volenti non fit injuria?
How Does Consent Influence the Perception of the Ideal Victim with regards to Human Trafficking?
F.F.C.C. Sweep LL.M
Anr: 902377
Master Thesis Victimology and Criminal Justice Faculty of Law Tilburg University, Tilburg
Supervisor: dr. mr. C.R.J.J. Rijken Second reader: mr. M.J. Middelburg
February, 2015
I wish to thank Conny Rijken for encouraging me to be better. I wish to thank Bregje, Karin, and Michael for encouraging me to be.
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Contents Introduction ...... 4
CHAPTER 1. What is Human Trafficking? ...... 6
1.1. The History (1904-1999) ...... 6
1.2. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons ...... 8
CHAPTER 2. What are the Characteristic of a (Trafficking) Victim? ...... 13
2.1 The Ideal Victim ...... 13
2.1.1. The Ideal Victim ...... 13
2.1.2. The Ideal Trafficking Victim ...... 16
2.2. The Real Victim ...... 20
2.3. Conclusion ...... 26
CHAPTER 3. What is the Issue of Consent? ...... 29
3.1 What is Consent? ...... 29
3.1.1. What is Consent in a (general) Criminal Law Perspective? ...... 29
3.1.2. What is Consent in the Trafficking Definition? ...... 31
3.2 What is the problem with consent in the trafficking definition ...... 32
3.2.1. The history of consent in the Trafficking definition ...... 32
3.2.2. The problems of consent with regards to the trafficking definition ...... 35
3.3 Conclusion ...... 47
CHAPTER 4. Conclusion ...... 48
Bibliography ...... 54
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Introduction Human trafficking, the movement of people from one place to another with the aim to exploit these people for different labor purposes, divided over many economic sectors, is a difficult area of international law. It took the International Community years to come to an agreement on the definition, which is put down in 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, done 15 November 2000, entered into force 5 December 2003 (also referred to as “Palermo Protocol” or “2000 Protocol”). Yet, still bookcases can be filled with articles discussing the exact meaning and impact of this definition. This paper will do so as well. Human trafficking is a heinous crime, which creates many victims. These victims need protection and assistance. However, this can only be provided to them when they are acknowledged to be victims: their victimhood must be determined. Society has a certain view on the characteristics of a victim. Yet the world is not made out of black and white: victimhood is not always a clear cut given and society’s view on victims is not always conform reality. It is important to know the real trafficking victim. A very important tool in discovering the true trafficking victim is the trafficking definition as is laid down in the Palermo Protocol. Article 3(a) of the Palermo Protocol deals with the definition of human trafficking (and by extension, the victim of human trafficking). Then Article 3(b) deals with the situation in which consent is given. This is a problematic component when looked at a victim: how can one truly be a victim when their consent was given? The meaning and the impact of consent is not entirely clear, which makes the impact of the consent on victimhood not entirely clear. It is therefore that the research question of this paper will be: how does consent influence the perception of the ideal victim with regards to human trafficking? The purpose of this paper is to set out a preliminary literature analysis. It will not be groundbreaking, yet it is the initiation of a new perception on victimhood, in light of the issue of consent, with regards to human trafficking. In order to come to a proper answer to this research question, several sub questions must be answered first. In the first Chapter the general subject, human trafficking, will be introduced, answering the question: what is human trafficking?
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Since “human trafficking” as such is enough to write a whole shelf of books, this Chapter will only go as far as the Palermo Protocol, it will be described how this legal document came about and what the main issues (discussions) were during the drafting procedure. The second Chapter will give a theoretic oversight in victimhood, answering the question: What are the characteristics of a (trafficking) victim? The first part will describe the “perfect victim” as society perceives this concept. The second part of this Chapter will describe the real trafficking victim. The differences between the perfect victim and the real victim are interesting to examine up close and will give a better insight in the problems which arise when victimhood needs to be determined. This paper will not focus on the consequences when a person is not perceived as a victim, either by society or by law enforcement. For the purpose of this paper it suffices to establish the characteristics of victimhood, which will form the framework for Chapter 3, but mostly for Chapter 4, because only when one truly understands how the victims of trafficking can be characterized, one can see how “consent” influences these characterizations. Chapter 3 will focus more specifically on the issue of consent as it can be found in the Palermo- definition, as well as the history, and how the negotiating parties came to the current text of Article 3(b), answering the question: what is the issue of consent. It will be set out in detail what difficulties have arisen in the general discussion on the meaning and scope of consent in the legal definition of trafficking. Many of the discussions regarding consent took place in discussions regarding prostitution. This Chapter will describe this discussion. The fourth Chapter will then explain exactly how consent has influence on how we look at the ideal trafficking victim, and it will explain the purpose (or non-purpose) of the addition of consent to the Palermo Protocol. In short, Chapter 4 will answer the research question of this paper. This paper will mostly rest upon desk study and a personal analysis of this study. In the first Chapter the legal definition of human trafficking will be given and explained. This will be fully based upon legal documents and dito authors. The second Chapter will set out what the literature considers to be victims, both ideal and real. Chapter 3 will be a literature review and personal assessment of the findings regarding the component of consent in the legal definition. My final conclusions in Chapter 4 will be based on my considerations of all the used literature, documents and analysis throughout this paper.
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CHAPTER 1. What is Human Trafficking?
This Chapter will describe and analyze the definition of human trafficking. In addition, it will also explain how the international community came to this definition as it is laid down in the Palermo Protocol. The first part will consist of an overview in the historical Conventions (from 1904 until 2000), which all led up to the UN Palermo Protocol in 2000. Paragraph 1.2 will focus on this Protocol. It will give an elaborate explanation of the definition and its implications.
1.1. The History (1904-1999)
Over the years several international legal documents have offered a definition regarding trafficking of human beings. As Anne Gallagher puts it: “[a] study of the definition of trafficking is, in many senses, also a study of the history of trafficking in international law”1. The first document dates back from 1904, the International Agreement for the Suppression of the White Slave Trade. As the name suggests, this is an Agreement between States, based on the will of States to comply. This Agreement is aimed at the protection of women and girls under age, preventing them to be forced into “an immoral life”, which implies prostitution. However, it was found that this Agreement did not cover enough ground, and for that reason, the document was re-negotiated in 1910 which led to the International Convention for the Suppression of the White Slave Traffic (which was amended by Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, and Amending the International Convention for the Suppression of the White Slave Traffic in 1949). The Convention, like the Agreement, aims at the protection against immoral purposes of women and girls under age. Articles 1 and 2 imply that this crime can both be committed in an interstate fashion, as well as an intrastate fashion, which means that the crime of trafficking did not require a border-crossing element. The Convention from 1910 is not supposed to completely replace the 1904 Agreement. This follows from the reading of the first Article of the International Convention to Suppress the Traffic in Women and Children from 1921. This Article reads: “the High Contracting Parties agree that, in the event of their not being already Parties to the Agreement of May 18, 1904, and the Convention of May 4, 1910, mentioned above, they will transmit with the least possible delay, their ratifications of, or adhesions to, those instruments in the manner laid down therein.” This acknowledges the
1 Gallagher 2010, p. 13. volenti non fit injuria? [ 6 ] F.F.C.C. Sweep
importance of both the 1904 Agreement and the 1910 Convention as an addition to the subsequent Convention, since membership to both is required. The 1921 Convention was the first Convention in which the crime at hand was labeled as “trafficking” for the first time: the International Convention to Suppress the Traffic in Women and Children. This Convention was aimed at completing the suppression of trafficking women and children, as was set out in the 1904 Agreement and the 1910 Convention. In the prior documents only women and girls under age were covered, while the 1921 Convention started to cover children of both sexes, which offered better protection to all children. In 1933 the International Convention for the Suppression of the Traffic in Women of Full Age came to be. As the name suggest, this Convention only aims at women and girls of full age. Interesting is that Article 1 implies an interstate element: the purpose is to be carried out in another country, including colonies. The 1933 Convention was again designed to complete the Agreement of 1904, and the 1910 and 1921 Conventions, but not to replace as can be read in the 1933 Convention: States must be member of these prior Conventions as well. The definitions given in these legal documents were more or less overlapping. In 1949 yet another Convention came to be: the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. It was stated in the first Article of this 1949 Convention that is was punishable for “any person who, to gratify the passions of another, procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; or exploits the prostitution of another person, even with the consent of that person”. All previous definitions came together in this Convention, and for the first time the implication of immorality was interchanged with the term “prostitution”. The scopes of these Conventions were all rather limited: all were aimed at vulnerable groups such as women and children, and aimed towards (forced) prostitution. Even though the Trans-Atlantic Slave Trade revolved around forced labor, none of the legal text thus far spoke of the trafficking with the purpose of forced labor. In addition, only women and children are protected, under these Conventions, while men can become victim of trafficking for immoral purposes, too. When forced labor is taken into account, men are likely to fall prey even more. In 1926 the Convention to Suppress the Slave Trade and Slavery came into force. As will be seen later, slavery and trafficking are much alike, yet still have plenty of differences. It is
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therefore that the Slavery Convention was not sufficient to deal with trafficking issues. Paragraph 1.2 will discuss the differences between slavery and human trafficking in more detail. The 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) prohibits all forms of traffic in women and exploitation of prostitution of women, in Article 6. The 1989 Convention on the Rights of the Child (CRC) prohibits the abduction of, the sale of or traffic in children for any purpose or in any form, in its Article 35. The 1999 Convention to Eliminate the Worst forms of Child Labor, a product of the ILO, prohibits the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances, under Article 3 (b). These agreements never really defined trafficking, and their scope (regarding the elimination of human trafficking) was rather limited2. All these definitions in these different legal text “mirrored the interests, priorities, and perspectives of their promoters.”3 It became necessary to create a more all-compassing legal document, which also offered protection to those who fell outside the scope of these latter Conventions, and would give a clear and universal definition. For this purpose the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons came to be in 2000 as a protocol of the 2000 Convention against Transnational Organized Crime.
1.2. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons
In 1998 it was decided to elaborate a Protocol to the UN Convention against Transnational Organized Crime, since there was growing evidence of the involvement of organized criminal groups in the trafficking of persons. The Protocol must therefore be seen in the light of the Convention, to which each State was required to become a party to, in order to become a party to the Protocol4. 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 must be seen as “the principal, legally binding global
2 Hyland 2001 (a), pp. 30, 31. 3 Gallagher 2010, p. 12. 4 Defeis 2004, p. 487. volenti non fit injuria? [ 8 ] F.F.C.C. Sweep
instrument to combat trafficking in persons” 5. The Palermo Protocol offers guidelines for the formulation of domestic law regarding human trafficking 6 : “the correlation between international and domestic law on the issue of trafficking is very high, underscoring the value of guidance on those issues or aspects”7, and “[t]he issue of consent affects the scope of domestic trafficking legislation”8. All relevant UN organs and agencies have adopted the core elements of this trafficking definition, as well as relevant intergovernmental organizations and relevant nongovernmental organizations9. Article 3 (a) of the Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. This long description can be summarized as the forced recruitment with the purpose of exploitation. This means that the recruitment must be forceful, or at least must include a component of impendence of the use of force. The term “exploitation” is also described within Article 3(a) of the Palermo Protocol as it “shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs”. While there is a difference in the impact of these different forms of exploitation, they are all equally reprehensible. Trafficking is not limited to sexual exploitation, in can also include other sectors, such as the agriculture, domestic servitude, maid service, sweatshops, begging, and marriage. The focus is not on the kind of forced labor the victim must perform, the Protocol aims at the “recruitment phase” and the “slavery phases”, since there is where the exploitation and the severe human rights violations take place10. The “action” (the recruitment), together with the “means” (the manner in which this recruitment was conducted) is the actus reus of trafficking. “For the purpose of [exploitation]” adds a mens rea requirement into the definition, meaning that the acts must
5 Conference of Parties to the United Nations Convention on Transnational Organized Crime, Decision 4/4, “Trafficking in Human Beings,” reproduced in Conference of Parties to the United Nations Convention on Transnational Organized Crime, “Report of the Conference of Parties to the United Nations Convention on Transnational Organized Crime on its fourth session, held in Vienna from 8 to 17 October 2008,” UN Doc. CTOC/COP/2008/19, Dec. 1, 2008. 6 Abramson 2003, p. 474. 7 UNODC 2013, p, 8. 8 Abramson 2003, p. 475. 9 Gallagher 2010, p. 42. 10 Hyland 2001 (a), p. 31. volenti non fit injuria? [ 9 ] F.F.C.C. Sweep
be carried out with the intent of exploitation (the actual manifestation of the exploitation is not a requirement), making it a crime of special intent, or a dolus specialis11. The definition given in this Protocol is gender-neutral, and following Article 3 (c) and (d) also age neutral as children are also protected under this Protocol. The threshold for children to be named victims of trafficking is lower than the one for adults set out in paragraph (a) of Article 3: “the recruitment, (..) of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a)”. Under (d) it is set out that by “child” is meant all persons under the age of 18. The given definition is a minimum provision. Exploitation must at least entail these crimes, but States are allowed to allocate different crimes to the term “exploitation” if they wish to do so. This means that the Palermo Protocol allows States some discretion. The fact that the actual meaning of the word “exploitation” is not given in the text, gives States even more leeway. The negotiations regarding the Palermo Protocol were difficult, to say the least. One of the reasons it was not easy was that it formed a platform to renegotiate the position of the international community on prostitution. Due to the link between prostitution (or it this context sexual exploitation) and human trafficking, and the lack of a solid trafficking definitions, all bets were off States, intergovernmental organizations and NGOs realized they were in the position to re-open the prostitution debate12, dividing their camps into the autonomist and the protectionist, as will be seen in Chapter 3 The Protocol proved to be the most controversial aspect of the entire Convention - negotiations. Still, for the first time, the International Community has agreed upon an international definition of trafficking13, which was rather groundbreaking. Not only prostitution was subject to debates, also the issue of consent caused for a very controversial negotiation, which ultimately led to a compromise14. Some States were of the opinion that only forced prostitution would be an appropriate focus of the Protocol, meaning that all acts to which the victim would have consented, would in fact not be seen as human trafficking. Other States took the position that all prostitution should be addressed, since, according to these States and certain NGOs, there should not be a distinction between forced and free prostitution15. As said, the final outcome, was a compromise.
