Published in May 2019
This module is a resource for lecturers
Responses to TIP and SOM: Is gender taken into consideration? And if yes, how?
There is recognition of the importance of including a gender perspective into responses to Trafficking in Persons (TIP). However, the female-centered focus of TIP responses inevitably influences the way the criminal justice response will be implemented. Gender stereotypes are harmful both for men and women, boys and girls.
Both Protocols - against TIP and against Smuggling of Migrants (SOM) - require States to consider the age, gender and any special needs of the victim in the implementation of their measures of protection and/or assistance.
The scope of protection and assistance foreseen in the Protocol against TIP is much broader than the one provided in the Protocol against SOM. Indeed, TIP is a severe crime and human rights violation, persons being trafficking are hence considered a victim and are entitled to a series of protection and assistance measures. SOM is not a form of crime against migrants, smuggled migrants are not victims of SOM, but they can nevertheless be victims of other crimes, including human rights violations. In that perspective, and acknowledging the risks faced by smuggled migrants, the Protocol against SOM also established some protection measures - such as in a situation of violence, occurring because of SOM (see also Module 2 on the Protection of the Rights of Smuggled Migrants)
Article 6 of the Protocol against TIP: Assistance to and protection of victims of trafficking in persons
1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential.
2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases:
- Information on relevant court and administrative proceedings;
- Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence.
3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of:
- Appropriate housing;
- Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand;
- Medical, psychological and material assistance; and
- Employment, educational and training opportunities.
4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. […]
Article 16 of the Protocol against SOM: Protection and assistance measures
1. In implementing this Protocol, each State Party shall take, consistent with its obligations under international law, all appropriate measures, including legislation if necessary, to preserve and protect the rights of persons who have been the object of conduct set forth in article 6 of this Protocol as accorded under applicable international law, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
2. Each State Party shall take appropriate measures to afford migrants appropriate protection against violence that may be inflicted upon them, whether by individuals or groups, by reason of being the object of conduct set forth in article 6 of this Protocol.
3. Each State Party shall afford appropriate assistance to migrants whose lives or safety are endangered by reason of being the object of conduct set forth in article 6 of this Protocol.
4. In applying the provisions of this article, States Parties shall take into account the special needs of women and children.
Gender-sensitive approach in the response to TIP: The European Union example
The 2011 European Union Anti-Trafficking Directive ( Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims) is viewed as being a landmark piece of legislation that integrates a gender-sensitive approach (a holistic approach with a strong focus on gender).
From the outset of the Directive, it is stated that the provisions all take into consideration a gender perspective, from the prevention of the crime to the protection of the victims. It recognizes that a gender perspective is necessary to understand and act upon TIP.
In the Recital 3, the Directive recognizes the gender aspects of trafficking and calls for the inclusion of gender-specific measures of assistance and support.
2011 European Union Anti-Trafficking Directive, Recital 3
This Directive recognizes the gender-specific phenomenon of trafficking and that women and men are often trafficked for different purposes. For this reason, assistance and support measures should also be gender-specific where appropriate. The 'push' and 'pull' factors may be different depending on the sectors concerned, such as trafficking in human beings into the sex industry or for labour exploitation in, for example, construction work, the agricultural sector or domestic servitude.
The gender perspective is also enshrined in the European Union plan of action, the European Union Strategy towards the Eradication of Trafficking in Human Beings 2012-2016. It stipulates, in priority E Action 2, that 'the Commission will develop knowledge on the gender dimensions of human trafficking, including the gender consequences of the various forms of trafficking and potential differences in the vulnerability of men and women to victimization and its impact on them'.
Further, the Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, 2005) makes special reference to guaranteeing gender equality, both regarding prevention and protection.
The identification of potential victims of trafficking
The first step in any anti-trafficking intervention is the identification of potential victims of TIP.
The pervasive focus on women and girls in the field of trafficking has implications regarding the identification of potential victims. Men and boys are often overlooked as potential victims. In addition, there is the risk of stereotypical or wrongful identification, meaning that the archetypical image of the 'perfect victim' (being a woman, migrant, and involved in prostitution) influences the type of profile of persons who will be suspected to be a victim of trafficking. The predominance of a female victimhood narrative and mostly emphasizing TIP for sexual exploitation, is translated in practice by more efforts being dedicated in law enforcement (but not only) to identify at risks persons and victims within the sex trade sector.
Identification is not limited to law enforcement agents, but concerns all practitioners who may be in contact with the person in situations of trafficking: health practitioners, social workers, NGOs, frontline workers, etc.
Considerations regarding male trafficking victims
A lack of a gendered approach to trafficking undermines the uniqueness of the male victim's experience. Gender stereotypes can undermine the ability to correctly identify male trafficking victims. This prevents male victims from receiving the necessary assistance and protection services. Stereotypical constructions of masculinity may result in men's reluctance to acknowledge that they are trafficked and/or to identify themselves as victims.
