The ProTecTIon ProjecT journal of human rights and civil Society

Issue 4 Fall 2011

Copyright 2011 The Protection Project at The Johns Hopkins University Paul H . Nitze School of Advanced International Studies .

ALL RIGHTS RESERVED Reproduction or modifi cation for distribution or republication is permitted only with prior written consent of The Protection Project.

The Protection Project 1717 Massachusetts Avenue, NW, Suite 501, Washington, DC, 20036 Tel: 202 663-5896 Fax: 202 663-5899 http://www.protectionproject.org

The Protection Project Journal of Human Rights and Civil Society

Issue 4 Fall 2011

Board of Editors Mohamed Mattar Founder & Executive Managing Editor

Isis Elgibali Editor in Chief

Anna Koppel, Julia Braunmiller, Elaine Panter Article Editors

Editorial Staff Farida Wael Aboulmagd Tobi Afolayan Colleen Connors Rafela Seixas Fontes Emanuel de Souza Amaral Souto Raphaela Lopes Amna Ali Ameya Sita Ananth Meghan Malloy Scarlett Sinclair Julia Retta Desalegn Damtew Luladay Aragaw Truneh Jesica Ums

The Protection Project Journal of Human Rights and Civil Society

Issue 4 Fall 2011

Contents Introduction to the Journal ...... I Content of the Journal ...... III . . . Welcome to the Journal ...... V. . .

Articles: Sold for Sex: The Link between Street and Trafficking in Persons Laura J. Lederer ...... 1 Egyptian Seasonal Marriages: under the Veil of Child Marriage Lauren S. Willard ...... 21

Conference Proceedings: The Protection Project Fifth Annual Symposium: The UN Trafficking Protocol and the U.S. Trafficking Victims Protection Act—Ten Years Later, November 2, 2010 . . .85 .

Interview: Clinical Legal Education: Past and Present by David McQuoid-Mason . . . . .155 .

Book Review: They Must Be Stopped by Brigitte Gabriel Bradley Bush ...... 163

Radical Reform by Tariq Ramadan reviewed Caldwell Bailey ...... 171

Model Law: Model Law against Domestic Violence ...... 177 . .

Bibliography: Islam and Human Rights ...... 243 f The Protection Project Journal of Human Rights and Civil Society i

Introduction to the Journal

The Protection Project: The Protection Project is a human rights research institute based at The Johns Hopkins University School of Advanced International Studies (SAIS) in Washington, D .C . The Protection Project focuses on promoting human rights values and the rule of law throughout the world by engaging in academic research and conducting training, exchange, and fellowship programs focusing on issues of women’s and children’s rights including trafficking in persons and child labor, human rights education, women’s empowerment, state compliance with internationally recognized human rights and capacity building for civil society in developing and transition countries . Mission Statement: The Protection Project Journal of Human Rights and Civil Society is a new journal that aims to provide a forum for scholarly analysis of critical contemporary human rights issues within the prism and from the perspective of civil society and practitioners in the non-governmental sector . As civil society and non-governmental organizations gain momentum and experience in human rights advocacy and begin to influence reform, development and democratization processes, it becomes imperative to examine the interrelationship between developments in the human rights arena and the consequent effects such developments have on the possibilities for the growth or obstructions of the growth of freedom of civil society and non-governmental organizations . It is also necessary to study how emergent civil society and the non- governmental sector contribute to the movement toward greater respect for and compliance with human rights standards worldwide. As participants and practitioners in this process, civil society representatives and professionals in the non-governmental sector possess tremendous insight into the practical side of the realization of human rights ideals, including both successes and pitfalls. It is therefore the objective of the journal to probe developments and crucial concerns such as the implementation of and state compliance with international human rights standards, to address poignant themes such as the interrelationship between human rights theory and human rights practice as that transition is realized in local contexts and the roles of civil society and non-governmental organizations as actors in the social and political development of nations . II The Protection Project Journal of Human Rights and Civil Society

Target Audience: The journal is aimed at an audience of human rights and civil society practitioners, representatives of governmental, intergovernmental, and non-governmental organizations, as well as students and scholars of human rights and/or civil society . Contributions: The journal publishes multi-disciplinary submissions that provide analysis and scrutiny of contemporary human rights concerns in the international realm with a strong emphasis on the practical implications of human rights theory within the authors’ local, national and regional contexts. Submissions analyzing the social, legal and political frameworks as they interact with and affect the practical applications of international human rights standards and their linkages to civil society and non-governmental sector development are especially valued. The roles, responsibilities, and freedom of civil society and the non-governmental sector in the implementation of international human rights standards are also significant areas of interest for the scope of the journal. Preference will be given to submissions covering practical rather than theoretical aspects of human rights issues, as well as civil society and non-governmental development. Submissions are acceptable from a wide range of disciplines, such as public policy, political science, sociology, anthropology, international development, gender studies, law, economics and philosophy . The Protection Project Journal of Human Rights and Civil Society iii

Content of the Journal

Scholarly Articles: The journal publishes scholarly articles in each issue under this rubric. Contributions are original, unpublished materials. Selected Workshop Presentations and Proceedings: In each edition, the journal will publish selected presentations from The Protection Project conferences and workshops on contemporary human rights issues. Exemplary presentations are selected and the transcripts are then made available in the journal in order to share and assist in the dissemination of knowledge on pertinent human rights and civil society matters . Interviews: The journal publishes interviews with civil society activists addressing pressing human rights concerns of our time . Book Reviews: An analytical book review is included in each issue of the journal. Books eligible for review are recent publications covering human rights issues within the context of the non-governmental sector and civil society. They address any topics under the scope of the journal, such as human rights standards as they apply to freedom of association and of civil society and non-governmental organizations, theories behind the impact of civil society and the non-governmental sector on development of human rights standards, monitoring of human rights compliance, advocacy, and the practical aspects of the implementation of human rights standards within local social, legal, and political contexts . Model Law: The journal includes model legislation to serve as a guide for the countries that do not have legislation on the selected topic . Bibliographies: The journal will include bibliographies on important issues associated with human rights and civil society topics. iv The Protection Project Journal of Human Rights and Civil Society The Protection Project Journal of Human Rights and Civil Society v

Welcome to the Journal

Dear Reader, Welcome to the fourth edition of The Protection Project Journal of Human Rights and Civil Society (PROTECTION PROJECT J.HUM. RTS & CIV. SOC’Y). Volume four focuses on human rights issues at large . In this issue, Laura Lederer, founder of The Protection Project, makes a valuable contribution by addressing the link between street gangs and trafficking in persons. Lauren S. Willard covers another important topic on Egyptian seasonal marriages as a form of human trafficking. The journal contains transcripts from the fifth annual symposium held by The Protection Project and titled The UN Trafficking Protocol and the U.S. Trafficking Victims Protection Act—Ten Years Later, which took place November 2, 2010. Volume four also includes an interview with Professor David McQuoid-Mason, University of KwaZulu-Natal, South Africa, Dr. Frank Bloch, who is Professor of Law Emeritus at Vanderbilt University Law School, Nashville, TN, USA; and Catherine Klein, who is Professor of Law at the Columbus School of Law and Director of Columbus Community Legal Services, both of which are at Catholic University of America, Washington, DC, USA; discussing the clinical legal education movement. In the spirit of academic engagement, the journal includes two book reviews: They Must Be Stopped by Brigitte Gabriel and Radical Reform: Islamic Ethics and Liberation by Tariq Ramadan. This year, we introduce a Model Law against Domestic Violence, which we hope will serve as a guide for the many countries that still do not have a specific law that addresses domestic violence in all its aspects. The journal also features a bibliography on Islam and human rights. We always encourage individual members of civil society groups and especially NGOs to engage with the journal as we develop an agenda that both informs and enhances the activities of such groups . vi The Protection Project Journal of Human Rights and Civil Society

Ultimately, The Protection Project intends that this journal will be a pioneer in uniting human rights academia and human rights civil society. Moreover, we at The Protection Project envisage our journal as offering a forum for the combined voice of service, governmental, and international organization officials and as informing those individuals about issues of human rights that display themselves initially at the civil society field work level. We hope you find our journal informative, and we encourage you—through your interaction with us—to make it your own.

Sincerely,

Mohamed Mattar Executive Director The Protection Project The Protection Project Journal of Human Rights and Civil Society 1

Article

Sold for Sex: The Link between Street Gangs and Trafficking in Persons1 Laura J. Lederer*

Introduction In April 2011 in Oceanside, California, 38 members, their alleged associates, and two hotel owners were arrested for engaging in a sex-trafficking enterprise that involved the of minors and adult females 2. After raping their victims and threatening to kill them if they tried to escape, the gang members sold the girls online.3 The girls were trapped in a hotel for 12 hours a day as men who had purchased their bodies from the gang members had sex with them. Although these commercial sex acts brought in between US$1,000 to US$3,000 a day, the young women and children never saw a penny of the money. Their only payment was receiving food, avoiding beatings, and staying alive. The trafficking ring might never have been discovered if one girl hadn’t rebelled.

* President, Global Centurion, Adjunct Professor, Georgetown Law Center

1 For this article, the definition of a “street gang” is the one used by the National Gang Threat Assessment of 2009. It is the definition agreed on by the National Alliance of Gang Investigators’ Associations: “A gang is a group or association of three or more persons with a common identifying sign, symbol, or name who individually or collectively engage in criminal activity that creates an atmosphere of fear and intimidation.” States and localities have varying definitions of gangs. For example, Alabama’s law on gangs defines a street gang as “any combination, confederation, alliance, network, conspiracy, understanding, or similar arrangement in law or in fact, of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity.” Ala. Code § 13A-6-26 (2002). For more information, see “Gangs—Background, Federal Law, State Law, Do Anti-Gang Laws Violate the Constitution? Local Ordinances,” http://law.jrank.org/pages/7073/Gangs.html#ixzz1T7pFqyck. In discussion of trafficking in persons, this article uses definitions from the Trafficking Victims Protection Act (TVPA) of 2000. Under the TVPA, only “severe forms of trafficking” are protected. Severe forms include (a) in which a commercial sex act is induced by force, fraud, or coercion, or in which a person induced to perform such an act has not attained 18 years of age and (b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery. 2 Office of the Attorney Southern District of California, http://www.justice.gov/usao/cas/press/ cas11-0418-Traylor.pdf; Federal Bureau of Investigation, San Diego Division, “Members and Associates of Oceanside Crip Street Gangs and One Hotel Charged with Racketeering Conspiracy Relating to Prostitution of Minors and Adults and Other Crimes and Criminal Forfeiture,” April 18, 2011, http://www.fbi.gov/ sandiego/press-releases/2011/sd041811.htm. Traci Tamura, producer, “Gang Sex Trafficking and the Internet,” CNN Backstory, June 29, 2011, http://backstory.blogs.cnn.com/2011/06/29/gang-sex-trafficking- and-the-internet/ . 3 Ibid. 2 Sold for Sex

The turning point came after she witnessed another girl who was her friend being beaten. She watched in horror as [the trafficker] sprayed mace in her mouth and forced her to swallow it and told herself that she had to escape.4 She and two other girls managed to convince a customer that their lives were in danger. The customer agreed to allow them to contact the police, but only after he received his “payment” in sex.5 In a similar case in June 2011, MS-13 gang member Alonso Ormeno was indicted for trafficking girls at a Super 8 motel just outside of Washington, D.C.6 At least one of the girls was only 15 years old when she was sold. Ormeno advertised her as a “high school girl” and “fresh out of the box.”7 A year earlier, in Brooklyn, , eight members of the street gang were also charged with sex trafficking of minors. They solicited customers using online websites. The victims, recruited from local junior high and high schools, were trafficked into prostitution. The traffickers made US$500 a day. In Seattle, Washington, just one month before the Brooklyn indictments, 10 members of the West Side Street Mobb gang were convicted of trafficking 20 victims, 5 of whom were minors.8 Gang members beat and assaulted the young women and children to force them into prostitution.9 In November 2010, 29 Somali gang members were indicted for running a multistate sex-trafficking operation that regularly ferried minors and women between Minnesota, Tennessee, and other midwestern states.10 An excerpt from a news report describes one girl’s experience: The girl was 12 when the gangsters told her the rule: They would sell her for sex to men outside the gang, but members of the or the Somali Mafia would use her for free. For more than two years she was taken on “missions” to abandoned garages, men’s bathrooms, apartments and hotels, enduring hours with multiple men so gang members could

4 Ibid. Further details of the case are in “Gangs Join to Prostitute Women,” CNN, June 23, 2011, http://cnn. com/video/?/video/world/2011/06/23/cfp.gutierrez.gang.sex.traffick.cnn. 5 Tamura, “Gang Sex Trafficking and the Internet” (note 2). 6 Indictment, United States of America v. Ormeno, May 2011, http://www.scribd.com/doc/56490863/Alonso- Cornejo-Ormeno-Indictment. For more details, see also Amanda Kloer, “Second Gang Busted for Child Sex Trafficking at Wyndham Hotel,” Change.org, June 14, 2011, http://news.change.org/stories/second-gang- busted-for-child-sex-trafficking-at-wyndham-hotel. 7 Ibid. 8 Federal Bureau of Investigation (FBI), “Sex Trafficking Convictions: Seattle Gang Dismantled,” May 20, 2010, http://www2.fbi.gov/page2/may10/trafficking_052010.html. “Mobb” is not a misspelling; it isan acronym for “Money Over Broke Bitches.” See Levi Pulkkinen, “Two More Convicted in West Seattle Child Prostitution Probe,” Seattle PI.com, February 18, 2010, http://www.seattlepi.com/default/article/Two- more-convicted-in-West-Seattle-child-899770 .php . 9 FBI, “Sex Trafficking Convictions” (note 8). 10 Federal Bureau of Investigation, Memphis Division, “Twenty-Nine Individuals Charged for Sex Trafficking of Juveniles,” November 8, 2010, http://www.fbi.gov/memphis/press-releases/2010/me110810.htm. Brian Haas, “29 Suspected Gang Members Charged with Sex Trafficking,” The Tennessean, November 8, 2010, http://www.wbir.com/rss/article/141770/2/29-suspected-Somali-gang-members-indicted-in-sex- trafficking-ring-that-included-Nashville. The Protection Project Journal of Human Rights and Civil Society 3

get money, pot or booze. Though her mother confronted two of the men twice early on and warned them the girl wasn’t even 13, they continued to prostitute her 11. Unfortunately, these cases are only a few examples out of hundreds of street gang involvement in human trafficking. An examination of the cases provides evidence of a clear link between street gangs and human trafficking in the United States. During the past decade, the United States has drafted laws and has trained law enforcement to address criminal gang activity. Similarly, in 2000, Congress drafted and passed a comprehensive law intended to address trafficking in persons. However, those two efforts have run parallel to each other for 10 years with no effective means of bringing them together. The purpose of this article is threefold: (a) to provide a better understanding of the involvement of street gangs in trafficking in persons, (b) to examine U.S. government responses to street gangs and to trafficking in persons, and (c) to suggest new approaches to addressing street gang involvement in human trafficking. The first part of this article introduces the subject. It is followed by a discussion of the prevalence of street gangs in the United States, summarizing key findings of the National Gang Threat Assessment of 2009 and examining recent case law that provides evidence of street gang involvement in human trafficking. The next section addresses trafficking in persons, summarizing the Trafficking Victims Protection Act (TVPA) of 2000 and the report of the Department of Justice on the U.S. government’s progress in implementing the TVPA. This article next looks at federal, state, and local legislation that addresses criminal gang activity . Finally, recommendations are offered for improving the U.S. government’s response to street gangs and trafficking in persons.

Findings of the National Gang Threat Assessment of 200912 Gang Proliferation, Membership, and Communication

According to the National Gang Threat Assessment, there are an estimated 1 million gang members who belong to more than 20,000 gangs that are criminally active in all 50 U .S . states 13. During the past 20 years, local street gangs have become a significant threat, because they account for the largest number of gangs

11 Excerpt from Amy Forliti, “Somali Gangs Move into Sex Trafficking, Fraud,” Associated Press, February 7, 2011 . 12 U.S. Department of Justice, National Gang Threat Assessment of 2009, January 2009, http://www.justice. gov/ndic/pubs32/32146/index.htm. 13 The National Gang Threat Assessment of 2009 lists 16 street gangs as being most criminally active in the United States. They are 18th Street, Almighty Latin King and Queen Nation, , Black P. Stone Nation, Bloods, Crips, , Fresno Bulldogs, , Latin Disciples, Mara Salvatrucha (MS 13), Surenos and Nortenos, Tango Blast, Tiny Rascal Gangsters, , and Vice Lord Nation . 4 Sold for Sex

nationwide, but also because they engage in violence in conjunction with a variety of crimes 14. Since the 1970s, gangs have expanded beyond large cities until they have become entrenched in suburban and rural areas.15 Mainly through drug trafficking, urban gangs have funded the creation of smaller local gangs to enter new, suburban drug markets that are expected to produce high profits.16 Experts note that this shift has dramatically increased the number of youths involved in gang activity.17 The percentage of students reporting gang activity in their schools increased 20 percent from 2001 to 2005, because gangs began to use schools as arenas for distributing drugs and recruiting new members.18 Increasingly, gangs use the Internet to recruit new members, to intimidate rival gang members, and to boast about gang activity.19 Traditionally, gangs have been male dominated, and this remains true today.20 Although a few all-female gangs exist, the overwhelming majority of females join male-dominated groups 21. However, in human trafficking situations, females are often not gang members. As one social worker put it, “the young women and girls are commodities that the gang members sell, just as they sell drugs and weapons.”22

Gang Types

Although numerous types of gangs exist, the U .S . Department of Justice divides gangs into three main forms in the United States: (a) street gangs, (b) outlaw motorcycle gangs, and (c) prison gangs 23. This article concerns itself mainly with street gangs .

14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Courtney’s House, discussion with social worker involved in case management of young teenagers trafficked into prostitution by street gangs, September 2011. 23 This article focuses on street gangs and their involvement in human trafficking. However, initial exploration indicates that both prison gangs and motorcycle gangs may also be involved in human trafficking. Prison gangs operate through highly structured hierarchies, which exercise substantial control over street-level gang activity in many communities. National prison gangs have strong ties to drug-trafficking organizations. Criminal motorcycle gangs are highly structured organizations that participate in a wide range of criminal activity, including violence and trafficking in drugs and weapons. These gangs have memberships in the thousands. Note that many legitimate motorcycle clubs are not involved in criminal activities. The Protection Project Journal of Human Rights and Civil Society 5

Criminal Activities

According to a survey of local law enforcement, street gangs commit as much as 80 percent of local violence 24. From 2004 to 2008, law enforcement reported a 13 percent increase in street gangs involved in drug trafficking.25 Drug distribution represents the primary means of financing gang activities. Other common gang- related crimes include armed robbery, auto theft, extortion, fraud, home invasions, identity theft, murder, and weapons trafficking. Street gangs are also being charged with new crimes, such as mortgage fraud schemes, Internet identity theft, and protection rackets 26. U.S.–based gangs increasingly fund their operations through cross-border trafficking of drugs, weapons, and persons. Cross-border trafficking between Mexico and the United States is particularly prevalent in Texas and California .

Outlook

Gangs will continue to expand in membership and move into suburban and rural areas, which will lead to increased incidents of gang-related criminal activity.27 Conflict between rival gangs may also increase as they compete over territory.28 The expansion will also translate into closer and more sophisticated relationships with drug-trafficking operations in Mexico and Canada, particularly for Hispanic gangs located near the U.S.–Mexico border.29

Street Gang Involvement in Sex Trafficking Recruitment

To produce profit, street gangs involve themselves in several forms of human trafficking, particularly sex trafficking.30 Traditionally, recruiting is done by some version of the “Romeo” method: Sylvana Hines met Michael Ward, a member of the Pimping Hoes Daily gang, when she was fifteen years old. While the two were dating, she fell in love with him. He romanced her for a short time and then began to sell her to others when she was sixteen.31 When she indicated a desire to stop, he beat her. He had trafficked at

24 National Gang Threat Assessment of 2009, 8–9 (note 12) . 25 Ibid., 9. 26 Ibid., 10. 27 Ibid., 13. 28 Ibid. 29 Ibid. 30 Statement of Assembly Member Marty Block, introducing AB 918, April 8, 2011. 31 People v. Jacques, Not Reported in Cal.Rptr.3d, 2011 WL 149281 at 3. 6 Sold for Sex

least seven or eight other women and girls into prostitution and was selling them on the streets at the same time 32. Today, gangs use a variety of methods to recruit women for trafficking, ranging from romancing and manipulating young girls to marketing over the Internet . Often, one gang member recruits a new girl by giving her expensive gifts, taking her on dates, and taking her to gang-hosted parties where drugs and alcohol are plentiful. Later, the boy who recruited her can use her feelings of indebtedness to manipulate her into coerced commercial sex acts 33. According to one expert, gang members use their knowledge of a girl’s insecurities to make her feel vulnerable, allowing one gang member to manipulate her more easily by showing her affection. Girls are lured and enticed into the gang and then coerced, threatened, and intimidated into prostitution . It is the price they pay for love and affection 34.

Force, Fraud, and Coercion

Once recruited, gang members use numerous methods to keep young women and girls in check. Gang members provide free drugs, thereby addicting the young women and girls. Particularly after they have been trafficked into prostitution, the girls need the drugs to numb themselves against the commercial sex acts in which they are forced to engage .35 In addition to controlling the flow of drugs to maintain control over the women, gang members can also require the women to buy the drugs with the small amount of profit the women are allowed to keep. That tactic effectively allows the gang to collect the entire proceeds from trafficking females involved with the gang.36 Another method of keeping women and girls in check is sheer force. An example of this method is a case of trafficking involving the Outlaws Motorcycle Club. The Outlaws Motorcycle Club in southern Florida is a highly structured

32 Ibid. 33 Michel Dorais and Patrice Corriveau, Gangs and Girls: Understanding Juvenile Prostitution (Montreal: McGill-Queen’s University Press, 2009), 38–39. In Virginia, an anti-trafficking expert noted that a new method of targeting and recruiting girls is “skip parties,” parties that gang members hold at private homes during school hours . They invite middle school and high school girls to skip school and come to the parties, where recruiting begins. 34 Ibid., 39. Although numerous methods are used to recruit, the key recruiting technique still seems to be romancing the young woman or child. See Seattle West Mobb trial where a gang member “admitted that he sweet-talked a girl he had known since junior high school,” and then moved her into prostitution. “He told the girl he loved her, then made her work almost seven days per week in motels in Seattle and SeaTac, according to plea paperwork.” “Gang Member Admits Forcing Teen Girls into Prostitution,” Seattle Times, August 27, 2009 . 35 Interview with Norma Hotaling, survivor of sex trafficking, June 2008. 36 Ibid., 44. The Protection Project Journal of Human Rights and Civil Society 7

organization from which members are not allowed to defect.37 Armed guards watch the clubhouse around the clock, and a witness has testified that the clubhouse is stocked with weapons and explosives.38 Women cannot join the Outlaws but may either be a member’s “old lady,” effectively his property, or belong to the entire group. Gang members often have more than one old lady, with the highest-ranking female members responsible for training new recruits.39 Most of the women are forced to generate income for the Outlaws by working as nude dancers or through commercial sex acts .40 The Outlaws also use female gang members to transport drugs to gang members in prison.41 Because the Outlaws control the flow of money and drugs to the women, the women find themselves dependent on the gang and unable to leave. Punishment for misbehavior ranges from beatings to gang rape. Even the highest-ranking female can suffer from violence and coerced commercial sex acts. Outlaws member James Thomas Nolan forced his “number one old lady,” Iris Geoghagen, to engage in commercial sex acts for his profit.42 He beat her repeatedly, which resulted in her hospitalization on multiple occasions. In one instance, she was beaten so badly that she required surgery to rewire her jaw. When she wanted out of the gang, Nolan told her she could buy her freedom for US$125,000; then he told her that she could not get out because her only income belonged to him already.43 Similarly, in California acts as a structured organization in which the members must follow the leaders’ orders or face threats of violence or death. Gang member David Hernandez testified that he feared for his life if he did not follow his superiors’ orders, including duties such as collecting the profits of the women the gang trafficked for commercial sex acts.44 The is a street gang with 45 to 50 members, which was founded in California in 1989 or 1990 by Khoanh A. Lam. The gang has a hierarchical leadership, with the newest recruits carrying out the criminal activity to shield the

37 According to the National Gang Threat Assessment, “Outlaws Motorcycle Club has more than 1,700 members belonging to 176 chapters in the United States and 12 foreign countries. U.S. law enforcement authorities estimate that Outlaws has more than 94 chapters in 22 states with more than 700 members. Outlaws also identifies itself as the American Outlaws Association (A.O.A.) and Outlaws Nation. Outlaws is the dominant OMG [outlaw motorcycle gang] in the Great Lakes region. Gang members produce, transport, and distribute methamphetamine and transport and distribute cocaine, marijuana, and, to a lesser extent, MDMA [ecstasy]. Outlaws members engage in various criminal activities, including arson, assault, explosives operations, extortion, fraud, homicide, intimidation, kidnapping, money laundering, prostitution operations, robbery, theft, and weapons violations.” National Gang Threat Assessment of 2009, Appendix D, http://www.justice.gov/ndic/pubs32/32146/appd.htm. 38 U .S . v . Starrett, 55 F .3d 1525, 1533 (11th Cir . 1995) . 39 Ibid., 1534. 40 Ibid. 41 Ibid. 42 Ibid., 1537. 43 Ibid. 44 People v . Dominguez, 121 Cal .App .3d 487, 48–95 (1981) . 8 Sold for Sex

leaders from prosecution. Although the group was primarily involved in robbery, extortion, and murder, Than Ho and Vinh Liu, two of the gang’s younger members, were ordered to collect money from houses of prostitution for the gang’s leadership.45 After Than Ho was accused of using money from the houses of prostitution to purchase narcotics for his own use, the gang leader issued a “green light” on Than Ho, thereby allowing any gang member who so desired to beat or kill him. After Than Ho continued to keep money from the houses of prostitution, members of the Black Dragons and the Oriental Lazy Boys, a gang that sometimes worked in partnership with the Black Dragons, beat Than Ho against the side of a car while a gang member brandished a gun. When a Black Dragon friendly with Than Ho tried to stop the beating, another gang member stabbed him in the stomach.46

Prevalence of Gang Involvement in Human Trafficking

Street gang involvement in human trafficking is much more extensive within the United States than is commonly understood . To date, the U .S . government has prosecuted more than 200 cases of street gangs, motorcycle gangs, and prison gangs in which commercial sex acts, prostitution, or human trafficking are mentioned.47 However, trafficking in persons by gangs is often overlooked. Gang members are

45 See People v . Lam, Not Reported in Cal .Rptr .3d, 2006 WL 3333588 at 1 . 46 Ibid., 3. 47 The following are street gang cases in which human trafficking is mentioned: People v. Morales, 2011 N.Y. Slip Op. 04537, 2011 WL 2135388 (N.Y. App. Div. 2011); Toua Hong Chang v. State, 778 N.W.2d 388 (2010); People v. Knight, 405 Ill. App.3d 461 (2010); People v. Quang Minh Tran, 177 Cal.App.4th 138 (2009); People v. Williams, 170 Cal.App.4th 587 (2009); Garcia v. State, 239 S.W.3d 862 (Tex. App. 2007); Hongyok v. Gonzales, 492 F.3d 547 (5th Cir. 2007); Moore v. Quarterman, 536 F.Supp.2d 654 (W.D. Tex. 2007); People v. Sales, 116 Cal.App.4th 741 (2004); Hollander v. Flash Dancers Topless Club, 340 F.Supp.2d 453 (S.D.N.Y. 2004); People v. Lucas, 203 Ill.2d 410 (2002); U.S. v. D.R., 225 F.Supp.2d 694 (E.D.Va. 2002); State v. Lambert, 58 Conn.App. 349 (2000); Tse v. U.S., 112 F. Supp.2d 189 (D. Mass. 2000); People v. Foster, 297 Ill.App.3d 600 (1998); City of New York v. Andrews, 186 Misc.2d 533 (N.Y. App. Div. 2000); People v. Leisner, 138 A.D.2d 273 (N.Y. App. Div. 1988); People v. Marquez, 226 Cal.App.3d 969 (1991); People v. Jackson, 145 Ill.App.3d 626 (1986); People v. Dominguez, 121 Cal.App.3d 481 (1981); People v. Morano, 38 N.Y.Crim.R. 454 (1920); Chang Hyeong Lee v. State, Not Reported in S.W.3d (Tex. App. May 12, 2011); Burton v. Zavaras, 2009 WL 62397 (D.Colo., June 28, 2011); People v. Jacques, Not Reported in Cal. Rptr.3d, 2011 WL 149281; U.S. v. Juvenile Male No. 2, No. 10-CR-470 (JFB), 2011 WL 223599 (E.D.N.Y. January 26, 2011); Duncan v. Superior Ct., Not Reported in Cal.Rptr.3d, 2010 WL 740272; People v. Lopez, Not Reported in Cal.Rptr.3d, 2010 WL 1744949; People v. Stamps, Not Reported in Cal.Rptr.3d, 2010 WL 2541653; People v. Tillis, Not Reported in Cal.Rptr.3d (2010); People v. Wiley, Not Reported in Cal.Rptr.3d, 2010 WL 3482954; People v. Castro, Not Reported in Cal.Rptr.3d, 2010 WL 65390; People v. Molina, Not Reported in Cal.Rptr.3d, 2009 WL 3069488; People v. Blair, Not Reported in Cal.Rptr.3d, 2009 WL 708830; People v. Superior Ct., Not Reported in Cal.Rptr.3d, 2008 WL 5263726; People v. Cordova, Not Reported in Cal.Rptr.3d, 2008 WL 2895958; New Jersey Div. of Youth and Family Servs. v. S.K., Not Reported in A.2d, 2006 WL 2135700 (N.J. Super. Ct. App. Div.); People v. Lam, Not Reported in Cal.Rptr.3d, 2006 WL 3333588; State v. Yang, Not Reported in N.W.2d., 2004 WL 2049753; People v. Diaz, Not Reported in Cal. Rptr.3d, 2004 WL 1922186; and People v. Chambers, Not Reported in Cal.Rptr.2d, 2003 WL 21367939. The following are outlaw motorcycle gang cases that mention trafficking in persons: State v. Cook, 530 N.W.2d 728 (Iowa 1995); Snell v. State, 290 Ark. 503 (1986); Piscottano v. Murphy, 511 F.3d 247 (2nd Cir. 2007); U.S. v. Starrett, 55 F.3d 1525 (11th Cir. 1995); U.S. v. Cortinas, 142 F.3d 242 (5th Cir. 1998); U.S. v. Hattaway, 740 F.2d 1419 (7th Cir. 1984); U.S. v. Cole, 704 F.2d 554 (11th Cir. 1983); and Kilgore v. Younger, 30 Cal.3d 770 (1982). The following are cases that mention human trafficking: Kilgore v. Younger, 30 Cal.3d 770 (1982); Armstrong v. State, 18 S.W.3d 928 (Tex. App. 2000); Brumfield v. State, 18 S.W. 3d 921 (Tex. App. 2000); People v. Garnica, 121 Cal.App.3d 727 (1981); Campbell v. State, 18 S.W.3d 914 (Tex. App. 2000); U.S. v. Krout, 66 F.3d 1420 (5th Cir. 1995); and U.S. v. Littrell, 478 F.Supp.2d 1179 (C.D.Cal. 2011). The Protection Project Journal of Human Rights and Civil Society 9

usually prosecuted for drug trafficking, weapons trafficking, armed robbery, auto theft, extortion, fraud, home invasions, identity theft, murder, and other felonies .48

Human Trafficking for Profit

Gang involvement in human trafficking is profit driven. Street gangs engage in sex trafficking for the same reason they engage in drug trafficking and weapon trafficking: to generate revenue. Unlike selling drugs and weapons, however, a human body may be sold repeatedly. Because demand remains high, particularly for young girls, the profitability of human trafficking greatly increases. So long as human trafficking remains profitable, gangs will continue to engage in it. Cutting off demand may be the answer to preventing gangs from engaging in sex trafficking.

Trafficking in Persons in the United States

Department of Justice Report

The Trafficking Victims Protection Reauthorization Act of 2005 requires biennial reporting on the nature, scope, and characteristics of human trafficking in the United States 49. To assist in meeting that obligation, the Human Trafficking Reporting System was created to collect incident-based data from state, local, federal, and nongovernment agencies . For the purposes of the system, an incident is defined as any investigation into a claim of human trafficking or any investigation of other crimes in which elements of potential human trafficking were identified.50 Between January 1, 2008, and June 30, 2010, the Human Trafficking Reporting System captured information from 42 jurisdictions that cover nearly 25 percent of the U.S. resident population. Although those jurisdictions were not representative of the entire nation, they were widely dispersed geographically.51 The information was categorized and analyzed by the U.S. Department of Justice’s Bureau of Justice Statistics before being compiled into a special report.

48 See Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997); People v. Lucas, 203 Ill.2d 410 (2002); Faheem-El v. Lane, 657 F.Supp. 638 (C.D. Ill. 1986); Snell v. State, 290 Ark. 503 (1986); People v. Knight, 405 Ill. App.3d 461 (2010); People v. Quang Minh Tran, 177 Cal.App.4th 138 (2009); People v. Williams, 170 Cal.App.4th 587 (2009); Garcia v. State, 239 S.W.3d 862 (Tex. App. 2007); People v. Sales, 116 Cal.App.4th 741 (2004); Armstrong v. State, 18 S.W.3d 928 (Tex. App. 2000); Brumfield v. State, 18 S.W. 3d 921 (Tex. App. 2000); People v. Dominguez, 121 Cal.App.3d 481 (1981); People v. Jacques, Not Reported in Cal.Rptr.3d, 2011 WL 149281; People v. Lopez, Not Reported in Cal.Rptr.3d, 2010 WL 1744949.; People v. Cordova, Not Reported in Cal.Rptr.3d, 2008 WL 2895958; and People v. Chambers, Not Reported in Cal.Rptr.2d, 2003 WL 21367939 . 49 Trafficking Victims Protection Reauthorization Act of 2005, Title II, Section 201. 50 Duren Banks and Tracey Kyckelhahn, “Characteristics of Suspected Human Trafficking Incidents, 2008– 2010,” Bureau of Justice Statistics, April 2011. 51 Ibid. 10 Sold for Sex

It should come as no surprise that 81 percent of confirmed traffickers were male, whereas 94 percent of confirmed sex-trafficking victims were female.52 Of confirmed labor-trafficking victims, 68 percent were female.53 Most of the victims in domestic sex-trafficking cases were younger than 25 years old. In fact, although only 38 percent of confirmed labor-trafficking victims were under 25, the number increases to 87 percent for sex-trafficking victims.54 What may come as a surprise, however, is the origin of most of the victims. Many people assume that trafficked persons in the United States come primarily from other countries—illegally smuggled immigrants who are tricked by the promise of employment . Although that is the case for some victims, most victims are not foreigners but are actually children born here in the United States.55 In fact, according to the Bureau of Justice Statistics report, more than four-fifths of victims in sex-trafficking crimes were identified as U.S. citizens (83 56 percent). These statistics confirm that trafficking in the United States is not simply an international problem. It is very much a domestic problem in which U.S. women and children are trafficked into prostitution. The involvement of street gangs in the proliferation of these crimes cannot be underestimated. And although some progress has been made toward understanding the street gang trafficking, additional research is needed on the nature and scope of their involvement . More information is needed on the methods of recruitment, transportation, and marketing in street gang trafficking. Further investigation will provide a clear understanding of the use and types of force, fraud, and coercion . Finally, a better idea is required of the types of crimes, including sex trafficking, labor trafficking, organ trafficking, and related activities, such as identify theft, document tampering, and human smuggling. Furthermore, to successfully combat trafficking at the street gang level, the key role of state and local agencies must be acknowledged. Partnerships between all levels of government must be further encouraged. The Bureau of Justice Statistics report noted that in 92 percent of sex-trafficking cases, the lead investigating agency was a state, local, or territorial agency, whereas less than 7 percent of investigations were headed by federal agencies 57. State and local governments will have to learn to recognize trafficking victims and offenders as such before appropriate action can be taken to eliminate demand for trafficked persons.

52 Trafficking Victims Protection Reauthorization Act of 2005, H.R. 972, 109th Congress (2005). 53 Ibid., 6. 54 Ibid., 1. 55 Ibid. 56 Ibid. 57 Ibid., 4. The Protection Project Journal of Human Rights and Civil Society 11

U.S. Department of State Tier Placement for the United States

The U.S. Department of State is mandated by law to produce an annual “Trafficking in Persons Report” (TIP report). The TIP report assesses and rates countries and territories worldwide on the progress they are making in addressing human trafficking. For the first time in 2010, and again in 2011, the U.S. Department of State assessed and rated the progress of the United States . It cites one study that found that despite increased efforts in recent years, fewer than 10 percent of state and local law enforcement agencies in the United States had protocols or policies on human trafficking.58 According to the 2011 TIP report, victims who are U.S. citizens, both adults and children, are predominantly found in sex-trafficking cases.59 Foreign victims, however, are more often found in labor trafficking than in sex trafficking.60 In 2009, the most recent year for which data are available, 235 males and 844 females younger than 18 were reported to the Federal Bureau of Investigation as having been arrested for prostitution in commercialized vice, which was an increase from 206 males and 643 females in 2008 . U .S . citizen children involved in commercial sexual exploitation are often runaway, troubled, and homeless youth.61 NGOs providing services for these children suggest that the law enforcement focus should be on the adults trafficking children and the exploiters who are buying them. In addition, they recommended that children who are trafficked into prostitution always be treated as victims. Several states have passed laws decriminalizing prostitution for children, but many states have not.62 According to the TIP report, the Department of Education increased efforts to provide educational resources to school districts to help them prevent, identify, and respond to human trafficking and commercial sexual exploitation of children. However, states have not yet created programs to increase awareness or identification within schools.63 The TIP report concluded that the U.S. government fully complies with the minimum standards for the elimination of trafficking, including strong federal law enforcement efforts, strengthened support for federal task forces on trafficking, and proactive measures to identify cases . 64 Still, much work needs to be done. For example, sex-trafficking prosecutions involving minors do not require a showing of

58 U.S. Department of State, 2011 U.S. Trafficking in Persons Report, 373. 59 Ibid., 372. 60 Ibid. 61 Ibid. 62 According to ECPAT, in the past two years, Connecticut, Illinois, Minnesota, New York, Vermont, and Washington have passed legislation that decriminalizes child prostitution and provides social services for victims . 63 Ibid., 376. Because schools are a primary source for gang recruitment, new educational modules must also address street gang trafficking. 64 Ibid., 372. 12 Sold for Sex

force, fraud, or coercion, yet the United States has seen very few human-trafficking charges related to street gangs that force minors into lives of prostitution .

U.S. Government Response to TIP and Street Gangs

Response to TIP

The Victims of Trafficking and Violence Protection Act of 2000, the Trafficking Victims Protection Reauthorization Act of 2003, the Trafficking Victims Protection Reauthorization Act of 2005, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 provide the tools to combat trafficking in persons both worldwide and domestically. For these tools to be useful, however, they require a comprehensive, multidisciplinary effort. Within the government, such an effort means the participation and coordination among agencies with a range of responsibilities that include criminal enforcement, labor enforcement, victim outreach and services, public awareness, education, trade policy, international development and programs, immigration, intelligence, and diplomacy. Although the United States has struggled with effective interagency coordination in the past, the federal government’s anti-trafficking response is slowly evolving into a comprehensive, multifaceted strategy that successfully draws on the specialized expertise of numerous federal departments . In fact, coordination has increased dramatically in recent years . For example, the Bureau of Justice Assistance in the Justice Department’s Office of Justice Programs has developed and administered the Anti–Human Trafficking Task Force Initiative that funds task forces nationwide through grants to local law enforcement agencies.65 On the international front, the Human Trafficking Prosecution Unit has partnered with the Office of Overseas Prosecutorial Development Assistance and Training, the Office of International Affairs, the Department of Homeland Security’s Immigration and Customs Enforcement, and Mexican national law enforcement authorities to develop bilateral investigations and prosecutions of transnational trafficking networks. This U.S.–Mexico Bilateral Enforcement Initiative has produced landmark prosecutions under Mexico’s anti- trafficking law, charging Mexican associates of traffickers under investigation in the United States 66. Numerous departments have come together to organize local initiatives, regional training forums, and national conferences that bring together federal, state, and local law enforcement, government agencies, and

65 U.S. Department of Justice, Civil Rights Division, “Report on the Tenth Anniversary of the Trafficking Victims Protection Act,” October 29, 2010. 66 Ibid., 9. The Protection Project Journal of Human Rights and Civil Society 13

nongovernmental organizations (NGOs) to coordinate anti-trafficking efforts and to exchange expertise 67. Governments have also worked increasingly with NGOs in the area of victim protection 68. The Office of Justice Programs’ Office for Victims of Crime provides grants to nongovernmental victim service providers to meet the needs of human- trafficking victims and has established a Training and Technical Assistance Center to provide guidance and expertise to grantees 69. Victim assistance experts in the Justice Department’s Office for Victims of Crime and Office of Violence against Women and the Anti-Trafficking in Persons Division of the Department of Health and Human Services’ Office of Refugee Resettlement are collaborating to develop, fund, and guide victim assistance programs; to improve law enforcement capacity to work with victims; and to streamline access to victim assistance during investigations and prosecutions 70. Victim-witness coordinators in the Human Trafficking Prosecution Unit, U.S. Immigration and Customs Enforcement, Federal Bureau of Investigation, and U.S. Attorneys’ Offices around the country have also played instrumental roles in coordinating with NGOs and law enforcement to ensure the protection of victims 71. These cooperative efforts are only a few of the ways in which the federal government has begun working to bring an end to human trafficking. The President’s Interagency Task Force to Monitor and Combat Trafficking—a cabinet-level entity created by the 2000 TVPA—has been central in coordinating government-wide efforts to combat human trafficking. The Departments of Defense, Labor, and Homeland Security and the U .S . Agency for International Development have all played critical roles in anti-trafficking efforts. Even the Department of Agriculture has taken significant steps, ensuring that agricultural products imported into the United States are produced without the use of child or forced labor. Despite these improvements, however, none of these efforts were aimed at preventing street gang involvement in human trafficking. Until recently, street gangs were not seen as perpetrators and, thus, were not targeted for specific anti-trafficking policies and programs. Nor were female gang members or gang girlfriends viewed as victims of street gangs. In early 2010, the first cases emerged in the courts. Shortly thereafter, new research by Global Centurion and other NGOs uncovered hundreds of cases of street gang involvement in human trafficking. Coordinated efforts are essential to an integrated response to human trafficking, but that coordination must take place on the state and local levels and must be intentionally incorporated into nonfederal legal systems. It will be challenging to

67 Ibid., 10. 68 See ibid., 11–12. 69 Ibid. 70 Ibid., 12. 71 Ibid. 14 Sold for Sex

coordinate such a broad multilevel effort, but it is a critical endeavor that will undoubtedly yield unprecedented results. If such a comprehensive approach can be applied to the area of street gangs and human trafficking, it will greatly improve the ability to protect child victims and to achieve long-lasting results.

Response to Street Gangs

Since the mid-20th century, gang violence in the United States has become widespread—all 50 states and the District of Columbia report gang problems. As street gangs have become a significant problem, many municipalities, states, and even the federal government have found it necessary to enact gang-related legislation. The laws vary widely from jurisdiction to jurisdiction, and some are more extensive than others . During the past decade, communities have drafted and passed gang-focused legislation to address specific community problems. At the federal level, a number of efforts to introduce legislation to address gang problems in the United States have been made. The Gang Prevention and Effective Deterrence Act of 2003,72 the Gang Deterrence and Community Protection Act of 2005,73 the Gang Abatement and Prevention Act of 2007,74 and the Gang Abatement and Effective Deterrence Act of 200975 had similar results . Introduced in either the House or the Senate, they stalled and ultimately did not pass. Questions about constitutional issues, such as freedom of association and states’ rights among others, have doomed these efforts. RICO (Racketeer Influenced and Corrupt Organizations Act)76 was enacted in 1970 and since then has been the basis for numerous state anti-gang laws.77 It has also been subjected to, and has survived, several constitutional challenges and has been used to arrest, charge, and prosecute in recent street gang trafficking cases.78 Under RICO, “racketeering activity” is broadly defined enough to include some gang activities, but the statute is designed to combat more

72 S. 1735, 108th Congress (2003) (introduced by Senator Orrin Hatch of Utah). 73 H.R. 1279, 109th Congress (2005) (introduced by Representative Randy Forbes of Virginia). 74 S . 132, 111th Congress (2009) . 75 Ibid. 76 “Racketeering” is defined broadly and applies to “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance.” 18 U.S.C. § 1961(1)(A) (2006). 77 David R. Truman, “The Jets and Sharks Are Dead: State Statutory Responses to Criminal Street Gangs,” Washington University Law Quarterly 73, no. 683 (1995): 686. 78 See ibid., 689. The Protection Project Journal of Human Rights and Civil Society 15

activities 79. The Continuing Criminal Enterprise Statute80 is centered on gang activity in relation to drugs. For instance, the statute defines a continuing criminal enterprise as a “continuing series of drug violations by five or more people.” The statute allows the government to seize any property that was the result of, used in, or was intended to be used in, the criminal enterprise81 and imposes a life sentence if the defendant is found to be the “administrator, organizer, or leader of the enterprise.”82 States have taken important steps to combat gang activity. Of the 50 states and the District of Columbia, all but 3 have enacted some form of legislation relating to gang activity (Vermont, West Virginia, and Wyoming have not) 83. Twenty-one states and the District of Columbia have passed gang prevention laws,84 33 states have created enhanced penalties for gang-related criminal acts,85 and 21 states have public nuisance laws that count gang activity among the factors in determining a nuisance 86. Thirty-nine states and the District of Columbia have legislation

79 These activities include “murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act).” 18 U.S.C. § 1961(A) (2000). Furthermore, racketeering may include bribery; sports bribery; counterfeiting; theft from an interstate shipment; embezzlement from pension and welfare funds; extortionate credit transactions; fraud and related activity in connection with identification documents; transmission of gambling information; mail fraud; wire fraud; financial institution fraud; unlawful procurement of citizenship or nationalization; reproduction of naturalization or citizenship papers; sale of naturalization or citizenship papers; obscene matter; obstruction of justice; obstruction of criminal investigations; obstruction of state or local law enforcement; tampering with a witness, victim, or informant; false statements in application and use of a passport; forgery or false use of a passport; misuse of a passport; fraud and misuse of visas, permits, and other documents; peonage and slavery; interference with commerce; robbery or extortion; racketeering; interstate transportation of wagering paraphernalia; unlawful welfare fund payments; illegal gambling businesses; laundering of monetary instruments; engaging in monetary transactions in property derived from specified unlawful activity; use of interstate commerce facilities in the commission of murder-for-hire; sexual exploitation of children; interstate transportation of stolen motor vehicles and other stolen property; trafficking in counterfeit labels for phonorecords, computer programs, or computer program documentation or packaging and copies of motion pictures or other audiovisual works; criminal infringement of a copyright; unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances; trafficking in goods or services bearing counterfeit marks; trafficking in certain motor vehicles or motor vehicle parts; trafficking in contraband cigarettes; and white slave traffic. 18 U.S.C. § 1961(1)(B). 80 A “continuing criminal enterprise” is defined as participating in a continuous series of felonies that “are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and from which such person obtains substantial income or resources.” 21 U.S.C. § 848 (c)(2)(A), (B)(2006). 81 18 U.S.C. § 853(a)(2006). 82 18 U.S.C. § 848(b)(1)(2006). 83 “Highlights of Gang-Related Legislation: Spring 2010,” National Gang Center, Bureau of Justice Statistics, http://www.nationalgangcenter.gov/Legislation/Highlights (last visited July 25, 2011). 84 Ibid. See generally Arizona Code §41-191.07, California Penal Code §13825.4, Missouri Code §161.650, and New Jersey Code §18A:35-4.26. 85 Ibid. See generally Alaska Code § 12.55.137, Louisiana Code § 15:1403, Minnesota Code § 609.229, Montana Code § 45-8-404, and South Dakota Code § 22-10A-2. 86 Ibid. See generally Florida Code § 823.05, Georgia Code § 16-15-7, and Illinois Code § 720 ILCS 5/37-1. 16 Sold for Sex

that defines “gang,”87 and more than half the state legislatures have laws against graffiti.88 Twenty-two states define gang activity, and the same number has enacted legislation on gangs and schools .89 Many states have also enacted laws specifically permitting and creating gang-related databases.90 In addition to those state-level databases, several regional databases and numerous municipal databases keep track of gang activity . 91 At all levels of government, new innovative approaches are starting to emerge in the fight to combat gang activity. Indiana, for example, requires that real estate and dwellings be disclosed as “psychologically affected property” in real estate transactions if they are the locations of criminal gang activity . 92 Many municipalities have also taken steps to fight gang recruitment. Los Angeles has long imposed a school-day anti-loitering law for 14- to 18-year-olds,93 with the hope that it would help deter gang activity among youth .94 Some cities, such as Fort Worth, Texas, are increasing the funding for gang intervention and prevention programs even among budget cuts. 95 Even more innovative approaches will need to be adopted, however, to curb the growing trends in gang activity. Much can be learned from other countries and how they are adapting their operations. In Canada and the United Kingdom, for example, law enforcement personnel have begun seizing gang-related property

87 Ibid. See generally New Jersey Statutes § 2A:153-4.1, Arkansas Code § 5-74-202, Florida Statutes § 874.03, and Colorado Revised Statutes § 19-1-103. 88 Ibid. See generally Delaware Code 11 § 812, District of Columbia Code § 22-3312.05, Hawaii Revised Statutes § 577-3.5, and Minnesota Statutes § 617.90. 89 Ibid. See generally Arizona Revised Statutes § 13-709, Georgia Code § 20-8-6, Indiana Code § 20-20-30-8, and Maryland Code § 9-803. 90 Arizona, Colorado, Florida, Illinois, Minnesota, North Dakota, South Carolina, Texas, Virginia, and Washington all have statutes specifically enabling the use of gang databases. “Gang-Related Legislation by Subject: Gang Databases,” National Gang Center, Bureau of Justice Statistics, http://www. nationalgangcenter.gov/Content/HTML/Legislation/gang_databases.htm (last visited July 25, 2011). 91 Two of the most notable regional databases are the Northeast Gang Information System and CAL/GANG. See generally, Raymond Dussault and Julie Wartell, “Technology Acquisition Project Case Study: California Department of Justice CAL/GANG System,” in Case Studies on Acquisition of Information Technology for Law Enforcement (Alexandria, VA: Institute for Law and Justice, 2001), 38, http://www.ilj.org/publications/ docs/Case_Studies_Acquisition_of_IT.pdf. 92 “‘Psychologically Affected Property’ Defined,” Indiana Code § 32-21-6-3. 93 Los Angeles Municipal Code § 45.04 94 But see Jorge Morales, “Truancy Tickets Keep L.A. Students at Home,” LA Progressive, July 27, 2009, http://www.laprogressive.com/political-issues/truancy-tickets-keep-la-students-at-home (indicating that the law may be doing more harm than good). 95 Daniel Wood, “Why One City Is Spending More on Anti-Gang Efforts despite Budget Cuts,” Christian Science Monitor, June 10, 2011, http://www.csmonitor.com/USA/2011/0610/Why-one-city-is-spending- more-on-antigang-efforts-despite-budget-cuts. The Protection Project Journal of Human Rights and Civil Society 17

and then using the seized property to combat future gang activity.96 Those and other creative approaches will need to be adopted to combat early and heavy recruitment methods of gangs and to confront increasing trends in gang violence 97. Despite the plethora of gang-related laws, however, few make any connection between street gang activity and human trafficking. Until a spate of court cases and new research, human trafficking had not been identified as a key suspect activity for gangs. That is changing. California Assembly Bill 918 (currently in committee) would amend a 2000 law to punish gang-related activity, adding pimping, pandering, and human trafficking as offenses that may be used to establish a pattern of criminal gang activity punishable by law.98 Several other communities are following suit.

Recommendations To effectively combat street gang involvement in human trafficking, all the current prevention, prosecution, protection, and assistance programs to combat both human trafficking and street gangs need to be continued. In addition, new approaches that combine collaborations are vital. State and local governments should add human trafficking to the list of suspect activities for criminal gangs . Gang activity is evolving and criminal code statutes need to reflect that change. Where gangs are using sexual exploitation and human trafficking to fund their operation and victimize vulnerable young women and children, states should add pimping, pandering, and human trafficking to the list of gang crimes recognized in state law. Those additions will give law enforcement officials the tools necessary to track gangs that commit those crimes, making it easier to prosecute and put those criminals behind bars. In addition, such additions will aid in the rescue and restoration of the young women and girls being exploited in this criminal activity. Most states now have laws that define criminal gangs and

96 See “Car Seized from Organised Crime Gang to Be Used by Police,” Strathclyde Police Department, Glasgow, http://www.strathclyde.police.uk/index.asp?docID=7576 (last accessed July 26, 2011); and “Abby PD Use Hummer Seized from Trafficker in Anti-Gang Campaign,” Vancouver Sun, February 23, 2011, http://blogs.vancouversun.com/2011/02/24/abby-pd-use-hummer-seized-from-trafficker-in-anti- gang-campaign . 97 Canadian law enforcement authorities even seized a dozen pit bulls being trained by gangs to fight and turned them into anti-gang dogs . The dogs are taken to elementary and middle schools to help teach children about the dangers of criminal gang activity. 98 Committee on Appropriations, California State Assembly, “Bill Analysis: AB 918 as Amended, March 25, 2011,” http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0901-0950/ab_918_cfa_20110503_152131_asm_ comm .html . 18 Sold for Sex

list offenses that are associated with gang activity.99 The definition of a criminal street gang (a) triggers enhanced penalties and bail, (b) affects probation and parole conditions, (c) augments law enforcement tools, and (d) affects the way a case is handled by all stakeholders in the system. Pimping and pandering currently carry mandatory prison sentences in most states, but a few states provide for enhanced penalties for a criminal street gang connection . According to California Assemblyman Marty Block, who is offering AB 918, which adds pimping, pandering, and human trafficking to the California Street Terrorism Enforcement and Prevention Act (the STEP Act), new hybrid gangs have evolved in the United States solely for the purpose of profiting from pimping, but it is difficult to prosecute those gang members effectively. The U.S. government’s Task Forces on Gangs and Task Forces on Human Trafficking should meet together regularly. Currently, two separate systems of task forces are in place (one set of task forces to address criminal gang activity and another set of task forces to address human trafficking). This single-system approach results in a lack of coordination and planning across systems . Data are stove-piped, resulting in loss of capability. Task forces on human trafficking and gang activity should meet at least twice a year to exchange information and resources and to coordinate activities . Gang investigations should include special proactive tactics for spotting human trafficking. In their 2009 book Gangs and Girls, Michael Dorais and Patrice Corriveau compiled extensive research that indicates that many victims do not recognize themselves as such because they are in love with their pimps or consider their abusers to be family.100 Some are even convinced to see sex as an obligation— an onus that must be performed to earn a place in their new “family.” Girls from broken homes and abusive situations who are beaten and raped by male figures can be more easily desensitized to sex through sexual assault, gang rapes, and physical violence. They will rarely object then when one further step of commercial sex is

99 For example, California’s gang law lists 33 offenses associated with gang activity: assault with a deadly weapon; robbery; unlawful homicide or manslaughter; sale, possession for sale, transportation, manufacture, offer for sale of controlled substances, or offer to manufacture controlled substances; shooting at an inhabited dwelling or occupied motor vehicle; discharging or permitting the discharge of a firearm from a motor vehicle; arson; intimidation of witnesses and victims; grand theft; grand theft of any firearm, vehicle, trailer, or vessel; burglary; rape; looting; money laundering; kidnapping; mayhem; aggravated mayhem; torture; felony extortion; felony vandalism; carjacking; sale, delivery, or transfer of a firearm; possession of a pistol, revolver, or other firearm capable of being concealed on the person; threats to commit crimes resulting in death or great bodily injury; theft and unlawful taking or driving of a vehicle; felony theft of an access card or account information; counterfeiting, designing, using, or attempting to use an access card; felony fraudulent use of an access card or account information; unlawful use of personal identifying information to obtain credit, goods, services, or medical information; wrongfully obtaining Department of Motor Vehicles documentation; prohibited possession of a firearm; carrying a concealed firearm; and carrying a loaded firearm. 100 Dorais and Corriveau, Gangs and Girls (note 33) The Protection Project Journal of Human Rights and Civil Society 19

required or asked of them.101 Developing new outreach strategies to reach girls in gangs will be critical. One very good source of help in this task will be survivors— young women and children who were trafficked by gangs and may be best equipped to help develop new and successful outreach programs. Gangs involved in human trafficking should be charged under TVPA or state law in addition to other criminal charges. Having enacted strong laws against human trafficking, the government must fully enforce them to effectively deter trafficking in persons. Typically gang members are charged with Class A felonies, such as murder, extortion, drug trafficking, and weapons trafficking, while trafficking in persons goes uncharged . With increased street gang involvement in human trafficking, a concerted effort must be made to understand and combat this criminal activity. Adding sex-trafficking charges to other counts is key to combating both criminal street gang activity and trafficking in persons. Communities should develop specialized outreach, education, and training programs to address gang-related trafficking. Prevention programs are an essential part of combating street gangs involved in human trafficking. New modules on street gangs can be added to anti-trafficking training courses and components on trafficking in persons must be added to street gang training. New educational curricula need to be developed for each classic concentric circle of concern: (a) the individual at risk, (b) family, (c) friends, (d) schools, (e) religious institutions, and (f) communities. Each community should establish sector-specific training courses for parents, teachers, social workers, health providers, law enforcement officials, religious leaders, and others who may be first to encounter street gangs involved in human trafficking. Basic education about the problem is important; even more critical is a protocol for how to identify the problem and how to take immediate and effective action. As one expert noted, “As long as street gangs are better organized than the forces combating them, they will have the upper hand.”102 Law enforcement should seize assets from gangs involved in human trafficking and restore justice to trafficking victims. A critical component of successful law enforcement in drug trafficking and arms trafficking is asset forfeiture. Confiscation of assets that are the proceeds of crime and the instrumentalities of crime (money, cars, houses, luxury items, and so forth) is a “hit ‘em where it hurts” strategy that is a “law enforcement success story.”103 The program has become a key part of the federal government’s efforts to combat major criminal activities, and yet to date, it is rarely used in human-trafficking cases. Currently, assets seized are turned over to local law enforcement to fund future law enforcement activity. Seizing the

101 “Why does it matter,” one teenaged victim said when asked why she didn’t flee a trafficking situation, “I’m damaged goods already.” 102 Dorais and Corriveau, Gangs and Girls, 108 (note 33) . 103 U.S. Marshall Service, “Asset Forfeiture Program,” http://www.justice.gov/marshals/assets/assets.html. 20 Sold for Sex

assets of street gangs involved in trafficking will cripple the gangs and enhance law enforcement activities. An even better approach would allow all assets seized in street gang trafficking activities to be used for victim services for girls rescued from trafficking situations. Creative application of the law should be explored. Title IV of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008104 is the Child Soldiers Prevention Act of 2008. It defines a “child soldier” as (among other definitions) “any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state.” It is a tactic of adult members of street gangs to arm young (mostly male) children and send them out to commit serious crimes. That “conscription” and committing of crimes, such as murder, armed robbery, and extortion, put young males forever on the other side of the law. Is it possible to use the TVPA’s prohibitions against child soldiers to address the growing problem of recruitment of young male children into street gangs, other types of gangs, and organized criminal networks? It is critical to explore new applications of the law to help create a comprehensive approach to combating street gang involvement in trafficking in persons.

Conclusion During the past 10 years, street gangs have increasingly turned to human trafficking as a way to generate funds. Little is known about the dynamics involved in this trafficking; even less is known about how to combat this growing phenomenon . Additional research on the methods of recruiting, transporting, harboring, marketing, buying, and selling involved in gang-related human trafficking will be important. Street gangs engage in human trafficking because the risk is low and the profit is high. Drafting and passing new laws targeting gang-related human trafficking will be important. In addition, new proactive law enforcement tactics that help identify street gangs involved in human trafficking must be developed. Federal and local law enforcement authorities should identify approaches that encourage collaboration between current efforts to address human trafficking and efforts to address street gangs. Finally, community education about street gangs, human trafficking, and the combination of the two is critical. Sectoral approaches tailored for parents, teachers, and community leaders will strengthen community resistance to human trafficking and other criminal gang activities.

104 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Title IV. The Protection Project Journal of Human Rights and Civil Society 21

Article

Egyptian Seasonal Marriages: Human Trafficking under the Veil of Child Marriage Lauren S. Willard*

Introduction ...... 23. . . . I . Seasonal Marriages in Egypt ...... 25. . . A . Seasonal Marriages in Practice ...... 25 . . B. Religious Justifications ...... 30 . . . C. Seasonal Marriage as Child Marriage and Trafficking in Persons . . . .32 . II . Child Marriage and Seasonal Marriage ...... 33 . . A . Causes ...... 33. . . . B. Effects ...... 36 C. Additional Consequences of Seasonal Marriage ...... 40. . III. Human Trafficking and Seasonal Marriage ...... 42 A. Trafficking Definition ...... 43 . . B. Forced Marriage as Trafficking ...... 44 . . C. General Causes and Consequences of Human Trafficking ...... 46. . D. Recognition of Seasonal Marriage as Human Trafficking ...... 47. . IV. International Law ...... 48. . . V. Domestic Law ...... 56 . . . A. New Anti-Trafficking Law ...... 58 . . B. New Child Law ...... 58. . . C. Review of Trafficking Legislation ...... 59. . . D. Child Marriage Laws ...... 68 . . VI. Egypt’s Efforts under the Human Trafficking Three Ps Approach . . . . 68. . A . Prevention ...... 69. . . B. Prosecution ...... 75 . . . C . Protection ...... 79. . . VII . Revolutionary Changes ...... 82 Conclusion ...... 83

* University of Virginia School of Law, J.D., 2011; The Johns Hopkins University School of Advanced International Studies (SAIS), M.A., 2011. This paper is the product of human rights fieldwork conducted in Egypt during January 2010 as part of the Cowan Fellows Human Rights Study Project. I would like to thank Dr. Mohamed Mattar, executive director of The Protection Project and professor at SAIS, for his expertise and guidance, Professor Anne Coughlin and Professor Deena Hurwitz of the University of Virginia School of Law for their support, and the Cowans for providing the generous grant that made this research possible. 22 Egyptian Seasonal Marriages The Protection Project Journal of Human Rights and Civil Society 23

Introduction It is summer in a village on the outskirts of Cairo, Egypt. A girl, barely 14, is told that a marriage has been arranged for her. Her suitor is a wealthy tourist from Saudi Arabia. Her family is very poor; she is uneducated and illiterate. The marriage broker, a powerful member of her community, has told her father of the riches he will receive in return for this marriage. The union is to last for only one month: a temporary marriage that the broker claims is condoned by Islamic law. Under pressure from her father, with ambition for a better life, and unaware of the consequences, she is taken to be married. The girl meets her husband for the first time. He is 70 years old. He takes her to a rented apartment in Cairo where he ravages her for his pleasure, despite her cries and resistance. She is raped, beaten, and abused. Finally, his vacation to Egypt ends. He divorces his young bride and returns to the Gulf. The girl is left behind—physically and emotionally abused, infected with disease, and potentially pregnant with his child. The marriage broker and her father, however, have received a hefty sum in return for the girl’s exploitation. The prospect of more money leads them to sell her to a new group of tourists the next holiday. The vicious cycle of abuse will continue until she is considered too old. By then, she is shamed in society and undesirable for a proper marriage. She is left to support herself and her fatherless children alone; her only options are prostitution or the streets.1 This vignette represents the story of many girls living in the Arab Republic of Egypt today who are forced into seasonal marriages.2 Young girls are coerced into brief pleasure marriages by their own family and for economic gain. Under the guise of religious marriage, this practice is a thinly veiled form of forced prostitution . The perversion of Islamic marriage should not prevent the Egyptian government and the international community from condemning seasonal marriage for what it really is—an egregious form of both human trafficking and child marriage affecting one of the most vulnerable segments of the population.

