Ever since UNODC started collecting statistical data on trafficking in persons 15 years ago, women and girls have consistently represented the majority of reported victims of human trafficking. Furthermore, UNODC reports have also shown that women feature highly among those prosecuted and convicted for offences relating to trafficking of persons, especially when compared with other areas of crime. Although most countries report overall female offending rates below 15 per cent of the total for all crimes, approximately 30 percent of trafficking in persons prosecutions and convictions involve female offenders.
In addition to these statistical data trends, UNODC’s community of practice has often highlighted the complexity of adjudicating and investigating cases that involve female victims of trafficking as alleged perpetrators.
This study examines these trends and complexities. It analyses case law on trafficking in persons for sexual exploitation involving female defendants, who had been or were contemporaneously being exploited as trafficking victims. Fifty-three cases were analysed from 16 different jurisdictions, with a focus on the European region. These cases were, for the most part, collected using the UNODC Trafficking in Persons Knowledge Portal. The analysis employed a thematic and qualitative textual analysis of the judicial decisions, enriched with bibliographical references and expert input. Draft findings of this analysis were discussed with experts in two meetings.
The main finding of this study is that traffickers use victims to shield themselves from prosecution. In many of the cases examined, traffickers used victims to commit acts proximate to the exploitation itself. This included, for example, recruitment of new victims, maintaining control over victims, collection of the proceeds from the exploitation, and the advertising of services. While these are, generally speaking, low-ranking roles within criminal hierarchies, they expose victims to greater risk of detection by law enforcement authorities. Using victims in this way is one means by which traffickers evade criminal liability and enjoy impunity.
Notably, the study also found that, in many cases, victim-defendants continue to be sexually exploited by the trafficker while simultaneously carrying out acts related to the trafficking process. Indeed, a significant conclusion of this study is that there is often a nexus between human trafficking and gender-based violence. In around 25% of the cases examined, victims who had been prosecuted for trafficking offences had suffered one or multiple forms of gender-based violence, either before or while being trafficked. These acts of violence included childhood sexual assault and sexual slavery, domestic and intimate partner violence, and forced and child marriage.
Relatedly, a further and key finding was that female victim-defendants in the case law examined were commonly intimate partners, wives, sisters, daughters, nieces, or mothers of their traffickers. The cases involving trafficking within the context of family relationships and prior gender-based violence, particularly involving children, revealed scenarios in which the violence was normalised to the extent that the women were unaware of their status as victims and/or the criminal nature of their acts. Nonetheless, and despite the nature of these relationships to the trafficker in the case law examined, very few courts addressed this important dimension. In fact, the intimate partnership or family relation with the victim-defendants was often used by the traffickers as a defense strategy to evade liability for trafficking offences, with cases presented as merely familial disagreements.
An examination of victims’ roles in offending also revealed a different set of motives from those typically attributed to traffickers. These included: seeking alleviation from their own exploitation, securing the trafficker’s affection, and having no choice but to obey the trafficker’s orders. Economic gain was a motive in a few cases, including attempts to escape extreme poverty that rendered them susceptible to trafficking, or in cases closely tied to economic survival and family care-giving obligations, especially for single mothers. Only in very few cases did victims engage in trafficking as a means of moving up within the hierarchy of criminal organizations.
The case law analysis also highlighted that certain “means” in the definition of trafficking in persons remain contentious in national judicial practice. This is an important observation, given the relationship between the trafficker and the victim-defendants raises important issues with respect to the “means” used to commit the underlying trafficking crime with which the victim-defendant was initially trafficked. It is also relevant to the potential application of the principle of non-punishment to victim-defendants.
In particular, the case law analysis revealed diverse interpretation and application of the means of “coercion” and “abuse of position of vulnerability”. In relation to “coercion”, there appear to be similarities with the concept of “coercive control” as it is understood in domestic and intimate partner violence litigation. While some decisions restrict “coercion” to the threat or use of force, others recognise that it encompasses more subtle forms of conduct similar to those captured by “coercive control”. Such conduct extends beyond physical abuse and covers, for example, sexual coercion and tactics to intimidate, degrade, isolate and control victims.
In relation to the means of “abuse of a position of vulnerability”, courts across jurisdictions recognised the often extreme vulnerability of victim-defendants based on their sex, age, poverty level, migration status, prior victimisation, disability and child and family obligations, among other factors.
Another finding of the case law analysis concerned the principle of non-punishment. Victim-defendants face many difficulties in benefiting from this principle for crimes they were compelled to commit, or that were a direct consequence of the trafficking situation. Courts appear to apply varying and, at times, stringent standards associated with the criminal law defences of “duress” and “necessity”. Other difficulties included burden of proof and temporality requirements, as well as the impact of early plea agreements. Explicit statutory exceptions (for instance, those limiting the principle to less serious offences) constituted a further barrier, as did non-recognition of “forced criminality” as a “purpose” or form of exploitation within national anti-trafficking legislation. Failure to properly apply non-punishment provisions sometimes resulted in the double-victimisation of victim-defendants.
From the case law examined, a few cases contained no discussion of the non-punishment principle at all, while in others the victim-defendant was not recognised as a victim by the court, or the court simply rejected application of the non-punishment provision. All such cases resulted in the prosecution, conviction and punishment of victims of trafficking for their engagement in crimes, which they were either compelled to commit or committed in the course of being trafficked.
This study also found that courts used divergent approaches when considering the relevance of victim-defendants’ prior trafficking experience to sentencing. Trafficking experiences were seen as both an aggravating and mitigating circumstance by judges. There were instances where the sentencing decision was stricter because the victim “should have known”, and others where due consideration was given to victimisation in mitigating the penalty.
The identified case law also showed instances of appropriation of “family terminology and roles” by trafficking groups, distinct use of voodoo rituals and women as “madames” to recruit new victims and escape liability.
Adopting a gender lens in the examination of the selected case law further revealed that gender dimensions are most often not taken into consideration in much of the judicial reasoning. Out of the 16 jurisdictions from which case-law was reviewed, only one made reference to human trafficking as a form of gender-based violence and framed its decision-making within the context of the international women’s rights frameworks, namely the Convention on the Elimination of All Forms of Violence against Women (CEDAW) and Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belem do Pará).
Indeed, despite multiple references to sexual violence and forced and clandestine abortion in the jurisprudence, this study found that victims’ sexual and reproductive rights went almost wholly unaddressed in the cases examined. Only one case mentioned the violation of the victims’ right to sexual self-determination. None of the cases included references to initiating any proceedings related to the victims’ reproductive rights. While the possibility that other charges were brought separately cannot be excluded, this absence is indicative of the lack of a gender-based perspective in most, if not all, criminal justice systems.This deficit is all the more serious in the context of crimes ––including trafficking in persons–– that disproportionately affect women.
Finally, it should be noted that this study is not intended to be a comprehensive examination of judicial practice. In addition, given the diversity of legal systems analysed and the lack of representativeness of the case law sample, it does not draw comparisons between States.
