volenti non fit injuria? How Does Consent Influence the Perception of the Ideal Victim with regards to Human Trafficking? F.F.C.C. Sweep LL.M Anr: 902377 Master Thesis Victimology and Criminal Justice Faculty of Law Tilburg University, Tilburg Supervisor: dr. mr. C.R.J.J. Rijken Second reader: mr. M.J. Middelburg February, 2015 I wish to thank Conny Rijken for encouraging me to be better. I wish to thank Bregje, Karin, and Michael for encouraging me to be. volenti non fit injuria? [ 2 ] F.F.C.C. Sweep Contents Introduction .............................................................................................................. 4 CHAPTER 1. What is Human Trafficking? ....................................................................... 6 1.1. The History (1904-1999) ................................................................................ 6 1.2. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons ............... 8 CHAPTER 2. What are the Characteristic of a (Trafficking) Victim? .................................. 13 2.1 The Ideal Victim .............................................................................................. 13 2.1.1. The Ideal Victim ....................................................................................... 13 2.1.2. The Ideal Trafficking Victim ........................................................................ 16 2.2. The Real Victim .............................................................................................. 20 2.3. Conclusion ..................................................................................................... 26 CHAPTER 3. What is the Issue of Consent? .................................................................. 29 3.1 What is Consent? ............................................................................................. 29 3.1.1. What is Consent in a (general) Criminal Law Perspective? .............................. 29 3.1.2. What is Consent in the Trafficking Definition? ............................................... 31 3.2 What is the problem with consent in the trafficking definition ................................ 32 3.2.1. The history of consent in the Trafficking definition ........................................ 32 3.2.2. The problems of consent with regards to the trafficking definition ................... 35 3.3 Conclusion ...................................................................................................... 47 CHAPTER 4. Conclusion ............................................................................................. 48 Bibliography ............................................................................................................ 54 volenti non fit injuria? [ 3 ] F.F.C.C. Sweep Introduction Human trafficking, the movement of people from one place to another with the aim to exploit these people for different labor purposes, divided over many economic sectors, is a difficult area of international law. It took the International Community years to come to an agreement on the definition, which is put down in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done 15 November 2000, entered into force 5 December 2003 (also referred to as “Palermo Protocol” or “2000 Protocol”). Yet, still bookcases can be filled with articles discussing the exact meaning and impact of this definition. This paper will do so as well. Human trafficking is a heinous crime, which creates many victims. These victims need protection and assistance. However, this can only be provided to them when they are acknowledged to be victims: their victimhood must be determined. Society has a certain view on the characteristics of a victim. Yet the world is not made out of black and white: victimhood is not always a clear cut given and society’s view on victims is not always conform reality. It is important to know the real trafficking victim. A very important tool in discovering the true trafficking victim is the trafficking definition as is laid down in the Palermo Protocol. Article 3(a) of the Palermo Protocol deals with the definition of human trafficking (and by extension, the victim of human trafficking). Then Article 3(b) deals with the situation in which consent is given. This is a problematic component when looked at a victim: how can one truly be a victim when their consent was given? The meaning and the impact of consent is not entirely clear, which makes the impact of the consent on victimhood not entirely clear. It is therefore that the research question of this paper will be: how does consent influence the perception of the ideal victim with regards to human trafficking? The purpose of this paper is to set out a preliminary literature analysis. It will not be groundbreaking, yet it is the initiation of a new perception on victimhood, in light of the issue of consent, with regards to human trafficking. In order to come to a proper answer to this research question, several sub questions must be answered first. In the first Chapter the general subject, human trafficking, will be introduced, answering the question: what is human trafficking? volenti non fit injuria? [ 4 ] F.F.C.C. Sweep Since “human trafficking” as such is enough to write a whole shelf of books, this Chapter will only go as far as the Palermo Protocol, it will be described how this legal document came about and what the main issues (discussions) were during the drafting procedure. The second Chapter will give a theoretic oversight in victimhood, answering the question: What are the characteristics of a (trafficking) victim? The first part will describe the “perfect victim” as society perceives this concept. The second part of this Chapter will describe the real trafficking victim. The differences between the perfect victim and the real victim are interesting to examine up close and will give a better insight in the problems which arise when victimhood needs to be determined. This paper will not focus on the consequences when a person is not perceived as a victim, either by society or by law enforcement. For the purpose of this paper it suffices to establish the characteristics of victimhood, which will form the framework for Chapter 3, but mostly for Chapter 4, because only when one truly understands how the victims of trafficking can be characterized, one can see how “consent” influences these characterizations. Chapter 3 will focus more specifically on the issue of consent as it can be found in the Palermo- definition, as well as the history, and how the negotiating parties came to the current text of Article 3(b), answering the question: what is the issue of consent. It will be set out in detail what difficulties have arisen in the general discussion on the meaning and scope of consent in the legal definition of trafficking. Many of the discussions regarding consent took place in discussions regarding prostitution. This Chapter will describe this discussion. The fourth Chapter will then explain exactly how consent has influence on how we look at the ideal trafficking victim, and it will explain the purpose (or non-purpose) of the addition of consent to the Palermo Protocol. In short, Chapter 4 will answer the research question of this paper. This paper will mostly rest upon desk study and a personal analysis of this study. In the first Chapter the legal definition of human trafficking will be given and explained. This will be fully based upon legal documents and dito authors. The second Chapter will set out what the literature considers to be victims, both ideal and real. Chapter 3 will be a literature review and personal assessment of the findings regarding the component of consent in the legal definition. My final conclusions in Chapter 4 will be based on my considerations of all the used literature, documents and analysis throughout this paper. volenti non fit injuria? [ 5 ] F.F.C.C. Sweep CHAPTER 1. What is Human Trafficking? This Chapter will describe and analyze the definition of human trafficking. In addition, it will also explain how the international community came to this definition as it is laid down in the Palermo Protocol. The first part will consist of an overview in the historical Conventions (from 1904 until 2000), which all led up to the UN Palermo Protocol in 2000. Paragraph 1.2 will focus on this Protocol. It will give an elaborate explanation of the definition and its implications. 1.1. The History (1904-1999) Over the years several international legal documents have offered a definition regarding trafficking of human beings. As Anne Gallagher puts it: “[a] study of the definition of trafficking is, in many senses, also a study of the history of trafficking in international law”1. The first document dates back from 1904, the International Agreement for the Suppression of the White Slave Trade. As the name suggests, this is an Agreement between States, based on the will of States to comply. This Agreement is aimed at the protection of women and girls under age, preventing them to be forced into “an immoral life”, which implies prostitution. However, it was found that this Agreement did not cover enough ground, and for that reason, the document was re-negotiated in 1910 which led to the International Convention for the Suppression of the White Slave Traffic (which was amended by Protocol Amending the International Agreement for the Suppression of the