Drafters should include provisions that explicitly state that “Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” (See: UN Recommended Principles and Guidelines on Human Rights and Human Trafficking, Principle 7 and Guideline 4(5); UN Convention against Transnational Organized Crime, Article 18(12) and 18(27); Model Provisions for State Anti-Trafficking Laws, Center for Women Policy Studies, Protections for Trafficking Victims Proposed Language, 6, 2005; State Model Law on Protection for Victims of Human Trafficking, Division D, Section 3, 2005; Council of Europe Convention Against Trafficking in Human Beings, Art. 26, 2005; UNODC Model Law Against Trafficking in Persons, Art. 10, 2009)

Articles 6 and 10 of the Republic of Korea Act on the Punishment of Procuring Prostitution and Associated Acts provide an example of this non-detention approach.

Article 6 (Exceptions to the Punishment for Victims of Prostitution and the Protection thereof)
(1) The victims of prostitution shall not be subject to punishment for prostitution.

(2) In case where there is a good reason to believe that the accused or a witness is a victim of prostitution in the process of an investigation, the prosecutor or the judicial police officer shall immediately notify the victim's legal representative, family members, relatives, or legal counsel, and take appropriate actions to protect the victim including personal protection, confidentiality of investigation, transfer of victims to family members, relatives, or assistance facilities and counseling centers for the victims.

A prosecutor or a judicial police officer may not give notification when unavoidable circumstances exist such as protecting the privacy of the accused or the witness.

(3) In case where the court or law enforcement agencies investigate or question as witnesses, reporters (report includes complaints and claims hereinafter) of crimes defined under this Act or victims of prostitution (hereinafter collectively referred to as “reporter, etc.”), Article 7 or Article 13 of Protection of Reporters, etc. of Specific Crimes Act shall be applied mutatis mutandis. In such case, existence of concerns for retaliation are not required except for Article 9 and Article 13 of Protection of Reporters, etc. of Specific Crimes Act.

Article 10 (Invalidation of Claims Arising from Illegal Causes)
(1) The claim that a person who procures prostitution and does associated acts, a person who employs and recruits those who sell sex or introduces and mediates prostitution, or a person who has trafficked another person for the purpose of prostitution has on those who sell sex or is planning to do so regarding one's deed shall be invalidated regardless of the form or pretext of the contract. The same shall apply when the claim is transferred to a third party or the liability is undertaken.

(2) The prosecutor or the judicial police officer shall check and take into consideration whether money, valuables, property benefits were provided for the purpose of seducing and coercing prostitution or preventing a person from leaving the brothel when investigating a case regarding complaints and claims resulting from questionable noncompliance of a liability related to illegal causes as set forth in paragraph (1).

(3) When investigating a person who sells sex or victims of prostitution, the prosecutor of the judicial police officer shall notify the person or the legal representative the fact that claims under paragraph (1) are invalidated and that assistance facilities are available.

(See: The Republic of Korea Act on the Punishment of Procuring Prostitution and Associated Acts, 2004)

Current research clearly demonstrates that women and girls are being detained, arrested, charged and prosecuted for criminal activity directly resulting from being trafficked.  This represents one of the most pressing concerns for the protection of the human rights of trafficking victims.  Law enforcement and prosecutors should screen women and girls in prostitution to determine whether they have in reality, been trafficked into prostitution or other forms of sexual exploitation. [Link to Identification and Screening for Sex Trafficking in this section of the Knowledge Asset.]

Where trafficking victims have criminal records because of being arrested, charged and/or convicted for prostitution-related offenses which are a result of the trafficking situation, these criminal records should be expunged. The state of New York, United States, has recently taken this innovative approach. Senate File 4429/Assembly File 7670 would enable victims of sex trafficking who are convicted of prostitution related offenses as a result of the trafficking to apply to the court to get the conviction vacated.  The bill was passed by the Assembly in a vote of 139-0, and was delivered to the Senate in March 2010 where it awaits action.