
The Public Prosecutor (Ministério Público) filed charges of human trafficking and sexual exploitation of minors against the defendants, “B” and “C” (names omitted from public record). Evidence demonstrated that B and C would transport women and minors from Italy to Portugal and hold them against their will to work as prostitutes at adult entertainment facilities. The Lower Court found B and C guilty on charges of both human trafficking and sexual exploitation of minors, which constitute separate crimes under the Portuguese Penal Code. B appealed to the Appellate Court, arguing that she could not be sentenced twice for the same conduct. The Appellate Court affirmed the Lower Court’s decision, and held that the crimes of human trafficking and of sexual exploitation of minors violate different rights of the victims, which warrants the stacked sentences of both crimes as provided under Sections 160 and 175 of the Penal Code.
One month after marrying the victim, “BB” (name omitted from public record), the defendant, “AA” (name omitted from public record) coerced BB to become a prostitute so she could help with their financial problems. After BB engaged in sexual relations as a prostitute, AA began to physically assault BB and to threaten to kill her children, alleging that was enjoying being a prostitute. Concurrently, AA’s 15-year old daughter “CC” (name omitted from public record) moved in with AA and BB, and shortly thereafter, AA engaged in non-consensual sexual activities with CC for approximately six months. AA had previously convictions for robbery, physical harassment and child pornography, among others. The Superior Court of Justice found AA guilty of the crimes of promoting prostitution under section 169 of the Portuguese Penal Code, domestic violence under section 152 of the Portuguese Penal Code, sexual abuse of a person incapable of resistance under sections 164 and 177 of the Portuguese Penal Code and illegal possession of weapon, and sentenced AA to 16 years of imprisonment.
The defendant, X., procured women for the purpose of prostitution from a recruiter operating in Thailand. She deliberately chose women from poor and disadvantaged backgrounds because of their greater vulnerability and their perceived inability to resist demands made by X. On February 14, 2000, the Zurich District Court convicted X on charges relating to the promotion of prostitution of others under Article 195(3) of the Penal Code (Switzerland), but found the defendant not guilty in relation to trafficking in persons, assault, and other prostitution related offenses. Her conviction resulted in a sentence of two-and-a-half years of imprisonment and a fine of CHF 10,000. On January 24, 2001, the Zurich Court of Appeal, found X. guilty of multiple counts of trafficking in human beings (under Article 196 of the Criminal Code), promotion of prostitution (under Article 195(3) and (4) of the Criminal Code), and for offenses relating to bribery (Articles 288a and 305). X.’s prison sentence was increased to four and a half (4.5) years and the fine of CHF 10,000 was affirmed. X. appealed to the Supreme Federal Court for the annulment of the decision made by the Zurich Court of Appeal. The Supreme Federal Court confirmed the decision of the Zurich Court of Appeal, adding that any consent that may have been given by any of the trafficked women after they had been trafficked and were present in Switzerland would have been irrelevant.
In 2002, the Basic Court in Doboj convicted A.P. of Trafficking of Minors for the Purpose of Prostitution under Article 188 of the Criminal Code of the Republika Srpska. The Court sentenced A.P. to two years’ imprisonment and prohibited him from operating a catering business for five years. A.P. appealed his conviction to the Supreme Court of the Republika Srpska and then to the Constitutional Court of BiH. He argued his right to a fair trial under the Constitution of BiH and the European Convention on Human Rights had been violated because he did not have an opportunity to cross-examine the victims at his trial. Instead, the statements of the victims were read aloud in court. The Constitutional Court of BiH found that, despite A.P. not having an opportunity to cross-examine the victims, his right to a fair trial had not been violated. First, the victims were not present at A.P’s trial because they are foreign nationals who no longer resided in the Republika Srpska. Second, the victims gave their testimony in person during preliminary criminal proceedings, and A.P. was allowed to refute the statements at his trial. Third, the judgment of the Basic Court was not based solely on the victims’ statements, but also on the testimony of a third witness – who had paid to have sex with one of the victims at A.P.’s establishment – and material evidence.
Decision available in English here.
In 2002, Nermin Ćupina (“Ćupina”) recruited two underage girls and one woman and forced them, through threats of violence to them and their family members, to provide sexual services for money. Each day, the victims were forced to earn KM 400 through prostitution, all of which Ćupina kept. The Court of BiH sentenced Ćupina to 12 years’ imprisonment, which it added to Ćupina’s four-year prison sentence from the Cantonal Court in Mostar, resulting in a single sentence of 14 years’ imprisonment after credit for time served. In addition, in accordance with Article 110 of the Criminal Code of BiH, the Court of BiH confiscated the material gain Ćupina acquired through his criminal enterprise. The court, relying on the findings of an expert, established that Ćupina made at least BAM 100,000 in 2002 by prostituting the victims. The court also concluded that because neither Ćupina nor his wife had regular income during 2002, the construction of an apartment valued at BAM 61,481.55 was financed entirely from Ćupina’s criminal enterprise. The Court of BiH confiscated the apartment and ordered Ćupina to pay the remainder of the estimated material gain, BAM 38,518.45.
Decision available in English here.
Between May 2003 and June 2005, Tasim Kučević (“Kučević”) and his common law wife, Meliha Pjević (“Pjević”), procured and exploited at least six women by forcing them to dance and serve cocktails at their hotel and provide sexual services to customers. Through advertisements for dancing positions in Spain and Serbia, the couple enticed four women from Russia and Ukraine to come to Serbia; the victims were then trafficked to BiH. By taking advantage of a Bosnian woman’s drug addiction and a Romanian woman’s illegal immigrant status in BiH, Kučević and Pjević forced two other women into prostitution at the same hotel. Eight of Kučević’s acquaintances supervised the women, guarded the hotel, and ran the prostitution business. In 2007, the Court of BiH convicted Kučević and Pjević of Organized Crime in conjunction with Pandering. In 2009, a panel of the Appellate Division convicted Kučević and Pjević of Organized Crime in relation to Trafficking in Persons in violation of Articles 250(3) and 186(1) of the Criminal Code of BiH. The panel, taking into consideration extenuating and aggravating factors, sentenced Kučević and Pjević to 12 and six years’ imprisonment, respectively. The two were also forced to forfeit the material gain from their criminal enterprise, BAM 286,440. Lastly, the eight men who assisted Kučević and Pjević in trafficking and exploiting the women were convicted of the same charges and sentenced to between three months’ and four years’ imprisonment.
Second instance verdict available in English here.
Between 2006 and 2007, Čedo Markelić recruited two minors for the purpose of sexual exploitation. Markelić promised the girls he would give them money and help them with school-related problems if they provided sexual services to him and his acquaintances. In May 2010, the Court of BiH found Markelić guilty of Trafficking in Persons (minors) in violation of Article 186(2) of the CC BiH and sentenced him to six years’ imprisonment. The trial court, in determining whether Markelić had exploited the victims, took into consideration not only the girls’ age at the time of the crimes (15 and 16 years old), but also that, due to the victims’ “insufficient emotional development,” they did not have the capacity to consent to sexual acts. Furthermore, the court held that under Article 186(4) of the CC BiH, whether a victim of human trafficking “consents” to the exploitation is irrelevant, particularly if the victim is a minor. On appeal, Markelić argued that one of the three elements of human trafficking – the act of perpetration – was lacking in his case. Specifically, he argued Article 186(1) of the CC of BiH requires that a human trafficking recruiter must have effective contact with a third person who controls the victim, and that third person must give his or her consent to the exploitation of the victim. The Constitutional Court of BiH dismissed Markelić’s appeal, holding the Court of BiH correctly found all constituent elements of human trafficking under Article 186(2) were present. The Constitutional Court of BiH found Markelić had committed the offense of human trafficking by recruiting the minors for the purpose of sexual exploitation; contact with a third party who controlled the victims was not required under the CC BiH.
Decision available in English here.