11 UNODC 2014, pp. 24, 25. 12 Gallagher 2001, p. 984. 13 Defeis 2004, pp. 488, 490. 14 Doezema 2002, p. 20. 15 Defeis 2004, p. 488. volenti non fit injuria? [ 10 ] F.F.C.C. Sweep
The consent of the victim to (forced) prostitution (or any other form of sexual exploitation) is put down in Article 3 (b) of the Palermo Protocol. By the wording of this Article, the consent of a victim, prior to the victimization, is legally irrelevant, meaning that a victim’s consent to prostitution (or other forms of sexual exploitation) does not forestall a finding that the victim has nonetheless been trafficked16. The literal wording of the Protocol is that "[t]he consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) [defining human trafficking] of this Article shall be irrelevant where any of the means set forth in subparagraph (a) have been used." This, however, is only the tip of the consent-debate-iceberg: the issue of consent is open- ended, and Chapter 3 will be fully dedicated to the controversies regarding consent. The given definition of human trafficking, as is laid down in the Palermo Protocol, is a “modern concept” of trafficking, since it is a merger between the traditional view on trafficking (the enticement, and deception element, and the prostitution element) and the traditional view on slavery and forced labor (the exploitation and slavery-like practices). As was previously mentioned, slavery is a different crime than trafficking, yet not so very different. Slavery classically aims at the ownership of people: the person as such is objectified. This is the traditional, yet strictly de jure17 upheld definition of slavery: even though the practical application of slavery has changed since 1926, the definition has not18. The Explanatory Memorandum of this 1926 Slave Convention is not illuminating on the definition of slavery. A very helpful meaning of the definition is given in the Tang case19 where Chief Justice of the High Court of Australia explains his view on the difference between de jure slavery and de facto slavery. De jure slavery is what is understood by the traditional view on slavery, the so called “chattel slavery” when a person is recognized to be property of another person: the true ownership. Australia is one of the plentiful States in which legal ownership by one person over another person is impossible; the legal status, to which the definition refers to, did not exist. However, the definition speaks of the status or condition. The reference to condition is to cover de facto slavery: the aim was to secure the complete suppression of slavery20. The traditional form of slavery is broadened, since the condition is created in which a kind of power is exercised, which deprives a person of its freedom to such a degree this exercise of
16 Hoyle et al. 2011, p. 317. 17 Even though slavery is de jure prohibited in all States, de facto slavery still occurs. 18 Bravo 2007, pp. 262, 263. 19 R v Tang [2008] HCA 39, judgment of 28 August 2008. 20 idem, para. 25. volenti non fit injuria? [ 11 ] F.F.C.C. Sweep
powers is said to be the exercise of any or all of the powers attaching to the right of ownership21. In the Tang case it became evident that the perpetrator(s) had the capacity to use the victims and their labor and the fruits of their labor, in a very unrestricted manner, without having to compensate the victims for their labor and the fruits thereof22. De facto slavery allows for a more practical and modern day application, than de jure slavery. When it comes to the trafficking of humans, there is seldom an element of ownership in the same sense as there is when one speaks of chattel slavery. A strong distinction between slave (trade) and human trafficking is that the aim of the trafficking prohibition is not the exploitation: the exploitation as such is not criminalized. The aim of the trafficking prohibition is the (forced) recruitment, transportation, transfer, harboring or receipt of persons, with the purpose of exploitation. Meaning, that even if the actual exploitation were not to take place, one could still speak of human trafficking. The fact that human trafficking is placed under the Convention against Transnational Organized Crime clearly indicates that human trafficking is an issue of transnational organized crime, and is dealt with as such (requiring an international approach). However, due to the (slightly faint) presence of the 3Ps in the Palermo Protocol (Prevention, Protection, and Prosecution), trafficking is now also a human rights issue, and much also be dealt with as such23. The definition in the Palermo Protocol had to be useful, yet also had to differentiate the act of trafficking from prostitution and servitude24, which made it difficult. However, consensus was reached and it is this consensus that indicates the necessity towards an international effort to eliminate human trafficking 25 . This, however, did not eliminate the debates surrounding Article 3 of the Palermo Protocol.
21 idem, para. 25. 22 idem, para. 26. 23 Hyland 2001 (a), p. 30. 24 Potts 2003, p. 237. 25 Hyland 2001 (a), p. 31. volenti non fit injuria? [ 12 ] F.F.C.C. Sweep
CHAPTER 2. What are the Characteristics of a (Trafficking) Victim?
This Chapter will focus on victims: what is it that makes a victim a victim? The occurrence of a crime is not always enough to become a victim. Society has a certain view on the characteristics of a victim and when a person is perceived as a victim. Victims themselves have an opinion about their victim-status, too. It is important to set out what the term “victim” actually entails: what defines a victim? Only when that question is answered, it is time to add (other) complicating components (e.g. consent) to the equation. The first part of this Chapter will focus only on the perfect victim: when certain characteristics are allocated to a victim, this then becomes the so called “ideal victim”. The perfect trafficking victim will also be discussed, in Paragraph 2.1.2. Paragraph 2.2. will give a very good attempt at the description of a true trafficking victim. The last Paragraph of this Chapter will then explain the significance between the ideal victim and the true victim, and will draw a (short) conclusion.
2.1 The Ideal Victim
First, it will be described here what the literature considers to be the perfect, or ideal victim (2.1.1.). Then the concept of an “ideal trafficking victim” will be explained (2.1.2.). This is done through explaining theories, and by my own interpretation of these theories.
2.1.1. The Ideal Victim The term “victim” is derived from the Latin word “victima”, meaning sacrificed animal. This English term is not the only term referring to a sacrificed one: all other Western languages, as well as modern Arabic and Hebrew refer to a person affected by a crime as a sacrifice or sacrificed object/animal26. Opposed to the Japanese and Chinese language, which refer to the “harmed one”. According to Jan van Dijk, the first usage of the word victima for a human being was by John Calvin, a lawyer and religious reformer, in his work “On the Institutes of the Christian Religion” written in classical Latin and first published in 1536. Here he stated that we should see Jesus Christ as the ‘victima of our sins’. Victima, or victim, was then only used as a special name for Christ, and was hardly used for others.
26 Van Dijk 2009, pp. 1, 2. volenti non fit injuria? [ 13 ] F.F.C.C. Sweep
However, during the Renaissance, Christ was humanized. This allowed for the term “victim” to be used on “other” humans as well: the term “victim” could now be used in a more informal sense, too27. Jan van Dijk goes a bit further in his idea, in the sense that the term “victim” is not just a term, it is a concept: according to him, Jesus Christ embodied unconditional forgiveness, redemption, and passive suffering, and by using the victim label as a more general term for those affected by a crime, it is expected of these people to behave exactly like a victima. In other words, victims should be forgiving, passive and should suffer in silence, according to Van Dijk28. Jan van Dijk was inspired by Nils Christie’s “ideal victim”29. According to Christie the “ideal victim” as he calls it, is “a person or category of individuals who, when hit by crime, most readily is given the complete and legitimate status of being a victim by the social system”. The victim must convince society of her victimhood30. When a person resembles certain characteristics, this person is more likely to be treated as a victim. According to Christie, “sick, old or very young people are particularly well suited as ideal victims”31. Per definition women are seen as weaker and therefore easier victimized than people “on the margins of society” or men32. Children are the incarnation of innocence, and their victimization is always a terrible crime33. Other characteristics are that the victim must be weak, or vulnerable; carrying out a respectable project; and is not to be blamed. The offender is big and bad and unknown; and the victim must be powerful enough to make her case known without threatening strong countervailing vested interests34. The latter element creates a paradox: the victim was weak enough to be victimized, but has to be strong enough to claim the status of victimhood35. The perfect victim is basically an old lady walking the dog for her sick neighbor, in the middle of the day, and then gets pushed over and robbed by a big, and dangerous drug addict. She has never hurt anybody, did nothing she can be blamed for, and there was nothing she could have done against the unknown offender who preys on innocent grandmothers.
27 idem, p. 4. 28 idem, pp. 1-5, 8. 29 idem, p. 5. 30 Van Wijk 2013, p. 160. 31 Christie 1986, p. 19. 32 Moeller 1999, p. 107, see also: Davis et al. 2007, p. 22. 33 Van Wijk 2013, p. 162. 34 Christie 1986, p. 18. 35 idem, p. 21. volenti non fit injuria? [ 14 ] F.F.C.C. Sweep
The fact that the victim is committing a selfless act while she was victimized (walking the dog for her sick neighbor) is seen as the “carrying out a respectable project” as Christie calls it. However, it is unclear if all victims must carry out a selfless act at the time of the victimization before it is a respectable project, as he call it, or if it suffices if the victim is at least not carrying out a non-respectable act. But then what about neutral acts? This too relates to the whether the victim can be blamed for the victimization. There is only empathy when the victim is blameless36. People like to believe (be it conscious or sub-conscious) that the world is a just place: good things happen to good people and bad things happen to bad people; crime does not pay; good will always overcome evil, and we all live happily ever after. This is what children are taught through fables and fairytales37, and we continue to believe this. It must be said, this believe in a just world is often implied, meaning that people are not aware of this justice motive38. The just world is a “fundamental delusion”39. When bad things happen to good people, one of two scenarios are possible: the world is not just; or the good person was not as good after all. It is the just world theory that explains victim blaming40. The world is just and therefore people actively look for reasons why the victim deserved what had happened41: the idea that only bad things happen to bad people is reversed: since bad things have happened, the person must be a bad person. This is how the short-skirted woman who was raped while walking alone in the dark “had to have known better”. Even if the old lady in the previous example would have walked the dog at night (and the dog is not a big, frightening dog) it is arguable the old woman had to have known better. Opposed to the weak and innocent victim, the perpetrator is the embodiment of pure evil. According to Pemberton the idealization of a victim also can be seen “as a consequence” of the perception of the offender, meaning that in “[c]ases where the worthiness of victims is not called into question (..) the offender is perceived as pure evil”42. As Christie said: when the perpetrator is perfect, the victim is more likely to be perfect as well43. The relation between victim and offender is, in this way, evident: the victim is innocent and there is no justification for the offenders’ behavior. In other words, the offender
36 Ignatieff 1998, p. 24. 37 Pemberton 2011, p. 1. 38 Hafer et al. 2005, pp. 128 – 167. 39 Lerner 1980. 40 Pemberton 2011, p. 1. 41 Van Wijk 2013, p. 164. 42 Pemberton 2011, p.12. 43 Christie 1986, p. 25. volenti non fit injuria? [ 15 ] F.F.C.C. Sweep
intentionally inflicted harm: he is evil by nature and he likes to cause harm for the mere reason that it gives him pleasure. In this way the victim could be no other than blameless, innocent, and good. The fact that the perpetrator has to be “unknown” is not always a clear given. Christie argued that there are two types of unknown perpetrators: the offender who has no personal relationship with the victim; and the offender who is unknown to the rest of society 44. Christie argues that we need to dehumanize the perpetrator: the more foreign the better: he has to come from far away. However, Christie does not really explain how the uncle molesting the little nephew in his home is less despicable than a stranger attacking the same boy on the playground (known and close vs. unknown and foreign perpetrator). How a victim is framed, is important to the way the victims see themselves. When victims are stereotyped as being weak, vulnerable, helpless, and passive, while society requires people (in general) to be strong and independent individuals, then victims will refuse to “situate themselves in terms of victimhood”45. When victims do not claim their status, law enforcement is less likely to offer them the protection and assistance they otherwise would have gotten. I would therefore say that it is conceivable that the “ideal victim” is not all that ideal.
