Published in May 2019
This module is a resource for lecturers
This section contains material that is meant to support lecturers and provide ideas for interactive discussions and case-based analysis of the topic under consideration.
Exercise 1: Introductory exercise
Students are to consider the following situation and debate the questions that follow:
Imagine your national police had dismantled a large trafficking cell operating in your country. When executing arrest and search warrants against the offenders, police identify over 100 individuals suspected of being victims of trafficking. In your opinion:
- What are the first obligations of the State vis-à-vis these individuals?
- What are the rights of these persons? Should such rights depend on them having lawful migration status in the country (residency, citizenship, valid visas and work permits)?
- Should the Government promptly deport all individuals that are in the country illegally?
Students may not be sufficiently knowledgeable to provide informed answers to these questions. Their responses may simply be intuitive. However, this exercise will create an opportunity for discussion. Throughout the Module, students may wish to critically re-examine their answers.
Exercise 2: Vulnerable victims
Students are to identify and discuss other examples of possible 'vulnerable' victims and their viewpoints of what should be included in a national legal framework to respond to their needs and protect their rights. Students should carry out research to determine whether any such international or domestic framework currently exists in their country. In order to carry out this exercise, the lecturer might wish to consider bringing additional material to the class (for example, excerpts from relevant laws, media releases, institutional and or NGO reports).
Exercise 3: Protection of victims
Students are to discuss the extent to which the rights enshrined in articles 6 to 8 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children are effectively implemented (rather than being merely 'law on the paper') in their respective countries.
Exercise 4: Return of victims
Students are to discuss treatment of victims during their return to their respective countries from the perspectives of both law and practice. Furthermore, students should consider the extent to which the principle of non-refoulment could be invoked in a case to allow victims to apply for refugee status.
Exercise 5: Mandatory and Optional Provisions of the Protocol
The Legislative Guide for the Implementation of the Protocol distinguishes between mandatory provisions and optional provisions. Specifically:
" Whenever the words "States are required to" are used, the reference is to a mandatory provision. Otherwise, the language used in the legislative guide is "required to consider", which means that States are strongly asked to seriously consider adopting a certain measure and make a genuine effort to see Trafficking in Children and International Law whether it would be compatible with their legal system. For entirely optional provisions, the legislative guide employs the words "may wish to consider".
"Each State Party is obliged to fulfil the following mandatory requirements:
- Protect the privacy and identity of victims in appropriate cases and to the extent possible under domestic law (Article 6, para. 1)
- Ensure that victims receive information on relevant court proceedings in appropriate cases and have an opportunity to have their views presented and considered (Article 6, para 2)
- Endeavor to provide for the physical safety of victims while they are in their territory (Article 6, para. 5)
- Ensure that measures exist to allow victims the opportunity to seek compensation for damages suffered (Article 6, para. 6)
- Facilitate and accept the return of victims who are nationals or have the right of Permanent residence, with due regard for their safety (Article 8, para 1)
- Verify without unreasonable delay whether a trafficking victim is a national or has the right of permanent residence and issue the necessary travel documents for re-entry (Article 8, paras 3 and 4)."
"Generally, the provisions of the Protocol setting out procedural requirements and basic safeguards are mandatory, while requirements to provide assistance and support for victims incorporate some element of discretion."
"Article 6, paragraph 3, of the Protocol contains an extensive list of support measures intended to reduce the suffering and harm caused to victims and to assist in their recovery and rehabilitation... The high costs of these benefits and the fact that they apply equally to all States Parties in which victims are found, regardless of the level of socioeconomic development or availability of resources, precluded these from being made obligatory".
"There is no obligation to legislate measures relating to the status of victims. However, in several countries where measures have been adopted for the temporary or permanent residence of victims of trafficking, such as Belgium, Italy, the Netherlands and the United States of América, such measures have had a positive effect on victims coming forward to testify against traffickers and on non-governmental organizations encouraging victims to whom they provide services to report incidents to the Government".
Do you consider the preventive measures detailed above to be adequate and effective in guarding against the risks of mail-order bride or marriage by catalogues?
Exercise 6: Consumer demand fuels trafficking
In your judgement, how could the distinction between mandatory and optional provisions affect the implementation of the Protocol? Can you make the argument that all the provisions of the Protocol are binding upon the States, although some of these provisions impose a duty to bring about a result while others impose only a duty to consider or exercise endeavours?
Exercise 6: A Trafficking Complain to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW
In Zhen Zhen Zheng v The Netherlands, Communication No. 15/ 2007, CEDAW Committee, UN Doc.CEDAW/ C / 42 / D / 15 / 2007 (2009), a Chinese national submitted a claim to the UN Committee on the Elimination of Discrimination Against Women ( CEDAW) that the Netherlands refused her residency permit request. The claim was made under article 6, which prohibits trafficking in women.
