The current low levels of prosecutions and convictions of human traffickers may be attributed to numerous factors. Indeed, there are many challenges to an effective criminal justice response to trafficking in persons, all of which may impact on the number and success of prosecutions of the crime. Several examples of these challenges are discussed in the paragraphs that follow.
Law enforcement agencies in many countries lack the training, experience and resources to investigate complex, transnational organized crime. In many of these countries, laws criminalizing trafficking are relatively new and investigators simply lack the expertise and experience to effectively investigate this class of crime. Indeed, as Gallagher and Holmes (2008, p. 320) observe, in many countries trafficking is still a new crime, involving "new and untested laws" (see also Farrell, Owens and McDevitt, 2014).
Some countries may also lack the financial capacity to provide training, adequate funding for technology and the comparatively expensive operating costs of investigating cross-border crimes. An inability to provide adequate victim protection, assistance and support may impede investigations and prosecutions, as victims are less willing or able to provide information and testimony to police and prosecutors when their protection and recovery needs are not satisfied.
The transnational nature of many trafficking cases presents particular challenges to law enforcement, who must collect evidence from foreign jurisdictions, some of which may be unwilling or unable to cooperate. This challenge was recognized in the United States case of Cruz v. Toliver , (W. D. Ky. March 30, 2007). The court held " Claims of forced labour and trafficking (…) required more time, effort and research to address (...) The Plaintiff's counsel not only had to conduct discovery here in the United States, but also had to go abroad to take discovery in order to submit the claim under these statutes".
A related point is that prosecution of transnational trafficking cases often requires international collaboration between law enforcement agencies in countries of origin, transit destination. This is a demanding, potentially costly, and time and resource intensive process. In the US case of United States v. Maksimenko (E.D. Mich. June 25, 2007), Ukrainian defendants were charged with obtaining labour and services from Ukrainian women in the United States through the use of threats and physical restraints in violation of 18 U.S.C. 1589. The court decided that the Government's motion for a five-month adjournment of the criminal proceedings to enable prosecutors to obtain evidence from Ukraine should be allowed. The court found that the five-month period was not excessive and did not infringe the defendants' constitutional rights to an expeditious trial. The Government submitted a request to the Government of Ukraine pursuant to their bilateral treaty on Mutual Legal Assistance in Criminal Matters, but it took significant time for the latter to respond to the request (Mattar, 2011).
Many victims are reluctant to take part in criminal trials (see Davy, 2017). Numerous factors feed into this reluctance, including, inter alia, fear of reprisals by traffickers and their associates, irregular status and fear of deportation, mistrust of authorities, shame, and a perception that their traffickers actions are not criminal or wrong. Others may simply want to go home and restart their lives, rather than stay for potentially lengthy periods in a country where they experienced exploitation and abuse. As Davy (2017, p.123) observes, "[t]here is little doubt that the experience of providing evidence as a witness can be a traumatic event, and one that may lead to 'secondary victimization'".
It is widely recognized that providing protection and assistance to victims of trafficking supports criminal justice objectives. Victims are more likely to assist authorities where they feel safe and their needs are met. In this way, an effective criminal justice response to trafficking in persons is intrinsically tied to a human rights-based approach to the crime - they are mutually reinforcing (McSherry and Cullen, 2007). Module 8 discusses the human rights-based approach to trafficking broadly, while human rights in the specific context of the criminal justice process are explored in the section on Rights of victims to justice and protection in this module.
A controversial issue within the anti-trafficking community is whether victims should be compelled to testify in court against their traffickers. One view, supported by international principles, is that this should be the sole decision of the victim. The contrary view is that this should be a decision of the State because, without victim testimony, traffickers cannot be prosecuted. In the latter case, victims should therefore be compelled to testify to ensure traffickers are brought to justice and thereby prevented from trafficking others. It should be noted that this view goes against international guidelines and conflicts with a victim-centred approach to trafficking. As noted also by The Bali Process (2015):
"Victims must not be compelled to participate in the criminal justice process but be empowered to choose whether or not they wish to. For those victims who are willing and able to contribute to the investigation and prosecution of traffickers, particular protection considerations apply".