From mid-2007 until September 2012, Mario Ćosić and four acquaintances enticed at least six women to travel to BiH to work at a restaurant Ćosić operated. Ćosić himself would often travel to Serbia to recruit women. Once in BiH, the women – nationals of Moldova, Serbia, Ukraine, and Russia – were forced to provide sexual services for money at the restaurant. In addition, a seventeen-year-old waitress employed by Ćosić provided sexual services for guests in exchange for money, half of which Ćosić kept. Ćosić was charged with International Enticement to Prostitution under Article 187(1) of the Criminal Code of BiH and Enticing a Juvenile into Prostitution under Article 210(4) of the Criminal Code of the Federation of BiH. In December 2016, Ćosić, facing up to 40 years in prison, entered a plea agreement to the above charges, under which he will serve 20 months in prison. One of Ćosić’s coconspirators, Miroslav Čosić, similarly pleaded guilty to International Enticement to Prostitution in exchange for a six-month prison sentence.
In the summer of 1992, during an assault on the non-Serb civilian population of Foča in the early months of the Bosnian War, Radovan Stanković, a member of the Republika Srpska Army, established a small detention center for women at an apartment known as “The Brothel.” He and others brought at least nine non-Serb females, most of whom were minors, to the apartment and detained them there. Between August and November 1992, Stanković repeatedly raped one woman and her underage sister and incited other soldiers who visited the apartment to rape the detainees. In addition, Stanković forced the victims to perform physical labor, including cooking for the soldiers, washing the soldiers’ uniforms, and bathing the soldiers. In 2002, Stanković was arrested by the NATO peacekeeping force, KFOR, and transferred to the ICTY. The ICTY referred Stanković’s case to the Court of BiH in 2005. One year later, the Court of BiH convicted Stanković of Crimes against Humanity (enslavement, imprisonment, torture, and rape) under Article 172(1) of the Criminal Code of BiH and sentenced him to sixteen years imprisonment. In 2007, a panel of the Appeals Division increased the prison term to twenty years. Stanković appealed his sentence, which the ICTY and The Hague Court of Appeal upheld. This case is notable because it was the first time the ICTY referred a case to a court of national jurisdiction.
Second instance verdict available in English here.
Between April 1992 and November 1993, during the Bosnian War, Gojko Janković, a paramilitary leader within the Srpska Republika Army, participated in a widespread and systematic attack on the non-Serb civilian population of Foča. Janković’s unit methodically captured civilians, detained them separately according to gender, and killed dozens of men. During this time, Janković raped at least five girls and women; the soldiers under his command raped scores more. In addition, Janković and a co-perpetrator kept two teenage girls in sexual slavery at a nearby house for over one year. In 2005, Janković voluntarily surrendered and was transferred to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). Shortly thereafter, the Referral Branch of the ICTY referred Janković’s case to the Court of BiH. In 2007, the Court of BiH found Janković guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH and sentenced him to 34 years imprisonment. In 2010, Janković appealed his conviction to the ICTY, arguing the Court of BiH convicted him under a law, the Criminal Code of BiH, which did not exist at the time his crimes were committed. The ICTY denied his appeal.
Second instance verdict available in English here.
From the spring of 1992 to the autumn of 1993, during the Bosnian War, Predrag Kujundžić, a commander in the local military and later police force, led several attacks against non-Serb civilians in Doboj. During that time, he incited, aided, and abetted the murder, rape, imprisonment, and persecution of non-Serb civilians. In addition, from June to December 1992, Kujundžić forced a Muslim minor into sexual slavery by use of force and threats to kill the victim’s mother and younger sister. Kujundžić repeatedly raped the victim, forced her to have sexual intercourse with soldiers, and controlled every aspect of her life. In 2009, the Court of BiH found Kujundžić guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH. The Court found several aggravating circumstances present in Kujundžić’s case, including Kujundžić’s status as a commander, the motives for the attack, the large number of victims, and the fact that the victim of rape and sexual slavery was a minor. The Court accordingly sentenced Kujundžić to 22 years imprisonment. A panel of the Appellate Division later reduced his prison sentence to 17 years.
Second instance verdict available in English here.
Three Indonesian domestic helpers claimed that they were assaulted and abused by Law Wang Tung,a Hong Kong housewife, during their employment by Defendant between 2010 and 2014. The District Court convicted the Defendant of 19 charges assault, intimidation, and failure to provide wages, insurance and holidays during the complainants’ employment, and was sentenced for six years of imprisonment and a fine of HK$15,000. During the trial, that one plaintiff was deprived from sleep, food and wages during the employment, and had suffered from extensive physical damages due to the serious abuse, assault and beating from defendant. Evidence also showed that the other two victims also suffered from similar but different degrees of harm while working for the Defendant. In reaching the judgment, the court held that the evidence was admissible for uncharged acts so as to “get a proper picture about the characters involved in the case” and that the account would be incomplete or incoherent without such evidence. The court also noted that the only issue in the case was the credibility of the witnesses. Despite defense’s attempt to challenge the consistencies and credibility of the victims’ testimonies and the question for lack of independent evidence, both the district court and the appellate court found in favor for the victims in the respective proceedings, by taking into account the victims’ background and the specific circumstances in the case. In affirming the decision, the Court of Appeal need to protect the interests of domestic helpers and articulate the society’s abhorrence for conduct.
The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention ̶ even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.
Die appêlant is skuldig bevind in 'n streek magistraat hof op een geval van mensehandel, drie gevalle van verkragting, een geval van aanranding met die opset om ernstige liggaamlike skade te berokken en een geval van algemene aanranding teen ’n 14 jarige skoolmeisie met wie hy getroud is volgens die gebruiklike huwelikswette. Nadat sy weggehardloop het van die appèllant, het die appèllant die klaer per taxi na Kaapstad geneem waar hulle by die broer van die appellant en sy vrou gewoon het. Daar het die voorval van verkragting en aanranding gebeur. Die appèllant het as verdediging en op gronde van ’n appel beweer dat die sogenaamde verkragting plaas gevind het binne konteks van ’n gebruiklike gerëelde huwelik of ‘ ukuthwala’. Volgens kundige getuienis was ukuthwala ’n onreëlmatige vorm om ’n gebruilike huwelik te begin. Kenners meen dat ukuthwala in sy traditionele vorm, konsensueel en onskuldig was maar dat daar ’n afwykende vorm bestaan waarin jong meisies ontvoer en dikwels verkrag en geslaan is om hulle tot die huwelik te dwing. Die landdros het gesê dat die aangeleedheid nie oor ukuthwala en die plek daarvan in ons grondwettige demokratse gaan nie maar wel of die staat bewys het dat die beskuldigde die misdrywe gepleeg het waarvoor hy aangekla is en indien wel, of hy opgetree het met die wete van onregmatigheid en die vereiste opset(intent). Die hof het beslis dat mensenhandel of uitbuiting van minderjariges vir seksuele doeleindes nie geduld word in Suid-Afrika se gondwetlike bedeling nie. Verder het dit beslis dat die appèllant nie op die tradisionele ukuthwala kon staatmaak as regsverdediging vir sy optrede nie omdat prakyke wat verband hou met ’n afwykende vorm van ukuthwala nie beskerming onder die wet verkry nie. Die Hof kon dus nie bevind dat hy die klaer nie vir mensenhandel met seksuele doeleindes gebruik het nie en dat hy die verkragtings sonder die verwagte intensie gepleeg het nie - selfs op die taamlike onveilige gronde van die bewering van die appellant dat sy geloof in die afwykende vorm van ukuthwala, ’n tradisionele gewoonte in sy gemeenskap is.