2.1.2. The Ideal Trafficking Victim This part of the Chapter will go deeper into the characteristics of a true trafficking victim, to be called the “iconic victim”46. First this iconic victim will be explained and described. Since the iconic victim is very theoretically straight forward, it is interesting to put these characteristics next to the characteristics of the ideal smuggling person. The distinction between these two will show the importance of framing a definition, and how important gender is in both respective definitions.
The iconic victim Jayashri Srikantiah describes in her work “Perfect Victims and Real Survivors: The Iconic Victims in Domestic Human Trafficking Law” the characteristics of the true trafficking victim. The trafficked person is: female; trafficked for sex; a good witness for law enforcement; cooperating with law enforcement in the investigation; and waiting passively to be rescued from the perpetrator by law enforcement.
44 idem, pp. 19, 26. 45 Spalek 2008, p. 21. 46 Srikantiah 2007, p. 157 - 211. volenti non fit injuria? [ 16 ] F.F.C.C. Sweep
The victim is fully blameless, since the victim is forced, defrauded, or coerced into trafficking for forced sex (so not forced labor(!)), and once the victim is trafficked, she will stay passive: law enforcement prefers rescue over escape. This iconic victim concept builds on the stereotype that these trafficked woman are meek and helpless, and come from a “repressive male dominant” culture47. The ideal trafficking victim, in a sense, is the ideal woman, and the ideal woman can be described as “chaste, sensible, responsible, cautious, [and] dependent”48. These characteristics are not based on how society sees a victim, but rather on how law enforcement can build the best (legal) case against the perpetrator. From the point of view of the prosecution, painting the picture of a meek, fragile and innocent victim, makes it easier to portrait the perpetrators as extremely evil, who will deserve a severe punishment49. Innocent and blameless victims will ease the job for the prosecution, since “[c]haracterizing trafficking victims as completely blameless allows full blame for the trafficking enterprise to be placed on traffickers”50. Emma Jeanes wrote in 2007 about the credibility of female witnesses. Her main conclusion was that women had to appear as someone who was “intimidated and disempowered”, and who was “unable to vocalize her concerns”, to be seen as a credible victim, repeating that a victim should be meek, fragile and innocent. When such victims or witnesses appears to be confident and assertive (and not meek or passive in any way) the credibility of their testimony becomes questionable51. The idea that victims must be passive, is not that uncommon. Psychiatrist Jose Hidalgo points out that “[e]ven where escape is physically possible, [trafficking] victims may be psychologically incapable of escape due to their constant terror” 52. The idea is that the victim remains passive until she is rescued, then her will power and free will will be fully restored. When this happens, the victim will choose out of free will that she will assist law enforcement to the fullest of her abilities. However, when the victim chooses not to cooperate with law enforcement, for whatever imaginable (and humane) reason, her status of victimhood suddenly becomes questionable.
47 Srikantiah 2007, p. 202. 48 Larcombe 2002, p. 133. 49 Srikantiah 2007, pp. 187, 195, see also: Pemberton, 2011. 50 idem, pp. 195, 196. 51 Jeanes 2007, p. 561. 52 Sadruddin 2005, p. 405. volenti non fit injuria? [ 17 ] F.F.C.C. Sweep
Kim Stevenson wrote an article on how victims of sex crimes should behave53. The way she describes the distinction between the innocence of the victim and the evilness of the perpetrator, finds great overlap with the theory on the iconic trafficking victim. Stevenson says that, due to the expectation society has of women, it is up to the victim “to show that her behavior and conduct were absolutely unimpeachable, and unequivocally that expected of a victim”54. It is important for the victims “to appear genuinely innocent and modest in terms of both looks and behavior”55. If women were known to have been working in the sex industry prior to the trafficking, the blamelessness and innocence would be affected, and their victim status would not be recognized56. Subsequently, Stephen Edwards points out: “the common law has taken the general view that prostitute women, ipso facto, are unlikely to tell the truth”57. In conclusion, I would say: the ideal trafficking victim is not only female and trafficked for sex, she is also meek, intimidated, modest, dependent, fragile, genuine, and innocent. Then, when she is taken away from the strong hold of her traffickers, after she has waited passively to be rescued, she will choose to help law enforcement to the best of her abilities. In other words, the trafficking victim must be a perfect person, who then was trafficked. The question then remains is, whether or not only the ideal victim can be seen as a genuine victim and vice versa58? If that would be the case, a large amount of trafficked persons, who are not perfect, but are victims, are not perceived as victims, such as victims trafficked to perform forced labor, or men, or those who appear not as innocent, and blameless as one wishes them to be. So maybe, this iconic victims is also not really ideal?
The iconic victim and smuggling The definition of the smuggling of a person has different characteristics than the definition of the trafficking of a person, yet the distinction is not always as clear as one would want it to be 59 . It is “[t]he iconic victim concept” which “distances trafficking victims from the “illegal alien” stereotype”60. It is generally accepted that people who break the law will not
53 Stevenson 2000, pp. 343 – 366. 54 idem, p. 349. 55 idem, p. 359. 56 idem, p. 360. 57 Edwards 1996, 351. 58 Larcombe 2002, p. 137. 59 Chapkis 2003, p. 930. 60 Srikantiah 2007, pp. 187, 188, see also: Johnson 1996-1997, pp. 263, 276-279. volenti non fit injuria? [ 18 ] F.F.C.C. Sweep
be seen, nor treated, as victims, and that “[p]ersons smuggled are violating the law”61. Ergo, smuggled persons will not be seen as victims. On paper the differences between a trafficking victim and a smuggled person (mind the terminology “victim” and “person” used in respective Protocols) are obvious, however in practice the differences are not as clear and the lines are blurred. Interesting here is to look at the wording of the Protocol against the Smuggling of Migrants by Land, Sea and Air (2000), or the Smuggling Protocol. The stereotypical “smuggled person” is perceived as male, who made an informed decision to cross the border looking for a better life(-standard). The stereotypical smuggled person is male, while the iconic trafficking victim is female. Richard Bilsborrow and Hania Zlotnik explain this as the phenomenon that men can migrate on their own initiative for economic reasons, whereas women migrate merely as passive companions62. This implies that women cannot migrate on their own initiative, which makes trafficking more likely. The “typical” smuggled person will have had “atmospheric “push” factors, ranging from dire economic conditions and political instability to strained family circumstances”63. The main “push-factor” the trafficked victim have had, was the trafficker: the main reason the victim crosses borders, is because of the forceful, fraudulent, or coercive means used by the traffickers. If there were any push-factors, these would have been neutralized by this executed force64. The need for the victim to be blameless, passive, and innocent, makes the theoretic distinction with smuggled persons so much easier. While the iconic victim is only (passively) trafficked for forced sex, a smuggled person took it upon himself to cross borders to pursue better economic opportunities. The smuggled person becomes an illegal alien, who is actively and willingly breaking the law, while “the iconic victim has been robbed by the trafficker of all free will”, and will remain blameless, and innocent65. Therefore, in theory, (iconic) trafficked victims could not differ more from smuggled persons, even if they tried. However, in practice, their distinction is not as clear: the smuggled, nor the trafficked are perfect, and there is much overlap, as will be seen later in Chapter 3.
61 Human Smuggling & Trafficking Ctr., Fact Sheet 2005. 62 Bilsborrow et al. 1992, pp. 138, 140. 63 Chacón 2006, p.2977. 64 Srikantiah 2007, pp. 192, 194. 65 idem, p. 195. volenti non fit injuria? [ 19 ] F.F.C.C. Sweep
2.2. The Real Victim
This Paragraph will look at the true victims of trafficking. The definitions of both the ideal victim and the iconic victim will be put next to numbers estimated by the International Labor Organization (ILO), giving a more realistic view on the victims of human trafficking. Other literature will be analyzed as well, in the search to the true trafficking victim. Not only will this Paragraph describe how these victims should be perceived, this Paragraph will also compare trafficking victims with the victims of domestic abuse, and so called battered wives, since it will be seen that there are many resemblances between the two types of victims. Victims of (severe) domestic abuse can suffer from “the battered woman syndrome”, as is theorized by Lenore Walker66. This term is gender-biased, since also men can become victim of domestic abuse and can suffer from the same symptoms. Therefore, for the purpose of this paper, it will be referred to as “battered person” or “battered person syndrome (BPS)”. According to Walker, BPS is a sub category of Post-Traumatic Stress Disorder (PTSD). BPS “consists of the pattern of signs which occur after a [victim] has been physically, sexually, and/or psychologically abused in an intimate relationship, when the partner (..) exerted power and control over the [victim] to coerce [the victim] into doing whatever [the offender] wanted without regard for [the victim’s] rights or feelings”67. Batterers are known to use isolation, sexual intimidation or abuse, degradation, unpredictability, and threads of more violence to assert their dominance/ensure submission68, which can be argued to be methods used by traffickers to control their victims. Especially if looked at the passiveness and in terms of loyalty towards the abuser, literature regarding battered persons can be useful in giving insight in the passiveness and loyalty of trafficking victims. The Tang case is used in the first Chapter to explain the term ‘slavery’. This case however, is also a good method to illustrate the complexity of a real trafficking victim. 5 women from Thailand worked in the brothel of Ms. Tang as sex workers. In Thailand they had voluntarily entered into an agreement with a broker, and owed about AUD 40.000. Ms. Tang then obtained these contracts (the victims were now in debt by Ms. Tang). They were trafficked to Australia with illegally obtained visas, and they knew they were going to work in a brothel. The victims had to work 6 days for four to six months, without pay. If they choose to work on their free day, they were allowed to keep that money. After their debt was paid, they were free to leave again. In the meantime, the women were not held under
66 Walker 2009. 67 idem, pp. 41, 42. 68 idem, p. 65. volenti non fit injuria? [ 20 ] F.F.C.C. Sweep
‘lock and key’, yet still they did not escape: they had little to no money, their English was very limited, their passports were retained, and due to their illegally obtained visas, they feared the (immigration) authorities, and of course they worked long hours69. As the Tang case clearly shows, trafficking victims can rarely be identified as fragile, blameless, innocent and good, forgiving, passive, or independent from the offender. Yet then how can they be characterized? In order to compare the iconic victims to the true victims, this Paragraph will give details of true victims based on the iconic characteristics: sexual exploitation; gender (female); vulnerability 70 ; passivity; blamelessness; and law enforcement.
Sexual exploitation The International Labor Organization has estimated 6% 18,50% in its 2012 report “ILO global estimate of forced 29% 71 15,20% labor: results and methodology” that about 20.9 74% 15% million people worldwide are victims of forced labor. 94% 66,30% In total, 9.1 million victims (44% of the total 20.9 56% 19% million) were trafficked (both interstate and 7% intrastate) while the majority, 11.8 million (56%) remained in the original place of residence and
72 were not moved/trafficked . None Internal Cross borders If looked Figure 1 Global estimate by migration of the victims of forced labor at the 22% specific types of exploitation, it shows that a vast
10% mayority of victims of sexual exploitation have 68% been trafficked (93%), while that number is much lower regarding the forced labor victims (33.7%). (See figure 1) Forced sexual exploitation According to to the ILO report, this indicates that State-imposed forced labor “movement can be an important vulnerability factor Forced labor exploitation
Figure 2 Global estimate by form of forced labor for certain groups of workers, but not for others”.
69 R v Tang [2008] HCA 39, judgment of 28 August 2008, paras. 15-18. 70 The issue of vulnerability will also be discussed in detail in Chapter 3. 71 All numbers are rounded. 72 ILO 2012, pp. 16, 17. volenti non fit injuria? [ 21 ] F.F.C.C. Sweep
While these numbers are focused on exploitation, they are insightful in the characteristics of the victims, and they will be further analyzed for the purpose of this paper. Of the total of 20.9 million victims, 4.5 million (22%) are victims of forced sexual exploitation. 2.2 million (10%) are so called “state-imposed forms of forced labor exploitation”, for example forced labor in a prison and the remaining 14.2 million (68%) are victims of forced labor exploitation73. (See figure 2). The iconic trafficking victim requires the victim to be trafficked for the purpose of sexual exploitation. However, the numbers show that a majority of exploited people, suffer from forced labor exploitation. According to David Feingold can this be explained by “the simple fact that the worldwide market for labor is far greater than that for sex: labor trafficking is probably more widespread than sex trafficking”74. When victimhood is limited to only the victims of sexual exploitation, those victimized by forced labor exploitation will be excluded, which would leave a large amount of victims as unrecognized.