1 This account is drawn from the real-life stories of girls subjected to the abusive practice of seasonal marriage in Egypt, as conveyed in interviews with government officials and nongovernmental organizations (NGOs). The organizations consulted for this article include the Oyoun Center, the Suzanne Mubarak Center for Peace, the Center for Egyptian Women Legal Assistance, the Tofulty Foundation, the Ministry of Family and Population, and the National Coordinating Committee on Preventing and Combating Human Trafficking. I would like to thank all the individuals who took the time to discuss this important issue with me. Unless I received express authorization, I have not used their names to protect the confidentiality of my sources . 2 I refer to the term for these types of marriages interchangeably as “seasonal marriages,” “temporary marriages,” “pleasure marriages,” “tourist marriages,” and “summer marriages” because the government, NGOs, and media all use different forms in labeling the practice. I will predominately use the term “seasonal marriage” because it conveys the temporary duration and its relationship to the holiday seasons when tourists typically visit these villages. “Temporary marriage” is misleading because there are other forms of temporary or mut’ah marriages among consenting adults that are not as inherently abusive as this practice. “Summer marriage” is less accurate because these marriages occur during various holidays throughout the year . 24 Egyptian Seasonal Marriages

This article places the phenomenon of seasonal marriage at the intersection of human trafficking and child marriage. Looking at seasonal marriage as an issue of child marriage and human trafficking underscores the particularly grievous nature of the human rights violation and provides two different frameworks for analysis and solutions . This article begins by describing the phenomenon of seasonal marriage, including its history and religious justifications. Part II compares and contrasts the causes and consequences of seasonal and child marriage. Part III looks at seasonal marriage as a form of human trafficking. Part IV provides a brief summary of the existing international laws that can apply to seasonable marriage, under the rubric of either child marriage or human trafficking. Parts V and VI explain and analyze Egypt’s past domestic efforts in addressing seasonal marriage, including two new pieces of Egyptian legislation: the new child law and the new anti-trafficking law. The article concludes by evaluating the effect of the revolution in Egypt on the effort to prevent the abusive practice of seasonal marriage. The recent turnover in the Egyptian government provides a new regime with the opportunity to take even further steps in eradicating seasonal marriage . There exists, however, a danger that this political shuffle may disrupt the recent efforts behind the new legislation. Seasonal marriage could be pushed aside to focus on campaigning for new civil and political rights. In addition, a new Islamic government may see seasonal marriage as within the realm of family and religious law and may fail to recognize the need for state intervention. One hopes that the changes in Egypt will bring about a greater respect for human rights in all areas, including seasonal marriage, and that the new government will continue and improve the recent efforts to eradicate the practice .

I. Seasonal Marriages in Egypt In the villages outside of Cairo, young girls are sold to wealthy tourists who are visiting from the Persian Gulf and in search of a temporary marriage, ranging from a week to several months. The temporary marriages are often called “seasonal marriages” or “summer marriages,” given that they typically occur during the holiday season. Marriage brokers arrange these short-lived unions whose sole purpose is to satiate the man’s sexual desires. At the end of the temporary marriage, the husband divorces his new wife, returns home, and leaves her behind in Egypt. In rare cases, she is taken home with him, is treated as a domestic servant, or is forced into prostitution . Joy Ngozi Ezeilo, the United Nations (UN) Special Rapporteur on Trafficking in Persons, noted that the “growing trend of sexual and economic exploitation of young Egyptian girls by their families and brokers, who execute marriages that The Protection Project Journal of Human Rights and Civil Society 25

are also popularly known as ‘seasonal or temporary’ marriage,” represents one of the most common forms of human trafficking in Egypt today.3 Although labeled “marriages,” these unions are nothing more than a cover for forced prostitution and human trafficking.4 Because the girls involved are predominately underage, the practice constitutes child marriage as well as human trafficking. The issues of early marriage and human trafficking have generated attention in the field of international human rights. Egyptian seasonal marriage unfortunately brings both issues together into a particularly harmful human rights abuse. To understand how seasonal marriage exists at the intersection of child marriage and human trafficking, I provide an overview of how it began, how it operates, and what are its religious justifications.

A. Seasonal Marriages in Practice The phenomenon of seasonal marriage started in several villages outside of Cairo. The Oyoun Center, a domestic nonprofit organization that works on this issue, claims that the culture of temporary marriages began in the 1970s when Egyptians went to the Gulf and returned with different cultural practices influenced by Shia tradition, which accepted temporary pleasure marriages.5 Wealthy tourists soon discovered the practice and started visiting villages that are well known for grooming daughters for these temporary marriages 6. The incidents of seasonal marriage are limited to specific areas in Egypt, predominately Giza and the New

3 Joy Ngozi Ezeilo, “Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children: Preliminary Note on the Mission to Egypt,” UN Doc . A/HRC/14/32/Add .5, Human Rights Council, May 20, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.32.Add5.pdf [hereinafter Special Rapporteur Report on Egypt] (commenting on the practice of seasonal marriage as a form of human trafficking after her 10-day visit in spring 2010). See also UN Special Rapporteur on Trafficking in Persons, Especially Women and Children, “UN Expert on Trafficking in Persons Urges Egypt to Intensify Its Efforts at Combating Human Trafficking,” UN High Commissioner for Human Rights, April 21, 2010, http://www2.ohchr.org/english/issues/trafficking/index.htm. 4 See Mohamed Y. Mattar, “Trafficking in Persons, Especially Women and Children, in Countries ofthe Middle East: The Scope of the Problem and the Appropriate Legislative Responses,” Fordham International Law Journal 26 (2002): 721–32 (noting that these marriages are a subversion of the religious institution of marriage and are used merely to “disguise prostitution”). 5 Interview at the Oyoun Center, in Cairo, January2010). The girl working for the center observed the trend herself five years ago when working in tourism in Hamdi, an area where many Arab men visit. She noticed that a girl would show up with a new husband each time . 6 Id.; see also “Poverty Is the Real Problem,” The Egyptian Gazette Online, December 16, 2010 (stating that “sociologists and human rights activists are well aware that Al-Hawamdeya in Sixth of October governorate has gained a reputation as a generous supplier of young girls who are not yet ready to become wives and mothers”). 26 Egyptian Seasonal Marriages

October (also known as the Sixth of October, or October 6) governorates.7 A report by Egypt’s National Council for Childhood and Motherhood found that 74 percent of the girls in the villages of Abu-Miris, Al-Hawamideya, and Al-Badrashin have been subjected to such seasonal marriages.8 Although currently limited to these specific regions, the practice is starting to spread to nearby villages. The areas are particularly vulnerable because the families are very poor and are easily pressured into selling their daughters in return for substantial sums of money. The rich tourists take advantage of the extreme poverty of the families to sexually exploit young girls 9. The vast majority of men who visit Egypt to arrange a temporary marriage are from the Arab states, predominately Saudi Arabia.10 According to an empirical study on summer marriages conducted by the Center for Egyptian Women’s Legal Assistance (CEWLA), the majority of grooms in seasonal marriages come from Saudi Arabia (60 percent); the next largest group is from the United Arab Emirates

7 Interview at the Egyptian Initiative for Personal Rights (EIPR) in Cairo, January 2010. See also interview at New Horizons in Cairo, January 2010 (identifying the problem as specific to two or three areas in Egypt, such as Al-Hawamdeya; interview with Dr. Mulki Al-Sharmani, professor at American University in Cairo, January 2010 (stating that summer marriages are particular to certain Egyptian villages, including Helwandi); interview at the Tofulty Foundation in Cairo, January 2010 (stating that the short-term tourist marriages happen only in a particular place in Egypt: the El Hawan border of Cairo from Giza, which has a reputation for young girls being sold to old men). In addition, see “Executive Summary of the Most Important Indicators of the Research Study Prepared by the National Centre for Social and Criminological Research under the Title Trafficking in Human Beings in the Egyptian Society, Patterns and Variables,” Third Annual Report of the National Coordinating Committee on Preventing and Combating Human Trafficking, Supplement, September 2010 [hereinafter NCSCR Trafficking Study] (describing trafficking through marriage as widespread in the governorates of Cairo, Fayoum, Giza, Helwan, and Sixth of October). 8 Y. Admon and L. Azuri, “In Egypt and Saudi Arabia, Conflict Escalates over Child Bride Marriages,” Middle East Media Research Institute, March 10, 2010, http://www.memri.org/report/en/0/0/0/0/0/0/4025. htm. In one field study conducted on a random sample of 2,000 people from Abu Al Normos, Badrasheen, and Hawamdia, 74.3 percent of those surveyed admitted knowing that child marriage to non-Egyptians was practiced in their villages, with 66.6 percent believing that the phenomenon was common. See Ministry of Family and Population Anti-Human Trafficking Unit, “Progress Report of the Anti-Human Trafficking Unit ‘Women and Children,’ January 2008–December 2010,” December 2010, http://www.child-trafficking. info/upload/Files/13043390272349.pdf. A report funded by the U.S. Agency for International Development (USAID) on human trafficking in Egypt also reported 35 cases of transactional marriages in the villages of El-Azizeia, Al-Badrashein, Embaba, Ezbet, Al-Hawamdeya, Meit Rahina, Mona El Amir Village, El Nakhil Village, Om Khnan, El Sahran, Sakiet Mekky, Sakkara, and Tamawa. See also USAID, “Assessment on the Status of Trafficking in Persons in Egypt: Changing Perceptions and Proposing Appropriate Interventions,” August 2007, http://pdf.usaid.gov/pdf_docs/PNADK922.pdf [hereinafter “USAID Trafficking Report”]. 9 Interview at Every Generation Ministries in Cairo, January 2010. 10 NCSCR Trafficking Study, supra note 7; Fatima Sidiya, “Misfar Misfortune: 900 Children Abandoned in Egypt by Saudi Fathers,” Arab News, October 13, 2010, http://arabnews.com/saudiarabia/article160533.ece (citing Aiman Abu Akeel, chair of the board of trustees of the Maat Foundation for Peace and Development, who said that the majority of men who visit Egypt for the purpose of arranging a misyar marriage tend to be Saudi, followed by Iraqis as the next largest group). The Protection Project Journal of Human Rights and Civil Society 27

(22 percent); and the rest are from a number of different countries, including India and Iran 11. Almost all the Arab husbands are older than 40 years old.12 Once the Arab tourist arrives in the village, a marriage broker helps him find a girl to marry. Marriage brokers arrange most of the transactions between the visiting tourist and the family, scouting for girls who are poor and uneducated and whose father will let his daughter be sold.13 These marriage brokers—called hadba—historically had a place in arranging marriages but now perform these commercial transactions 14. The broker operates as the linchpin in facilitating seasonal marriages, because the broker is the connection between the wealthy tourists and the illiterate families .15 Some older educated girls will arrange pleasure marriages without a broker, using the Internet, including websites such as http:// www.msyaronline.com.16 However, the primary mode of facilitating seasonal marriages in Egypt is through the community marriage brokers. The brokers entice girls and their families with offers of financial gain and often mislead them about the temporary nature of the marriage.17 Brokers are powerful figures in their

11 Interview at CEWLA, in Cairo, January 2010. The empirical study surveyed 12 villages where seasonal marriages are prevalent. The findings of the study were relayed orally during the interview. The findings closely track a 2007 USAID–funded report on trafficking that found that 60 percent of grooms in transactional marriages were from Saudi Arabia, followed by 22 percent from the United Arab Emirates, and the rest from India, Jordan, Kuwait, and Yemen. See “USAID Trafficking Report,” 17, supra note 8 . 12 CEWLA’s empirical report discovered that 94 percent of the grooms are older than 40. Interview at CEWLA, supra note 11. The USAID report found that 88 percent of the grooms were between 40 and 65 years old. See “USAID Trafficking Report,” 17, supra note 8 . 13 Interview at the Oyoun Center, supra note 5 . 14 Interview at the Suzanne Mubarak Center for Peace, in Cairo, January 2010; see also interview with Azza Ashmawy, Ministry of Family and Population, Trafficking in Children Unit, in Cairo, January 2010 (noting the existence of brokers, or hadba, who facilitate marriages and who existed before the practice of summer marriages began). Sometimes to facilitate the transactions, the marriage broker will create a photo album of the girls in sexy positions to show the visiting men. Interview at the Oyoun Center, supra note 5 . 15 “Marriage brokers usually play a major role in facilitating such violations…. These brokers, who know each and every family in their neighbourhood, keep a beady eye on their pretty young daughters. They bring tempting financial offers to the homes of struggling breadwinners or unemployed fathers of large families.” “Poverty is the Real Problem,” supra note 6 . See also NCSCR Trafficking Study, supra note 7 (describing the large role that the brokers, or “intermediaries,” as well as the lawyers, or notaries, play in the marriage process) . 16 Interview at the Oyoun Center, supra note 5. These websites also host men seeking temporary marriages and are not limited to Egypt . 17 Interview at CEWLA, supra note 11; see also Osama Diab, “What’s Love Got to Do With It?” Egypt Today, June 2009, http://chronikler.com/middle-east/egypt/whats-love-got-to-do-with-it. Brokers in Mohandiseen, a popular summer vacation spot, advertise to local Egyptian women with signs and classified ads, such as “Style for Serious Marriages: Find the best life partner in the only office in Egypt where 22 marriages and six marriages to Arabs and different nationalities have been completed successfully in just one month.” However, “while these ads imply that the arrangements are lifetime commitments, they are often seeking to provide their rich Arab clients with a legal and religiously permissible cover for summer sex.” Id. 28 Egyptian Seasonal Marriages

communities. Because their living depends on these transactional marriages, they coerce families to participate 18. The man pays a fixed price for the marriage, ranging from LE 5,000 to LE 70,000 (or roughly US$840 to US$11,760).19 Girls who are virgins go for up to LE 180,000 . The price drops to around LE 4,000 to LE 10,000 for the second marriage 20. Tourists will pay more if the girl is under 18. But after the girl reaches 20, the demand and the rates drop .21 Reports found that more than SRI 100 million (more than US$26 million) have been spent on temporary marriages.22 The fees go to the marriage broker, the father or parents, and the notary or cleric performing the ceremony; only a small portion of the overall price trickles down to the girl.23 The broker gets the biggest cut of the proceeds from arranging the seasonal marriage, close to 70 percent of the total cost 24. A father can receive roughly LE 4,000 (roughly US$675) for selling his daughter into the marriage.25 The girls being sold into marriage are much younger than their temporary husbands. The men are typically at least 30 to 40 years older than the girls.26 The girls range in age from 14 to 25 years old 27. However, the majority of the girls in these marriages are younger than 16 28. Although the legal age of marriage in Egypt is 18 (it was previously 16), families circumvent the law by obtaining a false certificate from a doctor stating that the girl is of legal age.29 Alternatively, the

18 In some instances, brokers pressure families not to report abuses arising in seasonal marriages by making a family write them checks, which they then hold and threaten to cash if the family goes to the police. Given the severe financial pressure the families face, they are silenced by the threat. Interview at CEWLA, supra note 11 . 19 One article estimates that the cost of a summer marriage ranges from LE 5,000 to LE 10,000 . Admon and Azuri, “Conflict Escalates over Child Bride Marriages,” supra note 8 . CEWLA reports that, on average, summer marriages will cost between LE 10,000 and LE 70,000. Interview at CEWLA, supra note 11 . 20 Interview at the Oyoun Center, supra note 5 . 21 Id . 22 “Statistics show that some SR100 million [Saudi riyals] are spent on misfar [temporary] marriages, which last for not more than a month.” Sidiya, “Misfar Misfortune,” supra note 10 . 23 Admon and Azuri, “Conflict Escalates over Child Bride Marriages,”supra note 8 . 24 Interview at the Suzanne Mubarak Center for Peace, supra note 14; and interview at CEWLA, supra note 11 . 25 Sidiya, “Misfar Misfortune,” supra note 10. See also Tariq Al-Maeena, “A Buffet of Unions,” Arab News, November 1, 2010, http://arabnews.com/opinion/columns/article177525.ece. 26 “Egypt: Anti-Trafficking Law ‘Not Sufficient,’” IRIN, May 4, 2010, http://www.irinnews.org/Report. aspx?ReportID=89013. 27 Interview at the Oyoun Center, supra note 5 . 28 NCSCR Trafficking Study, supra note 7; and Sidiya, “Misfar Misfortune,” supra note 10 . The CEWLA empirical study revealed that at least 60 percent of the victims of seasonal marriages were under the legal age. Interview at CEWLA, supra note 11. See also “USAID Trafficking Report,” 12, supra note 8 (finding that 60 percent of victims of forced marriages were under 18 years old). 29 Giuseppe Calandruccio, “A Review of Recent Research on Human Trafficking in the Middle East,” International Migration 43 (2005): 267, 280. See also “Second Shadow Report for the CEDAW Coalition: Egypt 2009,” Egyptian Association for Community Participation (EACPE), 2009, 27, http://www2.ohchr. org/english/bodies/cedaw/docs/EACPE_E.pdf [hereinafter “EACPE Shadow Report”]. The Protection Project Journal of Human Rights and Civil Society 29

transaction is accomplished through an unofficial,urfi , marriage .30 In the survey by CEWLA, 46 percent of seasonal marriages were unregistered.31 Close to half the victims in seasonal marriages are illiterate .32 Because the girls are often young and uneducated, they do not understand the consequences of these temporary unions or that they are being treated as commodities.33 Once “married,” the husband takes the girl back to his rented apartment where she is used for sex until the husband leaves for his home country.34 Most marriages range from a few days to a few months.35 Nadia, a 14-year-old girl living in Giza, was sold to a 42-year-old man from the Gulf for a one-month temporary marriage, during which she was raped every day. “He raped me on our first night together. Every day he forced himself on me, overpowering me every time after a struggle,”36 she said. Even after the husband divorces his wife and returns home, the ordeal is far from over. The girls are married off to a different man the next holiday season; sometimes they are subjected to several husbands within a few months.37 Often a girl becomes pregnant and the infant is left fatherless.38 CEWLA’s study found that 70 percent of seasonal marriages end in divorce, and 51 percent result in the wife bearing a child.39 These numbers demonstrate that at least 30 percent of seasonal marriages will lead to the girl being divorced with a baby to raise by herself. In rare cases, the husband will take his new young wife with him back to his country, where she will be forced into domestic servitude or prostitution.40 Once abroad, the

30 “Egypt: Minors Sold for Prostitution under Guise of Marriage,” IRIN, November 16, 2006, http://www. irinnews.org/report.aspx?reportid=61947 (“According to [Nihad Abul] Qumsan [director of the Egyptian Centre for Women’s Rights], rules can be circumvented in a number of ways, including falsifying birth certificates or not registering the marriage at all.”); see also interview with Dr. Mulki Al-Sharmani, supra note 7; Diab, supra note 17 (“One of the most common [forms of temporary marriages] is the ‘urfi’ marriage, in which the couple signs a secret marriage declaration.”). 31 Interview at CEWLA, supra note 11 . 32 Id. (reporting that 57 percent of victims in the study were illiterate); see also “USAID Trafficking Report,” 12, supra note 8 (finding that 43 percent of victims in transactional marriages were illiterate); and NCSCR Trafficking Study, supra note 7 . 33 Tariq Al-Maeena, “A Buffet of Unions,” supra note 25 . 34 Id.; see also interview at Every Generation Ministries, supra note 9. “Most hotels and many landlords demand proof of marriage before allowing an Egyptian to stay in the same room with a partner; the urfi contract gives the couple just enough legitimacy.” Diab, “What’s Love Got to Do With It?,” supra note 17 . 35 Sidiya, “Misfar Misfortune,” supra note 10 . 36 “Poverty Is the Real Problem,” supra note 6 . 37 Interview at the Oyoun Center, supra note 5; see also “Ministry of Family and Population Starts Campaign against Underage Summer Marriages,” Daily News Egypt, July 19, 2010, http://www.modernegypt. info/online-newsroom/egypt-news-archive/ministry-of-family-and-population-starts-campaign-against- underage-summer-marriages/ . 38 Sidiya, “Misfar Misfortune,” supra note 10 (reporting that 90 percent of Saudi fathers leave behind children born of temporary unions). Nadia, a 14-year-old married to a 42-year-old, became pregnant during the one- month marriage. Now 18 and divorced, she must care for her 2-year-old son on her own. “Minors Sold for Prostitution,” supra note 30 . 39 Id . 40 Interview at the Oyoun Center, supra note 5 . 30 Egyptian Seasonal Marriages

young girls are unable to escape, to communicate with their families, or to contact a diplomatic office.41

B. Religious Justifications Some Muslims interpret temporary marriage as a form of marriage permitted by Islamic law. Under the Shia doctrine, mut’ah marriages are pleasure marriages arranged for a finite period of time and in exchange for money.Mut’ah marriages, marriages with the intent to divorce, are allowed under Shia doctrine, but prohibited by Sunni doctrine.42 Sunni clerics see mut’ah marriages “as licentiousness in religious guise.”43 Because mut’ah marriage is banned by Sunni Islam, those involved in seasonal marriages in Egypt—a predominately Sunni country—have tried to circumvent the prohibition by categorizing them as misyar marriages 44. Sunni doctrine allows misyar marriage, a practice to provide older divorced or widowed women with male companions outside of a traditional marriage. Because Islamic law prohibits extramarital sex, these marriages let older women have intimate relationships without the man disrupting her family life.45 The term misyar derives from “visit” and refers to the fact that the man visits the woman from time to time for intimate encounters . The concept of misyar marriages has spread throughout the Sunni Muslim world, particularly in Saudi Arabia.46 On April 10, 2006, a fatwa specifically permitted this type of marriage. But mut’ah and misyar marriages are different, as Sheikh Al-Aaradhawi explains: Muta’a marriage is for a limited period of time. It is a marriage in which the man pays the woman for the time.… After the specified time period is up, the marriage is null and void.… There is no need for divorce. Misyar marriage, in contrast, cannot be annulled except by divorce initiated by the husband or by the wife, or by a judge’s ruling.… Muta’a marriage is of course forbidden among the Sunnis 47.

41 Calandruccio, “Review of Recent Research on Human Trafficking in the Middle East,” 281,supra note 29 . Calandruccio also notes, “Once abroad, the brides find themselves quickly divorced, forced into menial unpaid jobs, or married to someone else by proxy.” Id. 42 See Mohamed Mattar, “Combating Trafficking in Persons in Accordance with Principles of Islamic Law,” UN Office on Drugs and Crime,” 2009, 28, 30. 43 Aluma Dankowitz, “Pleasure Marriages in Sunni and Shi’ite Islam,” Inquiry and Analysis Series Report 291, Middle East Media Research Institute, August 31, 2006, http://www.memri.org/report/ en/0/0/0/0/0/226/1784 .htm . 44 Interview at the Oyoun Center, supra note 5 . 45 Marriage is an important institution given that sex outside of the context of marriage is forbidden by sharia and punishable by flogging according to the Quran. Sex for women outside of marriage is also a social taboo. See Diab, “What’s Love Got to Do With It?” supra note 17 46 See Dankowitz, “Pleasure Marriages in Sunni and Shi’ite Islam,” supra note 43 47 Id . The Protection Project Journal of Human Rights and Civil Society 31

The Oyoun Center claims that seasonal marriage is a perversion of misyar marriage . This use of temporary marriage strays from its original purpose of providing male companionship to older widows or divorcées, instead allowing an old man to purchase a bride for a brief time with no purpose of a lasting relationship. Sheikh Abdul Aziz Al-Asheikh, the grand mufti of Saudi Arabia, warned that misyar marriages are no different from mut’ah marriages and are not permitted under sharia 48. He believes that “such acts would have detrimental effects on society, women and children from such unions.”49 Sheikh Ali Goma’a, the grand mufti of Egypt, has issued a fatwa condemning seasonal marriage as “a form of disguised prostitution beginning with sexual abuse the girl suffer from her spouse, and ending with his departure.”50 He further stated: The rules of Islamic law and its provisions guarantee preventing such a marriage and deterring its practitioners, and criminalizing any related act of mediation and even eliminating the mandate of the father on his under aged daughter if he exposes her to such forms of sexual exploitation in return for financial compensation at the expense of her dignity and her rights 51. One of the hurdles for Egypt in addressing child marriage is that Islamic law does not provide a consensus on the minimum age for marriage 52. Some Muslims believe that child marriage is justified by the marriage of Prophet Muhammad to a six-year-old child. However, child marriage is technically permitted only when it is in the best interest of the child.53 Furthermore, the spouse is not permitted to have sex with the child before she reaches the age of puberty, defined as different ages by different schools. The general ambiguity surrounding child marriage and temporary unions in sharia have created an illusion that seasonal marriage can be justified by religious law. That ambiguity is why religious efforts to correct that misunderstanding and to affirm that temporary child marriage is against the principles of sharia are necessary to stop and prevent the practice of seasonal marriage .

48 Sidiya, “Misfar Misfortune,” supra note 10 49 Id . 50 The grand mufti also recognized that the repetitive nature of seasonal marriage perpetuates a vicious “cycle of exploitation of helpless girls.” National Council on Childhood and Motherhood Anti-Trafficking Unit, trans., “Fatwa of the Mufti of the Republic in Regard to Child Marriage” (originally published by Al-Ahram newspaper, February 13, 2010). 51 Id . 52 See Mattar, “Combating Trafficking in Persons,” 30, supra note 42 (stating that Shia Muslims do not fix a minimum age for marriage) . 53 Id . 32 Egyptian Seasonal Marriages

C. Seasonal Marriage as Child Marriage and Trafficking in Persons Seasonal marriage in Egypt is not merely a misguided practice but a violation of international human rights . Seasonal marriage operates at the intersection of two human rights issues: child marriage and human trafficking. Although this combination of human rights violations highlights the particularly egregious nature of seasonal marriage, it also provides the opportunity to approach the problem under both frameworks. Several scholars and human rights advocates argue that all child marriage should be considered a form of human trafficking.54 My argument is much narrower. When child marriage functions to cover what is in essence a commercial transaction for the purpose of sexual exploitation, early marriage becomes human trafficking. The following diagram demonstrates where the phenomenon of Egyptian seasonal marriage falls within the intersection of child marriage and human trafficking. The diagram assumes that not all child marriages will fall under the definition of human trafficking, but that all seasonal marriages are trafficking offenses . The diagram also illustrates that although the majority of seasonal marriages involve young girls, forced temporary marriages of girls older than 18 still occur 55. This article focuses specifically on those seasonal marriages at the intersection of both child marriage and trafficking, but it recognizes the need to address the issue of seasonal marriage generally 56. Applying international and domestic laws and extralegal efforts from the frameworks of both child marriage and human trafficking can more effectively address the phenomenon of seasonal marriage. I next look briefly at the issues of child marriage and human trafficking and their relationship to Egyptian seasonal marriage to support my argument that seasonal marriage falls within the intersection of both issues. Although seasonal marriage

54 See Elizabeth Warner, “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls,” American University Journal of Gender, Social Policy and the Law 12 (2004): 233, 239 (arguing that child marriage generally should be treated as a form of human trafficking). Although this argument is defensible, limiting my argument to the forced child marriage, which is clearly for the purpose of sexual exploitation, avoids the more controversial debate on the value of arranged marriage and the cultural tradition of child marriage . Even those in support of arranged marriages should see that seasonal marriages have no redeeming cultural value and are in reality a cover for prostitution . 55 Interview with Dr. Mulki Al-Sharmani, supra note 7 56 It is worth recognizing that girls older than 18 are still subjected to forced marriages, which could qualify as a form of human trafficking. However, the nature of consent becomes more problematic with older girls, requiring proof that consent to the marriage was obtained by coercion or fraud. With girls younger than 18, consent both of the girl and of her guardian is irrelevant. Child marriage can be deemed human trafficking as long as it has an exploitative purpose . Some argue that for girls of legal age, engaging in these marriages is their choice. I limit my analysis to girls younger than 18 to avoid the discussion of whether prostitution should ever be legal. Yet where there is proof of coercion, individuals who subject older girls to seasonal marriage should be prosecuted under the trafficking laws. The Protection Project Journal of Human Rights and Civil Society 33

shares many attributes with child marriage and human trafficking generally, it also has its own particular motivations and consequences. Understanding both its similarities and its differences is important in crafting an appropriately tailored response .

II. Child Marriage and Seasonal Marriage Child marriage is a widespread phenomenon. Although many believe that child marriage is an acceptable custom, human rights advocates have campaigned to reveal its harmful consequences. In the predominate number of cases, young girls are forced into marriage, either against their will or without fully understanding the consequences.57 The vulnerability of young girls easily leads to their exploitation within marriage and can lead to multiple abuses of the girls’ human rights.58 Seasonal marriage is a specific form of underage marriage in Egypt, limited in time, for the purpose of sexual exploitation, and in exchange for monetary compensation to persons other than the bride. Although seasonal marriage differs from customary child marriage in several respects, they share a number of the same causes and harmful consequences. The two underlying causes most significant for child and seasonal marriage are poverty and the lack of education and vocational training for girls. Customary child marriage may also be motivated by a desire to protect a girl’s virginity; however, this reason does not explain seasonal marriage.

A. Causes

Poverty

Poverty is one of the leading causes of child marriage . Families often see marriage as an opportunity to relieve the financial obligations of having a daughter, to provide for the daughter’s financial security, or to gain money for the family in the form of a bride price. For poor families, “one less daughter is one less mouth to feed.”59 Whether a bride’s family must pay a dowry or a suitor must pay a bride price, early marriage is seen as an economic benefit to the family. With the practice

57 Even if a child gives consent, “at such an early age, a child cannot be expected to understand the implications of accepting a lifetime partner.” “Early Marriage,” Forum on Marriage and the Rights of Women and Girls,” November 2001, 19. 58 “Worldwide, early and forced marriage probably represents the most prevalent form of the sexual abuse and exploitation of girls.” Id. As the Forum on Marriage states, “Early and forced marriage constitutes multiple abuse of girls’ human rights. Hidden behind the socially sanctioned cloak of marriage, under-age girls are deprived of their personal freedom, forced into non-consensual sex, exploitation of their labour and diminution of their educational development and individual life-choices. Furthermore they are subject to life-threatening damage to their health by having to go through pregnancy and childbirth before their bodies are sufficiently mature to do so.” Id. at 5. 59 “Early Marriages: Whose Right to Choose?” Forum on Marriage and the Rights of Women and Girls, May 2000, 12 . 34 Egyptian Seasonal Marriages

of dowries, a girl’s parents hope to secure a suitor early to avoid paying the higher dowry necessary for undesirable older unmarried women. In the practice of bride price, a groom typically pays a higher price for a younger girl 60. In theory, the payment of a dowry or bride price is intended to help the new couple furnish their home and start their lives together 61. In reality, these payments go to . When the exchange of money or goods renders marriage an economic decision for the family, it is not always motivated by the best interest of the child.62 Even when families believe that an early marriage will provide for the daughter’s livelihood, they are unaware of the harmful consequences that tend to outweigh the financial security she might receive . Poverty is also one of the major factors leading to seasonal marriage . More than a quarter of Egypt’s close to 80 million inhabitants live just on or below the poverty line of US$2 per day.63 Given the extreme poverty in the villages outside of Cairo, families are easily pressured into accepting money in exchange for the temporary marriage of their daughters to alleviate their daily struggles. “Money is always the main incentive,” said Malaka al-Kurdi, director of Cairo-based NGO Alliance for Arab Women.64 “Extreme poverty stands behind the rise in this phenomenon,” explains Ahmen Seif el-Islam, a lawyer and human rights advocate. “These parents need money and they view their daughters as a deal that can bring them money.”65 The payment for the marriage goes primarily to the marriage broker, the mazoon (notary), and the bride’s parents. Occasionally, the bride will get part of the payment, but only a small portion. The National Council on Childhood and Motherhood conducted a preliminary survey on seasonal marriage in three villages where the practice was prevalent, concluding “that poverty in the Egyptian countryside is one of the most important reasons why these families

60 “In general the younger the bride, the higher the price she will fetch. Girls are usually married to much older men who can afford to pay the bride-price.” Warner, “Behind the Wedding Veil,” 239, supra note 54 61 Interview with Ambassador Moushira Khattab, then minister of family and population, in Cairo, January 2010 . 62 “Early Marriage,” 24, supra note 57 (“It is assumed that parents make good and wise choices for their daughters. However, poverty, greed and ambition are also motivating factors as is the case with any other economic decisions.”). 63 “Minors Sold for Prostitution,” supra note 30 (“Marrying off their daughters for money is a temporary respite from poverty in a country where more than 23 percent of the 80 million population live below the poverty line.”); see also “Egypt: Anti-Trafficking Law ‘Not Sufficient,’” supra note 26; interview at Hope Village in Cairo, January 2010 (stating that child trafficking in the form of marriage derives mainly from poverty) . 64 “Minors Sold for Prostitution,” supra note 30 (“Local activists agree that the main reason for early temporary marriages, as well as other forms of child exploitation such as child labour, is extreme poverty.”). 65 “Egypt: Anti-Trafficking Law ‘Not Sufficient,’”supra note 26; see also Diab, “What’s Love Got to Do With It?” supra note 17 (stating that “for impoverished families, the financial payoffs are often more attractive than the sanctity of their daughters”). The Protection Project Journal of Human Rights and Civil Society 35

accept to marry of their daughter at this age.”66 The empirical study conducted by CEWLA identified poverty and the girls’ ambition for a better life as two causes of seasonal marriage . The girls from the villages see their friends making money from marrying wealthy Arab men and want the same ability to buy new things, not realizing the harmful consequences of short-term pleasure marriages.67 They are too young to realize the cost of what these new trinkets mean with regard to their overall well-being.

Lack of Education and Livelihood Options

Child marriage can also occur when girls have no other livelihood options. Girls with low levels of education are more likely to be married off at a younger age .68 When girls cannot go to school or work, they must be taken care of either as a daughter or as a bride.69 In most societies, females have little education or vocational opportunities, and marriage is the only option to secure a place in society and to ensure an economic livelihood . As Professor Al-Sharmani explains, the lack of education combined with poverty leads to child marriage in Egypt because families cannot support daughters who drop out of school and who cannot contribute financially.70 Child marriage is seen as a solution 71. A main cause of seasonal marriage is the lack of education for girls . First, girls with little to no education are more vulnerable to being subjected to seasonal marriages. Without an education and a job, families in these poor villages see temporary marriages as the only potential source of income . Second, the lack of education often means a general ignorance about the consequences of these temporary marriages . Many of the girls are deceived into agreeing to these temporary marriages because they are too young and do not know any better.72 A lack of education is both a cause and a consequence of child and seasonal marriage. Uneducated girls are more likely to be subjected to early or temporary marriages, and girls in marriages are less likely to continue their education .

66 When asked about reasons for seasonal marriage, 67 percent of those interviewed said it was because of the large dowry paid by the Arab spouses; 59.1 percent said it was because of poverty and low income, and 10.9 percent said it was to escape the hard work and difficult living conditions. See Ministry of Family and Population Anti-Human Trafficking Unit, “Progress Report,” supra note 8 . 67 Interview at the Suzanne Mubarak Center, supra note 11; interview at Oyoun Center, supra note 5 . 68 Interview at Hope Village, supra note 63 . 69 “Early marriage is … more common [in less developed and poorer regions] than it is in richer and more developed settings, where investments in the lives of girls are commonplace.” Sanyukta Mathur, Margaret Greene, and Anju Malhortra, “Too Young to Wed: Their Lives, Rights, and Health of Young Married Girls,” International Center for Research on Women, 2003, 6 . 70 Interview with Dr. Mulki Al-Sharmani, supra note 7 . 71 Id . 72 Interview at the Oyoun Center, supra note 5; see also interview at CEWLA, supra note 11 (suggesting that one of the main contributors to seasonal marriage is the girls’ ignorance, particularly because they are too young to understand the consequences of trying to imitate their friends in this type of marriage). 36 Egyptian Seasonal Marriages

Desire to “Protect” Girls

Child marriage also stems from the desire to safeguard young girls from the danger of being without male protection. In some communities, the fear of a girl being raped will drive parents to marry her off as a young child.73 Parents may be concerned not only for the rape itself but also for its consequences. A deflowered girl will fail to attract a good bride price, require a larger dowry, or be unable to find a husband at all. In fundamentalist Islamic societies, women are not supposed to have sex before marriage. Child marriage thus protects them from having premarital relations, becoming pregnant, or dishonoring the community’s morals.74 The desire to seclude females from male attention is reflected in the conservative dress required of females in public and the general separation of females from male society 75. Early marriage is seen as the ultimate “protection” measure. Although some describe this motivation behind child marriage as a desire to “protect,” others characterize it as a desire to “control” the girl’s sexuality.76 In regions where girls are married early to prevent them from engaging in premarital sex, there is usually a high incidence of female genital mutilation as well.77 Unlike customary child marriage, seasonal marriage cannot be justified by a desire to protect girls. Girls are blatantly subjected to numerous sexual partners in a string of seasonal marriages. The whole design of seasonal marriage is the sexual exploitation of young girls in return for economic profit; it is certainly not to preserve virginity . This difference demonstrates the danger of seasonal marriage, even for those who find customary child marriage acceptable.78

B. Effects Seasonal marriage also results in many of the same harmful consequences as child marriage. Child marriage is condemned by the international human rights community because it leads to a deprivation of a multitude of rights of the child bride. The practice of child marriage threatens, inter alia, a girl’s right to education, right to be free from violence and sexual abuse, and right to health. A children’s rights organization describes early marriage as follows:

73 Warner, “Behind the Wedding Veil,” 241, supra note 54 (stating that fathers want to marry off their daughters for their own protection against the risk of being attacked by sexual predators). 74 Mathur, Greene, and Malhortra, “Too Young to Wed,” supra note 69 . 75 Interview at the Association of Upper Egypt Education and Development in Cairo, January 2010. 76 “Whose Right to Choose?” 10, supra note 59 . 77 Id. Female genital mutilation is also aimed at controlling the girl’s sexuality by taking away feeling in her genitals in order to prevent her from having premarital sex . 78 Child marriage in general is a harmful practice. Regardless of one’s views on child marriage, seasonal marriage should be viewed as a particularly egregious form. Seasonal marriage cannot be justified by a desire to protect a girl’s virginity or to provide for long-term financial and social stability because of its repetitive and exploitative character . The Protection Project Journal of Human Rights and Civil Society 37

Early marriage consumes many years of a girl’s adolescence, compromising her schooling, life choices and future health . In these situations, girls are often condemned to lives of misery, servitude, sexual abuse and premature childbirth while they are still children themselves and therefore, before they have even reached the internationally agreed age of consent 79. The main effects of child marriage and seasonal marriage are domestic violence and abuse, health risks, and loss of educational and vocational opportunities. Seasonal marriages have additional unique consequences, including loss of future opportunities, single motherhood, and the risk of being trafficked out of the country.

Domestic Violence and Abuse

Girls in child marriages are more likely to be victims of domestic abuse. Husbands are generally much older than their child brides. That significant age gap causes an imbalance in the power structure of the relationship and allows older husbands to mistreat and sexually abuse their wives. Young girls lack the capacity to effectually negotiate with their husbands and lack the physical strength to stop unwanted sexual advances.80 Girls in early marriages face psychological trauma when forcefully initiated into sexual relations at an early age and on a regular basis.81 Given the abusive nature of many child marriages, some claim that early marriage constitutes “a form of gender-related violence.”82 Similarly, in seasonal marriages, the young brides are vulnerable to domestic violence and abuse.83 Especially when these marriages are with strangers and only temporary, the husband has no incentive to be caring and gentle. The danger of abuse is greater in seasonal marriages because the brides are in a sense “disposable,” treated as if they were prostitutes or slaves. Drawing from surveys taken as part of CEWLA’s empirical study on seasonal marriage, 98 percent of the girls in seasonal marriages who were interviewed considered them very bad marriages, and all of the women in the study were beaten and forced to have sex with their husbands.84 Only three of the women reported the domestic abuse to the police; the rest remained silent.85 In the USAID report, all victims of transactional

79 “Early Marriage,” 9, supra note 57 . 80 See United Nations Children’s Fund, “Early Marriage: Child Spouses,” Innocenti Digest 7 (March 2001), http://www.unicef-irc.org/publications/pdf/digest7e.pdf. 81 “Early Marriage,” 17, supra note 57 . 82 See “Whose Right to Choose?” 17, supra note 59 . 83 Interviews at the Oyoun Center and at the Suzanne Mubarak Center for Peace, supra note 14 . 84 Interview at CEWLA, supra note 11 . 85 Id. The study also highlighted the number of problems the women in these marriages face, including their receiving insults, their lack of legal rights, their husbands preventing them from seeing their family or abandoning them, their inability to prove the paternity of their children, their working like prostitutes and falling into that cycle again, their being treated like commodities, and their being viewed by other men as “easy girls.” 38 Egyptian Seasonal Marriages

marriages interviewed “claimed to have been hit, insulted, humiliated, and forced into having sex with their spouses.”86

Dangers to Health

Child marriage brings significant health risks to young mothers and infants. Young mothers are often pressured to demonstrate their fertility as soon as they are married 87. Child brides are often not physically developed enough to bear healthy children in the same way that women in their 20s are. Young mothers face greater risks of complications in pregnancy, contributing to higher rates of maternal morbidity.88 Girls between the ages of 10 and 14 are five times more likely to die in pregnancy and childbirth than women who are 20 to 24.89 Empirically, child marriage is also correlated with a higher infant mortality rate, likely because an immature mother is less capable of nurturing and caring for an infant.90 One serious health complication is obstetric fistula, a condition created when the womb tears as the young mother gives birth.91 Obstetric fistula results in the inability to control bladder functions, which in turn causes a girl to be shunned from society and forced into isolation 92. The occurrence of fistula among child brides is further exacerbated by the inadequate access to health care in poor societies where many of these marriages occur 93. Child marriage also leads to a higher incidence of sexually transmitted diseases (STDs), including human immunodeficiency virus (HIV). Underage brides are typically married to much older men who have had greater exposure to STDs. And in those marriages, girls are unable to negotiate safe sex practices and are pressured not to use contraceptives in order to bear children right away.94 Young girls are also more susceptible to STDs than mature women are because their thinner vaginal membranes are more likely to tear during intercourse 95.

86 “USAID Trafficking Report,” 12, supra note 8 . 87 See Mathur, Greene, and Malhortra, “Too Young to Wed,” 7, supra note 69 . 88 See Warner, “Behind the Wedding Veil,” 234, supra note 54 . 89 Cherreka Montgomery, “Too Young to Wed: Education and Action toward Ending Child Marriage,” International Center for Research on Women, 2005, 3, http://www.icrw.org/publications/too-young-wed. 90 “Child Spouses,” 10–11, supra note 80; “Egypt: Early Marriage,” Pambazuka News, July 8, 2010, http:// pambazuka.org/en/category/wgender/65797 (claiming that child marriage creates “negative impacts on newborns health since it is linked to mothers’ maturity and experience”). 91 See “Child Spouses,” 11, supra note 80 . 92 “A girl with the condition is usually ostracized as unclean, and is often divorced.” Id. 93 Id.; see also “Child Marriage and Health,” International Center for Research on Women, 2006 (stating that “fistula patients are commonly poor women, ages 15 to 20, many of whom report early marriage”). 94 See Mathur, Greene, and Malhortra, “Too Young to Wed,” 6–7, supra note 69 . 95 See Montgomery, “Education and Action toward Ending Child Marriage,” 5, supra note 89 (stating that child brides will likely receive damage to reproductive organs from early sexual intercourse and pregnancy and will be more susceptible to HIV and other diseases). The Protection Project Journal of Human Rights and Civil Society 39

Seasonal marriage results in many of the same adverse health risks as child marriage generally. Girls incur physical and mental harm from being raped by their husbands. The abuse leaves the girls with both physical and mental scars. CEWLA’s study on seasonal marriage found that girls in such unions often have negative health effects, including high blood pressure, strokes, anemia from not being fed by their husband, and injuries to their body from beatings and rape.96 The psychological problems include posttraumatic stress from being raped by her husband, and the whole experience can leave the girl hating all men.97 And if the girl does become pregnant, she faces the same health complications of maternal and infant morbidity and obstetric fistula. Furthermore, women in these temporary marriages are at a much higher risk of contracting STDs . The girls are married to older more experience men for the purposes of sex. The husbands are more likely to have had multiple sexual partners and to have contracted STDs, including HIV/ AIDS (acquired immune deficiency syndrome). Because the sexual intercourse takes place within the shell of “marriage,” the husband often refuses to use contraceptives. The bride is too young to understand the need to use protection. Even if the girl wants to use protection, she lacks the power to force the husband to practice safe sex. Children are also more susceptible than mature women to contracting STDs because of biological reasons.98

Loss of Educational and Vocational Opportunities

Girls in early marriages are more likely to end their education prematurely to fulfill their roles as spouses. The tendency to remove girls from school at an early age for marriage violates their right to education 99. Education is extremely important for the development of a young girl and for finding future career opportunities. Without the ability to finish school and to receive job or life skills, she is unable to earn her own income.100 Lack of advanced schooling places child brides at a disadvantage and forces them to rely completely on their husbands for income. Should the child marriage end in divorce, the young girl is left with no training or education to support herself. Because the girl is typically married to a much older man, she is very likely to be widowed at a young age, without any means to support herself 101.

96 Interview at CEWLA, supra note 11 (discussing the empirical study conducted on seasonal marriage) . 97 Id . 98 See Laura Davids, “Female Subordination Starts at Home: Consequences of Young Marriage and Proposed Solutions,” Regent Journal of International Law 5, no . 2 (2007): 299, 323 . 99 See “Child Spouses,” 11, supra note 80 (claiming that early marriage denies children of school age their right to education and reduces her ability to earn a living on her own). 100 “They are not permitted to work outside the home or earn their own money, and their prospects for any kind of independent life are eliminated.” Warner, “Behind the Wedding Veil,” 235, supra note 54 . 101 Id., 241; see also “Child Spouses,” 9, supra note 80 (stating that “child widows with little education and no means of earning are especially powerless” and that “these widows are, quite simply, left with no resources and nowhere to go”). 40 Egyptian Seasonal Marriages

Seasonal marriages can also deprive young girls of education and vocational training. Without an education, girls are left without alternative opportunities to support themselves. Thus, the lack of education furthers the girls’ reliance on seasonal marriages as a source of income . When they are too old for those marriages, many turn to prostitution 102. Unlike customary child marriage, these girls are not spending all year devoted to a husband and could attend school or find job training. However, these girls and their families see the tourist marriages as a main source of income, and thus, the families take the girls out of school . They do not realize the long-term benefits of education for girls or that these temporary marriages will not provide lifelong financial support. The prior consequences of seasonal marriage largely overlap with child marriage, but the next three consequences are distinct to these commercial temporary marriages . It is important to note the different effects to ensure that those dangers are addressed in drafting a narrowly tailored response to seasonal marriage .

C. Additional Consequences of Seasonal Marriage

Future Opportunities

Unlike arranged child marriages, seasonal marriages are short-term unions that prevent a girl from the long-term financial stability of a traditional marriage. Being subjected to the practice of seasonal marriage will brand the girl as “easy” and will make it difficult to find a suitor for a long-term marriage.103 In Islamic society, women are not supposed to have premarital sex, and men will seek to marry virgins. Furthermore, to have a legal marriage in Egypt, a girl needs to submit a health certificate verifying that she has no diseases, but seasonal marriages often result in a girl’s contracting an STD.104 She will not have the protection of a stable husband and will have sacrificed her education and vocational training in the meantime. When most girls reach 25, an age when they are no longer in demand for temporary marriages, they turn to prostitution because they have no education or alternative opportunities for livelihood 105. Girls that do not turn to prostitution often end up on the streets .106 Such was the case of Hanadi, a young girl sold to an older man from Saudi Arabia for a seasonal marriage when she was 14.107 Hanadi

102 Interview at the Oyoun Center, supra note 5 . 103 Interview at CEWLA, supra note 11 . 104 Interview at the Oyoun Center, supra note 5 . 105 Id . 106 “Minors Sold for Prostitution,” supra note 30 . 107 Id . The Protection Project Journal of Human Rights and Civil Society 41

doubts that she will ever be able to reintegrate into society, saying, “After what I went through, no one respects me.”108

Children from Temporary Marriages

When a girl becomes pregnant as a result of a seasonal marriage, not only does she face the health risks of early childbirth but she also has the additional hardship of being left to raise the baby alone. Although girls may try to use birth control, most girls either are ignorant about contraception or are pressured by their husbands not to use any, so a number of them become pregnant during temporary marriages 109. Since abortion is taboo in Islam, a girl will give birth to any child conceived during the temporary union 110. However, the men who enter seasonal marriages are not looking to start a family; they want only a short-term relationship for pleasure. As such, any children that are born are typically unwanted and abandoned by their fathers.111 Najeeb Al-Zamil, founder of the Back to the Roots Foundation,112 believes the men abandon their children because they fear what their relatives back home will think.113 Leaving the girl behind with an unwanted baby will affect both the child and the young mother’s future prospects. The baby will be a bastard because there is no way to prove paternity, and the girl will be forced to care for the child on her own.114 The girl will likely be put in the streets, as it is unacceptable not to have a father for your child.115 In Egypt, a young single mother is persona non grata 116. Before 2004, Egyptian law did not grant Egyptian citizenship to children whose father was not Egyptian. Without citizenship, the children could not obtain state education and health benefits. Although the government changed the nationality law to allow Egyptian mothers to pass on their citizenship, the implementation of the law has been slow.117 In Hope Village, a home for young single mothers living on the streets, the girls’ main concern was getting paperwork so their children could get government benefits and attend school.118 Although the young mothers

108 Id The. USAID report also notes that short-term transactional marriages result in isolation and abandonment of the young girls . See “USAID Trafficking Report,” 12, supra note 8 . 109 Interview at the Oyoun Center, supra note 5 . 110 Id . 111 Sidiya, “Misfar Misfortune,” supra note 10 (reporting that close to 900 children born to Egyptian women and Saudi men in seasonal marriages are abandoned by their fathers). 112 An NGO that assists Saudi children abroad. 113 Sidiya, “Misfar Misfortune,” supra note 10 . 114 Interview at CEWLA, supra note 11 . 115 Interview at the Oyoun Center, supra note 1 . 116 Interview at the Suzanne Mubarak Center for Peace, supra note 14 (describing the difficulty of single motherhood, but noting that society is slowly starting to change and recognize divorce). 117 Interview with Dr. Mulki Al-Sharmani, supra note 7 . 118 Interviews at Hope Village, supra note 63 . Hope Village in Cairo opened a center for young pregnant women and young mothers who were living on the street, giving them shelter, food, and vocational training. 42 Egyptian Seasonal Marriages

know their rights and are eligible to receive the paperwork, they have an extremely difficult time getting the state to respond.

Girls Taken to Other Countries

In some instances, the foreign husband takes his new bride back home. She will often be one of a number of wives, and her role quickly changes from wife to domestic servant 119. Treated as a slave, her liberty, health, and happiness are sacrificed. There are also reports of young wives being divorced once inthe husband’s home country and then being forced into prostitution. In one case, a Saudi man convinced the families of 22 Egyptian girls to permit the marriages by giving them money and presents, but once they arrived in his home country, he divorced them and forced them into prostitution .120 In many Arab states, the state or the husband can take away the wife’s passport and hold it so she is unable to return to Egypt against her husband’s will.121 In an anecdotal story from the CEWLA study, a girl was married through a broker and never saw her husband before the wedding. She traveled to another country, where she found that her husband was old, blind, and married to three other women. After three weeks, she was told, “You are expired” and was left on her own.122 The USAID study reports the story of Auzan, a girl from Al-Giza, who was married to a 60-year-old Jordanian man and taken to Jordan, where she was forced to work as a nanny and domestic servant and was forbidden to return to Egypt.123 In other cases, girls have been treated as maids or even used as involuntary organ donors 124.

III. Human Trafficking and Seasonal Marriage Although seasonal marriage has many similar causes and effects as child marriage in general, what makes the practice particularly harmful is the exploitative nature of the union . The temporary nature and the economic motivation demonstrate that seasonal marriage is not guided by the religious institution of marriage but is instead a disguised form of trafficking in persons for the purpose of sexual exploitation. Labeling seasonal marriage as a form of human trafficking is key to finding a solution to the problem. Human trafficking has attracted the attention of the international community in recent years, with increased awareness-raising campaigns, films, books, development of victim rehabilitation services, and

119 Id . 120 See Mattar, “Trafficking in Persons,” 732–33, supra note 4 . 121 Interview at the Suzanne Mubarak Center for Peace, supra note 14 . 122 Interview at CEWLA, supra note 11 . 123 “USAID Trafficking Report,” 11, supra note 8 . 124 Interview at the Oyoun Center, supra note 5 . The Protection Project Journal of Human Rights and Civil Society 43

enactment of international and domestic anti-trafficking laws.125 The horrible stories of the people suffering these modern forms of slavery have shocked the international community. Despite the growing recognition, trafficking in persons remains “one of the fastest growing and most lucrative criminal activities.”126 Seeing seasonal marriage as human trafficking allows existing international and domestic efforts on trafficking to be used in eradicating seasonal marriage. Treating seasonal marriage as trafficking also opens up the door for greater criminal punishment and avoids the complicated cultural issues surrounding child marriage . Early forced marriages—specifically temporary marriages in Egypt—clearly qualify as a type of trafficking in persons.

A. Trafficking Definition In November 2000, the United Nations adopted the Trafficking Protocol,127 which has since been ratified by 116 countries.128 While “trafficking in persons” can be defined in a number of ways, the UN Trafficking Protocol (or Palermo Protocol) provides the most cited definition: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring 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 129. The Palermo Protocol notes that, at a minimum, exploitation includes prostitution and other forms of sexual exploitation, forced labor, removal of organs, and other practices similar to slavery 130. The list is not exhaustive, but it provides an initial understanding of the scope of “exploitation.”131 The protocol also states

125 See Michele A. Clark, “Vulnerability, Prevention and Human Trafficking: The Need for a New Paradigm,” in An Introduction to Human Trafficking: Vulnerability, Impact and Action (New York: UN Office on Drugs and Crime and UN Global Initiative to Fight Human Trafficking, 2008), 59 (suggesting that the international community has experienced “an explosion of popular and political interest in combating trafficking in human beings”). 126 See Mattar, “Trafficking in Persons,” 721, supra note 4 . 127 United Nations Convention against Transnational Organized Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, art. 3, opened for signature December 15, 2000, T.I.A.S. No. 13127, 2225 U.N.T.S. 209 (entered into force September 29, 2003) [hereinafter Trafficking Protocol]. 128 See Clark, “The Need for a New Paradigm,” 59, supra note 125; and Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the Work of Its First to Eleventh Sessions, 55th Sess ., Agenda Item 105, U .N . Doc . A/55 .282 (2000) . 129 Trafficking Protocol, at (a),supra note 127 . 130 Id. at (b). 131 See Mattar, “Trafficking in Persons,” supra note 4. According to the UN Annotated Trafficking Protocol, the term “sexual exploitation” was intentionally left undefined so that countries that did not want to change their current prostitution laws would be comfortable signing the treaty. See Ann D . Jordan, The Annotated Guide to the Complete UN Trafficking Protocol (Washington, DC: Global Rights, 2002), 4. 44 Egyptian Seasonal Marriages

that as long as the means in subparagraph (a) —threat or use of force, coercion, abduction, fraud, deception, or abuse of power or abuse of vulnerability—are used, the consent of the victim is irrelevant .132 Furthermore, when the victim is a child— defined later as a person under the age of 18—any movement of a child for the purpose of exploitation is deemed trafficking. Consent is irrelevant for a minor, regardless of whether fraud or coercion is used, because children are incapable of consenting to their own exploitation.133

B. Forced Marriage as Trafficking The issue of forced marriage, including temporary marriage, has been recognized in the trafficking dialogue within the past few years. As Dr. Mohamed Mattar notes, Several forms of marriage in the Middle Eastern countries have been used to legitimize prostitution and other forms of sexual exploitation. Most notably, the Islamic institutions of early marriage and temporary marriage have been questioned as amounting to the exploitation and abuse of women. Marriage becomes an institution of slavery under Article I of the 1956 Convention when: “a woman, without the right to refuse, is promised or given in marriage.”134 Dr. Mattar, along with other leading human rights scholars, believes that trafficking for the purpose of forced marriage “in reality … constitutes a perversion of Islamic family law, which rests fundamentally on the right of each person to choose a spouse, a right universally conferred by international human rights law.”135 A marriage without consent—a forced marriage—violates sharia and international law.136 The UN Special Rapporteur on Trafficking in Persons issued a report on forced marriage in 2007, finding that “forced marriage has, in fact, been recognized as a form of human trafficking.”137 The report borrowed the UN Secretary General’s definition of forced marriage as “one that lacks free and valid consent of at least

132 See Trafficking Protocol, at (b), supra note 127 (“The 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”). 133 See Trafficking Protocol, at (c), supra note 127 (“The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of the exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article;” and “(d) ‘Child’ shall mean any person under eighteen years of age.”). 134 Mattar, “Trafficking in Persons,” 730, supra note 4 (citing 1956 convention) . 135 Mattar, “Combating Trafficking in Persons,” supra note 42 . 136 Id . at 69–70 . 137 Special Rapporteur on Human Rights Aspects of the Victims of Trafficking in Persons, Especially Women and Children, Implementation of General Assembly Resolution 60/251, Human Rights Council, 4th Sess ., ¶ 31 U.N. Doc. A/HRC/4/23 (January 24, 2007) (by Sigma Huda) [hereinafter Special Rapporteur Report of 2007]. The Protection Project Journal of Human Rights and Civil Society 45

one of the parties.”138 Furthermore, the report recognized that child marriage is “the socially legitimized institutionalization of sexual abuse and marital rape, sometimes of very young girls.”139 The U.S. “Trafficking in Persons Report” (TIP report) of 2010 refrains from suggesting that all forced marriages constitute trafficking in persons, but instead insists that whether the marriage is an incident of trafficking depends on the circumstances: Not all forced marriages result in cases of trafficking. Each situation is unique and needs to be evaluated on a case-by-case basis to determine whether it meets the legal definition of trafficking. The evaluation must look particularly at the terms of the marriage and the possible conditions of exploitation encountered afterward. Trafficking and forced marriage intersect when marriage is used both in conjunction with force, fraud, coercion, or abuse of power and as a means to subject wives to conditions of slavery, often in the form of domestic or sexual servitude 140. Even if one concedes that not all forced marriages can be defined as trafficking, Egyptian seasonal marriages would qualify under either the approach of Dr. Mattar and the UN Special Rapporteur or that of the U .S . TIP report . These marriages are carried out by abusing the vulnerability of girls for the sole purpose of sexual exploitation . In underage seasonal marriage, the consent of the girl and her guardian is irrelevant, voiding the need to prove coercion . Cases in which husbands transport their brides back to the Gulf countries and subject them to domestic servitude or force them into prostitution clearly fall into the common conception of human trafficking across borders. However, even if the girl remains within Egypt, this practice still constitutes a form of trafficking in persons .141 Causes and consequences for the various types of trafficking within Egypt overlap with trafficking for the purpose of forced temporary marriage. Looking at the problem of seasonal marriage as a form of trafficking can place the problem within an established framework of analysis. The trafficking framework is a helpful start, but it should be tailored to the problem of seasonal marriage. Seasonal marriage is a particularly difficult form of trafficking because it occurs under the guise of marriage, making the exploitation harder to detect . A more expansive

138 Id . ¶ 24 . 139 Id . ¶ 22 . 140 Trafficking in Persons Report 2010, U.S. Department of State, 2010, http://www.state.gov/g/tip/rls/ tiprpt/2010/index.htm [hereinafter 2010 TIP report]. 141 See “USAID Trafficking Report,” 8, supra note 8 (stating that “the 2007 TIP Report also states that a victim need not be physically transported from one location to another for trafficking to occur”). 46 Egyptian Seasonal Marriages

definition of trafficking is needed that recognizes trafficking for the purpose of forced marriage, specifically seasonal marriage.142

C. General Causes and Consequences of Human Trafficking Several contributing factors that lead to human trafficking overlap with the causes of seasonal marriage. Generally, the causes of human trafficking can be analyzed either from the perspective of the motivation of the traffickers and buyers or with regard to the vulnerability of the victims. As with child marriage, one of the causes of trafficking in persons is poverty.143 For traffickers, greed and desire for financial income will motivate their involvement in the business. In seasonal marriages, the brokers orchestrate the temporary unions in return for the largest cut of the proceeds. The brokers who arrange seasonal marriages “are making a lot of money out of this unethical business.”144 But one human rights worker explained that the matchmakers likely have financial problems of their own, “or else they would not get involved in such a despicable business.”145 The families that hand over victims are often under severe economic pressure. In the villages renowned for seasonal marriages, families live on the brink of poverty and easily succumb to the potential riches 146. Victims of human trafficking tend to come from the most vulnerable segments of society. This vulnerability is considered another leading cause of trafficking.147 Conditions of vulnerability that lead to trafficking include youth, gender, poverty, social and cultural exclusion, and limited access to education 148. The victims of seasonal marriage are particularly vulnerable given their age, gender, and socioeconomic status . Females in fundamentalist and developing societies have little power to assert themselves against male guardians.149 Similarly, children are the most vulnerable given their lack of experience and their reliance on adults.150

142 See Mohamed Y. Mattar, “Access to International Criminal Justice for Victims of Violence against Women under International Family Law,” Emory International Law Review 23 (2009): 141, 146 (noting that illicit marriage practices constitute a significant problem in many countries and that combating the problem requires a more expansive definition of trafficking that “recognizes not only trafficking for the purpose of a commercial sex act, but also trafficking for the purpose of forced marriage”). 143 See 2010 TIP report, supra note 140 . 144 “Poverty Is the Real Problem,” supra note 6 . 145 Id . 146 See notes 63–65 and accompanying text . 147 See Thanh-Dam Truong and Maria Belen Angeles, “Searching for Best Practices to Counter Human Trafficking in Africa: A Focus on Women and Children,” United Nations Educational, Scientific and Cultural Organization, March 2005, 32 (reporting that the United Nations Children’s Fund and International Labour Organization believe vulnerability is a cause of trafficking). 148 See Clark, “The Need for a New Paradigm,” 71–74, supra note 125. The Trafficking Protocol also recognizes contributing factors to trafficking as poverty, underdevelopment, and lack of equal opportunities, which overlap with the discussion on causes of child marriage generally. See Trafficking Protocol,supra note 127; see also Clark, “The Need for a New Paradigm,” 65, supra note 125 . 149 See Clark, “The Need for a New Paradigm,” 72, supra note 125 . 150 See id. (suggesting also that children are unaware of laws and unable to negotiate fair treatment). The Protection Project Journal of Human Rights and Civil Society 47

Traffickers also rely on demand for their business to be profitable. There must be sufficient demand for cheap labor, organs, domestic servants, or sex workers to make trafficking worthwhile. The demand for sex in certain regions fuels trafficking for the purposes of sexual exploitation. That demand drives the trafficking trade in areas with no legal prostitution, or, even if there is prostitution, for cheaper (free) sex workers. For seasonal marriage, the demand derives from the Arab tourists who want cheap sex under the guise of marriage. The demand for marriage in lieu of prostitution arises from the desire of men for a plausible religious and legal cover for their sexual appetites 151. This demand makes the practice of seasonal marriage profitable for the brokers and families. Human trafficking leads to a number of harmful consequences, manyof which also occur as a result of seasonal marriage. Victims of trafficking routinely face physical and sexual violence. In a trafficking study from 2006, 95 percent of respondents “reported physical or sexual violence, with three-quarters of respondents having been physically hurt, and 90 percent reporting having been sexually assaulted, all of which occurred while being trafficked.”152 Victims of trafficking for sexual exploitation, especially children, are very often infected with HIV/AIDS or other STDs, “owing notably to a lack of bargaining power concerning condom use.”153 Trafficking also causes negative mental health effects and places a stigma on the victims, who will have trouble reentering society.154 Seasonal marriage shares the causes and consequences of trafficking in persons, even where girls are not moved across borders. Much of the spousal abuse that occurs in child marriage generally is heightened in seasonal marriage because of its trafficking nature.