The appellant in this case had been arrested and punished with a fine for allegedly paying for child prostitution in violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children (before its revision by Act No. 79 of 2014). The news media reported the his arrest for the alleged charge, and all or part of the coverage was made available at several websites that were searchable on the appellee search engine. This case concerned the appellant’s request—based on his personal rights and moral interests—for an order of provisional disposition, requiring the search engine to make websites that refer to the appellant’s criminal record unsearchable. The High Court dismissed the request. The Supreme Court, on one hand, recalled its finding from precedents that the protection of information related to an individual’s privacy is subject to legal protection. On the other hand, it noted that search engines’ provision of search results (1) may constitute acts of expression and (2) has become an important infrastructure for distribution of information through the internet. The Supreme Court then found that the evaluation of whether providing particular search results amounts to an illegal action must take into account both the benefits of making the information at question unsearchable on the one hand, and reasons and circumstances pertaining to providing such search results on the other hand; the court can require that the search engine remove such search results only if the former exceeds the latter. In this case, the Supreme Court found that, while the criminal record at issue pertained to the privacy of the appellant and which he did not wish to be made largely available to the public, such information also concerned the public interest in light of the nature of crimes relating to child porn and child prostitution. In addition, the Supreme Court took into account that the information dissemination was limited to a certain degree considering that such search results did not show up unless a search engine user used the appellant’s name and his residing prefecture together as search keywords. Thus, the Supreme Court found that the benefit of making the information at issue unsearchable did not exceed the need of having the websites at issue on the search engine and sustained the lower court’s ruling.
“HUMAN TRAFFICKING. IF A VICTIM OF THIS CRIME, IN ONE OF THE FIRST STATEMENTS, MAKES AN ALLEGATION AGAINST THE DEFENDANT, INCLUDING A NARRATIVE OF THE FACTS, AND SUCH STATEMENT IS CORROBORATED BY FURTHER EVIDENCE, SUCH EVIDENCE SHOULD BE REGARDED AS ACCURATE EVEN IF THE VICTIM SUBSEQUENTLY RETRACTS THE ALLEGATIONS.”
This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on such tribunal. In addition, such criteria may also be persuasive in similar cases arising in other federal courts. In this case, the federal court determined that it is a well-known fact that Mexican society discriminates against sex workers. In light of the stigma that sex workers carry, they are subject to continuous pressure from different societal actors, including their nuclear family, to refrain from providing statements or to withdraw initial statements regarding crimes committed against them. The collegiate tribunal held that when a sex-worker case comes before a court, the court must consider a gender perspective in its ruling. As a result, courts must use all available mechanisms in order to obtain irrefutable proof from the victim. The tribunal based its ruling on Article 2(c) and (d) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): “(c) to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.”
“LA TRATA DE PERSONAS. SI UNA VÍCTIMA DE ESTE CRIMEN, EN UNA DE LAS PRIMERAS DECLARACIONES, HACE UNA ALLEGACIÓN CONTRA EL DEFENDIENTE, INCLUYENDO UNA NARRATIVA DE LOS HECHOS, Y DICHA DECLARACIÓN ES SUSTENTADA CON EVIDENCIA DICHA EVIDENCIA SE MANTENDRA COMO VALIDA INCLUSO SI LA VICTIMA RECANTA SU TESTIMONIO."
Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para dicho tribunal. Además, dichos criterios también pueden ser persuasivos en casos similares que surjan en otros tribunales federales. En este caso, el tribunal federal determinó que es un hecho bien conocido que la sociedad mexicana discrimina a las trabajadoras en base a su sexo. En vista del estigma que las trabajadoras sexuales ejercen, están sujetos a la presión continua de diferentes actores sociales, incluida su familia nuclear, para que se abstengan de emitir declaraciones o de retirar declaraciones iniciales sobre los delitos cometidos contra ellas. El tribunal colegiado sostuvo que cuando un caso de trabajadora sexual se presenta ante un tribunal, el tribunal debe considerar una perspectiva de género en su decisión. Como resultado, los tribunales deben usar todos los mecanismos disponibles para obtener pruebas irrefutables de la víctima. El tribunal basó su decisión en el Artículo 2 (c) y (d) de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW): “(c) establecer la protección legal de los derechos de las mujeres en igualdad de condiciones con los hombres y asegurar a través de los tribunales nacionales competentes y otras instituciones públicas la protección efectiva de las mujeres contra cualquier acto de discriminación; (d) abstenerse de participar en cualquier acto o práctica de discriminación contra las mujeres y garantizar que las autoridades e instituciones públicas actúen de conformidad con esta obligación."
Clorinda Mora Romero was sentenced to jail for seven years and six months because the lower court of Asunción found that she was guilty with her co-defendant Guido Arturo Villalba of human trafficking with the purpose of sexual exploitation. She appealed the sentence, and the Court of Appeals rejected her motion, confirming the lower court sentence. Finally, she challenged the decision before the Supreme Court, which dismissed the action in 2016.
Defendant X was condemned under Article 433quinquies and 733septies of the Penal Code for human trafficking with the aim of exploiting three women by prostitution. The fact that the women may have given their consent, and came to Belgium for the specific purpose of prostituting themselves, was considered irrelevant. The Court of Appeal further considered irrelevant the possibility that the women in question had been active in prostitution before. The key test is whether there has been exploitation, and that this is the case when direct or indirect benefit is derived by the exploiter from the income generated by the prostitution, and this becomes the exploiter’s main source of income, regardless of whether the exploiter lives with, or is married to, the prostitute.
The defendant was convicted for soliciting women to prostitute themselves and was consequently fined and sentenced to six years of imprisonment for procurement, and eight years of imprisonment for human trafficking. During his appeal, the defendant raised a procedural objection, challenging the admissibility of evidence demonstrating his involvement in women’s prostitution in Honduras. In addition to reaffirming its longstanding practice of dismissing appeals for failing to state arguments with particularity, the Supreme Court dismissed this objection on the grounds that the accused had an opportunity to challenge the admissibility of evidence during the first trial, and failed to do so. Concerning the second appeal, the defendant argued that no human trafficking occurred, as the elements of the crime, as codified in Honduras criminal law and international conventions, was not met. The defendant argued that he merely invited women to conduct prostitution, and never forced them nor did he participate any further in their transportation to Tegucigalpa (the capital) to conduct these activities. The Court agreed with the defendant’s argument and reversed the human trafficking conviction.
El acusado fue condenado por solicitar mujeres para que se prostituyeran. Como consecuencia, fue multado y condenado a seis años de prisión por adquisición y ocho años de prisión por trata de personas. Durante su apelación, el acusado presentó una objeción al proceso, impugnando la admisibilidad de las pruebas que demuestran su participación en la prostitución de mujeres en Honduras. Además de reafirmar su práctica de descartar apelaciones por no presentar argumentos con particularidad, el Tribunal Supremo descartó esta objeción por el hecho de que el acusado tuvo la oportunidad de impugnar la admisibilidad de las pruebas durante el primer juicio y no lo hizo. Con respecto a la segunda apelación, el acusado argumentó que no hubo tráfico de personas, ya que los elementos del crimen, tal como están codificados en el derecho penal de Honduras y las convenciones internacionales, no estaban probados. El acusado argumentó que simplemente invitó a las mujeres a ejercer la prostitución, y nunca las obligó a hacerlo, ni tampoco participó en su transporte a Tegucigalpa (la capital) para llevar a cabo estas actividades. La Corte estuvo de acuerdo con el argumento del acusado y revocó la condena de trata de personas.
On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women.
The Chinese accused was charged with aggravated trafficking in children, aggravated defilement, and simple defilement. After the accused complained that his Chinese translator was not effectively communicating with him, the trial court judge canceled the accused’s bail and adjourned the proceedings until a replacement translator could be found. The Appeals Court found that the trial court judge improperly revoked the accused’s bail application and ordered it reinstated.
The accused was charged with human trafficking and aggravated child trafficking for transporting minor girls, who were promised supermarket jobs in Uganda, from Rwanda to Uganda for the purposes of forced unpaid household labor and prostitution. The accused pleaded not guilty and maintained that she transported the girls to Uganda with their parents’ permission for a holiday. The Court found her guilty of the charges related to two of the girls, but found that one of the girls was over the age of majority (19 years old). The Court sentenced the accused to two concurrent terms of imprisonment: eight years for aggravated child trafficking and five years for trafficking in persons.