As pointed out in the 2017 UNODC publication Evidential Issues in Trafficking in Persons Cases - Case Digest , "many challenges are linked to victims' testimonies in trafficking cases. Some victim testimonies do not appear to be candid, straightforward and unwavering, but rather seem to be inconsistent, irrational, unpersuasive or clearly untruthful. In some cases, there is no other credible evidence to corroborate testimony. Additionally, victims will not always come forward to report the crime, and there may be no or only limited victim testimony available" (p. 12). Where victim testimonies suffer from these issues, it may make successful prosecution of traffickers more difficult. Some of these issues are discussed by David (2008).
Typical weaknesses in testimony include:
This is not to say that inconsistencies or weaknesses in victims' testimony will always impair the credibility of their evidence. In some cases, it may even have a positive effect, for example where earlier statements, although inconsistent with later ones, are clearly a result of intimidation and are indicative of the control an offender had over a victim. In the UK case of R v Connors (2013), described in UNODC's Evidential Issues in Trafficking in Persons Cases - Case Digest (2017, p.15):
"the Connors family forced their workers to work for little compensation and subjected them to degrading treatment. Most workers were in a vulnerable situation - unemployed, homeless or addicted to alcohol. One of the victims described the defendants as surrogate parents and stated that he did not want to leave them. In later interviews he contradicted these previous statements, described the defendants' behaviour as extremely violent and stated that he wanted to leave but was afraid of being harmed if he did so. In convicting the five defendants of a conspiracy to require a person to perform forced or compulsory labour, the court found the victim's first statement to be a result of intimidation by the defendants".
Several other, similar cases are extracted in the Digest (see pp. 13-16).
Given the trauma victims commonly suffer from situations of trafficking, combined with their fear of retaliation, their inexperience with court processes, and the searching cross-examination they must often face from defence counsel or judges, it is understandable that their evidence may suffer from shortcomings (Davy, 2017). Nonetheless, relying only on the victim's testimony, without additional, corroborating evidence, will make it difficult for a prosecution to prove their case beyond reasonable doubt (the standard of proof in criminal trials).
These evidentiary challenges highlight the need for police and prosecutors to receive specific training on interviewing and communicating with victims. A cautious and proactive approach dictates that investigators search for independent evidence to corroborate victim testimony. In line with this view, the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking (OHCHR, 2002) provide that States, intergovernmental organizations and NGOs should consider:
"Providing law enforcement authorities with adequate investigative powers and techniques to enable effective investigation and prosecution of suspected traffickers. States should encourage and support the development of proactive investigatory procedures that avoid over-reliance on victim testimony" (Guideline 5).
Similarly, for example, the Norwegian Government's Plan of Action to Combat Human Trafficking (2006-2009) provides that:
"The Government will consider the possibilities for using anonymous witnesses in human trafficking cases. The Government will also consider the possibility of using special forms of examination to avoid strain on and repeated examination of especially vulnerable aggrieved parties in human trafficking cases. This may entail examination by video link […] more gentle ways of conducting examinations during the main proceedings (judicial examination out of court) and/or recordings of statements made in the first instance."
The following case studies illustrate the challenges associated with relying on victim testimony alone, together with the benefits of calling corroborating evidence.
The case of Mariño Héctor Oscar concerns an 18 year old Paraguayan girl who was sexually exploited in a nightclub brothel. The victim arrived in Argentina knowing she would be engaging in prostitution; no deception or force was employed in recruiting her for this purpose. However, the conditions in the brothel were different from what she had been told. Once she arrived, the defendant exercised physical and psychological violence against her. The victim's testimony was ambiguous. She stated in her written testimony that she knew she would be engaged in prostitution and along with her story of being beaten and threatened by the defendant, expressed positive feelings towards him, stating that he sometimes treated her kindly and that he took care of her. The court used other evidence, besides this testimony, to form a full picture of the case. This included a medical forensic report which confirmed that the victim had been beaten and a psychological report which established that she had relatively low intellectual capacity, a lack of social skills and a very poor level of education. She also had a problematic past including mistreatment by her parents. This report, issued by the National Rescue Team, also included an explanation of her positive feelings for the defendant in that the fact of living with him had generated in her a mechanism of identification with him, which led her to feel that the exploiter was taking care of her. Thus, she normalized the exploitation.