D. Recognition of Seasonal Marriage as Human Trafficking Human rights scholars and the Egyptian government are starting to recognize seasonal marriage as a type of trafficking in persons.155 The Egyptian government has committed itself to looking at the issue of seasonal marriage as an issue of trafficking in its National Plan of Action against Trafficking, presented by the National Coordinating Committee on Preventing and Combating Human

151 “Although prostitution exists, it is illegal, so those who want to engage in sexual relations need a front to keep the eyes of the authorities away and avoid (technically) violating Islamic law.” Diab, “What’s Love Got to Do With It?,” supra note 17 . 152 Judith Dixon, “The Impact of Trafficking in Persons,” inAn Introduction to Human Trafficking: Vulnerability, Impact and Action (New York: UN Office on Drugs and Crime and UN Global Initiative to Fight Human Trafficking, 2008), 83. 153 Id . at 84–85 . 154 Id . at 84 and 86 . 155 Interviews at the National Coordinating Committee on Preventing and Combating Human Trafficking and at the Ministry of Family and Population, supra note 1 . 48 Egyptian Seasonal Marriages

Trafficking within the Ministry of Foreign Affairs.156 In addition to other measures, the National Plan of Action involves a continuing study on “summer marriages” as a form of human trafficking, which is to be completed by June 2012.157 In a report following her recent visit to Egypt, the UN Special Rapporteur on Trafficking in Persons recognized that a common form of trafficking in persons in Egypt included “trafficking for the purposes of sexual exploitation of underage girls through ‘seasonal’ or ‘temporary’ marriage.”158 Samia ‘Abd Al-Ghani Al-Mutim, a member of the Egyptian National Human Rights Council, called this phenomenon not an issue of marriage but one of trafficking in young girls that seriously threatens social stability.159 Dr . Mohamed Mattar states that the occurrence of temporary and transactional marriages of young Egyptian girls to wealthy suitors from the Persian Gulf can amount to sex trafficking.160 The 2010 TIP report acknowledged seasonal marriages, writing that “wealthy men from the Gulf reportedly travel to Egypt to purchase ‘temporary’ or ‘summer marriages’ with Egyptian females, including girls who are under the age of 18; these arrangements are often facilitated by the females’ parents and marriage brokers and are a form of commercial sexual exploitation of children.”161

IV. International Law Because seasonal marriage falls under the rubric of both human trafficking and child marriage, a larger scope of international and domestic law can be used to combat the problem. Although no international convention is precisely on point, the language in several international human rights agreements can be interpreted as obligating Egypt to address seasonal marriage. Existing scholarship

156 National Coordinating Committee on Preventing and Combating Human Trafficking, “National Plan of Action against Human Trafficking: January 2011 till January 2013,” December 2, 2010, 5 [hereinafter National Plan of Action]. 157 Id . 158 Special Rapporteur Report on Egypt, ¶ 9, supra note 3. The report also states, “In particular, the Special Rapporteur is concerned about the growing phenomenon of ‘seasonal’ or ‘temporary’ marriage of young Egyptian girls with foreign men, which is sometimes used as a smokescreen for providing sexual services to foreign men.” Id. 159 Admon and Azuri, “Conflict Escalates over Child Bride Marriages,” supra note 8. See also “Egypt: Anti- Trafficking Law ‘Not Sufficient,’” supra note 26 (quoting Farkhunda Hassan, head of Egypt’s National Women’s Council, who spoke about seasonal marriages at a conference in Cairo, as saying, “Instead of offering protection to their daughters, parents force them to get married in this way. They’re paid to do this and this is the crux of human trafficking.”). 160 “While such temporary marriages are often arranged with parental consent, the transactional marriages are conducted by marriage brokers who aid foreign men in the procurement of Egyptian wives; both temporary and transactional marriages could amount to sex trafficking.” Mattar, “Access to International Criminal Justice for Victims of Violence against Women,” 146, supra note 142 . 161 2010 TIP report, supra note 140; see also “EACPE Shadow Report,” 25, supra note 29; and “USAID Trafficking Report,” 11, supra note 8 (stating that “one common form of transactional marriage is the practice of deceiving young girls from poor rural areas in Egypt into marrying men from the wealthier Persian Gulf States”). The Protection Project Journal of Human Rights and Civil Society 49

has summarized the international law that addresses child marriage as a form of trafficking.162 But I will look briefly at those international commitments with respect to seasonal marriage and Egypt specifically. The scope of international law consists of treaties that address trafficking, marriage, or both, as well as soft- law principles. Analyzing international law applicable to seasonal marriage is important to establish that a common international norm prohibiting the practice exists and to outline the concrete obligations the international community can use to pressure Egypt into addressing the issue .

International Provisions on Human Trafficking

The main international treaty on human trafficking is the UN Trafficking Protocol of 2000 (Palermo Protocol) 163. In addition to providing a definition of trafficking in persons, the Palermo Protocol introduces a three-part framework for addressing human trafficking.164 The “Three-P approach” divides a state’s obligations into the categories of prevention, prosecution, and protection. The protocol mandates that states develop domestic legislation to criminalize acts of trafficking.165 The protocol also addresses the need to protect victims by asking states to “consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking,” including housing, counseling, medical care, employment, and education and training opportunities .166 The protocol obliges states to create policies to prevent trafficking in persons and to undertake research, media campaigns, and social and economic initiatives, as well as bilateral and multilateral cooperation.167 The Convention on the Rights of the Child (CRC), which Egypt ratified on July 6, 1990, provides children the right to protection from physical and mental violence, the right to health, and the right to protection from abduction, sale, or trafficking.168 Although the convention contains no explicit provision on child marriage, if “temporary marriage” is defined as a form of trafficking, the CRC prohibits such a practice. A narrower addendum to the CRC—the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography169—can

162 See Warner, “Behind the Wedding Veil,” supra note 54 (providing a comprehensive review of international treaties on trafficking and marriage applicable to child marriage generally). 163 Trafficking Protocol,supra note 127 . 164 Id.; see also Clark, “The Need for a New Paradigm,” 65, supra note 125 . 165 See article 5 of Trafficking Protocol, supra note 127 (“Each State Party shall adopt such legislative and other measures as may be necessary to establish criminal offences for the conduct set forth in article 3 of this Protocol, when committed intentionally”). See also “USAID Trafficking Report,” 20, supra note 8 . 166 See Article 6 of Trafficking Protocol,supra note 127 . 167 Id., Article 9; see also Jordan, Annotated Guide, 27–28, supra note 131 . 168 See Warner, “Behind the Wedding Veil,” 252, supra note 54 . 169 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, S. Treaty Doc. No. 106-37, 39 I.L.M. 1285, http://www2.ohchr.org/ english/law/crc-sale.htm [hereinafter Optional Protocol on the Sale of Children]. 50 Egyptian Seasonal Marriages

specifically address seasonal marriage. Egypt is legally bound by the protocol, having acceded to it on July 12, 2002 . 170 Article 2 defines the sale of children as “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.”171 Child prostitution is defined as the “use of a child in sexual activities for remuneration or any other form of consideration.”172 As seasonal marriage involves the transfer of a child bride in return for monetary compensation for the purposes of sexual exploitation, such practice could fall under the definition of either “sale of children” or “child prostitution.” The protocol thus gives specific instructions to Egypt on providing rights and establishing criminal liability for the sale or prostitution of children under the guise of seasonal marriage . Article 3 of the optional protocol says that states should criminalize “[o]ffering, delivering or accepting, by whatever means, a child for the purpose of … [s]exual exploitation of the child.”173 In addition, “[e]ach State Party shall make such offences punishable by appropriate penalties that take into account their grave nature.”174 Article 8 requires adoption of “appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process.”175 Furthermore, uncertainty of a victim’s actual age should not prevent initiation of a criminal investigation 176. Article 9 directs states to promote public awareness, including to children, of the harmful effects of the sale of children and child prostitution. States are also required to “take all feasible measures with the aim of ensuring all appropriate assistance to victims of such offences, including their full social reintegration and their full physical and psychological recovery.”177 Finally, Article 10 recognizes the transnational element in the sale of children and requires states “to strengthen international cooperation by multilateral, regional and bilateral arrangements for the prevention, detection,

170 Id . 171 Id ., Article 2(a) . 172 Id ., Article 2(c) . 173 Id., Article 3(i)(a). The protocol also extends to attempted sales and to anyone who assists in the sale or transfer of a child . Id ., Article 3(2) . 174 Id ., Article 3(3) . Article 7 also directs states to incorporate measures to provide for the seizure and confiscation of all assets derived from the offense of selling children. Id. 175 Id., Article 8(1) (including “[r]ecognizing the vulnerability of child victims and adapting procedures to recognize their special needs”; “[i]nforming child victims of their rights”; “[p]roviding appropriate support services to child victims throughout the legal process”; and “[p]roviding, in appropriate cases, for the safety of child victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation”). 176 Id ., Article 8(2) . 177 Id., Article 9(4). The word “feasible” is ambiguous, but would at least require Egypt to make minimal efforts for victim assistance and rehabilitation. The Protection Project Journal of Human Rights and Civil Society 51

investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.”178

International Provisions on Child Marriage

The problem of underage seasonal marriage can also be addressed by international commitments against child marriage and obligations requiring the full and free consent of spouses. Trafficking for the purpose of forced marriage also interferes with family relations in violation of international family law. As Dr. Mattar writes: International family law thus establishes the principles of consent to marriage, a minimum age for marriage, and equality in the union of marriage. Consequently, trafficking for the purposes of forced marriage, arranged marriage, marriage by catalog or mail-order brides, temporary marriage, child marriage, and forced child- bearing violate international family law.179 The Universal Declaration of Human Rights (UDHR) provides that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”180 Article 16 of the UDHR requires that “[m]arriage shall be entered into only with free and full consent of the intending spouses,”181 a requirement that is violated by the practice of seasonal marriage. The UDHR also grants a “right to marry” to men and women “of full age.”182 However, the UDHR fails to define the concept of “free and full consent” and to establish the meaning “of full age.” The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (or Marriage Convention) also mandates the “full and free” consent of both parties in marriage.183 That requirement could be construed to void consent other than the bride herself, forced consent, or consent of a minor who is not old enough to give informed consent. Like the UDHR, this treaty fails to give meaning to consent .184 Furthermore, the convention contains no monitoring or reporting requirements to aid its enforcement, and because Egypt never signed the Marriage Convention, it is not currently legally binding for Egypt as a nonsignatory.185

178 Id ., Article 10(1) . 179 Mattar, “Access to International Criminal Justice for Victims of Violence against Women,” 143, supra note 142 . 180 Universal Declaration of Human Rights, art . 16(3), G .A . Res . 217A, U .N GAOR, 3d Sess ., 1st plen . Mtg ., U.N. Doc A/810 (December 12, 1948). 181 Id ., Article 16(2) . 182 See id ., Articles 16 .1 and 16 .2 . 183 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, November 9, 1962, 521 U.N.T.S. 231 (“No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witness, as prescribed by law”). 184 See Davids, “Female Subordination Starts at Home,” 314, supra note 98 . 185 See Warner, “Behind the Wedding Veil,” supra note 54 . 52 Egyptian Seasonal Marriages

The African Charter,186 to which Egypt is a party, explicitly prohibits child marriage and requires the minimum age of marriage to be 18. Article XXI(2) reads: “Child marriage and the betrothal of girls and boys shall be prohibited, and effective action including legislation shall be taken to specify the minimum age of marriage to be eighteen years.”187 The African Charter further refuses to recognize exceptions for local religious or cultural practices, reflecting recent changes in attitudes toward child marriage.188 The language in this convention is more explicit than in other international treaties 189. The Arab Charter of Human Rights190 prohibits “trafficking in human beings for the purposes of prostitution” and the “exploitation of the prostitution of others or any other form of exploitation.”191 More specifically the charter provides: “All forms of slavery and trafficking in human beings are prohibited and punishable by law. No one shall be held in slavery and servitude under any circumstances.” Under Article 38 of the Arab Charter, member states are required to report on the status of trafficking in their countries.192 The charter does not address temporary or child marriage directly. Yet if seasonal marriage is considered a form of human trafficking, the charter likewise obliges Egypt to prohibit the practice and punish the perpetrators .

International Treaties on Both Child Marriage and Human Trafficking

The Convention on Eradication of Discrimination against Women (CEDAW) contains provisions on both marriage and trafficking of women.193 Egypt ratified CEDAW on September 18, 1981. With respect to marriage, Article 16 .1 of CEDAW reads: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent.194

186 Organization of African Unity: Banjul Charter on Human and People’s Rights, 21 I.L.M 58,59 (1982) (entry into force October 21, 1986). 187 Id., Article XXI(2). 188 See Warner, “Behind the Wedding Veil,” 257, supra note 54 . 189 See Davids, “Female Subordination Starts at Home,” 317, supra note 98 . 190 Arab Charter on Human Rights, May 22, 2004 (entry into force March 15, 2008). 191 Id.; see also Mattar, “Combating Trafficking in Persons,” 108, supra note 42 . 192 See Article 14 of the Arab Charter, supra note 190; see also Mattar, “Combating Trafficking in Persons,” 109, supra note 42 . 193 Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, 1249 U .N .T .S . 13, 19 I .L .M 33 (1980) . 194 Id ., Article 16 .1 . The Protection Project Journal of Human Rights and Civil Society 53

This article echoes the language of the Marriage Convention and bans the practice of forced marriages . CEDAW also explicitly condemns the practice of child marriage. Article 16.2 states: “The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.”195 CEDAW does not, however, cite 18 as the required minimum age for marriage; instead, it allows the minimum age to be determined on a state-by-state basis. This provision prohibits effective enforcement against early marriage 196. In addition, Egypt made a reservation to Article 16, allowing sharia to take precedence where applicable. This reservation would preserve the practice of bride price and other religious marital law. In theory, the reservation should not allow an exception for seasonal marriage because the practice is unacceptable under sharia. Yet some may argue that seasonal marriage is permissible under Islamic law and, thus, falls outside the scope of CEDAW.197 However, CEDAW also prohibits the trafficking in women under Article 6, stating, “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”198 Egypt has not made a reservation to Article 6. Because seasonal marriage is also a form of trafficking in women, this provision of CEDAW prohibits the practice. With respect to enforcement mechanisms, Article 18 creates required periodic reporting for all states to the CEDAW Committee 199. As part of this process, the CEDAW Committee met in New York to discuss Egypt in January-February 2010. The committee noted specifically the practice of seasonal marriage in Egypt, acknowledging that the practice “constitutes a new type of trafficking in girls under the cover of marriage.”200 In response, the CEDAW Committee urged Egypt to “adopt all necessary measures to prevent and combat this negative phenomenon, including through the prosecution of perpetrators.”201 The committee further recommended that Egypt “develop, with the support of religious authorities, community leaders and civil society organizations, awareness-raising campaigns

195 Id., Article 16.2. See also Mattar, “Access to International Criminal Justice for Victims of Violence against Women,” 143, supra note 142 . 196 Davids, “Female Subordination Starts at Home,” 316, supra note 98 . 197 See Section I.B for a discussion on the Islamic justifications and attacks on seasonal marriage. 198 See Article 6 of CEDAW, supra note 193 . 199 Id.; see also Mohamed Y. Mattar, “Comparative Models of Reporting Mechanisms on the Status of Trafficking in Human Beings,” Vanderbilt Journal of Transnational Law 41 (2008): 1355, 1392; “Key International Instruments Protecting the Rights of Victims of Trafficking,” National Council for Childhood and Motherhood, Child Trafficking Unit, 3, http://www.child-trafficking.info/upload/Files/KEYINT1.pdf. The CEDAW Committee is created under Article 17 of the convention, see supra note 193 . 200 Committee on Elimination of Discrimination against Women, 45th Sess ., January 18-February 5, 2010, ¶ 27 U.N. Doc. CEDAW/C/EGY/CO/7 (February 5, 2010) [hereinafter CEDAW Findings on Egypt]. 201 Id . ¶ 28 . 54 Egyptian Seasonal Marriages

on the negative implications of these ‘temporary marriages’ for the girls involved and their families.”202

International Soft Law

In addition to treaties, the international community has addressed the issues of trafficking and child marriage with various statements of principles, guidelines, and general goals. These statements issued by international bodies, including the General Assembly, the UN Special Rapporteur, and various summits are not binding as such on countries. However, these international soft-law commitments can evolve into hard law in the future through either creation of customary law or incorporation into international agreements 203. Soft-law instruments allow countries to make specific commitments and to discuss best practices. One example of a nonbinding commitment is the Beijing Platform for Action, which specifically addressed child marriage during a discussion on women’s rights in 1995, encouraging states to “[e]nact and strictly enforce laws to ensure that marriage is only entered into with the free and full consent of the intending spouses; in addition, enact and strictly enforce laws concerning the minimum age for marriage and raise the minimum age where necessary.”204 The final document also recognized the need to eliminate “harmful attitudes and practices, such as female genital mutilation, son preference[,] … early marriage, including child marriage, violence against women, sexual exploitation, sexual abuse, discrimination against girls in food allocation and other practices related to health and well-being.”205 The UN General Assembly also passed a resolution on trafficking in women and girls . The resolution called on governments to take measures to prevent trafficking in women and girls206 and to provide recovery protection for victims 207. The resolution recognized forced marriage, calling on governments to “take appropriate measures to address the factors that increase vulnerability to being

202 Id . 203 See “Key International Instruments,” 10, supra note 199 . Some might also argue that statements of the UN General Assembly reflect customary international law. 204 See Beijing Declaration and Platform for Action, UN Fourth World Conference on Women, September 15, 1995, Objective L. 205 See Davids, “Female Subordination Starts at Home,” 317, supra note 98 (citing Beijing Platform). 206 G.A. Res. 61/44, ¶ 14, U.N. Doc. A/RES/61/144 (February 1, 2007) (“Urges governments, in cooperation with intergovernmental and non-governmental organizations, to support and allocate resources for programmes to strengthen preventive action, in particular education for women and men, as well as for boys and girls, on gender equality, self-respect and mutual respect, and campaigns to increase public awareness of the issue at the national and grass-roots levels”). 207 Id. ¶ 15 (“Calls upon concerned Governments to allocate resources, as appropriate, to provide comprehensive programmes for the physical, psychological and social recovery of victims of trafficking.…”); Id. ¶ 17 (“Also encourages Governments to … develop and implement gender- and age-sensitive programmes for effective counseling, training and reintegration into society of victims of trafficking and programmes that provide shelter and helplines to victims or potential victims”). The Protection Project Journal of Human Rights and Civil Society 55

trafficked, including poverty and gender equality … including by strengthening existing legislation with a view to providing better protection of the rights of women and girls and to punishing perpetrators.”208 Finally, Joy Ezeilo, the UN Special Rapporteur on Trafficking in Persons, visited Egypt and specifically recognized the practice of seasonal marriage as a form of human trafficking and issued recommendations 209. The UN Special Rapporteur on Trafficking in Persons has the power to investigate the scope of trafficking in persons, to monitor the problem, to report on government actions, to receive and inquire into complaints, and to make policy recommendations 210.

Limitations of International Law

International law provides states with general responsibilities to stop the exploitation of women and children through underage and forced marriages. International treaties, however, are typically not self-executing and require domestic legislation to implement their provisions . Furthermore, treaties are often written in aspirational language that is too general to create concrete enforceable norms .211 Finally, the international treaties do not include a private right of action, so an individual has no way to sue the government for failure to live up to the terms of a convention 212. International legal norms do not have the enforcement mechanisms of domestic law; however, reporting mechanisms can still expose problems and prompt governments to make changes in accordance with evolving international legal norms .213 In Egypt, the Palermo Protocol, CEDAW, the UN Special Rapporteur, and other international bodies have influenced the government to increase the marriage age of girls from 16 to 18 and to enact domestic trafficking legislation. Finally, the international agreements have not specifically addressed the practice of seasonal marriage. However, because the practice is limited geographically to certain regions in the Middle East, the international community as a whole is unlikely to draft a treaty solely concerned with temporary marriage.214 Instead, a regional agreement among the Arab states could focus specifically on seasonal

208 Id . ¶ 3 . 209 Special Rapporteur Report on Egypt, supra note 3; see also Special Rapporteur Report of 2007, supra note 137 (recognizing forced marriage as a form of trafficking in persons and proposing recommendations for states to address the problem). 210 Mattar, “Comparative Models,” 1359, supra note 199 . 211 Warner, “Behind the Wedding Veil,” 247, supra note 54 . 212 Id . at 248 . 213 See “Key International Instruments,” 8, supra note 199 (noting that reporting requirements can shed light on issues). However, the gaps between reporting periods are problematic. Id. 214 Certainly options exist for improvement in the international agreements on trafficking and child marriage generally, but as the scope of this article is limited to seasonal marriage, I will not engage in that reform debate here. 56 Egyptian Seasonal Marriages

marriage and contain concrete obligations to prosecute perpetrators and to address both the supply and demand aspects of the problem.215

V. Domestic Law In the past few years, Egypt has made significant strides in addressing the problems of human trafficking and child marriage. The recent government explicitly acknowledged the growing practice of seasonal marriage in the areas outside of Cairo as a problem in need of attention. Egypt introduced several new laws against underage marriage and human trafficking as part of a comprehensive government strategy, which also includes awareness raising, victim assistance, and the creation of new government entities.216 Despite the recent efforts taken against the practice of seasonal marriage, the government rejected its classification as a “phenomenon.” In speaking with Ambassador Moushira Khattab, then the minister of family and population, she was emphatic in describing seasonal marriage as “a problem, not a phenomenon,” and in pointing out that the practice was very limited geographically to those well- known villages outside of Cairo.217 Although the geographic scope of the problem is limited, the gravity of the human rights abuses for those girls and its potential to spread is concerning. Yet the relatively limited geographic scope should help the government address the problem more efficiently. The U.S. TIP report (2010) acknowledged Egypt’s recent efforts, which placed Egypt from the Tier 2 Watch List to Tier 2 in the TIP report, stating: The Government of Egypt does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government approved new legislation criminalizing trafficking in persons for labor and sexual exploitation. The new law represents an important step in eliminating severe forms of trafficking in persons, though its implementation is as yet untested 218. However, the TIP report notes that there are still areas in need of improvement with respect to trafficking in persons and seasonal marriage.

215 This agreement could occur within the framework of the Arab League. 216 “Egypt’s Parliament Approves Law to Combat Human Trafficking,” Al Ahram Daily News Egypt, April 27, 2010 (stating that the government’s efforts include “creation of new hotline to provide round-the-clock assistance to children and women in distress, the establishment of a National Coordinating Committee to Combat and Prevent Trafficking in Persons as well as an intensive media campaign to highlight the issue”). 217 Interview with Ambassador Moushira Khattab, then minister of family and population, in Cairo, January 2010 . 218 See 2010 TIP report, supra note 140 . The Protection Project Journal of Human Rights and Civil Society 57

Two recently created government bodies focus on the issue of seasonal marriage. The Ministry of Family and Population was an outgrowth of the National Council for Childhood and Motherhood, led by Ambassador Moushira Khattab. The Trafficking in Children Unit was created in December 2007 in the Ministry of Family and Population and the National Council for Childhood and Motherhood (NCCM) to address all different types of trafficking, including the forced temporary marriages of young girls .219 In establishing the unit, the secretary general and staff members traveled to the United States to learn about strategies for dealing with human trafficking, including visits to Washington, D.C., San Diego, Miami, and Chicago. In Washington, D.C., they met with Dr. Mattar, who advised them on model anti-trafficking legislation and efforts.220 They also established a specialized trafficking library.221 In July 2007, the National Coordinating Committee on Preventing and Combating Human Trafficking was created through a decree by the prime minister of Egypt .222 Located within the Ministry of Foreign Affairs, the National Coordinating Committee includes 16 members from the Ministry of Family and Population, NCCM, National Population Council, Ministry of Foreign Affairs, Ministry of the Interior, Ministry of Justice, Prosecutor General, and NGOs 223. The cross section of representatives allows the committee to formulate a holistic approach to human trafficking in Egypt, involving all relevant government agencies. The committee’s main responsibility was to draft anti-trafficking legislation to bring Egypt in line with the UN Trafficking Protocol.224

219 UN Office on Drugs and Crime, “Global Report on Trafficking in Persons: Egypt,” February 2009. See also “EACPE Shadow Report,” 6, supra note 29 . 220 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . 221 Id . 222 Interview with ambassador within the National Coordinating Committee, supra note 155; see also CEDAW Findings on Egypt, supra note 200 (commenting on Decree No . 1584 of 2007 that created the National Coordinating Committee on Preventing and Combating Human Trafficking). 223 Law No. 64 of 2010 (A Law to Combat Human Trafficking),Al-Jarida Al-Rasmiyya, May 10, 2010 (Egypt) [hereinafter Egypt Anti-Trafficking Law]. Also interview at the National Coordinating Committee, supra note 1; interview at the Suzanne Mubarak Center for Peace, supra note 14; interview with Azza Ashmawy, Ministry of Family and Population, supra note 14; “Law Combating Trafficking in Persons: A Welcome Step that Requires Careful Implementation,” Egyptian Initiative for Personal Rights, November 2010, 7, http:// www.eipr.org/en/report/2010/11/24/1003 [hereinafter EIPR report]; and “USAID Trafficking Report,” 22, supra note 8 . 224 Interview at the National Coordinating Committee, supra note 1; Third Annual Report of the National Coordinating Committee on Preventing and Combating Human Trafficking, September 2010, 2 (noting that the Drafting Committee held nearly 40 meetings in its creation of the new trafficking law and that the law was passed unanimously after minor adjustments); and “USAID Trafficking Report,” 23–24, supra note 8 (describing the functions of the new National Coordinating Committee as including drafting a national plan of action to combat human trafficking, drafting trafficking legislation, suggesting policies and programs, increasing media awareness, preparing research studies on trafficking, meeting every month, and forwarding recommendations through the Foreign Ministry to the Council of Ministers) . 58 Egyptian Seasonal Marriages

A. New Anti-Trafficking Law The National Coordinating Committee on Preventing and Combating Human Trafficking introduced draft anti-trafficking legislation to the Shoura Council, Egypt’s Parliament, in February 2010. The new anti-trafficking law, Law No. 64 of 2010, was approved by the upper house of the Egyptian Parliament on April 24, 2010, and by the lower house on May 2, 2010.225 The speaker of the People’s Assembly, Dr. Ahmed Fathi Sorour, described the new law as a comprehensive model law, which takes into account the traditional legal rules to keep pace with global developments and Egyptian contractual commitments under its accession to international conventions … a comprehensive law comprising all the dimensions with knowledge of the issue in the volume and seriousness of the problem of trafficking in human beings. Joy Ezeilo congratulated the Egyptian government on the adoption of the Law on Combating Trafficking in Persons, commending it for containing “all that is required to effectively combat human trafficking, especially an extensive definition of trafficking and a clause aiming at the non-criminalization of the victims.”226 She expressed hope that the new law would particularly assist in the eradication of human trafficking for the purpose of seasonal marriage.227

B. New Child Law The child law, Law No. 12 of 1996, was amended in 2008 by Law No. 126.228 The new amendment prohibited and criminalized the practice of female genital mutilation, trafficking in children, and marriage for children under 18. Both the amendment on the minimum marriage age and on child trafficking can be used as tools along with the new anti-trafficking legislation to combat underage seasonal marriage. In speaking with Azza Ashmawy of the Ministry of Family and Population, she stated that the new child protection law amended to Article 291 of the Penal Code clearly defines trafficking in children and now allows the government to prosecute trafficking cases.229 Although Egypt had ratified the

225 “Egypt: Anti-Trafficking Law ‘Not Sufficient,’” supra note 26 . Although another source cited April 20 as the date Parliament passed the law. See “Egypt’s Parliament Approves Law to Combat Human Trafficking,” Al Ahram Daily News Egypt, April 27, 2010) . 226 Id . 227 UN Special Rapporteur on Trafficking in Persons, “UN Expert Urges Egypt to Intensify Its Efforts at Combating Human Trafficking,” supra note 3 . See also EIPR report, 8, supra note 223. However, the Egyptian Initiative for Personal Rights also criticized the law for failing to adequately include civil society in the drafting of the new legislation. Id. 228 Law No. 126 of 2008, Al-Jarida Al-Rasmiyya, July 10, 2008 (Egypt) [hereinafter Egypt Child Law Amendments]. 229 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . The Protection Project Journal of Human Rights and Civil Society 59

international conventions against child trafficking, it could not prosecute and imprison people without clearly articulated domestic criminal law.230

C. Review of Trafficking Legislation Adapted from various model anti-trafficking principles, especially the approach of Dr . Mattar,231 and with particular consideration of the problem of seasonal marriage, I propose four key principles under which to analyze the new anti- trafficking law and the new child law: • A comprehensive definition of trafficking (capable of including seasonal marriage) • Serious criminal penalties for all those involved in trafficking • A victim-centered approach, including rehabilitation and compensation • Extraterritorial application of anti-trafficking laws and international cooperation

Comprehensive Definition of Trafficking

A good anti-trafficking law will include a comprehensive definition of trafficking that preferably includes forced marriage explicitly, or at minimum, a definition that will encompass the type of sexual exploitation that exists in seasonal marriage. The Annotated UN Trafficking Protocol recommends that the criminal law definition of “trafficking in persons” be clearer and simpler than the protocol definition and proposes the following language:

230 Id . 231 Several scholars and international organization have proposed principles for drafting a model anti- trafficking law. Dr. Mattar has written several articles on how to draft a model anti-trafficking law. He recommends five principles that every anti-trafficking law should incorporate: (1) laws must recognize all forms of trafficking as specific crimes that are subject to serious sanctions; (2) the laws must identify the trafficked person as a victim of a crime who is entitled to basic human rights; (3) the drafters should adopt a five Ps approach—prevention, protection, provision, prosecution, and participation; (4) the laws must target all actors in trafficking enterprise; and (5) the laws should include transnational policies: extraterritoriality, extradition, and exchange of information. See Mohamed Y. Mattar, “Incorporating the Five Basic Elements of a Model Antitrafficking in Persons Legislation in Domestic Laws: From the United Nations Protocol to the European Convention,” Tulane Journal of International and Comparative Law 14 (2006): 357, 359 . The 2010 TIP report suggests principles, including: a “broad definition of the concept of ‘coercion’ that covers its many manifestations in modern forms of slavery;” a “mechanism of care provided to all suspected victims of trafficking through which they have the opportunity to access basic services;” a “well-articulated definition of trafficking that facilitates effective law enforcement and prosecutorial responses and allows for the collection of meaningful data;” “[s]pecific protections for child victims of trafficking ensuring a responsible chain of custody and a priority placed on the best interests of the child in all decisions made in providing services to them,” and “[e]xplicit provisions ensuring identified victims have access to legal redress to obtain financial compensation for the trafficking crimes committed against them.” See 2010 TIP report, supra note 140 . 60 Egyptian Seasonal Marriages

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons by any means, for forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs .232 The definition of trafficking in both the child law and the anti-trafficking law is more complex than the model law. It remains to be seen whether the complexity of the language will be a hurdle in effective prosecution and conviction of perpetrators. The definition of human trafficking in Article 2 of the anti-trafficking law reads: A person who commits the crime of human trafficking shall be considered one who deals in any manner in a natural person, including: the sale, offer for sale, purchase, or promise thereof; or the use, transport, delivery, harboring, reception, or receipt, whether within the country or across its national borders; if this occurred through the use of force, violence, or threat thereof; or through abduction, fraud, deception, abuse of power, or exploitation of a position of vulnerability or need; or through a promise to give or receive payments or benefits in exchange for obtaining the consent of a person to traffic another having control over him; or if the purpose of the transaction was exploitation in any of its forms, including: exploitation of acts of prostitution and all forms of sexual exploitation, exploitation of children in such acts and in pornography, forced labor or services, slavery or practices similar to slavery or servitude, or begging or removal of human organs, tissues or a part thereof 233. The Third Annual Report of the National Coordinating Committee on Preventing and Combating Human Trafficking describes the definition as “precise,” which is important to distinguish human trafficking from other crimes, such as prostitution or illegal immigration . The Third Annual Report and a report by the Egyptian Initiative for Personal Rights describe three main elements present in the new law’s definition of human trafficking: an act of trafficking or dealing (essentially buying or selling); using criminal means or methods, such as force, fraud, or coercion; and for a physical or moral exploitative purpose .234 The Third Annual Report notes the irrelevance of the consent of the victim as an essential aspect of the law.235 The law states that where coercive or fraudulent means have been used, the consent of the victim is irrelevant. Furthermore, to establish trafficking in a child, “use of any of the means referred to is not required, and in all cases his consent or the consent of the person responsible for him or his guardian shall be irrelevant.”236 Thus, for underage cases of trafficking, only the first and third elements must be demonstrated .

232 Jordan, Annotated Guide, 3, supra note 131 . 233 Egypt Anti-Trafficking Law, Article 2,supra note 223 . 234 See Third Annual Report, 3, supra note 224; EIPR report, 9–10, supra note 223 . 235 See Third Annual Report, 3, supra note 224 . 236 Egypt Anti-Trafficking Law, Article 3,supra note 223 . The Protection Project Journal of Human Rights and Civil Society 61

The law does not explicitly mention forced temporary marriage as a type of exploitation, despite having knowledge of this phenomenon. However, the practice of seasonal marriage easily falls within the law’s definition of trafficking. The bride price paid to the marriage broker, notary, and parents renders the marriage an act of selling, which fulfills the first element. The marriage is for the purpose of sexual exploitation to satiate the groom’s sexual desires, which establishes the third element. Because the victims are most often children, no coercive means must be established. Yet the means element is also present in seasonal marriages, as the perpetrators clearly “exploit a position of vulnerability or need” of the young girl .237 Furthermore, the definition voids consent of the child bride. The 2008 amendment to the child law prohibits trafficking of children and establishes criminal liability. Article 291 reads: “It is prohibited to violate the right of a child to protection from trafficking or from sexual, commercial or economic exploitation, or from being used in research and scientific experiments.”238 The language is broad enough to cover different forms of exploitation, including seasonal marriage. However, the act fails to explicitly recognize the phenomenon in the law. The original child law, Law No. 12 of 1996, also contained articles incorporating the rights of the child guaranteed under the Convention of the Rights of the Child that would protect girls against the harmful practice of seasonal marriage 239. Article 3 provides rights to the child, including “[t]he right of the child to life, survival, and development in a supportive family environment, to enjoy various preventive measures, and to be protected from all forms of violence, or injury, or physical, mental or sexual abuse, or negligence, or negligent treatment, or any other forms of maltreatment or exploitation.”240 The danger of not specifying seasonal marriage as a form of trafficking or exploitation is that it must be proved in each case that an incident of seasonal marriage qualifies as trafficking under the criminal law. This difficulty could be solved by a judicial precedent or a legislative explanatory note by Parliament establishing that seasonal marriage constitutes trafficking.241 The National Coordinating Committee stated that the meaning of the trafficking legislation, including applicability to seasonal marriage, will be fleshed out with explanatory notes after the law’s passage.242 A specific reference to seasonal marriage in the legal text itself would have been the most effective. The UN Office on Drugs and Crime model trafficking law also provides an option for including a definition of

237 See id ., Article 2 . 238 Egypt Child Law Amendments, Article 291, supra note 228 . 239 See id . at Part I, Article 1 . 240 Id., Articles 3 and 54 (stating that free education in public schools is a right for all children). 241 See EIPR report, 10-11, supra note 223 (recommending that exploitation should be defined with implementing regulations) . 242 Interview at the National Coordinating Committee, supra note 1 . 62 Egyptian Seasonal Marriages

forced marriage 243. The implementing regulations should include a definition of seasonal marriage that places the practice squarely within the crime of trafficking and within the reach of the law.

Seriousness of Offense for Trafficker

The law should also provide serious penalties for the offense of seasonal marriage, penalties that are harsh enough to deter all those involved and that are commensurate with the gravity of the crime.244 If only a small fine is imposed, rich tourists will be unlikely to change their behavior. Criminal punishment in the form of significant jail time in addition to substantial fines will demonstrate the serious nature of the offense and provide a greater deterrent . The National Coordinating Committee spoke of the harsh penalties for perpetrators in the new trafficking legislation, which become harsher if the victim is a child or ifthe perpetrator inflicts physical harm or infects the victim with an incurable disease, such as AIDS .245 The committee’s Third Annual Report also notes the importance of “very strict and consistent penalties adapted to the seriousness of the crime, ranging between imprisonment and life imprisonment in the case of aggravating circumstances … in addition to inflicting financial fines on the offender.”246 Article 5 of the enacted law describes the punishment as “aggravated imprisonment and a fine not less than 50,000 pounds and not to exceed 200,000 pounds or a fine equal to the value of the benefit gained, whichever is greater.”247 The range for fines equates to roughly US$8,400 to US$33,600. The law provides an even heftier sentence of “life imprisonment and a fine not less than 100,000 pounds and not to exceed 500,000 pounds” (roughly US$16,800 to US$84,000) for particular cases, including cases in which the victim was a child or cases in which the perpetrator was the spouse, was directly related, or was in charge of supervising or caring for the victim 248. The anti-trafficking legislation also provides for the confiscation of traffickers’ assets. This provision is particularly important with respect to the marriage broker, who rakes in up to 70 percent of the profit from these marriages. Given the highly lucrative position of the brokers, the fines for violating the law have to be greater than what they typically receive. Requiring the cash earned on top of the criminal penalty will ensure that no incentive remains to continue selling girls, as long as

243 “Model Law against Trafficking in Persons,” UN Office on Drugs and Crime, Vienna, 2009 (defining forced marriage as “a woman or child without right to refuse is promised or given in marriage on payment of consideration in money or in kind to her parents, guardian, family, or any other person or group”). 244 “Traffickers must be subject to a serious sentence, comparable with the gravity of the offense of trafficking.” Mattar, “Trafficking in Persons,” 745, supra note 4; see also interview at Hope Village, supra note 63 (suggesting a need to place strong penalties on families) . 245 Interview at the National Coordinating Committee, supra note 1 . 246 See Third Annual Report, 3, supra note 224 . 247 Egypt Anti-Trafficking Law, Article 5,supra note 223 . 248 See id ., Articles 6-3 and 6-6 . The Protection Project Journal of Human Rights and Civil Society 63

there is a credible threat of detection and enforcement. The confiscated money can also be donated to the victims fund to compensate and rehabilitate the young girls. Penalties should extend to all those involved in the chain of seasonal marriage, including the tourist husband, the marriage broker, the girl’s guardian, and the notary 249. The Third Annual Report of the National Coordinating Committee recognizes the importance of targeting all the parties involved in the crime, including “the principal perpetrator, the accomplice and instigator.”250 The anti-trafficking law and the child law both apply the same penalty for anyone who facilitates the crime, including the families, husband, and marriage brokers.251 Instead of excusing family members, the Anti-Trafficking Act establishes a harsher penalty if the family of the girl is the one that trafficked her.252 The law must be enforced effectively against the brokers, in particular, as they are key players in the seasonal marriage arrangements. Currently, the brokers collude with the families and are able to evade legal accountability.253 The government has acknowledged that it knows who many of those individuals are, but prosecution has been inadequate.254 Brokers must be prosecuted as direct perpetrators of human trafficking. The anti-trafficking law extends liability beyond the direct perpetrators to any individual who knew of the trafficking, helped conceal the perpetrators, or aided the trafficker.255 In casting a larger net, the threat of liability should deter individuals from helping even in a remote sense and should also incentivize a witness to report trafficking to the appropriate authorities. Spouses or immediate family members, however, may be immune if they only had mere knowledge of the crime 256. Such immunity will largely limit the incentive for family members to report temporary marriages. There was significant debate in Parliament over Article 22’s not obliging individuals to report on their own family members, but

249 See Warner, “Behind the Wedding Veil,” 268–69, supra note 54 (suggesting that strict criminal and civil penalties for anyone who officiates, facilitates, or participates in such a marriage, including parents, and regardless of exchange of money or property) . 250 See Third Annual Report, 5, supra note 224 . 251 Interview at the National Coordinating Committee. 252 Id . 253 “Presence of known marriage brokers who earn their living from such trade and evade any legal accountability because of the families colluding with them to secrecy and abstention from reporting such deals.” “EACPE Shadow Report,” 27, supra note 29 . 254 Interview at the Ministry of Family and Population, supra note 1 (acknowledging that the ministry is aware of who many of these brokers are in the communities). 255 See Egypt Anti-Trafficking Law, Article 9,supra note 223 (“imprisonment shall be imposed on anyone who disclosed or revealed the identity of a victim or witness, endangering him; or … facilitated the perpetrator’s contact with him … with the intent to harm him or violate his physical, psychological or mental well- being”); see also id., Article 10 (“imprisonment shall be imposed on anyone who induces another by any means to commit a crime referenced to in the aforementioned articles”). 256 Id., Article 8 (“the court may exempt from penalty a person who concealed the perpetrators if he was the spouse, one of the ascendants or descendants”). 64 Egyptian Seasonal Marriages

a Ministry of Justice official justified its inclusion by saying that this practice is recognized by all penal codes worldwide.257 The new child law states that anyone who “buys or sells a child, or offers a child for sale, or anyone who delivers or accepts or transfers a child as a slave, or exploits the child sexually or commercially, or exploits the child in forced labor, or other illegal purposes”258 will be penalized “with forced labor for a period [of] not less than five (5) years and a fine of not less than fifty thousand (50,000) pounds, and not exceeding two hundred thousand (200,000) pounds.”259 The amendment further recognizes that “child consent or the consent of the person in charge of the child shall not be recognized.”260 There may be issues harmonizing the two trafficking laws because both can be applied to cases of underage seasonal marriage.261 The child trafficking law was passed earlier than the general trafficking law as part of several amendments to the child law. Overall, it is less comprehensive than the trafficking law, but it was an important initial effort and reflects the particular danger and concern over trafficking in children. However, now efforts should be made to clarify which laws apply and to ensure that the perpetrators face the harshest penalties. As discussed earlier, the new trafficking law imposes life imprisonment and fines ranging from LE 100,000 to LE 500,000 when victims are children. Article 291 states that the prescribed punishment is “without prejudice to any stronger penalty prescribed by another law.” As such, perpetrators of underage seasonal marriage should be subject to the higher punishment.

Victim-Centered Approach

Legislation should be focused on treating the trafficked individual— the young bride—as a victim. A victim-centered approach requires both the principle of nonpunishment and the provision of protection, compensation, and rehabilitation.262 The laws should also provide special consideration for child victims 263. A representative from the National Coordinating Committee expressed

257 Olfa G. Tantawi, “Egyptian Parliament Approves Anti Trafficking Law,” Hiwar Online Magazine, http:// hiwar.dedi.org.eg/highlight/egyptian-parliament-approves-anti-trafficking-law/. 258 Egypt Child Law Amendments, Annex, Article 291 of the Penal Code, supra note 228 . 259 Id. This fine roughly equates to a range from US$8,400 to US$33,500. 260 Id . 261 EIPR report, 11–12, supra note 223 (“It is important to note that the Law to Combat Trafficking in Persons will be applied in conjunction with existing Penal Code and Child Law provisions on child trafficking and exploitation. The Penal Code has, since 2008, a specific provision criminalizing child trafficking…. The government should therefore ensure coherence in the various implementing regulations of these laws regarding the definitions used for child exploitation and child pornography.”) 262 See Warner, “Behind the Wedding Veil,” 268–69, supra note 54; see also “Model Law against Trafficking in Persons,” 40, supra note 243 (stating that “trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons”) . 263 See Warner, “Behind the Wedding Veil,” 268–69, supra note 54 . The Protection Project Journal of Human Rights and Civil Society 65

pride over the victim-centered approach to the new trafficking legislation, both in the treatment of the trafficked person as a victim and in providing for rehabilitation and repatriation 264. The committee’s Third Annual Report also describes the rights of the victim as an essential element of the law, noting that the “State shall guarantee under the law the protection of the victim, its rehabilitation and integration into the community and work to identity the victim … in addition to ensuring its physical integrity, its dignity, the right to legal assistance (such as providing him with a lawyer), and finding suitable places of refuge for the victim.”265 The act decriminalized actions committed while an individual was a trafficked victim 266. This provision is particularly important when girls are trafficked for sexual exploitation, such that they cannot be jailed and prosecuted for prostitution. Instead of further victimizing these girls, the state should ensure that they are viewed as victims and not as criminals. The law also needs good mechanisms for identifying victims. Birth and marriage registration ought to be mandatory.267 A better birth certificate system will help track the bride’s age. And requiring official marriage registration will help curb the practice ofurfi marriages that mask underage forced marriages . The law must also recognize the rights of the victims. Dr. Mattar believes that the victim is entitled to basic rights, including “the right to safety; the right to privacy; the right to information; the right to legal representation; the right to be heard in court; the right to compensation for damages; the right to medical assistance; the right to social assistance; the right to seek residence and the right to return.”268 The Egyptian laws recognize the rights of the trafficked victim and of the child victims . Article 23 recognizes the rights of the victim, including the “right to physical, psychological and mental safety”; the “right to protect his inviolability and identity”; the “right to inform him of relevant administrative, legal and judicial procedures and access to information related thereto”; and the “right to legal assistance.”269 This rights-based approach entitles the young brides to these services from the government .

264 Interview with ambassador within National Coordinating Committee, supra note 155 . 265 See Third Annual Report, 3, supra note 224 . 266 Id.; see Egypt Anti-Trafficking Law, Article 21, supra note 223 (“The victim shall not be criminally or civilly liable for any of the crimes of human trafficking as long as the crime occurred or was directly related to being a victim”). See also The Protection Project, “The United States Commends the Efforts of the Egyptian Government to Combat Human Trafficking Thursday,” press release, June 27, 2010 [hereinafter Protection Project press release] (praising the Egyptian law for following the principle of nonpunishment for victims of human trafficking for any crime as long as directly related to being a victim); and EIPR report, 17, supra note 223 . 267 See Warner, “Behind the Wedding Veil,” 268–69, supra note 54 . 268 See Mattar, “Trafficking in Persons,” 759, supra note 4 . 269 Egypt Anti-Trafficking Law, Article 23,supra note 223 . 66 Egyptian Seasonal Marriages

The anti-trafficking law also provides for the creation of a fund for victims of trafficking.270 All fines and confiscated assets of the traffickers are added to the fund, along with optional donations by NGOs and international donors. Although establishing a fund to compensate victims is a step in a right direction, it is unclear if the amount will be sufficient in the early years of enforcement. The Egyptian government may need to supplement the fund to provide services for victims . Dr . Mattar praises the law in that it “provides for the principle of compensation of victims through the establishment of a State Fund, making it a state responsibility to provide protection and assistance to victims of human trafficking.”271 The law also recognizes the need for shelters and rehabilitation services. Chapter 5 of the law discusses the protection of victims, including the provision that the state “shall guarantee the protection of the victim and shall work to create the appropriate conditions for his assistance, health, psychological, educational and social care; and rehabilitation and reintegration into the society.”272 The statute also provides for assistance and rehabilitation,273 housing separate from the perpetrators,274 and education and training 275. These types of programs are important to give victims of seasonal marriage livelihood options. However, the Egyptian Initiative for Personal Rights cautions that the law should also contain more explicit language to require the consent of the victim to be placed in shelters or rehabilitation centers, so that these facilities do not create de facto detention units, restricting liberty of movement.276 The amendments to the Penal Code on child trafficking from the child law of 2008 only briefly mention rights of the child, when they say “the child shall have the right to awareness and be empowered to address those risks.”277 An explanation of those rights ought to be included in the implementing regulation. The 2010

270 Id., Article 27 (“A fund shall be established to assist victims of human trafficking…. The proceeds of the fines sentenced for the crimes stipulated in this law, as well as the properties, objects, and means of transportation forfeited shall be allocated directly to the fund….”). 271 Protection Project press release, supra note 266 . 272 Egypt Anti-Trafficking Law, Article 22,supra note 223 . 273 See id., Article 22 (“health, psychological, educational and social care; and rehabilitation and reintegration into society, within the framework of liberty and human dignity”). 274 See id ., Article 24 . 275 Id., Article 26 (“The competent authorities shall provide care, education, training, and rehabilitation programs to the Egyptian victims, whether through governmental or non-governmental institutions”). 276 EIPR report, 18–19, supra note 223 (“However, the detention of victims of trafficking can violate certain principles of international law such as right to freedom of movement and the prohibition on arbitrary detention…. The implementing regulations therefore should ensure that the detention of victims of trafficking will be carried out on a case-by-case basis. All detained victims should be given the right to challenge the legality of their detention through an administrative review process or in court in a timely manner, and be informed of that right upon their arrival at the shelter in a language they understand…. Victims should be regularly informed of their rights, including their right to change their mind and leave at any time.”) 277 Egypt Child Law Amendments, Annex, Article 291 of the Penal Code, supra note 228 . The Protection Project Journal of Human Rights and Civil Society 67

trafficking law, however, sets out the rights and protections of child victims more explicitly .

Extraterritorial Application and Transnational Approach

Given the international scope of the seasonal marriage problem and human trafficking generally, legislation must both apply extraterritorially and mandate international cooperation .278 The law needs to reach the home countries of the Gulf tourists. This provision is especially important in those cases where the brides are taken out of Egypt and need assistance to return home. The UN Office on Drugs and Crime model trafficking law suggests establishing jurisdiction for domestic trafficking offenses committed within the territory of a state, committed bya national of the state, or where the victim is a national.279 Egyptian legislation applies extraterritorially and includes provisions requiring multinational and bilateral efforts to address trafficking.280 The anti-trafficking law explicitly notes extraterritorial application and the requirement for international cooperation 281. The Ministry of Family and Population also spoke of the extraterritorial application of the new child trafficking law, even if the citizen is outside the country 282. Egypt should also encourage Gulf states to criminalize and prosecute citizens who travel to Egypt to exploit girls under the cover of seasonal marriage. In a recent U.S. case, a man from Philadelphia was accused of sexually exploiting underage girls in Egypt . The man traveled to Egypt for the purposes of illicit sexual conduct under the guise of Islamic marriage, getting two of the three underage girls he “married” pregnant.283 It is a federal crime to travel abroad to engage in sex with underage persons. He pled guilty and was sentenced to 30 years in prison.284 That case serves as an example of how states can extend domestic law to conduct overseas 285. Egypt should work with the Gulf nations to adopt similar laws and to encourage them to prosecute men who sexually exploit young girls. Often,

278 “Since trafficking in persons is a transnational crime, it requires transnational policies, including cooperation among the countries in the region of the Middle East.” Mattar, “Trafficking in Persons,” 760, supra note 4 . 279 See “Model Law against Trafficking in Persons,” 25–26, supra note 243 . 280 Protection Project press release, supra note 266 (stating that the law is extraterritorial basis in its application). 281 See Egypt Anti-Trafficking Law, Article 16,supra note 223 . 282 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . 283 The man started having sex with one of the girls when she was 14, the second at 15, and the third at 16. “Philadelphia Man Pleads Guilty to Sex Charges in Case of 2 Teens in Egypt,” Associated Press, September 16, 2010 . 284 Id . 285 “International law permits this exercise of jurisdiction by a state over its citizens, and several nations already use legislation like this to punish citizens who engage in acts of tourism while abroad.” Warner, “Behind the Wedding Veil,” 268–69, supra note 54 . 68 Egyptian Seasonal Marriages

they leave the country before the Egyptian authorities become cognizant of the marriage, rendering local prosecution nearly impossible.

D. Child Marriage Laws The trafficking provisions of the new anti-trafficking law and the new child law provide one avenue through which perpetrators of seasonal marriage can be prosecuted. Yet for the seasonal marriage of girls under 18, an additional tool exists to combat the problem. Law No. 126 of 2008 added Article 31-bis to the Egyptian Penal Code, which states, “The marriage contract shall not be registered for those who did not reach eighteen (18) years of age.”286 This amendment raised the minimum age of marriage for girls from 16 to 18. The law places liability on the marriage notaries, known as mazoons: “Without prejudice to any criminal penalty stipulated in any other law, anyone who registers a marriage that violates provisions of this article shall receive disciplinary punishment.”287 In response to this law, the Egyptian government began prosecuting mazoons who perform marriages of girls under 18. The law appears to be limited to notaries, but recent cases have also included prosecution of grooms, brokers, and guardians.288 The danger of this amendment is that it may simply force all seasonal marriages to be unregistered or urfi marriages, thus giving women fewer rights and making paternity harder to prove. Better laws are needed to address the danger of underage urfi marriages. This is why viewing seasonal marriage as both an instance of underage marriage and an instance of human trafficking is important. Where the marriage registration law cannot be used, the trafficking law can provide for prosecution of the perpetrators and protection of the victims .

VI. Egypt’s Efforts under the Human Trafficking Three Ps Approach Egypt has undertaken efforts to combat seasonal marriage in addition to the newly enacted legislation. According to the Ministry of Family and Population, the Egyptian government is working hard to address seasonal marriage outside of laws and prosecution by raising awareness, giving girls life skills, providing schooling, establishing hotlines to report early marriages and trafficking, and providing shelters and rehabilitation centers for children.289 To best assess the current efforts, I look at the different programs under the three Ps of the human

286 Egypt Child Law Amendments, Annex, Article 31-bis of Law No. 143 of 1994 on Civil Status, supra note 228 . 287 Id . 288 Prosecution in cases of underage marriage is discussed in the next section . 289 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . The Protection Project Journal of Human Rights and Civil Society 69

trafficking framework: prevention, prosecution, and protection.290 Although this approach has been modified and elaborated on by other scholars, I believe this simple three-category framework is appropriate to address the problem of seasonal marriage by looking at how Egypt is seeking to deter the marriages, to enforce the laws against the perpetrators, and to help rehabilitate victims.

A. Prevention The new anti-trafficking and child marriage laws are important steps in stopping the practice of seasonal marriage; however, effective prevention of the phenomenon requires addressing the causes. As Seif el-Islam remarked, “[l]aws alone can’t bring a social ailment like this one to an end. This is a matter of culture and social habits. We must address the root causes of the problem in order to solve it.”291 Given that the most significant causes of seasonal marriage are poverty and lack of education, the best programs will focus on creating better economic incentives for girls and their families, providing education and vocational training to the girls, and raising awareness about the problem.292

Economic Incentives

The most significant cause of child marriage, trafficking, and seasonal marriage is poverty. When families barely have the means to survive, the incentive to exploit their daughters through marriage is great. Eradicating world poverty is unlikely to be accomplished in the near future. But programs exist that could work to diminish the particular economic incentives that force families to sell their daughters into these temporary marriages . In India, if a girl stays unmarried until her 18th birthday, she receives US$78 in a savings account set up at her birth.293 Similar economic incentives for remaining in school and unmarried would be one potential solution in Egypt. Cash payments for girls still single at age 18 would be effective in poverty-stricken areas 294. Another proposal is for the Egyptian government to give a tax incentive for the registration of marriage to encourage compliance with the requirements.295 Such tax credits would also offset the dowry costs and decrease the incentive for

290 The three Ps approach to trafficking was articulated in the Palermo Protocol. Clark, “The Need for a New Paradigm,” 59, supra note 125 . 291 “Egypt: Anti-Trafficking Law ‘Not Sufficient,’” supra note 26 . 292 Similarly, the UN Special Rapporteur called on Egypt “to address the root causes of the phenomenon, particularly poverty, unemployment and discrimination against women.” Mohamed Abdel Salam, “Egypt’s Parliament Approves Law to Combat Human Trafficking,” Bikya Masr, April 23, 2010, http://bikyamasr. com/wordpress/?p=11924 . 293 Davids, “Female Subordination Starts at Home,” 323, supra note 98 . 294 Warner, “Behind the Wedding Veil,” 269, supra note 54 . 295 Davids, “Female Subordination Starts at Home,” 323, supra note 98 . 70 Egyptian Seasonal Marriages

early and temporary marriages. Increasing marriage registration would allow the government to monitor and enforce underage marriage laws more effectively.296 However, cash payments and tax incentives may not be completely effective in eradicating seasonal marriage. The cash allowance is likely not enough to replace what a girl would earn over several seasons of tourist marriages, and the Egyptian government does not have the resources to pay each family the amount of money it would forgo. Another approach is to provide job opportunities that would ensure a lifetime of income for a girl or a family 297. Moreover, girls must be educated about why jobs are better than the alternative “easy money” they may earn from the temporary marriages 298. In Bangladesh, a study showed a positive relationship between the ability to earn wages and the age of marriage. Programs that enable girls to earn a wage have resulted in delaying the age of marriage.299 Accordingly, job creation not only gives girls an alternative source of income but also endows them with a greater sense of independence and freedom to resist such forms of marriages . The Ministry of Family and Population established a workshop for Egyptian handcrafts in Al-Hawamdeya precisely to combat poverty and to provide economic alternatives for girls who are vulnerable to child and seasonal marriage.300 The workshop develops women’s skills for printing on Egyptian cotton to create high- quality products for sale in local and international markets.301 This workshop is one example of a government initiative to provide an alternative economic livelihood for girls living in areas where seasonal marriage is pervasive. Similar programs should be initiated in the other villages. Egypt’s National Plan of Action against Human Trafficking also includes a provision on microcredit and microfinance programs for vulnerable segments of the population, including victims of human trafficking, “with a special focus on victims of marriage.”302 These economic initiatives can serve both to enable girls to refuse seasonal marriage and to assist victims in the rehabilitation process to regain independence and to acquire a livelihood.

296 Id . 297 See “EACPE Shadow Report,” 7, supra note 29 (recommending anti-poverty strategies) . See also Clark, “The Need for a New Paradigm,” 76–77, supra note 125 (discussing microcredit programs, such as the Grameen Bank, to decrease vulnerability to trafficking). 298 Interview at Hope Village, supra note 63 (suggesting that it is difficult to convince girls to forgo “easy money” on the street for a better legal job career). 299 Whose Right to Choose?” 13, supra note 59 (“Earning wages opened their eyes, made them independent, and helped them enjoy the freedom which ultimately enables them to choose to delay marriage.”). 300 Ministry of Family and Population Anti-Human Trafficking Unit, “Progress Report,” supra note 8 . 301 Id . 302 National Plan of Action, 4, supra note 156 . The Protection Project Journal of Human Rights and Civil Society 71

Education

The lack of education for girls is a leading cause of child and seasonal marriage . Studies show a direct correlation between higher education for girls and a decline in early marriage 303. Keeping girls in schools, along with giving them vocational skills, can help prevent temporary marriages 304. Not only is education a potential solution, but it is also a right guaranteed by international and domestic law.305 Some shelters, such as Hope Village, are working to provide education, including literacy classes, for victims of seasonal marriage and young single mothers living on the street 306. Stop Human Trafficking Now, a grassroots effort to educate children, works with 13- to 15-year-old children at schools in the villages known for seasonal marriages before they become victims.307 Part of that education involves working to increase the child’s self-worth and dignity and to provide peer mentors with its youth “ambassadors of peace” program.308 According to the National Coordinating Committee on Preventing and Combating Human Trafficking, the Egyptian Ministry of Education is also working to provide state- sponsored education programs 309. Unfortunately, access to education for the girls most vulnerable to seasonal marriage remains weak. The government must take even stronger steps to ensure that girls have both primary and secondary education until they are 18 and to provide them opportunities to pursue university-level education. By making education compulsory and available to young women, the government can reduce the prevalence of seasonal marriage .

