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Abuse of a Position of Vulnerability and Other 'Means' Within Issue Paper Abuse of a position of vulnerability and other “means” within the definition of trafficking in persons UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Issue Paper Abuse of a position of vulnerability and other “means” within the definition of trafficking in persons UNITED Nations New York, 2013 © United Nations, April 2013. All rights reserved, worldwide. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimita- tion of its frontiers or boundaries. This publication has not been formally edited. Acknowledgements The present publication was drafted by Dr Anne T. Gallagher (consultant), with the support of Marika McAdam (consultant), who was also responsible for conducting the majority of country surveys. It was coordinated by Simone Heri of the Human Trafficking and Migrant Smuggling Section at UNODC, special thanks are extended to Ilias Chatzis, Martin Fowke and Mary Gniadek at the Human Trafficking and Migrant Smuggling Section for their inputs. UNODC expresses its appreciation to those who attended the expert consultation in Vienna on 28‐29 June 2012 and who provided important follow‐up input: Obiwulu Agusiobo, Yuriria Alvarez Madrid, Carmela Bühler, Pamela Bowen, Anamika Chakravorty, Parosha Chandran, Catherine Collignon, Luuk Esser, Alberto Groff, Paul Holmes, Adel Maged, Eurídice Márquez Sánchez, Boris Mesaric, Albert Moskowitz, Geeta Sekhon, Liliana Sorrentino, Matthew Taylor and Irina Todorova. Thanks are also due to the large number of government officials and practitioners, listed in Annex 2, who gave generously of their time and expertise in helping with the country case studies and reviewing various draft sections of the text. The study was made possible through funding received from the Government of Switzerland. iii Contents Executive Summary ...........................................................................................1 1 Background ...............................................................................................7 1.1 Context of this study ................................................................................ 7 1.2 Mandate and Terms of Reference .................................................................. 9 1.3 Methodology ...................................................................................... 10 1.4 Structure of this paper ............................................................................ 11 2 The concept in international law and policy ......................................................... 13 2.1 Introduction: trafficking and the concept of vulnerability ....................................... 13 2.1.1 Vulnerability as susceptibility to trafficking....................................................................13 2.1.2 A distinct but related concept: abuse of vulnerability as a means of trafficking ............... 15 2.2 The Trafficking in Persons Protocol and the “means” element of the definition ............... 16 2.3 Regional Instruments.............................................................................. 19 2.4 Supplementary sources of insight ................................................................ 20 2.5 Conclusions on the concept in international law and policy..................................... 24 3 National Law and Practice: Overview................................................................. 26 3.1 States that have included abuse of vulnerability and related “means” within the definition.. 26 3.1.1 Egypt ...........................................................................................................................27 3.1.2 The Republic of Moldova ..............................................................................................29 3.1.3 The Netherlands...........................................................................................................34 3.2 States that have included only a restricted range of “means” within the definition ........... 38 3.2.1 Nigeria........................................................................................................................ 38 3.2.2 United States of America ............................................................................................. 40 3.3 States in which the “means” element is not explicitly included in the definition............... 43 3.3.1 Belgium .......................................................................................................................43 3.3.2 Canada ........................................................................................................................47 3.4 States where the legislative situation does not fit into the above or is unclear ................ 51 3.4.1 Brazil ...........................................................................................................................51 3.4.2 India ............................................................................................................................53 3.4.3 Mexico.........................................................................................................................57 3.4.4 Switzerland..................................................................................................................61 3.4.5 United Kingdom of Great Britain and Northern Ireland ..................................................65 v 4 National Law and Practice: Key Findings.............................................................. 71 4.1 The place of abuse of vulnerability in the crime of trafficking................................... 71 4.2 Relationship of abuse of vulnerability with other means ........................................ 72 4.3 Relationship of abuse of a position of vulnerability with the ‘act’ element..................... 75 4.4 Relationship with exploitation .................................................................... 76 4.5 Relationship with consent......................................................................... 78 4.6 Evidentiary issues.................................................................................. 80 4.7 Practitioner perceptions of the value of the APOV concept and risks associated with its application .............................................................................................. 84 4.8 Practitioner perceptions of the value of the Interpretative Note ............................... 86 ANNEX 1: Survey Instrument ............................................................................... 90 ANNEX 2: List of persons consulted, including Expert Group Meeting participants .................... 94 vi Abbreviations and Acronyms APOV Abuse of a position of vulnerability Conference of the Parties to the United Nations COP Convention against Transnational Organized Crime and the Protocols Thereto Open‐ended Interim Working Group on the Protocol to Working Group on Prevent, Suppress and Punish Trafficking in Persons, Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime EU European Union European Trafficking Council of Europe Convention on Action against Trafficking Convention in Human Beings Directive 2011/36/EU of the European Parliament and of EU Trafficking Directive the Council of 5 April 2011 on preventing and combating 2011/36/EU trafficking in human beings and protecting its victims ILO International Labour Organization Trafficking Trafficking in Persons Protocol to Prevent, Suppress and Punish Trafficking in Trafficking in Persons Persons, Especially Women and Children, supplementing Protocol the United Nations Convention against Transnational Organized Crime UN United Nations UNODC United Nations Office on Drugs and Crime Organized Crime United Nations Convention against Transnational Convention Organized Crime vii Executive Summary 1 Executive Summary Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol) defines trafficking in persons as constituting three elements: (i) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (ii) a “means” by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and (ii) a “purpose” (of the intended action/means): namely, exploitation. 1 All three elements must be present to constitute “trafficking in persons” in international law. The only exception is when the victim is a child; in such cases it is not necessary to prove that one of the acts was accomplished through the use of any of the listed “means”. The Protocol, and its definition of trafficking in persons, has been widely embraced by States and the international community. However, over the past decade it has become evident that questions remain about certain aspects of the definition, as well as its application in domestic criminal law. In particular, questions have emerged regarding those aspects of the definition that
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