The Nigerian victims in this case lied or would not give a statement because they were afraid of the "juju" threats and did not trust the police (they thought the police were corrupt because of their own cultural background). In order to counter this, the police made sure that the victims first talked to a former victim of human trafficking ("hands-on" expert) and a "juju priest". He helped the victims to get rid of the curse. Only after this would the police question the victim-sometimes in the presence of the "hands-on" expert.
The People v. Lito Manalo case involves a conviction for recruiting and transporting a minor for sexual exploitation. The minor victim, who had been taken aboard a boat in order to sexually exploit her, was rescued before the exploitation transpired. Moreover, she was unavailable for testimony during the trial, as she had escaped from the NGO shelter where she was housed after the rescue. Nevertheless, the defendant was convicted of a full-fledged trafficking offence and not of an attempt. The court concluded that there was no doubt that the defendant recruited the victim for the purpose of prostitution. Instrumental to the conviction was a solid foundation of evidence which included testimony of persons other than the victim and, for example, a coast guard official, the mother of the victim and a social worker who interviewed the victim, statements of the victim and other persons and documentary evidence.
An analysis of case law from various jurisdictions reveals that defence lawyers (and on occasion prosecutors and judges) misconceive the elements that make up the crime of trafficking in persons. Several examples are described below. Fortunately, in the cases below the courts correctly identified these errors. Regrettably, this is not always the case.
1. Some defence lawyers have argued that if a victim's movements are not restricted or controlled by traffickers, he or she cannot be a victim of trafficking.
Court of Appeals (ECLI:NL:HR:2015:1100 (Netherlands) 486) and Supreme Court (ECLI:NL:GHARL:2013:8522 (Netherlands), 487)
The mere possibility of a victim to escape her situation, as shown by the victim's travelling abroad, is not enough to bring about the exoneration of a defendant on charges of trafficking. The victim had met the defendant in Morocco, married him and moved to the Netherlands when she was 18 years old and illiterate. She had travelled abroad several times during the alleged period of exploitation. Fortunately in this case, the evidence showed that the defendant abused her and forced her to work in prostitution and to hand over what she earned to him. He was convicted of human trafficking.
2. Some defence lawyers have argued that victims must have been exploited to complete the crime of trafficking in persons. However, as noted in Module 6, it is only necessary for the offender to act "for the purpose of exploitation". Therefore, the offence is complete if the offender has recruited, transported or harboured the victim using one of the proscribed means, notwithstanding that the offender has not yet exploited the victim - assuming there is intent to do so.
In Anos, a case from the Philippines, a victim refused to comply with the defendant's orders to have sexual relations with customers at a bar and was not forced to do so. However, the victim was still required to sit at a table in the bar and entertain customers. The defendant was convicted of trafficking in persons. In making this finding, the court focused on the totality of circumstances in this case, which included the recruitment, transportation and transfer of the victim to Malaysia by the defendant, her receipt and harbouring of the victim once in Malaysia, her deception towards the victim, and her intent to exploit the victim for prostitution and sexual exploitation.
3. Some defence lawyers have argued (in the first case successfully) that the existence and relative ease by which a victim has access to their network of family and friends, creates reasonable doubt as to whether they were held against their will.
In Urizar (Canada), while the court noted that the victim's relationship with her family was difficult, it also found that the victim was a Canadian citizen conversant with the language and culture who did, in fact, return to her family once her situation deteriorated. Moreover, her parents lived near the residence of the defendant where she was abused. Nevertheless, these positive factors did not prove conclusive to the court and the defendant was nonetheless convicted of trafficking and other crimes. The court noted that the victim had no money when she met the defendant, that she had a difficult relationship with her family and that the defendant forced her to take drugs. The combination of these factors made her vulnerable, despite a potential support system. The court of appeal explicitly addressed this point in affirming the conviction thus: "The fact that this control, this direction, this influence over the complainant's movements occurred in a location near her parents' residence, has no impact on Urizar's guilt.