Awareness-Raising Campaigns

In addition to providing schooling for the girls, the government needs to educate the girls, their families, and the general public on the danger of seasonal marriage. Awareness campaigns should not only focus on giving children

303 Davids, “Female Subordination Starts at Home,” 320, supra note 98 (citing ICRW) . 304 See Warner, “Behind the Wedding Veil, 269, supra note 54 (supporting free compulsory education for girls through secondary school—and vocational training programs and microloans). “Essentially, higher education empowers girls to delay marriage, pursue intellectual development, and live a more desirable life with greater opportunities.” Id. 305 The Convention on the Rights of the Child guarantees children a “right to education.” See “Early Marriage,” 42–44, supra note 57. The Egyptian child law incorporated rights guaranteed by the CRC, including the right to education. See Egypt Child Law Amendments, Article 54, supra note 228 (“Free education in public schools is a right for all children”). 306 Interview at Hope Village, supra note 63. Also interview at the Association for Upper Egypt Education and Development in Cairo, January 2010. The association is another nonprofit that provides educational programs, particularly aimed at young girls . 307 Interview at the Suzanne Mubarak Center for Peace, supra note 14 . 308 Id . 309 Interview at the National Coordinating Committee, supra note 14 . 72 Egyptian Seasonal Marriages

information about seasonal marriage and trafficking, but also seek to influence the parents and guardians . The National Coordinating Committee claims that one of the main challenges in addressing seasonal marriage and trafficking is the lack of awareness.310 It suggests that the best strategy in terms of prevention is to create empowerment programs for marginalized groups, including poor families, and to provide education on trafficking.311 The Unit for the Prevention of Trafficking in Children within the Ministry of Family and Population is currently working on an awareness-raising campaign against seasonal marriage in several districts outside of Cairo, centered on finding local leaders to help instruct the community on the dangers of summer marriages 312. Volunteers, called “family friends,” are chosen according to certain criteria who have received special training by the Ministry of Family and Population to promote the concepts of human and child rights 313. Family friends provide legal services and share the message of human rights with the local families after first gaining their trust.314 The Unit for the Prevention of Trafficking in Children has trained more than 300 family friends in the villages of the Sixth of October governorate, Minia, Fayoum, Qena, Assiut, and Kafr El- Sheikh .315 The unit has also trained 50 NGOs in targeted villages with the aim of establishing clinics for the rehabilitation of girl victims of seasonal and child marriage. In conjunction with the International Organization for Migration, efforts have been made to train notaries in these villages.316 Raising awareness of the practice and dangers of seasonal marriage should also extend to training police, prosecutors, and judges . According to the Third Annual Report of the National Coordinating Committee, the Unit for the Prevention of Trafficking in Children “held 24 training courses to raise the awareness of law enforcement personnel, the NGOs and social providers,” and “1,175 people were trained, from public prosecutors and NGOs, media and civil society and the Family

310 Id . 311 Id. However, Clark notes that public awareness campaigns alone cannot solve the issue of trafficking, because without the creation of alternatives for the families they will do little to influence behavior. Clark, “The Need for a New Paradigm,” 66, supra note 125. “No studies have shown that [public awareness campaigns] actually influence choices, in large part because they are not able to provide potential trafficked persons with viable alternatives.” Id. 312 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14. See also “EACPE Shadow Report,” 27, supra note 29 (noting the Ministry of Family and Population’s efforts to increase awareness by targeting villages where this practice is rampant, training rural community leaders, and empowering families through small enterprises) . 313 “The success of ‘marriage brokers’ in promoting the benefits of … girl child marriage to non-Egyptians in some villages of the 6th of October governorate almost turned the issue into a phenomenon in these villages and has spread to other governorates such as Kafr El-Sheikh.” Ministry of Family and Population Anti- Human Trafficking Unit, “Progress Report,” 43,supra note 8 . 314 “The relationship between the family friend and the family is characterized by honesty that accumulates through time and flourishes with success by helping families to obtain their rights and services available.” Id . 315 See Third Annual Report, 25, supra note 224 . 316 Id . The Protection Project Journal of Human Rights and Civil Society 73

Friends.”317 The National Coordinating Committee’s National Plan of Action also includes the development of public awareness materials.318 Smaller NGOs are also working on a grassroots level to infiltrate communities to teach girls why they should resist temporary marriages. The Oyoun Center is one organization currently working in the Hamadai region on convincing girls of the danger of seasonal marriage 319. The female volunteers go into villages and network with the local girls, first gaining their trust, then talking to them about the dangers of seasonal marriage, and finally finding recruits to help spread the message .320 They try to teach the girls about their rights and that seasonal marriage “is wrong.”321 Using young female volunteers provides greater access to the girls who are most at risk or already involved in seasonal marriages. However, these efforts can be dangerous because the male patriarchs and marriage brokers have a lot of power in their communities. Many of the NGOs working on this issue cannot reach the target groups because of the power of the marriage brokers.322 The Ministry of Family and Population acknowledges the success of the marriage brokers in promoting these seasonal marriages as a significant challenge in the national efforts against the practice 323. The Oyoun Center also works with the campaign “Not for Sale” to raise awareness of health, cultural, and social problems with seasonal marriage, along with other NGOs and government officers, volunteers from university groups, and media channels .324 The center emphasized the need to involve the media in raising awareness because “Egyptians love TV.”325 The USAID report also recommends strengthening public awareness of trafficking and forced marriages through the media and suggests providing training for journalists on these issues 326. The Ministry of Family and Population is also working with the media to shed light on the hazards of seasonal marriage 327. And the Egyptian National Plan of Action against Trafficking includes “[i]mplementation of training on professional media coverage of trafficking in human beings incidents and awareness raising courses of

317 Id.; see also interview at the National Coordinating Committee, supra note 11; National Plan of Action, supra note 156 . 318 National Plan of Action, supra note 156 . 319 Interview at the Oyoun Center, supra note 5 . 320 Id . 321 Id . 322 Interview with Seham Ibrahim, Tofulty Foundation, Cairo, January 2010. 323 Ministry of Family and Population Anti-Human Trafficking Unit, “Progress Report,” 26,supra note 8 . 324 Interview at the Oyoun Center, supra note 5 . 325 Id. One station has apparently covered the issue of seasonal marriage, but it is a political station unwatched by most Egyptians. Id. 326 “USAID Trafficking Report,” 32, supra note 8 . 327 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . 74 Egyptian Seasonal Marriages

the anti-trafficking legislation among media professionals,”328 which could include training on seasonal marriage . The state can also work to eliminate the practice of early temporary marriages by involving religious leaders and convincing the communities that sharia does not condone this form of marriage 329. Religious leaders can greatly influence the families and the potential husbands by calling out seasonal marriage as being a perversion of Islamic law. The reason that many of the Saudi men are willing to participate in seasonal marriage instead of prostitution is for the appearance of religious propriety. Removing that excuse will reveal temporary marriages for what they truly are, forced child prostitution.

Hotlines

The recently established hotlines for child marriage and trafficking are another tool to combat seasonal marriage. Hotlines serve as a form of immediate prevention and can assist the authorities in rescuing the victims and prosecuting the perpetrators . The Ministry of Family and Population created a hotline for early marriages, 16021, in August 2009 330. The Third Annual Report of the National Coordinating Committee on Preventing and Combating Human Trafficking describes the role of that hotline as “monitoring cases of violations of children and their marriage under the legal age, in violation of the Child Law and Civil Status” and receiving “complaints on topics such as violations of child rights, and report[ing] on the notaries involved in the marriage of girls and breaking the law.”331 The hotline is available from 9:00 a.m. to 1:00 a.m. seven days a week and has received 224 calls since starting on August 14, 2009 332. The hotline had received roughly 136 complaints of officials performing underage marriages by March 2010 333. Another hotline, 16000, helps child trafficking victims and street children and is run out of the same unit 334. The NCCM runs the hotline and refers many cases to shelters, such as Hope Village .335 The hotline is free and confidential and allows protection for witnesses who report complaints.336 Young girls, family members, neighbors, or anyone can call in to report a forced child marriage to

328 National Plan of Action, 7, supra note 156 . 329 “Early Marriage,” supra note 57 (recommending that states “target activities to change the attitudes and behaviour of community and religious leaders with regard to early marriage”). 330 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14; interview with Dr. Mulki Al-Sharmani, supra note 7 . 331 Third Annual Report, 26, supra note 224 . 332 Interview with doctor from 16021 hotline at the Ministry of Family and Population, January 2010. 333 Admon and Azuri, “Conflict Escalates over Child Bride Marriages,” supra note 8 . 334 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . The 2010 TIP report made specific reference to significant efforts by the Egyptian government, including the new hotline to report instances of the practice and to counsel victim . See 2010 TIP report, supra note 140 . 335 Interview at Hope Village, supra note 63 . 336 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . The Protection Project Journal of Human Rights and Civil Society 75

the government 337. The government has worked to publicize the availability of the hotlines, including creating Facebook pages.338 Although some applaud the new hotlines, others doubt their effectiveness. Some claim they are a helpful first step but are currently understaffed.339 Others are concerned that they essentially do nothing 340. After visiting the 16021 hotline personally, it was unclear what the people working the phones actually do to help prevent a marriage or to counsel the callers. The doctor I spoke with said that when they receive a call, they take the caller’s information, including name, age, and sex .341 The doctors on call compile the information to relay to another unit within the NCCM 342. Furthermore, many of those most vulnerable are unaware that the hotline exists. Interviews with the street children at Hope Village revealed that they were unaware of any government programs or the hotline they could call if they felt they were being forced into a marriage against their will.343 The hotlines need to demonstrate their effectiveness and publicize their existence. However, it may still be difficult to encourage girls to report a marriage using the hotlines.344

B. Prosecution The anti-trafficking legislation and the new child law are steps in the right direction toward prosecuting those responsible for these exploitative forms of marriage in Egypt. Mere laws on the books, however, are insufficient to address the problem. The new laws must be enforced effectively. The Egyptian government has taken steps to enforce the legal age of marriage by bringing cases against marriage notaries and by prosecuting under the law prohibiting marriage between foreigners and girls who are more than 25 years younger than the men. However, a number of hurdles remain to effective prosecution for seasonal marriage.

337 Admon and Azuri describe an example call to the hotline: “A 15-year-old girl complained of her poor family’s decision to marry her against her own wishes to a man 12 years her senior. When her family discovered that the groom himself was of meager means, the marriage plans were cancelled. The groom, however, threatened the family and coerced the girl into signing the marriage contract. The young girl ran back home and started a hunger strike, thereby compelling her family to inform the groom of the marriage’s annulment . When the groom demanded compensation in the sum of 5,000 Egyptian pounds, the family turned to an attorney, who explained that underage marriage was illegal and referred the family to the authorities for assistance.” Admon and Azuri, “Conflict Escalates over Child Bride Marriages,” supra note 8 . 338 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . 339 Interview at New Horizons in Cairo, January 2010. 340 Interview with Seham Ibrahim, Tofulty Foundation, Cairo, January 2010. 341 Interview with doctor from 16021 hotline at the Ministry of Family and Population in Cairo, January 2010. 342 Id . 343 Interviews with girls at Hope Village in Cairo, January 2010. 344 According to CEWLA’s empirical study, although almost all the girls faced abuse in marriages, only a few of them reported the abuse to the police. See note 85 and accompanying text. In addition, EIPR reports that Egyptian citizens are still scared of the police and worry that they may face greater abuse by the police if they report crimes . See EIPR report, 21, supra note 223 (noting the distrust of the criminal justice system, particularly in its treatment of street children and sex workers). 76 Egyptian Seasonal Marriages

Prosecution of Underage Marriage and Human Trafficking

To enforce the new child law prohibiting the marriage of girls under 18, the Egyptian government has made a strong push to prosecute the marriage notaries (mazoons) who were falsifying marriage contracts to allow the marriage of underage girls 345. Ambassador Moushira Khattab, former minister of family and population, filed complaints with the prosecutor general regarding the mazoons who were performing underage marriages. In December 2009, an Egyptian court sentenced two officials to a year in prison and a fine for having performed more than 1,000 marriages of minors in a single month by falsifying the girls’ birth certificates.346 These cases shed light on the new law and sent the message that this law must be followed or violators will be prosecuted and jailed.347 Article 227 of the Penal Code states that no marriage contract may be documented for children of both sexes who are younger than 18, and the notary who contravenes this requirement shall be punished by imprisonment for a time not exceeding two years and a fine up to LE 500 348. Egypt’s attorney general Abdel Maguid Mahmoud stated that an estimated 9,351 underage marriages exist in the country, the majority in Cairo 349. The attorney general coordinated with the Ministry of Family and Population to inspect and review all the work of notaries in Egypt and to arrest those signing off on underage marriages 350. Cairo recorded 4,102 cases 351. He said, “Legal action was taken against notaries who violated the law and endorsed such marriages.”352 The Egyptian government brought charges not only against the marriage notaries but also against parents, marriage brokers, and husbands within the forced seasonal marriages. In February 2010, the attorney general charged five people with involvement in the underage marriage and sexual abuse of a 14-year-old girl in the Sixth of October governorate: the girl’s parents, the two attorneys, and the

345 Interview with Dr. Mulki Al-Sharmani, supra note 7 . 346 Admon and Azuri, “Conflict Escalates over Child Bride Marriages,” supra note 8. Also interview with Ed White, U.S. Embassy in Cairo, January 2010 (noting that the government sent two mazoons to prison in November 2010 for officiating more than 9,000 underage marriages). 347 Interview with Azza Ashmawy, Ministry of Family and Population, supra note 14 . 348 “Egypt: Early Marriage,” supra note 90. Five hundred Egyptian pounds is close to US$84 currently. 349 Mohamed Abdel Salam, “Cairo Sees Most Underage Marriages in Egypt,” Bikya Masr, December 19, 2009, http://bikyamasr.com/wordpress/?p=7121. 350 Id . 351 Id . 352 Id. (quoting the attorney general as saying, “The role of prosecutors and the attorney general is to prosecute the perpetrators of these violations at the level of the Republic, in addition to the assignment of a tripartite committee chaired by inspectors of the general prosecution, family prosecution to check and review the work of the notaries, and to assign committees to follow-up on their work to see how they are committed to the validity of the contract documentation in a legal and correct manner and to punish to the law [ma’zoons] under Article 722 of the Penal Code and amendments to the Law of the Child, as well as with Article 31-bis of Law 143 of 1994 on Civil Status, which provides that no marriage contract should be allowed for those who didn’t reach the age of 18, or being punished disciplinary, for those who document any marriage in contravention of the provisions of this article”). The Protection Project Journal of Human Rights and Civil Society 77

groom, who was a 73-year-old Saudi. The Office of the Chief Prosecutor requested the adjudication of Egyptian Mufti Dr. ‘Ali Gum’a, who asserted that “in such cases, there is no choice but to impose a stringent punishment on the father, the mother, the arbiter, the lawyer, and the groom, in order to combat this rising trend, especially in the provinces of Sixth of October and Al-Giza.”353 In a second case, a Giza criminal court issued deterrent sentences on May 20, 2010, for the “marriage of a minor with a view to sexual exploitation.” The court sentenced Suleiman bin Abdul Rahman, a 76-year-old Saudi national to 10 years in prison and a fine of LE 100,000. The broker and notary were also sentenced to prison, and the girl’s parents were punished with a year in prison and a fine of LE 50,000 each 354. In another case, the government brought charges against the parents, lawyer, and marriage broker responsible for the marriage of a 14-year-old girl to a 64-year- old Saudi 355. Her father was paid LE 10,000 (roughly US$1,881) for the union. A few days later, the girl called her father to say she would kill herself if he did not help her escape her Saudi husband, saying that the man did “weird” things to her 356. In the first court hearing on the trafficking charges held on April 20, 2010, the girl said to her parents “if it were me, I’d never put you in jail.”357 Her comment highlights the difficulty in prosecuting cases against the victim’s family. However, the prosecution of parents, mazoons, and brokers involved with underage marriages are strong measures that will hopefully deter families from marrying off their daughters in this abusive manner.358 The 2010 TIP report also commended Egypt’s trafficking prosecutions, including “the conviction of two men for forced prostitution of eight street children with wealthy Egyptians and tourists from the Gulf; the conviction of two marriage registrars under the anti-trafficking provisions of the Child Law of 2008; the prosecution and charging of five suspects for facilitating the marriage of an under- age girl to an older man from Saudi Arabia; the arrest of 27 marriage registrars for registering the commercial marriage of under-age girls.”359

Age-Gap Prosecution

The Egyptian law also includes a prohibition on a foreigner marrying an Egyptian girl who is more than 25 years younger.360 This prohibition is often implicated in

353 Admon and Azuri, “Conflict Escalates over Child Bride Marriages,” supra note 8 . 354 See Third Annual Report, 8, supra note 224 . 355 “Egypt: Anti-Trafficking Law ‘Not Sufficient,’” supra note 26 . 356 A doctor later confirmed that she had been abused. Id. 357 Id . 358 Interview at the Suzanne Mubarak Center for Peace, supra note 14 . 359 2010 TIP report, supra note 140 . 360 Interview at the Ministry of Family and Population, supra note 1 . 78 Egyptian Seasonal Marriages

seasonal marriages where men who are 70 or older visit Egypt to find temporary marriages with girls as young as 14 and 15. Egyptian authorities banned a 92-year- old Saudi man from marrying a teenage girl, 75 years his junior 361. The Saudi tourist apparently offered a lucrative dowry of US$28,000 and gold jewelry. Her parents, who were very poor, accepted the offer. The Ministry of Justice in Egypt ruled under a law forbidding marriage with a 25-year age gap that was designed to prevent wealthy Arabs from the Gulf from “snapping up young Egyptian girls.”362 However, in the year preceding this legislation, Egyptian authorities allowed 173 such marriages after the husbands paid a sum of close to US$8,000 each.363 The age-gap laws also provide a way to address the issue of girls in seasonal marriages who are older 18 and are not covered by the underage marriage requirements. When seasonal marriage involves much older men married to girls in their early 20s, the husbands can be prosecuted under the age-gap law in addition to the trafficking laws.

Birth and Marriage Registration

The effective enforcement of the laws against child marriage runs into two problems regarding registration. First, most of the temporary marriages that take place are urfi marriages . 364 Urfimarriages are unofficial or undocumented marriages in Egypt. Although they are not recognized by the state, they are recognized under Islam, provided that there are two witnesses.365 Urfi marriages are problematic because there is no way to discern whether the bride is younger than 18 because these marriages are undocumented 366. Urfi marriages are also harmful to women in that they afford the bride less protection than traditional marriages.367 Another problem with urfi marriages is that because the husband does not have to prove his identity and the marriages are not registered with the government, paternity cannot be proved should a child result from the union.368 Second, the hurdle of urfi marriages is compounded by a lack of consistent birth records in rural or poor areas, making it difficult to establish the bride’s age, even when her age is officially

361 “Trading of Child Sex-Slaves in the Name of Marriage in Saudi Arabia,” Islam Watch, June 14, 2010, http://www.islam-watch.org/index.php?option=com_ content&task=view&id=451. 362 Id . 363 Id . 364 Interview at the Ministry of Family and Population, supra note 1; interview at the Suzanne Mubarak Center for Peace, supra note 14: Interview with Seham Ibrahim, Tofulty Foundation, Cairo, January 2010. 365 Interview with Seham Ibrahim, Tofulty Foundation. 366 Interview at the Oyoun Center, supra note 5 . 367 Interviews at the Ministry of Family and Population and at the Suzanne Mubarak Center for Peace, supra note 14 . 368 Interview at the Oyoun Center, supra note 5; see also interview at EIPR (stating that without proper marriage registration, there are problems for these young girls to prove paternity if they have a child from one of these marriages) . The Protection Project Journal of Human Rights and Civil Society 79

registered 369. To better enforce the minimum marriage age, the state needs to have an effective system of birth and marriage registration in place.370

Remaining Concerns with Enforcement

A number of concerns exist regarding the enforcement of domestic laws against seasonal marriage. One concern is how Egypt will prosecute non-Egyptian citizens for such marriages. Another concern is who should be arrested for the crime of underage marriage. Although enforcing the laws against marriage brokers (the linchpins) and notaries is vital, problems arise with prosecuting a girl’s family. Sometimes, the family has no other options, and the girl may be worse off without her family. However, when a father acts more like a pimp than a guardian, fines and prison are appropriate . Another hurdle to effective enforcement of the marriage and trafficking laws goes to the nature of the victim. The young girls are unlikely to complain about their treatment, either out of ignorance or a fear of repercussions 371. And without the child testifying, a case will be difficult to successfully prosecute. Therefore, the legal process should take account of the vulnerability of the child victim, and the state must work hard to detect seasonal marriage through its own initiative and through the hotlines .

C. Protection The new Egyptian anti-trafficking law strived to place concern for the victim at the forefront of the law and the National Coordinating Committee’s efforts.372 This victim-centered approach requires the state to grant the victim protection by rescuing her from the trafficker, by protecting her from repercussions, and by rehabilitating her back into society. Helping the victim is an important prong of the trafficking approach because prevention and prosecution will not solve the problem immediately. The UN Special Rapporteur on Trafficking in Persons expressed concern over the “lack of infrastructure and services specifically designed for assistance and rehabilitation of victims of trafficking” during her visit to Egypt in spring 2010 373. Victims of seasonal marriage in particular need of protection

369 See Warner, “Behind the Wedding Veil,” 244, supra note 54 . 370 See “Early Marriage,” supra note 57 (recommending that the state “ensure the registration of all births to verify the age of a girl at marriage and registration of marriages to ensure compliance with the law, to ensure security under the law and to verify that the marriage is neither temporary nor false”). 371 See Warner, “Behind the Wedding Veil,” 245, supra note 52 . 372 Interview at the National Coordinating Committee, supra note 155 . 373 “In this regard, the Special Rapporteur refers to Article 6 of the Palermo Protocol, which obliges State Parties to protect and provide assistance to victims of trafficking in persons.” UN Special Rapporteur on Trafficking in Persons, “UN Expert Urges Egypt to Intensify Its Efforts at Combating Human Trafficking,” supra note 3 . 80 Egyptian Seasonal Marriages

because they are left abandoned by their temporary husbands and receive a tiny share of the proceeds, if anything 374. Furthermore, they are traumatized by the experience and need both physical and psychological assistance. The young girls remain vulnerable to being sold again to a different tourist on the next holiday. Because their own family is often the seller, the girls have nowhere to go to be safe from further exploitation and no economic means or potential to earn income on their own. The state needs to develop or fund shelters for victims of seasonal marriage . Shelters can provide immediate health and social care in addition to education and vocational training to help girls reenter society. Currently in Egypt, there are two or three shelters for trafficked victims, and the NCCM and International Organization for Migration are in the process of creating a government shelter .375 The NCCM, in coordination with the NGO FACE opened a rehabilitation center for victims of child trafficking in the city of Al Salam in January 2009. The center has accepted 4,000 children, primarily street children, and provides a literacy program, psychological rehabilitation, skills development services, and hot meals.376 However, the center is limited to male children only at this point 377. Thus, the center could not be used to help victims of seasonal marriage. Yet Ambassador Moushira Khattab, former minister of family and population, also signed an agreement with the International Organization for Migration on September 1, 2010, to set up the first regional shelter in Egypt for the rehabilitation of female victims of human trafficking.378 Azza al- Ashmawy, the manager of the Anti-Human Trafficking Unit at the Ministry of Family and Population, said, “The shelter is regional, so it is open to victims of different nationalities, not only Egyptians.”379 Assistance will be provided to female victims of any form of trafficking, including sexual slavery, early marriage, and domestic servitude .380 The shelter’s goals will be to rehabilitate and reintegrate the victims and to provide psychological support, in addition to vocational skills training 381. The education provided will “help them to be self-dependent and reintegrate more easily into society,” al-Ashmawy explained. Victims will be provided with shelter, food, and other basic necessities, as well as counseling and access to medical and legal assistance 382.

374 Interview at the Oyoun Center, supra note 5 . 375 Interview at the Suzanne Mubarak Center for Peace, supra note 14 . 376 Ministry of Family and Population Anti-Human Trafficking Unit, “Progress Report,” 30,supra note 8 . 377 Id . 378 Heba Helmy, “Government to Establish Shelter for Victims of Human Trafficking,” Al-Masry Al-Youm, September 9, 2010, http://www.almasryalyoum.com/en/node/110230. 379 Id . 380 Id . 381 Id . 382 Id . The Protection Project Journal of Human Rights and Civil Society 81

Several of the shelters operated by NGOs that work with street children also take in victims of trafficking, including those running away from seasonal marriages. Hope Village provides assistance to single girls living on the street who are pregnant or have a child. Before Hope Village’s shelter opened, shelters could not take in pregnant girls or young mothers .383 Hope Village’s shelter specializes in the needs of young mothers, providing vocational training in candle making, jewelry making, hairdressing, weaving, and basketry. It also has psychiatrists and doctors to check on the girls and babies.384 The young mothers were at their vocational lessons when I visited the shelter. Some girls were practicing hairstyling; others were making candles; and a third group was learning basket weaving. The girls seemed very proud of their creations, demonstrating the sense of independence and pride that vocations can engender . The girls I spoke to all praised the shelter for providing them with a safe and caring environment. They all agreed that they were too young to have been married and become pregnant and wished someone had been there to educate them.385 Hope Village also operates several mobile units for street children, which lets children get to know the social workers without disrupting their daily life 386. Mobile units could provide greater visibility and access for victims of seasonal marriage . The girls leaving temporary marriages may have the option of reuniting with their families instead of remaining in a shelter permanently . Some families are abusive and will react negatively to rehabilitation programs because the programs take a source of funds away from them.387 Working with NGOs, the government should find a way to evaluate the families to determine whether a girl would be safe returning to her family or would need to be removed to shelters or placed in the care of others 388. A girl should not be returned to a family that will continue to exploit her by marrying her off again. However, compromise solutions may be found to keep the girl safe without separating her from her family.

383 Interview at Hope Village, supra note 63. NGOs typically have a difficult time working with girls at risk. This problem stems primarily from their concern that girls will become pregnant while staying there and accuse one of the shelter workers for impregnating her. See interview at New Horizons in Cairo, January 2010; interview with Seham Ibrahim, Tofulty Foundation, Cairo, January 2010. In the past, to stay at a shelter a girl had to have a legal statement from the police asserting that she was a virgin. In acquiring this statement, male police officers often abused the girls in the process of “inspection.” However, without such a statement, the liability is high. The Tofulty Foundation defeated liability in only one of the nine cases of pregnancy between 2003 and 2009. Interview with Seham Ibrahim. However, fear of liability cannot prevent shelters from caring for girls, especially young mothers. Perhaps the issue could be solved by limiting the staff to females only or by using paternity tests as a defense. 384 Interview at Hope Village, supra note 63 . 385 Interviews with girls at Hope Village in Cairo, January 2010. 386 Interview at Hope Village, supra note 63 . 387 Id . 388 Current monitoring mechanisms are listed in the child law, but they are not comprehensive or directed specifically toward victims of seasonal marriages. See Egypt Child Law Amendments, Article 99-bis, supra note 228 (describing different options for monitoring the families of children at risk). 82 Egyptian Seasonal Marriages

In general, the human trafficking framework requires the state to provide rehabilitation and reintegration assistance to victims, including basic health care, temporary accommodation, family mediation or reunification where possible, financial grants, education and vocational training, income-generating activities (such as microenterprises and job placement), medical assistance and counseling, and legal assistance .389 Currently, the state is not providing fully adequate services for the victims of seasonal marriage, but it is taking steps in the right direction. The new legislation has in place the rights of the victims and the requirements for providing shelters, so the question now will be whether the implementation is effective in reaching the girls and providing them with the means necessary to reenter society. The creation of the victims fund in the anti-trafficking law should help compensate the victims and provide them with the means to start a new life. Finally, the victims of seasonal marriage who are taken abroad and forced into domestic servitude or prostitution must also be protected. The Ministry of Labor monitors citizens working out of the country, but when men use marriage as a cover to obtain domestic servants, it is much harder to detect.390 It is difficult for border control to determine which marriages constitute human trafficking. The Ministry of Labor is negotiating with other countries to grant girls access to their passports, so they can return home if abused.391 Egypt must work with the countries of the Gulf region to help repatriate trafficked victims.

VII. Revolutionary Changes On January 25, 2011, Egypt underwent a radical transformation. The revolutionary forces ousted President Hosni Mubarak and called for a new regime 392. In a matter of weeks, the country went from a de facto dictatorship with significant curtailment of human rights to an emerging democratic state. Egypt has been given the opportunity to draft a new declaration of rights and protection for its people within the context of constitutional liberalism. The current discussion over new constitutional amendments has focused almost exclusively on reforming the electoral process. Once the new government is elected, it will appoint a committee to draft a new constitution. In the revolution, the people were concerned mainly about excess presidential powers and limits on freedom of speech and other civil political rights. The political changes could have important ramifications for how

389 See generally International Organization for Migration, IOM Handbook on Direct Assistance for Victims of Trafficking (Geneva: IOM, 2007) . 390 Interview at Hope Village, supra note 63 . 391 Interview at the Suzanne Mubarak Center for Peace, supra note 14 . 392 See David D. Kirkpatrick, “Egypt Erupts in Jubilation as Mubarak Steps Down,” New York Times, February 11, 2011 . The Protection Project Journal of Human Rights and Civil Society 83

the government will address the problem of seasonal marriage, for better or for worse. On one hand, the state has been given an opportunity to draft new constitutional protections, which could include protection against trafficking, gender equality, and other rights that can be used to more strongly protect victims against the abusive seasonal marriage practice. On the other hand, the momentum the recent government had on addressing seasonal marriage may now be lost in the efforts to address civil and political reforms. The recent government had been taking steps in the right direction, including the creation of the new governmental trafficking bodies and new trafficking legislation. The question will be whether an overhaul of the government, and potentially a more Islamic parliamentary body, will continue these efforts. If those gaining power are part of the Muslim Brotherhood or another Islamic party, there is a danger that they will want to keep issues of marriage under religious law and not enforce criminal penalties for underage or seasonal marriage. Religious and women’s groups have been concerned about what a new Egyptian constitution will mean for them.393 However, one hopes that the new constitution will provide for more liberal rights and protections for women and children, including the prohibition of seasonal marriage. Because the problem is so narrow with regard to geography and scope, seasonal marriage is unlikely to be addressed explicitly in a constitutional provision. But the new constitution ought to include prohibitions on slavery, trafficking in persons, underage marriage, and general protections for women and children. These kinds of broader constitutional provisions, along with the recently enacted trafficking law and child law, can reach the issue of seasonal marriage .

Conclusion The most important next step for Egypt is to ensure that its fairly comprehensive laws are properly enforced and are applied specifically to the problem of seasonal marriage. Egypt must address the problem holistically by prosecuting those involved in facilitating these temporary marriages, particularly the marriage brokers, and by taking preventive measures in providing education, providing feasible economic alternatives, and raising awareness, all while rehabilitating victims. The state has obligations under both international law and now domestic law to address the

393 See, for example, “Women Wary of New Egypt Constitution,” Euro News, March 2, 2011, http://www. euronews.net/2011/03/02/women-wary-of-new-egypt-constitution. Many of the concerns over a new constitution deal with the role of sharia in Egypt. See Davide Morandini, “Art. 2 of Constitution Divides Coptic and Muslim Authorities,” Bikya Masr, March 22, 2010, http://bikyamasr.com/wordpress/?p=31030. With regard to seasonal marriage, whether sharia is a or the source of Egyptian law should not prevent the government from taking measures to eradicate the practice. Temporary marriage is prohibited in Sunni Islam, and as discussed, this form of marriage is a perversion of Islamic marriage and is not condoned by sharia . 84 Egyptian Seasonal Marriages

problem of seasonal marriage, which falls clearly within the prohibitions against both child marriage and trafficking in persons. Placing seasonal marriage within the intersection of child marriage and human trafficking gives rights to girls under both frameworks and allows the state to attack the problem with laws and extra legal measures addressing underage marriages on one side and trafficking in persons on the other. With this two-pronged attack by the government, civil society, and the international community, significant progress can be made to eradicate seasonal marriage. No longer should men be allowed to abuse the institution of marriage by masking what is clearly a form of human trafficking and a grievous violation of these girls’ human rights. The Protection Project Journal of Human Rights and Civil Society 85

The Protection Project Fifth Annual Symposium on Trafficking in Persons November 2, 2010

The UN Trafficking Protocol and the U.S. Trafficking Victims Protection Act—Ten Years Later Jessica Einhorn: My name is Jessica Einhorn . I am the dean of the School of Advanced International Studies (SAIS), this graduate school of international affairs. And, of course, welcome, a warm welcome. So I would like to welcome all of you to the Fifth Annual Symposium on Trafficking in Persons organized, of course, by our great Protection Project here at SAIS. The Protection Project is based in our Foreign Policy Institute, and it is, of course, the main human rights center at our school and in our community. It contributes significantly to our programs by conducting training and consultations on trafficking in persons, human rights, legal reform where it’s a leader, access to justice, and rule of law all around the world; issues that are important to every single person in this audience .This year marks the 10-year anniversary of the adoption of two very important documents: The U.S. Trafficking Victims Protection Act (TVPA) and the United Nations (UN) Protocol to Prevent, Suppress, and Punish Trafficking in Persons. To celebrate this event and to discuss the political and legal developments in the fight against trafficking and modern-day slavery in these past 10 years, The Protection Project is hosting today’s conference, which comprises an exceptionally distinguished list of guests and participants.

We’re especially proud to welcome Dr. Cherif Bassiouni, an internationally renowned criminal lawyer who is among the key drafters of the Rome Statute, the statute that brought about the International Penal Court, and he is the president of the International Institute of Higher Studies in Criminal Sciences in lovely Siracusa, Italy. He will give the keynote speech this morning.

I’m also pleased that we will be hearing today from the various branches of the U .S . government, including the Department of State and the Department of Justice, two crucial institutions in the United States for pursuing these issues. 86 The Protection Project Fifth Annual Symposium on Trafficking in Persons

I would also like to thank all the foreign ambassadors and the embassy representatives who are here today; the representatives of the many Washington-based human rights organizations; and, of course, our students. Your participation, all of you, is an indication of how trafficking in persons has finally risen high on the agenda of the Washington and international communities .

Finally and heartfelt, I would like to thank Dr. Mohamed Mattar, executive director of The Protection Project and a senior research professor of international law at SAIS, whose unflagging commitment to furthering education, research, and analysis is an invaluable instrument in the great promotion of the good name of our school in the United States and abroad.

I wish all of you a very productive and stimulating discussion. And it is now my pleasure to turn the podium over—and begin the conference—to Dr. Mattar .

Mohamed Mattar: Thank you, Dean Jessica, for the kind words and for all your support of our work here at The Protection Project. And on behalf of The Protection Project at the Johns Hopkins University School of Advanced International Studies, I would like to welcome our distinguished guests to the Fifth Human Rights Annual Symposium . We are delighted to receive ambassadors, embassy representatives, representatives from different international organizations, government officials, deans and professors, nongovernment organization advocates, and students from SAIS and other academic institutions .

The first symposium, if you recall and if you were around, was on child sex tourism and child pornography on the Internet. The second was on education. We asked the question, “How can we incorporate aspects of human trafficking in human rights curricula in colleges and universities, not only here in the United States but also abroad?” The third was devoted to the economics of trafficking, and the fourth was on trafficking as a form of violence against women. I’m sure Dr. Laura Lederer remembers the four symposiums because she was here for all of them.

This year, we are celebrating 10 years of the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons. We are also celebrating 10 years of the passage of the U.S. Trafficking Victims Protection Act.

In 2000, an international consensus was reached on our having a gross violation of human rights and that it must be confronted; something had to be The Protection Project Journal of Human Rights and Civil Society 87

done about it. We agreed on a definition: basically, movement of people for the purpose of exploitation constitutes what we call human trafficking or trafficking in persons. As of this morning, 141 countries have ratified the protocol. And in the past 10 years or so, a number of changes on the international, regional, and state levels have taken place .

So this is the moment, this is the symposium in which we can reflect on those changes and perhaps also set an agenda for the coming 10 years . And to me, there have been three major changes, what I call the conceptual change, the institutional change, and the procedural change. I will say a few words about each.

By the conceptual change, I refer to a major shift on the International Human Rights Law from slavery to exploitation. While trafficking may entail, in some cases, elements of slavery, it does not require ownership or buying or selling or a master–servant relationship. Trafficking is broader than slavery, and every time you move a person for the purpose of exploitation, you have a case of human trafficking. This broad definition of human trafficking is reflected in domestic legislation . One hundred seventy-one countries have already passed some kind of trafficking law, and it is a success story that we have to tell in the anti-trafficking movement. We do not have a similar movement in other areas of human rights .

Take, for example, violence against women and the Arab world. Only Jordan has a law opposing violence against women; Egypt does not have a law. Similarly, if you talk about sexual harassment, very few countries in many areas of the world have laws against sexual harassment. So I want to ask everybody, why human trafficking?—and this is really a success story that all of us here in the anti-trafficking movement should be very proud of.

This definition—this broad definition, exploitation, going beyond slavery—was also followed by the 2004 Arab Charter on Human Rights. It was also followed by the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. Both regional instruments were influenced by the UN protocol .

Now, let’s move from the conceptual change to the institutional change. No longer do we talk about individual efforts to combat human trafficking. A number of institutions have been established in different countries, almost every country in the 171 countries that passed some kind of legislation on human trafficking. Sometimes you call this institution a committee, sometimes 88 The Protection Project Fifth Annual Symposium on Trafficking in Persons

you call it a foundation, sometimes you call it a department, and sometimes you call it a task force, like here in the United States. The question is whether civil society organizations are represented in these institutions .

Let me first define what I mean by civil society. I mean an A, a C, an M, an N, and an R .

The A stands for academic institutions like this one, like SAIS, like The Protection Project. (And I’m really proud of the work that we do here at Johns Hopkins University, which would not have been possible without our good local partners all over the world. Let me mention a very special one, a very new one, Mr . Mahmud Reeh, assistant secretary-general of the World Islamic Call Society of Libya. Thank you, sir, for joining us. And please help me welcome Mr . Mahmud .)

The C stands for corporations. And as you all know with globalization and the rise of multinational corporations, bad things may happen—illicit or illegal corporate practices and misuse of technology . We have to emphasize here corporate social responsibility.

The M stands for the media (and I hope that the media is not covering the November 2 election but is covering our event here at SAIS).

The N stands for nongovernmental organizations, NGOs like Global Centurion, like Shared Hope International. Without NGOs, we would not have even had any awareness of the problem of human trafficking.

The R stands for religious institutions. We have to think about how we can use the good principles of religions to prohibit human exploitation and human trafficking.

(On March 14 and 15 of next year, The Protection Project will hold a conference on Islam and Europe at the SAIS campus in Bologna, Italy. As you know, we have two campuses: one in Bologna, where we go every two years, and another in Nanjing, China, where we go every three years because of the distance. That is why The Protection Project will have its sixth annual conference on the role of civil society in combating human trafficking next year. So mark your calendar, November 2, 2011, our Sixth Annual Symposium on the Role of Civil Society. November 2, 2011, is a Wednesday.)

Now, to the third type of change, what I call procedural change: allowing victims of trafficking international remedies when they exhaust domestic remedies but do not get justice in court. The Protection Project Journal of Human Rights and Civil Society 89

I know all of you want to hear our keynote speaker, so I’ll give only three examples very quickly.

First, under the optional protocol to CEDAW (the Convention on the Elimination of All Forms of Discrimination against Women), a victim of trafficking may file a complaint before the CEDAW committee, theUN committee. The first case of human trafficking was filed in complaint number 15 of 2007: a woman from China was exploited in the streets of the Netherlands for the purpose of prostitution, and she asked for the right to residency . She was denied the right to residency, although, as you all know, Dutch law allows such a right .

The second case is from the European Court of Human Rights . The court issued a January 7, 2010, decision that a woman from Russia who was exploited for the purpose of prostitution in Cyprus was not protected when the state failed to provide her with any assistance, violating the European convention, the UN trafficking protocol, and the Universal Declaration of Human Rights. We should enhance trafficking victims’ access to justice. They must be heard in court .

And, third, I’m proud that the Protection Project has established the International Human Rights Clinic. The clinic serves three functions. The first is drafting model laws on various issues of human rights through our drafting human rights legislation expert group . We have already drafted several of these laws: one on human trafficking, one on violence against women, and one on child protection. We proceed with these model laws by looking first at international standards. We then look at comparative models, we draft a law, and then we take that law all over the world—in the case of the child protection model law, we first held a workshop in Singapore; we had a second one in Beirut; we had one in Alexandria; we had one in Cairo—and invite those who are interested in improving their laws in these areas of human rights.

We are currently working on two more model laws: one on the rights of people with disabilities in accordance with the 2008 UN Convention on the Rights of Persons with Disabilities and the other on legal aid and access to justice. That is the first function of our International Human Rights Clinic.

The clinic’s second function is conducting research and training for our association of scholars of trafficking in persons. So if you are a professor or a student and you are interested in the topic of human trafficking, take a look at our website. We have at least 120 syllabi of different courses on human trafficking that are offered in different colleges and universities here in the United States . 90 The Protection Project Fifth Annual Symposium on Trafficking in Persons

The third function of the International Human Rights Clinic is providing technical assistance in establishing law clinics around the world through our clinical legal education network. And I am proud that The Protection Project has assisted Alexandria University Faculty of Law in establishing the first law clinic in the history of the Egyptian legal education . So I thought I’d invite the director of that law clinic who was so nice to me. I asked him, “Can we establish a law clinic in Egypt?” He said, “Yes, we can.” Dr. Fayez Mohamed from Alexandria Law School is with us this morning. Also with us, seven young professors of law, lecturers in law from Alexandria Law School . They came from different states around the United States . All of them are earning PhDs on different topics, including topics that are supervised by our keynote speaker. So welcome to The Protection Project. Let me move from the international level to the United States and spend maybe two minutes or so, and that’s it. In the United States, 44 states have laws on human trafficking—quite an accomplishment. And the federal TVPA, as you all know, was signed into law by President William Clinton on October 28, 2000, and it was amended three times— in 2003, 2005, and 2008. I am not sure that you can find another country in the world where its trafficking law was amended three times in fewer than 10 years. (If you want to take a look at these amendments, The Protection Project website has what we call the TVPA in four colors—black, red, blue, and green. So if you want to see how the U.S. Congress looked at the issue and kept improving the law, I think a good way of doing that is to take a look at our website unless you have already done so .) These amendments were designed to enhance victim protection. Now, a trafficking victim has the right to civil compensation, including punitive damages in addition to the mandatory restitution that was granted by the provisional act. The TVPA contains quite a good model of the right of the victim to remedies, and I will present it to the UN Expert Consultation on Effective Remedies for Victims of Trafficking in Persons that will be held on November 22 and 23 in Slovakia. I’m not sure whether Slovakia celebrates Thanksgiving, but on those two days we are going to consult and perhaps produce a good document on effective remedies for victims of trafficking. Another important amendment that maybe a lot of you will be happy to listen to me talk about is reduction of demand and that’s your issue, I think your big issue— one of your big issues. Now under the U.S. law, we ask every foreign country what it is doing to reduce demand . Reducing demand is one of the minimum standards for the elimination of trafficking under the U.S. law. The Protection Project Journal of Human Rights and Civil Society 91

If you compare the “Trafficking in Persons Report” of 2010, which covered 177 countries and 373 pages, with the first report, which covered 82 countries and 105 pages, you will see quite an accomplishment on the part of the U.S. State Department in monitoring and combating human trafficking. The last change in the TVPA that I want to refer to is the change to apply the law on an extraterritorial basis, regardless of where the trafficking offense has been committed. Again, this is a new amendment. It took place in 2005 and again in 2008 . Of course, under the International Criminal Court (ICC) statute, universality may become the basis for analyzing human trafficking, which is defined under the ICC as enslavement, which constitutes a crime against humanity. The man behind this development in international law is our keynote speaker. He was the chair of the drafting committee on the establishment of the ICC, and he added Article 7. Article 7 defines human trafficking as a form of enslavement, and enslavement is a crime against humanity. And that was just one of the 24 UN appointments that he held on various issues of human rights . He is also a very distinguished scholar, who wrote at least 255 articles on human rights, international human rights law, international law, and international criminal law. He has been referenced by the U.S. Supreme Court at least 27 times. Yesterday as I was preparing for my speech, I thought I’d Google our keynote speaker, and the computer exploded—thousands and thousands and thousands of citations . But let me say that we have worked with our keynote speaker on several occasions. It was an honor for The Protection Project to work with the International Institute of Higher Studies in Criminal Sciences . The institute is located in Siracusa, Italy. I was there a few months ago and was happy to see my picture there, the class of 1992. That was the time I received my first lesson on human rights. But this last May, I participated with Linda Smith in the 10th Specialization Course on International Criminal Law for Young Panelists, titled “Human Trafficking for Commercial Sexual Exploitation.” I don’t know, maybe our keynote speaker will tell us what he is going to be teaching in his 11th specialization course this May . The other workshop that we had together was at the institute in Siracusa, Italy, developing and designing a course on international business and human rights. The idea is simple. We teach many courses on business, trade, and investment. We also teach courses on human rights. How about a human rights perspective on the issues of investment and trade? Without any further delay, please help me welcome our keynote speaker, Professor Cherif Bassiouni. 92 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Cherif Bassiouni: Thank you so much, Mohamed, for your extremely kind introduction. I think you have proved that Egyptians abroad stick together. So if you see a little bit of an exaggeration there, it has to do with our shared origin. But I’m particularly pleased and delighted to be here because of my longtime association first with Dr. Laura Lederer who was the founder, I believe, of this project and its first director and also with her successor Dr. Mohamed Mattar. I have known both of them for many years, and I’m delighted to be here.

I would be remiss really in saying that, from at least my vantage point, I don’t think any other project in the world has been doing as much as The Protection Project since its inception. It has been a pioneer in the field. It has truly been a leader in the world, and its contributions to the subject matter have been extraordinary. And when Dr. Lederer went from here to the Department of State, I’m sure that was also another manifestation of the outreach of the program in helping shape the global policies (at that time, it was the Office of Global Affairs) of the United States at a time when the United States also became a leader in the development of national legislation and national action in preventing human trafficking.

What Dr. Mattar has said would fall under what I would call the definition of “the glass is half full,” and what you’re going to hear from me is “the glass is half empty.” In fact, I’m going to be maybe overly pessimistic, but for a purpose. And the purpose is to show that while we have made some progress, we are so far away from making a meaningful dent in the worldwide phenomenon .

I will also maybe exaggerate a little bit in my description of government policies, in my accusations of governmental hypocrisy, and also in my lambasting the United Nations for its appearances of doing things. In a sense, what I want to convey to you is the feeling that you should not in any way be mesmerize by the smoke-and-mirror games that the United Nations and governments frequently play, not only in this matter but also in so many issues involving human rights .

Now, admittedly, governments have different considerations, different strategic interests in mind, and it all becomes a question of priority. Where does something stand as a government’s priority for the allocation of personnel, resources, and political energy to address it? At this point in time throughout the world, the issues of trafficking of women and children for commercial sexual exploitation, which I would like to emphasize, are not a priority. Notice I didn’t say, “Is not a high priority,” I said, “Is not a priority,” all the treaty The Protection Project Journal of Human Rights and Civil Society 93

ratifications, national legislation, national pronouncements, public speeches notwithstanding.

There are a number of reasons for that viewpoint. One of the reasons I would like to submit—which maybe is going to appear strange coming from a white male from the Arab world who is a Muslim and who’s in his 70s and, therefore, of sort of a past generation—has to do with the fact that the historic struggle for equality between men and women still continues.

There is absolutely no doubt that the lack of interest and the low priority given to this problem are due to the fact that men throughout the world still control government policies, government choices, and still make those decisions, and women simply do not rate that high. In addition to which, whether we like it or not, we still have to a large extent—I want to refer to them as certain hidden or inbred racist and discriminatory conceptions that we still find in the West—certain traditionally hegemonic considerations in the developing world. Trafficking from Asia, Africa, or Latin America is of much less concern than it would be if it were the other way around.

I think we’re all familiar with some of the social and human issues to realize that it is indispensable to bear them in mind and not to overlook some of those hidden factors that greatly affect our policy making at various levels .

The second factor—I think, Dr. Mattar referred to it as being one of those things that Dr. Lederer and others have consistently tried to bring about— is in a sense a corollary of the first. For years, I want to say, for centuries and millennia, the demand side has not only been overlooked but has been considered totally acceptable. In other words, it is totally acceptable for any society to have a male demand for female prostitution. Concern for the women has always been secondary, but upholding implicitly or indirectly a male’s right to have access to prostitution has always existed.

Probably, these words may be somewhat shocking to some of you, but the reality is no country at any time in history has equally criminalized the act of the male, who is the basis of the demand, with that of the woman, who is the supplier. Irrespective of whether that supply is done voluntarily, which on its face is questionable, and even when that supply is done coercively, the various criminal justice systems have simply looked the other way.

So now for the first time, we’re starting to see what I would call in the international process a stage of intellectual ferment where we are starting to talk about demand reduction and about concerns for the elimination of demand. Unfortunately, it is still extremely embryonic to say the least, and we have 94 The Protection Project Fifth Annual Symposium on Trafficking in Persons

a long way to go in this respect. Please bear in mind the strong correlation between the first consideration I gave you (government priorities) and the second (inequality between men and women).

The third consideration that I would like to bring to your attention is something that those of us who are lawyers are particularly trained to be attuned to, as are, obviously, social science researchers. What are the facts? Do we really know the facts? We continue to talk in generalities. We do not know how many women and children—again, I will focus on the issue of trafficking for commercial sexual exploitation—are being trafficked for that purpose? We have no idea .

Now, we rely on statistics produced by the United Nations, meaning the UN Office on Drugs and Crime, and frankly they are as much of a guessing game as national reports on the subject. The statistics were as much of a guessing game in the first report produced in the United States, which picked a figure of 50,000 for that year, only to be reduced by half the following year because there was no justification for that number. So here we have the United Nations floating the number of about 2 million women and children.

You know, it’s a point of reference, and I suppose we can say, “Well, all right. Let’s accept that number arguendo.” Well, what is the purpose of the number? Is it to inform us so that decision makers can develop strategies, policies, and tactics that are designed to combat this particular phenomenon? Because if it is, that number in itself doesn’t tell us much. Because if it’s not accompanied by specificity in terms of countries, patterns of movement, cultural patterns, factors affecting the trafficking, reasons for the trafficking, and so on, it’s not going to be of any use. But its primary purpose should’ve been to shock—as those of us in international criminal law refer to it, shock the conscience of the world. Has it shocked the conscience of the world?

In a sense, I’m reminded of the number of victims of the Holocaust that came out after World War II and the great insistence that it was 6 million people. The idea was, let’s keep that number so that it sort of galvanizes world public attention; it remains fixed. We don’t quibble about the numbers, but that great number elicits shocking horror. And that idea succeeded. It succeeded because there was a constituency that wanted to make it succeed, a constituency that said, “Never again.” There was a constituency that said, “We have to remember it.”

I submit to you that even though we have come up with an absolutely shocking figure of 2 million women and children who were held in sexual bondage in the age of globalization, in the age of human rights, in the age of everything that we hear that presumably is supposed to convey to us the idea The Protection Project Journal of Human Rights and Civil Society 95

that civilization has somewhat advanced, that figure has not really galvanized world public opinion, has not really caught our attention, has not really produced the shocking effect that we would like it to. It’s almost as if we have—if I may use a financial term on Wall Street—discounted the number.

What number are we going to have to come up with that is going to cause a new awakening in world society? Will we need to ultimately come up with a figure of 5 million, 6 million, 10 million people being trafficked before somehow the governments of the world will awaken and say, “Oh, yes. We really have to do something about it.” Other than adopting conventions, passing resolutions and declarations, making speeches and statements, and then going on as if nothing has happened, we come back at that point and say, “Really, shouldn’t we again focus on the causes? Shouldn’t we find out what the reasons are, what the patterns are?” And here, I have to tell you that one of the phenomena that I would suggest you keep in mind is the dynamics and processes of international organizations, including the United Nations .

(Now, I know there are a lot of diplomats here, and I hope they will forgive me. If not, they can take it up with Dr. Mohamed Mattar for having invited me.)

But at these international governmental organization meetings, who is there? The distinguished diplomats who represent their governments. What is part of their job at the meetings? It’s to make sure they protect their governments. They’re not going to allow their governments to be attacked especially by somebody else. And, of course, one government is going to be very concerned about making sure that it doesn’t attack another government for fear that it in turn may be attacked. And, of course, all governments want to appear, at least in public opinion, as being governments that are modern, progressive, decent, human rights observing, and whatnot.

All right. That being the case, now let’s look a little bit at the dynamics of what happens at those meetings. Why is it that we see nothing about patterns of trafficking in any of the UN reports? I’ll just give some examples of what I mean by patterns of trafficking. (Again, I urge the diplomats here to excuse me for using these examples .) I came across a very interesting phenomenon of a rather large number of Nepalese women and children being trafficked from Nepal to India. I had to ask myself, “Well, why is it so?” What’s so particularly—if you’ll forgive the expression—appealing for the Indians in Nepal? Then I looked at some of the patterns of trafficking into Japan and found that a large number of people were coming from Thailand, Cambodia, and Laos, and I had to ask myself, “Why?” 96 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Well, the answer is we’re basically speaking of the women and children as a commodity. They are a commodity. They are to be used. And if that’s the case, you have to look at what the law of demand and supply has to do with this phenomenon. The law of demand is also related to what is particularly appealing to a given public. Well, in both the examples of Japan and India, certain factors were very interesting, such as the Japanese sense of cultural and racial superiority over other Asians and also over women.

So it’s not the sense of only sexual gratification. It’s also the sense of power that is reflected in the selection of a product, if I can again use that term. Again, with India and Nepal, Nepalese women are very, I want to say, subservient, submissive, which fits in the dominant cultural characteristics of the Hindus. So suddenly a sense of the pattern of trafficking is emerging using only those as examples .

If you look at other patterns of trafficking, particularly those from South America into North America, something that is frequently ignored is patterns of internal trafficking. Take for example Brazil, which is half a continent, where a significant amount of internal trafficking from one region to another occurs. Children are being kidnapped at the ages of 8 to 10 and taken to another region where they don’t speak the language. They’re brought up on a farm like animals until they’re about 10 or 12 years of age and then put on the streets. If you look at all these patterns, you find that trafficking is exclusively driven by economic considerations. So you don’t have any particular cultural factors that affect it and that’s important to know.

If you look at these economic considerations, you would say, “Well, if that is the case, then obviously in some areas, a policy of economic development may turn out to be the most effective preventive measure.” Certainly if you look at these patterns of trafficking and you look at the dynamics of what constitutes demand and how the supply is produced, you also quickly come to the conclusion that as history has proven, the policy of repression doesn’t really work, particularly when the policy of repression is directed against the victim. Time and again, we see the policy of repression directed at the victim; the emphasis is on making prostitution a crime, arresting the victim of prostitution, and so on .

I recall at the conference Mohamed Mattar mentioned (and I see Linda Smith here who was there), I used an example that particularly struck me. A few years ago, I was invited to a conference on trafficking in a mountain resort in Italy called Courmayeur; it’s an absolutely beautiful place in the Alps. Driving up from Torino—it happened to be spring, but there was still a lot of snow—and just before entering one of the small towns on the way, the The Protection Project Journal of Human Rights and Civil Society 97

car came around a bend—sometimes you sort of get surprised or startled by a certain vision. On both sides of the street stood about 30 African women wearing very limited clothing and showing their legs as far up as they could.

Later at lunch, I was seated at a table with the Italian minister of interior and the minister of justice. I asked them, “Ministers, did you come by the same road that I came by?” They said that they had. I asked, “Well, did you see what I saw?” They answered, “Yes.” And I said, “Tell me, this is Courmayeur in the middle of the Alps. These women have to have been trafficked from somewhere to get here.” “Oh,” one minister said, “yes, we know. They’re mostly Nigerian.” “Well,” I said, “that’s very helpful. Now, what are you doing about that?” “Well,” he responded, “the problem is that prostitution is not a crime in Italy so we can’t arrest them for prostitution.” And I said, “Well, I mean, you have the physical evidence of what really would be a trafficked woman.” He said, “We know that these are Nigerian gangs who are using the women for their purpose, and the women do it because they need the money in order to bring their menfolk into Italy and so they have to do that.” And I said, “If you know that, why don’t you use the women against the men?” And his answer was, “Well, because they will not testify against the men.” And I asked, “Why wouldn’t they testify?” “Well, because the men will help them. If they have to pay bail, the men will pay the bail; they will protect them, et cetera.” By the way, the same phenomenon happened with Albanian prostitution that controls all of southern Italy .

So in the course of our conversation, I kept pressing for what I’m sure must be something fairly obvious to them but wasn’t to me. There was a cost. You see, if the state rescues these women, you start with the cost of these women having been trafficked: they do not have the language skills; they do not have working skills; they may have venereal or other diseases; they may have psychological or psychiatric problems; they certainly will have social problems. They will cost a lot of money in social security benefits until they learn a trade or a profession. Then once they’re legalized—here is the big disincentive—they will petition for all their families. So for each woman whose status will be legalized, not only is there a cost of X number of dollars or whatever the currency is, but then each one will likely bring on an order of between 2 and 10 members of her family legally into the country, thus swelling the number of immigrants.

So in the cost-benefit analysis, it’s better to leave these women on the street. It’s better to leave trafficking alone. It’s better to leave sexual exploitation alone rather than have the state assume the cost and the negative consequences 98 The Protection Project Fifth Annual Symposium on Trafficking in Persons

of allowing more immigrants into the country. These are among the myriad issues that we have to address with that phenomenon.

One last issue that most research tends to overlook but that is a reality is the view of law enforcement. I invite you just as a matter of curiosity—no matter where you live or where you are—to take the opportunity to visit your local police department and to talk to the chief of police. (It doesn’t really matter where, as I say; since I live in Illinois, we usually—I don’t know why but historically we’ve always used the small town of Peoria as an example for every small town.) So go to the Peoria of your state or your region and talk to the chief of police and ask, “Chief, can you tell me how many men and women in your department are assigned to trafficking?” I’m going to make a wager with you that at least 50 percent of the chiefs of police are going to say, “Come again? What are you talking about? Trafficking?” Then you’re going to have to explain what you mean by that. They’re going to think initially of trafficking in drugs. That’s something they can understand. But trafficking— “Oh, prostitution,” they’ll say, “OK.” Look at the resources allocated at the national level, at the state level, and particularly at the local municipal level because that’s where most law enforcement is being done, and resources are extremely limited in that anti-crime activity .

There’s a reason for those limited resources. And the reason is that law enforcement’s reaction to crime has political consequences. It will affect the election of the mayor or the election of the governor . Is that governor or that mayor soft on crime? Whatever their politics, people are going to make that claim: soft on crime. We don’t know what soft on crime is but the chief of police is going to be very concerned. You know who else is going to be concerned? The district attorney, the chief prosecutor. That chief prosecutor’s election is going to depend on the number of convictions.

Now, if you’re sitting in that position, will you start going after difficult- to-prove and costly trafficking cases or will you limit yourself to those cases that you can prove easily and you can then point to your record of conviction?

Probably the best example of that motivation is the Japanese prosecutorial system. The Japanese prosecutorial system is the only system in the world that has a 95 to 99 percent conviction rate. And that’s year after year. The reason is that if you don’t have that high success rate, the chief prosecutor and all the prosecutors lose face and have to resign and leave their jobs. You may have read recently of a particular scandal of a prosecutor in Tokyo abusing his power and being removed from office. That incident raised the whole issue of prosecutorial abuse, which is designed to enhance those numbers. The Protection Project Journal of Human Rights and Civil Society 99

Well, the same political motivation exists in this country: to enhance those numbers, to enhance the numbers of law enforcement. That means that difficult cases are not going to appear on the list of priorities. But there’s also another reality that one has to address . In certain high-crime areas, a choice is going to be made, whether it’s a decisive political choice made at the top of government or a choice that is devolved to the chief of police or the chief of the district . When you have a certain number of homicides, robberies, burglaries, and other serious crimes, the question is, are you going to start paying attention to crimes that in your sense of priority are going to be considered lesser? And believe me, with any chief of police, trafficking is not going to be a priority, notwithstanding whatever he or she might say. So those are among the factors that will affect the enforcement level at the bottom.

So now you’ve got policy considerations at the state level and you have considerations, if you will, at the tactical implementation level. The next consideration that I submit that you keep in mind is that human trafficking is a phenomenon that is driven by profit. It is driven by profit by organized crime, which explains why the UN protocol is part of the anti–organized crime convention. However, organized crime is quite different today from what it was not only 10 years ago but before that.

Organized crime in the age of globalization follows, to a large extent, a business model. And the business models vary enormously. You have the wholly integrated structures of drug trafficking, such as in Colombia where the Colombian cartel extends from cultivation to street-level distribution in other countries. That is a sort of vertically integrated model—maybe like the automotive industry where the manufacturer produces the car and a dealer sells it. We have also seen other models, for example, in Africa with the diamond and precious metal trades .

But you also see the development of networks through globalization that has given organized crime a completely different structure with a greater capability for merchandising whatever product without actually having an organizational structure, personnel, and resources that are commensurate with the outcomes of networking.

Lastly, there is the connection between organized crime and modern conflicts. The Siracusa Institute, which was mentioned earlier, completed a three-year study about a year ago of world conflicts with 43 experts from different parts of the world. We found that between 1948 and 2008, there were about 319 world conflicts. We were absolutely astonished to discover that 100 The Protection Project Fifth Annual Symposium on Trafficking in Persons

those conflicts had produced 92 million fatalities—twice as many people as were killed in World Wars I and II together.

One of the absolutely startling things (I’m digressing a bit, but I think it’ll be of interest to you) is to see how many countries developed amnesty laws at the end of those conflicts. Two hundred seventeen countries have developed blanket amnesty laws providing impunity for all. That, of course, does not speak of de facto impunity .

So we proceeded with some sociologists and statisticians to try to answer some questions. I asked, “With 319 conflicts in about 60 years killing 92 million, how many people would it take to do that?” The minimum number we came up with was 1 million people. That figure is again just for the purpose of having a number, because obviously if you look at the Stalinist purges from 1948 to 1951, you’re speaking of several million people.