Gender Another element of the iconic victim characterization is the gender of the victim: only 40% females are seen as iconic trafficking victims. 58% 55% 98% According to ILO estimates it is true that a majority 60% 42% 45% of victims of exploitation is female: in total 11.4 2% million victims (55%) are female, compared to 9.5 million men and boys (45%). Especially regarding sexual exploitation, the vast majority is female (98% are female). Yet, if looked at the forced labor Male Female exploitation a 60% are male75. (see figure 3) According to the iconic victim, only women and Figure 3 Global estimate by sex of victims of forced labor girls can become victims of human trafficking. This is easily explained by the fact that regarding the iconic trafficking victim, only sexual exploitation is taken into account, since in this limited scope only 2% (91.000) is male, compared to 4.5 million female victims, globally. However, when all forms of exploitation are taken into account, the total amount of male victims is almost a hundredfold larger,
73 ILO 2012, p. 13. 74 Feingold 2005, p. 26. 75 ILO 2012, p. 14. volenti non fit injuria? [ 22 ] F.F.C.C. Sweep
which, as said before, constitutes 45% of all victims. That is quite a large number to simply disregard: men are victims of human trafficking too.
Vulnerability The ideal victim must be vulnerable. This vulnerability is implied in the iconic trafficking victim, since this victim must be female. Vulnerability is often explained as frailelty, which calls upon images of old ladies 76 . However, it is almost impossible to compare the level of vulnerability between men and women, especially in the relation to the risks of becoming a victim, since much crimes remain invisible: men often do not indentify themselves as victims, due to their Figure 4 Green's Axis of Vulnerability masculinity77. Research measures vulnerability as result of who is most at risk of becoming a victim, and on whom this crime would have the most impact. This is dispicted in Green’s axis of vulnerability. (see figure 4) According to Green the relationship between risk and harm will presumely determine who is the most vulnerable78. According to Corrin, women who reside in communities dominated by mysogony and inadequate protection of human rights are most at risk to be trafficked79. Nevertheless, evidence shows that in general young, economically marginal, ethnic minority males are most likely to be victimized, while they are the least likely population to be seen as vulnerable80. The issue of vulnerability will be explained in the context of consent, in Chapter 3.
Passivity According to the theory of the iconic trafficking victims, a victim must wait passively until she is rescued by law enforcement. It has deemed to be difficult (almost impossible) for trafficking victims to escape, even when they are not held under “lock and key”.
76 Walklate 2011, p. 181, see also: Sparks 1982. 77 Green 2007, pp. 98, 99. 78 idem, p. 92, see also: Walklate 2011, p. 182. 79 Corrin 2005, pp. 543 – 560. 80 Green 2007, p. 92, see also: Walklate 2011, p. 182. volenti non fit injuria? [ 23 ] F.F.C.C. Sweep
Kevin Bales observes that “[w]hen slaves begin to accept their role and identify with their master, constant physical bondage becomes unnecessary”81. There are sometimes more practical reasons why victims do not escape: many victims work long hours, every day of the week, which leaves them too exhausted to plan an escape. Jennifer Dunn describes that battered women have a “learned helplessness”, which renders them passive82. According to Walker a victim of domestic abuse “[s]uffers from guilt, yet denies the terror and anger she feels” 83. In some cases staying with the perpetrator(s) would be safer than to face the consequences of a failed escape attempt 84. In addition: “many traffickers know their victims, they recruit them so they know that their victim has a younger sister (..) you know, ‘‘do what you’re told or your sister’s next”85. A staying victim can be associated with masochism (Freud’s (mis)conception that a woman receives some sort of sexual gratification from the violence), weakness, or mental unstableness86. However, one should not generalize: there is not one profile on how the trafficking makes a victim react87. Because, in other cases, the abuse has reached the level in which she “would rather leave and risk him coming after me, and killing me, than stay”88, and victims are given the opportunity to escape: an unlocked door and no perpetrators in sight. There are victims who are rescued by law enforcement, however in the research conducted by Hoyle et al. in 2011, it became apparent that this rescuing is not always perceives as fully positive by the victims. Victims are often found during a police raid, when the aim of law enforcement “is to catch the trafficker for the crime that has happened”, the victim is of a lesser priority. One of the interviewees puts it as following: “[the police] say, ‘we went in and rescued these women’ like they’re sort of sitting there waiting to be rescued. I think it doesn’t really reflect on the situation. I think it’s more about expanding women’s choices or giving women choices really”89. One must not overlook the strength, endurance, efforts, and other positive responses to the situation by the victims90.
81 Bales 2002, pp. 80, 86. 82 Dunn 2005, p. 5. 83 Walker 1979, p. 31. 84 Davies et al. 1998, p. 73. 85 Hoyle et al. 2011, p. 323. 86 Wilson 2005, pp. 15, 16. 87 See: Wilson 2005, p. 25. 88 Hoyle et al. 2011 p. 323. 89 idem, pp. 324, 325. 90 See: Wilson 2005, p. 25. volenti non fit injuria? [ 24 ] F.F.C.C. Sweep
Blamelessness Feingold is of the opinion that “[t]rafficking is often migration gone terribly wrong” 91 . Indicating that the victim agrees to the physical movement, be it internal or cross-border, yet the ultimate exploitation was unforeseen. In the research conducted by Hoyle et al. they recorded responses from victims, such as: “I was told I would work as a nanny, not as a prostitute.” Or: “I had choice [but] I didn’t realize why [my trafficker] was bringing me here (..)”92. These victims are easily persuaded in joining the traffickers, and to “leave their homes and families” all with “the promise of a brighter future”: they are told a better future awaits them, where they will be educated and have decent work93. For them it is “an opportunity to get away from the poverty, violence, civil unrest, family debts or breakdown”94. This indicates that victims are not all passively victimized, or in Christie’s words “were carrying out a respectable project”95. In addition to society blaming the victim, a victim can also experience self-blame. If looked at domestic abuse victims, they have a lowered self-esteem, and with this lower self-image comes self-blame. If the situation continues, victims may display “submissiveness, passivity, docility, dependency and an inability to act, make decisions or even think”96. This is their way to survive. Blamelessness is an element which is closely related to the issue of consent, which will be explained much more in detail in Chapter 3.
Law enforcement The cooperation which is required by law enforcement, in order to be classified as an iconic trafficking victims, is a bit optimistic in my opinion. Demanding all victims to cooperate with law enforcement, denies the emotional state victims often find themselves in when they have only recently escaped their traffickers. Due to the complex situation the trafficking victims find themselves, it is very difficult for the victim to take immediate distance from the perpetrator in an unconditional fashion: the victim cannot reveal his/her story right away, but needs time to emotionally separate from the perpetrator97, since victims, both escaped or recued remain afraid, or are otherwise hesitant to cooperate with law enforcement. For example, in the case when victims reside in
91 Feingold 2005, p.32. 92 Hoyle et al. 2011, p.319. 93 idem, p.319, also see: Flamm 2003, pp. 34-36. 94 idem, p. 319. 95 Christie 1986, p. 18. 96 Wilson 2005, pp. 23, 24. 97 Rijken et al. 2013, p. 25. volenti non fit injuria? [ 25 ] F.F.C.C. Sweep
a country illegally and are aware of their illegal status, they are often also aware that they might end up in prison (or so they have been told by the perpetrator, as threads), then the victims are less likely to trust any organization, even (or: especially) law enforcement. In addition, it is likely some victims do not identify themselves as victims, and therefore refuse to go to the police, while others do not see what the police can do for them, and do not see the benefits of reporting the crime to the police98. And sometimes law enforcement does not recognize (criminal) acts as acts of human trafficking, resulting in the fact that no (specific, yet needed) help or assistance is offered99. Therefore, in my opinion, making the cooperation with law enforcement a requirement is too simplistic. It is the circumstances, personality and the resouces of a victim which influence how much harm the crime will inflict 100 , and whether the victim is resilient enough to cooperate with law enforcement right away. Some victims are extremely resilient, and are more likeley to immediately coopereate with law enforcement, while others are less resilient, and will shy away from law enforcement. Gilligan describes resilience as: “the capacity to do well despite adverse experience” 101 . Identical to vulnerability, resillience is linked to risk102, as can be seen in Green’s axis of resilience. (see figure 5)
In my opnion, it is unrealistic to demand from all Figure 5 Green's Axis of Resilience victims to be “a good witness” and to cooperate fully with law enforcement with the investigation, or to make it a requirement to be seen as a real victim, some victims are just too afraid, just too frail. It would be ironic if these most affected victims would in fact not be seen as victims.
2.3. Conclusion
The ideal victim has a historical and social background. Sick, or old, or young, or generally weak people make the best victims, women too, still, men can be victims too; they only must be weak and vulnerable. Society must believe in a just world. In where, when you are
98 Rijken et al. 2013, p. 31. 99 See: Boermans et al. 2012; Fairwork 2012; Rijken 2012, pp. 89‐99; Rijken 2011; Boermans 2009; Goderie et al. 2009; NRM 2009; Hoyle et al. 2000, pp. 14-36. 100 Green 2007, p. 93. 101 Gilligan 2000, pp. 37 – 47. 102 Walklate 2011, p. 187. volenti non fit injuria? [ 26 ] F.F.C.C. Sweep
a good person, no bad things will happen to you. It is a psychological defense mechanism against the paralyzing fear that violence and victimization could be random. Compared to this general ideal victim, the concept of an iconic trafficking victim is extremely narrow. All males, (even young boys) are automatically excluded, same as all victims trafficked for purposes other than the sex industry, or the victims who did not remain passive, or decide not to cooperate with law enforcement, out of fear of reprisals, or due to the fact the victims still feels to be under the (psychological) control of the traffickers103. Such an exclusive definition will mean that too many victims will not receive the assistance and protection they would otherwise have received, as was seen in the numbers presented in Paragraph 2.2. However, the concept of the iconic victim does serve a purpose: the theory of the iconic victim is necessary for law enforcement, rather than how society perceives the victim, in order to prosecute the traffickers to the full extent of the law: when there is an indisputable victim, there must also be an indisputable offender, who is relatively easy to prosecute, which ultimately is the main goal of law enforcement agencies. The iconic victim’s characterization also clarifies the aforementioned differences between trafficking and smuggling. The more iconic the trafficking victim is, the more considerable the difference is with a smuggled person. Trafficking victims can expect sympathy, assistance and protection, while smuggled people are seen as law breakers, and illegal aliens, who are not deserving sympathy, let alone assistance or protection. If only the differences in practice are as clear as the differences on paper. Even though the iconic trafficking victim has a more narrow perspective than the general ideal victim, there still is some overlap in the two concepts. Both are based on vulnerability and passiveness. Also both types of victims should be free from blame: for the ideal victim victim-blaming is bases on society’s need to believe in a just world, yet a victim has to be truly innocent; for the iconic victim the blaming of the victim will prevent law enforcement to attribute the full crime on the perpetrator. The difference in perspective, regarding the generally ideal victim and the iconic trafficking victim is based on the purpose of the victimhood. The ideal victim is placed in a social context, while the iconic victim is placed in a law enforcement context. It is not fully clear if the iconic victim must be seen completely separate from the ideal victim, or if the iconic victim is a specialization of the ideal victim. Due to the very narrow
103 Srikantiah 2007, p. 199. volenti non fit injuria? [ 27 ] F.F.C.C. Sweep
perspective of the iconic victim, one could argue that all iconic victims are perfect victims, yet not all ideal victims of human trafficking will be iconic victims. Nevertheless, both theories are based on a perfect world, with a perfect victim and a perfect perpetrator. Realty strays away from this ideal victim image. In honesty, it has deemed to be difficult to portray a uniform image a true trafficking victim: no two victims are alike. One certain conclusion that can be drawn is: “[v]ictims are not perfectly innocent and perpetrators are not perfectly evil104”. All one can do is to set out the known data, and compare that to the definitions of both the ideal and the iconic victim, and see how the iconic victim does not fully resemble the painted image of a trafficking victim. In my opinion, it is too short sighted to exclude all men and all victims of forced labor exploitation from the victim-definition, since a rather large portion of the total trafficking victims is male, and is trafficked for the purpose of forced labor exploitation, and therefore should be treated as any other victim. The same could be said for victims who are not initially seen as vulnerable, or who deem not to be resilient enough to support law enforcement agencies in their criminal prosecution of the perpetrators. The perception on vulnerability and resilience are both difficult to define, therefore it is difficult to require from all victims to be vulnerable, or resilient. Blamelessness is closely related to passivity, which gives some sort of paradox. On one hand victims are required to be saved by law enforcement, rather than to escape. However, when victims have the (physical) possibility to escape, yet stay, they are negatively reviewed, and even blamed. It is a thin line, which makes it very difficult for a person to be the perfect victim.