Source: ICAT 2015 Gender and Trafficking
The Protocol against TIP also foresees the inclusion of gender considerations in the training of law enforcement to enhance the identification of victims and to avoid detrimental effects of gender biases:
Article 10 (2)of the Protocol against TIP
2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.
Interviewing considerations for victims of trafficking
There are different tools and guidelines dedicated to the interviewing of potential victims of trafficking. Among key considerations is the concern for a gender-sensitive approach.
- Even when an interview has established trust with victims and witnesses, they may never provide a full account in a single interview. Aside from the trauma they have suffered, other sociological and psychological barriers impede the process, including sociocultural differences, language and gender.
- Gender issues significantly affect the interviewer's capacity to obtain information.
- Trafficked women and children frequently suffer sexual abuse and violence and may be reluctant to seek assistance because of the shame and stigmatization which may flow from disclosing their experiences. Men, particularly those from a culture with a traditional view of masculinity, may not want to admit their victimization because they fear that their disclosure of losing control of their lives may lead to perceptions of diminished masculinity. For these reasons, men and women may perhaps be more willing to talk to law enforcement personnel and service providers of the same gender.
- Investigators who are fluent in the language of the person they are interviewing and have cultural affinity with the person may have more success.
Source: UNODC (2008). Toolkit to Combat Trafficking in Persons Global Programme against Trafficking in Human Beings. pp. 176-177
Investigations and legal proceedings in cases of smuggling of migrants
Regarding SOM, gender considerations are also included in relation to the general protection of fundamental human rights as well as non-discrimination principles in the code of conduct of investigations and legal proceedings.
Excerpt from UNODC's basic training manual on investigating and prosecuting the smuggling of migrants
Non-discrimination: It is a fundamental principle of international human rights law that all persons have a right to be recognized as a person before the law, are to be treated as equal before the law and are entitled without any discrimination to equal protection of the law.
Law enforcers shall not unlawfully discriminate based on race, gender, religion, language, colour, political opinion, national origin, property, birth or other status.
The fact that everybody is equal before the law does not mean, however, that everybody is identical. Hence, it is not considered to be discriminatory for a law enforcer to apply certain special measures designed to address the special status and needs of women (including pregnant woman and nursing mothers), juveniles, the sick, the elderly, people with special needs and others requiring special treatment in accordance with international human rights standards.
Source: UNODC (2010). Basic training manual on investigating and prosecuting the smuggling of migrants
Gender dimensions of assistance and support
This section on assistance and support will only refer to TIP since there are no comparable assistance and protection measures for smuggled migrants and therefore, no correspondent literature on SOM.
In general, there is insufficient support and assistance measures for victims of trafficking. Outside of the sex trafficking frame, even fewer services are offered. In addition, because of the limited attention given to male victims of trafficking, there has been much less development on the side of services and support measures for male victims. For men who exit exploitative labour situations, for example, assistance and support measures are often absent. A crucial element to consider is the stigma that the victims may feel, a stigma attached to the fact of having been victim of TIP for sexual exploitation.
Furthermore, some scholars have critically analysed the current types of anti-trafficking responses and interventions. Nonetheless, too little has been said and documented about the life after trafficking: " Spectacular stories of life in trafficking saturate the media, politicians' speeches, and non-governmental organizations' fundraising campaigns. With so much focus on stories of brutality, or of dramatic escapes and rescues, there has been little attention to what happens after trafficking" (Brennan and Plambech 2018).
Too often the anti-trafficking assistance and protection is focused on and limited to rescue and rehabilitation. Shelters for 'rescued' women and girls from sex trafficking have been opened by civil society, international organizations and faith-based groups in numerous countries to support the rehabilitation. It has been documented that shelters (in Eastern Europe and Asia) often impose restrictions and control over their movement and decisions, which can have detrimental effects on the women and girls (Segrave et al. 2009). Indeed, after having exited situations of control, in trafficking situations, women and girls may face new forms of control over their lives in the name of their protection. Such practices deprive them of their agency, and their power over their lives' decisions.
Further, in many countries, the assistance and protection provided to victims of trafficking are conditional to the cooperation of the victim in the investigation and prosecution of the trafficker. For example, one key element of protection in cases involving migrants in an irregular situation is to provide a temporary visa and right to stay in the country. However, the granting of this type of visa is often conditional on the participation of the victim in criminal and judicial proceedings.
Effective responses to TIP, as well as support and assistance measures need to meet victims' needs (such as decent work opportunities).
In addition, the example below illustrates the implications of anti-trafficking responses that involve the return of the victim to his or her home country. After rescue and identification, victims of trafficking are given the option of returning to their country through voluntary return and reintegration programmes.
Violence in the safety of home: life in Nigeria after selling sex in Europe
Many women find themselves returning to situations of everyday violence after being 'saved' from selling sex in Europe. Why are some types of suffering seen as more legitimate than others?
Identifying and separating 'victims of trafficking' from 'criminals' - the undocumented migrants considered guilty of violating immigration laws - is a complex daily practice in anti-trafficking work. Who is worthy of assistance and who is not? What are the continuing effects of these designations on women after they are deported for selling sex in Europe?
