Drafters should be aware that the use of the words “force” or “forced” is one of the most disputed elements in the definition of sex trafficking. Lawmakers and advocates alike have attempted to make a distinction between individuals who have been “forced” into commercial sexual activity and/or prostitution and those who have entered into such activity voluntarily. However, as clearly articulated in the core elements of this section, the consent of the trafficking victim is not a defense to the criminal offence of sex trafficking.
Countries in the process of drafting definitions of sex trafficking should be cautious with the use of the terms force, fraud, and coercion. The United Nations Office on Drugs and Crime Model Law against Trafficking in Persons recommends that legislatures consider that “the seemingly ‘voluntary offer’ of a worker/victim may have been manipulated or was not based on an informed decision.” (See: UNODC Model Law Against Trafficking in Persons, Art. 5(1)(i) commentary)
For victims 18 years of age and older, drafters should first seek to adopt a definition of sex trafficking which uses the phrase “by any means” because “the means used to place a person into forced labor, slavery or servitude are irrelevant once [the] end goals are proven.” (See: Combatting Human Trafficking in the Americas: A Guide to International Advocacy, 41, 2007.)
For legislation that includes force, fraud or coercion in the definition of sex trafficking, drafters should omit or amend legislation to eliminate such means for victims under the age of 18.
(See: UN Trafficking Protocol, Art. 3.)
For more information, please see the section on Abuse of a Position of Vulnerability.
“Whoever exploits another person through a coercive situation or the helplessness that is associated with their stay in a foreign country to induce them to take up or continue in prostitution, to commit sexual acts on or in front of the perpetrator or a third party through which they are exploited, or to allow them to be committed on the person by the perpetrator or a third party, shall be punished with imprisonment from six months to ten years. Whoever induces a person under twenty-one years of age to take up or continue in prostitution or any of the other sexual acts designated in sentence 1 shall be similarly punished.”
(See: German Criminal Code, Section 232)
Sex Trafficking means to:
1. Recruit, abduct, transport or transfer or harbour persons for the purpose of subjecting to forced labour or service, prostitution, enslavement or for removal of body organs, by getting their consent by means of threat, oppression, coercion or using violence, of abusing influence, of deceit or of abusing their control over or the vulnerabilities of these persons shall be sentenced to imprisonment up to eight to twelve years and a fine corresponding to 10,000 days.
2. The consent of the victim shall be irrelevant in cases where the acts that constitute a crime are attempted with the intentions described in paragraph 1.
3. In cases where minors below the age of eighteen are procured, abducted, transported or transferred or harboured with the intentions specified in paragraph one, the penalties foreseen in paragraph 1 shall still be applied to the perpetrator, even when no intermediary actions relating to the crime are committed.
4. Legal entities shall also be subject to security measures for such crimes.
(See: Criminal Code of Turkey, Art. 80)
CASE STUDY: In the United States, where the Trafficking Victims Protection Act (TVPA) has been in effect since 2000, lawmakers and criminal justice professionals have realized the difficulty of proving an individual has either perpetrated or been victimized by sex trafficking. In the past, the most severe forms of human trafficking required the proof of “force, fraud, and coercion” to secure the toughest penalties and most effective protection of victims.
Over the years, government officials have shifted their approach, recognizing the difficulty of proving “force, fraud, or coercion.” In December 2008, the United States Department of Justice advised individual states to draft sex trafficking and/or pimping and pandering laws without the requirement for proof of “force, fraud, and coercion.” (See: The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Section 225)
In addition, Section 222 of the 2008 William Wilberforce Trafficking Victims Protection and Reauthorization Act has been interpreted to mean that “proof of fraud, force or coercion is now to be gauged through the eyes of the victim, rather than being viewed through a ‘reasonable person’ standard.” (See: The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008: 50 Key Provisions published by the Salvation Army)
This evolving approach comes closer to recognizing that one cannot consent to being trafficked for the purpose of prostitution, particularly where a trafficker or pimp is involved. As advocates on the front lines of assisting those attempting to leave prostitution often explain, the existence of prostitution – be it street prostitution or in brothels – is linked with conditions that create an environment where those seeking to profit from the exploitation of women and children may prey on those most vulnerable, thereby leading them into the clandestine world of sex trafficking.
Despite the shifting approach of the United States, concerns remain that the federal trafficking law’s difficult standards will not protect trafficking victims or enable prosecution of sex traffickers.