104 Gruber 2004, pp. 438, 439. volenti non fit injuria? [ 28 ] F.F.C.C. Sweep
CHAPTER 3. What is the Issue of Consent?
This Chapter will focus on the problems arising with the component of consent with regards to human trafficking. What does the Palermo Protocol say about consent, and what does it mean? Is there an issue, and if so, what is that issue? This Chapter will answer these questions, in order to see how this issue of consent influences the perception of the victims of human trafficking. The first part (3.1) will go more into detail in what consent means, in a legal context, and how consent relates to the trafficking definition: the end product as it seems. Paragraph 3.2 will focus on how the negotiating parties came to the wording of Article 3 (b) of the Palermo Protocol, and on the discussion surrounding the addition of the component of consent to Article 3: what were the main issues during the negotiations? Paragraph 3.3 will give a conclusion of this Chapter. Chapter 4 will then apply the issue of consent on the perception of victimhood.
3.1 What is Consent?
Consent means: “to give permission for something to happen” 105. Within a criminal law proceeding, consent can be an exculpatory component. This “happens when consent is used as a defense of justification to negate a prima facie criminal violation”106. In my opinion it is imperative to understand the meaning and the scope of consent within a criminal law perspective, before we can look at consent in a human trafficking perspective. Therefore, this Paragraph will first look at consent as a concept in general (criminal law), and will then focus on consent with regards to the trafficking definition.
3.1.1. What is Consent in a (general) Criminal Law Perspective? Consent has been a component within criminal law ever since Roman law was the norm. It offers exceptions to the rule, which means that not all acts which are “considered to be harmful to society as a whole” are crimes107. Not all given consent will exempt the perpetrator of legal prosecution, since harm is more and more considered to be a societal event, and therefore “the individual lost the power to consent to what the state regarded as harm to itself”108.
105 www.oxforddictionaries.com. 106 Bergelson 2007, p. 50. 107 UNODC 2014, p. 21. volenti non fit injuria? [ 29 ] F.F.C.C. Sweep
Consent is based on the idea of ‘personal autonomy’: individuals are able to make decisions that others would not make, even when these decisions are unwise (in the eyes of others), high risk, or will (most definitely) end in harm. Personal autonomy recognizes an individual’s ability to act in his/her own best interest, but only for as long as such decisions are made rational and voluntary109. In general it is accepted that this consent must be both informed (rational), and free (voluntary). Additionally, the consent of certain groups of people is per definition disregarded, such as consent given by children, or the mentally disabled. So called ‘age of consent”-laws draw the abstract lines between meaningful consent and disregarded consent within domestic laws, especially in matters as arm enlistment, sexual relations, and marriage110. Since consent must be given voluntarily, all consent that is obtained through fraudulent means will therefore be invalid. Yet not all fraudulent means are as obvious to detect. Some are obvious, such as coercion or fraud, while others are a little more complex to detect, such as the abuse of a vulnerable position. Literature states that it is arguable that a person can be coerced into giving consent due to economic reasons, yet, that these ‘economic coercion of circumstances’ would be internal motives to consent, which would not invalidate the given consent111. As long as the person to whom the consent is given is not responsible for the deteriorated economic situation, or is refusing to give a reasonable alternative, the given consent would be legitimate, or so is argued112. In my opinion, this is too generalized. I agree in this context with Vera Bergelson, who states that the degree of vulnerability and the harmfulness of the act correlates with how much weight must be given to the consent113. As long as the consent is entirely internalized (not affected by external factors), the given consent is legally relevant. Within all the mayor legal systems it has been established that even when consent was given freely and informed, it can be abrogated on the basis of public interest, public order, or morality: often in cases of the exploitation of prostitution, domestic law allows in some States for the nullification of the given consent, often on grounds of ‘human dignity’114.
108 Bergelson 2007, pp. 9, 11. 109 UNODC 2014, p. 23. 110 idem, p. 22. 111 Beyleveld et al. 2007, p. 127. 112 Jones 2012, pp. 508-509, see also: Nozick 1974. 113 Bergelson 2007, p. 31. 114 UNODC 2014, pp. 22, 23. volenti non fit injuria? [ 30 ] F.F.C.C. Sweep
3.1.2. What is Consent in the Trafficking Definition? The initial focus of anti-trafficking laws was the prevention of the cross-border movement of women and girls for the purpose of sexual exploitation, and consent was given an important role within the trafficking documents. Article 3 of the Palermo Protocol defines trafficking in persons. In short it consists of three elements: an act; a means (by which the action is achieved); and a purpose (of the action), which is specified as the exploitation of a person. Consent is not part of the trafficking definition, which is limited to sub a. Consent is dealt with in Article 3(b) as an elaboration on the given definition. Article 3 (b) of the Palermo Protocol reads that “[t]he consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used”115. In short, the consent must be given for the (intended) exploitation, such as the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs. For the consent to be irrelevant, the traffickers should have used means such as the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of the exploitation, ex Article 3 (a)). Children are given a special status within the trafficking Protocol. For example, the element of means is not required to establish child trafficking. In addition, children are in general recognized as being unable, or unfit, to give meaningful consent to certain events, due to their vulnerability and an imminent power imbalance. It is therefore that children are assumed to never give meaningful consent116. This also applies to consent given in the context of (child) trafficking. According to the Toolkit to Combat Trafficking in Persons, consent is only relevant before the law, when it is given for all three the elements, and cannot be negated by the requirements of Article 3(b). Consent which is given for only one element cannot be interpreted as consent given for all the elements of trafficking. When consent is only given for one particular element, it must be concluded that a criminal offence has taken place117. I
115 Emphasis added. 116 UNODC 2008, pp. 5-7, see also: UNODC 2014, p. 21. 117 idem, pp. 5-7. volenti non fit injuria? [ 31 ] F.F.C.C. Sweep
wish to state here that only the presence of consent has affect: the lack of consent does not influence the crime of trafficking in persons118. In conclusion, I would say that one reading of Article 3 (b) in the context of Article 3 (a) would be that if a victim of human trafficking consents to the intended exploitation, yet this consent was obtained through any of the aforementioned improper means, this consent will be neutralized. Another, more obvious reading would be that Article 3 (b) in its whole is redundant. Consent is irrelevant when a means has been used. Yet in Article 3 (a) it was already established that a means should have been used for it to even be human trafficking, which would make all consent given, in this context irrelevant, and can therefore not be used by the perpetrator as an argument to be absolved of criminal responsibility before the court of law119. Could it really be this easy? If it were, why put it in Article 3? If it were, why all the debates? The aim of this paper is to link consent with the perception of victimhood; therefore, we must look deeper.
3.2 What is the problem with consent in the trafficking definition
This Paragraph will go deeper into the problems of consent with regards to the trafficking definition. The first part will go into the history: how exactly did they get to Article 3 (b) of the Palermo Protocol? The second part will then set out the problems and their implications of the consent component.
3.2.1. The history of consent in the Trafficking definition As said, consent has been a component of criminal law since the 6th Century Roman Law120 and came only into the picture of human trafficking in the 1910 International Convention for the Suppression of the White Slave Traffic, where Article 1 settled that regardless of the fact the victim gave consent, or was forced by compulsion, this form of “white slave trade” is equally punishable. The consent component could not be found in the 1921 Convention, but then again was found in the 1933 Convention, using the same wording as the 1910 Convention, in its definition. The wording “even with her consent” indicate that even if the victim consents to the act, this will never exclude the criminal liability of the perpetrator, nor the existence or occurrence of human trafficking: consent is always disregarded. The
118 UNODC 2014, p. 25. 119 UNODC 2008, pp. 5-7. 120 UNODC 2014, p. 21. volenti non fit injuria? [ 32 ] F.F.C.C. Sweep
1949 Convention made the provision gender neutral, yet the intent remained the same: “the consent of that person” would never be valid when the aim of the crime was the exploitation for purposes of prostitution, according to is Article 1. The absolute disregard of consent is closely embedded in the focus on prostitution: no person can rightfully consent to prostitution, or “immoral purposes” as the 1933 Convention wishes to call it. During the negotiations of the Palermo Protocol it became clear that here had been a paradigm shift in the perception of prostitution: it was not obvious that all given consent regarding prostitution could be rendered irrelevant without any nuances. Even though the Palermo Protocol is gender neutral, most debates evolved around women and children: the initial aim was only women and children, and was only later changed to a gender neutral approach. This has led to the creation of a (yet another) forum for the prostitution-debate to be re-opened 121 . In Paragraph 3.2.2. it will be see how the prostitution debate influences the interpretation of consent. Consent has always been closely related to the cross-border movement of women and children for the purpose of sexual exploitation (even apart from the trafficking framework)122. It is therefore slightly remarkable that the debate on consent occurred only in a late stage of the negotiations123. The general conception was that consent would have no influence on the status of trafficking: whether trafficking would still be a crime, or not. The disagreement arose in how it had to be expressed in the legal text, and what it would specifically implicate. For example, the Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto state, in relation to smuggling, that “if there is no consent [to the exploitation] or if there is consent that has been vitiated or nullified as provided for in(..) the Trafficking in Persons Protocol, the presence of exploitation in what would otherwise be a smuggling case will generally make the trafficking offence applicable (..)”124. The UNODC Model Law on Trafficking in Persons focusses on the means specifically, and states that “once the elements of the crime of trafficking, including the use of one of the identified means (coercion, deception, etc.), are proven, any defense or allegation that the victim “consented” is irrelevant. (..)It is logically and legally impossible to “consent” when
121 Abramson 2003, pp. 474, 476, see also: Doezema 1998, pp. 34, 37, 45. 122 UNODC 2014, p. 23. 123 Travaux Préparatoires, pp. 341, 352–354. 124 UNODC 2004, p. 347. volenti non fit injuria? [ 33 ] F.F.C.C. Sweep
one of the means listed in the definition is used. Genuine consent is only possible and legally recognized when all the relevant facts are known and a person exercises free will”125. Several delegations expressed their concern that there would be too little nuance regarding consent, since one cannot consent to slavery, servitude, and forced labor126. In the landmark case before the International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v Kunarac, the Appeals Chamber considers that: “circumstances, which render it impossible to express consent, may be sufficient to presume the absence of consent” 127, meaning that the “intrinsic inalienability of personal freedom” automatically nullifies consent, since the “personal freedom is taken away” 128. This means that given consent must be based only on internal motives. The ILO proposes a more philosophical reading in this context that “these debates [are not] simply ‘intellectual’. What constitutes ‘coercion’, ‘consent’ or ultimately ‘forced labor’ is actually a question of who receives legal protection, in what form, under which circumstances, and from which authorities”129. With this reading, the ILO is looking for a more case-focused approach. One must look at individual cases, to see whether there was consent, and whether that consent was meaningful. The drafters were mostly divided over the (legal) relevance of consent of an individual, especially regarding prostitution as an activity a person can freely consent to130. The result was a compromising text. Up until the last negotiation session the text would have been: “The existence of any of the means set forth in subparagraph (a) of this article shall be considered as vitiating any alleged consent of a victim of trafficking”131. This phrase was replaced with the current wording “[t]he consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used”132. Both versions state the obvious: no meaningful consent can be given to human trafficking. Why it was decided to change the wording remains unclear. The compromise lies within the explicit affirmation of the irrelevance of consent, yet still linking this irrelevance to the use of means133.