The appellant appeals his conviction for trafficking in persons for the purposes of prostitution in violation of Penal Law sec. 203A(a), pimping for prostitution, and threats and false imprisonment. The appellants’ two co-conspirators reached plea agreements with prosecutors. The appellant generally admits the underlying facts of the case, but argues on appeal that these facts do not amount to trafficking in persons but rather pimping for prostitution, which has a lower sentence. The appellant “acquired” the two complainants in November of 2001 and brought them to a facility in Tel Aviv operated by the first co-conspirator for the purpose of employing them as prostitutes. Appellant “imprisoned the complainants in the facility, took their passports, and abused them physically.” The first co-conspirator supervised the complainants, forced them to work as prostitutes, and collected fees. In or around February 2002, the first co-conspirator transferred the complainants to the custody and supervision of the appellant. The appellant housed the complainants in his apartment and managed all aspects of their work as prostitutes, from arranging clients to fee collection. The appellant made each complainant pay him part of her profits for food and rent. The complainants were not allowed to leave the apartment without the appellant’s permission and supervision. The appellant argued that the lower court erred by not applying a narrow definition of “purchase” as used in property law. The Supreme Court held that section 203A(a) prohibits any deal intended to create a property relationship in which a person acquires rights in another human being. The meaning of the phrases “sale and purchase” in section 203A(a) refer to any deal, in exchange for any consideration, that grants a person any kind of property right in another human being who serves as the object of the deal. It is immaterial whether the business arrangement is under the guise of ownership, rental, borrowing, partnership, or any other means of creating a property interest in a person. The Court held that the appellant’s actions clearly constituted a business arrangement that created a property interest in a human being and that, therefore, these circumstances met the legal criteria for the crime of trafficking in persons.
The Defendant was running a massage parlor that had hidden rooms with beds where a young female employee massaged the whole body of a male customer. The female employee, usually wearing a short skirt and a short-sleeved tee, would undress the male customer, grab his sexual organ with her hands with lotion on, touch the body part just like engaging in a sexual intercourse, and ultimately let him ejaculate. The issue was whether the act of the female employee in the Defendant’s parlor could be considered as "acts that are similar to sexual intercourse" under Article 2 (1) 1 sub paragraph Na of the Act on the Punishment of Acts of Arranging Sexual Traffic. The Act, which aimed to eradicate prostitution and protect the human rights of the victims of prostitution, did not distinguish “sexual intercourse” from “acts that are similar to sexual intercourse”. The Supreme Court interpreted "acts that are similar to sexual intercourse" as stipulated in the above Act to refer to acts of penetrating the body through the mouth or the anus, or at least acts for gaining sexual satisfaction similar to sexual intercourse. Then the Court went through a comprehensive evaluation of the circumstances, including the place where such act was conducted, the clothes the people were wearing, the body parts that were touched, the specific content of the act, and the degree of the resulting sexual satisfaction to decide whether the female employee’s act could be considered as “acts that are similar to sexual intercourse”. The Supreme Court held that the female employee’s act could be deemed as an act of bodily contact for gaining sexual satisfaction similar to sexual intercourse, and therefore dismissed the appeal by the Defendant.
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.
The applicant, a Nigerian born woman, is granted refugee status based on the absence of protection for violence against women generally in Nigeria, as well as her specific experience with gender-based violence. In 2010, applicant was, without her consent, taken to Libya where she was subject to forced prostitution and violent attacks which included removal of applicant’s nails and hair. Applicant was then transferred to Italy where she was applied to the Territorial Commission for international protection. Her application was denied and she appealed to the Tribunale di Cagliari to overturn the Territorial Commission’s decision. The Tribunale di Cagliari found that the applicant’s subjective credibility should have been considered, along with the objective facts available regarding the dire situation for women in Nigeria, and that the Territorial Commission’s findings were invalid because her application for international protection was not translated to a language that she was able to understand.
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.
The defendants Hu Shiming, Hu Jinlin and Shui Bei were charged of crime of organizing sneak across the border for trading three Cambodian women to China. One of the defendants, Shui Bei was introduced and married to defendant Hu Jinlin after she entered China under tourist visa. Shui Bei’s families got to know her good living condition and wished to married someone in China. Therefore, Hu Shiming and Hu Jinlin paid for the visa fee of three sisters of Shui Bei, got them in through Guangzhou custom, and advertised them for marriage. Soon after that, Hu Shiming and Hu Jinlin introduced the three to local persons at the will of both sides and took approximately RMB 240,000 in return. Shui Bei was the interpreter during the transaction. The trial court finds that according to Article 318 Section 1 of the Criminal Law of PRC, the defendants organized several foreign women to do things inconsistent with the approved visa, making up the reason to apply for visa, for the purpose of profit-making, which constituted the crime of organizing sneaking across the border. Hu Shiming appealed and alleged that according to Article 6 Section 4 of Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Application of Law in the Handling of the Criminal Cases of Obstructing Border (Frontier) Control, crossing the border with certificates taken by faking reasons for crossing the border, hiding identity, illegally using others’ ID cards etc, shall be regarded as the act of sneaking across the border. All three requirements need to be satisfied, instead of selectively satisfied. The Supreme Court finds that according to the rationale of law interpretation, the three requirements are selective. Therefore the decision is affirmed.
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.
DFT, or Detained Fast Track, involves the placement of asylum seekers in detention while the outcome of their claim is determined. The claimants identified numerous issues in the DFT system with respect to female asylum-seekers and asserted that “the [DFT] system as operated created an unacceptable risk of unfairness for asylum seekers” and especially for vulnerable populations. These populations include pregnant women and trafficked women, who may find the detention period traumatic and who are likely to present complex cases. The Court held “that the DFT as operated carries with it too high a risk of unfair determinations for those that may be vulnerable applicants,” but emphasized that detention periods in and of themselves are not unlawful.
The defendants were held guilty of violating several provisions of the Austrian Criminal Code after the lower court found that they acted as a criminal organization to recruit victims by means of extortion, massive violence, penalties for not performing sex work and threats and arranged for the victims’ transfer and accommodation in brothels in Austria. After an appeal on procedural grounds, the Austrian Supreme Court upheld the convictions.
The defendant was convicted of trafficking in persons for the purpose of prostitution after the lower court found that he lured the victims from Hungary into Austria under the false pretext that they could work as cleaners in an Austrian Hotel and then threatened them with injury or death to force them to work as prostitutes. The Austrian Supreme Court upheld the conviction on appeal.
The defendant offered the victim a job as a nanny in her house but instead took her to a café and forced her to work as a sex worker. The defendant threatened to deprive the victim of food if she refused to work and kept 50% of the victim’s earnings along with a portion to pay for boarding and lodging. Defendant was charged with economic and sexual exploitation of a child for purposes of benefiting oneself. The High Court of Jambi found the defendant guilty and sentenced the defendant to four years imprisonment and a fine of Rp. 500,000. On appeal, the Supreme Court affirmed the decision of the High Court in part, holding that the High Court used an outdated sentencing law and reduced the sentence to three years imprisonment and a fine of Rp. 500,000.
The defendant paid his friend to bring the victim, a 14-year-old child, to defendant’s café under the pretext of attending a birthday party. After defendant’s friend abandoned the victim at the café, the defendant told the victim to work as a server but also forced her to have sex with the male clients and kept all payments received for the victim’s services. Because the defendant used fraud to bring the victim to the café and exploited the victim by forcing her to act as a sex worker for profit, the Court of First Instance found the defendant guilty of human trafficking under section 2(1) of Law No. 21 of 2007 and sentenced the defendant to 10 years imprisonment with a fine of Rp. 120,000,000. The High Court upheld the lower court’s decision but amended the defendant’s sentence to seven years imprisonment. On appeal, the defendant argued that the High Court’s sentence of seven years was an error since the court did not consider that the victim had stayed with the defendant’s friend before coming to the café and therefore the health and condition of the victim may have worsened before coming to the defendant. The Supreme Court upheld the decision of the High Court and did not rule on the sentencing since it was a “judex facti matter (question of fact of the case)”.
Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.
Afolabi was convicted in district court on twenty two counts relating to her participation in a visa fraud and human trafficking scheme. From October 2002 through September 2007, Afolabi and her family trafficked over twenty West African girls into the U.S. and forced them into unpaid labor. At trial, the prosecution introduced evidence of the physical, psychological, and sexual abuse the girls endured at the hands of Afolabi and her family in the U.S. and Togo. Specifically, the prosecution used evidence of abuse in Togo to establish the involuntary nature of the girls’ servitude. On appeal, Affolabi claimed the court erred in admitting evidence of acts occurring prior to the indictment period. The Third Circuit Court of Appeals held that the evidence was properly introduced because the evidence of prior bad acts in Togo met the requirements of Federal Rule of Evidence 404(b). The Court held that the evidence had a proper evidentiary purpose because it served to illustrate a plan or scheme to coerce the girls into servitude in the U.S. The Court further held that such evidence was relevant because it could contribute to the jury’s determination of the girls’ inability to leave. Additionally, the Court found that any potential prejudice resulting from the Togo evidence did not substantially outweigh its probative value especially in light of the limiting instruction provided by the trial judge.
After the Department of Homeland Security learned that Ernesto, Alberto and Israel Cortes Castro, were smuggling women from Mexico into the U.S. for forced prostitution, they were charged with conspiring to traffic women for prostitution by force or coercion in violation of 18 U.S.C. § 1594(c) and other substantive trafficking crimes. The Defendants plead guilty to the conspiring charge in exchange for the dismissal of the other charges. The factual proffer submitted with the plea agreements stated that the Defendants agreed to establish a sex-trafficking business in the U.S. in which women would be transported from Mexico and prostituted in exchange for money. It also detailed the methods employed by the Defendants to defraud, force and coerce women into prostitution. The district court accepted the plea agreements and sentenced the Defendants to 180 months of imprisonment, an upward variation from the 108-135 month range provided by the advisory guidelines. According to the district court, the upward variation was justified by the “unusually heinous, cruel, brutal and degrading” nature of their conduct. Additionally, the court ordered the Defendants to pay $1,239,200 in restitution losses to the victims. On appeal, the Defendants challenged the upward variation and the restitution award. The Eleventh Circuit Court of Appeals found that the district court had not abused its discretion by sentencing the Defendants to terms 45 months over the advisory guidelines range because they had “enslaved, demeaned and debased immigrant women” forcing them into prostitution for several years and subjecting them to mental, physical and emotional abuse. The Court further held that the district court reasonably determined that an upward variation was required to address the “abhorrent nature” of the crimes. Finally, the Court held that the district court did not err in granting the restitution award because the victims were statutorily entitled to compensation and such award was based on factual information in the factual proffer and the presentencing report.
Ming Yan Zheng and her husband Chang Da Liu opened a brothel in Saipan, the capital of the Commonwealth of the Northern Mariana Islands (“CMNI”). They recruited employees in China by advertising for positions as waitresses, nightclub performers and service workers. The materials promised wages of between $3,000 and $4,000 and required applicants to pay a $6,000 processing fee. Upon their arrival to CMNI, the employees were forced into prostitution. Six of the victims reported the situation to the FBI which resulted in Zheng and Liu’s convictions for conspiracy, sex trafficking, foreign transportation for prostitution and transportation of persons in execution of fraud. On appeal, Zheng challenged her conviction on several grounds, inter alia, that the court lacked jurisdiction to prosecute her. Zheng argued that the Federal Government lacked authority to prosecute her because Section 501 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“the Covenant”) limited the application of the criminal statutes under which she was convicted in the CMNI. According to Zheng, Section 501provides an exhaustive list of the provisions of the U.S. Constitution which apply to the CMNI. As such, she could not be prosecuted under the criminal statutes used to prosecute her because they were enacted under the commerce clause and that territorial clause, which provisions are not listed in Section 501 of the Covenant. The Court found Zheng’s argument to be lacking because Section 501 sets forth the Constitutional provisions which apply in the CNMI as if it were a state. By contrast, the commerce clause and the territorial clause apply to Congress and regulate its ability to enact legislation applicable to the CMNI. As such, the Court held that Congress had authority to legislate over the CMNI, and that the court had jurisdiction over Zheng. The Court pointed out that although Congress has authority to legislate over the CMNI, the Covenant does limit Congress’s powers with respect to legislation enacted after the Covenant’s effective date. For such legislation, the Court must balance the federal interest served by the legislation against the degree of intrusion into the CMNI’s local affairs. However, the Court found that the federal interest in combating international sex trafficking through the U.S. territories outweighs the intrusion into the CMNI’s local affairs.
Defendants Flanders and Callum engaged in a scheme to lure aspiring models to South Florida, drug them with Benzodiazepines, film them engaging in sexual acts and distribute the film for profit. The two were convicted on conspiracy charges and multiple counts of inducing women to engage in sex trafficking through fraud and benefitting from that scheme. The two were sentenced to a total imprisonment term of life, including sixty month terms for the conspiracy charge and life terms for each of the sex-trafficking charges to run consecutively to each other. On appeal Flanders challenged his conviction on sufficiency of the evidence grounds. He claimed the conspiracy conviction could not be sustained because there was insufficient evidence of an agreement between the Defendants or of an overt act in furtherance of the conspiracy. The Court held that evidence that Flanders represented himself as a Bacardi agent and a fictitious female employee of a modeling agency, together with evidence that Callum referred to the fictitious female employee and used phrases Flanders used to lure the models, was sufficient to establish an agreement amongst the Defendants to defraud the victims and constituted overt acts in furtherance of the agreement. Additionally, the Defendants challenged their convictions on double jeopardy grounds, claiming that convictions under 18 U.S.C. §1591(a)(1) and (a)(2) were multiplicitous. The Court held that Section 1591(a)(1) requires the prosecution to prove that the defendant was criminally responsible for the recruitment or enticement of a person with the knowledge that such person will be fraudulently induced to engage in a commercial sex act. By contrast, Section 1591(a)(2) only requires participation in a venture which has recruited a person for such purposes and that the defendant receive valuable benefit from his participation. Applying the Blockburger test, the Court held that the each subsection of the trafficking statute requires proof of different elements that the other does not and that convictions under each subsection do not result in a violation of the Double Jeopardy Clause of the U.S. Constitution.
Defendant James Mozie ran prostitution ring from his house, commonly known as the Boom Boom Room by his customers. Mozie recruited vulnerable teenage girls by posing as a modeling agent, luring them to the Boom Boom Room, and forcing them to have sex with him and his customers. In 2011, law enforcement agents raided the Boom Boom Room and Mozie was subsequently charged with one count of conspiring to commit child sex trafficking in violation of 18 U.S.C. § 1594(c), eight counts of child trafficking in violation of 18 U.S.C. § 1591(a) and one count of producing child pornography in vilation of 18 U.S.C. § 2251(a). The jury convicted Mozie of all ten counts and he was sentenced to the guideline-recommended sentence of life imprisonment. On appeal, Mozie claimed his conviction under 18 U.S.C. § 1591(a) violated the Fifth Amendment’s Due Process Clause. Mozie argued that the statute is facially unconstitutional because it allows the government to obtain a conviction without proving beyond a reasonable doubt that the defendant knew his victim was a minor. The Court held that the statute is not unconstitutional because it requires the Government to prove beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the victim. If such element is proven, then the Government need only prove that the defendant recklessly disregarded that victims age. The Court explained that the Due Process clause does not prevent Congress from criminalizing reckless conduct, especially in the context of statutory rape and other measures to protect young children from sexual exploitation. Additionally, Mozie contended that his conviction should be reversed because his indictment was constructively amended by the district court. Mozie’s indictment alleged conjunctively that he knew and recklessly disregarded his victims’ age. The district court, however, instructed the jury that they could convict Mozie “if they found he either knew his victims were minor or recklessly disregarded the fact that they were minors.” The Court held that there was no constructive amendment of the indictment because when an indictment charges in the conjunctive, the jury instructions may properly be framed in the disjunctive.