We took the figure of 1 million people as the hypothetical lowest number. I asked another question, “How many international prosecutions have there been for a potential pool of 1 million who killed 92 million people?” You’ll never believe it—867 people! So in a sense, when you look at that small number, you think, well, so much for deterrence, so much for enforcement. Now, if you read the literature, if you look at the treaties, if you look at UN and other declarations, you will be absolutely mesmerized by the number that addresses trafficking.

But it’s also a question of perception. I see here a number of people from the University of Alexandria and Libya and other parts of the world, so I will mention a conference that we had in Cairo that I organized with the League of Arab States in January 2009. That conference was just at the conclusion of Operation Cast Lead in Gaza, where about 1,300 civilian Palestinians were killed and 6,200 were injured, a very large number. We had 17 countries represented and several ministers; everybody was obviously blaming Israel and calling for Israelis to be prosecuted. And I said, in the presence of 160 participants from those 17 governments, “You know, I’m in complete agreement with you. Israel should be prosecuted. I mean, the Israelis who committed those crimes. But I would like to stop for a minute and ask how many conflicts have taken place in the Muslim world and the Arab world and how many people have been prosecuted?” I added, “You know, there are more Palestinians who have been killed by Arabs than Palestinians who have been killed by Israelis. I want to know, when did the prosecutions ever take place?”

We’ve had a civil war in , where an estimated 170,000 people were killed; I haven’t heard of a single prosecution. Egypt went to war in The Protection Project Journal of Human Rights and Civil Society 101

Yemen, where anywhere between 10,000 and 50,000 people were killed, including people who were gassed; I haven’t heard of anybody who was prosecuted. Hafez al-Assad of Syria went into Homs and Hama and in a matter of a few weeks killed anywhere between 10,000 and 20,000 Muslim brothers; I have never heard of anybody being prosecuted. In Black September under the beloved and revered King Hussein, Jordanians killed about 15,000 Palestinians; I have never heard of anybody being prosecuted. And it’s true. Bangladesh’s war of independence pitted Muslim against Muslim. And I said, “I am not forgetting Darfur.” In Darfur, 2 million people have become refugees, and close to 200,000 people have been killed; that’s Muslim against Muslim.

Why isn’t there a demand for postconflict justice? And what you see there is what you see in so many other areas of the world and in so many conflicts— double standards. And the double standards come from different perceptions. Different perceptions exist because we haven’t been able to bring these human values or humanitarian values to a universal level. We haven’t been able to say, “You know what? It doesn’t make a difference whether the person killed is black, white, yellow, with or without a turban, man or woman. That is a human being and thou shall not kill.” And the fact that we have not been able to elevate these values to the universal level allows the opportunity for not only double standards but also for realpolitikers and others to say, “Oh yes, in this case it was justified”; even though if we had those values at that same universal level, we could not find justification. We would not be able to find exceptionalism—yes, it’s okay to kill that group of people; yes, it may be okay to bomb that group of people; and so on.

Now, let me get back to where I started to digress. In every one of those 319 conflicts I was discussing, we see a dimension of organized crime. Because in none of those conflicts do you see the absence of nonstate actors. And the nonstate actors support themselves, sustain themselves, finance themselves through organized crime activities . Usually, those organized crime activities center on drug trafficking, but we have also seen diamonds in the conflicts in Africa—in Liberia, Sierra Leone, and the Democratic Republic of Congo.

However, we seem to ignore the fact that in so many other conflicts—in Angola and Mozambique, for example—organized crime groups are involved. In the particular case of Chad, one of the dominant organized crime groups that was fighting is now in the government. It was able to sustain itself with funding from oil companies, which were then guaranteed the oil concessions once that particular group prevailed and became empowered. Again, I emphasize, this is the case in Chad . 102 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Now, as you look at all those conflicts, you realize that one phenomenon seems to have prevailed and that is the rape of women. Consistent in all those conflicts are significant manifestations of the rape of women. In the conflict in the former Yugoslavia, which I personally investigated as chair of the Security Council Commission that investigated the war crimes, systematic rape was part of a policy of ethnic cleansing so it had a very definite political goal.

But if you look at other conflicts, including the one today in the Democratic Republic of Congo, where killings by one group of rebels of the other occur regularly, women are being raped consistently. In Uganda, rebel groups take young women and give them in “marriage” to their child soldiers. And I’m involved in a group that is providing assistance in Rwanda, Burundi, and the Democratic Republic of Congo to the boys who have been recruited and the women who have been forced.

A corollary and a connection exist, I submit to you, between the practice of rape in conflict and the subsequent stage of human trafficking as well. Again, that connection is related to the place of women in our conception, in our social structure, and in the scale of our human values and human interests . Seventy percent of all refugees in the world are women and children. Close to 90 percent of those who bear the brunt of civil wars, conflicts, and internal displacement in the world are women.

Please look at the resources that are allocated to help them compared with other resources . In particular, for purposes of illustration, please look at the resources allocated to helping those women in relation to the resources allocated for defense spending and research and development on future sophisticated armaments. You will see where the priorities of governments and the priorities of intergovernmental organizations are in the world.

As I said, I was going to emphasize the glass being half empty. My reason is not to discourage you; on the contrary, it’s to encourage you to act more forcefully, more decisively. First, no reason in the world exists for those of us who are committed to human rights to exclude the consideration of the human rights of women in general, but more particularly of trafficked women and children. Second, there is no reason in the world why we should be satisfied with the appearance of movement, the smoke and mirrors that the United Nations and governments give us as a way to comfort ourselves that progress is being made.

A few weeks ago, I was invited before the UN General Assembly—in fact, I was the only nongovernmental representative—to speak at a ceremony honoring The Protection Project Journal of Human Rights and Civil Society 103

the 10th anniversary of the convention and the protocol . I made a speech very similar to what I have just said here today to the great astonishment obviously of all the distinguished delegates who were there, and I spoke even more forcefully. Some of you may know that at that time, there was an initiative by a number of governments to develop a special program emphasizing trafficking in a special worldwide action, which is called the “Global Plan of Action to Combat Trafficking in Persons.” And some major governments, including the United States, opposed it. They opposed because those governments thought, “Well, if we did that as a specific action plan geared toward trafficking, it’s going to detract from the focus on other manifestations of organized crime, in particular drug trafficking.”

Again, I submit to you that it’s very interesting to compare the values at stake: that is, for most governments, it is more important to engage in combating drugs or drug trafficking, which from the perspective of human harm is so much less significant, than in combating the trafficking in human beings.

So we need to go back to your alphabet: A for academic institutions, C for corporations, M for media, N for NGOs, and R for religious institutions . We really need greater mobilization of our interest in and our attention to these issues focusing on the values of human rights, and the human values reflected in this condition .

I would simply like to conclude with how I came to this point or this position. As I said, between 1992 and 1994, I investigated the war crimes in the former Yugoslavia, and I started the world’s first rape investigation in the history of conflicts. On one of my first visits to Sarajevo, I was taken to a small hospital, a private hospital, to meet three young women. Those three young women were part of a group of eight women who had been seized in a town called Foca and had been kept in a villa under guard. The guards basically used them sexually as they pleased. The girls were held there until their wealthy parents could be contacted to ransom them. They ranged in age from 11 to 16. They were not only sexually abused daily by the guards but the guards took them home to be their slaves, to clean their houses, and also to provide sexual services for their friends who would come to visit.

Ultimately, the girls were ransomed. One of the three that I interviewed was on a bed. It was in the midst of the war, the city was devastated by the bombardments, and she was on a very bad-looking metal bed with a blanket over her and nothing else. She was in the fetal position. She was in a catatonic state. At the age of 11, she had been consistently raped. At the age of 12, she became pregnant and had a miscarriage. She didn’t know where her parents were. After 104 The Protection Project Fifth Annual Symposium on Trafficking in Persons

eight months of that abuse, she basically left the world of consciousness and fell into the catatonic state. I vowed to myself that I would make it my business in life to bring this issue to the attention of others.

In conducting the rape investigation, I and a team of 33 women working with me to interview 223 rape victims. Believe me, there are no sadder stories than the story of a woman who has been deprived of her humanity and her freedom, who is at the mercy of one or more men, who is not only sexually abused in the physical sense but in every possible sense of the word, and who has no hope of that abuse coming to an end. Imagine if we truly had 2 million such women and children in that condition of sexual slavery throughout the world, day after day, waking up to that horror, knowing that nobody cares, that nobody is going to pay attention to them, that there is no salvation from that, that they will die either of venereal disease or a beating, that nobody really knows where they are, and that they have been really cancelled from the human race .

And I submit to you as a human being, we should always remember that members of our human race exist in this condition as well as in other conditions that we should never tolerate, never accept, never deal with complacently. And yes, if it takes being blunt to governments, we should do that. Thank you.

Mohamed Mattar: Thank you, Professor Cherif Bassiouni, for the very insightful reflections, and allow me in recognition of your work throughout these years to present to you The Protection Project International Human Rights Award of 2010 .

Cherif Bassiouni: I’m going to impose upon you for just two more minutes. At the DePaul International Human Rights Law Institute, which I founded 20 years ago, we have a poster. On the poster is a woman standing as the symbol of justice as the Greek goddess stood for the symbol of justice. And I have three quotes that I would like to share with you because they’re so relevant to what is being done here.

The first quote is from Prophet Mohammed in which he says, “If you see a wrong, you must right it. You must right it with your hand if you can,” meaning your action. “You must right it with your words if you can’t do anything about it by action. And if not, you must right it at least in your heart, and that is the weakest of all faiths.” The second one is from Pope Paul VI who said, “If you want peace, work for justice.” And so the essence of peace is not having more nuclear weapons; it’s having more justice . The Protection Project Journal of Human Rights and Civil Society 105

And the third is a statement from the , which says, “The world rests on three pillars. It rests on truth, on justice, and on peace.” And then a commentary by one of the distinguished rabbis says, “But you know, the three are really but one because in order to have justice, you have to have truth. And if you have justice and truth, then you ultimately have peace.” Thank you.

Ambassadors’ Panel: Assessment of Government Efforts to Combat Trafficking in Persons Linda Smith: First, I want to thank the Honorable Dr. Mohamed Mattar. I am so impressed .

To start, I want to tell you just a little bit about my history with Johns Hopkins University. As a member of Congress, I started working briefly on the issue of trafficking and the issue of human rights, and it got under my skin. I guess somewhere in that time I decided that the issue of trafficking would become my life. I didn’t know what that decision meant, but as voices of those focusing on this issue came forward and started ringing in my ears, and after I had found some trafficked children, I started building a village for them in Mumbai, India, while I was still a member of Congress. Actually it was just the first. I started hearing a culmination of sounds coming from Washington, D.C., so I came back, and I began building two villages—well, three: one in Nepal, one in India, and one in Jamaica. And I thought, you know, policy has to undergird anything we do because without a law, you can’t call people to the law.

Now, we certainly know that laws do not dictate practice, because many places have laws but the culture leads the citizens to do something else and then the policymakers not to enforce the law. But once I started focusing on those voices, I actually heard two that were strong and clear and were convincing to me even though I was here in Washington, D.C. They were both at The Protection Project—Dr. Laura Lederer and Dr. Mattar—and they were able to bring the many voices together in a way that they are now starting to drive policy . Without going into the policy itself, let me mention that Dr . Lederer and Dr. Mattar were partners with Shared Hope International in a coalition that I started. Shared Hope organized the first world summit on trafficking, which was held under Secretary (the prior secretary of state, but perhaps too far back for some of you to remember) Colin Powell. Probably some of you were focusing at that point on your studies . 106 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Well, I want to say today that my watching the progress since the founding of The Protection Project, which is now under the leadership of Dr. Mattar, has been fascinating. I still come to Dr. Mattar and ask his advice, no matter what state of America I’m in (and we work in all 50 states right now) or what country. He is that wise and knowledgeable. He has given his life to human rights.

Well, we’re going to get right on with our panel because we have some really distinguished ambassadors. When I come to Johns Hopkins, I’m always so impressed at the quality of the people they bring together, which gives such credibility to this issue.

Thus, I would now like to introduce, first of all, His Excellency Mr. Gary Doer. He became prime minister or actually premier of Manitoba in 1999 when he led the New Democratic Party (NDP) to power after 11 years of progressive conservative government. Now, he is the ambassador from Canada, and in the United States, that’s a pretty big position. I think it is also a big position in Canada, which says something about the man.

Gary was first elected to the Manitoba Legislative Assembly in 1986, and we visited him a few times. I was elected to the state level in 1983, just a little bit before he was elected. He was appointed minister of Urban Affairs in 1986. In 1987, he became minister of the Crown Investments and also the minister responsible for the Manitoba telephone system. He was elected leader of the Manitoba NDP in 1988, and he became leader of the Official Opposition in 1990. (He was really moving.) In 1999, he was sworn in as premier of Manitoba. In August 2009, he announced he would be stepping down as premier. That move kind of surprised me until I heard that the news announced the next day that Prime Minister Steven Harper had named Gary as the new Canadian ambassador to the United States. Please join me now in welcoming His Excellency Mr. Gary Doer.

Gary Doer: Well, thank you very much, Linda. I want to thank you and your team for your great leadership with Shared Hope International, and I want to thank all of you for joining us. I certainly have had the privilege as the new ambassador to be extremely impressed with the leadership here in Washington and across the country on dealing with people who are vulnerable and people who have been exploited. Certainly, Deborah Sigmund is here, from Innocents at Risk, another organization that Canada is working with. We’re here to be inspired by your ideas, to listen to best practices, and to share what we’re trying to do in Canada about this very, very important topic.

Of course, all of us are motivated by the facts that more than 12 million people in our world every year are forced into labor and prostitution and that The Protection Project Journal of Human Rights and Civil Society 107

traffickers obtain US$32 billion worth of profit a year. That figure, of course, shows the extent and the complexity and intensity of what we’re dealing with. Of course, Canada shares a border with the United States, and we share a passion to resolve and take action on these very important topics .

Just recently, in our own Parliament in Canada, we have brought in a new piece of legislation that builds on action we’ve taken since 2005 that will prevent human traffickers, human smugglers, in terms of the laws in our country. That legislation will provide greater abilities to prosecute human traffickers. It will provide greater offenses and vigilance in our immigration system. It will have incentives for the prosecution of human smugglers. It will provide for mandatory jail sentences for human traffickers in our Canadian system, and it will go after not only the ship operators but also the ship owners whose ships are clearly used for human trafficking. We believe that they must be held criminally responsible and that ship owners cannot be naive about the human trafficking activities on their ships.

We just passed a new immigration law in Canada in a minority parliament, which is an interesting situation. All parties agreed on immigration whereby legitimate refugees in our country would have more expedient adjudication and not have their cases drag on for years. But part of that legislation provides for the protection of new immigrants who are potentially abused. In fact, it has the ability to provide them temporary residence in Canada if they do not have proper papers and were smuggled into our country to be exploited through labor or prostitution.

Just recently, our prime minister announced his own special adviser in human smuggling who will directly advise him on this topic. Prime Minister Harper felt it was a very important priority for the government to have that position. And just to give you the scope of how important we believe that position is, the prime minister has chosen the person who was responsible for all the security at the recent Olympic Games in Vancouver and Whistler, British Columbia, and the G-8 and the G-20 meetings to take on this very, very important role .

So that person is extremely well qualified and can work across intelligence, immigration, border security, Royal Canadian Mounted Police (RCMP), provincial police, local police, and social and community activists to advise the prime minister directly to ensure that good ideas are not sitting in the silos of our government departments but rather are developed and go directly to the head of government to actively demonstrate what is important in this important area . 108 The Protection Project Fifth Annual Symposium on Trafficking in Persons

As many of you know, we have just recently announced a Blue Blindfold initiative for public awareness. We are spending a considerable amount of money to inform not only the public service but also the great numbers of community organizations in terms of how prevalent this challenge is and how to identify and report any abuses that may exist in our communities to the various police authorities, such as to the RCMP. We’ve had the RCMP working with a special coordinated unit since 2005, again, to build upon our coordination across the country . We have more prosecutions and more prosecutors dedicated to dealing with the smugglers in our country, and I’m pleased to announce that right now we have before the courts 32 cases of people involved in human trafficking, again indicating that there is criminal accountability for those most involved in trafficking in vulnerable people.

We also believe that part of that effort is to make sure that the victims are given the kind of support services that they need. It’s one thing just to prosecute the traffickers; it is quite another to leave the victims without any support from our national government, which, of course, continues their vulnerability. And we should not send people back to a country if we do not know the situation under which they left and their vulnerability in that particular country before they came to Canada .

Your Homeland Security secretary is working closely with our public safety minister. I have attended four meetings with Secretary Napolitano in which she has raised this issue with Canada, and it’s always on our agenda to ensure that we are thinking about all kinds of public safety issues— including the issues of abuse of people, whether it’s forced prostitution or forced labor—and the ability of border security people to detect problems and enforce protection for those individuals .

Again, Canada believes, as you do, that there are 12 million reasons a year to share our experience and to coordinate our efforts. And we look forward to participating on this panel with other countries to ensure that we’re working as effectively as we can on behalf of the vulnerable people that are so very, very important for this agenda today . So again, thank you very much, Ms . Smith, for inviting Canada and thank you very, very much to Johns Hopkins for having me . Thank you .

Linda Smith: Thank you very much . The next panelist is His Excellency Dr . Igor Munteanu. In August of 2010, Dr. Igor Munteanu was appointed as ambassador of Moldova to the United States . He previously served as executive director of the Institute for Development and Social Initiatives, a leading think tank in Moldova whose mission is to contribute to the quality of governance, policy analysis, and the goals of an independent thinking environment in Moldova . The Protection Project Journal of Human Rights and Civil Society 109

In addition to his management of Radio Free Europe, he is a board member of the Moldova Foundation, a nongovernmental organization (NGO) based in Washington, D.C., which focuses on advocacy matters for Moldova and seeks to build a long-lasting tie between the West and Moldova.

Since 2001, Dr. Munteanu has been an expert for the Congress of Local Authorities at the Council of Europe. He holds a PhD in public law from the Free International University of Moldova. Please join me in welcoming His Excellency Dr . Munteanu .

Igor Munteanu: Thank you very much for the privilege of allowing me to be the second speaker this morning . Excellencies, dear friends, ladies, and gentlemen, good morning, and thank you for your kind invitation to attend this conference . The topic sure is challenging, but nevertheless it is a crucial issue in political, economic, and moral terms . Special thanks to Dean Jessica Einhorn and Director Mohamed Mattar for hosting us here at the university .

From the outset, I avail myself to address one of the many dimensions of the human-trafficking issue and that would be, in fact, the ethical argument. There is no modern state that can ignore or undermine the simple fact that we all cannot be free until everyone is released from the trafficking networks that exist in so many countries across the world and their direct sponsors are convicted . Regardless of their size or institutional maturity, many countries still need a strong wakeup call for effective action against the effects and roots of this form of modern slavery, which should not be tolerated since it violates our core values and beliefs.

Please allow me to focus my presentation on what Moldova has learned in the past decade of transition and what we have achieved so far in our struggle against trafficking in persons (TIP). When trying to outline the true definition of TIP, some countries may use different concepts, but the core of their definitions agree that TIP involves a certain recruitment, implying a force or coercion used against the moral person with the aim of exploiting that person for one’s own gain.

Most of the literature on this subject describes TIP as a direct consequence of immigration, but it is not confined to that movement. The vast number of individuals who end up in various forms of slavery—some of the most abject forms of trafficking, such as prostitution, illegal trade in human organs, or child pornography—are recruited in fact from the most vulnerable groups of society. The majority are poor people earning less than their subsistence needs in their home countries who are given false promises or, at the extreme, are even kidnapped by criminal gangs specializing in this kind of bloody business. 110 The Protection Project Fifth Annual Symposium on Trafficking in Persons

My definition of trafficking in human beings derives from a versatile combination of extreme poverty and poor governance indicators. This definition is in part the story about the origins of trafficking of individuals in Moldova during the past decade, which supplied a lot of illegal immigrants, many of whom were subject to TIP. According to official statistics, over half a million Moldovans reside and work abroad. However, unofficial estimates are at least twice that number. Taken together, a third of the population of the country— four million individuals—resides and works abroad, one of the highest rates of immigration in the world.

There was a sharp decline of the national economy in 1999, for instance. Domestic turmoil in the first decade of transition was sharpened by separatist conflict in Transnistria that cut off 40 percent of its industrial potential allocated in the breakaway region and until now is sponsored by Russia. Living standards fell while unemployment became rife and social security diminished. As a result, almost 60 percent of the population had to survive on an income below the absolute poverty line—US$2 per day. Those most affected were, of course, women (almost 70 percent) and the young (80 percent).

All these factors moved a significant number of people to seek jobs abroad that paid meagerly but also had an element of social protection, which to a large extent was outside the legal framework of the given countries. On top of this emigration, Moldova was ruled in the past decade by a Communist Party obsessed by the golden period of the Soviet time and driven by ideas to stick to its legacies and gravitation toward the Russian state. This situation created considerable domestic conflicts and resistance, particularly among the youth. Poverty, inadequate public services, high levels of unemployment, discrimination against women, corruption, and domestic violence were among the main factors making Moldova a major country for trafficking in human beings.

Recently, hope has returned to Moldova . In 2009, the Communists lost their power but appeared to be quite reluctant to go without a struggle. They contested every possible decision; they showed considerable resistance, reacting from fear of sabotage, by staging active street protests against the new government. Nevertheless, the coalition base in government—the cabinet of ministers, sworn into office by the end of September 2009—was endorsed by constituencies of political parties and formed the alliance for the European integration .

From the outset, the new cabinet of ministers led by Prime Minister Vlad Filat, chair of the Liberal Democratic Party, challenged the very core of the people’s one-party system based on allegiance to a single leader of The Protection Project Journal of Human Rights and Civil Society 111

the Communist Party. Instead, it encouraged pluralistic debates favoring the multiparty composition of the cabinet of ministers, allowed registration of new private broadcast media, and released a video that campaigned against corrupt officials in the public sector.

Moldova is a direct neighbor of the European Union and a country whose language is, in fact, Romanian, one of the official languages of the European Union. Therefore, membership in the European Union is certainly an element of the political reform and modernization of my country .

Since 2009, the new Moldovan government proved its determination to reengage itself firmly in combating trafficking in persons.

Growing public and political awareness of human trafficking has also increased. The political will of the government is reflected in the decision to amend legislation, a new order to increase the capacity to prevent and combat the phenomenon of TIP, and to take concrete actions to ensure the four Ps: prevention, protection, prosecution, and partnership .

To achieve the goal of preventing TIP, the government of Moldova is working hard to strengthen its response first in institutional terms. It provides a stronger, more visible leadership at the center for anti-trafficking activities whose main tasks are to investigate, detain, and prosecute individuals and organizations involved in trafficking and illegal immigration in the Republic of Moldova and the region . The center includes detachments from the General Prosecutor’s Office, Border Guard Service, Information and Security Service, Center for Combating Economic Crimes and Corruption, and Customs Service (probably too many).

Every prosecutor’s office has an individual who is responsible for the enforcement and monitoring of the law regarding the prevention and fight against trafficking in human beings. And as the basis of the existing national committee in anti-trafficking, the government set up a permanent secretariat that serves to coordinate all interested actors: Ministry of Internal Affairs, prosecution, judiciary, mass media, Ministry of Social Protection, specialized advocacy groups, and NGOs .

The secretariat reports directly to the National Committee of Trafficking in Human Beings, which is led by the minister of external affairs, who himself acts as vice minister of the government and is responsible for the overall coordination of the national air force, identification of areas where efforts are falling short, and the removal of any obstacles. 112 The Protection Project Fifth Annual Symposium on Trafficking in Persons

The national committee includes a full range of entities and ranks, ensuring the entire spectrum from prevention to prosecution and improving the situation of victims. The national committee acts under a special regulation that allows it to assign, if needed, additional activities to the sectoral ministries or state agencies. It succeeded in setting up a wide network of territorial committees on TIP to improve the interaction and coordination of activities with various actors in the international organizations. By the end of 2009, the national committee had set up and adopted a national action plan to combat TIP for 2010 and 2011.

As a response to the U.S. GTIP (State Department’s Office to Monitor and Combat Trafficking in Persons) report and based on the recommendations, the government of Moldova has adopted an additional action plan to prevent and combat trafficking of individuals that aims (a) to improve government efforts to investigate, prosecute, and convict officials complicit in human trafficking; (b) to further provide assistance and prosecution to victims of trafficking; and (c) to improve national and international cooperation and awareness and to launch a prevention campaign .

It is also important to recall that combating trafficking in persons is an important issue in the negotiations between the Republic of Moldova and the European Commission toward a free visa regime for Moldovan citizens. In fact, effective policies against TIP are the most convincing argument for the Block 3: Public Order and Security, which is a part of the negotiated association agreement of the Republic of Moldova with the European Union. It goes without saying how important it is for Moldova to settle this issue and to prove its progress toward full-fledged membership in the European Union.

Proceeding from the above-mentioned consideration, in 2010, Moldovan authorities accepted the repatriation of individuals without legal status from the main states of destination for Moldovan migrants . This measure is aimed mostly at speeding up the procedure for return and the implementation of victim protection. The government has prepared specific amendments to the existing laws that are aimed at avoiding the release and parole of traffickers and empowering the center to combat TIP with increased investigative authority, among others .

Referring specifically to combating corruption and convicting public officials involved in TIP offenses, I must underline that those are top-priority activities for the Moldovan government in combating trafficking, and they include the following: (a) strengthening the capacity of law enforcement to work cases of public officials’ involvement in trafficking offenses by improving identification, collection of evidence, analysis, evaluation, and monitoring of The Protection Project Journal of Human Rights and Civil Society 113

such cases; (b) collaborating with the media; (c) creating a zero-tolerance environment for the cases of above-mentioned offenses; (d) improving the exchange of data and development of the new integrated database of TIP; (e) improving victim identification, (f) increasing funding for victim assistance; and (g) increasing cooperation at the national level between regional commissions.

We have also been pleased to note a significant uptake in trafficked victim identification in Moldova, thanks to the proactive implementation ofthe National Referral System . The demand for having such a system derived from the understanding that it is not enough to prosecute traffickers; we must also provide assistance to the victims of trafficking, ensuring that no new victims are recruited. Thus, the National Referral System links could counter trafficking efforts with existing social-sector work.

All major stakeholders in the countertrafficking field in Moldova actively participated in developing the National Referral System, and the government has full ownership. The system is designed to facilitate access to protection services by establishing and employing the referral procedures, and it serves both to prevent trafficking and to protect and assist victims.

In December 2008, the strategy and action plan for the National Referral System were approved by Parliament. And in February 2009, the system entered into force .

What we have achieved so far from the installation of the new government after fewer than 11 months of hard work, I can definitely say, is that we are now much more aware of the positive impact of close cooperation among the various domestic and international actors . To achieve successful implementation, the system demands not only constant interaction among state and nonstate actors to create public confidence in various agencies, but also investing in extensive national programs of proactive prevention and assistance and protection of victims in those vulnerable groups, particularly orphans and internally displaced persons, who can become easy targets of criminal gangs and networks. I’m quite happy to see today that state agencies are more focused on concrete results that earn public confidence. It is important that they started to care about their public image since a positive public mind-set has a key role in reducing TIP. It is equally important that state agencies plan and implement with grants capacity-building programs that they see as targeted investments and not just another campaign. Prevention means being informed about safe immigration and raising awareness. 114 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Last year served to solidify Moldova’s focus of actions, continuous reflections, and good governance standards. In statistical terms, Moldovan authorities can report a significant decrease in the main indicators of TIP. During the first half of 2010, competent bodies registered more than 200 crimes, including trafficking in human beings: 91 TIP crimes compared with 124 in 2009; 5 cases of trafficking in children compared with 14 in the previous year; 6 cases of illegally taking children out of the country compared with 13 in the last year; 77 cases of pimping vis-à-vis 192 for the last year; and 77 cases of organizations for illegal immigration against 64 in the last year .

I believe that reduction was primarily due to the personal responsibility of the top officials in charge of the supervision of TIP. Moldovan authorities approach this phenomenon more seriously, which has allowed us in Moldova to learn the lesson of the past decade and connect our institutional architecture to deliver clear results in TIP. This approach has created an interesting combination of domestic efforts and the impact received from international evaluations and reports leading to a positive best practice in the field that has the potential to serve other developing countries in performing countertrafficking functions.

Just to give you an example, between August 1 and 7, a delegation from Afghanistan came to Moldova for a learning and documentation visit at the center for anti-trafficking. They were particularly interested in the policies undertaken by Moldova in the area of protecting victims. That visit specifically focused on the exchange of experiences in the following domains: (a) cooperation with the government for the National Referral System, (b) shelter management, and (c) the protection and empowerment of women at risk, specifically the programs being carried out under the United Nations Trust Fund for Human Security Project. All areas covered were aimed at showcasing practices to further the visitors’ understanding and capabilities to assist victims and at-risk cases .

Another example is a recent visit by a delegation from Azerbaijan that was specifically interested in learning how the new national action plan to combat TIP was designed and led by the government authorities in Moldova. That was in September this year.

The greater public awareness in Moldova is seen as an incentive for success in fighting human trafficking. On October 20, the official European Union Anti-Trafficking Day, the Moldovan anti-trafficking community launched two new campaigns aimed at preventing the trafficking in human beings. The Protection Project Journal of Human Rights and Civil Society 115

Summing up the lessons learned by the Moldovan authorities following nearly one year from the date of the coming to power of the new cabinet of ministers, I would like to say that the experiences of 2010 revealed real progress but also the considerable challenges ahead. Building prosperity and successful market-based reforms remain two of the main scopes pursued by the state authorities in Moldova irrespective of the color or the ideology of the cabinet of ministers. Since the U.S. GTIP report served as a tool to mobilize the anti-trafficking efforts and provided guidance on how to advance toward Tier 1 placement, we consider the role of international organizations extremely important, if not crucial, in many respects .

I will conclude my presentation by appreciating the U.S. efforts in this regard. In particular, I am very grateful to Ambassador CdeBaca who provided comprehensive and insightful observations in the Moldovan plan of action to fight trafficking. I’m very pleased by our American colleagues’ recent visit to Moldova in September, which provided considerable ideas and scientific input regarding our results in 2010. We are proud of our partnership with the United States and European Union partner organizations .

European ties run deep, and the Republic of Moldova is committed to fighting the scourge of human trafficking in concert with its closest allies. Mindful of each trafficked man, woman, and child around the world, we must act together with a fierce urgency to find new and innovative solutions to tackle this age-old crime. We share the same values: that every person should be able to live free from tyranny, exploitation, and enslavement. Therefore, we shall work together to accomplish this objective we have set for ourselves in preventing TIP . Thank you .

Linda Smith: Thank you. His Excellency Aziz Mekouar became ambassador of the Kingdom of Morocco to the United States on June 19, 2009. Before this assignment, he served as Moroccan ambassador to Italy, Malta, and Albania, and he’s the permanent representative to the Food and Agricultural Organization of the United Nations. He is fluent in Arabic, English, French, Italian, Portuguese, and Spanish .

During his tenure as an ambassador to Washington, he has overseen the negotiations and signing of a free trade agreement between Morocco and the United States (that’s not an easy feat) and has worked to foster understanding between the American and the Moroccan people. Would you please put your hands together and join me in welcoming His Excellency Aziz Mekouar. 116 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Aziz Mekouar: Thank you very much for inviting me .

Of course, I have an introduction about trafficking in persons. However, I’m not going to read it; everybody knows what it is. It’s one of the most heartbreaking issues—one of the most important issues in the world today—and we really have to address it as much as we can—everybody, the governments, but all of you and everyone else. I’m going to give you an idea of what we have been doing in Morocco in terms of addressing the problem of trafficking in persons and trying to combat it.

Morocco is a country at the crossroads of Africa and Europe. It’s very active in the fight against human trafficking and has committed itself to leading the fight against criminal networks of trafficking in persons, especially women and children. This fight is based mainly on involving all stakeholders in the formulation of a comprehensive approach in the countries of origin, transit, and destination that include measures to prevent such criminal practices, to punish traffickers, to protect victims, and to come up with integrated plans premised on ensuring responsibilities and commitment to codevelopment.

In 2007, the Moroccan government set up an ambitious national strategy for combating human trafficking. The objectives of this new strategy include prevention, fighting the networks, and protection.

The prevention process—intense activities and targeted sectoral programs—has been implemented in this field to reduce in a structural way the causes for insecurity for vulnerable populations, such as women and children, who are the principal victims of the human trafficking networks. The government of Morocco has been engaged in various ambitious programs with the valuable help of the civil society and NGOs in order to fight socioeconomic vulnerabilities, illiteracy, violence, and discrimination, as well as exploitation in all its forms .

Among these programs, we have the National Human Development Initiative, a key instrument for reducing poverty, unemployment, and social exclusion, which involves 400 rural communities and 250 urban sectors in its first stage. I would like to say that this initiative has seen results. Six or seven years ago, the number of people living below the poverty line in Morocco was around 15 percent. It dropped to 8.8 percent. That is a very important figure. So the first action taken was the National Human Development Initiative.

Second, the national action plan for children, which goes from 2005 to 2015, pays particular attention to street children through specific programs, such as the national Idmaj integration, a program to provide for the reintegration The Protection Project Journal of Human Rights and Civil Society 117

of these children into society, as well as for training centers, psychotherapies, trauma healing, and so forth. The national Idmaj program was implemented to fight all types of exploitation of girls and child labor in households. And here I would like to digress.

In Morocco, you know, societies have lived a certain way for centuries. And one of the problems that we are still fighting is what we call the “problem of the little maids.” Parents send their 10-, 11-, and 12-year-old girls to work in households as little maids; and, of course, 10 and 11 years old is very young. The little money the employers paid would go directly to the girls’ parents. So it’s a joint exploitation between the employers and the parents. We have been fighting that exploitation very thoroughly and very strongly, but it takes time to change societies and mentalities .

Another program is the network of 700 Dar Talibas and Dar Talibs, meaning houses of female students and male students, institutions that take in children from rural homes in order to support their schooling . And that is also one of the problems, one of the issues. Because Morocco’s population is very spread out, we have to make sure that when these children go to high school, they can stay in dormitories nearby instead of having to walk many miles to reach school. Almost every village—I think every village—in Morocco has a primary school. However, every village does not have a high school. Consequently, after the children advance from primary school to high school, they must sometimes walk an hour and a half to two hours to attend the nearest high school. So we must create boarding schools for these children.

The national network of help centers for female victims of violence and the upcoming establishment of a national website are dedicated to informing people about the dangers of human trafficking. Furthermore, the legal arsenal for punishing crimes linked to pedophilia is being strengthened. Morocco also gives priority to education targeting potential victims and workers and to information campaigns aimed to educate public opinion about human trafficking in its different forms, particularly the methods employed bythe traffickers and the risks facing the victims. Similarly, border control constitutes a major instrument of prevention by neutralizing the infiltration of certain routes. Eleven thousand members of the Moroccan security forces are mobilized for the surveillance of Morocco’s 3,200-kilometer coastline.

Furthermore, no strategy to combat human trafficking could be effective without a policy for fighting corruption. Mechanisms have been put in place to allow appropriate disciplinary and criminal proceedings to be instituted against those involved in corrupt practices, particularly their involvement in the recruitment, transportation, and exploitation of victims . 118 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Now the fighting process—those were prevention programs—is a level of action focused on (a) information sharing, (b) borders and coastline control and surveillance, (c) the use of legal proceedings, and (d) cooperation on the legal front to fight transnational networks. Two more actions have been launched in this field: (a) fighting against document fraud through the use of biometric visas and travel documents, as well as providing land, sea, and air frontiers with suitable equipment, ultraviolet lamps, heat detectors, specimen passport recognition systems, and digital detection systems, and (b) training border control agents to identify victims and to profile traffickers.

Now the protection process—this process places the victims at the center of interest by (a) giving priority to their support, assistance, counseling, and rehabilitation; (b) simplifying their voluntary return; and (c) protecting them from their exploiters .

On the legislative level, two activities are being pursued: (a) the establishment of a legal base for assisting and protecting victims, in particular victims who testify during preliminary inquiries or in court, and (b) the adoption of legal measures authorizing the use of assets confiscated from traffickers to finance the voluntary return of foreign victims.

To assist trafficking victims, the government is (a) establishing an appropriate structure to offer medical and psychological assistance to victims, as well as emergency medical treatment for foreign migrants; (b) providing legal advice to victims; (c) protecting victims’ data to respect their rights to privacy; and (d) taking appropriate measures to ensure effective protection for victims against possible acts of reprisal or intimidation by traffickers.

As for foreign victims, the strategy gives priority to the voluntary and freely consented return of illegal migrants with the guarantee of suitable conditions before departure by way of accommodation, food, and medical assistance.

Finally, it should be remembered that in 2002, Morocco ratified the United Nations Convention against Transnational Organized Crime. Two additional protocols to this convention are being processed: the protocol for the prevention and punishment of trading in people, in particular of women and children, and the protocol against illegal trafficking in migrants by land, sea, and air, which is in its final phase.

The legal framework, Law 02-03, that regulates the stay of foreigners in Morocco offers important guarantees in terms of respect for migrants’ rights, especially for vulnerable members of groups. For refugees, Morocco and the The Protection Project Journal of Human Rights and Civil Society 119

United Nations High Commissioner for Refugees signed an agreement on July 20, 2007, in Geneva, whereby this UN agency now has an office in Morocco.

I can give you some statistics for 2010. We have 72 percent fewer migrants landing on the coast of Spain, the Canary Islands, and other locations directly from Morocco, 91 percent fewer than in 2004; 75 trafficking networks have been dismantled; 11,000 attempts to immigrate illegally have been reported, including 6,600 nationals from other countries; and 542 persons have been returned voluntarily to their countries of origin, 8,673 people since 2004 .

I very much appreciate the presentation from Professor Bassiouni. I connect with him when he says the glass is half empty. The glass will never be half full because it’s always two-thirds empty. Trafficking in persons is a terrible thing. And every one of us, every responsible person from any government, should think about that happening to one of your relatives—a child, a sister—it’s terrible. Just think for one second. And if you think about that, well, you will never ever you think that the glass is half full .

We are seeing today in our region—especially in the Sahara region that has huge countries with few means to control all their borders—a combination of three different phenomena, which are becoming exactly the same. Everybody has heard about al-Qaeda in Maghreb. Al-Qaeda is settling in the Sahara region, where we have seen kidnappings and terrorist attacks. This al-Qaeda group is fed by trafficking in persons, all those Sub-Saharan Africans going to North Africa to try to cross the Strait of Gibraltar to Europe. And at the same time, we’re seeing drug traffic coming in from Latin America through West Africa and going south. This problem is one of the most dangerous in the world today, and we have to address it.

Trafficking in persons is used to finance all that. It is very dangerous, and I think that we all should really, really be fighting it together within a framework of strong international cooperation . Thank you .

Linda Smith: Thank you. In our story of research work around the world, Shared Hope International often finds girls from certain countries being used in affluent countries. And quite often, as we were in Singapore, Japan, and that region, we would find girls from the Philippines, young women, clearly being traded and sold in the marketplace of misery and used as a product with no protection. When I saw that the Philippines would be on the program today and that we would have somebody from the Philippines, I was really pleased. So I want to introduce to you Ms. Maria Andrelita S. Austria, the minister for political affairs, Embassy of the Philippines. Would you please welcome her. 120 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Maria Andrelita Austria: Thank you, Linda, for the introduction and for the work of Shared Hope International in the Philippines, specifically with regard to the victims of trafficking for sexual purposes to certain countries in Asia and child trafficking. On behalf of the Philippine government, I would like to express our appreciation for the opportunity to be with you this morning; to exchange views on this issue; to share what we are trying to do; and, more important, to learn from your experiences and your thoughts on this issue .

Let me start by telling you a little-known fact about the Philippines. The Philippines is a nation with one-tenth of its population living outside the country. So at any given time, 1 out of every 10 Filipinos lives and works overseas. Thus, the issue of human trafficking, particularly across international borders, is a particular challenge to the Philippine government. So for the purposes of our panel, I would like to focus a little more on our efforts to combat trafficking across international borders.

On a personal note, this issue is also very close to my heart. I began my career in government over two decades ago in the Philippine Department of Labor, working specifically on issues related to the protection of Filipino migrant workers. And after meeting a woman who was sexually abused by her employer in the Middle East, then burned by a flatiron on her back by the wife of the man who abused her, it has become a personal advocacy.

Since the mid-1970s when the first wave of Filipino workers started to find work overseas, the Philippine government has been establishing mechanisms for the promotion and protection of the rights of the Filipino migrant worker. In 1993, we signed the International Convention on the Rights of Migrant Workers and submitted the instrument of ratification in 1995. Thus, we embraced the adoption of the Palermo Protocol, particularly as it sought to criminalize acts of trafficking and smuggling and to establish a framework for international cooperation. The Philippines signed the protocol in December 2000, and, I underscore, unconditionally and without any reservations, we submitted the instrument of ratification two years later.

In 2003, the Philippine legislature enacted the Anti-Trafficking in Persons Act in fulfillment of our obligations under the Palermo Protocol. The Philippines’ anti-trafficking law is very close to the protocol in the sense that it shares most of the definitions and contains all the elements enumerated in the protocol .

A key provision of our legislation was the establishment of the Inter- Agency Council against Trafficking, which is tasked with monitoring the compliance with the anti-trafficking law and with formulating comprehensive The Protection Project Journal of Human Rights and Civil Society 121

and integrated programs for the prevention of trafficking and the protection of trafficked persons. Under this law, foreign nationals trafficked to the Philippines were also entitled to protection, assistance, and services. They were allowed to remain in the Philippines and to find employment until such time as their cases were resolved.

In addition, the Philippines also adopted in 2004 a national strategic action plan against trafficking in persons, which serves as a blueprint for preventing and suppressing trafficking in persons and ensures the victim’s recovery, rehabilitation, and reintegration into mainstream society. We have also remained at the forefront of regional and global efforts to provide a better work environment for our migrant workers.

During our term as chair of the Association of Southeast Asian Nations (ASEAN) in 2006 and 2007, among our priority initiatives was the adoption of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers. We continue to work with our ASEAN colleagues in developing a legally binding framework for the protection of ASEAN workers in the region. One particular feature of our program for migrant workers is in addition to our embassy and consular officials, our workers abroad also have access to a corps of both labor and social welfare attachés.

We currently have a corps of more than 40 labor attachés and 40 social welfare officers in various places where there are significant numbers of Filipino migrant workers. This corps of workers runs a network of Filipino worker resource centers that function as social halls, training venues, and halfway houses or shelters for Filipino workers.

We continue to explore the use of all available mechanisms, including new technology, to fight trafficking in persons. Philippine Foreign Service Posts use short message service (SMS) technology to allow our overseas workers easy access to our assistance-to-nationals officers. Through partnerships with telecommunication companies, we have remained accessible to our people by receiving complaints; giving advice; and, in some instances, arranging rescue for those being held against their will in conditions of forced labor, simply through SMS . The use of SMS technology has created immense interest and is being replicated now in other countries.

Yet despite all these measures we have taken, trafficking in persons remains a serious concern. We realize that despite the fact that sufficient laws and mechanisms are in place, gaps in implementation have hindered the Philippine government’s effort to completely address the issue. 122 The Protection Project Fifth Annual Symposium on Trafficking in Persons

In 2010, the U .S . State Department retained the Philippines on the Tier 2 watch list in the TIP report, classifying the Philippines as a source country and, to a much lesser extent, a destination and transit country . The TIP report notes that a significant number of Filipino men and women who migrate abroad for work are subjected to involuntary servitude worldwide. I am thus pleased to share with you the following developments in the Philippine government’s efforts to address this situation .

In the area of prevention, we continue to strengthen the Inter-Agency Council against Trafficking to make it more structurally viable and responsive to the needs of our workers. The Philippine executive branch has recommended to Congress the provision of funding for the council . We are also further enhancing the council’s law enforcement response by setting up a quick reaction team composed of prosecutors, law enforcement investigators, welfare officers, and NGOs to conduct intelligent surveillance; to undertake unified, coordinated, and synchronized interception; and to facilitate the filing of complaints against suspected traffickers.

The government is also cracking down heavily on officials and employees accused of complicity in trafficking, and appropriate criminal and administrative charges have been filed.

As in the experience of the ambassador from Morocco, the Philippine government has also found that the use of fraudulent documents has been exploited by unscrupulous recruiters and traffickers, thus we have started using electronic passports to ensure the integrity of travel documents .

In the area of protection, Republic Act 122 took effect earlier this year, which strengthens the protection for overseas migrant workers. Under this new law, Filipino workers may go only to countries that have existing labor and social laws protecting the rights of workers; that are signatories to or ratifiers of multilateral conventions, declarations, or resolutions related to the protection of workers; or that have concluded bilateral agreements with the Philippine government for the protection of the rights of Filipino workers. We recognize that this law will clearly limit employment opportunities for our workers, but we hope this legislation demonstrates that, over and above economic considerations, the workers’ welfare and protection are the higher priority.

We are also trying to do other things, such as strengthening the witness protection program and doubling the budget of the Department of Social Welfare and Development, which will improve the government’s capacity to provide shelter and protection to victims of trafficking. Our foreign service, The Protection Project Journal of Human Rights and Civil Society 123

labor, and social welfare attachés are also undergoing retraining under the auspices of the International Labour Organization to upgrade their skills to assist victims of trafficking and to enhance their capacity to render protection, assistance, and support .

With regard to prosecution, for the first eight months of 2010, the Inter- Agency Council has reported three convictions for qualified trafficking with sentences ranging from 20 years to life imprisonment and fines ranging from 1 million to 2 million pesos. And we continue to secure convictions for illegal recruitment, which contains some of the elements of trafficking.

To further expedite the delivery of justice to the victims of trafficking, we are working closely with the Office of the Court Administrator to bring to its attention cases that are already ready for resolution to ensure that they receive higher priority. We have also issued several administrative circulars prescribing administrative sanctions for prosecutors who fail to resolve trafficking cases expeditiously .

And we continue to work with the U.S. Embassy in the Philippines, through its legal advisers, to encourage prosecutors to increase the number and quality of cases they file for prosecution and to decrease the time for bringing a case to trial. These are among the measures we have taken.

So for the Philippines, the Palermo Protocol has enabled the partnership among the community of nations to recognize the inherent evil in human trafficking and to work together to combat it. At the same time, we remain committed to exploring all available in our effort to protect our workers. Yet as we try to set the agenda now for the next 10 years, we recognize that there is more room for international cooperation in the fight against trafficking and, yes, the glass remains half full .

In December 2000, when the Palermo Protocol was to be adopted, the head of the Philippine delegation said, “Transnational organized crime by itself, with its potential power to undermine not only legitimate sectors of society but entire social, economic, and political systems, demands a strong, unequivocal response. When it tramples on the humanity of our citizens in the pursuit of profit, we must respond with a swift and fatal blow. Our battle against transnational organized crime does not culminate in this signing ceremony . We must intensify our efforts to effectively win this war by banishing crime from the face of the earth. The convention and its protocol should be valuable blueprints toward a holistic approach, embracing law enforcement and socio- cultural and economic elements.” So 10 years on, we continue to persevere in this effort . Thank you . 124 The Protection Project Fifth Annual Symposium on Trafficking in Persons

Linda Smith: There was a time when we would talk about trafficking and not one ambassador would care; he would think it was something about cars and would never send anybody to attend a conference of the type we are holding today. And so it’s amazing to see how many representatives we have on the ambassador panel today, and we want to thank each one of you.

The next representative is Mr. Markku Kauppinen from the Embassy of Finland. Since 2007, he has been ambassador for trade and development at the Ministry of Foreign Affairs in Helsinki. He has quite a distinguished history, but I think I would rather hear from him, so please join me now in welcoming Mr . Markku Kauppinen .

Markku Kauppinen: Thank you very much, ladies and gentlemen . It is a pleasure being here with you. When I was recently serving in southern Africa based in Mozambique as a Finnish ambassador for four and a half years, I had the opportunity to meet with the victims of trafficking. It was quite an awakening for me as it was for Professor Bassiouni when he had the opportunity to do his research, and these thoughts from my experience came back during his speech.

During my time there, we actually worked very closely with local NGOs in Mozambique to establish centers where women could find assistance in learning how to get help when it comes to legislation, law, and so forth. Of course, they are small steps, but those small steps are as important as all the U.S. declarations and long speeches we are giving here today.

But coming back to Finland—Finland is located in a northern corner of Europe. It was quite a peaceful place until recently when things started to happen in Europe. In the 1990s, the borders of Soviet Union were moved, and in 1995, Finland joined the European Union . Later, many other countries joined the European Union—we are all together 27. Now the borders are open for the free movement of people and our citizens, but these open borders have also brought Finland to this field of human trafficking.

But we have learned very quickly, I think. We established legislation, and then we established an ombudsman system. The ombudsman is in charge of immigration as well as human-trafficking issues. Through these efforts, we are trying our best to avoid the escalation of human trafficking in Finland.

As a member of the European Union, we are working on ratifying the European Union framework agreement on human trafficking. My colleague from the European Union delegation will tell you more about it. But as I said, we are pretty new in this field, but we are doing as much as we can. We The Protection Project Journal of Human Rights and Civil Society 125

work closely with the Nordic countries as well as the Baltic States. We have established a special task force against human trafficking with all the Baltic States, as well as with the Nordic countries. Both Russia and Germany have joined this task force, adding even more close cooperation in this field. As you know, Russia has a long border with Finland, and we have some sources there in human trafficking.

I would like to come back to development aid because of my experience is in that field. I would say that in the development aid arena, we haven’t really paid enough attention to human trafficking. We should find ways to use our development aid and all its practices in the fight against human trafficking. We all know that development aid is an area with a large amount of available funding. We only need to figure out how to channel some of that funding in slightly new directions.

Finland has some small programs to combat human trafficking with Mozambique and recently with Nigeria. We have found them very fruitful with regard to learning more about the reasons for and background of this trade. And I think, as was already mentioned, that is something we should really try to learn more about. By understanding the reasons for and the background of human trafficking, we will better be able to tackle it and to make it less powerful than it is today. I would like to thank you, and I will be available for questions later.

Linda Smith: The next country that we’re focusing on today is—actually, it’s not a country, but rather a political union, and it is represented by Mr. Frank Schmiedel. He’s the first secretary of the Political Security and Development Section of the Delegation of the European Union .

Frank Schmiedel: Thank you, Linda. I feel very honored and humbled to participate in this distinguished panel, so thanks again for inviting me . The European Union (EU) is a destination region for human trafficking but also a transit and origin region for trafficking. Unfortunately, we don’t have very good figures on its extent at the European level, so we don’t really know exactly what’s going on.

As my Finnish colleague has said, we are in the process of updating our legislation together with our member states on the issue of human trafficking. If all goes well, we’ll have a new European director by the end of the year. That appointment would be followed by a new strategy and action plan on how to put that legislation into practice. As I said, we need better data and better data collection at the European level in order to measure and manage the 126 The Protection Project Fifth Annual Symposium on Trafficking in Persons

problem better. We will also assist our member states in better implementing EU legislation on the ground through enhanced monitoring and evaluation .

You might know that we have our new constitutional treaty, the Lisbon Treaty, in place now, which gives the European Union a stronger role precisely in the monitoring of the implementation of legislation in the area of human trafficking. For instance, we are developing—proposing—a network of national rapporteurs, contact points in each country that work together at the European level to assist the member states in exchanging information and best practices and to make sure that the current legislation is properly implemented .

So what would this new legislation look like? We have proposed within the European Commission in Brussels, the executive arm of the EU, (a) focusing on and reinforcing a comprehensive approach to trafficking with the three Ps of prevention, protection, and prosecution; (b) more strongly harmonizing our criminal law across Europe; (c) bringing more robust protections to the victims; and (d) starting from the principle that victims should not be punished for petty crimes and should be offered unconditional assistance. I believe that principle is also the best way to motivate victims to cooperate with law enforcement to ensure prosecution of traffickers.

We’re also proposing measures to discourage demand, meaning the employers hiring trafficked persons or clients buying sexual services. The philosophies across our member states on these measures are a little bit different from one member state to another, so we will see how far we can take them at the European level. We will certainly strengthen training and raise the awareness of those public servants who are in contact with victims, so they will be able to spot victims as early as possible and to help them.

We also intend to reinforce victims’ rights in criminal proceedings to avoid secondary victimization. For example, during court proceedings, if they don’t want to, they don’t need to be in visual contact with the traffickers. They don’t have to go through the painful experiences again in public, in front of the court, if that can be avoided.

On criminal law, we intend to extend jurisdiction to crimes committed abroad by European nationals, extraterritorial legislation and effect. We believe that traffickers are not prosecuted enough in the European Union. The rate is lower than for rare crimes, such as murder or kidnapping, so this cannot be.

We intend to appoint an anti-trafficking coordinator at the European level. And as was mentioned before, October 18 is European Anti-Trafficking Day, which is an occasion to raise awareness to hold conferences such as this one The Protection Project Journal of Human Rights and Civil Society 127

and to present the latest legislative and regulatory proposals . For instance, this year, Commissioner Malmström has called for better victim protection and presented a report that found that only very few EU member states grant visas and residence permits to the victims of trafficking.

Hopefully, we’ll have a website in place as a one-stop information opportunity at the European level early next year. That website will contain information on the various European laws, research, and events—everything that’s going on. Thank you.

Linda Smith: Thank you. We do have one concluding speaker; it is the counselor for political affairs from the Embassy of Italy.

Political Counselor, Embassy of Italy: Thank you very much . My apologies, my ambassador, Ambassador Terzi, was invited to this conference. Unfortunately, he couldn’t attend today, but it was essential for us to be here because of the importance of the Italian institutions attached to the problem of human trafficking. So I will briefly go through the notes that were prepared by him just to set out a couple of points .

Italy is particularly sensitive and active in the fight against the trafficking of human beings because it is a country both of destination and of transit. This issue is extremely delicate considering the vulnerability of the victims. Over the years, organized crime developed more sophisticated techniques of exploitation and invested growing resources in the management of illegal migration flows. Given the huge extent of immigration, organized crime has been able to set up an illegal offer of immigration, thus creating the conditions for a market based on the trafficking of human beings.

Criminal organizations diversified their activities and increased their transnational character . Criminal groups that are located in the countries of origin, transit, and destination of the migration flows interconnected, and each group specialized in different aspects of trafficking: transportation, recruitment, falsification of documents, and so on. Using its means, the enormous revenues from drug trafficking and its routes, and taking advantage of the lower risk involved in human trafficking, organized crime developed this new and very remunerative business.

Trafficking of migrants is managed by vast transnational crime networks. The major organizations have reached a high level of interchange among themselves . Victims of exploitation are placed in the markets of prostitution, illegal labor, and begging. In this context, Italy was already well equipped with 128 The Protection Project Fifth Annual Symposium on Trafficking in Persons

the necessary instruments to face these new threats because of its long-lasting fight against internal criminal organizations. Nevertheless, Italy has reinforced its already-existing laws and adopted new laws in order to adequately combat this kind of occurrence .

I did not come prepared to debate the issue of Nigerian prostitutes on some Italian roads, which was mentioned before. Prostitution is a very complex phenomenon that involves not only immigrants and that obviously does not exist only in Italy. In Italy, prostitutes cannot be simply detained, but I understand the apparent contradiction of the episode that Professor Bassiouni mentioned. And with the permission of the School of Advanced International Studies (SAIS), I will look for more information on the issue from Rome, and I can send it to SAIS for distribution if it’s necessary.

Our legislation was toughened over the years, especially the 1998 law on immigration and was in line with the European provisions on the issue. A specific law against trafficking in human beings was passed in 2003. That law introduced modifications to the criminal code that exhaustively defined the different types of crimes related to human trafficking and also toughened the punishments, making Italy’s legislation one of the most complete and strongest in this field.

The rationale behind the legislation is to look at trafficking in human beings like a contemporary form of slavery. The set of laws against human trafficking provides not only repression of the crime but also rules in order to ensure the victims’ protection. A special fund is foreseen by law in order to finance programs to assist the victims and their social integration. If a victim of exploitation is a foreign citizen who illegally entered the country, the competent authorities can issue a special permit of residence in order to remove the victim from the exploitive situation .

So from an internal point of view, there are no gaps in the laws and procedures to fight against human trafficking. But this is a fight that countries cannot conduct separately . International cooperation is fundamental .

Italy has long been on the front line against organized crime. That is why Italy believes so strongly in and promotes international cooperation against organized crime and thus against the trafficking in human beings.

We agree with the famous Italian prosecutor Giovanni Falcone, who always insisted on the need for an international multilateral instrument to fight organized international crime effectively. Unfortunately, he died in that fight The Protection Project Journal of Human Rights and Civil Society 129

and did not see the signing of the UN convention, which took place in his city, Palermo .

The UN Protocol on the Prevention and Suppression of Trafficking in Persons is closely connected to the one against organized crime and was open to signatures on the same occasions in December 2000. Italy has already ratified this protocol, which has been an integral part of our legislation since 2006. Italy also ratified the UN Convention on the Rights of the Child of 1989.

In addition to all the initiatives and provisions that we have at the EU level and that were mentioned before by the representative of the EU delegation, Italy has since its presidency last year been very active on the issue of human trafficking within the G-8 and the Roma/Lyons group, which developed various projects for monitoring human trafficking. Furthermore, Italy developed a network of bilateral treaties with 52 countries for cooperation against organized crime . Most of those treaties explicitly include the cooperation against human trafficking, among other issues.

To conclude, government efforts to combat trafficking in persons, more than ever, have to be part of a common response to the threat of organized crime . We must strive for a universality of the instruments of cooperation and their modernization in order to make them suitable and flexible enough to adapt to the constant changes of this threat .

Thank you very much .

Linda Smith: Well, thank you to all the panelists .

The U.S. Trafficking Victims Protection Act: Criminal Justice, Protection of Victims, and Foreign Policy Laura Lederer: We are going to get started so we have time for our other speakers and, hopefully, even for some questions and answers, which I think are a very important part of any program like this one .

I want to start by saying that I hope all of you know that we have in the room with us two of the foremost legal scholars, legal minds, on human rights law in the world: Professor Bassiouni and Professor Mattar. I want to thank them both again for their contributions today and in general. And I also want to thank our distinguished panel of ambassadors for giving us a global view of human trafficking, and special thanks to Linda Smith for 130 The Protection Project Fifth Annual Symposium on Trafficking in Persons

moderating today but also for the very important work in setting up shelters and services for women and children all around the world.

We’re going to shift from the international, from the global view, to the national viewpoint with a panel of distinguished and hardworking U.S. government officials. And I’m going to do very short introductions so that we can have more time for substance. I’ll introduce each of the panelists before they speak. So let me start right away with Robert Moossy, the acting chief for the Criminal Section in the Civil Rights Division of the U .S . Department of Justice and the director of the Human Trafficking Unit.

And also, I think, he has been key to some of the progress that we’ve made in the U.S. Justice Department in prosecuting cases. He’ll tell you about a few of the cases that he’s prosecuted, but when I was in the State Department, he was on the cutting edge. You would think to yourself, we should do more on restitution, and Robert would be introducing it in the Justice Department. So without further ado, help me welcome Robert Moossy.

Robert Moossy: Well, I just want to say it’s really a pleasure to be here. I’ve spoken at this conference in the past and have always really enjoyed it. One of the great things about going to a conference in Washington, D.C., is that you actually do have—at least at the policy level—many of the leaders in any movement, and I’m really gratified to be here today, Laura, with you and with Dr. Mattar and with Linda and Barbara from the Government Accountability Office and others who are part of this partnership to address human trafficking both in the United States and around the world.

Let me ask, how many of you are involved in human trafficking in some form, as a nongovernmental organization (NGO) or as part of another entity? Raise your hands. OK, a lot. How many of you were involved in human trafficking 10 years ago? One, two, three, four, five, six, seven, eight, nine maybe, right? OK, almost all of you raised your hands to the first question, and seven of you raised your hands now, and that is a testament to progress over 10 years of human-trafficking experience both globally and in the United States.

I’m a criminal prosecutor. I supervise about 64 criminal attorneys, and we travel around the United States to prosecute all kinds of civil rights crimes: police brutality, hate crimes, human trafficking. I’m also the head of a specialized group of prosecutors that do only human-trafficking work, and I’m fortunate to work with people who have been prosecutors for 10 to 20 years. Before the Trafficking Victims Protection Act (TVPA), we tried to address modern-day slavery. We brought a case or two a year. Now, we’re bringing a The Protection Project Journal of Human Rights and Civil Society 131

case every week and more under the new TVPA. We are prosecuting hundreds and thousands of human traffickers here in the United States, which is also a testament to progress .

But even more important, before the TVPA, the victims of trafficking had a really difficult time becoming survivors. I mean humans are strong and amazing, and many do become survivors with the help of many NGOs. (Maybe there are NGOs here in the room.) But the government was not always so helpful in helping trafficking victims become survivors. And one of the really great—and I think as a prosecutor most gratifying—aspects of the past 10 years has been the thousands and thousands of trafficking victims who have received help, services, and immigration relief if they needed it . I think that is perhaps one of the strongest testaments. Why are any of us in law enforcement here? Are we here just because we get some satisfaction from putting another human being in prison? No, we get satisfaction because we’re actually helping our community and we’re helping people, and the TVPA has allowed us in law enforcement, I think, to really maximize that satisfaction .

So I am going to talk about the role of victim services and immigration relief in the prosecution of human traffickers and then just three points on what I think we need to do better and where I see us trying to do better in the future. As a prosecutor, the most important evidence I have in a labor-trafficking or a sex-trafficking case is often the victims themselves. It is a heavy burden to ask a victim to carry, to walk into a federal courtroom—a gigantic wood- paneled room with seals, people dressed in suits, judges in black robes, and officers—up into a little box, look out into the audience, and talk about some of the most brutal things that have ever happened to anybody. Those victims are asked to talk about rape, to talk about being beaten, to talk about being held for years, to talk about the traffickers taking their children away from them, to talk about their children being threatened, to talk about being forced to engage in commercial sexual acts 20 or 30 times a day over a period of years. And that’s what we ask these victims to do to convict the traffickers.

And the reason that we have seen the increase in prosecutions over the past 10 years is because we in law enforcement are stepping up to work with NGOs to try to help the victims become survivors and to become empowered enough to engage in that law enforcement process. Whether they receive psychological services, medical services, or immigration relief if they need it—many victims are U.S. citizens and don’t need immigration relief—whatever that service is that helps them both at the time they are victimized and over the one, two, or 132 The Protection Project Fifth Annual Symposium on Trafficking in Persons

three years that it might take to actually get to trial and after, that is our calling, and that is what has led us to be more successful.