The claimant had been orphaned as a child, and following the death of a grandmother who took care of her, she lived in the streets and was abused, raped and forced into prostitution. While still a minor, she alleged to have been trafficked to the Netherlands for the purpose of prostitution. After managing to escape, she was taken into the home of a Chinese woman, where she was made to do onerous housework and from which she was later forced out onto the street when it became clear that she was pregnant. She gave birth to a daughter.
The claimant applied for asylum in the Netherlands citing her constant abuse and exploitation. However, her asylum request was denied by the Dutch Immigration and Naturalization Service because she could not provide any details regarding her travel from China to the Netherlands, had no identity documents and had waited eight months before submitting her asylum request.
A District Court of The Hague subsequently denied an appeal of this decision because the applicant of the asylum request faced no danger in returning to China.
She also applied for a residency permit which she was denied, although the Dutch law allows a woman to obtain such permit if she proves that she is a victim of trafficking.
She then filed her claim with the CEDAW Committee.
Consider that you have been asked to represent the victim on her appeal to this international body. Consider:
- How does the nature of the crime of human trafficking make it difficult for its victims to provide a precise and detailed account of all the facts of a case of human trafficking?
- What grounds should be sufficient for granting a victim of trafficking residency status in a country of destination?
- Is the victim's cooperation with the law enforcement officials a prerequisite for granting a victim of trafficking a residency status?
- Does a State have a binding obligation to offer a victim of trafficking a permanent or temporary residency status under article 7 of the United Nations Trafficking in Persons Protocol?
- Please note that the CEDAW Committee was not in a position to examine whether domestic remedies were exhausted.
Exercise 7: What Constitutes Compensation?
The UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, Module 13 on "Compensation for Victims of Trafficking in Persons" cites the following basis for compensation claim:
- Unpaid or underpaid wages;
- Legal fees;
- Excessive, fraudulent or illegal "deductions" from wages for rent, subsistence, transport, tax or social security "payments";
- Reimbursement of illegal "fees" paid to a recruiting or employment agency or for smuggling or transportation;
- "Fines" imposed by traffickers for bad behaviour;
- Medical expenses;
- Loss of opportunities while kept as a victim;
- Pain and suffering due to physical or psychological violence;
- Degrading and inhuman treatment.
Proposed questions for discussion
- Does your legal system allow a victim of trafficking to file a civil action asking for compensation?
- If so, what are the elements of compensation that a victim of trafficking may collect?
- Are they adequate?
- What are the hurdles a victim is likely to face when claiming compensation?
Exercise 8: Punitive Damages
In Ditullio v. Boehm, 662 F.3d 1091 (9th Cir.2011), the US Court of Appeals ruled that " The Trafficking Victims Protection Act (TVPA) Civil remedy provision that a victim "may recover damages and reasonable attorney's fees" in a civil action against the perpetrator. 18 U.S.C section 1595. Standing alone, the term "damages" is ambiguous: it could refer to compensatory damages, punitive damages, nominal damages, or some combination of the three. In tort cases, punitive damages are "awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future. Restatement (Second) of Torts Section 908 (1979)... As the Supreme Court has done to determine the scope of remedies available under federal statutes, we turn to common law principles to determine whether punitive damages are available under the TVPA civil action provision. We follow the general rule that we should award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute punitive damages are generally appropriate under the TVPA civil remedy provision because it creates a cause of action for tortious conduct that is ordinarily intentional and outrageous. A plaintiff bringing a civil action under the TVPA must prove that the defendant has engaged in human trafficking, which Congress described as "a contemporary manifestation of slavery". Such conduct obviously meets the common law standards for awards of punitive damages as it is both intentional and outrageous. Moreover, permitting punitive damages is consistent with Congress' purposes in enacting the TVPA, which include increased protection for victims of trafficking and punishment of traffickers. We therefore hold that punitive damages are available under 18 U.S.C Section 1595".
Proposed question for discussion
- Does your law allow for recovery of punitive damages in addition to the compensatory damages in cases of human trafficking?
- How are they quantified, and what is the usual range of such awards?
- Are there other forms of compensation that both punish the offender and compensate the victim for their exploitation?
Exercise 9: Rehabilitation and Reintegration
Read the following story of a victim of trafficking as covered by CNN, and then explain how the rehabilitation of a victim of human trafficking could be facilitated and promoted.
"I Was Raped 43200 Times"
Mexico City (CNN)
Karla Jacinto is sitting in a serene garden. She looks at the ordinary sights of flowers and can hear people beyond the garden walls, walking and talking in Mexico City. She looks straight into my eyes, her voice cracking slightly, as she tells me the number she wants me to remember -- 43,200. By her own estimate, 43,200 is the number of times she was raped after falling into the hands of human traffickers. She says up to 30 men a day, seven days a week, for the best part of four years -- 43,200. Her story highlights the brutal realities of human trafficking in Mexico and the United States, an underworld that has destroyed the lives of tens of thousands of Mexican girls like Karla. Human trafficking has become a trade so lucrative and prevalent, that it knows no borders and links towns in central Mexico with cities like Atlanta and New York. U.S. and Mexican officials both point to a town in central Mexico that for years has been a major source of human trafficking rings and a place where victims are taken before being eventually forced into prostitution. The town is called Tenancingo. Even though it has a population of about 13,000 it has an oversized reputation when it comes to prostitution and pimping, says Susan Coppedge, who is now the U.S. State Department's Ambassador at Large to Combat Human trafficking, and previously worked at the U.S. Attorney's office in Atlanta. "That's what the town does. That is their industry," Coppedge says. "And yet in smaller, rural communities the young girls don't have any idea that this is what the town's reputation is, so they are not suspicious of the men who come from there. They think they have got a great future with this person. They think they love and it is the same story of recruitment every time."