Defendant Datqun Sawyer was convicted of sex trafficking in violation 18 U.S.C. § 1591(a). On appeal, Sawyer admitted to forcing at least seven teenage girls he knew to be minors to work as prostitutes for his benefit but challenged his conviction on grounds that the jury was improperly instructed. Sawyer argued that the jury should have been instructed to acquit if the Government did not prove beyond a reasonable doubt that he knew or intended his criminal conduct to affect interstate commerce. The Court held that the clause in 18 U.S.C. § 1591 requiring the defendant’s conduct to affect interstate commerce merely establishes the basis for Congress’s power to legislate and is not subject to any mens rea requirement. The Court explained it would be unreasonable for Congress to limit its enforcement ability to the “trifling number” of sex-traffickers who know or intend their conduct to impact interstate or international commerce as understood under Constitutional law. As such, the Court held that a conviction under 18 U.S.C. § 1591(a) does not require proof of the defendant’s knowledge of the implications of his conduct on interstate commerce.
Cheng Kwong-Chung was charged with four offenses. Wong Lai-Ming was charged with two offenses. Cheng’s first and third charges alleged conspiracy to possess a false instrument, contrary to section 75(1) and section 159A of the Crimes Ordinance, Cap. 200. Count 1 alleged that Cheng conspired with other defendants to possess a false passport, which he knew was false. Cheng and Wong also allegedly conspired to provide Lu Quifeng to enable her to possess a false US passport with knowledge that it was false. Several other fraud charges were brought. The prosecution alleged that Lu and another defendant were to be smuggled from Hong Kong to the US. Neither Cheng nor Wong presented any evidence at trial. Cheng appealed, arguing that the verdicts were unsatisfactory and against the great weight of the evidence. The Court held that there was “an abundance of evidence on which to convict” of both conspiracies in counts one and four, citing evidence adduced and presented at trial. Cheng also argued that there was insufficient evidence for the trial court judge to find that the instrument that was the subject of charge one was false. The Court also held that the trial court judge’s conclusion that whatever passport Cheng held must have been false was not erroneous. Cheng’s appeal was dismissed. Wong also appealed, arguing that the trial judge had insufficient evidence upon which to find that it was in fact Wong who committed the crime. The Court held that there was no ground upon which to disturb the trial judge’s conviction. The evidence against Wong included standard procedures from airline employee’s standard procedure of matching passports against the person who presents it and the fact that Wong never reported her passport lost or stolen. Cheng and Lu appealed their sentences as manifestly excessive because their offenses were part of one course of conduct. The Court held that the course of conduct was sophisticated and, further, stated, “We take the view that offences such as these are very serious. They involve the exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that and importantly, the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigration laws of other jurisdictions and to enable persons to travel on aircraft when they are not authorized to do so. It hardly needs to be emphasized that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.”
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.
The accused physically assaulted the woman with whom he was living. The two were lovers, and he drunkenly hit and kicked her to death. He pleaded guilty to manslaughter, was in remand for four years, served part of his sentence, and had dependents. He asked for leniency on these grounds. The Court emphasized that this offence was committed “in the course of domestic violence” and made note of the Republic’s commitment to CEDAW and the eradication of violence against women. The accused was sentenced to twenty years imprisonment.
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.
Children’s’ rights, child labor, forced labor, human trafficking, sexual abuse. Bachpan Bachao Andolan, a non-governmental organization in India submitted a petition to the Supreme Court of India to take action against the use of child performers in India’s traveling circuses. A study found that children were being trafficked from Nepal or taken from their homes, exploited as child laborers in these circuses, and subjected to mental, physical, and sexual abuse. In recognition that this practice was in violation of child labor laws and regulations on a child’s right to an education, among other national and international statutes, the Supreme Court gave an order to prohibit the employment of children in circuses, raid circuses to free children, and establish rehabilitation schemes for the child victims. This case is an important victory for children’s rights in India, where parents often sell their children to work at a young age, and also displays the willingness of the Supreme Court of India to hear petitions from NGOs, offering an important avenue for human rights reform.
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.
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.
Ms. Streanga is a citizen of Romania who was smuggled to Canada by a sex trafficking ring. After escaping from her traffickers, Ms. Streanga submitted an application for protection. Her application was denied, the deciding officer concluding that since the Romanian government had “taken serious measures” to punish those responsible for trafficking, state protection would be available to Ms. Streanga upon her return. Ms. Streanga made a motion for an order staying her removal until such time as her Application for Leave and for Judicial Review of her application could be decided. On hearing the motion, the judge found that the public pronouncements and public awareness cited by the officer, as well as services for women who have already been victimized, did not amount to state protection. The judge also found that Ms. Streanga would likely suffer irreparable harm if deported to Romania. Further, the judge found reviewable error in that the officer had applied the wrong legal test to determine state protection, and that in light of the evidence of the serious inadequacies of the Romanian police in combating and preventing human trafficking, the officer’s standard of review was flawed. The court granted the stay of removal until the deposition of the leave application, and provided that if leave was granted, the stay would remain until such time as the application for judicial review could be disposed of by the Court.
Ms. Chu is a citizen of China who was smuggled into Canada as a minor, arrested by Citizenship and Immigration Canada while she was being smuggled into the United States, and subsequently detained for eight months. Ms. Chu filed a refugee claim with the Immigration and Refugee Board, which was rejected. In rejecting her claim, however, the Board accepted that Ms. Chu was a member of a social group comprising rural young women from China, and that as such, Ms. Chu was a “very vulnerable member of society.” Ms. Chu then submitted an application for permanent resident status on humanitarian and compassionate grounds, in light of the international laws regarding the trafficking of women. After complying with a request to provide updated information about her case, Ms. Chu received word that her application had been refused on the grounds that she had not shown sufficient establishment in Canada to suggest that she would suffer undue hardship if required to leave and apply for a visa in the regular manner. Ms. Chu challenged this decision by applying for judicial review of her application, alleging that the officer who made the original decision had failed to consider all of the evidence submitted in her case. The judge dismissed Ms. Chu’s application for judicial review, holding that the officer had not made any reviewable error because Ms. Chu had not successfully demonstrated that the officer ignored any evidence.
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.
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.
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.
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.
The issue here was whether defendants Lepp and Taning were guilty of trafficking in persons. Lepp and Taning had jointly solicited A to come with them from Tallinn to Helsinki, where they had lodged her and, profiting from her insecure position and dependence, had subjected her to sexual abuse by prostitution for the purpose of gaining financial profit for themselves. The District Court of Helsinki found that the activities of the defendants did not amount to human trafficking under the Finnish Criminal Code (39/1889, as amended). The Court of Appeal reversed. To establish the crime of trafficking in human beings under Chapter 25, Section 3 of the Criminal Court, the State must establish the means, methods, and purpose of trafficking. The Court of Appeal concluded that it was undisputed that the purpose of the defendants was to subject A to sexual abuse and prostitution (for payment) in Finland. In terms of methods, the Court of Appeal concluded, inter alia, that Lepp and Taning had solicited, by giving a phone call to A, A to activities in purposes of earning money through prostitution. Finally, the Court of Appeal concluded that A's childhood experiences and personal characteristics made her vulnerable to activities that are harmful to her. Considering A's lack of foreign language skills, the fact that she had got into debt in Estonia, lack of means due to her mental characteristics, the Court found that she had no other choice than to continue prostitution under these circumstances. Therefore, she had been defenseless when she was acting as a prostitute, and she was dependant on Lepp and Taning, within the meaning of Chapter 25, Section 3 of the Criminal Code. Lepp and Taning were sentences to 1,5 years in prison for human trafficking and to pay damages of 4,000 Euros to A.
