Abuse of a position of vulnerability, as one of the "means" elements in the definition of trafficking, has received significant attention. The Travaux Préparatoires (the record of United Nations negotiations) to the Protocol against Trafficking in Persons states that a vulnerable person is a person who "has no real and acceptable alternative but to submit to the abuse involved". Commenting on this definition, UNODC, in its Issue Paper entitled Abuse of a Position of Vulnerability and Other "Means" Within the Definition of Trafficking in Persons, explains that vulnerable persons are those who, due to reason of age, gender, physical or mental state, or due to social, economic, ethics or cultural circumstances find it especially difficult to fully exercise their rights before the justice system recognized by law.
The existence of vulnerability is best assessed on a case-by-case basis, taking into consideration the personal, situational or circumstantial situation of the alleged victim. Personal vulnerability for instance, may relate to a person's physical or mental disability. Situational vulnerability may relate to a person being irregularly in a foreign country in which he or she is socially or linguistically isolated. Circumstantial vulnerability may relate to a person's unemployment or economic destitution. Such vulnerabilities can be pre-existing and can also be created by the trafficker. Pre-existing vulnerability may relate (but not be limited) to poverty; mental or physical disability; youth or old age; gender; pregnancy; culture; language; belief; family situation or irregular status. Created vulnerability may relate (but not be limited) to social, cultural or linguistic isolation; irregular status; or dependency cultivated through drug addiction or a romantic or emotional attachment or through the use of cultural or religious rituals or practices.
The Arab Model Law on Combating Human Trafficking of 2012 combines all these elements in defining abuse of position of vulnerability to mean:
… exploitation of physical, mental or psychological disability or a given legal status, or any particular situation that may affect the will or behaviour of the person when she/he has no real and acceptable alternative but to submit to the abuse involved.
Evidence of vulnerability is an important element of a trafficking case and could be a critical indicator for victims identification. Likewise, an accurate assessment of vulnerability can result in proper support and protection for victims.
Nevertheless, it is important to differentiate between "vulnerability" as such and "abuse of a position of vulnerability" as one of the "means" listed in the Protocol. Proof of vulnerability is not of itself proof the offender abused that vulnerability. The prosecutor must prove both the existence of vulnerability and the abuse of that vulnerability by credible evidence. A victim's condition of vulnerability may be an indicator of abuse of that vulnerability, but it will not constitute a means of trafficking unless that vulnerability has been abused to negate the victim's consent. As stated in the UNODC Guidance Note on 'abuse of a position of vulnerability' as a means of trafficking in persons in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2012), abuse of a position of vulnerability takes place when:
As explained in the Guidance Note, personal circumstances should be considered when determining whether the victim's belief that he or she has no real or acceptable alternative option is reasonable.
Abuse of a position of vulnerability, as with all other "means", is applicable to all forms of trafficking and to all exploitative purposes listed in both the Protocol and national laws. Credible evidence of both the existence of a position of vulnerability on the victim's side as well as the abuse of that position by the trafficker is required for a finding of abuse. Such a finding should be irrelevant to the specific exploitative purpose of the case.
Furthermore, it should be borne in mind that the lack of a clear definition of abuse of vulnerability is likely to create challenges that should be identified and managed. For instance, misusing the concept may negatively affect the rights of the victims as well as the rights of the accused (such as the right to a fair trial). As the Guidance Note mentions, misapplication of the concept may also result in an expansion of the concept of trafficking, which may undermine its gravity as a crime and a violation of human rights.
Key facts : An Ivorian national was illegally brought to France at the age of 15 to work at the house of the accused and care for the children. The victim was especially vulnerable as she was a child with no legal residence status. Her parents died during the period for which she was subjected to forced labour. She did not have a passport and was fully dependent on the family she was working for. More specifically, the victim did not receive remuneration for her childcare and domestic work. She did not go to school and did not have any days off or holidays. She did not have any private space in the house as she was sleeping on a mattress on the floor in the same room as the children.
Decision by the Court of Appeal : The Court of Appeal dismissed the claim that the living and working conditions contravened human dignity. In particular, the court noted that the alleged victim had effective relationships with the children of the family and had similar housing conditions as the family members. The Court of Appeal issued a civil penalty on the grounds of the illegal employment of an immigrant and the abuse of a person's situation of vulnerability to obtain unpaid services.
Penalties/compensation : The Court of Cassation confirmed the award of monetary compensation that had been decided by the Court of Appeal, along with the prison sentence of one month. The compensation was of EUR 5 000 and covered both material and moral damages.
Key facts : The case involved the exploitation of 30 Bangladeshi workers in strawberry fields. The owner and foremen of a strawberry farm, as well as the businessman financing the production, exclusively receiving and then distributing the strawberries to the market, were accused of shooting and wounding around 30 Bangladeshi strawberry‑pickers who were demanding their unpaid wages; some of the immigrants were seriously injured. The immigrants were working for low wages and were provided with materials to build shacks in which they all lived together. The victims received their food and products for personal hygiene from a specific local supermarket that had an agreement with the producer and the respective costs were deducted from their monthly wage. The shooting occurred when the victims went on strike during the peak of the strawberry harvest season to claim the wages for the past six months and the owner of the farm sought to take on other workers, causing tension in the field as the victims tried to prevent the newly brought strawberry‑pickers from working. One of the foremen shot in the air to intimidate the victims and when they remained in the field, he opened fire on them.
Decision by the Mixed‑Member Jury Court of Patras : The court unanimously acquitted all the defendants in respect of trafficking in human beings for forced labour offence. The court of first instance found that there was not enough evidence to establish the concept of vulnerability on the basis of Article 323A of the Criminal Code. The defendants were, however, convicted of the criminal act of grievous bodily harm. The verdict was reviewed by the Prosecutor General of the Supreme Court ( 236) that found that there were no grounds for appeal in cassation.
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Indicators of trafficking in persons
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