Drafters should ensure that the punishment for sex trafficking is sufficiently severe and commensurate with similarly serious offences such as rape in order to hold the offender accountable and provide prosecutors with an effective tool.
Countries ranked at Tier 1 as countries that fully comply with minimum standards in the U.S. State Department 2013 Trafficking in Persons Report have established sentences with ranges such as 1-15 years (Poland) to 10-14 years (Nicaragua) to 13-23 years (Colombia) to a maximum of life imprisonment (Ireland) (See: U.S. State Department 2013 Trafficking in Persons Report, 304, 282, 132, 205, 2013)
Drafters should review Module 14 of the UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, which provides considerations for sentencing in trafficking in persons cases, including aggravating and mitigating factors. (See UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, Module 14, 2009)
Drafters should ensure that the offence of sex trafficking of an individual under the age of 18 carries a harsher penalty either by defining a separate offence or including the age of the victim as an aggravating factor. Drafters should consider the following examples of language related to the sex trafficking of individuals under age 18.
- “For the purpose of this Division, an offence against section 270.6 (sexual servitude offences) or 270.7 (deceptive recruiting for sexual services) is an aggravated offence if the offence was committed against a person who is under 18.” (See: Australian Criminal Code Amendment (Slavery and Sexual Servitude) Act of 1999)
- “(Placing or holding persons in conditions of slavery or servitude). – Whoever exerts on any other person powers and rights corresponding to ownership; places or holds any other person in conditions of continuing enslavement, sexually exploiting such person, imposing coerced labour or forcing said person into begging, or exploiting him/her in any other way, shall be punished with imprisonment from eight to twenty years. Placement or maintenance in a position of slavery occur when use is made of violence, threat, deceit, or abuse of power; or when anyone takes advantage of a situation of physical or mental inferiority and poverty; or when money is promised, payments are made or other kinds of benefits are promised to those who are responsible for the person in question. The aforesaid penalty becomes harsher, increasing by one third to 50%, if the offences referred to in the first paragraph above are perpetrated against minors under eighteen or for sexual exploitation, prostitution or organ removal purposes”. (See: Criminal Code of Italy in UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, Module 1, 3, 2009)
- “(a) Whoever, while acting other than as a prostitute or patron, intentionally does any of the following may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $50,000, or both:
- solicits or induces an individual under the age of 18 years to practice prostitution;
- promotes the prostitution of an individual under the age of 18 years;
- receives profit, knowing or having reason to know that it is derived from the prostitution, or the promotion of the prostitution, of an individual under the age of 18 years; or
- engages in the sex trafficking of an individual under the age of 18 years. (See: Minnesota Statute § 609.322, subd. 1(a), 2009)
- 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: Turkish Criminal Code, Art. 8)
- “If any of the following circumstances are present, the offences under article 8 shall be punishable by imprisonment for …and/or a fine of/up to…where the victim is a child.” See: UNODC Model Law Against Trafficking in Persons, Art. 9.
- “The recruitment, transportation, transfer, harbouring or receipt of a child [person under 18 years of age] for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means [of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person].” See: UN Trafficking Protocol, Art. 3.
- “Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion or in which the person induced to perform such act has not attained 18 years of age.” (See: United States Trafficking Victims Protection Act, 22 U.S.C. 7102, (8)(A))
Drafters should also ensure that aggravating factors carry enhanced criminal penalties where the offender:
- Has committed a prior qualified human trafficking-related offence, which should include labor trafficking, sex trafficking, prostitution of another, or unlawful conduct related to documents in furtherance of labor or sex trafficking; or
- The offence involved a sex trafficking victim who suffered bodily harm during the commission of the offence; or
- The time period that a sex trafficking victim was held in the trafficking situation exceeded 180 days; or
- The offence involved more than one sex trafficking victim.
The Albanian criminal code provides that if the sex trafficking offence “causes serious consequences to health,” the punishment is not less than 15 years of imprisonment. If the sex trafficking offence causes death, the punishment is life imprisonment. (See: Albanian Criminal Code, Article 110/a and 114/b)
Drafters should finally ensure, under criminal sentencing laws and regulations, that judicial discretion to reduce sentences is limited and that convicted sex traffickers are sentenced to mandatory imprisonment. Sentencing for sex trafficking should be consistent with punishments for other serious crimes, such as rape.
A fine should not be a substitute for imprisonment or other sanctions.
In Nicaragua, sentences for convicted traffickers ranged from seven to 30 years imprisonment in 2012. In the country of Armenia, eight traffickers were convicted and received sentences that ranged from four to 11 years in prison in 2012. (See: U.S. State Department 2013 Trafficking in Persons Report
, 282, 76, 2012)