125 UNODC 2009, pp. 33–34. 126 Travaux Préparatoires, p. 342. 127 Prosecutor v. Kunarac, 12 June 2002, para. 120. 128 UNODC 2014, p. 32. 129 ILO 2013, p.5. 130 Abramson 2003, pp. 474, 475. 131 Travaux Préparatoires, pp. 343–344, emphasis added. 132 idem, p. 345. 133 UNODC 2014, p. 27. volenti non fit injuria? [ 34 ] F.F.C.C. Sweep
3.2.2. The problems of consent with regards to the trafficking definition “The apparent consent of a victim to his or her exploitation, or an apparent willingness to remain in an exploitative situation may pose distinct challenges in identifying that person as a victim of trafficking.”134 It must therefore be determined if the given consent is truly is free and informed. This determination is not always easy to make: “[v]ictims may have complex relationships with their traffickers”135, and other factors can also influence the initial consent. Some of these factors fall under the common denominator of autonomy, while others are seen as coercive means, which can make the difference between meaningful and meaningless consent. In this Paragraph these difficulties will be explored. A review of the literature gives roughly two distinct difficulties regarding consent. Firstly, the correlation between consent and the means is complicated. With regards to vulnerability, and coercion, it is not always clear when and if the circumstance coerce a person to consent, or make a person freely consent. In addition, the comparison of trafficking with smuggling in the light of coercion is worth mentioning. Subsequently, the correlation between consent and prostitution also creates some difficulties. The negotiations of the Palermo Protocol re-opened the debates regarding prostitution, and how it is linked in to consent. First I will go deeper into the issues surrounding consent and means. Since the comparison is often made with smuggling, this part will also discuss smuggling in the context of consent. Then the second part of this Paragraph will go into detail how the discussion surrounding prostitution influences the perception of consent.
Consent and means As seen in previous Paragraphs, consent is linked to the means, which are described in Article 3(a) of the Palermo Protocol. This is the “baseline”, which will be transformed into domestic legislation136. Whether the exact wording will limit the ties of consent to just the means, or if the irrelevance is phrased in different ways, is up to the Member States137. In order for States to transform the UN’s wording into their own fitting wordings, a correct understanding of the idea behind the link between means and consent, and the implications thereof, is required.
134 idem, pp. 96, 97. 135 idem, pp. 96, 97. 136 idem, p. 95. 137 idem, p. 95. volenti non fit injuria? [ 35 ] F.F.C.C. Sweep
In the wording of the UNODC document of 2013, in order for the given consent to be affected, the degree of abuse, or force, etc. must be “sufficiently serious” 138. What exactly is meant by this phrasing is not elaborated. However, this ‘seriousness’ is easier to establish for some means, such as coercion, abduction, fraud, or deception, while it is more difficult for others means, such as the abuse of power or of a position of vulnerability139. When it is beyond clear that one of the means has been used in the trafficking of a person, it is clear the given consent would be irrelevant. The problem arises when we speak of the grey-area trafficking-cases, when means are used which are more subtle, such as when the perpetrators work on the vulnerabilities of their (potential) victims140, or subtly coerce them into given their consent. At first the term “coercion” would have been the term “force”. However, “several delegations suggested including the word “coercion”, which in their view was a broader term than “force”141. According to the travaux préparatoires coercion could be seen as a form of the abuse of authority (which was later changed into the abuse of a position of vulnerability)142, meaning coercion is not only the brute physical, or even psychological (forceful) domination143, which gives it a rather broad scope. “The concept of abuse of a position of vulnerability, together with the other means listed in the [Palermo Protocol] has been accepted as a distinct and important part of the international legal definition of trafficking”144. Vulnerability, in this context is understood as “those inherent, environmental or contextual factors that increase the susceptibility of an individual or group to being trafficked”145. In the outcome of the XIV Ibero-American Judicial Summit, held in Brasilia in 2008, a definition of vulnerability was provided: “[v]ulnerable people are defined here as those who, due to reasons of age, gender, physical or mental state, or due to social, economic, ethnic and/or cultural circumstances, find it especially difficult to fully exercise their rights before the justice system as recognized to them by law. The following may constitute causes of vulnerability: age, disability, belonging to indigenous communities or minorities, victimization, migration and internal displacement, poverty, gender and deprivation of
138 UNODC 2013, p. 79. 139 idem, p. 79. 140 UNODC 2014, p. 98. 141 Travaux préparatoires 2006, p. 340. 142 idem, p. 343. 143 idem, p. 78, see also: Bhabba 2005. 144 UNODC 2013, p. 24. 145 idem, p. 13. volenti non fit injuria? [ 36 ] F.F.C.C. Sweep
liberty. The specific definition of vulnerable people in each country will depend on their specific characteristics, and even on their level of social or economic development”146. The disadvantage vulnerable people endure, according to this definition, is the difficulty in exercising their rights, which are given to them by law. However, in the context of human trafficking the disadvantage of vulnerable people is the difficulty to withstand the influence and (false) promises of perpetrators to traffic persons across borders. The current wording list the abuse of vulnerability as a “means by which trafficking is perpetrated”147. However, in an earlier drafting of the Palermo Protocol, the wording were to become “abuse of authority” 148, which was later replaced by vulnerability. The abuse of authority “should be understood to include the power that male family members might have over female family members in some legal systems and the power that parents might have over their children” 149 . It is not fully clear if this reading also applies to the term “vulnerability”. Nevertheless, a combination of gender and cultural circumstances would cover the familial authority. The travaux préparatoires state that “[t]he reference to the abuse of a position of vulnerability is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved”150, yet do not elaborate on these situational circumstances. Vulnerability is given great significance in the determination if a person is trafficked: often is the presence of a person’s vulnerability automatically seen as evidence that a means was used, thereby automatically fulfilling one of the three elements of the trafficking definition. By analogy, the absence of a person’s vulnerability (the trafficked victim is not vulnerable), is then seen as evidence that the element of means has not been fulfilled, and that there is no case of human trafficking151. It is however, not as black and white as is given here. Not all people in this world who are vulnerable, are trafficked for the purpose of exploitation, the same goes for the fact that not all people who are trafficked for the purpose of exploitation are vulnerable. Vulnerability does not automatically mean that the vulnerable people will give their consent. Many factors will influence the decision to consent to trafficking, and this “multitude of factors” requires a “situation-specific analysis” 152 . The problems regarding vulnerability
146 XIV Ibero-American Judicial Summit 2008, p. 5. 147 UNODC 2013, p. 15. 148 Travaux Préparatoires 2006, pp. 355, 356. 149 UNODC 2013, p. 17. 150 Travaux préparatoires 2006, p. 347. 151 UNODC 2013, p. 15. 152 idem, p. 14. volenti non fit injuria? [ 37 ] F.F.C.C. Sweep
closely relate to the pro-prostitution arguments based on autonomy and free will, and will be discussed in the Part “Consent and Prostitution”.
Consent and Smuggling. “[T]he distinction between trafficking and smuggling is difficult to implement in practice”, since the lines between both are often blurred: “[r]arely are there "pure" cases of one or the other” 153. In the Smuggling Protocol, there is no mention of consent, making consent one of the component to differentiate trafficking from smuggling. The fact that consent is not a component in the Smuggling Protocol is based on the “gendered stereotypes” of both Protocols 154 . As seen in Chapter 2, the trafficking victim is seen as female, while the smuggled person is seen as male. Consent is seen as an instrument to protect this stereotypical trafficked woman155. The perceived male smuggled persons do not require this same level of protection, and this is one of the reasons why the component of consent is lacking in the Smuggling Protocol. However, as Chapter 2 indicated, the gender distinction between smuggling and trafficking is artifice. The gender distinction does, however, give an insight in why consent was added to the Palermo Protocol: as it is extra protection for the (iconic) trafficking victim156. Even though consent is not a component in the Smuggling Protocol, the main difference between smuggling and trafficking is consent or voluntariness (smuggling) versus coercion (trafficking)157. The perception is that the smuggled person enters into the “agreement” voluntarily, while trafficked victims are coerced in some way. However, can one say that the motives which drive a person to smuggling differ much from people whose vulnerable position is abused? Can people who are smuggled not be described as “vulnerable”, same as trafficked victims? Is the escape of extreme (life-threatening) poverty through an agency a form of "the abuse of power or of a position of vulnerability”? If it would, some basic smuggling cases should be placed into the trafficking framework158. I am of the opinion that even though consent is not a component in the Smuggling Protocol, the given consent for the smuggling practices must be given informed and freely, just like the consent given for trafficking. When the smuggling occurred on anything less than voluntary basis, it should be classified as human trafficking under the Palermo Protocol.
153 Bhabba 2005. 154 Abramson 2003, p. 479. 155 Gallagher 2001, p. 983. 156 Abramson 2003, p. 479. 157 Bhabba 2005. 158 idem. volenti non fit injuria? [ 38 ] F.F.C.C. Sweep
Bhabba raises the question: “are all exploitative offers coercive and is coercion always exploitative”? The dissimilarity between coercion and consent remains complicated. When States implement the Smuggling and the Trafficking Protocols, States must set a “moral baseline”159 about which acts are acceptable, and which are not: what is coercive and what is consensual 160 . Only for slavery, or slavery-like work it is clear this is unacceptable161. For the other acts, ultimately, most of these decisions will be made based on cultural, economic, and religious grounds. However, as Abramson puts it: “it is nonetheless difficult to determine what practices constitute the typical case of trafficking, if there is a typical case at all”162.
Consent and Prostitution As was mentioned above, the debate preceding the adoption of the Palermo Protocol also included the debate on prostitution. According to the English Oxford Dictionary163 the term “prostitution” refers to “[t]he practice or occupation of engaging in sexual activity with someone for payment”. For the purpose of this Paragraph, the issue of consent is seen regardless of the legal status of prostitution within domestic law. In theory, one can consent to prostitution even when this would constitute an illegal act under national law164. The legal status of prostitution is, and remains to be, a domestic aspect: it is up to States to form a policy, be it legalization, criminalization or tolerating prostitution165. However, the prostitution debate also takes place on the international forum. In Chapter 2 David Feingold was quoted on the fact that “labor trafficking is probably more widespread than sex trafficking” 166 , even though it is the sexual exploitation which dominates the trafficking discussion. One explanation would be that the sex industry is more visible than, for example, the domestic servitude, the sweatshops, or the organ trafficking. Another explanation is that exploitation stimulates a more morally loaded response. In addition, and relating back to Feingold, there are only very few powerful lobby- or interest groups who meddle in the situation, since, economically, the sex industry is not one of the most important, which makes the debates a bit easier167.
159 Wertheimer 1987. 160 Bhabba 2005. 161 idem. 162 Abramson 2003, p. 482. 163 www.oxforddictionaries.com. 164 Batsyukova 2007, p. 47. 165 Abramson 2003, 489. 166 Feingold 2005, p. 26. 167 Lehti et al. 2006, p. 146. volenti non fit injuria? [ 39 ] F.F.C.C. Sweep
Prostitution in the Palermo Protocol is named under exploitation, the final wording were, ex Article 3 (a) of the Palermo Protocol: “[e]xploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, (..)”. In previous draftings, the wording was: “(..) the prostitution or other form of sexual exploitation of a woman or child, even with the consent of that person (..)”168. The phrase “even with the consent of that person” was replaced with the overarching Article 3 (b). This wording of Article 3 (b) makes trafficking a forced act, per definition, yet, as Abramson puts it: “does little to answer the question of whether consent can be accommodated within the parameters of trafficking activity”169. “[I]t is not prostitution which may fuel sex trafficking, but the exploitation [thereof]”170. According to the delegations, this exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation. This exploitation should distinguish between people who might benefit from their own prostitution, and those who benefit from the prostitution of others171. Forced prostitution is, essentially, a form of forced labor. However, in the light of the consent discussions it is easier for most people to accept or recognize a person’s right to consent to difficult labor conditions, than to accept a person’s (a woman’s) right to consent to prostitution172. During an informal consultation of the 5th session in the negotiation phase, a majority of delegations spoke against the wording “forced prostitution”, since it would be rather difficult to provide evidence that victims were indeed forced. Other delegations were of the opinion that distinctions had to be made between the victims of prostitution, and those who had freely chosen to engage in the profession. In the interpretative notes of the travaux préparatoires it was stated that “[t]he [P]rotocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms “exploitation of the prostitution of others” or “other forms of sexual exploitation” are not defined in the protocol, which is therefore without prejudice to how States parties address prostitution in their respective domestic laws” allowing States to uphold their own prostitution legislation173: the drafting parties did not take any position on
168 Travaux préparatoires 2006, pp. 350, 356. 169 Abramson 2003, p. 477. 170 Batsyukova 2007, p. 47. 171 Travaux préparatoires 2006, p. 344. 172 Abramson 2003, p. 491. 173 Travaux préparatoires 2006, p. 347. volenti non fit injuria? [ 40 ] F.F.C.C. Sweep
whether prostitution inherently contains an element of coercion, since no consensus could be reached174. When the focus within the trafficking-debate lies only on sex work, the existence of other motives for people (women) to give consent is ignored, and the domestic debates of (consenting to) legalized prostitution are overstepped175. When a poor woman, from a structural impoverished country is lured to a Western country under false pretenses, only to be forced into prostitution, it is clear her consent should be rendered irrelevant. However, this is not an example of typical trafficking. This focus feeds into the stereotypical “pure and dependent” women, and paints “overly simplistic pictures about the scope of trafficking” 176 . It is conceivable that a person freely and informed consents to prostitution177. Yet, with this paradigm, the motives behind this decision, may result from her vulnerability, which can lead to (less than obvious) abuse of this position of vulnerability, by others. Therefore “the real difference in choices available between rich and poor, male and female, and educated and uneducated” cannot, and should not be ignored178. Within the prostitution debate both sides (the autonomist and the protectionists) have made valid points, mostly related to vulnerability. Therefore, in light of this Chapter, the following two Paragraphs will give an insight in the reasoning of both side regarding the issue of consent and prostitution.
