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Issue Paper on the Role of Consent in the Trafficking in Persons Protocol

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Issue Paper THE ROLE OF ‘CONSENT’ IN THE TRAFFICKING IN PERSONS PROTOCOL UNITED NATIONS Vienna, 2014 The description and classification of countries and territories in this study and the arrangement of the material do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. © United Nations Office on Drugs and Crime, 2014 Acknowledgements The present publication was developed by the UNODC Human Trafficking and Migrant Smuggling Section under the overall coordination of Ilias Chatzis and the substantive guidance of Rahel Gershuni, in collaboration with Simone Heri. The publication was drafted by Dr. Anne T. Gallagher (consultant), with the support of Dr. Marika McAdam (consultant), who was responsible for conducting the majority of country surveys. Special thanks are extended to Silke Albert, Tatiana Balisova, Simona Schreier and Katharina Peschke at the Human Trafficking and Migrant Smuggling Section for their input. UNODC expresses its appreciation to those who attended the expert consultation in Vienna on 17-18 February 2014 and who provided important follow-up input: Philip A. Aguinaldo, Dalia Avramoff, Julia Borgianni Batho, Pamela Bowen, Carmela Bühler, Parosha Chandran, Marcelo Colombo, John Cotton Richmond, Arie Dharmanto, Federica Donati, Joy Ngozi Ezeilo, Patricia Fernández Olalla, Saša Gosiæ, Paul Holmes, Sommanat Juaseekoon, Vipon Kititasnasorchai, Lalu Muhamad Iqbal, Martha Lovejoy, Carla Menares Bury, Branka Milosavljevic, Eurídice Márquez Sánchez, Kerry Neal, Wanchai Roujanavong, Zoi Sakelliadou, Silje Elisabeth Stenvaag, Matthew Taylor, Shabda Thian, and Lisa West. Thanks are also due to the large number of government officials and practitioners, listed in Annex 3, who gave generously of their time and expertise in helping with the country case studies and reviewing various draft sections of the text. The study was made possible through funding received from the Government of Switzerland. Contents Executive Summary ........................................................................................ 5 1 Background ........................................................................................... 14 1.1 Context of this study ............................................................................. 14 1.2 Mandate and Terms of Reference .............................................................. 16 1.3 Methodology ..................................................................................... 17 1.4 Structure of this paper .......................................................................... 19 2 The concept in international law and policy ....................................................... 21 2.1 Consent in criminal law: Some general observations on principles and approaches ........ 21 2.2 Consent in the specific context of trafficking .................................................. 23 2.2.1 The Trafficking in Persons Protocol and the concept of consent ................................. 24 2.2.2 Regional instruments ................................................................................................ 28 2.3 Supplementary sources of insight .............................................................. 30 2.3.1 Consent in international criminal law ........................................................................ 30 2.3.2 Consent in the definition of forced labour ................................................................. 32 2.4 Conclusions on the concept of consent in international law and policy ...................... 34 3 National Law and Practice: Overview ............................................................... 36 3.1 States that have included explicit reference to consent in their definition of trafficking ... 36 3.1.1 Argentina ................................................................................................................... 37 3.1.2 Australia ................................................................................................................... 39 3.1.3 Indonesia .................................................................................................................. 43 3.1.4 The Philippines .......................................................................................................... 46 3.1.5 Serbia ....................................................................................................................... 48 3.1.6 Spain ......................................................................................................................... 52 3.1.7 Thailand ..................................................................................................................... 55 3.2 States that do not have explicit reference to consent in their definition of trafficking ...... 56 3.2.1 Belarus ....................................................................................................................... 57 3.2.2 The United Kingdom of Great Britain and Northern Ireland ........................................ 59 3.2.3 The United States of America .................................................................................... 63 3.3 States that have no legislative reference but explicit case law on the role of consent ...... 66 3.3.1 Israel ......................................................................................................................... 66 3.3.2 Norway ..................................................................................................................... 69 2 4 National Law and Practice: Key Findings ........................................................... 74 4.1 High acceptance of the principle of the irrelevance of consent ............................... 74 4.1.1 The principle in law ....................................................................................................74 4.1.2 Attitudes to the principle: Underlying values around consent ..................................... 75 4.2 Irrespective of the approach taken in law, consent is often highly relevant in practice ..... 76 4.3 ‘Means’ are often critical to considerations of consent ....................................... 80 4.4 The type and severity of exploitation are also relevant to considerations of consent ....... 85 4.5 The issue of criminal liability of trafficked persons can expose the limits of the principle of the irrelevance of consent ........................................................................... 89 4.6 Guidance should take into account the need for clarity balanced by flexibility: ............. 91 5 Issues for consideration and discussion ............................................................ 92 ANNEX 1: Key considerations for criminal justice practitioners in addressing the irrelevance of ‘consent’ in trafficking in persons ........................................................................ 95 ANNEX 2: Survey Instrument ........................................................................... 101 ANNEX 3: List of persons consulted, including expert group meeting participants ................ 105 3 Abbreviations and Acronyms APOV Abuse of a position of vulnerability Conference of the Parties to the United Nations COP Convention against Transnational Organized Crime and the Protocols Thereto Open-ended Interim Working Group on the Protocol to Working Group on Prevent, Suppress and Punish Trafficking in Persons, Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime EU European Union European Trafficking Council of Europe Convention on Action against Trafficking Convention in Human Beings Directive 2011/36/EU of the European Parliament and of EU Trafficking Directive the Council of 5 April 2011 on preventing and combating 2011/36/EU trafficking in human beings and protecting its victims ILO International Labour Organization Trafficking Trafficking in Persons Protocol to Prevent, Suppress and Punish Trafficking in Trafficking in Persons Persons, Especially Women and Children, supplementing Protocol the United Nations Convention against Transnational Organized Crime UN United Nations UNODC United Nations Office on Drugs and Crime Organized Crime United Nations Convention against Transnational Convention Organized Crime 4 Executive Summary Article 3(a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol) defines trafficking in persons as constituting three elements: (i) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (ii) a ‘means’ by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and (iii) a “purpose” (of the action): namely, exploitation. 1 The definition makes clear, in Article 3(b), that consent of the victim to the intended exploitation is irrelevant when any of these ‘means’ have been used. All three elements must be present to
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