The issue here was whether defendants Ilves, Marttila, Zdanovits, Hilden, Maalinn, Traublum and Angelsctock were guilty of aggravated trafficking in human beings of a mentally handicapped person and of aggravated pandering. According to Chapter 25 Section 3 a of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), if, in trafficking in human beings, (i) violence, threats or deceitfulness is used instead of or in addition to the means referred to in section 3,(ii) grievous bodily harm, a serious illness or a state of mortal danger or comparable particularly grave suffering is intentionally or through gross negligence inflicted on another person, (iii) the offense has been committed against a child younger than 18 years of age or against a person whose capacity to defend himself or herself has been substantially diminished, or (iv) the offence has been committed within the framework of a criminal organization referred to in chapter 17, section 1a, subsection 4 and the offence is aggravated also when considered as whole, the offender shall be sentenced for aggravated trafficking in human beings to imprisonment for at least two years and at most ten years. Seemen had come to Finland from Estonia to work as a prostitute. According to doctor's testimony, she was mentally handicapped. The Court concluded, in the light of the evidence presented, that Seemen had been threatened by violence and her freedom had been restricted by the defendants. The elements of trafficking were present as a whole when taking into account the intensiveness of the submission, even though Seemen might still have had her passport or key to the apartment. The Court of Appeal considered that the defendants were guilty of aggravated trafficking in human beings. Seemen, who was mentally handicapped, had been deceived and mislead into working as a prostitute in Finland. The court dismissed the claims of aggravated trafficking in human beings against Marttila and Hilden on grounds that they could not have been seen in having such a close connection with Seemen even though they were belonged to a criminal organization responsible for pandering. The Court also held that Angelstock was guilty only of abetting aggravated trafficking in human beings. According to Chapter 20 Section 9a(1) of the Criminal Code if, in pandering, (i) considerable financial benefit is sought, (ii) the offense is committed in a particularly methodical manner, and the offense is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated pandering to imprisonment for at least four months and at most six years. According to the Finnish government proposal (34/2004), for the Criminal Code, "considerable financial benefit" would meant cases where the benefit is larger than on average. The Court decided that Ilves, Marttila, Zdanovits, Hilden, Malinn and Traublum were guilty of aggravated pandering. They were ordered to forfeit the proceeds of the crime and to pay damages to Seemen.
E.V. Gavrilov and his associates ran a brothel. He offered a well-paid job in a night club in Moscow to three girls, who, to the best knowledge of Gavrilov, were minors. Later he and other associate bought tickets for the girls and carried them to Moscow. On the way to Moscow the girls asked several times whether the job was related to prostitution, but Gavrilov always said that it was not. Upon arrival, the victims were moved to a private apartment. There they were threatened by Gavrilov and forced to engage in prostitution. Gavrilov organized the brothel, and his associates carried girls to clients and guarded them. Gavrilov pled not guilty, claiming that he did not use violence against the victims and did not run a brothel. The Moscow district court of Chuvashia found Gavrilov guilty of the following crimes: involvement in and enforcement to prostitution connected with use of force or threat of using force performed by a group of individuals by previous concert with knowledge that victims were minors. The court of the City of Moscow confirmed the decision of the court of first instance.
Plaintiff Jane Doe (“Doe”) filed a lawsuit under a pseudonym and alleged 23 causes of action including human trafficking, sexual battery, forced labor and involuntary servitude against Defendants Mr. and Mrs. Penzato. Mrs. Penzato had offered Doe $1,500 per month, free room and board, and transportation to the United States in exchange for child care and housekeeping services. Doe accepted the offer and moved to San Francisco, California. Doe alleged that during her employment Defendants physically assaulted her, sexually molested her, threatened her with cancellation of her visa, and abused or exploited her in various other ways. She eventually left the Penzatos’ household and moved to a transitional housing residence for female victims of violence. Doe filed a motion for a protective order and requested permission to proceed with the lawsuit under a pseudonym. Doe argued that this was necessary to avoid additional psychological trauma due to the sensitive and personal nature of her claims. Further, she argued that the use of a pseudonym would help maintain the safety and anonymity of her fellow transitional housing residents. Defendants argued that because they were publically accused of sexual abuse, human trafficking, and forced labor, Doe should also be publicly exposed. Defendants also argued that they would be prejudiced by the extra effort they would have to take to keep her identity a secret. The court granted Doe’s motion and allowed her to proceed under a pseudonym, holding that Doe’s need to remain anonymous outweighed Defendants’ arguments and the public’s interest in knowing her identity. The court noted the strong interest in protecting sexual assault victims’ identities—to encourage them to report the assaults without fear of being stigmatized as a sexual assault victim.
A grand jury indicted Defendant Gardner (“Defendant”) for alleged participation in a conspiracy to engage in the sex trafficking of a 17-year-old minor female. Defendant was allegedly involved in transporting the minor, collecting money from the minor, and housing the minor between prostitution calls. At Defendant’s detention hearing, the judge released Defendant subject to a bond and other conditions, including a curfew. Several weeks after Defendant’s release, the government sought to impose electronic monitoring as an additional condition of release and as mandated by the Adam Walsh Child and Protection Safety Act of 2006 (“the Act”). The electronic monitoring would immediately alert law enforcement if Defendant violated her curfew. Defense counsel argued that the electronic monitoring violated the Eighth Amendment, procedural due process, and the doctrine of separation of powers. The court disagreed and held that the electronic monitoring was constitutional on all three grounds. Moreover, the court concluded that the electronic monitoring furthered this interest in a way that was not excessive when compared to the risk of post-arrest criminal activity. The court noted that the Act served the valid government interest of providing additional protection for children “from sexual attacks and other violent crimes.” Decision on file with the Avon Global Center.
Defendants were convicted in a Paraguayan trial court for mistreatment of persons, in violation of Article 129 of the Penal Code, for deceiving several women into thinking that the defendants had found them jobs as grocery store cashiers in Spain, and then trying to force the women to work at a brothel upon arrival in Spain. The Appellate Court reversed the conviction, saying the trial court lacked jurisdiction because in a case where a crime begins in one jurisdiction and is completed in another, the latter jurisdiction, in this case Spain, should hear the case. The Supreme Court, Penal division, disagreed with the appellate court, holding that the trial court did have jurisdiction, and further held that the conviction was consistent with Article 6 of the American Convention on Human Rights (“Pact of San Jose”), Article 8 of the International Pact of Civil and Political Rights, Articles 2 and 3 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, and Articles 3 and 5 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children.
The petitioner filed a complaint that the Act on the Punishment of Arranging Sexual Traffic (hereinafter "The Act") which prohibits the "providing [of] buildings or land with the knowledge that it will be used for sexual traffic" is unconstitutional. The petitioner owned or had management rights to buildings located in a brothel area, and since the buildings could not be leased out other than for purposes of sex trafficking, petitioner argued that the regulation pursuant to The Act excessively infringed on his right to property. The Court held that restrictions imposed by the Act are appropriate to achieve its legislative purpose, which is to root out sexual trafficking and the acts of arranging it, and to protect the human rights of the victims of sex trafficking. The Court reasoned that "[i]t is necessary for the state to protect women driven to such sexual traffic, and to regulate middlemen of sexual traffic." The court held that the public good that is achieved by preventing the sexual trafficking in brothels outweighs the "short term private losses" suffered by the petitioners, and thus, the Act is constitutional.
After a police raid on a brothel, four pimps were arrested and twenty-four women and girls were taken into custody. The magistrate ordered a medical examination to, among other things, determine the women's ages. The magistrate then ordered that the women 18 and over be released, and a few days later ordered the minor girls to be released. The magistrate explained that the girls had expressed a desire to be released. The Court held that this act was in violation of the Juvenile Justice Act, that only a child welfare board could determine how the girls were to be released. The Court then set forth guidelines for courts dealing with girls taken from brothels in the future. This case is significant because victims of trafficking may need counseling and other medical services in order to prevent their re-victimization.