Autonomists The origin of arguments of the advocates for the recognition of the capacity to (freely) consent to (acts of) prostitution lie within the conventional humanistic theory which emphasizes the free will of people to make their own life choices: people are autonomous individuals179. The group of autonomy-advocates are feminists who strife for unconditional equality between the sexes see prostitution as a form of (sexual) self-determination, with sex work as a form of empowerment 180 . Or, as Carol Hauge puts it into words: “the expansion and improvement of existing economic and social choices, including prostitution as a professional choice, can foster the development of autonomy and self-determination for
174 Chacón 2006, p. 2983, see also: Bhabba 2005. 175 Abramson 2003, p. 475. 176 idem, p. 483. 177 idem, p. 475. 178 idem, p. 475. 179 idem, p. 483. 180 Bongard Stremler 1995, p.193. volenti non fit injuria? [ 41 ] F.F.C.C. Sweep
women”181. This “capitalization of their sex” is seen by these feminists as a way to break through the traditional gender roles182. The Human Rights Caucus (as it was known then and as it will be referred to in this paper, is now known as the Tom Lantos Human Rights Commission) provided commentary on the drafts of the Palermo Protocol. The Caucus held the opinion that, in the event of a person expressing their (informed) free will to choose any profession, and thereby choosing to autonomously decide over their own body and thereby knowingly subjecting themselves to unconventional work-hours, they should be allowed (enabled) to do so183. In this context, prostitution is seen as a profession, just like any other, the oldest in the books in fact, and when the right to freely choose a profession is limited for people choosing to work in prostitution, there is an implicit preference for the free will of some over others184. In addition, Kara Abramson compares the paternalism toward women working in prostitution with women working in more white-collar professions, in her work: “Beyond Consent, Toward Safeguarding Human Rights: Implementing the United Nations Trafficking Protocol”. The prostitute from Ukraine is likely to have been “informed of the nature of the migrant work from neighbors who have preceded them”, which would have influenced her decision into an informed decision. Maybe even more informed that the law professor from Ukraine, who is also subjected to extravagant work-hours. Migration, in some countries, is a cycle and preceding generations can give information and advice185, making one’s decision to migrate (under any and all possible circumstances) an informed decision. Having established that the autonomists view prostitution as a valid profession, a person can always consent to, the next part will put the consent to prostitution, in the light of trafficking, according to the autonomists. “[W]omen who want to migrate to an economically more prosperous country and leave their home country voluntarily" 186 , “do make free choices to migrate within the trafficking context”187. These women would await, (again, according to autonomists) a high(er) income and new career options, or at least other options than in the home State)188. This argument is also based on the idea that should recognize an individual’s ability to make an informed decision
181 Hauge 1995, pp. 29, 30. 182 Abramson 2003, p. 484. 183 Human Rights Caucus 1999, recommendation 7. 184 Abramson 2003, p. 485. 185 idem, pp. 487, 488. 186 Demleitner 2001, pp. 257, 264. 187 Abramson 2003, p. 484. 188 idem, p. 484. volenti non fit injuria? [ 42 ] F.F.C.C. Sweep
which will ultimately improve their life quality. In this context, Abramson puts it down that in some cases, the trafficking of a person may result, or may attempt to result in an improvement of circumstances189. However, in my opinion, this is a little too short-sighted. Can one really speak of consent, when a person is so vulnerable, the only option she sees is to “migrate to an economically more prosperous country”? Is this truly a free choice? Does this really fall under autonomy? Abramson interprets consent in the Palermo Protocol as gender biased, and “open-ended enough to allow a state interpretation that "protects" women from consenting to sex work while preserving male consent to engage in other forms of work.”190 The previously mentioned Human Rights Caucus argued that consent should not be a component in the Palermo Protocol, as “the best way to promote the ability to consent“. When it were to be defined as a purely exploitative activity, consent would not matter anyway. In addition, the Caucus argued that the irrelevance of consent "would (..) deprive adult women (..) of the ability to work in any aspect of the sex industry”191. In my opinion, this does not solve the issue of consent, the same arguments remain, the same pros and cons appear in the debates. Erasing the consent component from the wording of trafficking, does not erases it from the issues of trafficking. To sweep it under the rug, does not make it go away. If in fact (in a near utopian world) all those who work in the prostitution do so out of their own (sexual) empowerment and autonomy, and these prostitutes are the main beneficiaries of the profit made, prostitution would not form such an elaborate debate as it does now (apart from the moral and religious issues of (extramarital) sex in exchange for money). However, even the autonomists recognize that not all those working in prostitution have given their meaningful consent to do so192. The most common method of recruitment of trafficking victims who are sexually exploited, is the false promise of employment, e.g. as a nanny or as a domestic servant. The most common way (potential) victims come into contact with traffickers is the "word of mouth", which often gives people an insight in the risks associated with the proposed practices193. Therefore, some victims know they will end up in the sex industry, and some victims suspect it194, and still follow through.
189 idem, p. 486. 190 idem, p. 485. 191 Human Rights Caucus 1999, recommendation 7. 192 Abramson 2003, p. 484. 193 Skrobanek 1997, pp. 15, 77. 194 Lehti et al. 2006, p. 157. volenti non fit injuria? [ 43 ] F.F.C.C. Sweep
This decision to consent, when it is made informed, even with the knowledge one will be exposed to the risk of exploitation, is influenced by many factors195. Instead of viewing political and economic conditions as factors hindering meaningful consent, autonomists view these conditions as actors benefitting an intelligent and well thought out decision to improve one’s livelihood196. The autonomists sometimes seem to forget the context of trafficking in their arguments advocating prostitution. There are cases of forced prostitution, cases in which autonomy is not even one of the motives to work in the prostitution. When women are trafficked (regardless whether they have given their consent), are the not automatically deprived from certain levels of autonomy, in ways a non-trafficked person is not197? I think some people are capable of making the informed decision to work in the prostitution. I also think some people are not capable of such decision. Yes, some women know what will await them when they engage with trafficker, the horrible living circumstances and an exploitative work environment, and they will still choose to go through with it, since that life that awaits them, has better prospects than the life they are living now. Yet how voluntary is voluntary with this amount of push factors? Would this then almost automatically nullify the consent of this person? Should it? Makes that the traffickers less repulsive? I think it is impossible to answer these questions for all trafficking cases, equally. Each individual case is different.
Protectionists Those advocating against the recognition of the capacity to (freely) consent to (acts of) prostitution, lie within “the traditional anti-prostitution discourse”198. By these protectionists, prostitution is not seen as an expression of self-determination or empowerment, but as a male dominated violation of human rights. According to Dorchen Leidholdt "[p]rostitution is not about individuals. It is an institution of male dominance, and it is also a global industry (..)"199. There are only very few people, even in the autonomist-camp, who would want prostitution to be a profession “for themselves, their children, their wives, or their sisters or female friends”, and when prostitution is promoted as a legitimate profession it “denies and
195 Abramson 2003, p. 486. 196 Hauge 1995, p. 48. 197 Abramson 2003, 490. 198 idem, p. 489. 199 Leidholdt 1995, p. 135. volenti non fit injuria? [ 44 ] F.F.C.C. Sweep
obscures the inherent sexual exploitation and violence to which women and girls are subjected”200. In this sense, prostitution is not seen as a form of the expression of the right to sexual choice and orientation: prostitution is not a sexual orientation. The right to have control over one’s own body, does not imply the right to sell that body, or any sexual services201. Protectionists believe that women should have the right to sexual liberation, denying women the right to sell their bodies for sexual purposes does not deny women this liberation, in their eyes, it protects them: “[o]ne cannot have the right to violation. One only has the right to be free from violation”202. For protectionists, it is the female subordination that opposes them to the idea that a person can give informed consent to work in prostitution: “it isn't about choice. Instead, prostitution is about the absence of meaningful choices (..)"203. Therefore, according to the protectionists, prostitution is a “practice that is by its nature incapable of accommodating consent”204: all prostitution is forced prostitution. According to Susan Tiefenbrun “[i]t is arguable that consent is not a probative issue in the definition of sex trafficking because one cannot legally consent to slavery, and sex trafficking is clearly a variant of slavery”, because of the viewpoint that women are "expendable, reusable, and resalable cheap commodities who offer a highly desirable service of sex work"205. Trafficked women working in the sex industry must be distinguished from other women working in the same industry: trafficked women are in a vulnerable position due to their lack of legal immigration status, or valid documentation, which could lead to additional human rights violations206, they are forced to be there. Tiefenbrun comes to the same conclusion as the Human Rights Caucus: take “consent” out of the (sex) Trafficking definition, both with different arguments. I already expressed my doubt in the effectiveness in taking consent out, after the Caucus’ arguments. Tiefenbrun makes a more compelling argument. However, the autonomists see it differently, and taking consent out of the definition will not silence the debate: it will not bring the clarity both Tiefenbrun and the Human Rights Caucus wish it to bring.
200 O’Connor et al. 2006, p. 12. 201 Jeffreys 1998. 202 O’Connor et al. 2006, p. 12. 203 Leidholdt 1995, p. 136. 204 Abramson 2003, p. 489. 205 Tiefenbrun 2001, pp. 206, 212-213. 206 Abramson 2003, p. 492. volenti non fit injuria? [ 45 ] F.F.C.C. Sweep
As the autonomists see economic, political or social circumstances as a factor to give meaningful consent, the protectionists see these circumstances as factors to neutralize the meaning of consent207. Some of these factors push women into the sex industry, without them ever really consenting to it. Such factors are, for example: gender inequality; poverty; racism; the collapse of women’s economic stability; etc. Disadvantage and vulnerability drive women and girls into prostitution208. The fact that a woman starts to work within an “unregulated and illegal informal business sector”, such as prostitution, to support her family, is considerable. This line of work, however also creates an additional vulnerability to trafficking 209 , making (forced) prostitution not the result of human trafficking, but the cause. “Poverty, illiteracy, economic crises, and regional and civil conflicts all have a disproportionate effect on women, and combined with low social status, make them more vulnerable to trafficking”210, which then can lead to sexual exploitation. The impact of these factors are disproportionate for women, which then has a negative effect on the consent211. In addition, when consent is given, it is not always clear as to what they have given their consent for. An investigation by Human Rights Watch in 1993 under Burmese women who were trafficked to Thailand showed that, even though some of the women initially consented to work in the prostitution, more elaborate questioning showed that these women had little to no understanding what “prostitution” meant, nullifying their given consent, since it was not informed consent212. Overall, I would conclude that, according to the protectionists, one cannot speak of concepts such as consent or choice in the context of human trafficking for the purpose of sexual exploitation. These concepts imply that the women and girls were not lured and forced into their exploitation 213 . For, can a person truly, willingly and meaningful consent to a profession which require her to welcome about 10 to 15 clients a day, who all sexually penetrate her, which makes it up till 90 clients a week? 214 It is only in the context of prostitution that we do not see this as unacceptable work conditions, or even human rights violations215.