I really believe that we could train law enforcement all day, we could pass stronger, harsher penalties, but without the evidence and without the evidence appearing in court and testifying, we would not be seeing convictions and we would be having a much harder time. So I think that these victim protections are critically important, and I know other panelists will talk about it.

We’ve also been doing more different kinds of cases than we’ve done before. I think what you’re seeing recently is that we have been partnering with our organized crime prosecutors. And we just recently convicted some Uzbek and Moldovan defendants of bringing Filipinos, Cambodians, and people from other countries into the United States through a labor-importing H2A/ H2B visa scheme and forcing them into labor using some type of violence or threats of deportation—I control your visa and if you don’t do what I say, I’m going to yank it. We prosecuted eight defendants in that case and have now convicted them all. The most recent case went to trial using our RICO (Racketeer Influenced and Corrupt Organizations Act) statute and partnering with our organized crime prosecutors.

Likewise, we recently indicted four employees of Global Horizons Manpower Inc. who brought 400 people over from Thailand and held them in forced labor on farms. Again, using the U.S. H2A visa program, those 400 people came into the United States under lawful papers but then were exploited when they arrived. We’re also using our organized crime powers in that case.

So in my last couple of minutes, let me talk to you about three points where I think we could do better and where we’re trying to focus our efforts going forward. First is recognizing that human trafficking is really an umbrella term for a spectrum of activities that includes recruiting and transporting, but it also includes forcing people into labor and services independent of that transportation. I know that not everybody agrees with that view, but I think from a law enforcement perspective, we need to recognize that continuum or spectrum of activities because victims caught up in it have very specific needs and are often abused at various points throughout.

So one of the things that I think we need to do better in our messaging and even in our law enforcement training here domestically is, say in sex trafficking, look not just at recruitment and transportation but also at the coerced sexual activity that’s going on here in the United States, the financial activity that’s going on to support the sex trafficking, the bank transactions that are taking The Protection Project Journal of Human Rights and Civil Society 133

place, who is managing the money, and how that is working. And we’ve been doing that, but I think we need to do more.

Second, I think in the labor-trafficking area and the forced-labor area, we need to (and I’ll probably get in trouble for saying this) pay more attention to our H2A and H2B visa programs. We are seeing increasing numbers of victims who are coming to the United States under lawful visas that were really shams to begin with, but we never checked. And I think we need to do more in recognizing that good strong law enforcement at that point will prevent people from being brought into the country and exploited here. So that’s one of several activities in the spectrum that we need to attack.

We also need to remember that human traffickers exploit U.S. citizens. Exploitation happens mostly in the sex trade, but we have also seen forced labor of U.S. citizens. And we must recognize that human trafficking is a problem in our own country, within our own borders, and that no country anywhere on earth is only a source country, a transit country, or a destination country . Some may say the United States is a destination country, but it is also a source country for internal trafficking. Some victims are U.S. citizens, and we need to provide those victims with services.

In addition, we actually have a gap in our laws where foreign victims receive case management and other benefits that U.S. citizens often don’t receive. And that’s an artifact of the fact that before the TVPA undocumented aliens in the United States were ineligible for a lot of crime victim services.

So the TVPA tried to provide services to those undocumented people that were being provided to documented or U.S. citizens by creating a whole group of NGOs and legal structures to help normalize the system. And we thought, well, there is parity there, but actually we were focused so much on tailoring specific services to foreign trafficking victims that we weren’t giving specific services to U.S. citizen victims, and that’s something that we need to do better. Right now, the Department of Justice is actually doing a study to see how we can do that better, how can we implement services for U.S. citizen victims. And maybe that’s something that Maggie or someone at Health and Human Services (HHS) can also talk about.

And third, we need to be doing many more joint and parallel investigations with foreign governments. In our international trafficking cases, to the extent that we are only prosecuting what you might call the branch of the trafficking tree that’s located in the United States and not the root that is located, for example, in Mexico. Unless we work with those other countries, human 134 The Protection Project Fifth Annual Symposium on Trafficking in Persons

trafficking will keep sprouting up again and again, and we’ve seen that happen, particularly in sex trafficking. And so we need to do better at partnering with law enforcement in those countries where a lot of victims come from.

One example of success that we’ve had in the past two years is a bilateral enforcement initiative with the government of Mexico, which has made great strides in addressing trafficking but like us has a way to go. We have a bilateral enforcement initiative with PGR (Procuraduría General de la República), which is the Attorney General’s Office in Mexico, and with the Mexican Federal Police. On the U.S. side is the Department of Justice; ICE (U.S. Immigration and Customs Enforcement), our organized crime group; and a number of other people, including the Federal Bureau of Investigation (FBI). We meet regularly, share information, and actually work on cases together.

An example of this cooperation is United States v . Ruggiero, a sex- trafficking case in which young Mexican women were brought into the United States from Mexico. We started noticing this trafficking operation in Atlanta. We saw another branch of this organization in San Diego and still another in New York. They were all tied to a common place. The Mexican officials came to the United States and interviewed the people who were here, and we shared our evidence with them. They went back to Mexico and using their own human-trafficking law (which I think was enacted in 2007) arrested and indicted a number of people at the source, the people who were ensnaring these young rural Mexican women through false promises of love, marriage, and a better life in the United States. The traffickers shipped the women up to the branches, the top of the tree here in the United States, where the women were exploited in filthy brothels in cities across America.

And that bilateral initiative ties back to something I said earlier. Together we are trying to reunite families that have been separated across borders by trafficking operations and to provide services for people in Mexico who were part of an operation in the United States .

So this bilateral enforcement initiative has resulted in people in Mexico getting prosecuted for trafficking using evidence here in the United States and vice versa, people in the United States being prosecuted for evidence gathered in Mexico. It has also resulted in victims receiving services and families being reunited in both countries, and I think we need to be doing that more. But before we can do more, we need to work on building capacity in those countries so they know what trafficking is, have their own trafficking statutes and trained law enforcement, and so forth. And that bilateral initiative is one of the things I’m really proud of. The Protection Project Journal of Human Rights and Civil Society 135

The next speaker is from the Department of State’s GTIP Office (Office to Monitor and Combat Trafficking in Persons), which I think has been doing some really great work. We’ve actually been sending our prosecutors to various conferences to help train consular officials on the U.S. law and also to provide direct training to foreign law enforcement so that we can start building this law enforcement capacity for doing more joint and parallel investigations. So thank you very much for your time, and I’m happy to answer any questions.

Laura Lederer: Thank you, Robert. Our next speaker is Alison Friedman who is the senior adviser in the Office to Monitor and Combat Trafficking in Persons. Before she came to the office, she ran an anti-trafficking and anti-slavery organization called ASSET (Alliance to Stop Slavery and End Trafficking). It’s really wonderful to have somebody come into the government already having the expertise to hit the ground running. Please welcome Alison.

Alison Friedman: Thank you. So 10 years ago, we obviously passed the Trafficking Victims Protection Act, and at the same time, the international protocol known as the Palermo Protocol was issued. Two fundamental concepts came out of both documents. The first was the modernizing of our anti-slavery movement and the idea that if somebody was held and compelled into service through force, fraud, or coercion, they were a victim and entitled to—and here is the second concept—both seeing their trafficker go to jail and receiving a series of protections that was really born out of the progress that we had made here in the violence against women—or in the domestic violence, anti-domestic violence movement .

So the concepts that Robert talked about—about trafficking in persons really at heart being a crime of holding somebody in compelled service and also now the international standard that this kind of abuse is a crime and needs to be answered with jail—have really been the concepts that the Trafficking in Persons Office has been trying to advance both domestically in our role as coordinators of interagency processes and also internationally . And just as the “Trafficking in Persons Report” has evolved from a very, very short 50-page document written in Courier New type with kind of country narratives to a glossy document that not only analyzes the trafficking problems on a country- by-country basis but also offers recommendations for how governments can improve, so has our concept of what trafficking in persons looks like on the ground and how that should be resolved.

We had moved from what was kind of the 10-year-old approach of understanding this issue as it was emerging from one of trafficking women from eastern Europe through organized crime into the commercial sex 136 The Protection Project Fifth Annual Symposium on Trafficking in Persons

industry to something that includes that but is also much, much broader. So it is our domestic sex-trafficking problem, it’s also a forced labor problem, it’s bonded labor, and it’s tied to more consumer products than I care to think about. We know that slavery exists in the cotton, chocolate, sugar, steel, and seafood industries around the world. We also have seen—and there was a very heartening court ruling recently—that there is a problem with abuse and trafficking of domestic servants in general and that the diplomatic community has too often led with impunity when it comes to abuse of domestic servants.

You’ll see in the “Trafficking in Persons Report” this year the inclusion of a list of governments that we’ve determined use child soldiers. I think as that has evolved, we’ve seen significant progress. There has been an increased effort in Argentina, Ireland, Egypt, Ghana, Pakistan, Malaysia, and Niger that is reflected in the rankings this year. We’ve also seen feminization of modern slavery . Whereas in one East Asian country three years ago, the vast majority of migrants were male, it has now transferred to 70 percent female. And the vulnerability of women throughout the labor recruiting and migration system is significant. Yet we still think it’s best dealt with by putting in protections, looking to law enforcement, and looking to sound government policy that doesn’t restrict mobility in a kind of a paternalistic old-school way.

For the first time this year, we’re seeing a very positive trend, more upgrades than downgrades: 23 countries were upgraded this year and 19 were downgraded, as opposed to last year when 14 were upgraded and 24 were downgraded. And we’re seeing an increase in global convictions. I think it’s important to note that 10 percent of the world’s convictions are in the United States .

That said, while all that progress has happened, I think it is fair to say that our response to the trafficking-in-persons problem—if you look at the estimates of how many victims are out there—has been wholly inadequate. Even by the International Labour Organization estimate of 12 million trafficking victims at an average of about 4,000 prosecutions each year, we’re prosecuting fewer than 0.03 percent of potential trafficking cases. And so there’s a need to look not only at those best practices that we have established and those concepts but also at how we start to address the systemic contributors to this crime.

So we are now looking, and continuing to look, at how to address problems in (a) labor recruiting, (b) the demand for commercial sex in the commercial sex industry, (c) supply chains and the policing of them, and also (d) the barriers to identifying victims and their access to services, whether they are citizenship or education services. We are looking at everything in between the individual victim The Protection Project Journal of Human Rights and Civil Society 137

services and the root causes where I think targeted policy to address trafficking in persons would get lost. I’m also happy to answer any questions, but I think that’s kind of the overview of what our office is doing, and so I’ll move to the rest of the panel .

Laura Lederer: Thank you so much, Alison . Next is Angie Salazar from the Department of Homeland Security in the Immigration and Customs Enforcement Office. She’s a graduate of the University of Illinois and has conducted human-trafficking investigations out of San Ysidro, California.

Angie Salazar: Thank you all for being here. As Ms. Lederer said, I am a special agent with Immigration and Customs Enforcement. I’m currently assigned here to headquarters. I oversee human-trafficking investigations conducted domestically, and I also provide training and outreach worldwide. In the interest if time, I’ll just go over from the ground level how I feel the TVPA has progressed. As Robert Moossy said, I think we are better able to investigate these cases because of the services that we provide to victims that the TVPA has authorized .

Prior to leaving San Diego, the last case I had was a sex-trafficking case, and it’s the case that Robert Moossy spoke about. The victim in that case was 21 when we rescued her. She had been in the sex-trafficking situation since the age of 16, which was when her trafficker recruited her at a bus station in Mexico. He recruited her by romantically alluring her, telling her he liked her, he wanted to be her boyfriend, and he could care for her. He obviously knew she was very poor and came from a very poor family. He even went to the extent of going to meet her family and telling them, “Please give me permission to date your daughter; I come from a very wealthy family, here is some food.” He offered them money . And she ended up agreeing to start courting him .

Eventually, she moved in with him. A couple of months later, he began physically assaulting her and abusing her. He would rape her. He convinced her that the reason for all those beatings and rapes was because he was financially strapped and that if she would only agree to prostitute herself and bring some financial sustainment to the household, he would be better off and he would cease abusing her. So she did. After the first time, she came home crying. She had been with about eight men in one day (her first time), and she said she wanted to stop; at which point he said, “If you stop now, I will tell your family. 138 The Protection Project Fifth Annual Symposium on Trafficking in Persons

I will tell everyone what you’ve done and no one will ever want you or want to be with you.”

She stayed in that situation for about four years until the age of 20, at which time he decided she was under enough control that he could bring her to the United States. He then smuggled her into the United States, where a neighbor saw her, thought she was underage, and reported her to us. He said he believed that she was being prostituted and that she was a juvenile, which was how we encountered her.

Because of the TVPA, its reauthorizations, and the short-term immigration relief that we are now able to provide, we were able to give her status here, and we were able to work with an NGO who gave her services and housed her. Now she is on track to becoming a lawful permanent resident. She’s learning English, has a legitimate income, and is becoming an independent person again. And she is able to recover from everything she has suffered. And that’s all I have. I would be happy to answer any questions as well.

Laura Lederer: Thank you, Angie. I think that it’s clear from both Robert and Angie’s presentations that we have a huge problem of human trafficking in the United States, and as part of the global community, we’re addressing this problem as best we can. We’re learning as we go along also. And I think for the first time, Alison, you may want to take a question on this: the United States is in the “Trafficking in Persons Report” and is assessed and weighted on the tier scale, which I think is also a form of progress.

Our next speaker is Maggie Wynne . She is the director of the Anti- Trafficking in Persons Division of the Administration for Children and Families in the Office of Refugee Resettlement in the Department of Health and Human Services .

Maggie Wynne: Well, it’s great to be here. I have to confess, when Robert asked people to raise their hands if they had been working on this problem 10 years ago, I was not able to raise my hand. But I have been working for several years, and it’s an honor for me to be present with you and with others who have been working on this issue so long.

The one thing I can say is, I was sort of on the periphery when the law was being conceived in Congress. I was working on the Hill, and I have a recollection from that time that I think has certainly informed or influenced the way I view the program now. When the bill was being debated, some members were concerned about providing immigration protections for victims The Protection Project Journal of Human Rights and Civil Society 139

of trafficking. (Obviously, immigration is a big issue now, and it’s been a big issue for quite a while.) One of the first thoughts was fraud or abuse of the system. One member in particular whose vote was key was concerned about that possibility. So in compromise, Congress imposed a cap of 5,000 T visas, or T nonimmigrant status, granted per year for victims of trafficking to make sure that there wouldn’t be runaway use of this provision to gain status in the United States .

A concern on the proponent side was that this compromise might actually limit and restrict the number of victims who are assisted in the United States. Why should the 5,001st victim be less protected than all the victims up to that point? But the reality was that both sides turned out to be way off in their expectations of whether that number would be realistic. In fact, Homeland Security has reported that in over the eight-year period from 2002 to 2009, it received 2,706 applications for T nonimmigrant status from potential victims and approved 1,591. Rather than hitting 5,000 a year, the rate would be 5,000 every 25 years. So, clearly, this idea that the visas would be abused or that victims would be pouring out identifying themselves has not been the reality.

So part of HHS’s role and one of our two principal responsibilities have been to serve victims of trafficking—as has been mentioned before—but also to raise public awareness to lead to the identification of victims. And so that has been a key focus of everything we’ve been doing.

And just to go back a little bit, part of how we provide services—one of the first things we do—is to give victims of trafficking not only immigration status but, again, the ability to obtain benefits and services. And when HHS receives notification of a T visa or continued presence, which is another form of temporary status, we can issue a letter to the victim so that he or she can get those benefits. So to give you an instance, in the early years, certification was relatively low. More recently, because of a particularly large labor-trafficking case, we were able to issue 449 certifications. But again, that figure is far lower than early expectations were for the number of victims who would ultimately receive help. And again here, I’m focusing on foreign victims of trafficking.

So from the beginning, a focus for HHS was outreach to communities in which victims of trafficking might be found, such as prostitution or migrant labor. And we want to encourage victims to come forward, to work with law enforcement, and to seek temporary status so that we can make them eligible for benefits. 140 The Protection Project Fifth Annual Symposium on Trafficking in Persons

In the early years, we had no authority to provide assistance to them. We could only serve them once they became certified, and the DHS approval process might take some time. In fact, for a T visa it could be up to a year. So it wasn’t long before we recognized that more needed to be done—because victims were not identifying themselves. They were not coming forward. They were not able to come forward in many cases because of whatever controls the traffickers might use or information was withheld from them, so they didn’t know about any protections that might exist. They were still as fearful of law enforcement as they had been before.

So we switched gears in about 2003 or 2004 and changed our strategy. While continuing with some outreach to vulnerable populations, we began to target public awareness efforts toward those persons and those professions that were more likely to encounter victims of trafficking. Key on the list were social service providers, health care providers, law enforcement, victim advocacy organizations, and faith-based communities. Our main vehicle has become and continues to be the Rescue and Restore Victims of Human Trafficking public awareness campaign.

(And I’m just going to hold up one example. We have more, and they’re available from our website at http://www.rescueandrestore.org.) We make this material available free of charge: the brochures; posters; and little cards with questions—that law enforcement officers, for example, can ask if they encounter a situation—that are sensitive to the victims’ safety but get some information that might shed some light on whether they’re victims or being victimized in a trafficking scheme.

So the tagline of our program or our campaign is Look Beneath the Surface, again, because it is not targeted toward victims; it’s for the professionals who may encounter victims and who, rather than send them back unknowingly into their trafficking situation, can actually provide a means to get them out of that situation. So the materials have indicators of human trafficking and give an insight into the mind-set and fears of the victims . We also have a video, a DVD that has more information on those indicators .

And in conjunction with the public awareness campaign, we launched a hotline—a 24-hour, seven-day-a-week, toll-free hotline—and that number appears on all the information. So if somebody sees trafficking indicators, or is not sure they have, they can call somebody with this information who will know how to deal with it responsibly for the safety and benefit of the victim. For many years, that hotline was underutilized. But in recent years, it’s gone from what in the early days were maybe 200 calls a month to over 1,000 calls a month and rising . The Protection Project Journal of Human Rights and Civil Society 141

The Polaris Project is operating the hotline now and doing an excellent job. Its staff members are constantly trying to think of ways to get the information— more information—out there about the hotline and themselves as a resource and the National Human Trafficking Center as a resource. So those are some key developments on the public awareness site to identify victims.

But going back in time again with regard to services, the TVPA is not set in time in one way because it’s been reauthorized three times so far and it’s going to be reauthorized a fourth time. One of the things I think is fascinating about the TVPA is that, at its core, it’s the same document. But with each reauthorization, it really has improved—at least for HHS and maybe for other agencies—in how effective it is at accomplishing the mission of more effectively prosecuting crimes, more effectively protecting the victims, and to a greater extent preventing trafficking in the first place.

So in 2003, the Department of Justice (DOJ) and HSS received the authority to serve victims before they were certified. That authority is very important because it’s one thing to say to a victim of trafficking, “We can help you.” But if they have no means of support, no way to work because they don’t have documents, you’re more likely to see them reenter the situation than to stay out of it because they need that encouragement, support, and help to sustain themselves while they’re waiting for the trial to go forward, for their documents to come through, and to get certified. So that was really a key development, and it has been a major part of our program since we were given that authority .

Another development is just the way we’ve approached doing public awareness, which is more and more regional now. We work more through communities and let them take charge of how they do it. So whether they’re working with trucking companies, whether they’re working with migrant farmworkers, whether they’re working with prostitutes, or however trafficking might manifest itself in those communities, they can direct public awareness. They can bring together local resources; get their partners; and working with law enforcement, come together with an approach so that when a victim of trafficking is identified, everybody knows his or her role, everybody knows how to proceed to the betterment of the services to the victim.

Lastly, I guess the most significant development for us over the past 10 years has been that in 2008 (the most recent reauthorization of the TVPA), our department specifically got authority to help potential child victims of trafficking. Consequently, if we receive information that a foreign child might be a victim of trafficking, meaning we’re not even quite sure, we nevertheless 142 The Protection Project Fifth Annual Symposium on Trafficking in Persons

can get resources to that child immediately so he or she is not left in limbo. Then we have some breathing room, and law enforcement has some breathing room to look into the situation . We can gather expertise, information from the expert organizations about whether this scenario sounds like a trafficking situation and then come to a conclusion about whether the child is in fact a victim. If the child is determined to be a victim and if he or she is unaccompanied, we can use resources in our department from the Unaccompanied Refugee Minors Program for a foster care placement. So that’s been a really important development, one that we’ve taken very seriously over time and have implemented over the past year and a half .

I just want to say it’s hard to do justice to all the work that’s been done and everything that needs to be done in just a little presentation. But I’m hoping that I contributed here to the understanding of our thoughts since 2000, which is that one of our biggest challenges is and remains the identification of victims of trafficking in the United States. I mean, from the beginning, it was thought that those victims would be readily identifiable or would come forward and that hasn’t been the case. It remains a challenge because victims are still fearful about revealing, or how much to reveal of, their circumstances.

The other fact that I wanted to contribute is that I think both Congress and the administration have consistently reviewed and adopted laws and strategies to maintain a victim-centered approach to the fight against trafficking in the United States. And that focus and that commitment to a collaborative approach, including nongovernmental partners, have made, I think, many of the promises of the TVPA become real. Thank you.

Laura Lederer: Thank you, Maggie, for that presentation . It is very important because I know that around the world, many, many countries, as Dr. Mattar said, are passing laws, human-trafficking laws, but often they pass just a criminal statute, a statute in the criminal code, and they’re neglecting that other half, the victim-centered approach. The United States, I know, is working very hard on that front, and we hope that we can partner with other countries to take the full approach, which is both to punish the perpetrators and to protect and assist the victims. That’s the two-pronged approach.

Last but not least, I want to introduce Amanda Harris Souvannamethy, assistant public defender in the Law Offices of the Public Defender in Miami- Dade County. She is a graduate of Drexel Law School and Agnes Scott College. And even at the college and law school level, she was working on human trafficking. Welcome. The Protection Project Journal of Human Rights and Civil Society 143

Amanda Harris Souvannamethy: I’ll try to be brief with my comments. I’m actually here primarily to discuss domestic human trafficking of juveniles.

A lot of comments have been made today about the victims, the work that is being done, the services that we can provide. As an assistant public defender in the juvenile division, I am working with several girls who are being prosecuted by the state for prostitution. All of them are under the age of 18; several of them are under the age of 16; and almost every single one of them is going to be fully prosecuted. Nobody ever once thought these children were victims. Instead, we thought they were streetwalkers because they were U.S. citizens. Some of them had previously been arrested for drug possession, and they didn’t fit our image of a trafficking victim.

So there are two things I want to address today: (a) how we must address the perception of human trafficking and (b) how we must address prosecution. And if I have time, I’ll get into probation, but I probably won’t have time.

So perception—we have to train the people on the ground. Now I’m not sure how much you know about the domestic criminal justice system. But, essentially, when juveniles are arrested, they are arrested on the street by a police officer. They’re taken to the police station. They sit down and talk to another police officer. They fill out an arrest affidavit with place of birth, home address, and phone number; all of these things are addressed.

Then they’re taken to the juvenile assessment center, which is where they meet a counselor, a person who’s supposed to figure out their drug usage, gang affiliation, school attendance, and parental relationships and then determine whether they’re going to be held in detention. Then they meet a judge. When they meet the judge, they meet a state prosecutor . The state prosecutor has several weeks to work on the case. And, hopefully, they meet their defense attorney, who is usually a public defender because a vast majority of these kids can’t afford an attorney—pretty much all of them frankly. Those are at least five different points—five different people who see these children, who understand that they were working in the commercial sex industry and probably don’t have a place to go that night. But none of those people refer these children to a social service .

These kids can come in and go out of our criminal justice system without ever once being referred to the task force. We have task forces, and we have nongovernmental organizations. We have social workers who want those referrals. But we’re not referring them because we don’t think of these children 144 The Protection Project Fifth Annual Symposium on Trafficking in Persons

as victims. So we need to train every person on that level. We need to train the officers, as Ms. Maggie just said, to ask the questions.

OK, when I see an arrest form at first appearances and I see that the girl might have her age as 20 on her arrest form. But I look at her, and think that girl is 14. Nobody is going to tell me that kid is 20. Then I see that she’s from Texas and that she was arrested with three other girls that same night in a prostitution sting—red lights are going off in my head, but they’re not going off in other people’s.

We have to train the officers. And then we have to train the counselors at the juvenile assessment center . They get ample time one-on-one in a small room with these children, who are making statements that will not be used against them at court. That is a great time to put them on the phone with a social service organization . We need to train them .

Another little aspect is the people we don’t think about. Those girls are working somewhere. They’re working out of hotels; they’re working on the streets. There are small businesses, clerks, taxi drivers; there are people out there who see these girls on a nightly basis. Why aren’t we going to them?

When the Super Bowl came to Miami (I assume you guys have heard of the Super Bowl), it was a big event, and we were very proud of it in Miami. It also brought a barrage of sex workers. There was actually a van with mobile strippers going through the streets . And Project GOLD, a partner in the task force in Miami-Dade County, went to the small hotels and said, “Hey, clerks, if you see a bunch of young girls, could you just give them this card and let them know that we’re out there? Can you call us if you see several people going into the same hotel room over several hours?” And it worked. They got several referrals just by going to the clerk at a hotel. Why aren’t we doing this in every city?

Then we have to talk to the state prosecutors. I recently brought a case to a prosecutor, the chief in the county court division. I said, “Listen, I’ve got Project GOLD with me. They’re working with this girl; she is a victim. I know she’s got two counts of prostitution pending, but she’s a victim. We need to talk about this case.” And he looked me dead in the face and said, “Where is she from?” As soon as I said she’s from Florida, his eyes glazed over. He’s done. She’s not a victim. We have to train people in perception. I mean, if the federal prosecutors get the fact that U.S. citizens can be victims, if the Department of Homeland Security, if the Department of Children and Family Services, The Protection Project Journal of Human Rights and Civil Society 145

if ICE gets it, why don’t our state prosecutors, judges, and defense attorneys understand that these people can be victims?

Second, if they’re not going to accept that fact, then we need to use the laws that we already have. In pretty much every state, I believe, there are statutory rape laws. The statutory rape law states that a person of a certain age cannot even consent to engage in sex. So how can that same person consent to offering to engage in sex? There is a disconnect . We have our statutory rape laws. We have our human-trafficking laws. We have safe-harbor laws in some states. Why aren’t we using them?

As a defense attorney, when a state attorney (and this is my personal defense strategy) is not listening to me, when he or she is refusing to drop a case, I start preparing my defense witnesses. I call up the social workers who I know have been working with this child. I see if there’s a police officer who’s willing to testify that he’s seen this girl talking to a person; he’s seen her beat up on the street. And I bring them to court. Because if they’re going to prosecute this child for prostitution, then there’s going to be an affirmative defense behind it to say that she’s a victim and she’s protected by state and federal law.

No prosecutor wants to go up against you after that. (I’m just throwing that out there.) They don’t like to see that kind of defense. But you can’t do that unless you have a working relationship with your local organizations.

So every local organization here, every nongovernmental organization, contact your local public defender’s office. Some of us are actually pretty involved. We’re more than just free attorneys; we actually care. Contact us. If you have a client who you believe has been trafficked, let us know. I’ve actually gotten calls for girls who have been arrested for criminal mischief. I wouldn’t even have thought about it—would have had no contact with the client—it was a criminal mischief case; she kicked in a window of a car. I never would have thought about trafficking if somebody hadn’t contacted me and said, “Hey, this girl needs help.” Contact us. Work with us. We can try to get this done .

And lastly (just because I think I have a second), I want to talk about probation. In the event that you lose the case (and frankly we lose cases; I hate to admit it, but sometimes we lose), we need to address rehabilitation through our probation programs for these juveniles. And when they’re finished with the probation, we need to address expungement. If we are ever going to give these juveniles a chance to have a regular life—to attend college, to get a job—they can’t have a prostitution charge on their record. So we need to work with our 146 The Protection Project Fifth Annual Symposium on Trafficking in Persons

state governments to expunge these charges (in Florida you can expunge only one case; so if a juvenile has three charges of prostitution, they’re going to be on her record, and they’re not going to go away). We have to help these girls move on with their lives after they’ve been rehabilitated. Thank you.

Laura Lederer: Thank you so much, Amanda. Can we send you around the country? I think that’s what we need. Thank you so much. Hearing about that is actually chilling. We have some time for questions, which is a tribute to all our panelists. Can we do that? I’d love to have some back and forth. Are there any questions for our panelists?

Tomas Lares: I’m the chair for the Orlando Rescue and Restore Coalition. I’m glad to be here, and I’m concerned about the best practices. There are so many organizations just in Florida, and what are the best practices for people who want to open safe houses? What kinds of standards can there be for somebody who has opened or wants to open a safe house?

Maggie Wynne: I actually share similar concerns, so I don’t have an answer to your question. I think there’s expertise out there from the child welfare programs and the runaway and homeless youth programs and others that have experience in establishing safe houses, but I don’t know if there are any standards of care out there. I mean, there are a lot of questions with regard to children that you don’t have with adults in terms of who has authority to make decisions on their behalf, if any.

So it’s a very challenging issue, and I think it’s one that needs to be addressed. I’m hoping that the well-meaning people who do have this idea— that they see a need, they want to fill the gap—are consulting with many different people about all its different aspects, including legal liability and other issues they should be taking into account in order to appropriately help children. Because I fear there are circumstances in which you can actually make that situation worse by being a hub for traffickers to recruit if you don’t take appropriate protections and take account of the safety of the children .

Alison Friedman: May I just add, just really briefly? It’s an issue that we wind up dealing with around the world. One of the things that the ambassador includes in every speech that he gives is that a shelter is not a jail and a jail is not a shelter. Too often around the world, we’re looking at governments with shelter programs that kind of move the three Ps paradigm to a three Ds paradigm that involves deportation and keeping victims literally locked up until they’re deported . The Protection Project Journal of Human Rights and Civil Society 147

So this year, page 23 of the “Trafficking in Persons Report,” contains a list of core principles for shelter programs that speaks to those issues, but a lot of those principles are applicable domestically as well.

Laura Lederer: I think that we’re going to have this issue in many arenas, not just in the victim services. (We have these new investigator courses; two weeks and you can become an investigator and get your GI Joe badge, whatever it is.) So I think that we’ll have to be aware of this issue, and as we build this field from a sort of global human rights movement to a real field addressing this issue of shelter programs, we’re going to have to continue to be on the lookout for best practices, standards of care, protocols, and so forth .

Shelby Quast: Hi, I’m Shelby Quast. I’m representing Equality Now and Partners for Gender Justice. My question I think really started with Dr. Bassiouni and with Alison and Robert as well, and it goes to prosecution. Dr. Bassiouni mentioned that prosecutors generally want to take cases they think they can win and that only 0.03 percent of the cases are being prosecuted. And then Robert commented about having to get these victims into court to prove the case.

I’m wondering, is the evidentiary requirement too onerous—force, fraud, coercion—is it too onerous to actually try these cases and is that something that we need to revisit, especially when you’re requiring victims to come forward and there are all kinds of issues at stake?

Robert Moossy: That’s a great question, and my answer to that would be no. We should not relax the standards for imprisoning another human being. Our Constitution and our very way of life demand that the government have significant evidence before it can deny someone liberty. So I do notthink we should lower criminal standards because I’m afraid of where that would go. But I do think we should be doing more to address trafficking other than criminal prosecution. The last time I was here, I spoke on this very issue. I said that I think (as much as I love you all for inviting me to be on these panels) we can’t keep relying on the criminal system to resolve this problem.

I’d like to see two things happen. First, I’d like to see a civil law system with a lower standard of proof because the penalty is just either financial or injunctive or something like that. I’d like to see the system become more vibrant because these cases are easier to prove and, therefore, you need less evidence . And second, I think the TVPA provides at least the victim services part—immigration relief and other services—to people regardless of whether a criminal case is filed. (Am I right on that—at least the immigration relief part?) 148 The Protection Project Fifth Annual Symposium on Trafficking in Persons

So no, I don’t think we should relax the criminal standards. Yes, I think we need to put more emphasis on and think about how we can strengthen the civil and administrative side to address the issue .

Member of the Audience: My question is about who’s providing the victim services? When a victim is found and needs services, who provides those services? How are the services being monitored and evaluated for quality control or best practices and what organizations are doing the monitoring and evaluation?

Maggie Wynne: I can only speak to HHS’s programs; both the Justice Department and HHS have victim service programs. As certified victims of trafficking, they get the same benefits and services that are available to refugees or U.S. citizens, and so we don’t really monitor them. They’ll apply for food stamps; they’ll apply for housing assistance; they’ll apply for jobs and training. So that’s just part of the network of assistance out there in the welfare system.

In terms of direct case management and services, we have a contract with the U.S. Conference of Catholic Bishops (USCCB), which has contracts with over 108 organizations throughout the country in something like 110 locations . USCCB does the monitoring and has standards of care that it requires its subcontractors to meet, and it receives regular reports from them. USCCB also does the training to make sure that their contractors understand appropriate care for victims of trafficking.

Shayna Taylor: Good afternoon. My name is Shayna Taylor. I’m an intern at Global Centurion. We’ve been talking about the prevention side and the prosecution side, but we haven’t addressed the demand side. What is being done to address that? I know that in the training, a lot of times police officers aren’t even asking who the johns are. No victims are loyal to these johns that are exploiting them, and I was just wondering, has there been any training done to address the demand side?

Amanda Harris Souvannamethy: On the demand side—and I speak from Miami- Dade County—basically what the police officers there have been doing is taking the most attractive police officer they have, dressing her up, and putting her out on the street where she propositions the people who stop. The johns do get arrested, charged with a misdemeanor, and go to court. They pay—it’s an adjudication and court cost, therefore a conviction on their record, which you can later expunge. The court cost is, I think, US$338 and that’s it. That’s all we do to the johns . The Protection Project Journal of Human Rights and Civil Society 149

Prostitutes who get arrested have adjudication, court costs, days in jail, an AIDS test, an HIV test, and an AIDS course, all of which they have to pay for, as well as probation that is supervised. The johns get a conviction and court costs. That’s it.

Member of the Audience: Hi, I’m with the FBI’s Victims Assistance Program. I just wanted a follow-up to your question about effective services that are being provided to victims . We actually have a victim assistance program located here in headquarters, and we have over 100 victim specialists who are located across the country and work directly with the agents during the course of the investigation .

Maggie Wynne: May I add one thing? The Department of Justice carries out an annual assessment of all U .S . government activities regarding human trafficking, and it has a lot of information on every organization thatgets any money from the federal government and from many of the agencies, so including to some extent down to the subgrantee level. So it has got a lot of information and it’s available; there’s a link from our website or from the DOJ website.

Alison Friedman: Just more broadly because I meant to mention it earlier and didn’t, I think this entire conversation speaks to the real value and opportunity in a self-critical approach. And right now we’re one of three nations—with the United States ranked for the first time in our report—that is really evaluating not only the best practices we’ve developed over the past 10 years but where there is significant room for improvement. And I think the inclusion of the 287(g) program and other things within the U.S. narratives speak to that.

And as much as you continue to work on combating trafficking abroad, advocating for a self-critical approach by other governments is critical to making sure that the entire world really does combat trafficking and fix what’s not working.

Laura Lederer: That’s a perfect way to wrap it up. So we’ve come so far and we have far to go . Thank you very much, panelists, and thank you all very much .

Civil Society: Media and Academic Institutions Mohamed Mattar: This morning, we listened to our keynote speaker Dr. Cherif Bassiouni, who gave us an overview, insights, and reflections on 10 years of the anti-trafficking movement on the international level and national level. We also listened to representatives from different countries in what we call the 150 The Protection Project Fifth Annual Symposium on Trafficking in Persons

ambassadors’ panel. And a few minutes ago, we concluded our panel on the U.S. efforts, the government efforts to combat human trafficking here in the United States. Now is the time for the media.

This is a very special session chaired by a very special person, Michele Clark . Michele Clark started as the codirector of The Protection Project, so we worked together for almost three years. Imagine Michele and Mohamed in one place .

And Michele moved to Vienna where she became the representative of the Organization for Security and Co-operation in Europe, chairing the trafficking unit, and now she’s back. She teaches courses at George Washington University: a course on human trafficking and another course on gender and women’s issues. But she is here today to educate us on the role of the media in combating human trafficking. She will show us different clips from different movies, including Not My Life, which will play for about 10 minutes or so, after which she will analyze the clips and tell us what is right and what is wrong. Please help me welcome Michele Clark.

Michele Clark: Thank you. Thank you, Mohamed, very much for just doing what you are doing today. Ten years of anti-trafficking laws and policies, activities and events, and conferences and meetings, and it was really wonderful to share Robert Moossy’s question and then see the answers of how many people were working in this field 10 years ago and how many people are working in the field today. It’s extremely gratifying.

As Mohamed said, I teach a course on human trafficking at George Washington University . One of the aspects that is of great interest to me and to the students there is why is it that we think trafficking is what it is, what tells us what trafficking is, and how do we know what it is? Well, if we head a legal think tank, are a renowned scholar, or work in a government agency, then we have certain definitions. But if we’re a college student, an educated professional, a schoolteacher, if we’re a voter with a voice but no particular specialization, our vision of human trafficking is something completely different.

And that perception is going to determine funding; that perception is going to determine political priorities; that perception is going to set out and identify and strengthen the political will. These are the perceptions that are actually going to matter. I spend a lot of my time watching human-trafficking videos, human-trafficking TV shows, and human-trafficking documentaries and reading books about human trafficking or that have human-trafficking backdrops. So I’ve had a chance to really look at how human trafficking is communicated . The Protection Project Journal of Human Rights and Civil Society 151

So this is what I’d like to talk about. A lot of activities surround the anti- trafficking arena: laws, shelters, funders, proposal writers, law enforcement units, marches and walks, balls and golf tournaments, and a lot more. A lot of anti-human trafficking activity is going on, to do what—to stop trafficking essentially .

We may know what we’re talking about when we say we want to end trafficking. We may know what we’re talking about, but does the public really know when you sign up your neighbors and say, “Come with me to the march against trafficking”; “Play golf with me in this tournament to end trafficking”; “Dance with me at the human-trafficking ball”? They know we’re doing something good, but if you ask them at the end of the day, “What thing do you really want to see done, do you think will be done with your funding, your time, your money?” They’re probably not going to be able to answer that particularly because of the way their perceptions of human trafficking have been shaped.

Let me just give you a broad indicator of where you can find human trafficking in the media these days either as a primary plot or as a backdrop. One of the recent season’s episodes of Lie to Me featured what we would now call the domestic trafficking of a U.S. minor. CSI, all of the alphabet soups and cities, Las Vegas, Miami, New York, have all featured human trafficking either as a plot or a subplot; so has Law & Order. And for those of you who’ve tuned in to the remake of the old Jack Garrett Hawaii Five-O series, this premiere season, in two out of six new episodes, human trafficking figures as major plot elements.

In terms of books—I think we know about The Girl with the Dragon Tattoo. James Patterson, the best-selling murder-mystery writer, has featured human trafficking. Even the more classical writer Isabel Allende includes a discussion of trafficking of the Chinese singsong girls in her book the Daughter of Fortune.

There are documentaries. Documentaries are just a bite in the category apple because documentaries tend to be seen for the most part by the initiates, especially if they premiere not on television but in movies. We know Born in Brothels. There’s a very, very moving documentary about the GEMS girls in New York, Dream Girls, Very Young Girls, Playground, and finally Not My Life, which we’ll see tonight. And then we have feature film. So trafficking in persons has gained a lot of significance as a result of these media.

The keynote speaker this morning raised a challenge that we’ve not been able to communicate a universal value about trafficking or a sense of urgency or a sense of injustice that adequately compels us to act. I tend to agree with 152 The Protection Project Fifth Annual Symposium on Trafficking in Persons

the statement. I also tend to ask myself why is that, why after 10 years, why after all the initiatives that we’ve been hearing about today in such an articulate forum, all the energies that people are displaying, why are we still confused when someone says what does it mean to end trafficking? It doesn’t mean no longer giving out work visas. Does it mean giving out more work visas? Does it mean legalizing prostitution? Does it mean restricting all prostitution whatsoever? What does ending trafficking mean?

All those actions are certainly part of the debate. But to what degree are we compelled to act? We’re certainly compelled to feel. I think that a lot of what many of these clips have done is to raise something viscerally deep within the public about this very disquieting phenomenon. But those of us who are on the inside working specifically to end trafficking have not adequately teamed up with that visceral public feeling to take the best advantage of it.

I’d like to show four brief clips from four commercial films. The first is Pretty Baby, a 1980 movie featuring Brooke Shields as a child actress. It created a great deal of scandal over pictures of prepubescent nudity, and what it basically documented is what we now call the trafficking of domestic minors. Remember it was made in 1980. Remember it was a very high-grossing movie. And remember the images. One particular image that you will see was burned into the public’s minds: the auctioning off of the young soon-to-be prostitute’s virginity in a New Orleans brothel.

The next film that I’ll show you—they are basically in chronological order of release—is Human Trafficking with Donald Sutherland and Mira Sorvino, which was made in the very early days. We all know what it is, but it was the first feature film that came out with the story. The third is the movie Trade, which deals with cross-border trafficking; and the last is Taken, which really looks at a criminal approach to trafficking.

As you watch these clips, I’d like you to watch them through three particular mental, emotional filters—three questions to ask yourselves: (a) What do you learn; what do you know about the victim? Who is the person (in these cases I focused on sex trafficking), who is the victim to us, the public, after we see this film? (b) Who is the criminal; who’s the bad guy in these films? and (c) If you picture yourself as a member of an educated, informed, caring public, but this is not your professional life, is there a place for you to do something in that situation?

The way you answer those questions will help us arrive at an understanding of why sometimes in the public we encounter the challenges, the glazed The Protection Project Journal of Human Rights and Civil Society 153

eyes that were referred to earlier, the inability—the lack of willingness—to prosecute a crime even when evidence is put forth before us in a court of law because of our perception.

And then we’ll close with a few minutes of Robert Bilheimer’s movie Not My Life. I won’t say anything until you see it, except that I think he’s done a good job of trying to handle some of the misconceptions that I’ve raised.

If we were back in my classroom at the university, I would say, “OK, go back to the questions I’ve given you. Who will the public see from these movies as a victim of trafficking?” I would say, “Define the perception of a victim. Define a victim of trafficking.” I would argue that on the basis of a lot of these clips, you’ll come up with a beautiful young woman, brutalized. You will establish what is a very visible profile and that all four clips had exactly the same profile. So this is what we think of as a victim of trafficking. There is one American woman who was taken and placed overseas. In another instance, we’re dealing with someone from the former Soviet Union, and in the first case, a young domestic minor at the turn of the century.” So then I would ask, “Well, who is the perpetrator?” And you would tell me that the perpetrator is some kind of smooth, handsome, rugged adventure seeker who is kind of foreboding, with a dark side; there’s a lot of danger and criminal activity.

What would your answers be based on the film clips, the answers that you all know to be true from your day-to-day contact with trafficking situations? How does it compare to the reality? When you talk to your neighbors and your friends, and the people who are funders, and the policy makers, and the judges who haven’t gone through eight hours of a trafficking awareness program, but still decide whether to try cases or not? How does such a presentation of trafficking affect their perceptions and decision making?

All right, this was just a very short exercise in the interest of time to get you to start thinking about why there is some of this frustration among the activists, the nongovernmental organization community, and the law enforcement community in addressing the issue of trafficking because we’re up against something that’s not real as we know it. But it’s real in the perceptions of the public, which therefore determines votes and determines funding. So I do a whole three-hour class, which is just a drop in the bucket.

Mohamed Mattar: That brings this symposium to a close. I want to thank all of you who came and spoke to us, those of you who came and participated, and those of you who are patient enough to listen to all of us. I hope that you met somebody for the first time; I did. I hope that you learned something new, 154 The Protection Project Fifth Annual Symposium on Trafficking in Persons

anything new; I did. I hope that you got a feel for what is involved in human trafficking. Basically, we are talking about human misery, human exploitation.

I will see you a year from now on Monday, November 7, 2011. Michelle, mark your calendar, and this time if you are interested in contributing a paper for publication in our Journal on Human Rights and Civil Society, please do.

Our issue for next year is corporations, corporate social responsibility, the role of the media, nongovernmental organizations, religious and academic institutions, the five elements of civil society, in combating human trafficking. God bless you and goodnight. The Protection Project Journal of Human Rights and Civil Society 155

Interview

Clinical Legal Education: Past and Present

The following interview contains replies by Professor David McQuoid-Mason, who teaches at the University of KwaZulu-Natal, Durban, South Africa; Dr. Frank Bloch, who is Professor of Law Emeritus at Vanderbilt University Law School, Nashville, TN, USA; and Catherine Klein, who is Professor of Law at the Columbus School of Law and Director of Columbus Community Legal Services, both of which are at Catholic University of America, Washington, DC, USA.

Question 1: What are the historical and political roots of clinical legal education?

David McQuoid-Mason: In South Africa, the earliest moves toward clinical legal education were made in 1973 with the Legal Resources Centre (a public interest law firm) assisting the University of the Witwatersrand (Wits) in Johannesburg to establish a clinical legal education program that began in April 1973. Prior to that, in 1972, University of Cape Town students were running a student operation without the involvement of the law faculty.

In July 1973, I was conference secretary for the first Legal Aid Conference in South Africa (sponsored by the Ford Foundation), where we learned about the US CLEPR (Council on Legal Education for Professional Responsibility) program and the development of clinical legal education there. I was so inspired that in August 1973 I established a clinical legal education program at my university—then the University of Natal in Durban.

The establishment a law clinic in tandem with the classroom component attracted the attention of the security police and some opposition from the local law society. I overcame this attention by inviting a representative of the law society to serve on the clinic management committee, and I involved sympathetic lawyers as pro bono supervisors. This move not only satisfied the law society but also helped to legitimize the clinic in the eyes of the police. 156 Interview: Clinical Legal Education: Past and Present

The Legal Aid Conference proved to be the catalyst for developing legal aid clinics throughout South Africa and in neighboring Zimbabwe (then known as Rhodesia). The English-speaking universities tended to be anti-apartheid, and their clinics tended to focus on social justice and human rights issues . The Afrikaans-speaking (Dutch) universities tended to be pro-government and focused on (a) teaching practical skills and (b) providing legal aid in nonpolitical cases, such as divorce. The historically black universities under apartheid were staffed by government sympathizers and tended—like the Afrikaans universities—not to take on politically sensitive cases until the late 1980s .

Frank Bloch: Most of the earliest clinical programs, including some that had already begun before World War II, were part of the “access to justice” movement and consisted of law-school-based legal aid clinics whose primary goal was to provide legal assistance to persons and groups that were traditionally unrepresented .

In the early years of the “modern period” of clinical legal education, which took place in the 1960s and 1970s, this motivation began to be coupled with concerns about the quality of legal education and, in particular, with the lack of training in professional skills and values. The result was a desire for a more “relevant” form of legal education—what two major figures in Indian legal education, Upendra Baxi and N. R. Madhava Menon, called “socially relevant legal education.” Most newer clinical programs still have these two motivations (a search for quality and for social relevance as part of legal education), although some more recent programs seem to be motivated more by legal education reform than by access to justice.

Catherine Klein: The civil rights movement in the 1960s, the anti-war movement of the 1970s, and the women’s movement, all played a role in the development of clinical legal education. Law students began to demand that their experience in law school related to the social issues that society was facing. The Ford Foundation began to fund clinics as a direct consequence of the Watergate scandal, which involved lawyers at the highest levels in criminal behavior. Ford’s CLEPR project also funded clinical education as a way to enhance law students’ appreciation of professional values and professional responsibility.

Question 2: What are the specific experiences in the United States, in South Africa, in South Asia, in Central and Eastern Europe, in Latin America, or in a combination of those areas out of which the clinical movement grew? (For example, are there linkages to the civil rights movement in the United States, the apartheid regime in South Africa, and similar places?) . The Protection Project Journal of Human Rights and Civil Society 157

David McQuoid-Mason: In South Africa, the Legal Resources Centre was involved in public interest litigation that focused on the human rights abuses of the apartheid regime, and its clinic for the University of the Witwatersrand students did the same. My vision was the same for the Natal clinical program. At the time, all black African citizens had to carry passbooks that allowed them to work in “white” areas. If they did not carry their passes at all times, they could be arrested. Some 400,000 Africans a year were being imprisoned for not carrying their passes—even though the courts had said that they should be given time to fetch them before being arrested. This was one of the first areas that many of the English-speaking university law clinics tackled—including my own.

The growth of law clinics in Central and Eastern Europe, other African countries, Latin America, and Asia has largely been due to many of those countries being in transition from authoritarianism and dictatorship to democracy. In 1997, I organized a Clinical Law Symposium for 70 Central and Eastern European academics and lawyers at the University of Natal in Durban—once again under the auspices of the Ford Foundation—and we exposed them to our clinical law and street law programs.

The Open Society Justice Initiative (OSJI), which at the time was part of the Constitutional Law and Policy Initiative (COLPI), often credits the Durban Conference as being the catalyst for the growth of law clinics and street law programs in Central and Eastern Europe. In 2003, I organized a similar Symposium for African law teachers at the University of Natal under the auspices of the OSJI, which proved to be the catalyst for the expansion of law clinics in West and Central Africa. The OSJI and I have been involved in assisting with the development of clinical legal education programs (including street law) in numerous other Central Asian, South Asian, and Southeast Asian countries .

Frank Bloch: In the United States, the modern era of clinical legal education grew out of (a) the push for federally funded legal aid during the “War on Poverty” in the mid- to late-1960s (including the availability of funds for legal services that were also available to law school clinics) and (b) the post-Watergate concern that lawyers were not trained adequately in professional ethics and responsibility. The creation and development of strong law school clinical programs was aided considerably by grants from the US CLEPR, which was funded by the Ford Foundation. In other countries, including South Africa, and in many countries throughout Eastern Europe and South America, clinical 158 Interview: Clinical Legal Education: Past and Present

legal education grew out of the involvement by law teachers and students in local political transitions .

Catherine Klein: The demise of the Soviet Union created a period of great societal transformation—and presented an opportunity to reform legal education. Clinical education and other forms of critical thinking and practical education become attractive alternatives to lectures, rote memorization, and passive learning .

For example, Poland—in part because of interest in US models of education—rapidly embraced clinical legal education. I was one of the organizers in the initial conference on clinical legal education held in Krakow in December 1996. Jagiellonian University (JU), in Krakow, with the assistance of the Catholic University of America, was the first Polish university to create a clinic . Within 2 years, JU had four different programs focusing on the following areas: human rights and refugees, criminal law, civil law, and labor law. My colleague, Professor Leah Wortham, and I, were deeply involved in supporting this effort . The Ford Foundation provided a series of grants to JU that greatly facilitated this change. The CLEPR movement rapidly spread—to Warsaw University and from there to every other publicly funded law school in the country as of today .

Question 3: How has clinical legal education changed as it has progressed from those roots, and what are its main characteristics today?

David McQuoid-Mason: My main observation has been that although many of the countries with law clinics (including my own, South Africa) have transitioned to democracy and the rule of law as reflected in their progressive constitutions, in several instances there has been a backlash against too much freedom and against rising crime rates and unemployment. The result is that the officials responsible for enforcing the law and those in government begin to fall back on some of the repressive practices associated with the nondemocratic regimes of the past, and civil and political rights are again at risk . In the case of social and economic rights—despite the promises in constitutional directives of state policy (and, in South Africa’s case, justiciable socio-economic rights) in their constitutions—the delivery of such rights has not always materialized significantly.

This observation means that on the service side there is still plenty of work for law clinics and street law programs to deal both with civil and political rights and with economic and social rights—and now, because of climate The Protection Project Journal of Human Rights and Civil Society 159

change, with environmental rights. On the teaching side, the newer clinical law programs have been able to draw on the experiences of the well-established programs. The growth of information technology has made it much easier to communicate, and the establishment of networks for national clinical legal education—networks that now exist in Nigeria, Poland, and South Africa, along with global bodies such as the Global Alliance for Justice Education (GAJE)—means that advice and assistance for establishing and developing clinical law programs are much more readily available than they were 30 or 40 years ago .

Frank Bloch: The main change in clinical education over the years since the modern era began has been increased concentration on the education goal and, in some instances, an increase in faculty status for clinical teachers . This change can be seen in greater concern by clinicians with questions of methodology, including tremendous growth in “clinical scholarship” that focuses on clinical teaching methods .

Another major shift has been toward specialization, both in terms of the types of cases that clinics handle (human rights, environment, elder law, etc.) and in terms of the skills emphasized—many of which, such as interviewing and counseling, were developed as subject areas in the curriculum by clinicians.

Catherine Klein: In the United States, we are struggling with new ways to provide clinical education to students and simultaneously to engage in meaningful service to our communities. I think we are in a period of new creativity for US clinical programs. At the same time, we are struggling with many of the same long-term challenges (expense of the programs, status of clinical teachers, acceptance within our academic institutions). Thus, clinical teachers are continually creating new types of clinics, such as legislative and public policy clinics, community legal education projects, community lawyering clinics, and other new forms of experiential learning.

Question 4: What are the main obstacles to the growth of clinical legal education in regions where it is not yet widespread?

David McQuoid-Mason: Some of the main obstacles to the growth of clinical legal education in regions where it is not yet widespread are the same as those that were faced by many of the early clinical law programs: (a) conservative law faculty members who feel comfortable lecturing and who are insecure using interactive teaching methods; (b) law faculties staffed by academics who have little or no practical experience; (c) law faculties that believe their mission is to 160 Interview: Clinical Legal Education: Past and Present

teach the theory of law and that believe vocational training must be done by the profession; (d) a lack of clinical law teaching materials in the local language of the country concerned; (e) opposition by the legal profession to law clinics because students are not qualified lawyers and may harm clients; (f) a lack of funding because live client clinics are labor-intensive and expensive to run— although street law programs are much cheaper; (g) a political climate that is hostile to human rights and to law students becoming involved in “political cases”; and (h) a perception that clinical legal education is an American common law concept that is foreign and not appropriate to a civil law system.

Frank Bloch: Probably the most common obstacles are the same as those faced by existing programs: opposition from “traditional” faculty members who teach solely in the classroom, who discount the value of practical training, and who lack sufficient resources to support a low student-faculty ratio clinic. There can also be resistance to clinical education’s active social justice mission, particularly when law schools rely on governmental support. And in some countries, systemic barriers can arise from the structure of both the profession and the education system .

Question 5: What are the implications of this set of obstacles for the Middle East, especially in relation to and as separate from the Arab Spring events?

David McQuoid-Mason: Many of the issues facing Middle Eastern countries are similar to those in other transitional countries, depending on the level of commitment to democracy by the government concerned. Of particular relevance in some Middle Eastern countries is the role of Shari’a—but even in countries such as Afghanistan where the country has law faculties and faculties of Shari’a, law clinics and street law programs have been established.

Clinical legal education is a method of teaching—not an ideology—and has been successfully adapted in Islamic countries such as Afghanistan, the Arab Republic of Egypt, Indonesia, the Islamic Republic of Iran, and Turkey, as well as more recently in some of the other Middle Eastern countries. I have been involved in assisting to set up law clinic and street law programs in Afghanistan, Indonesia, and Iran, as well as street law programs in Kazakhstan, Kyrgyzstan, and Uzbekistan with suitable adaptations to allow for local cultural and political needs .

What is occurring with the Arab Spring is very similar in some respects to what occurred in my country, South Africa, and in the Central and Eastern European countries when ordinary citizens were able to unite and mobilize The Protection Project Journal of Human Rights and Civil Society 161

to remove autocratic and repressive regimes . In Central and Eastern Europe, the transitional period proved to be the ideal time to introduce clinical legal education programs that are consistent with the new democratic ethos of social justice, accountability, and the rule of law.

Frank Bloch: Presumably law schools in the Middle East will face the “usual” sorts of challenges to clinical education mentioned earlier—plus any specific challenges resulting from the structure of any one country’s legal profession and educational system. With respect to the Arab Spring, clinical education— with its strong social justice mission and its dedication to systemic reform in legal education and the legal profession—could become a major resource for positive future developments in the Arab world. Not only can clinicians and their students provide legal services to those seeking societal reform, but also clinical education has the potential of shifting the focus of an entire new generation of lawyers toward improving the lives of marginalized and traditionally underrepresented groups .

Catherine Klein: I agree, especially about Poland and other former Soviet countries. This is an ideal time for those of us who believe in clinical education because of its capacity to develop critical thinking skills and to foster a commitment to working for social justice so that we become involved in working with universities in the Middle East . 162 The Protection Project Journal of Human Rights and Civil Society 163

Book Review They Must Be Stopped by Brigitte Gabriel Bradley Bush

America just doesn’t get it. And it’s not just America; it’s the entire Western world for that matter. They just don’t understand Islam. Not “moderate” Islam, not “radical” Islam, but Islam itself: pure Islam. These introductory words reflect the fervent flavor of rhetoric found in Brigitte Gabriel’s New York Times bestseller titled They Must Be Stopped. “Our reluctance to offend the offenders denies us the clarity, understanding, and determination required to confront, oppose, and ultimately prevail against our enemies. To oppose our enemy, we must identify it by name” (p. 72). And who is the enemy? According to Gabriel, those individuals are (a) devout Muslims, (b) Muslim organizations that work to silence any critique or , (c) enablers of Islamic education that whitewash the violent and conquering nature of Islam, (d) hate-mongers who advocate violence and the overthrow of constitutional law and democracy, and (e) the Western politically correct propaganda machine. So what is it that the West just doesn’t get about Islam? Gabriel asserts that Westerners do not understand Islamic doctrine, culture and philosophy, history, and aspirations .

Doctrine Muslims are supremacists. They believe they have been divinely blessed and foreordained to rule the world. And for them, this goal can be achieved in one of two ways: (a) proselytizing and ultimate conversion or (b) subjugation. Period. Gabriel states that Muslims believe they “belong to the supreme religion of earth— Islam—and … are superior beings blessed by Allah and given authority over all other people because of their faith as professing Muslims” (p. 23). And such views find their roots, according to Gabriel, directly from the Koran, which, Gabriel claims, supports the Muslim doctrine taught by Mohammed himself that all of the nonbelievers must either be converted or must submit to live under Sharia law—that is, live in Muslim subjugation, pay the Jizyah (obligatory tax), and acknowledge that Allah is the great one and Islam is supreme. 164 Book Review: They Must Be Stopped by Brigitte Gabriel

She also asserts that Islam is inherently racist—racist against Jews, Christians, blacks, and non-Muslims. Islam teaches male Muslim supremacy with regard to all of those groups in addition to women (including Muslim women). “The Koran specifically asserts the right of Muslims to own slaves, either by purchasing them or acquiring them through the bounty of war. Since Muslims believe the Koran to be the word of Allah and is unchangeable, slavery will always exist in Islam” (p. 185) . Oppression is common in Islamic countries according to Gabriel. Boys are sold into slavery to be camel jockeys, and girls and young women are mistreated, beaten, sexually abused (for example, female genital mutilation), married off while still children, and limited in their basic human rights—all of which, according to Gabriel, are supported by Islam, the Koran, and other authoritative writings. Women are seen as unclean (more so than dirt; see Koran 56:13–24, in appendix A of Gabriel’s book) and evil, and they are viewed as property equal to domesticated animals . They are intellectually inferior to men, and Hell itself is mostly populated by women. “… female freedom and independence is one of the greatest sins in Islam and is one of the devout Muslim purist’s greatest justifications for terrorism against Western societies” (p. 64). Moreover, Islamists use women’s rights in the West as a rallying point to show that unless stopped, this corruption, headed by the United States, is coming to their Islamic communities and countries . They use this point to recruit and motivate Muslim men, young and old, to stand up and fight to protect from Western invasion and preserve the honor code and family values of Islamic societies. They blame the deterioration of Western societies on women’s rights, which allowed women to initiate divorce and destroy the family . They reinforce the Islamic teaching that women need to be controlled and beaten for the protection and preservation of culture and society . (p . 63) According to Gabriel, any female’s (a) transgression against the teachings of Islam or a man’s wishes or (b) behavior that insults a man permits a male member of the family to kill her to restore honor to the family in the eyes of the society . According to an attorney general in the Palestinian Authority in 1997, honor killings in Gaza and the were close to 70 percent of all female deaths. And in 2006, the independent Human Rights Commission of Pakistan, citing government sources, reported that about 1,000 women die each year in their country from honor killings . The Protection Project Journal of Human Rights and Civil Society 165

Culture and Philosophy For Muslims, their loyalty and identity revolve around their religion . Even though Muslims and non-Muslims may live in the same community and have the same nationality in the Islamic world, it is religion and not national identity that defines their society and determines who belongs to it and who does not. (p. 23) Two philosophies are hallmarks of radical (or “pure”) Islam: Taqiyya and Da’wa. Taqiyya is defined as the practice of “concealing or disguising one’s beliefs, convictions, ideas, feelings, opinions, and/or strategies at a time of eminent danger, whether now or later in time, to save oneself from physical and/or mental injury” (p. 78). Da’wa is the act of inviting non-Muslims to accept the truth of Islam. Performing Da’wa involves both words and actions. Both of these philosophies are used to manipulate Westerners into thinking that Islam is a peaceful religion whose doctrines were written to help all humanity. In the West, we are taught that lying is bad and honesty is good. It’s a part of Western culture. That philosophy, Gabriel points out, is not shared with Islamic culture, as can be clearly understood in the following statement from the late Iranian President Ayatollah Khomeini: We know of no absolute values besides total submission of the will of the Almighty. People say: “Don’t lie!” But the principle is different when we serve the will of Allah. He taught man to lie so that we can save ourselves at moments of difficulty and confuse our enemies. Should we remain truthful at the cost of defeat and danger to the Faith? We say not. People say: “Don’t kill!” But the Almighty Himself taught us how to kill. Without such a skill, man would have been wiped out long ago by the beasts. So shall we not kill when it is necessary for the triumph of the Faith? … Deceit, trickery, conspiracy, cheating, stealing, and killing are nothing but means. On their own, they are neither good nor bad. For no deed is either good or bad, isolated from the intentions that motivate it. (p. 50) Westerners are taught to be tolerant, compassionate, and accommodating, but virtues in Islam are defined more by might, conquest, boldness, and aspiration to victory . Any student of history and the doctrines of Islam understands these attitudes . What we in the West regard as a virtue (tolerance and accommodation) Islam regards as weakness and an implicit if not explicit acknowledgement that Islam is superior and we are inferior. The harder the West tries to accommodate Islam, the more it is seen by Muslims as weak.… Contrary to the hopes and best intentions of those seeking to accommodate Islam, the tolerance of Islamic intolerance will simply promote more Islamic intolerance . It is something the West in general and America in particular must come to acknowledge. (p. 144) 166 Book Review: They Must Be Stopped by Brigitte Gabriel

History has been a central pillar in Islamic culture, religious belief, and history. When Gabriel speaks of Jihad, she means the violent type. She recounts Mohammed’s movement from nonviolent teachings (Mecca period) to explicitly violent teachings (Medina period), including and especially proselytizing with the sword instead of simply by mouth and example. And not only did Mohammed teach to proselytize with the sword, but he also taught Islamic supremacy and the divine mandate to convert the world’s inhabitants. This conversion doctrine meant that all people must be forced to accept Islam or die. The only exceptions were Jews and Christians who could, instead of converting, choose to be subjugated and forced to live under Sharia law in an Islamic polity and pay the Jizyah (a tribute tax to Muslims) . Westerners know very little, Gabriel claims, of the treaty of Al-Hudaybiyah, which is still cited by Muslim political leaders today. The treaty reveals the violent nature of Mohammed’s expansionary political doctrine and that of the Koran— Mohammed’s dictation of Allah’s commands. Because of the precedent set by the Prophet Mohammed, the religion of Islam is not merely one segment of life, it regulates life completely, from the social and the political to the diplomatic, economic and military. This combination of religion and politics as one is the foundation of Islam, an inseparable political/religious ideology of Islamic governments, and the basis of Muslim loyalties. (p. 24)

Aspirations The Project

In November 2001, a detailed document was found by authorities in Switzerland outlining a hundred year plan for radical Islam to “infiltrate and dominate the West and ‘establish an Islamic government on earth’” (p. 75). The genesis of the project is the Muslim Brotherhood, the world’s oldest and most sophisticated Islamic terrorist group. From the 14-page document, Gabriel’s book includes 26 strategies used by radical Islam. Westerners’ concept of political correctness, multiculturalism, education, youth camps, Muslim nongovernmental organizations (NGOs) and charity organizations, the media, and proselyting in America’s prisons are broad categories within which many of these strategies fall.