Crossing from Nigeria to Europe is expensive, in large part because increasingly strict border controls have forced more and more migrants to employ smugglers to secure their passage. The price for this service ranged, according to the Nigerian migrant women with whom I work, from €40,000 to €60,000 in June 2015. The route takes a prospective migrant through the Sahara Desert to Libya before transporting her across the Mediterranean to Italy. While the women trying their luck in Europe may not know all the conditions and hazards of their job upon arrival, most know that they will work for two to three hard years under a 'madam' to repay their debt.
I refer to the movement characterized by this debt - seen by the women as part of a joint migration arrangement between them, their families, and their 'sponsors' - as indentured sex work migration. The women who undertake it are vulnerable to violence and severe exploitation and share common experiences of living undocumented in Europe and doing sex work to repay this debt. Despite these commonalities, those who are discovered may have remarkably divergent fates: some are deported as undocumented immigrants, while others are identified as 'victims of trafficking' and returned to Nigeria through the so-called assisted voluntary return and reintegration programme (AVRR). The former are given nothing, while the latter receive a small amount of money and psycho-social assistance to 're-integrate' themselves into Nigeria.
It is difficult to decipher from their narratives why some women were designated 'victims' while others ended up 'criminals'. Their experiences in Europe were remarkably similar. Instead, what becomes apparent when listening to their stories is that their labels have been shaped by arbitrary encounters and chance, and the unsystematic consequences of meeting a particular immigration official or social worker who might or might not take an interest in their case.
The case of 'Grace'
Grace is a Nigerian woman who spent six years selling sex on the streets of Italian cities before she was identified as a 'victim of trafficking' by the Italian authorities. She felt forced to accept the AVRR because she had no other options. I met Grace seven months after her return from Italy at a food stall she had opened on the edge of Benin City, Nigeria. Her customers were truck drivers and local sex workers, and the business was doing well. She recounted to me that, two months after her return, armed men came to her stall and stole the cooking pots, the food, and most of her money. Her motivation for accepting the AVRR in Italy - the financial assistance - was lost in the robbery and the local NGO could not obtain any more funds from the Italian donors.
A common argument against repatriation is that traffickers might lie in wait for women at the airports to claim unpaid debts. That is not what happened to Grace. Instead, she entered a situation of increased vulnerability in Nigeria because while she could not afford a secure lifestyle, she was imagined having returned with assets from Europe. Grace, like many other women who have been 'returned', live and work on the outskirts where rents are lower. These are dangerous areas with few paved roads and even less streetlights, and many women cannot even afford lockable doors. Yet she had been given money to open a stall, and this made her a target. In other words, while Grace was vulnerable to deportation in Europe, she became vulnerable in Benin City because of deportation.
What happened to Grace is emblematic of the dangers faced by 'returned' Nigerian sex workers. As the experiences of these women make clear, violence, vulnerability and victimhood are not exclusively connected to sex work and migration abroad but are part of everyday life 'at home' in Benin City. They are regular and expected occurrences that transpired outside the state of indenture. This truth too often remains hidden because the focus on the perceived violence of trafficking "renders other forms of violence invisible or normal", in the words of Baye and Heumann, and excludes both 'victims' and 'criminals' from protection. Moreover, this focus obscures the violence perpetrated by actors other than the individuals who facilitated or caused their migration. Thus, when I asked the women to compare Europe to Nigeria, many told me that it was safer to sell sex on the streets of Rome or Hamburg than to run a food stall in Benin City, even though many experienced intense violence in Europe as well. (…)
Source: Sine Plambech (2015). Violence in the safety of home: life in Nigeria after selling sex in Europe . OpenDemocracy Blog, Beyond Trafficking and Slavery, 12 August 2015.
In addition, the focus on female victims of trafficking has resulted in very little knowledge about the experiences that other groups, such as men, face in the aftermath of the situation of TIP. What are the challenges they face? The text below is an excerpt from an article on the experiences of Indonesian men returning home after having been trafficked.
Indonesian men returning home after having been trafficked
"Experiences of long-term reintegration, particularly men 's experiences, are largely missing from research on human trafficking in Indonesia (and indeed more widely), and yet understanding these experiences is key to our ability to design and implement tailored and effective reintegration programmes and policies. Also missing is an understanding of the nature of and reasons for tensions within men 's families and communities after trafficking and over the course of their post-trafficking lives. These experiences need to be better understood to ensure more effective identification and assistance of Indonesian men and the support needed to recover and reintegrate after trafficking. This is particularly pressing when support provided by the family may be the only assistance available to trafficked men in their lives after trafficking, and when community dynamics may, in some cases, undermine their reintegration."
Source: Surtees, Rebecca (2018). At Home: Family reintegration of trafficked Indonesian men. Anti-Trafficking Review, Special Issue - Life After Trafficking, no 10. (p.1)