Mistreated from the age of 5
Karla says she was abused for as long as she can remember and felt rejected by her mother. "I came from a dysfunctional family. I was sexually abused and mistreated from the age of 5 by a relative," she says. When she was 12 she was targeted by a trafficker who lured her away using kind words and a fast car. She says she was waiting for some friends near a subway station in Mexico City, when a little boy selling sweets came up to her, telling her somebody was sending her a piece of candy as a gift. Five minutes later, Karla says, an older man was talking to her, telling her that he was a used car salesman.The initial awkwardness disappeared as soon as the man started telling her that he was also abused as a boy. He was also very affectionate and quite a gentleman, she says.They exchanged phone numbers and when he called a week later, Karla says she got excited. He asked her to go on a trip to nearby Puebla with him and dazzled her by showing up driving a bright red Firebird Trans Am. "When I saw the car I couldn't believe it. I was very impressed by such a big car. It was exciting for me. He asked me to get in the car to go places," she says.
'Red flags' were everywhere
It didn't take long for the man, who at 22 was 10 years older than Karla, to convince her to leave with him, especially after Karla's mother didn't open the door one night when she came home a little too late."The following day I left with him. I lived with him for three months during which he treated me very well. He doted on me, he bought me clothes, gave me attention, bought me shoes, flowers, chocolates, everything was beautiful," Karla says.
Karla says her boyfriend would leave her by herself for a week in their apartment. His cousins would show up with new girls every week. When she finally mustered the courage to ask what business they were in, he told her the truth. "They're pimps," he said."A few days later he started telling me everything I had to do; the positions, how much I need to charge, the things I had to do with the client and for how long, how I was to treat them and how I had to talk to them so that they would give me more money," Karla says.
Four years of hell
It was the beginning of four years of hell. The first time she was forced to work as a prostitute she was taken to Guadalajara, one of Mexico's largest cities."I started at 10 a.m. and finished at midnight. We were in Guadalajara for a week. Do the math. Twenty per day for a week. Some men would laugh at me because I was crying. I had to close my eyes so that that I wouldn't see what they were doing to me, so that I wouldn't feel anything," Karla says.There would be several other cities. She would be sent to brothels, roadside motels, streets known for prostitution and even homes. There were no holidays or days off, and after the first few days, she was made to see at least 30 customers a day, seven days a week. Karla tells how she was attacked by her trafficker after a customer marked her skin. "He started beating me with a chain in all of my body. He punched me with his fists, he kicked me, pulled my hair, spit at me in the face, and that day was when he also burned me with the iron. I told him I wanted to leave and he was accusing me of falling in love with a customer. He told me I like being a whore."
And then came a child...
One day, when she was working at a hotel known for prostitution, police showed up. They kicked out of all of the customers, Karla says, and shut down the hotel. She thought it was her lucky day -- a police operation to rescue her and the other girls.Her relief turned quickly to horror when the officers, about 30 she says, took the girls to several rooms and started shooting video of them in compromising positions. The girls were told the videos would be sent to their families if they didn't do everything they asked."I thought they were disgusting. They knew we were minors. We were not even developed. We had sad faces. There were girls who were only 10 years old. There were girls who were crying. They told the officers they were minors and nobody paid attention," Karla says. She was 13 years old at the time. In her nightmare world even a pregnancy was cause for horror not joy. Karla gave birth at 15 to a girl -- a baby fathered by the pimp who would use the daughter to tighten the noose around her neck: if she didn't fulfil his every wish, he would either harm or kill the baby. He took the baby away from her a month after the baby was born, and she was not allowed to see her again until the girl was more than a year old. Karla Jacinto was finally rescued in 2008 during an anti-trafficking operation in Mexico City. Her ordeal lasted four very long and tormenting years. She was still a minor, only 16, when it ended -- but she has endured a lifetime of horror that will stay with her as long as she lives.
CNN independently verified portions of Karla's story. CNN spoke with the United Against Human Trafficking group she was referred to after being rescued, and to senior officials at Road to Home, a shelter where Karla lived for one year after her rescue. Due to the clandestine nature of the human trafficking business, corroborating everything Karla told us is not possible.
CNN Freedom Project, Human Trafficking survivor: I was raped 43,200 times (20 September 2017)
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