Where offenders are diplomats, additional challenges arise. As diplomats enjoy diplomatic immunity, they may be shielded from prosecution. Several cases have been exposed in which women and children were trafficked for exploitation as domestic servants by foreign diplomats.
In Sabbithi v. Al Saleh (United States District Court of Columbia, 20 March 2009), the plaintiffs worked for the defendant and his wife in Kuwait for a period ranging from eight and a half months to five and a half years. In Kuwait the plaintiffs allegedly worked seven days a week, for long hours each day, and were paid between 35 Kuwaiti Dinar (KD) (approximately 121 USD) and 40 KD (approximately 138 USD) per month. The plaintiffs were later taken by the defendants to the United States to continue working in their capacity as domestic servants. The defendants signed a contract before coming to the United States promising to pay the plaintiffs $1,314 dollars per month, but they failed to comply with the provisions of the contracts and instead sent wages of 70 KD (approximately 242 USD) to 100 KD (approximately 346 USD) per month to their families overseas. In addition, the plaintiffs' passports were taken away from them and they were threatened with physical harm.
Finally, on January 18, 2007, they escaped. The plaintiffs argued that " human trafficking is a profitable commercial activity that results in severe human rights violations" and that bringing plaintiffs from Kuwait to the United States to work as domestic servants constituted human trafficking and thus was a commercial activity which is an exception to diplomatic immunity.
The court disagreed, holding that " hiring household help is incidental to the daily life of a diplomat and therefore not commercial for the purposes of the exception to the Vienna Convention." The court concluded that "the Trafficking Victims Protection Act 2000 (TVPA) does not override diplomatic immunity. The TVPA is silent as to whether it limits the immunity of diplomats, and courts should not read a statute to modify the United States' treaty obligations in the absence of a clear statement from Congress."
The court did recognize that foreclosing the plaintiffs' access to the courts may have harsh implications, including even the denial of legal or monetary relief. According to the court: "The application of the doctrine of diplomatic immunity inevitably 'deprives others of remedies for harm they have suffered.' Congress, however, is the appropriate body for plaintiffs to present their concerns that the effectiveness of enforcing fair labour practices in the United States is compromised by diplomatic immunity."
However, diplomatic immunity is not absolute (OSCE, 2014):
Host governments also have a range of diplomatic measures to sanction abusive diplomatic employers such as exerting pressure and withdrawing privileges.
To overcome the difficulty of prosecuting a diplomat, the United States enacted the Trafficking Victims Protection Reauthorization Act (TVPRA) 2008, which creates preventative measures, such as limiting of the issuance of A-3 and G-5 visas if diplomatic missions or international organizations tolerate abuse or exploitation. It provides:
The Secretary shall suspend, for such period as the Secretary determines necessary, the issuance of A-3 visas or G-5 visas to applicants seeking to work for officials of a diplomatic mission or an international organization, if the Secretary determines that there is credible evidence that 1 or more employees of such mission or international organization have abused or exploited 1 or more non-immigrants holding an A-3 visa or a G-5 visa, and that the diplomatic mission or international organization tolerated such actions.
Another notable change introduced by the TVPRA 2008 is the power of the United States Government to revoke the passport of an individual convicted of participating in international sex tourism.
The following cases illustrate the issues arising when the offenders are diplomats.
In Reyes v Al-Malki  UKSC 61 , Ms Reyes, a Philippine national, was employed by Mr and Mrs Al-Malki as a domestic servant in their residence in London between 19 January and 14 March 2011. Her duties were to clean, to help in the kitchen at mealtimes and to look after the children. At the time, Mr Al-Malki was a member of the diplomatic staff of the embassy of Saudi Arabia in London. Ms Reyes alleges that she entered the United Kingdom on a Tier 5 visa which she obtained at the British embassy in Manila by producing documents supplied by Mr Al-Malki, including a contract showing that she would be paid £500 per month. She alleges that during her employment the Al-Malkis maltreated her by requiring her to work excessive hours, failing to give her proper accommodation, confiscating her passport and preventing her from leaving the house or communicating with others; and that they paid her nothing until after her employment terminated upon her escape on 14 March. The main issues on the appeal concern the effect of article 31(1)(c) of the Convention, which contains an exception to the immunity of a diplomat from civil jurisdiction where the proceedings relate to "any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions." This raises, among other issues, the question how, if at all, that exception applies to a case of human trafficking. Since there is some evidence that human trafficking under cover of diplomatic status is a recurrent problem, this is a question of some general importance ... the employment of a domestic servant to provide purely personal services is not a "professional or commercial activity exercised by the diplomatic agent". It is therefore not within the only relevant exception to the immunities. The fact that the employment of Ms Reyes may have come about as a result of human trafficking makes no difference to this.