Political Correctness

The Western leftist idea of political correctness, Gabriel claims, is doing nothing more than blinding the public to the threat radical Islam poses for democracy and is enabling the cultural jihadists to gain strength. The Protection Project Journal of Human Rights and Civil Society 167

The purveyors of political correctness … have resorted to every tactic of apology and rationalization to either ignore or dismiss the truth about Islam’s militant, forceful nature and the terrorism that emanates from it . They claim that Islamic terrorists are victims of poverty and a lack of education, that Islamic terrorists are victims merely striking back at “Western oppressors,” that American foreign policy has provoked terrorist actions, and that criticisms of Islamofascism are nothing more than religious bigotry and intolerance. (p. 216) But the hypocrisy is astounding, claims Gabriel, because the politically correct people don’t hesitate to debate the merits of or to criticize Judaism or Christianity.

Multiculturalism

Islamic radicals are exploiting the Western concept of multiculturalism . They are using the freedoms of speech and religion, according to Gabriel, to implant Islamic culture with the hopes that it will eventually supplant Western culture. Gabriel asserts that Muslims cry intolerance by Westerners and appeal to multiculturalism in their defense. However, Islamic tolerance is a one-way street that demands that the West accommodate Islamic imperatives and sensitivities. But Islam feels no obligation to regard with any level of respect or sympathy the social, religious, or political norms of the West, nor do they grant any concessions—even when residing in the West . (p . 199) Gabriel explains, “While we afford Muslims the freedom to express their thoughts and their religion in our land, they are using our freedoms to incite hatred and are working to end our democracy” (p. 71). Moreover, While the Islamic Party of Liberation hopes to usher in the caliphate peacefully through cultural jihad accomplished by manipulating Western freedoms (freedom of religion, of the press, and of speech), and capitalizing on the tolerance, multiculturalism, and open-mindedness of the West, it holds to the position that it is every Muslim’s duty to Allah to bring about Islamic rule by any means. (p. 123)

Education Schools

Foreign-owned Madrassas (Muslim schools) have begun to dot the United States and the Western landscape. Students who attend these schools must memorize all 6,000 verses of the Koran . There are approximately 225 Madrassas in the United States, and they can also be found in 19 world capitals and throughout 47 countries. Gabriel contends that these (many of them) Saudi-funded schools teach intolerance, hatred, Islamic supremacy, and Jihad . 168 Book Review: They Must Be Stopped by Brigitte Gabriel

The educational materials are provided by the Saudis and have been censored on various occasions by groups such as Freedom House and the United States Commission on International Religious Freedom. Gabriel calls the curriculum “propaganda [that] fosters an environment of hate, loathing, and resentment toward Western culture, Christians, Jews, Shiites, secular Muslims and non-Muslims.… In many instances, the verse [from the Koran and the Hadith] will direct the reader to commit murder in the name of Allah” (p. 111).

Textbooks

Gilbert Sewall, director of the American Textbook Council, which is a research organization dedicated to reviewing and improving educational materials, published a study titled Islam and the Textbooks. He claims “misrepresentation of Islam is a problem in today’s world history textbooks. Much of it is deliberate, I believe. Sound scholarship is being ignored, and open review—the only way to reverse the problem—meets adamant resistance.” He also added that his study found “repeated discrepancies between world history textbooks and exacting scholarship in the field. It explains how pressure groups, both Muslims and allied multiculturalists, manipulate nervous publishers who obey educational fashion and rely more heavily on diversity experts than on trustworthy scholarship” (p. 98). Sewall also adds that opinions are being presented as facts and that there is no mention of how Sharia law is different from constitutional law and the U.S Bill of Rights, nor is there any mention that under Sharia law many basic rights are severely limited or nonexistent .

Youth Camps The Young Muslims, the Young Muslim Sisters, the Muslim Student Association, the Muslim American Society, the Mosque of Islamic Brotherhood, and the Islamic Circle of North America have all sponsored youth camps, youth groups, or Muslim Boy Scout and Girl Scout groups. These Jihad retreats and summer camps have speakers whose topics include “Planning for Our Akhira (Afterlife),” “A Generation with a Mission,” “Preparation for Death,” “The Life in the Grave,” and “Do You Want Paradise?” Gabriel contends that these youth programs are merely breeding grounds for future American-based radicals who would not hesitate to join the ranks of the suicide bombers.

NGOs and Charity Organizations in the United States Another method of cultural jihad, Gabriel contends, is to set up Islamic NGOs and charity organizations in the United States . Those institutions are used to raise funds for terrorist organizations and to further Islam’s cause here in the United The Protection Project Journal of Human Rights and Civil Society 169

States. Their objective is to infiltrate the political, cultural, and economic institutions in the United States with the immediate purpose of gaining America’s confidence and positioning themselves in influential situations so that they can ultimately gain control of society and impose their wishes (an Islamic state governed by Sharia law) on other people through entirely democratic means. One institution on the long list of examples is the Council on American–Islamic Relations (CAIR) . CAIR is teaching Islamic sensitivity classes, which they developed, to 45,000 Transportation Security Administration personnel for the U .S . government . CAIR also (a) trains the U.S. Marine Corps, (b) regularly meets with the Federal Bureau of Investigation, and (c) serves on the U.S. Justice Department’s advisory board. Yet CAIR, according to Gabriel, is funded by Saudi Arabia and the United Arab Emirates. Furthermore, in 1998, CAIR’s cofounder and chair, Omar Ahmad (a Palestinian American), told a Muslim audience in Freemont, California, the following: “Islam isn’t in America to be equal to any other faith, but to become dominant. The Koran should be the highest authority in America, and Islam the only accepted religion on earth” (p. 166).

Media

The media is, Gabriel asserts, very pro-Islam. Islamic apologist and those who fear what radical Muslims will do to them, their families, or their companies will not publicly criticize radical followers of Islam. “The fact is that the white flag of surrender is hanging from the buildings of , the Los Angeles Times, and many other prominent publications” (p. 193) that refuse to publish material that might be offensive to Muslims. A cartoon offensive to Muslims was published in Denmark, setting off violence throughout the world from radical Muslims. These attacks are pushing Western media outlets, which are afraid of offending radical Muslims (but not afraid of offending all other faiths), into silence.

Recruitment in U.S. Prisons

Prisons are fertile places for radical Muslims to proselyte . They play on the criminal psychological characteristics of the inmates . According to proselytes, to kill is OK, if it is for Allah. To molest children is OK, because Mohammed (as a grown man) consummated one of his marriages to a 9-year-old girl. And to torture, lie, and steal is OK if the purpose is to further Islam and to please Allah . All of that instruction appeals to the criminal psyche. Gabriel cites prison jihadists—such as the four gang members who, in 2007, pleaded guilty to conspiracy to attack synagogues and U .S . military installations in Los Angeles, California, and also pleaded guilty to armed robbery charges. All four of those gang members were part of a radical Muslim group called Jam’iyyat Ul-Islam (JIS) and were converted to Islam while in jail. Gabriel also notes that gang leader Kevin James started 170 Book Review: They Must Be Stopped by Brigitte Gabriel

JIS when he himself was an inmate at the California State Prison in Sacramento, California .

Conclusion For Brigitte Gabriel, the solution is simple: every individual must stand up and act. But perhaps there is too much apathy or disbelief in the West. Perhaps the West doesn’t really want to believe that Islam isn’t peaceful, tolerant, and nonaggressive. But regardless of what the West thinks, there have been more than 10,000 Islamic terrorist attacks worldwide since radical Islam spoke to the world on September 11, 2001 . The political left in the West still thinks that poverty, oppression, the Palestinian– Israeli conflict, the United States’s strong support of Israel, and America’s presence in Islamic countries drive the suicide bombers and other terrorists; but according to Gabriel, this belief is not reality. What’s driving the terrorists, according to Gabriel, is the Koran—Mohammed’s legacy and teachings—and pure Islam itself. The Western world must recognize and understand what is happening so that it can counter the wave of radicalism before it becomes too strong. For this reason, Brigitte Gabriel thinks they must be stopped. The Protection Project Journal of Human Rights and Civil Society 171

Book Review Radical Reform: Islamic Ethics and Liberation by Tariq Ramadan Caldwell Bailey

Since even before the September 11, 2001, terrorist attacks, many in Europe and the United States have looked critically at Islamic legal codes to find what they supposed were inherent defects in the foundational tenets of Islam. Such defects were thought by such researchers to be fundamentally at odds with modernity. This scrutiny has increased 100-fold since the attacks on the World Trade Center and the Pentagon. Many reams of paper have been devoted during the past nine years to attempting to answer questions such as “Why do they hate us?” and to explaining the lengths to which the monolithic Muslim world will go to protect a way of life that oppresses women, stifles political and economic growth, breeds hateful extremism, and demonizes other faiths . The message from those volumes is a chronicle of what has gone wrong over 1,400 years of Islamic history as Europe, then America, and next much of the rest of the world have experienced liberalization and religious reformation. It is an interesting—sometimes accurate, but not highly constructive—method of criticism. The reality, of course, is that there is little audience for works from an American or European printing house purporting to lay out a nuanced strategy to remake Islam from the outside and to base those changes on Western models of religious and societal behavior. Such an endeavor (to ignore the fact that it is simply impossible) denies the agency of Muslim scholars, jurists, and practitioners who do have the ability to organically and legitimately reform aspects of Islamic ethics and jurisprudence, as well as to reform their methods of formulation. It is a renewed engagement with the sources of Islamic law—in individual communities—by practicing Muslims and Muslim scholars that can bring about real reform in the way contemporary Muslims interact with, understand, and live their faith. Best- selling scare tactics do not aim to, and will not, achieve such goals. If such change is to come about, there will necessarily be a period of questioning of (a) sources and methods, (b) the way Islamic law is understood and practiced in the current time, and (c) how the shortcomings of yesterday and today can and should be remedied. An opening salvo in this debate is Tariq Ramadan’s Radical 172 Book Review: Radical Reform: Islamic Ethics and Liberation by Tariq Ramadan

Reform: Islamic Ethics and Liberation. Ramadan, through an examination of historical precedents and new definitions for textual sources and through a critical look at the hierarchical councils that have, in the past, determined norms and issued religious edicts (fatwa), seeks a foundational Islamic law that remains faithful to the spirit of Islam but is aware and appreciative of the world in which it inhabits and the practitioners it seeks to guide. In Ramadan’s conception, it makes no sense for scholars in Cairo to read the Quran and the Sunnah and, on the basis of that examination, to instruct a Muslim in Detroit, Michigan, on the most Islamic way to perform ablutions. The scholars in Cairo lack the context and the cultural knowledge to give such advice. The first shortcoming that Ramadan lays out for the reader in his examination of Islamic jurisprudence is a tendency toward overreliance on the texts themselves— the Quran and the Sunnah. Although Ramadan spends the entire second section of his book examining the ways in which al-Ghazali, Abu Hanifah, al-Shafi’i, and al-Shatibi elaborated specific frameworks for reading the texts and formulating fatwa, his point is not to remind the reader of inductive or deductive methods of reading the texts and issuing rulings . In fact, his goal is the complete opposite . Ramadan instead stresses the proximity of those jurists mentioned to the time and place of Prophet Muhammad. Ramadan argues that it was not the text that wholly informed the rulings and jurisprudential schools of those men, but rather an awareness of the necessities of their time or place and its proximity to that of the Prophet and his followers. In fact, Ramadan states explicitly that the farther one goes back in time, the more likely he or she will find that jurists naturally integrate their own judgment into rulings. He explains the following: What mainly determined the Companions’ and early scholars’ approach was their perfect knowledge of their society from within. Their natural attitude toward the texts implicitly presupposes such knowledge of the surrounding environment, enabling them to establish links, to devise adaptations, to “read” the text differently. This knowledge was endogenous and was so taken for granted that it did not compete with the knowledge that was seen as needing to be acquired, and thus exogenous (i .e ., that of scriptural sources) 1. The further in time that Islamic scholars have moved away from the original context of the Revelation (the Quran and Sunnah), the less confident they have become in interpreting and engaging the texts. Ramadan sees this development of relying solely on the texts as, in fact, contrary to the wishes of the Prophet, as indicated in Muhammad’s questioning of Mu’adh ibn Jabal before the latter was sent to Yemen. The Prophet asked ibn Jabal on what basis he would issue his rulings. After first answering that he would look to the Quran and then the Sunnah,

1 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (London: Oxford University Press, 2008), 79. The Protection Project Journal of Human Rights and Civil Society 173

ibn Jabal answered that if he found nothing to guide him in those sources, then he would “exert [himself] to [his] utmost to formulate [his] own judgment.”2 The Prophet praised him for this answer. Ibn Jabal was only moving a few hundred miles from the Hijaz (to Yemen), yet there was already recognition that the context in that country would be different and that ibn Jabal would need to rely on his own gathered knowledge of the place to make correct rulings. Keeping cultural, chronological, and societal contexts in mind when examining the texts for guidance, however, is not the sum total of Ramadan’s argument. The scope of what is considered texts, he argues, is too restricted, limiting the information available to inform the ‘ulama (Muslim legal scholars) in their decisions. Ramadan’s second criticism, therefore, is that a third book—what he calls “The Book of the Universe,” or the account of God’s creation—should be regarded on the same footing as that of the Quran and Sunnah when composing rulings. If the ultimate aim of the Quran is to promote good in human interactions, then how can nature—which God created as a gift to humanity and, therefore, is at its root essentially good—be left out of the elucidation of Islamic law? Nature holds signs for man from which man can derive God’s intention and give thanks for the good God has placed in the world, argues Ramadan. From this definition of nature, man (and ‘ulama in particular) can undertake “understanding with their hearts, and analyzing with their reason.”3 What is read and what is experienced carry the same weight in this vision of the universe, and it is thus to man’s detriment that he ignores his own surroundings—his own time and place in that creation. How, then, are the text scholars to go about their business? As Ramadan points out, gaining knowledge of the world was easy in the time of the Prophet and shortly thereafter. Information traveled slowly and was not terribly deep. What man understood of the world could be mastered by Muslim scholars, along with their knowledge of the written Revelation. Many Muslim scholars were, in fact, experts in other fields, such as medicine and chemistry, giving them a broader knowledge base and, thus, better understanding of how to interpret certain situations that are not addressed directly in the Quran. As time passed and as the physical sciences advanced to diversified and specialized fields, Muslim scholars were less able to acquire a nuanced grasp of those advancements while still maintaining their expertise in the texts. So, they focused on their textual learning and relegated other knowledge to second-class status. This practice has been especially true, Ramadan points out, with regard to the social sciences (such as anthropology and political science) for which answers are harder to quantify and right and wrong tends to change from one example to the next. Experts in the “hard sciences” (medicine, chemistry, and biology) are, today,

2 Ibid., 24. 3 Ibid., 90. 174 Book Review: Radical Reform: Islamic Ethics and Liberation by Tariq Ramadan

often called on to inform decisions made by ‘ulama on matters pertaining to each field, whereas experts in the social sciences are left out of the discussion primarily because they cannot come up with one “right” answer for all situations. Ramadan proposes a three-fold revision in the geography of the sources of Islamic law and jurisprudence. First, as stated earlier, the universe and the context in which the texts were written must be elevated to the same level, in terms of sources of law, as that of the Quran and Sunnah, giving equal weight to the Revelation and to society. Second, textual as well as contextual scholars (from both the empirical and social sciences) must participate equally in the development of rulings to properly take into account the nuance of the written and physical Revelations. Lastly, the ‘ulama must themselves pursue expertise in one field of human endeavor, be that economics, psychology, the arts, or other fields, so as to better engage in dialogue with the laymen who will help inform new decisions on the shape of Islam moving forward. This radical reform is no doubt a difficult task. As laid out by Ramadan, it will require (a) a new understanding of what constitutes Islamic texts, (b) an awareness of the nature of worldly expertise, (c) the inclusion of “contextual scholars” into the formulation of ethical boundaries, and (d) an acknowledgment that human reason is not to be feared. What this will mean, and the point that Ramadan is most anxious to make, is that Islam (defined in local and cultural contexts) must change itself from a reactive, defensive faith buried in texts into a self-confident, liberated religion that is engaged with the world on its own terms. Islam must, in Ramadan’s words, “transform” in a proactive manner rather than simply “adapt” to the circumstances in which its practitioners find themselves. What jumps out over the course of reading Radical Reform is that, perhaps, Ramadan and some of those vociferous, bestseller-list scare tacticians from Europe and the United States might have a modicum of common ground. Both parties begin from the principle that there is some reform needed in the way in which Islam, as an ethical guide to life, engages the world. They agree that something must be done about about Islam’s need for transformation and propose remedies to the situation. Common ground falls sharply away at this point, however. The message from the Western authors is that there is a fundamental deficiency in the text of Islam—that from the founding of the religion it has been devoted to principles of conquest, domination, oppression, and intolerance—and that Islam remains an intolerant monolith across the world. Those authors prescribe the solution of “reformation” in the 16th-century European sense of the word. The Protestant Reformation, which sought the personalization of faith, rejected any clerical authority such as the kind that has molded Islam over the centuries . That movement was a readymade solution to an intricate problem, and one that, in the Christian context, sprang not from conflicts with other religions and the world The Protection Project Journal of Human Rights and Civil Society 175

but from turmoil between the Catholic Church and the societies and people that it served . Ramadan’s view is of a religion that has allowed itself to become victim to forces beyond its control. To Ramadan, the texts themselves are valuable and worthy of continued reference. Today, however, as distinct from the time of their Revelation, Islam’s sacred writings lack a companion understanding and implementation of other sources of God’s will. This constraint is enforced by the ‘ulama, whose expertise is limited and whose fear of “outside influence” trumps the imperative for autonomous reasoning. The problem is, thus, interpretational, not foundational, and leaves room for Muslims to recognize and remedy problems or contradictions through their own agency. The idea of applying outside models as a way for Islam to understand itself in a new era is rejected out of hand as the very epitome of what an adaptive, reactive Islam has, to this point in modern world history, pursued. By reigniting debate about current societies, technologies, and sciences, Muslims themselves can move away from any reflexive clinging to what has been rigidly defined as “Islamic.” The problems of the age can be sought and solved. “Renewals should not be awaited, they should be planned and prepared for,” Ramadan writes.4 Left lacking are a few of the details of such a plan that, to an American or European audience, would make the plan seem feasible. Being that a monolithic Islam does not exist, who can serve as the leader of reform? Ramadan leaves this leadership to Muslim society and groups as a whole, an appropriately vague prescription but one that will do little to calm the fears of Europe, the United States, and elsewhere that those who would take up the mantle are not those whose faith is regressive and exclusionary . Should the Grand Mufti of al-Azhar set up a new council to formulate this new conception of Islamic jurisprudence? Would the imam of al-Aqsa mosque in Jerusalem hold the same sway? There are no answers to those questions, and thus, there is no rebuttal to the question of those incendiary Western authors: “Who will lead?” In the minds of the skeptical, groups such as and are the only apparent answers. Following directly from this question, Ramadan’s suggestion that new councils of textual and contextual scholars work together to determine new standards for Islamic ethics and jurisprudence in specialized fields will also raise questions. Although the purpose of the councils would be to give jurists a better understanding of the issues confronting them, scholars of the physical and social sciences, by their very participation, will in some ways seem to cede the autonomy of their work. How will those scholars, who at the same time may be pursuing potentially unprecedented cancer research, feel unhindered knowing there will be questions from their colleagues on the combined textual and contextual scholars councils?

4 Ibid., 154. 176 Book Review: Radical Reform: Islamic Ethics and Liberation by Tariq Ramadan

Can innovations be made if those who pursue them do so without an unburdened conscience? Stem cell research, crop modification, and other potentially beneficial avenues of research should not be limited by the potential for reprimand from one’s peers on religious-judicial grounds. But this problem seems to be the core of Ramadan’s argument that Islam should be a religion ahead of the curve, anticipating—with the help of the contextual scholars—the innovations about which there currently is uncertainty and fear. Therein lies another problem: if Islam is out in front of issues and everything is prescribed to be done a certain way, then that still places limitations on the work of innovators. It will be hard to balance competing restrictive and progressive forces, even if there is greater collaboration between the ‘ulama and scientists. The last section of the book (a) speaks to various case studies of the role of women in Islam, (b) explores the relationship between Islam and medicine as well as that of Islam and the environment, and (c) examines universal principles . This section applies the logic that is well laid out in the preceding parts of the book by providing more detail regarding the groups picked out for special scrutiny . For example, Ramadan explains that women are not an active force in the Quran and Sunnah because they were not participating in its Revelation or writing. Doctors in the Muslim world have, in fact, engaged in some of the active formulation of the ethics that Ramadan speaks of, such as in the publication of the Islamic Code of Medical Ethics, which, although informed by Islam, bases itself in universal medical norms . It feels to the reader as though Radical Reform could have had endless chapters covering all the fields that could be modified by a new approach to Islamic ethics. Ramadan has done a good job limiting himself to an exploration of the most important and potentially controversial of those ethical issues . What Ramadan has done is set a baseline for the exploration of new methods, and he has begun to ask questions about how challenges may be met by the Muslim community to progress from a fearful and reactive religion to an active, self- confident faith. The reform of Islamic ethics, jurisprudence, and elucidation of Islamic law will, however, require more than the steps and philosophic grounding that Ramadan lays out in Radical Reform. The work should be looked at as setting a framework for further elucidation of a process, just as Islamic scholars set a frame for their own initial engagement with the text. It is a piece of the puzzle in the intra-civilization dialogue about Islam—the outcome of which even the authors on the Western bestseller lists will not be able to ignore. The Protection Project Journal of Human Rights and Civil Society 177

Model Law against Domestic Violence

Preamble

Chapter I. General Principles and Definitions

Article 1. [Title]

The present Law may be cited as the [Law against Domestic Violence] of [name of State] [year of adoption].

Article 2. Commencement

The present Law shall come into force on [date].

Article 3. Objectives of the Law

This Law aims at guaranteeing the human rights of all women in the scope of domestic and family relations, with a view to protecting them against all forms of discrimination, exploitation, violence, cruelty, oppression, and negligence, by the following: • Classifying and defining domestic violence against women; • Recognizing the crime of domestic violence, providing for the appropriate sanctions, and establishing criminal liability; • Establishing measures for assistance and protection of women in the situation of domestic violence; • Ensuring efficient access to justice for the victims of domestic violence; and • Creating special Family Courts for domestic violence against women with civil and criminal competence to address the issue of violence against women. 178 Model Law against Domestic Violence

Commentary Source: The introductory sentence is based on Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 3, Paragraph 1. See also: • “The purpose of this law is (a) to prevent and reduce domestic violence in all its forms by appropriate legal measures, (b) to guarantee protection through legal measures to members of the family who are subject to domestic violence, paying particular attention to needs of children, the elderly, and the disabled.” (Source: Albania, Law No. 9669—On Measures against Violence in Family Relations [2006], Article 1) • “The purpose of this law is to regulate relationships arising in connection with the prevention of domestic violence, its revealing and bringing to an end, elimination of causes and consequences thereof, protection of victim’s rights, and imposition of liability on offenders with a view to ensure the equal rights of family members and to protect their rights and interests.” (Source: Mongolia, Law of Mongolia against Domestic Violence, Article 1 .1) • “The object of this Act is to reduce and prevent violence in domestic relationships, by—(a) recognizing that domestic violence, in all its forms, is unacceptable behavior; and (b) ensuring that, where domestic violence occurs, there is effective legal protection for its victims . This Act aims to achieve this object, by—(a) empowering the court to make certain orders to protect victims of domestic violence; (b) ensuring that access to the court is as speedy, inexpensive, and simple as it is consistent with justice; (c) providing for persons who are victims of domestic violence appropriate programmes, (d) requiring respondents and associated respondents to attend programmes that have the primary objective of stopping or preventing domestic violence, (e) providing more effective sanctions and enforcement in the event that a protection order is breached.” (Source: New Zealand, Domestic Violence Act [1998], Section 6, Subsections 1 and 2.) Any Court that, or any person who, exercises any power conferred by or under this Law must be guided in the exercise of that power by the aims specified in this Article. (Source: Based on New Zealand, Domestic Violence Act [1995, as amended in 1998], Article 6, Paragraph 3.) Article 16 by the Committee on the Elimination of Discrimination against Women (CEDAW) specifically demands that—“States Parties shall take all appropriate measures to eliminate discrimination against women in all matters The Protection Project Journal of Human Rights and Civil Society 179

relating to marriage and family relations […].” In Article 2, the obligations of the States Parties to CEDAW are set out in a more general way. It requires a State to take all the appropriate legal measures to eliminate discrimination against women. (Source: United Nations Convention on the Eliminations of All Forms of Discrimination against Women [1979].) CEDAW found that the lack of specific legislation to combat domestic violence “[…] constitutes a violation of human rights and fundamental freedoms […]” and concluded that “[…] the obligations of the State party set out in article 2 (a), (b) and (e) of the Convention extend to the prevention of and protection from violence against women […].” (Source: A .T . v . Hungary, communication No. 2/2003, views adopted 26 January 2005, Paragraph 9.3.) In this context, general recommendation No. 19 (1992) by CEDAW affirms that—“[…] discrimination under the Convention [on the Elimination of All Forms of Discrimination against Women] is not restricted to action by or on behalf of Governments […],” but that “[…] states may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.” In addition, the Committee recommends that—“State parties should take all legal […] measures that are necessary to provide effective protection of women against gender-based violence, including, inter alia, […] violence and abuse in the family […].” (Source: Committee on the Elimination of Discrimination against Women, general recommendation No. 19 [1992] on violence against women, Paragraphs 9 and 24 [t].)

Article 4. Underlying Principles of the Law

• This Law takes into consideration the following principles that guide its implementation and interpretation: • Respect for the human rights of women, their integrity, and their dignity; • Nondiscrimination and the principle of equality; • A gender-sensitive approach; • A victim-centered approach; and • The best interest of the child as a member of the family.

Commentary See also: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 2 . 180 Model Law against Domestic Violence

Interpretation of This Law: In the interpretation of this Law, its social purpose, and especially the peculiar conditions of the woman in a situation of domestic violence shall be taken into account. (Source: Brazil, Maria da Penha Law, Article 4.) Nondiscrimination: As stated in the preamble, this Law aims at protecting all women who are suffering domestic violence, regardless of their origin, race, religion, or any other personal or social condition or particular. All women shall be guaranteed the rights recognized herein. (Source: Based on Spain, Organic Act 1/2004—Integrated Protection Measures against Gender Violence, Article 17, Paragraph 1) Victim-Centered Approach: Officials related to the protection of victims, investigations, and judicial decisions pertaining to domestic violence shall, in the performance of their duties, take into consideration the psychological and physical conditions of the victims and their environment; respect their human rights regardless of their nationality, origin, race, religion, or any other personal or social condition; and give due consideration to ensuring their safety and to protecting their privacy . (Source: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act. No. 31 of 2001 [2001], Article 23, Paragraph 1 .) • Best Interest of the Child: The standard of the best interest of the child (a child-centered approach) can be seen in the following principles of this Law: • The Definition of Domestic Violence is expanded in connection to children (Article 5, Paragraph 3) . • Child-witnesses are not summoned to testify in the courtroom. Rather their testimony is read . If the Court considers their testimony inevitable, it shall be provided that the child-witness can give testimony outside a courtroom in a less stressful environment (Article 18, Paragraph 2) . • Protection Orders shall not be issued against a respondent who is under the age of eighteen (18) (Article 20, Paragraph 1— Commentary) . • Within the issuing of a Protection Order, the Court can decide on custody and/or specify and restrict the contact between the offender and the child involved (Article 24, Paragraph 1 [i] and [j]). • In determining an application for a Protection Order, the Court shall take into account the welfare of any child involved (Article 26). • Extension of Protection Orders to children (Article 30). The Protection Project Journal of Human Rights and Civil Society 181

• Provision for aggravated circumstances when the domestic violence is committed against children, in their presence, or against pregnant women (Article 35 [a] and [b]). The statutory limitation deadline is suspended in the cases of child-victims (Article 38) .

Article 5. Domestic Violence

(1) For the purpose of this Law, domestic violence against women is defined as any action, threat thereof, or omission that causes the woman’s death or injury, or any physical, psychological, sexual, or economic abuse or moral damage within the scope of a domestic relationship .

Commentary Source: Based on Brazil, Maria da Penha Law, Article 5; words changed. The 1993 United Nations Declaration on the Elimination of Violence against Women provides a similar definition for the broader category of violence against women, which states—“[…] the term ‘violence against women’ means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” (Source: United Nations, General Assembly Resolution 48/104 of 20 December 1993, Article 1.) See also aspects of domestic violence included in other laws: • Bulgaria, Protection against Domestic Violence Act (2005), Section 2: “[…] as well as the forcible restriction of individual freedom and of privacy […].” • Ghana, Domestic Violence Act (2007), Section 1: “[…] including the forcible confinement or detention of another person and the deprivation of another person of access to adequate food, water, clothing, shelter, rest, or subjecting another person to torture or other cruel, inhuman or degrading treatment or punishment; […] a sexual contact by a person aware of being infected with human immunodeficiency virus (HIV) or any other sexually transmitted disease with another person without that other person being given prior information of the infection.” • India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 3: “[…] harasses, harms, injures or endangers 182 Model Law against Domestic Violence

the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security […].” • Pakistan, Prevention of Domestic Violence Bill (2005), Section 2, Subsection 1 (g) [excerpt]: “[…] entry into the victim’s place of residence, without the victim’s consent, where the parties do not share the same residence […].” • Poland, Act on Counteraction of Domestic Violence (2005), Article 2, Item 2: “[…] destroys their dignity […].” • Romania, Law to Prevent and Fight against Domestic Violence, Article 2: “It is also considered domestic violence to encroach on women’s fundamental and freedom rights.” • Sierra Leone, Domestic Violence Act (2007), Section 2, Subsection 2: “[…] including any conduct that makes another person feel constantly unhappy, humiliated, ridiculed, afraid or depressed or to feel inadequate or worthless; […] undermines another person’s privacy, integrity or security; or (iii) detracts or is likely to detract from another person’s dignity or worth as a human being.”

(2) The forms of domestic violence include, but are not limited, to the following: a. Physical violence, understood as any behavior that offends the woman’s bodily integrity or health; b. Psychological violence, understood as any behavior that causes emotional damage and reduction of self-esteem, or that harms and disturbs full development, or that aims at degrading or controlling the woman’s actions, behaviors, beliefs and decisions, by means of threat, embarrassment, humiliation, manipulation, isolation, constant surveillance, constant pursuit, insult, intimidation, blackmail, ridicule, exploitation, and limitation of the rights to come and go, or any other means that cause damage to the woman’s psychological health and self-determination, or any series of acts that collectively cause a woman to fear for her safety; c. Sexual violence, understood as any behavior that constitutes sexual assault, irrespective of the nature of the relationship between the perpetrator and the victim; that includes forcing the woman to witness, maintain, or participate in unwanted sexual intercourse, by means of intimidation, threat, coercion, or the use of force; that includes the woman to commercialize or to use, in any way, her The Protection Project Journal of Human Rights and Civil Society 183

sexuality; that forces her to marry, to become pregnant, to have an abortion, or to engage in prostitution, by means of coercion, blackmail, bribe, manipulation, intimidation, or other illegal means; d. Economic abuse, understood as any behavior that constitutes deprivation of economic or subtraction of movable or immovable property in which she has a material interest and that results in hiding or hindering the use of property or in damaging or destroying property in which the woman has a material interest; and e. Moral violence, understood as any behavior that constitutes slander, defamation, or insult; or verbal attacks, profanity, name-calling, and other violent harassment .

Commentary Sources: Brazil, Maria da Penha Law, Article 7; (d) “Economic abuse” is based on a combination of the former and Ghana, Domestic Violence Act (2007), Article 1 (b) (iii); (e) “Moral violence” is based on a combination of the former and Bosnia and Herzegovina, Law on Protection from Domestic Violence (2005), Article 6 (5) . Similar Comprehensive Definitions of Domestic Violence: See the laws of Albania, Law No. 9669—On Measures against Violence in Family Relations, Article 3, Points 1 and 2; Bosnia and Herzegovina, Law on Protection from Domestic Violence (2005), Article 6; Georgia, Law of Georgia on the Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 3 together with the definitions in Article 4; Ghana, Domestic Violence Act (2007), Section 1; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 3; Mongolia, Law of Mongolia against Domestic Violence (1999), Article 4.1.1, 4.1.5–4.1.7; New Zealand, Domestic Violence Act (1998), Section 3; Pakistan, Prevention of Domestic Violence Bill (2005), Section 2, Subsection 1 (g); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Sections 3 and 5; Sierra Leone, Domestic Violence Act 2007, Section 2, Subsection 2 (together with Section 1); Slovenia, Family Violence Prevention Act, Article 3; Trinidad and Tobago, Domestic Violence Act (1999), Section 3. Psychological Violence: “Because the existence of psychological violence and abuse might be difficult to prove, it is advisable to utilize the expertise of relevant professionals (including psychologists and counselors, advocates and service providers for victims of domestic violence, and academics).” (Source: United Nations Department of Economics and Social Affairs/Division for the Advancement of Women, Handbook for Legislation on Violence against 184 Model Law against Domestic Violence

Women [Advanced Version 2009], Chapter 3.4.2.1.) Sexual Violence: The term “sexual assault” covers a range of crimes, from sexual molestation to rape. The perpetrator’s behavior may include any behavior that violates the victim’s bodily integrity and/or her sexual autonomy. Thus, any such act as described in Paragraph 2 (c) shall constitute sexual violence against a woman, irrespective of the nature of the relationship between the perpetrator and the victim . Movable or Immovable Property: Movable or immovable property shall include any of the woman’s objects, working instruments, personal documents, property, assets, and economic rights or resources, including those intended to satisfy her needs . (Source: Brazil, Maria da Penha Law, Article 7 [V].)

(3) Without limiting Paragraph (2) of this Article, a person psychologically abuses a female child, if that person— a. Causes or allows the child to see or hear the physical, psychological and moral, or sexual abuse of a person with whom the child has a domestic relationship; or b. Places the child, or allows the child to be placed, at real risk of seeing or hearing that abuse occurring and as a result causes actual or imminent harm to the child .

Commentary Source: Based on New Zealand, Domestic Violence Act (1998), Article 3, Paragraph 3; words added. Similar Provision: Slovenia, Family Violence Prevention Act, Article 4, Paragraph 2: “Children are victims of violence, even if they are only present when violence is exerted against other family members, or if they live in an environment where violence is exerted.” Nonpunishable Participation: For the purpose of this paragraph, the person who suffers that abuse is not regarded as having caused or allowed the child to see or hear the abuse, or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse. (Source: Based on New Zealand, Domestic Violence Act [1998], Article 3, Paragraph 3.)

(4) A single act may amount to domestic violence .

Commentary Source: Ghana, Domestic Violence Act (2007), Section 5, Subsection 1. The Protection Project Journal of Human Rights and Civil Society 185

Identical Provisions: New Zealand, Domestic Violence Act (1998), Section 3, Subsection 4 (a); Sierra Leone, Domestic Violence Act 2007, Section 4, Subsection 1.

(5) A number of acts that form a pattern of behavior may amount to domestic violence even though some or all of the acts, when viewed in isolation, may appear minor or trivial .

Commentary Source: Ghana, Domestic Violence Act (2007), Section 5, Subsection 2. Identical Provisions: New Zealand, Domestic Violence Act (1998), Section 3, Subsection 4 (b); Sierra Leone, Domestic Violence Act 2007, Section 4, Subsection 2 .

Article 6. Use of Terms in the Law

In this Law, unless the context otherwise requires— “Applicant” means a person who applies for protection under this Law, a person on whose behalf an application is made, or a person who is granted a Protection Order. “Child” means a person under the age of eighteen (18) years who is living as a dependent of the family of the victim or the offender . “Complainant” means the victim of domestic violence herself or any other person who makes a complaint to the police under Article 10. “Courts” shall mean specialized Courts for Domestic Violence as in Article 14. “Domestic relationship” means a family relationship, a relationship akin to a family relationship, or a relationship in a domestic situation that exists or has existed between a complainant and an offender and includes a relationship where the complainant— • Is or has been married to the offender; • Is engaged to the offender; • And the offender are parents of a child, are expecting a child together, or are foster parents to a child; • Is a parent, is an elderly blood relation, or is an elderly person who is by law a relative of the offender; • Is a domestic worker in the household of the offender; • Lives in or attends a public or a private care institution and is under the care and control of the offender; or 186 Model Law against Domestic Violence

• Is in a relationship determined by the Court to be a domestic relationship. “Marriage” means an institution recognized under any law. “Offender” means a person against whom a complaint of domestic violence is filed. “Place of safety” means the premises where the welfare of a victim of domestic violence is assured . “Respondent” means the person against whom a Protection Order or an Emergency Protection Order is sought or made . “Shelter” means a temporary residence for domestic violence victims, where they are provided with rehabilitation and protection services. “Victim” means a victim of domestic violence, including alleged victims of domestic violence .

Commentary Victim: “The term ‘victim’ shall not assert that women and girls are inherently passive and vulnerable, and it shall not preclude the possibility of resistance and/or coping at the same time assaults take place, as well as in their aftermath. Instead, it shall only mean that one’s rights to bodily integrity were violated.” (Source: United Nations Expert Group Meeting [Division for the Advancement of Women], Good practices in legislation on violence against women, 26–28 May 2008, Terminology, page 12 .)

Article 7. Prohibition of Domestic Violence

(1) Under this Law, it is prohibited for any person in a domestic relationship to engage in any act of domestic violence .

Commentary Source: Based on Sierra Leone, Domestic Violence Act 2007, Section 2, Subsection 1. Similar Provision: Ghana, Domestic Violence Act (2007), Section 3 . “Relationships between family members shall be based on humane principles which include mutual respect, support and devotion, maintaining harmonious relationships while developing and demonstrating their best traits with particular emphasis on child protection, gender equality and voluntary entry into marriage […]. In their relationships, family members shall respect the rights, freedoms and safety/security of other family members in a manner The Protection Project Journal of Human Rights and Civil Society 187

that shall not be restrictive, set limits or prevent the exercise of the rights and freedoms guaranteed to family members in accordance with the existing laws. Family members shall refrain from harming the physical or psychological integrity of another family member; injury and discrimination on the basis of one’s gender or age; and subordination on any basis.” (Source: Bosnia and Herzegovina, Law on the Protection from Domestic Violence, Article 5.)

(2) The use of violence in the domestic setting is not justified on the basis of consent .

Commentary Source: Ghana, Domestic Violence Act (2007), Section 4 . Other Prohibited or Invalid Defenses under This Law: Being under the influence of alcohol, any illicit drug, or any other mind-altering substance shall not be a defense under this Act. (Source: Philippines, Anti-Violence against Women and Their Children Act [2004], Republic Act No. 9262, Section 27.) Furthermore, marriage shall never be a defense to sexual assault.

Article 8. Rights of the Victim

The victim of domestic violence shall be guaranteed the following rights:

(1) Right to Privacy: The confidentiality and privacy of every woman in a situation of domestic violence shall be ensured, especially with regard to the investigation and any judicial proceedings, as well as with regard to medical proceedings and care. This right shall include the nondisclosure of the victim’s sexual history in any Court proceedings .

Commentary Source: Based on United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985), Paragraph 6 (d) . Right to Privacy with Regard to Investigation and Judicial Proceedings: The Court proceedings about domestic violence shall not be published (see the exceptions in Article 37, Paragraphs 3 and 4) . The Court, the police, and the Prosecutor’s Office shall not disclose the name and residence of the victim to other persons . Rights to Privacy with Regard to Medical Proceedings and Care: The medical and health status information related to victims of domestic violence 188 Model Law against Domestic Violence

shall be kept confidential. They shall be kept private, including from members of their families. Any health staff may disclose information about the health of the victim only to people who need to be involved in the medical examination and treatment, or with the express consent of the victim.

(2) Right to Be Treated with Respect and Dignity: It shall be provided that police, law enforcement forces, and Courts show and treat every victim of domestic violence with compassion, respect, and dignity to avoid revictimization.

Commentary Source: Philippines, Anti-Violence against Women and Their Children Act (2004), Republican Act No. 9262, Section 35 (a). See also: United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985), Paragraph 4 .

(3) Right to Obtain a Divorce and Live Apart: Every woman in the situation of domestic violence shall have the right to set up her own household, to live separately, and to claim a divorce from her husband.

Commentary Source: Based on Iceland, Law in Respect of Marriage—No. 31 of April 14, 1993, Article 40 . Identical Provision: Mongolia, Law of Mongolia against Domestic Violence, Article 12 .1 .6 .

(4) Right to Be Represented and Assisted by a Lawyer at No Charge: Every woman in a situation of domestic violence shall be guaranteed free, specialized legal assistance at all stages of the investigation and judicial proceedings .

Commentary This right shall be accorded to the successors in interest in the event of a victim’s death. Legal Assistance: The assistance and representation shall be specialized, so that the likelihood of a positive outcome is provided. And the assistance shall be humanized, so that revictimization is avoided. Also, if a case requires, this right shall include free access to a qualified and impartial interpreter. See also: In addition to a victim’s right to free legal counsel, the law of Slovenia provides for a victim’s assistant: “ The Protection Project Journal of Human Rights and Civil Society 189

(1) Victims of violence can by themselves choose a person who can represent them in all violence-related proceedings (hereinafter: assistant) . (2) It suffices for the assistant to be present in the proceedings mentioned in the above paragraph that the victim declares prior to the beginning of the proceedings or at the proceedings itself that he or she wants that a specific person accompanies him or her and that he or she wants that they are present in the proceedings. (3) The assistant can be any adult person that is not considered in the proceedings as the perpetrator of violence . (4) The assistant helps the victim in protecting his or her own integrity in the proceedings before authorities and organizations, and also helps in finding the solution as well as providing psychological support for the victim . (5) The authority that governs the proceedings can prohibit a person to accompany the victim in the proceedings if they do not meet the conditions from the paragraph 3 of this Article, or if there exists a probability that the person will not be able to carry out the tasks from the above paragraph according to the family relationships or any other relations with the victim or perpetrator of violence.” (Source: Slovenia, Family Violence Prevention Act, Article 7 .)

(5) Right to Be Informed of All Procedural Acts: The victim of domestic violence shall be informed of all procedural acts related to the aggressor, especially those related to entry and exit from prison .

Commentary Source: Based on Brazil, Maria da Penha Law, Mechanisms of the New Law. Exit from Prison: The United Kingdom’s Domestic Violence, Crime and Victims Act (2004) provides that certain information shall be provided to victims if a Court has convicted a person of a sexual or violent offense and a relevant sentence was imposed on the offender with respect to the offense. If the victim so requests, he or she “shall be provided with information about any license conditions or supervision requirements to which the offender is to be subject in the event of his release.” If a victim wishes to receive the information, the relevant authority “must take all reasonable steps— 190 Model Law against Domestic Violence

a. To inform the person whether or not the offender is to be subject to any license conditions or supervision requirements in the event of his release, b. If he is, to provide the person with details of any license conditions or supervision requirements which relate to contact with the victim or his family, and c. To provide the person with such other information as the relevant local probation board considers appropriate in all the circumstances of the case.” (Source: United Kingdom, Domestic Violence, Crime and Victims Act [2004], Section 35, Paragraphs 1, 3, 5, and 7.)

(6) Right to Cessation of Domestic Violence: Every woman in a situation of domestic violence shall have the right to have protective measures adopted to prevent further violence; she shall have the right to be taken to a medical facility for treatment and to be referred to a place of safety.

Commentary Source: Based on Mongolia, Law against Domestic Violence, Article 12.

Article 9. Prevention

(1) The State through its authorized bodies shall support and ensure introduction and application of mechanisms for the prevention of domestic violence .

Commentary Source: Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 6, Paragraph 2 . See also: “The national government and local public entities shall have the responsibility of preventing spousal violence and providing appropriate protection for victims, including assistance in making them self-reliant.” (Source: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act. No. 31 of 2001 [2001], Article 2.) Prevention: The State shall focus on all three types of prevention: (a) primary prevention, which means stopping the violence before it occurs; (b) secondary prevention, as an immediate response after the violence has occurred to limit its extent and consequences; and (c) tertiary prevention, which shall include longer-term care and support for those who have suffered domestic violence . Although the emphasis of Paragraph 2 of this Article is on primary prevention, the other types of prevention are addressed in Article 42 . The Protection Project Journal of Human Rights and Civil Society 191

(2) Mechanisms for prevention of domestic violence shall include, but are not limited to, the following: a . Promotion of studies, research, statistics, and other relevant information on the causes, consequences, and frequency of domestic violence against women, for the systematization of data, to be unified nationally, and the regular evaluation of the results of the adopted measures; b. Respect, in the social communication media, for the ethical and social values of the person and the family, avoiding stereotyped roles that legitimize or encourage domestic violence in compliance with the right to free speech; c . Promotion and conduct of educative campaigns to prevent domestic violence against women, which disseminate ethical values of unrestricted respect to the dignity of every human being with a gender and race or ethnicity perspective; d. Emphasis, in the school syllabi of all levels of education, on contents related to human rights, gender, and race or ethnicity equity and the problem of domestic violence against women; e . Sensitization and training for health care personnel, promotion of common protocols, and development of common health care indicators for monitoring gender violence and for a fast and early detection of violence against women in the health care system; f. Implementation of specialized police assistance for women; and g. Dissemination of this Law and the instruments of protection of women’s human rights, including the distribution of information in a form understandable by the general public on the rights of victims, the protection of such rights, and the legal consequences for abusers.

Commentary Sources: Based on Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 8. In addition (e) is inspired by Spain, Organic Act 1/2004 on Integrated Protection Measures against Gender Violence, Articles 15–16; and (g) is inspired by Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 6, Paragraph 3 . Similar Provision: Georgia, Law of Georgia on the Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 6 . 192 Model Law against Domestic Violence

Studies and Research: States Parties shall encourage the compilations of statistics and research on the extent, causes, and effects of violence and on the effectiveness of measures to prevent and deal with violence. (Source: United Nations Committee on the Elimination of Discrimination against Women, general recommendation No. 19 [1992], Paragraph 24[d].) Inter alia, the police register, as described in Article 12 of this Law, and the Court’s record of applications and issued Protection Orders, as described in Article 19, might be used as sources for any research and study. Also, case numbers provided by nongovernmental organizations, academics, and other actors engaged in research shall be considered. “In order to contribute to the prevention of spousal violence and the protection of victims, the national government and local public entities shall endeavor to promote research and study concerning methods, etc . for guidance for the rehabilitation of perpetrators and the restoration of the physical and psychological health of victims, as well as to foster personnel pertaining to the protection of victims and enhance their qualifications.” (Source: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act . No . 31 of 2001 [2001], Article 25.) Evaluation: The Government shall adopt, implement, and periodically review and analyze legislation to ensure its effectiveness in eliminating violence against women, emphasizing the prevention of violence and the prosecution of offenders . (Source: Beijing Declaration and Platform for Action [1995], Paragraph 124 [d].) Media: The Government shall raise awareness of the responsibility of the media to promote nonstereotyped images of women and men, as well as to eliminate patterns of media presentation that generate violence, and shall encourage those responsible for media content to establish professional guidelines and codes of conduct. The Government shall also raise awareness of the important role of the media in informing and educating people about causes and effects of violence against women and in stimulating public debate on the topic . (Source: Beijing Declaration and Platform for Action [1995], Paragraph 125 [j].) Also, the Government shall encourage the media (a) to examine the effect of gender role stereotypes, including those perpetuated by commercial advertisements that foster gender-based violence and inequalities, and how they are transmitted during the life cycle; and (b) to take measures to eliminate those negative images with a view promoting a violence-free society. (Source: Beijing Declaration and Platform for Action [1995], Paragraph 129 [d].) Within the requirements of journalistic objectivity, reports concerning violence against women shall do the utmost to defend human rights and the The Protection Project Journal of Human Rights and Civil Society 193

freedom and dignity of the female victims of gender violence and their children . In particular, the graphic design of such reports shall pay special attention to the sensitivity of the information . (Source: Spain, Organic Act 1/2004—Integrated Protection Measures against Gender Violence, Article 14 .) Educational Curricula: The Government shall adopt all appropriate measures, especially in the field of education, to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices, and all other practices based on the idea of the inferiority or superiority of either sex and on stereotyped roles for men and women. (Source: Beijing Declaration and Platform for Action [1995], Paragraph 124 [k].) “The human rights of women and girls, the promotion of gender equality, and in particular, the right of women and girls to be free from violence, shall be incorporated at all levels of education, from kindergarten to the tertiary level . It shall be compulsory for all students. In addition, derogatory stereotypes and discriminatory attitudes toward women shall be eliminated from educational curricula, and textbooks shall be revised to conform to this principle.” (Source: United Nations Department of Economic and Social Affairs/Division for the Advancement of Women, Handbook for Legislation on Violence against Women [Advanced Version 2009], Chapter 3.5.3.) “In addition, the ability to resolve conflicts in a non-violent way shall be taught. It is advisable to adjust the content of the lessons to the age of the students: • Pre-school education might seek to develop conflict-solving ability. • Primary education shall help the students to become skilled in the peaceful solution of conflicts and to understand and defend sexual equality. • Compulsory secondary education will help develop the students’ ability to relate peacefully to others and to understand, value, and defend the principle of equal opportunities between men and women. • Upper secondary education and professional training shall develop the students’ ability to consolidate their personal, social and moral maturity, so they act responsibly and independently, and to analyze and criticize gender inequalities and foster real, effective equality between men and women. • Universities shall incorporate and encourage teaching and research on gender equality across the full range of academic studies and activities.” 194 Model Law against Domestic Violence

(Source: Spain, Organic Act 1/2004—Integrated Protection Measures against Gender Violence, Article 4 .) Health Care: The objective for this kind of prevention measure is the early and optimized detection of violence against women, the identification of victims, and the improved care and recovery of women suffering from gender violence . Health care personnel shall receive special training in handling domestic violence cases and for detecting the specific indications of violence. Common protocols and indicators, guidelines, directives, and standardized forms, designed by the medical association or the National Health Service, will help doctors, nurses, and other health care personnel to comply with these objectives. Specialized Police Assistance: The purposes for establishing specialized police assistance for women, who are victims of violence, are to create an environment that encourages women victims to report the incidents of violence and abuse and to prevent revictimization during the process of investigation. In addition, Paragraph 4 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides, “Victims should be treated with compassion and respect for their dignity.” (Source: United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [29 November 1985].) Dissemination of This Law: The dissemination of this Law serves the purpose of informing victims about their rights regarding assistance, protective measures, and remedies available to them. It also serves the purpose of informing perpetrators of the expected consequences and penalties for their actions . To simplify measures, the dissemination of a recapitulation or synopsis of the assistive and protective measures and of the rights of victims is preferable over a dissemination of the complete text of this Law. Also, standardized forms for the application of a Protection Order, Residence Order, and Emergency Protection Order shall be issued by the Government, with the aim to alleviate the application process for the victim and to minimize mistakes . All these documents and forms, together with a copy of this law, shall be distributed to police stations, shelters, safe houses, and other service providers for victims of violence, and they shall be available online. “The State shall pay attention to educating and disseminating this law to make citizens throughout the country aware of the provisions of this law, especially on the responsibilities within the households and respecting the rights of each other […].” (Source: Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims [2005], Article 33.) The Protection Project Journal of Human Rights and Civil Society 195

Chapter II. Complaints

Article 10. Filing of a Complaint

(1) A victim of domestic violence or any other person with information about domestic violence may file a complaint about the domestic violence.

Commentary Eligibility to File a Complaint: Some countries have an additional provision in their domestic violence laws that explicitly authorizes social welfare officers or health care providers (e.g., doctors) to file a domestic violence complaint. Examples of such optional provision: “(1) Authorities and organizations as well as non-governmental organizations, which in their work find out the circumstances on basis of which it is possible to assume that violence is being inflicted, are obliged to immediately inform the Social Work Centre, except in cases when the victims themselves oppose expressly and there is no suspicion of criminal offence that should be prosecuted under compulsory powers. (2) Anyone and in particular social workers or health care workers together with the personnel working in educational and care institutions as well as educational institutions, have to—regardless of the provisions on protection of business secrecy—immediately inform Social Work Centre, the police or the State Prosecutor’s Office when there exists a suspicion that the child is a victim of violence.” (Source: Slovenia, Family Violence Prevention Act, Article 6— Obligation of Reporting.) or “(2) Physicians or other medical personnel who detect, during the course of their duties, a person whom they consider to have suffered from injuries or medical conditions resulting from spousal violence may notify the fact to a Spousal Violence Counseling and Support Center or a police officer. In such cases, they shall endeavor to respect the intentions of the person in question. (3) Provisions of the Penal Code […] concerning the unlawful disclosure of confidential information and provisions of other acts concerning confidentiality obligations shall not be construed as those preventing notification under the preceding two paragraphs. (4) Physicians or other medical personnel who detect, during the course of their duties, a person whom they consider to have suffered from injuries or medical conditions resulting from spousal violence shall endeavor to provide 196 Model Law against Domestic Violence

the person with the information at their disposal concerning the use of Spousal Violence Counseling and Support Centers, etc.” (Source: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act No . 31 of 2001 [2001], Article 6.) Even other countries make the reporting of domestic violence mandatory: “Healthcare providers and social workers, educators, medical institutions, educational institutions, other institutions and bodies, as well as nongovernmental organizations that, during the course of carrying out their duties, learn of occurrences of domestic violence shall have the responsibility to immediately report such cases to the police. […] Failure to report domestic violence shall constitute an offence.” (Source: Bosnia and Herzegovina, Law on Protection from Domestic Violence [2005], Article 7.) or “Any person who omits to report a case of violence against a minor or a person having severe mental or psychological deficiencies, which came to his knowledge, shall commit an offence and in case of conviction, shall be liable to imprisonment up to two years or to a fine up to one thousand pounds or to both such penalties.” (Source: Cyprus, Violence in the Family [Prevention and Protection of Victims] Laws 2000 and 2004, Section 35A.)

(2) If the victim is a female child, the complaint may be made by one of the parents.

(3) Where a victim is, for any reason, unable to file a complaint personally, a member of the victim’s family may file a complaint on behalf of the victim.

(4) Where a person who could have been a complainant under this Law has died, the complaint may be made by the deceased person’s personal representative or by a member of the deceased’s family or any other person competent to represent the deceased .

(5) A complaint of domestic violence shall be filed with the police at the place where— a. The victim resides; b. The victim is residing temporarily, when she has left her usual place of abode; c. The offender resides; or d . The domestic violence occurred or is occurring .

Commentary Source: Based on Sierra Leone, Domestic Violence Act (2007), Section 5; words added. The Protection Project Journal of Human Rights and Civil Society 197

(6) A complaint may be submitted in various forms, including orally, in writing, and by telephone.

Commentary Source: Mongolia, Law of Mongolia against Domestic Violence, Article 7.5.

(7) No person who gives any such information in good faith shall incur any civil or criminal liability for giving such information.

Commentary Sources: Combination of Malaysia, Domestic Violence Act (1994), Section 18, Paragraph 2; and Pakistan, Prevention of Domestic Violence Bill (2005), Article 5, Paragraph 2 . Similar Provision: India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 4, Subsection 2. Good Faith: This paragraph is not applicable to false accusations made with the intention to mislead the police . Purpose: A victim or other complainants might be dissuaded from filing a complaint because of a fear of not being believed or of being confronted with an offense of false accusation, if the investigating police do not find evidence for domestic violence . The purpose of this paragraph is to encourage complaints that are filed in good faith, thereby to indirectly increase protection for victims of domestic violence .

Article 11. Police Assistance

(1) In case of imminent or actual domestic violence against a woman, the police authority that learns of the occurrence shall immediately adopt the appropriate legal measures .

Commentary Source: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 10. Similar Provision: “When, following notification or by other means, the police believe that there is a case of spousal violence, they shall endeavor to take any necessary measures pursuant to the provisions of the Police Act […] and other laws and regulations in order to prevent the victim from suffering harm from spousal violence, such as stopping the violence or providing protection to the victim, etc.” (Source: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act. No. 31 of 2001 [2001], Article 8.) 198 Model Law against Domestic Violence

Similar Provisions: Georgia, Law of Georgia on the Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 16, Paragraph 3; Ghana, Domestic Violence Act (2007), Section 7; Sierra Leone, Domestic Violence Act (2007), Section 6 . Appropriate: The appropriateness of the measures taken has to be evaluated on an individual basis in considering the circumstances of the case, the person who made that report, and the protection that the victim requires. The measures shall aim at eliminating the domestic violence immediately and with the utmost probability.

(2) In all other cases of domestic violence, the police officer shall respond promptly and shall offer all the assistance and protection that the circumstances of the case or of the person require, even when the person reporting is not the victim of the domestic violence .

Commentary Source: Based on Sierra Leone, Domestic Violence Act (2007), Section 6. Promptly: Shall mean without delay.

(3) Assistive measures shall include, but are not limited to— a. Guaranteeing police protection; when necessary, communicating the occurrence immediately to the Prosecutor’s Office and the Judiciary Branch;

Commentary Source: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 11.1. b. Ensuring the safety of the person reporting the domestic violence;

Commentary Source: Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 16, Paragraph 3 (g) . The person reporting the incident of domestic violence might not always be the victim herself, but could be a family member, a friend, or a neighbor. If the circumstances of the case require the protection of that person, the police are obliged to offer the necessary protection and to ensure that the identity of that person is not disclosed to the offender . c . Assisting the victim in the preparation of any kind of Protection Order under this Law; The Protection Project Journal of Human Rights and Civil Society 199

Commentary Source: Based on Pakistan, Prevention of Domestic Violence Bill (2005), Article 6 (5) . d. Upon request of the victim or in case of necessity, ensuring transfer of the victim to a medical care facility;

Commentary Source: Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 16, Paragraph 3 (d) . Similar Provisions: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 11 (II); Belize, Domestic Violence Act (Revised Edition 2000), Section 40 (a); Ghana, Domestic Violence Act (2007), Section 8, Subsection 1 (c); Malaysia, Domestic Violence Act (1994), Section 19, Subsection 1 (c); Mongolia, Law of Mongolia against Domestic Violence, Article 9.1.5; Pakistan, Prevention of Domestic Violence Bill (2005), Section 6, Subsection (2); Sierra Leone, Domestic Violence Act (2007), Section 7, Subsections 1 (c) and 2. The victim of domestic violence shall be allowed to be treated or examined by a forensic doctor without the consent of any other party, such as a male relative . Medical Assistance: A victim of domestic violence who is assisted by the police to obtain medical care and treatment shall be entitled to free medical treatment . (Source: Ghana, Domestic Violence Act [2007], Section 8, Subsection 3 .) Medical Care: In the case of sexual violence, the necessary and appropriate medical procedures shall include inter alia emergency contraception services, prophylaxis of sexually transmitted diseases and of acquired immune deficiency syndrome (AIDS) . (Source: Brazil, Maria da Penha Law, Article 9, Paragraph 3 .) e. Upon request of the victim or in case of necessity, ensuring transfer of the victim and her children to a shelter or safe place; and

Commentary Source: Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 16, Paragraph 3 (e) . Similar Provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 40 (b); Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 11 (III); Ghana, Domestic Violence Act (2007), Section 8, Subsection 1 200 Model Law against Domestic Violence

(d); Malaysia, Domestic Violence Act (1994), Section 19, Subsection 1 (b); Mongolia, Law of Mongolia against Domestic Violence, Article 9.1.5; Pakistan, Prevention of Domestic Violence Bill (2005), Section 6, Subsection (3); Sierra Leone, Domestic Violence Act (2007), Section 7, Subsection 1 (d). In case of transfer to another location, to ensure that the victim takes her personal belongings from the place of occurrence or residence, and, if necessary, to accompany the victim to ensure her safety .

Commentary Sources: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 11.4; Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 16, Paragraph 3 (f); Malaysia, Domestic Violence Act (1994), Section 19, Subsection 1 (e). Similar Provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 40 (c); Ghana, Domestic Violence Act (2007), Section 8, Subsection 1 (e); Sierra Leone, Domestic Violence Act (2007), Section 7, Subsection 1 (e).

(4) The police shall form a team of specialized police personnel to assist victims of domestic violence and to deal with preventing and combating the crimes and offenses of domestic violence .