207 Abramson 2003, 491. 208 O’Connor et al. 2006, p. 6. 209 idem, p. 6. 210 Hyland 2001 (b), p. 35. 211 Abramson 2003, p. 491. 212 Human Rights Watch et al. 1993, pp. 5-7. 213 O’Connor et al. 2006, p. 12. 214 www.sekswerkerfgoed.nl/verdiensten/. 215 O’Connor et al. 2006, p. 12. volenti non fit injuria? [ 46 ] F.F.C.C. Sweep
3.3 Conclusion
Concluding this Chapter, I would say, the core problem with consent is vulnerability. According to Anne Gallagher, the final wording of consent within the Palermo Protocol is clumsily handled, making it “probably unnecessary”216. Consent must be informed and free, so when any of the means are established, per definition, it could never be consent, since it was not given freely. Therefore, when there is an undeniable case of human trafficking, the given consent is always irrelevant. The real issues regarding consent and the (subtle) abuse of the position of vulnerability is however, not as easily dismissed. This issue, however, is not shown clearly in the wording of Article 3 (b). The abuse of power or of a position of vulnerability is one of the means, which when used, nullifies the given consent. Many people are vulnerable, ranging from marginal vulnerability to extreme vulnerability. When these people consent to a third party, does this third party automatically abuses the vulnerable position of the consenting party? The problem is, there are no guidelines to when or how this can be determined. What if all circumstances remain the same, and a person gives meaningful consent, will it then fall under the Smuggling Protocol? It could be this vulnerability which drives them into consenting: the post-trafficking circumstances might be better than the current circumstances (which is tragic, yet imaginable). Who are we to automatically disregard the self-determination of the less- fortunate? The prostitution debate intensifies this consent discussion, since both camps cannot agree on the component of consent within the (forced) prostitution context, let alone within the context of human trafficking for the purpose of sexual exploitation. There is not even global consensus on the legality of prostitution. The focus of human trafficking has always been mostly on sexual exploitation, as was seen in Chapter 2. The question “can a person give free and informed consent to work in the prostitution” remains unanswered. I think some people can give meaningful consent. But not all people, and those who can, not even always. If a person sees no other option to travel to another country to work as a prostitute, to provide for the basic needs (food, shelter), is it consent? This Chapter raises more questions than it has answers to offer. However, this paper is not aimed at the all-knowing answer in the consent debate regarding human trafficking. This paper aims at the question how consent influences how we perceive the victims of trafficking. Chapter 4 will express the considerations regarding this question.
216 Gallagher 2010, pp. 27, 28. volenti non fit injuria? [ 47 ] F.F.C.C. Sweep
CHAPTER 4. Conclusion
This Chapter will attempt to answer the question how consent influences the perception of the ideal victim, with regards to human trafficking. There is a lot of literature available on the perception of victimhood, and an equal amount of literature on the issue of consent. However, a combination of these two elements cannot really be found: no specific data is found with regards to this question, no empirical research is done to answer this question, and this paper also offers no empirical data. Therefore the answer to this question will be based on the available literature and theories, and on my own analysis of this literature. This conclusion is a preliminary answer to the question, and (more) research needs to be done on this subject specifically.
Victimhood This paper has set out the definitions of the ideal and iconic trafficking victim. Soon it was seen that this was a not-so-very-realistic perception of trafficking victims. Numbers provided by the ILO showed that when victims are perceived as female; vulnerable; trafficked for the purpose of sexual exploitation; a good cooperator with law enforcement; passive; and blameless, while the offender is big and bad and unknown, many real victims are not seen as victims, and cannot claim their right to protection and assistance217. Even though it is not the realistic view on victims of human trafficking, it is an existing and applied view. It must be made exceedingly clear that the fact that a person is not an ideal victim, does not mean he or she is not a victim at all. The crux lies within the acknowledgement of victimhood by society. The consequences for overlooking victims for the reason they do not fit into this perfect image we have made up, can be found both on a legal level, as well as a psychological level. It is easier for law enforcement to build a case against the perpetrator when the victim is close to perfect. As a society we require a steady label on a victim, to distance ourselves and to differentiate ourselves from the randomness of violence and harm. When they are not seen truly as victims, they are unlikely to come forward and claim the victim support they are entitled to, which makes them vulnerable for re-victimization. Additionally, the non-ideal victims are prone to victim-blaming and self-blame, as is often seen with domestic abuse victims who stay with their abuser218.
217 See figure 1, and 2. 218 Wilson 2005, pp. 23, 24. volenti non fit injuria? [ 48 ] F.F.C.C. Sweep
Denying victims there victim status, is not an acceptable situation, making the concepts of the ideal and the iconic (trafficking) victim in some cases somewhat counter-effective: the difference between the real victims and the ideal victim is simply too considerable. I am aware that this idea of the ideal victim is not a complete conscious perception. However, this idea is linked to our societal empathy: the more ideal a victim is, the more empathy we can conjure up for this victim. As a society people are categorized: we put people in figurative boxes, and the ideal victim is just one of those boxes, it is a stereotype. The concept of the iconic victim creates a clear label, which helps us separate the (true) trafficking victims from those who are not. The Palermo Protocol is based on the iconic victim which is a female victim, trafficked for the purpose of sexual exploitation. These (stereotypical) characteristics of a trafficking victim makes it easier to differentiate between the act of trafficking and the act of smuggling, since a (stereotypical) smuggled person is male, not vulnerable and not innocent. These stereotypes help keeping the overview. In my opinion, however, the concept is taken too narrow since it is based on stereotypes and myths, which makes it that a large amount of victims is denied their victim status. On a different note, I wish to clarify, I am not over-glorifying the label of “victim”. Calling a person a victim, especially when this person does not perceive him- or herself as a victim, can be stigmatizing: victims do not wish to be portrayed as a weak, helpless, or passive person, since these are not character traits which are highly valued in modern society. Still, the victim label makes it possible to help victims with their needs, and offers them their rights and protection. The fact a person is not an ideal victim, does not automatically mean they are not a victim at all or that they are never recognized as such. It is only that the status of ideal victim does make the recognition easier. It is important that law enforcement, as well as the agencies responsible for the care and protection of trafficking victims have a clear view on who the real victims are, in order to give the right care to the right people.
Consent Consent in the way it is adapted into the Palermo Protocol still causes debate. Anne Gallagher describes the adaption of consent within the trafficking definition as clumsy and unnecessary219, and I would definitely agree with her. In the terms it is currently put down, creates a contradictio in terminis, in the sense that in order to speak of human trafficking, a
219 Gallager 2010, p. 28. volenti non fit injuria? [ 49 ] F.F.C.C. Sweep
means must have been used, which would make the given consent automatically irrelevant. The mere fact that it is human trafficking makes the given consent trivial. This wording, however, does not put an end to the whole debate regarding consent. After a thorough review of the literature and my own analysis thereof, I concluded that the main issue with consent was vulnerability. Since the focus of the iconic victim is on sexual exploitation, and a rather large proportion of the Palermo Protocol debate revolved around the discussion of prostitution, I decided to include prostitution in the Paragraph about consent. In my opinion the prostitution debate sets out in detail the difficulties surrounding consent. Additionally, the debate on prostitution gives a clear visual on the problems surrounding consent: the fine line between voluntariness and the abuse of a position of vulnerability. Those in favor of the legalization of prostitution state that prostitution is a form of sexual liberation, while those opposing the legalization see it as a male-domination violation of human rights. While one camp argued that women are fully capable in making the decision to enter into the profession of prostitution, others do not see prostitution as a (lawful) profession, and do not see how a person can consent to such a horrific work environment. In my opinion, by analogy, these arguments also apply to those consenting to human trafficking. Some just cannot see why someone could consent to the intended exploitation, while others understand the motives of those who do consent. It is these two sides which makes it almost impossible to come to a unanimous perception of the scope of consent within the trafficking protocol.
Conclusion This paper then aimed to compare this perception of victims with the issue of consent. So now the question arises: is it true that no wrong can be done to the consenting220? How does a consenting victim fit into this perfect image of a victim? In my opinion the issue of perception regarding consent is related to key elements of the ideal or iconic victim: it is linked to the element of vulnerability, yet contradicts the element of innocence and subsequently the blamelessness of the victim.
220 Translation for volenti not fit injuria? (Title) volenti non fit injuria? [ 50 ] F.F.C.C. Sweep
Vulnerability Vulnerability is one of the most important elements of the ideal victim concept in my opinion: it keeps returning, either explicit, when the victim must be weak and vulnerable (ideal victim), or more implied in the need for the victim to be female (iconic victim). It is this vulnerability which increases the likeliness that a victim will eventually be exposed to victimization. Vulnerability is something that is difficult to measure, since people often do not see themselves as such and will therefore not admit they are vulnerable. Especially men are less likely to see themselves as vulnerable, or at least less likely to admit they are vulnerable. The interesting question that links vulnerability to consent is: is it possible for a vulnerable person to give free and informed consent? When we look at consent, many factors influence the decision to give consent. The UNODC document “Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons” from 2013 states that every situation must be analyzed individually, in order to see what factors specifically influenced the decision to consent to trafficking, so for each case separately. Only then it is possible to see whether the vulnerability of a person was the decisive factor, and if consent was then given under the influence of the abuse of this position of vulnerability, which would influence the (legal) status of consent. However, does the nullification of consent influence the perception of victimhood? According to the concept of the ideal victim, we need (want?) victims to be vulnerable, to justify their victimization, to stereotype them. When a person is vulnerable, it is likely that person gives consent based on their vulnerable position. Whether or not we would still perceive a vulnerable, but consenting person as a victim, is in my opinion embedded in the perception of innocence and the subsequent blamelessness of the victim.
Blamelessness If looked at society’s view on victims, the other very important element is the innocence of a victim, and subsequent the blamelessness of the victim. When there is the slightest indication a person “might have had it coming”, this person is most likely not seen as a victim, since the ideal victim must be the real life embodiments of innocence. It is their innocence which protects victims from victim-blaming. When a person consents to whatever harm is done to them, their innocence becomes disputable. As was explained in Chapter 2, the blaming of a victim comes natural to society, since we must believe in the justness of the world. It is a way to distance ourselves from the
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victimization: “if it happened to them, they must have deserved it; therefore it can never happen to me, so I am safe”. If I were the philosophical type, I would say it is a delusional barrier we have created, so we can accept the unacceptable. Regardless, not only external parties can blame a consenting victim: a consenting victim can also suffer from self-blame, which will make them more likely to accept the circumstances they are living in221. When a victim remains to stand firm that he or she has consented to the exploitative circumstances, this victim will most likely not identify him/herself as a victim, which makes the removal out of the harmful environment rather difficult222, which then makes it rather impossible for agencies to offer appropriate help. Such victims are vulnerable for re- victimization, and more specifically, re-trafficking. When a victim is so caught up within their consent and subsequent self-blame, they will most likely not cooperate with law enforcement agencies to prosecute their traffickers. Even though I am of the opinion that cooperation with law enforcement as a requirement is a bit much, one must cooperate with law enforcement before one can be seen as a an ideal or iconic victim. Therefore when these victims do no cooperate with law enforcement, they are even less likely to be recognized as true (ideal) victims. Concluding, I would say that, in theory, a consenting victim does not fit into the image of an ideal victim. Having that said, it seems at least a bit odd to me that we “require” victims to be vulnerable, yet when they act on this vulnerability they lose their innocence in our eyes, to an end where we refuse to see them as (ideal) victims. Therefore, I think, some nuances must be made. As was set out in detail in Chapter 3, not all given consent is given in a free and informed fashion. Since consent must always be given voluntary and informed, any consent that is not given as such can therefore, per definition and per legem, not be seen as meaningful consent. However, how would this nullified consent affect the ideal victim? Does the legal status of this given consent have influence on how we see the consenting victim, since the nullification of consent is first and foremost of importance for law enforcement? In principle, I would say that when a person gave consent which was not given voluntarily, which would make this consent meaningless, this consent should not influence their
221 Wilson 2005, pp. 23, 24. 222 UNODC 2014, pp. 96, 97. volenti non fit injuria? [ 52 ] F.F.C.C. Sweep
innocence, making the victim retroactively innocent and blameless. If then such a victim would assist law enforcement (and fulfill the other ideal victim-requirements), nothing stands in the way for them to be labeled ideal victims. With regards to human trafficking, all given consent is rendered meaningless, which would bring me to the same aforementioned conclusion. Nevertheless, the nullification of this given consent is a primarily legal measure, and would as such not automatically influence the sociological view on victimhood, and there is no empirical data present which would suggest any influence whatsoever. Therefore, initially I would say that the sociological need to blame a victim is too much present for society to disregard the given consent, even if it this consent is legally irrelevant. So, how it truly affects the sociological view on victimhood remains to be seen.
Recommendations That brings me to my main recommendations. In order to answer the question how consent influences the perception of the ideal victim with regards to human trafficking, more elaborate research is necessary. First of all, empirical research is imperative to show how people perceive trafficking victims, more specially consenting victims, and if this perception would change when the given consent was deemed irrelevant under Article 3(b) of the Palermo Protocol. My study shows that that real trafficking victims only show little resemblance with the iconic trafficking victim, as perceived by law enforcement and society. Empirical research is then necessary to see how a consenting victim would fit into the victim-perception. In light of this paper, I would also propose a more in depth research into the issue of consent from the perspective of the psychology behind free will. This should answer questions such as: based on which factors do people make decision? And: are people in a vulnerable situation incapable of making free and informed decisions? These questions need to be answered in order to get to the bottom of the consent debate. We must know all the details of consent, for it to have a meaningful purpose in the Palermo Protocol. This paper is a mere initial attempt to see whether consent influences the perception of victimhood. Many more steps must be taken for it to have purpose. One must understand before one can take action.
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