Seminal litigation victory
Dechert [law firm] has made sustained efforts to pursue diplomatic traffickers by means of civil lawsuits brought in the federal courts. In fact, it was an important victory scored by Dechert a decade ago that made such an avenue possible. In a case that set precedent in piercing diplomatic immunity in trafficking scenarios, Vishranthamma Swarna, a domestic worker, alleged forced labour, slavery and sexual slavery claims against a Kuwaiti diplomat and his wife.
The diplomatic couple argued that diplomatic immunity protected them against lawsuits, even after their posting to the United States had ended. Yet the US District Court for the Southern District of New York ruled that "residual immunity" - a form of protection from some U.S. laws that continues after diplomats leave their posts - did not apply to how diplomats treated their household workers. The Second Circuit later affirmed, thereby establishing federal precedent.
By showing that diplomatic immunity was no longer invincible, Swarna was a watershed, opening the door to a slew of successful lawsuits against high-ranking diplomatic officials.
Sustained pursuit of diplomatic traffickers
Dechert has not stopped its fight since the Swarna case and has continued to represent many more servants and domestic workers.
"Dechert lawyers set an important precedent in showing that diplomatic immunity is not an invincible shield," said Martina Vandenberg, founder and president of Washington, DC's Human Trafficking Pro Bono Legal Centre. "With immense skill, Dechert's pro bono attorneys have obtained immigration relief for trafficking survivors, filed cutting-edge civil cases against diplomats, and won significant damages from traffickers."
Recently, a Dechert team acting pro bono won a default judgment in New York on behalf of Mashud Rana, a domestic worker from Bangladesh who had been kept in barbaric conditions by Bangladesh's former consul general in New York, now the country's ambassador to Ethiopia. For 18 months, Mr. Rana had been forced to work 16- to 20-hour days without pay and was subjected to death threats if he tried to escape. The Dechert team first won a ruling that the diplomat and his wife were not immune from suit. The U.S. District Court for the Southern District of New York subsequently issued a default judgment against Mr. Rana's former captors, fixing damages for back pay and emotional distress at over US$920,000.
Dechert teams have also pursued remedies in a number of cases for domestic workers trafficked from other countries. In one civil case, also in the U.S. District Court for the Southern District of New York, the firm acted against a former Kenyan diplomat to the United Nations who violated federal human trafficking laws by forcing her housekeeper and nanny to work round-the-clock for US$150 a month. After successfully defeating a motion to dismiss, the Dechert team secured a favourable settlement for the victim, enabling her to bring her children to the United States and move forward with her life.
Another barrier to prosecution that arises in some jurisdictions are statutory limitation periods which prevent an offender from being prosecuted after a specified period of years from the date of their offending or detection of their offending. Due to the hidden nature, inherent complexity and evidentiary challenges of the crime, trafficking cases often take considerable time to be investigated. Yet, once the limitation period expires, the perpetrators of the crime may evade justice.
The United Nations Convention against Transnational Organized Crime (UNTOC) calls upon States parties to enact long limitation periods. Article 11 (5) requires "[e]ach State Party, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offense covered by this Convention and a longer period where the alleged offender has evaded the administration of Justice." Similarly, article 29 of the United Nations Convention against Corruption (UNCAC) provides that "Each State Party shall, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offense established in accordance with this Convention and establish a longer statute of limitations period or provide for the suspension of the statute of limitations where the alleged offender has evaded the administration of justice."