The Court reviewed a guilty verdict against defendants under the Women and Girls Protection Act and Passport Act for forcibly bringing two women into Brunei for the purposes of prostitution. The Court found that the Magistrate judge was did not err in relying on testimonial evidence if that evidence was found to be reliable.
This case concerned the war crimes of enlisting and conscripting children in DRC. Under Article 75 of the Rome Statute, in determining reparations (including restitution, compensation and rehabilitation), the ICC should consider the scope and extent of any damage and the harm caused to the victims. The Prosecutor encourages a gender-inclusive approach, promoting reparations that contribute to advance gender equality. In Lubanga the ICC advanced this approach by emphasising that the court should consider the needs of victims of sexual or gender-based violence and prioritize vulnerable victims (especially when plastic surgery or HIV treatments are necessary) and severely traumatized children. The ICC should also grant reparations without discrimination on grounds of “gender, age, race, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.” In fact, reparations should address any underlying injustices and avoid replicating discriminatory practices and the further stigmatisation of victims.
Mr. Katanga was the leader of the Patriotic Resistance Force (“PRF”) in Ituri, an opposition group in DRC, and was accused of war crimes and crimes against humanity in relation to an attack against the village of Bogoro. The Pre-Trial Chamber found that the PRF forces committed acts of rape and sexual slavery: Mr. Katanga’s combatants abducted, sexually enslaved, and physically abused women. Mr. Katanga was found guilty as an accessory to war crimes on four counts: i.e., murder, attacking a civilian population, destruction of property, and pillaging. He was also found guilty as an accessory to murder constituting a crime against humanity. However, he was acquitted on the charges of rape and sexual slavery committed by the PRF forces because the crimes could not be attributed to him; it could not be proved that the crimes were common practice among the combatants. Despite Mr. Katanga’s acquittal, this case is particularly significant as it was the first case in which crimes of sexual violence, including rape and sexual slavery, were charged.
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.
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.
R arrived in Cyprus on an "artiste" visa. She started work as an artiste in a cabaret in Cyprus only to leave work three days later. After finding her, the manager of the cabaret where she had worked took her to the police asking them to declare her illegal in the country and to detain her. The police concluded that R did not appear to be illegal and refused to detain her. They asked the cabaret manager to collect her from the police station and to return with her later that morning to make further inquiries into her immigration status. The cabaret manager collected R and took her to the house of another employee of the cabaret, where the cabaret manager also remained. Later R fell from the window and was found dead in the street below the apartment. Following R’s death, interviews were conducted so was an autopsy. An inquest hearing was finally held nine months later in the applicant, R’s father's absence. The court decided that R died out of an accident and there was no evidence to suggest criminal liability for her death. Upon a request by the applicant, after the body was repatriated from Cyprus to Russia. Forensic medical experts in Russia carried out a separate autopsy and the findings of the Russian authorities, which concluded that R had died in strange and unestablished circumstances requiring additional investigation, were forwarded to the Cypriot authorities in the form of a request for mutual legal assistance under treaties in which Cyprus and Russia were parties. The request asked, inter alia, that further investigation be carried out, that the institution of criminal proceedings in respect of R's death be considered and that the applicant be allowed to participate effectively in the proceedings. Cyprus subsequently confirmed to the Russian Prosecution Service that the inquest into R's death was completed and that the verdict delivered by the court was final. The applicant has continued to press for an effective investigation into his daughter's death. The Cypriot Ombudsman, the Council of Europe's Human Rights Commissioner and the United States State Department have published reports which refer to the prevalence of trafficking in human beings for commercial sexual exploitation in Cyprus and the role of the cabaret industry and "artiste" visas in facilitating trafficking in Cyprus. The ECtHR found a violation of Article 2 as a result of the failure of the Cypriot authorities to investigate effectively R’s death. As regards Russia, the Court concluded that there it had not violated Article 2 as the Russian authorities were not obliged themselves to investigate R's death, which had occurred outside their jurisdiction. With respect to Article 3, the Court held that any ill-treatment which R may have suffered before her death had been inherently linked to her alleged trafficking and exploitation and that it would consider this complaint under Article 4. The Court noted that, like slavery, trafficking in human beings, by its very nature and aim of exploitation, was based on the exercise of powers attaching to the right of ownership; it treated human beings as commodities to be bought and sold and put to forced labor; it implied close surveillance of the activities of victims, whose movements were often circumscribed; and it involved the use of violence and threats against victims. Accordingly the Court held that trafficking itself was prohibited by Article 4. It concluded that there had been a violation by Cyprus of its positive obligations arising under that Article on two counts: first, its failure to put in place an appropriate legal and administrative framework to combat trafficking as a result of the existing regime of artiste visas, and, second, the failure of the police to take operational measures to protect R from trafficking, despite circumstances which had given rise to a credible suspicion that she might have been a victim of trafficking. In light of its findings as to the inadequacy of the Cypriot police investigation under Article 2, the Court did not consider it necessary to examine the effectiveness of the police investigation separately under Article 4. There had also been a violation of Article 4 by Russia on account of its failure to investigate how and where R had been recruited and, in particular, to take steps to identify those involved in R's recruitment or the methods of recruitment used. The Court held that the detention by the police following the confirmation that R was not illegal had no basis in domestic law. It further held that her subsequent detention in the apartment had been both arbitrary and unlawful. There was therefore a violation of Article 5 § 1 by Cyprus. The Court rejected the applicant's other complaints. As important as this case is for taking aim at the exploitive nature of the sex industry and the willingness of States to turn a blind eye to it, Rantsev brings with it questions regarding the very ability of the Court to adjudicate over issues emanating from Article 4 of the European Convention on Human Rights (ECHR). With the determination of the Court that obligations emanating from Article 4 of the ECHR come into play because trafficking is based on slavery, the Court reveals itself as not having truly engaged with the legal distinctions that exist between these two concepts. As a result, the Court has further muddied the waters as to where legal distinction should be made regarding various types of human exploitation, be it the forced labor, servitude or slavery.
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.
Citing reports that a traditional custom called Kamlari sends over 10,000 children between the ages of 7 and 8 into servitude for wealthy households or small businesses, a petition called for new controls on this practice which is against both Nepalese constitutional law and the Convention on Rights of the Child, 1989 (CRC). The Court ordered the Government of Nepal to frame laws to abolish Kamlari and ensure protection of affected children. In addition, the Court called on the government to develop comprehensive legislation addressing the underlying issues that perpetuate such harmful practices, such as education and employment, especially amongst girls and women. By rooting out the base causes for harmful traditional practices, the Supreme Court of Nepal showed a crucial willingness to identify and address the societal problems driving harmful practices, providing hope for real change in women’s and human rights.
In the summer of 1995, Mr. P.Š. and Mr. K.P. (the defendants) transported juvenile Ms. Š.N. and juvenile Ms. A.G. (the Aggrieved) to Prague under the guise of providing employment. The defendants intended to sell the Aggrieved to R.R. into prostitution. After examining the Aggrieved primarily on the basis of their moral standing and their relationship with the defendants, the district court acquitted both defendants. Subsequently, the Prosecutor appealed the decision to the Supreme Court. The Supreme Court quashed the decision of the district court and found the defendants guilty of trafficking in women. It further held that an examination of the moral standing and the relationship of the Aggrieved to the defendants was unreasonable. The Supreme Court clarified that the criminal act of trafficking in women is committed if a woman is lured (i.e., by promises, offers of money, etc.), hired (conclusion of any agreement, including illegal agreements about the trafficking of women to another country), or transported to another country (crossing of a border being sufficient, the specifics of the actual location not required) for the purpose of prostitution. It is irrelevant whether the women in question actually worked as prostitutes or not, the intention to work as a prostitute is sufficient. The Supreme Court ordered the district court to re-examine the case.
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.
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.
This memorandum examines the exploitation of child domestic workers in Bangladesh and the ties between child domestic labor and trafficking.