Commentary Sources: Based on Mongolia, Law of Mongolia against Domestic Violence, Article 6.1.3; Pakistan, Prevention of Domestic Violence Bill (2005), Section 4. Similar Provision: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 7, Paragraph 1 . Composition: The specialized team shall consist of male and female police officers. Humanization: The domestic violence team shall be trained in gender sensitivity and in dealing with traumatized victims. See also: The Mongolian law also specifies that the police conduct, “on a regular basis and in accordance with a concrete program, training on a crime and offense of domestic violence, methods of their handling, rights of victims and duties of policemen” and “to monitor, on a permanent basis, a status of the handling of the crimes and offenses of domestic violence, and the performance of policemen […] to take pertinent measures.” (Source: Mongolia, Law of Mongolia against Domestic Violence, Article 6 .1 .1 and 6 .1 .4 .) The Protection Project Journal of Human Rights and Civil Society 201

Article 12. Duties of the Police after Receiving a Complaint

(1) In all cases of domestic violence, after registering the occurrence, the police authority shall immediately— a. Hear the victim; b. Advise the victim of her rights and the services available to her; c . Collect all the evidence that can serve to clarify the fact of domestic violence and its circumstances; d. Determine the victim’s physical condition and request subsequent examination by a medical expert; e. Hear the aggressor and the witnesses, including children; f . Identify the aggressor, add his or her criminal records to the report, and indicate the existence of arrest warrants or records of other police occurrences against him or her; and g . Within the legal period of time, send the complete police report to the Judge and the Prosecutor’s Office.

Commentary Source: Based on Brazil, Maria da Penha Law, Article 12; (b) is inspired by Article 11(I) of the same law. Similar Provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 40 (Assistance to Victims of Domestic Violence) and Section 41 (Preparation of Reports); Ghana, Domestic Violence Act (2007), Section 8; Mongolia, Law of Mongolia against Domestic Violence, Article 9; Sierra Leone, Domestic Violence Act (2007), Section 7, Subsection 1; Trinidad and Tobago, Domestic Violence Act (1999), Sections 21 and 23A. Register: An official record of the incidents of domestic violence shall be kept. Irrespective of whether action is taken, such record shall include (a) the first information received about the incident of domestic violence, including the nature of violence and the number of victims; (b) the assistance, if any, offered to the victim; (c) the action taken; (d) where applicable, the reason for not taking action; (e) where applicable, the reason for the victim’s refusal of police assistance; (f) where applicable, the grounds for entering any premises; and (g) the name and contact information of the service provider, if any, from whom the victim sought help. The register shall not be open to the general public. (Source: Based on Pakistan, Prevention of Domestic Violence Bill [2005], Article 6 [5]; additional words added.) 202 Model Law against Domestic Violence

Hearing and Interviews: The victim, the offender, and the witnesses, including children, shall be interviewed in separate rooms to ensure that they have an opportunity to speak freely and without fear. Special arrangements and trained officers shall be available for the hearing of child-witnesses with respect to their special needs . Advice of Rights and Services Available to Victims: From the first contact with the police, the victim/complainant shall be informed about her right to various forms of assistance for herself and her family (including medical assistance and shelter), her right to apply for a Protection Order, and her right to have access to free legal services. The information shall be provided in a language that the victim/complainant understands . If the victim/complainant cannot read, she shall be briefed by a competent authority. “Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.” (Source: United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [29 November 1985], Paragraph 15.) Examination of the Victim’s Body: The police shall advise the victim to allow a timely examination. The examination shall be conducted through a well-trained doctor or medical professional in a private and comfortable environment to avoid revictimization .

(2) The police shall not consider a domestic violence case to be inferior to other cases of violence .

Commentary Source: Georgia, Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 16, Paragraph 1, Sentence 2 .

(3) In all cases of domestic violence, the competent police authorities that conduct the preliminary investigation are not allowed to communicate in any way the first name and surname of the victim and the offender, their home address, and any other facts that are likely to reveal their identity .

Commentary Source: Greece, Law Number 3500—On Domestic Violence and Other Provisions, Article 20 .

(4) Family mediation or intervention shall not be a bar to the investigation or prosecution of a complaint of domestic violence . The Protection Project Journal of Human Rights and Civil Society 203

Commentary Source: Sierra Leone, Domestic Violence Act 2007, Section 7, Subsection 4. If at the time the complaint is filed with the police, the victim and the offender are engaging in any kind of mediation or intervention, that mediation or intervention shall not prohibit the police from investigating, or the Court from prosecuting, the incident with all due care and respect.

Article 13. Arrests by the Police

(1) A police officer may arrest a person for domestic violence with a warrant issued in pursuance of this Law or without a warrant.

(2) A police officer may arrest a person for domestic violence without a warrant where— a . An act of domestic violence is committed in the presence of the police officer; b. The police officer is obstructed by the person in the execution of police duties; or c. The person is held in lawful custody under this act and has escaped or attempts to escape from such custody .

(3) A police officer may arrest without a warrant on reasonable grounds of suspicion, a person who— a . Has committed an offense of domestic violence or b. Is about to commit an offense of domestic violence and there is no other way to equally effectively prevent the commission of the offense .

(4) A police officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has contravened or is contravening a Protection Order issued under Chapter V of this Law.

Commentary Source: Sierra Leone, Domestic Violence Act 2007, Section 8 . Similar Provision: Ghana, Domestic Violence Act (2007), Section 9 . 204 Model Law against Domestic Violence

Chapter III. Judicial Proceedings and Procedures

Article 14. Specialized Courts

There shall be specialized Courts for cases involving domestic violence and any kind of violence against women.

Commentary Similar Provisions: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 14; Spain, Organic Act (1/2004)—On Integrated Protection Measures against Gender Violence, Articles 43–48 .

Article 15. Conduct of Proceedings and Court Hearing

(1) Proceedings for a Protection Order shall be held in private and in the presence of the parties, their lawyers, and any other person permitted by the Court to be present .

Commentary Source: Ghana, Domestic Violence Act 2007, Article 13, Paragraph 2 . Identical Provision: Sierra Leone, Domestic Violence Act (2007), Section 11, Subsection 1. Similar Provisions: Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 18; Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 18 . Control of Examination: The Judge shall intervene during the examination of minors or other victims of violence and give appropriate directions to prevent their intimidation by aggressive and intensive questioning or by questions containing threats of any kind . (Source: Based on Cyprus, Violence in the Family [Prevention and Protection of Victims] Laws 2000 and 2004, Section 20 .)

(2) Despite Paragraph (1) of this Article, when the Court is of the opinion that the presence of the respondent is likely to have a serious effect on the victim or a witness, the Court may take the steps that it considers necessary to separate the respondent from the victim or the witness, without sacrificing the integrity of the proceedings .

Commentary Source: Ghana, Domestic Violence Act 2007, Article 13, Paragraph 2 . The Protection Project Journal of Human Rights and Civil Society 205

Identical Provision: Sierra Leone, Domestic Violence Act (2007), Section 11, Subsection 2. In the case of Paragraph (2), the Court shall ensure that the rights of the defendant are not violated. It shall be ensured, that the defendant, or his or her lawyer, is able to respond to the testimony of the victim or witnesses and question them (see International Standards on the rights of the accused). Protection of the Victim/Complainant/Witness: “It shall also be provided that there are separate waiting areas for complainants/victims/witnesses and defendants and separate entrances/exits to ensure the safety and welfare of the complainant/victim/witness. In addition, when the circumstances of the case require it, police escorts and staggered arrival and departure times shall be arranged.” (Source: United Nations Department of Economic and Social Affairs/Division for the Advancement of Women, Handbook for Legislation on Violence against Women [Advanced Version 2009], Chapter 3.9.4.)

(3) Nothing in this Article shall limit any other power of the Court to hear proceedings in camera or to exclude any person from the Court .

Commentary Source: Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 18, Paragraph 3 . Similar Provisions: Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 18, Subsection 3; Belize, Domestic Violence Act (Revised Edition 2000), Section 9; Clause 18, Paragraph 3; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 16; Trinidad and Tobago, Domestic Violence Act (1999), Section 10, Paragraph 3, provide for in camera proceedings as the general procedure . See also: Cyprus, Violence in the Family (Prevention and Protection of Victims) Laws 2000 and 2004, Section 18—Prevention of Intimidation: “(1) During the trial of cases for the commission of offences of violence, the Court— (a) Shall order that the whole or part of the case be tried in camera; and (b) May order, that the testimony of any victim of violence and any other person for whom there is reasonable suspicion that he/she is in any danger or under threat by a reason of the fact that he/she will testify as a witness, or that his/her testimony may be adversely affected, be taken in the absence of the accused giving all those directions and causing all the necessary arrangements to be made so that the accused will know of the testimony of the said witness and cross-examine him/her . 206 Model Law against Domestic Violence

(2) Without prejudice to the generality of subsection (1), the following measures may be used for purposes of protecting the witnesses: (a) The placing of a special screen; or (b) The use of a closed television circuit; or (c) The use of any other means or system, in a manner that the witness shall not be visible by the accused and vice versa. In order to safeguard the rights of the accused the appropriate technological arrangements or other installations shall be made in the aforesaid cases, so that the accused shall be able to listen to the procedure and give instructions to his lawyer.”

(4) There shall be no publication of any proceedings related to domestic violence.

Commentary See the exceptions in Article 37, Paragraphs (3) and (4) of this Law. Similar provisions: Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 21; Belize, Domestic Violence Act (Revised Edition 2000), Section 43; Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 21; Ghana, Domestic Violence Act (2007), Section 25; New Zealand, Domestic Violence Act (1998), Section 125; Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 63.

Article 16. Evidence

(1) Testimonies, written statements, and affidavits of the victim and the respondent; witness statements; police reports; medical findings or records by hospitals and health centers; and acts of expertise (expert witness declarations) and other documents issued by the social workers shall be admissible evidence in a hearing for a domestic violence Protection Order .

Commentary Source: Based on Albania, Law No. 969—On Measures against Violence in Family Relations, Article 15, Paragraphs 1 and 2; words added. The enumeration of admissible evidence must not be understood as exhaustive. Other evidence may be accepted, if it serves the purpose of the Law. Compellability of Spouses: The spouse of an accused charged with an offense of violence within the meaning of this Law shall be a competent witness if the spouse is the victim of violence and a competent and compellable witness if the victim of violence is another member of the family. (Source: Cyprus, The Protection Project Journal of Human Rights and Civil Society 207

Violence in the Family [Prevention and Protection of Victims] Laws 2000 and 2004, Section 20 .) Prohibition of the Cautionary Warning/Corroboration Rule: It shall be unlawful for the Court to require corroboration of the applicant’s or victim’s evidence. The credibility of a complainant in a sexual violence case is the same as the credibility of a complainant in any other proceeding. Police Reports: The applicant shall have the right to request from the police a certified copy (with official seal) of the report on the occurrence of domestic violence to support her application for any kind of Protection Order provided for under this Law. Upon the failure of the police to issue such a certified copy, the Judge shall have the authority to immediately request such copy, and otherwise sanction the responsible person. Medical Reports: All provisions regarding police reports shall apply equally to medical findings and reports.

(2) When the Court does not possess all evidence mentioned in Paragraph 1 of this Article, it shall assess the situation based on the description of circumstances and facts regarding the occurrence of domestic violence .

Commentary Source: Based on Albania, On Measures against Violence in Family Relations, Article15, Paragraph 3 .

(3) Evidence of the victim’s sexual history shall not be introduced in any legal proceedings arising under this Law.

Article 17. Standard of Proof

Every question of fact arising in any proceedings under this Law (other than criminal proceedings) shall be decided on a balance of probabilities.

Commentary Source: Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 20 . See also: Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 20; New Zealand, Domestic Violence Act (1998), Section 85; Singapore, Women’s Charter (Chapter 353) (as amended in 2007), Section 65, Paragraph 1; Trinidad and Tobago, Domestic Violence Act (1999), Section 5, Paragraph 1 . 208 Model Law against Domestic Violence

Article 18. Witness Interrogation

(1) In cases of domestic violence, the members of the family shall be interrogated as witnesses without oath.

(2) The minors at the hearing of the case are not summoned as witnesses in Court, but their testimony, if it exists, is read, unless the Court considers their interrogation necessary .

Commentary Source: Greece, Law Number 3500—On Domestic Violence and Other Provisions, Article 19 .

Article 19. Record of Applications and Protection Orders

The Registry of the Court shall maintain a record of all applications filed pursuant to this Law, and all the Protection Orders and Emergency Protection Orders issued by the Court under this Law.

Commentary Source: Based on Malaysia, Domestic Violence Act 1994, Section 16. Similar Provision: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 14, Paragraph 5 . Record: The record shall contain the names, genders, and relationships of the parties; the effective date and terms of each order issued; and the kind of violence and whether it involved any weapons, whether it resulted in personal injuries, and whether the injuries inflicted required medical treatment. (Source: Based on Malaysia, Domestic Violence Act [1994], Section 16.) Privacy: The record shall not be open to the general public.

Chapter IV. Protection Orders

Article 20. Purpose and Definition

(1) A Protection Order is a writ issued by the Court of first instance that defines temporary protection measures for victims in cases of domestic violence . The Protection Project Journal of Human Rights and Civil Society 209

Commentary Source: Based on Georgia, Law of Georgia on the Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 10, Paragraph 2; words omitted.

(2) The purpose of a Protection Order shall be to prevent and deter domestic violence, to reverse the consequences of an abuse, and to undertake efficient measures for the rehabilitation of offenders and the elimination of the circumstances that encourage new acts of domestic violence.

Commentary Source: Based on Bosnia and Herzegovina, Law on the Protection from Domestic Violence, Article 10 . “The relief granted under a protection order serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim’s daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life.” (Source: Philippines, Anti-Violence against Women and Their Children Act [2004], Republic Act No. 9262, Section 8 .)

(3) Protection Orders, including Emergency Protection Orders, shall be available to victims of domestic violence in addition to and without any requirement for the victim to institute other legal proceedings, such as criminal, civil, or divorce proceedings .

Commentary Source: Based on the United Nations Expert Group Meeting (Division for the Advancement of Women), Good practices in legislation on violence against women, 26–28 May 2008, Chapter 8.B, page 51. There shall be no interdependency or interconnection between other legal proceedings and the ability to apply for a Protection Order under this Law. Domestic violence Protection Orders shall be in addition to and not in lieu of any criminal or civil legal proceedings. Any kind of requirement for the victim to press criminal charges or to file for divorce in order to be able to apply for a Protection Order might have negative effects on the safety of the victim and might keep or prevent her from applying . At the same time, applying for any domestic violence Protection Order under this Law shall not deprive a victim of domestic violence from instituting separate civil or criminal actions . 210 Model Law against Domestic Violence

Article 21. Application for a Protection Order

(1) A person who is or has been in a domestic relationship with another person may apply to the Court for a Protection Order against that other person .

Commentary Application against Minors: No application for a Protection Order may be made against a child . (Source: New Zealand, Domestic Violence Act [1998], Article 10, Paragraph 1 .)

(2) Where the person who is eligible to apply for a Protection Order is a child, the application may be made by a representative.

(3) Where the person who is eligible to apply for a Protection Order is unable to make the application personally, whether by reason of physical incapacity or fear of harm or other sufficient cause, the application may be made on behalf of that person .

Commentary Source: Based on New Zealand, Domestic Violence Act (1998), Articles 7, 9, 11–12 .

(4) The application may be filed in a specialized Court for violence against women or for domestic violence located where— a. The applicant resides; b. The applicant is residing temporarily, where she has left her usual place of abode; c. The respondent resides; or d . The act of domestic violence occurred, is occurring, or is likely to occur .

(5) The application should address the following: a . The act of domestic violence that has taken place, its timing and place, or the imminent danger of such an act; b. The harm that has been or could have been inflicted on a victim as a result of domestic violence; c . The full name and place of residence of the complainant and offender; The Protection Project Journal of Human Rights and Civil Society 211

d. The data concerning the family or domestic relationship between the victim and the respondent; and e. Any requests for special protection.

Commentary Sources: Based on Mongolia, Law of Mongolia against Domestic Violence, Article 11; (d) is based on Bulgaria, Protection against Domestic Violence Act (2005), Section 9, Subsection 1 (3). Similar Provision: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 14, Paragraph 1 . If a victim needs to hide from the offender, her place of residence may be omitted from the application .

Optional Provision

(6) The applicant is assisted by a lawyer free of charge for the preparation of the application, the completion of the necessary documents, and the filing of the documents in Court .

(7) The applicant is exempt from Court taxes and fees . Upon issuance of the Protection Order, Court expenses are charged on the party who committed the domestic violence . Source of the Optional Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 14, Paragraphs 3 and 4 .

Article 22. Court Proceedings for the Issuance of a Protection Order

(1) Immediately after receiving an application for a Protection Order, the Court shall schedule a hearing and summon the respondent to appear before the Court to show cause on why a Protection Order shall not be issued.

Commentary Together with the summons, a copy of the application shall be given to the respondent .

(2) The first hearing of the applicant and the respondent shall be within a period of fourteen (14) days after the filing of the application. 212 Model Law against Domestic Violence

Commentary Source: Based on Sierra Leone, Domestic Violence Act (2007), Section 11, Subsection 3; words added. Time Frame of 14 Days: This time frame is to ensure the safety of the victim of domestic violence with regard to her right to a speedy trial. A shorter period may be set. Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 16, Paragraph 1 (within 15 days from the filing); Belize, Domestic Violence Act (Revised Edition 2000), Section 10 provides for a first hearing of the application within 5 days of the filing; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 12, Subsection 4 (3 days); Trinidad and Tobago, Domestic Violence Act (1999), Section 11 provides for a first hearing within 7 days of the filing of the application .

(3) Where the respondent appears on the date specified in the summons, the Court shall proceed to hear the matter. Otherwise, where the respondent does not appear on the date specified, but the Court is satisfied that the application contains prima facie evidence of domestic violence, the Court may grant the application or shall issue the Protection Order .

Commentary Source: Based on Sri Lanka, Domestic Violence Act (2002), Article 7, Paragraphs 2 and 3 .

(4) In hearing the matter, the Court may consider any evidence previously received and such further affidavits or oral evidence as it may direct, which shall form part of the record of the proceedings .

Commentary Source: Based on Sri Lanka, Domestic Violence Act (2002), Article 7, Paragraph 5. The Court may take into account any received or requested evidence, but it shall not draw any adverse inference from a delay of any length between the alleged commission of violence and the reporting thereof or the application for a Protection Order .

(5) The Protection Order shall be issued in the presence of the offender.

Commentary Source: Based on Mongolia, Law against Domestic Violence, Article 16, Paragraph 3; words omitted. The Protection Project Journal of Human Rights and Civil Society 213

Presence of the Victim: The presence of the victim during the issuance of the Protection Order is favorable, but it shall not be mandatory.

(6) A Court that issues a Protection Order must explain the following to the respondent and the applicant, or their legal representatives, who are present in the Court when the order is issued: a. The purpose, terms, and effect of the order; b. The consequences that may follow if the defendant contravenes the Protection Order; and c. The means by which the Protection Order may be extended, varied, or revoked .

Commentary Source: Based on Australia, Model Domestic Violence Laws, Section 20, Subsection 1; words omitted. Similar Provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 18; New Zealand, Domestic Violence Act (1998), Section 87, Subsection 1; Trinidad and Tobago, Domestic Violence Act (1999), Section 15.

(7) If the perpetrator is not present at the hearing and the pronouncement, the Protection Order shall be served on him immediately.

(8) The Court shall also send within twenty-four (24) hours a copy of the Protection Order to the following persons: a. The victim and other persons mentioned in the Protection Order; and

Commentary Copies for the Victim: The victim of the domestic violence shall be provided with two copies of the original decision, one for her own records and the other to present to the police if and when necessary. b. The police department serving the area in which the victim or other persons mentioned in the Protection Order reside temporarily or permanently .

Commentary Source: Based on Albania, On Measures against Violence in Family Relations, Article 17, Paragraphs 4 and 5 . 214 Model Law against Domestic Violence

Similar Provisions: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act, No. 31 of 2001 (2001), Article 15, Paragraph 3; Mongolia, Law of Mongolia against Domestic Violence, Articles 15.5 and 16.6.

Optional Provision: The social services department of the municipality or community in which the victim resides or other persons mentioned in the Protection Order reside temporarily or permanently . Source of the Optional Provision: Based on Albania, On Measures against Violence in Family Relations, Article 17, Paragraphs 4 and 5 . (9) A Court may not refuse to issue a Protection Order or impose any other condition solely on the grounds that other legal remedies are available to the applicant .

Commentary Source: Ghana, Domestic Violence Act (2007), Article 17, Paragraph 3 .

Article 23. Effects of a Protection Order

(1) The Court shall grant a Protection Order if it is satisfied that— a . The respondent is using, or has used, domestic violence against the applicant, or is likely to engage in domestic violence against the applicant and b. The issuance of a Protection Order is necessary for the protection of the applicant .

Commentary Sources: Based on New Zealand, Domestic Violence Act (1998), Article 14; Trinidad and Tobago, Domestic Violence Act (1999), Section 5, Paragraph 2.

(2) The Protection Order shall prohibit the respondent from committing any act of domestic violence against the female applicant, and in particular from— a. Physically abusing or threatening to physically abuse the female applicant; b. Engaging or threatening to engage in any behavior that amounts to psychological abuse; c. Sexually abusing or threatening to sexually abuse, including forcing the applicant to engage in any sexual contact, whether married or The Protection Project Journal of Human Rights and Civil Society 215

not, and engaging in any sexual conduct that abuses, humiliates, or degrades the applicant or otherwise violates the applicant’s sexual integrity, whether married or not; d . Damaging, or threatening to damage property of the female applicant, or engaging or threatening to engage in any behavior that amounts to economic abuse; e. Any behavior that amounts to moral abuse; and/or f. Encouraging any person to engage in behavior against the applicant, where the behavior, if the respondent engaged in it, would be prohibited by the order.

Commentary Sources: Based on New Zealand, Domestic Violence Act (1998), Article 19, Paragraph 1; (c) is a combination of the former and Sierra Leone, Domestic Violence Act 2007, Section 13, Subsections 2 (d) and (e), and Section 15, Subsection 1. With regard to (f), see also: “The court, in making a protection order, may include a provision that the person against whom the order is made may not incite or assist any other person to commit family violence against the protected person.” (Source: Singapore, Women’s Charter [Chapter 353] [as amended in 2007], Section 65, Paragraph 4.) Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (a); Bulgaria, Protection against Domestic Violence Act (2005), Section 5, Subsection 1 (1); Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims (2005), Article 25; Ghana, Domestic Violence Act (2007), Section 15; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 18 (a); Ireland, Domestic Violence Act (1996), Section 2, Subsection 2 (a); Malaysia, Domestic Violence Act (1994), Section 5, Subsection 1; Mongolia, Law of Mongolia against Domestic Violence, Article 14.2.1; Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsections 1 (a) and (b); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (a); Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 1 (a); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (a) (i) (vii); Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (a) . 216 Model Law against Domestic Violence

Article 24. Supplementary Order

(1) A Protection Order may, at the request of the applicant or on the Court’s own motion, be supplemented by any or all of the following provisions: a. Directing the respondent to seek counseling or other rehabilitative service;

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (a) (ii) . Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (m); Belize, Domestic Violence Act (Revised Edition 2000), Section 5, Subsection 2; Bulgaria, Protection against Domestic Violence Act (2005), Section 5, Subsection 1 (5) (“obligation to attend specialized programs”); India, Law No. 43 of 2005— Protection of Women from Domestic Violence Act, Section 14, Subsection 1; Israel, Prevention of Family Violence Law, 5751-1991 (as amended by Amendment No . 3, 5748-1997 and Amendment No . 4, 5748-1998), Article 2A (“obtain Treatment”) and Section 2A (a); Malaysia, Domestic Violence Act (1994), Section 11, Subsection 1; Mongolia, Law of Mongolia against Domestic Violence, Article 14.2.5; New Zealand, Domestic Violence Act (1998), Section 32; Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsection 7; Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (a) (ii); Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 2 (c); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (b) (viii) (see together with Paragraph 3). b. Imposing mandatory rehabilitation of an abusive offender, who has committed an act of domestic violence under the influence of alcohol or drugs or other psychotropic substances, if there is a risk that the abusive person might repeat that act of violence;

Commentary Source: Bosnia and Herzegovina, Law on Protection from Domestic Violence, Article 16 . See also: The Turkish law specifies that an accused spouse can be ordered “not to arrive at the shared dwelling while under the influence of alcohol; or other intoxicating substances nor use such substances in the shared dwelling.” (Source: Turkey, Law No. 4320—On the Protection of the Family [1998], Clause 1 [f].) The Protection Project Journal of Human Rights and Civil Society 217

c. Prohibiting or restraining the respondent from entering the victims place of residence, or linger inside a specific distance to her place of residence, from haunting specified places that the victim regularly visits, such as her workplace, school, etc., or from otherwise intentionally inducing encounters with the victim or following her from place to place, or generally from being in a specific distance to the victim;

Commentary Source: Based on Germany, Gewaltschutzgesetz (2001), Article 1, Section 1, Paragraph 1.1; words added. Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraphs 1 (c), (d), and (e); Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 4, Subsection 1; Belize, Domestic Violence Act (Revised Edition 2000), Section 5, Subsection 1 (a)–(d); Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 22 (III) (a) and (c); Bulgaria, Protection against Domestic Violence Act (2005), Section 5, Subsection 1 (3); Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims (2005), Article 25; Ghana, Domestic Violence Act (2007), Section 15, Paragraphs 2 (g), (n), and (p); Greece, Law Number 3500—On Domestic Violence and Other Provisions, Article 18; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 19 (c); Ireland, Domestic Violence Act (1996), Section 2, Subsection 2 (b); Israel, Prevention of Family Violence Law, 5751-1991 (as amended by Amendment No . 3, 5748-1997 and Amendment No . 4, 5748-1998), Article 2 (a) (1); Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act No . 31 of 2001, (2001), Article 10, Paragraph 1 (only for cases of bodily harm or life-threatening intimidations by a spouse); Malaysia, Domestic Violence Act (1994), Section 6, Subsection 1 (b); Mongolia, Law of Mongolia against Domestic Violence, Article 14.2.3; New Zealand, Domestic Violence Act (1998), Section 19, Subsection 2 (making this an obligatory condition of any Protection Order, provided that the applicant and respondent do not live in the same dwelling); Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsections 1 (e) and (f); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (d); Sierra Leone, Domestic Violence Act (2007), Section 13, Subsections 2 (g), (n), and (p) and Section 15, Subsection 2 (a) (iv); Slovenia, Family Violence Prevention Act, Article 19, Paragraph 1; Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 64, Paragraph 3; Sri Lanka, Domestic Violence Act (2002), Section 8, Subsections 1 (d) and (m); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraphs 1 (a) (ii), (iii), and (vi); Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (b). 218 Model Law against Domestic Violence

d. Prohibiting the respondent from contacting the victim through any means directly or indirectly, including written or phone communication;

Commentary Source: Based on Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims, Article 25 . Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (b); Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 4, Subsection 1; Belize, Domestic Violence Act (Revised Edition 2000), Section 5, Subsection 1 (f); Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 22 (III) (b); Germany, Gewaltschutzgesetz (2001), Article 1, Section 1, Paragraph 1.4; Ghana, Domestic Violence Act (2007), Section 15, Paragraph 2 (h); India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 19 (d); Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act No . 31 of 2001 (2001), Article 10, Paragraph 1 (only for cases of bodily harm or life-threatening intimidations by a spouse); Malaysia, Domestic Violence Act (1994), Section 6, Subsection 1 (d); New Zealand, Domestic Violence Act (1998), Section 19, Subsection 2 (making this an obligatory condition of any Protection Order, provided that the applicant and respondent do not live in the same dwelling); Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsection 1 (g); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (b); Sierra Leone, Domestic Violence Act (2007), Section 13, Subsection 2 (h); Slovenia, Family Violence Prevention Act, Article 19, Paragraph 1; Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 64, Paragraph 4; Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 1 (j); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (a) (iv); Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (d) (“not to cause distress […] using means of communication”). Possible Exception to the Noncontact Order: “[…] except such contact— (a) as is reasonably necessary in any emergency; or (b) as is permitted under any order or written agreement relating to custody of, or access to, any minor; or (c) as is permitted under any special condition of the protection order.” (Source: New Zealand, Domestic Violence Act [1998], Section 19, Subsection 2 [e].) e. Forcibly confining or detaining the applicant; The Protection Project Journal of Human Rights and Civil Society 219

Commentary Source: Ghana, Domestic Violence Act (2007), Section 15, Paragraph 2 (b). Similar Provision: Sierra Leone, Domestic Violence Act (2007), Section 13, Subsection 2 (b). f. Depriving the applicant of access to adequate food, water, clothing, shelter, or rest;

Commentary Source: Ghana, Domestic Violence Act (2007), Section 15, Paragraph 2 (c) . Identical Provision: Sierra Leone, Domestic Violence Act (2007), Section 13, Subsection 2 (b). g. Committing any act that the Court considers not to be in the best interest of the applicant;

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Section 13, Subsection 2 (q). Similar Provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 5, Subsection 1 (l); Ghana, Domestic Violence Act (2007), Section 15, Paragraph 2 (q); India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 19 (g); Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsections 1 (h) and 3; Philippines, Anti- Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (k); Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (h); Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 1 (n).

h. Imposing a temporary restriction on the respondent’s right to dispose of common property;

Commentary Source: Based on Mongolia, Law against Domestic Violence, Article 14.2.6. Similar Provisions: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 24 (II); Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims (2005), Article 25; Ghana, Domestic Violence Act (2007), Section 15, Paragraph 2 (i); India, Law No. 43 of 2005—Protection 220 Model Law against Domestic Violence

of Women from Domestic Violence Act, Section 19 (e) (with an emphasis on bank accounts, operating bank lockers, and any assets); Sierra Leone, Domestic Violence Act (2007), Section 13, Subsections 2 (f) (ii) and (i) and Section 15, Subsection 2 (c); Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 1 (l); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (a) (v) .

i. Temporarily— • Forbidding contact between the respondent and any child of the applicant; • Specifying that contact between the respondent and a child of the applicant must take place only in the presence of and under the supervision of a social worker or a family member designated by the Court for that purpose; or • Allowing such contact only under specific conditions designed to ensure the safety of the applicant, any child who may be affected, and any other family members, if the Court is satisfied that it is reasonably necessary for the safety of the child in question.

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (f). Similar Provisions: Albania, Law No. 9669— On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (e); Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 22 (IV); Bulgaria, Protection against Domestic Violence Act (2005), Section 5, Subsection 1 (4); Mongolia, Law of Mongolia against Domestic Violence, Article 14.2.4; New Zealand, Domestic Violence Act (1998), Section 27, Subsection 2; Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsection 6; Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 66; Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 1 (g). j . Granting temporary sole custody of any child of the applicant or any child in the care of the applicant to the applicant or to another appropriate custodian if the Court is satisfied that it is reasonably necessary for the safety or welfare of the child in question;

Commentary Sources: Based on a combination of India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Article 21; and Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (e). The Protection Project Journal of Human Rights and Civil Society 221

Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (j); Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims (2005), Article 25; Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (f); Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 65 . k . Temporarily directing the respondent to make periodic payments for the maintenance of the applicant, and of any children of the applicant, if the respondent is legally liable to support the applicant or the child, as an emergency measure where no such maintenance order is already in force, together with other emergency monetary relief as is appropriate;

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (a) (iii) . Similar Provisions: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (h); Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 22 (V); Cambodia, Law on the Prevention of Domestic Violence and the Protection of the Victims (2005), Article 25; Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (g); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraphs 1 (c) (iii) and (vii); Turkey, Law No. 4320— On the Protection of the Family (1998), Clause 1 . l . Directing the respondent to pay any rent or mortgage payment and maintenance to the applicant;

Commentary Source: Based on Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (d). Similar Provisions: India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 20; Pakistan, Prevention of Domestic Violence Bill (2005), Section 2, Subsection 4; Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (c) (vi) . m . Granting the applicant temporary possession of or control over specified personal property, including a motor vehicle, checkbook, bank card, health care services card or supplementary medical insurance card, identification documents, keys, utility or household accounts, or other personal effects; 222 Model Law against Domestic Violence

Commentary Source: Newfoundland and Labrador (Canada), Family Violence Protection Act (2006), Section 6 (f) . Similar Provisions: Malaysia, Domestic Violence Act (1994), Section 6, Subsection 1 (e); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (e). n. Requiring a police officer to seize— • Any weapons where the weapons have been used or have been threatened to be used to commit domestic violence and • Any documents that authorize the respondent to own, possess, or control a weapon described in the subparagraph above.

Commentary Source: Based on Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (g) . For further, more detailed information, see also New Zealand, Domestic Violence Act (1995, as amended in 1998), Sections 21–26, which make this a standard provision to any protection order . Similar Provisions: Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 22 (I); Israel, Prevention of Family Violence Law, 5751-1991 (as amended by Amendment No. 3, 5748-1997 and Amendment No. 4, 5748-1998), Article 2 (a) (4); Mongolia, Law of Mongolia against Domestic Violence, Article 14.2.8; Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsection 3 (a); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (h); Sierra Leone, Domestic Violence Act (2007), Section 15, Subsection 2 (b); Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 67; Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 2 (a); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (c) (v); Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (e) (“weapons or other similar instruments”). o. Ordering a social worker, counselor, medical officer, police officer, friend, or other person whom the Court deems fit to monitor the relationship between the applicant and the respondent. An affidavit by such a person that the respondent has breached the terms of a Protection Order shall be prima facie evidence of such fact.

Commentary Source: Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 2 (e). The Protection Project Journal of Human Rights and Civil Society 223

Article 25. Residence Order

(1) Where the Court in issuing a Protection Order considers it expedient for the safety of the woman/victim and her dependents to issue a Residence Order, the Court may issue the order requiring the respondent to vacate the matrimonial home or any other residence shared by the applicant and the respondent and grant the applicant exclusive possession, regardless of ownership.

Commentary Sources: Based on a combination of Ghana, Domestic Violence Act (2007), Article 20, Paragraph 1; and Germany, Gewaltschutzgesetz, Article 1, Section 2, Paragraph 1 . Other laws that provide similar Residence/Occupation Orders: Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 1 (c) and (e); Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Sections 7 and 11; Belize, Domestic Violence Act (Revised Edition 2000), Sections 23 ff; Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 22 (II); Bulgaria, Protection against Domestic Violence Act (2005), Section 5, Subsection 1 (2); Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clauses 7–16; Greece, Law Number 3500—On Domestic Violence and Other Provisions, Article 18; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 19; Ireland, Domestic Violence Act (1996), Section 3, Subsection 2 ([a] [i]); Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act No. 31 of 2001 (2001), Article 10, Paragraph 1 (only for cases of bodily harm or life-threatening intimidations by a spouse and only for a period of two months); Malaysia, Domestic Violence Act (1994), Section 6, Subsection 1 (a); Mongolia, Law of Mongolia against Domestic Violence, Article 14.2.2; New Zealand, Domestic Violence Act (1998), Sections 53, 54, and 56; Pakistan, Prevention of Domestic Violence Bill (2005), Section 11, Subsection 1 (c); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 8 (c); Sierra Leone, Domestic Violence Act (2007), Section 17; Singapore, Women’s Charter (Chapter 353) (as amended in 2007), Section 65, Paragraph 5; Slovenia, Family Violence Prevention Act, Articles 21 and 22; Spain, Organic Act 1/2004—On Integrated Protection Measures against Gender Violence, Article 64, Paragraph 1; Sri Lanka, Domestic Violence Act (2002), Section 8, Subsection 2 (f); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (c) (iv) together with Paragraph 6; Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (b). Shared Residence: The term “shared residence” shall mean a residence shared by the victim and the respondent, including a residence solely owned or 224 Model Law against Domestic Violence

procured under any arrangement or title by the respondent or a residence jointly owned or procured by the victim and the respondent. Effect: Such an order does not affect the title to or an ownership interest in any real property jointly held by the applicant and respondent or solely held by one of them . (See also: Belize, Domestic Violence Act (Revised Edition 2000), Section 44—“Ownership of Property: Nothing in this Act shall be deemed to have altered any right which a spouse may have to ownership of property.”) (Similar provision: Antigua and Barbuda, Domestic Violence [Summary Proceedings] Act [1999], Section 28) Pro-Eviction Policy: It should be the rule that the aggressor must leave a shared residence, not the victim. Only if the victim’s special situation requires that she (and her children) be moved to a shelter or safe place, the victim shall be required to leave the usual place of residence.

(2) Where a residence is leased by a respondent pursuant to an oral, written, or implied agreement and the applicant who is not a party to the lease is granted exclusive possession of that residence as permitted by Paragraph (1), no landlord shall evict the applicant solely because the applicant is not a party to the lease.

Commentary Source: Based on Northwest Territories (Canada), Protection against Family Violence Act (2005), Article 14, Paragraph 1; words changed. Similar Provision: Sierra Leone, Domestic Violence Act (2007), Section 17, Subsection 3.

(3) In furtherance of Paragraph (2), the landlord shall provide the details of the lease to the applicant on request.

Commentary Source: Ghana, Domestic Violence Act (2007), Article 20, Paragraph 5 . Identical Provision: Sierra Leone, Domestic Violence Act (2007), Section 17, Subsection 4.

(4) If the Court issues a Residence Order, it shall be supplemented by a provision directing a police officer to remove the respondent from the residence immediately or within a specified time.

Commentary Source: Newfoundland and Labrador (Canada), Family Violence Protection Act (2006), Section 6 (b). The Protection Project Journal of Human Rights and Civil Society 225

(5) The Residence Order is a special kind of Protection Order. In this Law, all provisions regarding the Protection Order shall also be applicable to the Residence Order .

Article 26. Matters to be Taken into Consideration When Issuing a Protection Order

In determining an application for a Protection Order, the Court shall consider the following: a . The need to ensure that the applicant is protected from any further violence; b. The nature, history, or pattern of domestic violence and whether it is more likely than not that the respondent will continue the family violence; c. The welfare of any child affected or likely to be affected by the respondent’s conduct; d . The need for accommodation of the applicant and the children (if any); e. Any hardship that the issuance of the order would cause to the respondent or to any other person; and f . Any other matter that the Court considers relevant in the circumstances of the case .

Commentary Sources: Based on Sri Lanka, Domestic Violence Act (2002), Article 3; (b) is based on a combination of Newfoundland and Labrador (Canada), Family Violence Protection Act (2006), Section 5, Subsection 2 (b); and Trinidad and Tobago, Domestic Violence Act (1999), Section 7. Similar Provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 6, Subsections 1 (a)–(e) and (g); Pakistan, Prevention of Domestic Violence Bill (2005), Section 11. Matters That Should Be of No Interest to the Court: The Court shall not interpret as a disadvantage or disqualification the time elapsed between the account of violence and the application, nor shall the Court interpret possible withdrawals of past applications as disqualifications against the victim. 226 Model Law against Domestic Violence

Article 27. Emergency Protection Order

(1) An Emergency Protection Order is a short-term Protection Order issued by a Judge for immediate domestic violence protection .

Commentary Laws that provide for Emergency Protection Orders (also ex parte Interim Protection Orders): Albania, Law No. 9669—On Measures against Violence in Family Relations (2006), Article 10, Paragraph 3, and Article 19; Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 4, Subsection 3; Ghana, Domestic Violence Act (2007), Section 14; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 23; Ireland, Domestic Violence Act (1996), Sections 4 and 5; Israel, Prevention of Family Violence Law, 5751-1991 (as amended by Amendment No. 3, 5748- 1997 and Amendment No. 4, 5748-1998), Article 4 (a); Mongolia, Law of Mongolia against Domestic Violence, Article 15; Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 15; Singapore, Women’s Charter (Chapter 353) (as amended in 2007), Section 66; Sri Lanka, Domestic Violence Act (2002), Section 5, Subsection 1 (i) and Section 6; Trinidad and Tobago, Domestic Violence Act (1999), Section 8.

(2) The Emergency Protection Order may be requested by the victim or by the police or any other person on behalf of the victim if the victim is unable, whether by reason of physical incapacity or fear of harm or other sufficient cause, to make the application personally .

Commentary Source: Based on New Zealand, Domestic Violence Act (1998), Articles 7, 9, 11, and 12 .

(3) Having received a request, the Judge, within a period of forty-eight (48) hours, shall know the request and decide on the emergency protective measures.

Commentary Source: Based on Brazil, Maria da Penha Law, Law No. 11.340/2006, Article 18 . Time Frame: The 48-hour time frame for a Judge to decide on an Emergency Protection order should be the maximum. Countries should consider shortening the time frame for an Emergency Protection Order even more; a 24-hour period is advisable to offer the best victim protection. The Protection Project Journal of Human Rights and Civil Society 227

See also: The Mongolian Law demands that “within eight working hours” following the receipt of a complaint a court shall issue an ex parte restraining order . (Source: Mongolia, Law of Mongolia against Domestic Violence, Article 15 .1 .)

(4) The Emergency Protection Order shall be granted by the Judge, regardless of a hearing of the offender, when it appears, by oral or affidavit evidence, that the Emergency Protection Order is necessary— a. To ensure the safety, health, and welfare of the applicant or b. To prevent substantial damage to the property of the applicant.

Commentary Evidence: Live testimony or a sworn statement or affidavit of the victim shall be sufficient evidence for issuing an Emergency Protection Order. No additional independent evidence, including medical, police, or other official records, shall be required in order to grant an Emergency Protection Order because such a requirement may compromise the victim’s safety by causing significant delays.

(5) The content of an Emergency Protection Order may be that of— a. A “Stay-Away Order” as described in Article 24, Paragraph (1) c; b. A “Residence Order” as described in Article 25, Paragraph (1); c. A “Noncontact Order” as described in Article 24, Paragraph (1) d; and/or d . Any other content that the Court deems necessary and appropriate for the specific circumstances.

(6) An Emergency Protection Order shall be granted for a period of not more than twenty-one (21) days.

Commentary Duration: The duration of the Emergency Protection Order may be set differently. But the Emergency Protection Order must have a finite life span and the maximum duration period must not be too long, since Emergency Protection Orders are granted without the benefit of a Court hearing. To grant such orders without a time limit would deny the respondent his or her right to a trial or justice. A period of 21 days should be considered an appropriate (reflection) period for the victim of domestic violence to apply for a final Protection Order. 228 Model Law against Domestic Violence

Renewal: An optional provision can be added that provides for a one-time renewal of the Emergency Protection Order for special cases, for example, if an application for a final Protection Order has been made, but for some reason, the Court has not ordered a hearing .

(7) A police officer shall serve the Emergency Protection Order on the applicant and the respondent without undue delay.

(8) Every Emergency Protection Order shall— a . Advise the applicant and the respondent that they are entitled to a hearing before the Court for the purpose of asking for the modification, termination, or renewal of the Emergency Protection Order if either one requests a hearing and b. Set out the procedures for making the request.

Article 28. Orders Made with the Consent of the Parties

The Court may, with the consent of the parties to the proceedings, issue any order under this Law without proof or admission of guilt.

Commentary Source: Sri Lanka, Domestic Violence Act (2002), Article 4 . Similar Provisions: Antigua and Barbuda, Domestic Violence (Summary Proceedings) Act (1999), Section 22; Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 22; New Zealand, Domestic Violence Act (1998), Section 86 .

Article 29. Duration of Protection Order

(1) A final Protection Order issued by the Court shall not exceed twelve (12) months in the first instance but may be extended, modified, or rescinded by the Court on a motion by a party to the original proceeding if there is good cause.

Commentary Source: Ghana, Domestic Violence Act (2007), Article 16 . Similar provisions: Belize, Domestic Violence Act (Revised Edition 2000), Section 19, Paragraph 1; Mongolia, Law of Mongolia against Domestic Violence, Article 16 .2 (12 to 18 months, depending on the details of the act, extent of harm or danger, and the offender’s personal state). The Protection Project Journal of Human Rights and Civil Society 229

Duration: This Model Law advises that the duration of a Protection Order may be set by the Court for a time period of up to 12 months. See also: India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 25, Subsection 1 (“until the aggrieved person applies for discharge”); Ireland, Domestic Violence Act (1996), Section 2, Subsection 5 (“up to five years”); Israel, Prevention of Family Violence Law, 5751-1991 (as amended by Amendment No. 3, 5748-1997 and Amendment No. 4, 5748- 1998), Article 5 (three months, but may be extended to six months, or one year on special grounds); Slovenia, Family Violence Prevention Act, Article 19, Paragraph 4 (six months; might be extended for another six months); Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 9, provides a duration period for up to three years; Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (six months) .

(2) Where a Protection Order contains a supplementary prohibition or condition of the kind specified in Article 24, the Court may specify different periods, each of less than twelve (12) months, as the period for which each prohibition or condition is to remain in force .

Commentary Source: Based on Barbados, Chapter 130A—Domestic Violence (Protection Orders), Section 16 .2 .

(3) A Protection Order and an Emergency Protection Order are effective immediately upon being issued.

Commentary Source: Based on Bulgaria, Protection against Domestic Violence Act (2005), Section 20 .

(4) Despite Paragraph (3), the Protection Order and the Emergency Protection Order are not enforceable against the respondent unless the respondent has been served with the order or has received notice of the order.

Commentary Source: Based on Northwest Territories (Canada), Protection against Family Violence Act (2005), Article 8, Paragraph 1; words changed. 230 Model Law against Domestic Violence

Article 30. Extension of a Protection Order to Other Persons

A Court may extend a Protection Order to a person specified in the order other than the applicant if the Court is satisfied that— a. The respondent is engaging in or has engaged in behavior that would amount to domestic violence against the person specified in the order, referred to as the specified person, if the specified person were or had been in a domestic relationship with the respondent; b. The respondent’s behavior toward the specified person is due, in whole or in part, to the applicant’s relationship with the specified person; or c . The extension of the Protection Order is necessary for the protection of the specified person.

Commentary Source: Ghana, Domestic Violence Act (2007), Article 19 . Similar Provisions: Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act No . 31 of 2001 (2001), Article 10, Paragraphs 3 and 4; Sierra Leone, Domestic Violence Act (2007), Section 16; Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 1 (b). Purpose: Intended to protect, for example, witnesses and family members of the applicant .

Article 31. Contravention of Protection Order

The violation of a Protection Order, Supplementary Order, or Emergency Protection Order shall be a criminal offense with the penalties described in Chapter VIII of this Law.

Commentary Similar provisions: Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 5, Paragraph 1; Georgia, On Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 10, Paragraph 4; Ghana, Domestic Violence Act (2007), Section 22; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Section 31; Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act No. 31 of 2001 (2001), Article 29; Malaysia, Domestic Violence Act (1994), Section 8; New Zealand, Domestic Violence Act (1998), Section 49, The Protection Project Journal of Human Rights and Civil Society 231

Subsection 1; Pakistan, Prevention of Domestic Violence Bill (2005), Section 14; Sierra Leone, Domestic Violence Act (2007), Section 19; Singapore, Women’s Charter (Chapter 353) (as amended in 2007), Section 65, Paragraph 8; Trinidad and Tobago, Domestic Violence Act (1999), Section 20; Turkey, Law No. 4320—On the Protection of the Family (1998), Clause 1 (“liable to arrest and confinement”). It shall not be a valid defense for one who has violated a Protection Order to claim that his family members did not insist on its compliance or the operation of the Law as a result of the breach. (Source: Israel, Prevention of Family Violence Law, 5751-1991 [as amended by Amendment No. 3, 5748-1997 and Amendment No. 4, 5748-1998], Article 7 [c].) Being under the influence of alcohol, any illicit drug, or any other mind- altering substance shall not be a defense under this Act. (Source: Philippines, Anti-Violence against Women and Their Children Act [2004], Republic Act No. 9262, Section 27—Prohibited Defense.).

Article 32. Modification and Cancellation of Protection Order

(1) An applicant or respondent may apply to the Court that granted the Protection Order for the modification or cancellation of the Protection Order.

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Article 21 .

(2) After hearing the victim and the respondent, the Court may accept such a request when it is satisfied that a change of circumstances requires such alteration, modification, variation, or revocation.

(3) If the request for alteration, modification, variation, or revocation is made by the victim of domestic violence, in addition to the prerequisite in Paragraph (2), the Court has to be satisfied that the request is made freely and voluntarily and is in the best interest of the woman.

Commentary Source: Based on Sri Lanka, Domestic Violence Act (2002), Article 9; words added. 232 Model Law against Domestic Violence

Chapter V. Civil Claims for Damages

Article 33. Damages and Compensation

(1) Where a victim of domestic violence suffers personal injuries, damage to property, or financial loss as a result of the domestic violence, the Courtmay award such damages in respect of the injury, damage, or loss as it deems just and reasonable.

(2) The Court may take into account— a . The pain and suffering of the victim and the nature and extent of the physical or mental injury suffered, including compensation for emotional distress; b. The cost of medical treatment for such injuries, including dental expenses; c. Any loss of earnings incurred; d. The amount or value of the property taken, destroyed, or damaged; e . The cost of legal services, including the costs of an application pursuant to this act; and f. The necessary and reasonable lodging, transport, and moving expenses, including the expenses required for setting up a separate household for the victim who was compelled to separate or be separated from the offender due to the domestic violence .

(3) In considering any necessary and reasonable expenses that may be taken into account under Paragraph (2) f, the Court may also take into account— a. The financial position of the victim as well as the financial position of the offender; b. The relationship between the parties and the reasonableness of requiring the defendant to make or contribute toward such payments; and c. The possibility of other proceedings between the parties and the matter being more appropriately addressed under laws relevant to the financial responsibility to spouses, former spouses, and other dependents .

Commentary Sources: Based on Malaysia, Domestic Violence Act (1994), Section 10; The Protection Project Journal of Human Rights and Civil Society 233

Paragraph 2 (e) is based on Trinidad and Tobago, Domestic Violence Act (1999), Section 6, Paragraph 4 (d) . See also: Ghana, Domestic Violence Act (2007), Section 27; India, Law No. 43 of 2005—Protection of Women from Domestic Violence Act, Sections 22 and 26 .

Chapter VI. Sanctions and Penalties

Article 34. Penalties for Domestic Violence

(1) Any person who causes or inflicts domestic violence as defined in Article 4 of this Law shall be punished by a fine, imprisonment, or both.

(2) For domestic violence, which constitutes physical or sexual violence as defined in Article 4, Paragraphs (2) a and c, the punishment shall be imprisonment.

Article 35. Aggravated Circumstances

In relation to domestic violence against women, the following circumstances shall be considered to be aggravated circumstances resulting in enhanced penalties for the offender: a. The domestic violence is committed against a female child; or the action of domestic violence is performed in the presence of a minor;

Commentary Source: Based on Greece, Law No. 3500—On Domestic Violence and Other Provisions, Article 6, Paragraph 3 . See also: Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 6 (f). b. The domestic violence is committed against a woman with special needs, a pregnant woman, or a woman who, due to whatever reason, is incapable of resisting;

Commentary Source: Brazil, Maria da Penha Law, Innovations of the Law. 234 Model Law against Domestic Violence

See also: Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 6 (f). c. The violence is severe or life-threatening, or inflicts wounds or grievous bodily harm;

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Article 1 . d. A weapon is used; or

Commentary Source: Sierra Leone, Domestic Violence Act (2007), Article 1 . e . Repeated incidents of domestic violence have occurred, regardless of the level of injury .

Article 36. Penalties for Violation of Protection Order

(1) Any person who willfully contravenes a Protection Order or any provision thereof shall be guilty of an offense and shall, on conviction, be liable to [description of penalties].

Commentary Source: Based on Malaysia, Domestic Violence Act (1994), Section 8. See also: Cyprus, Violence in the Family (Prevention and Protection of Victims) Laws 2000 and 2004, Section 32—Harassment of a victim and other person: “An accused or any other person acting on his behalf or by his own motion, who harasses or intimidates a victim of violence or a witness in a case of violence or a relative thereof in any place, and in a manner which affects or could affect the investigation or trial of a case of violence or causes mental agitation to a victim of violence or a witness in a case of violence knowing that he is a victim of violence or a witness in a case of violence, shall commit an offence punishable with imprisonment up to three years or with a fine up to one thousand five hundred pounds or with both such penalties and where the harassment or intimidation is committed against a victim accommodated in a shelter, the offence shall be punishable with imprisonment up to five years or with a fine up to three thousand pounds or with both such penalties.” The Protection Project Journal of Human Rights and Civil Society 235

(2) Any person who willfully contravenes a Protection Order by using physical violence on the protected person or any person who is convicted for a second or subsequent violation of a Protection Order shall be punished with [description of penalties for this aggravated offense].

Commentary Source: Based on Malaysia, Domestic Violence Act (1994), Section 8.

(3) For the purpose of this Article, a “Protection Order” shall include a Residence Order and an Emergency Protection Order under this Law.

Article 37. Penalties for Publication of Domestic Violence Proceedings

(1) Subject to Paragraphs (3) and (4) of this Article, no person shall publish any report of proceedings under this Law except by leave of the Court that heard the proceedings .

(2) Any person who contravenes Paragraph (1) commits an offense and is liable on conviction to [description of penalties].

(3) This Article shall not apply to the publication of any report in any publications that— a. Are of a bona fide professional or technical nature or b. Are intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, marriage counselors, or social welfare workers.

Commentary Source: Based on Caribbean Community, CARICOM Model Legislation on Domestic Violence, Clause 21 .

(4) This Article shall not apply to the publication of criminal proceedings under this Law, if the reporter protects the identity of the victim.

Commentary Source: Based on Ghana, Domestic Violence Act (2007), Section 25. 236 Model Law against Domestic Violence

Article 38. Statute of Limitations

(1) The start of the statutory limitation deadline shall be suspended until the victim liberates herself from the situation of domestic violence.

(2) For minors, the statutory limitation deadline shall be suspended until the minor reaches majority .

Chapter VII. Appeals

Article 39. Appeals to High Court or Courts of Appeal

(1) Where, in any proceedings under this Law, a Court— a . Has made or refused to make an order or b. Has otherwise finally determined or has dismissed the proceedings, any party to the proceedings or any other person prejudicially affected may appeal to a higher Court .

(2) Every appeal of this Law shall be heard as soon as practicable after the appeal is lodged .

(3) Except where the Court making the order appealed from otherwise directs that— a. The operation of an order made under this Law is not suspended by an appeal and b. Every order made under this Law shall be enforced as if no such appeal were pending.

Commentary Source: Based on New Zealand, Domestic Violence Act (1998), Articles 91, 94–95 . The Protection Project Journal of Human Rights and Civil Society 237

Chapter VIII. Support Fund

Article 40. Victims of Domestic Violence Support Fund

(1) A Fund for Victims of Domestic Violence shall be established.

Commentary Source: Based on Ghana, Domestic Violence Act (2007), Articles 29 ff.

(2) The monies of the Fund shall be applied— a. Toward the basic material support and compensation of victims of domestic violence; b. For any matter connected with the rescue, rehabilitation, and reintegration of victims of domestic violence; c. Toward the construction and maintenance of reception shelters for victims of domestic violence; d. To set up Rehabilitation Centers for domestic violence offenders; e. For the training and capacity building of persons connected with the provision of shelter, rehabilitation, and reintegration; and f. For the training and sensitization of judges, police officers, lawyers, and prosecutors and for the establishment and training of specialized female police officers.

Commentary Source: Based on Ghana, Domestic Violence Act (2007), Articles 30; words added . See also: Cyprus, Violence in the Family (Prevention and Protection of Victims) Laws 2000 and 2004, Section 26 (Paragraphs 4 and 5 in particular). Compensation: At a minimum, the Fund shall compensate the victims who were unable to receive compensation from the perpetrator and the victims who the state failed to protect . The latter category shall, for example, include victims who reported domestic violence to the police but who did not receive assistance. With regard to compensation, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power states that— “When compensation is not fully available from the offender or other sources, States should endeavor to provide financial compensation to: 238 Model Law against Domestic Violence

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization . “The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.” (Source: United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [29 November 1985], Paragraphs 12 and 13.)

The European Convention on the Compensation of Victims of Violent Crimes provides— “Article 2: 1. When compensation is not fully available from other sources the State shall contribute to compensate: (a) Those who have sustained serious bodily injury or impairment of health directly attributable to an intentional­ crime of violence; (b) The dependants of persons who have died as a result of such crime. 2. Compensation shall be awarded in the above cases even if the offender cannot be prosecuted or punished” and “Article 4: Compensation shall cover, according to the case under consider­ ation, at least the following items: loss of earnings, medical and hospitalisation expenses and funeral expenses, and, as regards dependants, loss of maintenance.” (Source: Council of Europe, Convention on the Compensation of Victims of Violent Crimes [1983].) Shelters/Safe Houses: The Government should provide well-funded shelters and relief support for girls and women subjected to violence, as well as medical, psychological, and other counseling services . (Source: Beijing Declaration and Platform for Action [1995], Paragraph 125 [a].) See also: Romania, Law to Prevent and Fight against Domestic Violence: Abstracts from Chapter VI—Shelters for the victims of domestic violence: Article 23. “(1) The centers named shelters in what follows are social security units, most often than not devoid of legal statute to provide protection, accommodation, care taking and counseling to the victims of domestic violence, The Protection Project Journal of Human Rights and Civil Society 239

forced to resort to the social security service . (2) […] It is forbidden to the aggression perpetrators to be grounded to enter the premises of the shelter where the victims are located. (3) The isolation of the victims from their aggressors can be done only with the consent of the former […]. […] (8) Public shelters have to provide gratuitously the following social services, in parallel with the observance of the quality standards both for the victim and for underage children under their supervision: protection against aggressor, medical care, food, accommodation, psychological service and legal counseling for a well determined period, until the settlement of the family crisis. In case of persons unable to self cater and accommodate, they have the right to residence in the shelter until settlement of these desiderata by the state or by the nongovernmental organizations through vocational training courses, institutionalization of the underage children etc.” Article 24. “(1) Public security services […] ensure the security of the public shelters in the respective area . (2) On reception in shelter, the victim is informed on the legal rights whereby to safeguard the possessions left with the aggressor […]. The legal counseling is gratuitous, and the Town hall must defray, at least in part, the corresponding expenses . […] (4) All shelters shall be rounded off to a hospital or another sanitary unit, apt to provide the medical and psychical care.” See also: Cyprus, Violence in the Family (Prevention and Protection of Victims) Laws 2000 and 2004, Section 31; Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act . No . 31 of 2001 (2001), Article 3 . Rehabilitation Centers for Perpetrators: The Government should take measures to ensure rehabilitation of perpetrators. It should provide, fund, and encourage counseling and rehabilitation programs for the perpetrators of violence and promote research to further efforts concerning such counseling and rehabilitation as to prevent recurrence of such violence. (Source: Beijing Declaration and Platform for Action [1995], Paragraphs 124 [d] and 125 [i].) The aim of working with the perpetrators is to quickly and lastingly break the vicious cycle . The perpetrators should gain an understanding of their risk to repeat violent acts, and they should be enabled to take preventive measures to stop them from doing so. Thus, the Rehabilitation Centers should focus on 240 Model Law against Domestic Violence

taking responsibility (teach the perpetrator to take responsibility for his or her actions), reflexivity and self-control, empathy (teach the perpetrator toput himself or herself in the position of the victim of the domestic violence and of any affected children), alternative nonviolent ways to solve conflicts and acquire relationship and communication skills. (Source: Based on German Federal Ministry for Family, Seniors, Women and Youth, Materials for Gender Equality No. 109/2008 [Standards and Recommendations for working with male perpetrators of domestic violence; available only in German].) “The DSWD [Department of Social Welfare and Development] shall provide rehabilitative counseling and treatment to perpetrators towards learning constructive ways of coping with anger and emotional outbursts and reforming their ways.” (Source: Philippines, Anti-Violence against Women and Their Children Act [2004], Republic Act No. 9262, Section 41.) Abusers’ Rehabilitation Centers are also established by Georgia’s law. It requires the centers to ensure temporary placement, psychological assistance, and treatment for abusers. (See: Georgia, Law of Georgia on the Elimination of Domestic Violence, Protection of and Support to Its Victims, Article 20 .) Training and Sensitization: The need for training is also explicitly mentioned in the laws of Japan, Act on the Prevention of Spousal Violence and the Protection of Victims, Act . No . 31 of 2001 (2001), Article 23, Paragraph 2); Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 42; and Romania, Law to Prevent and Fight against Domestic Violence, Article 6, Paragraph 1 .

Article 41. Sources of Money for the Fund

The sources of money for the Fund shall include the following: a. Funding approved by Parliament for payment into the Fund; b. Voluntary contributions to the Fund from individuals, organizations, and the private sector; and c. Funding from any other source approved by the Minister of Finance.

Commentary Source: Based on Ghana, Domestic Violence Act (2007), Article 31. Financial Resources: The main sponsor for the Fund shall be the Federal Government . The Protection Project Journal of Human Rights and Civil Society 241

Article 42. Management of the Fund

(1) The Fund shall be managed by the Victims of Domestic Violence Management Board.

(2) The Management Board shall consist of the following members: a. The Chairperson who is the Minister responsible for Woman and Children’s Affairs, or the representative of that Minister; b. One high-ranking representative from the Ministry of Justice; c. One high-ranking representative from the Ministry of Health; d. One high-ranking representative from the Ministry of Education; e. One high-ranking representative from the Police Service; f . One high-ranking representative from the Department of Social Welfare; g. Two representatives of civil society organizations; and h. Four people nominated by the President.

Commentary See also: Cyprus, Violence in the Family (Prevention and Protection of Victims) Laws 2000 and 2004, Section 7. Composition: The composition of the Management Board shall reflect the various people and institutions that deal with the issue of (domestic) violence against women.

(3) Members of the Management Board shall be paid allowances approved by the Minister of Finance .

Commentary Source: Based on Ghana, Domestic Violence Act (2007), Articles 35, 36, and 39 .

Article 43. Function of the Management Board

The Management Board shall— a . Make recommendations for a national plan of action against domestic violence and monitor and report on the progress of the national plan through the Minister for Woman and Children’s Affairs; 242 Model Law against Domestic Violence

b. Advise the Minister for Woman and Children’s Affairs on policy matters under this Law; c. Propose and promote strategies to prevent and combat domestic violence; d. Coordinate with government agencies and organizations to promote the rehabilitation and reintegration of victims of domestic violence; e. Prepare guidelines for disbursement of monies from the Fund; f. Manage the Fund; g. Conduct research on— • International and regional developments and • Standards for dealing with matters of domestic violence. • Deal with any matter concerned with domestic violence.

Commentary Source: Ghana, Domestic Violence Act (2007), Article 37 . See also: Cyprus, Violence in the Family (Prevention and Protection of Victims) Laws 2000 and 2004, Section 7; Philippines, Anti-Violence against Women and Their Children Act (2004), Republic Act No. 9262, Section 39.

Article 44. Meetings of the Management Board

The Management Board shall meet at least once every three (3) months.

Commentary Source: Based on Ghana, Domestic Violence Act (2007), Article 38; words omitted . The Protection Project Journal of Human Rights and Civil Society 243

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