Punishing Trafficking Offenders
The minimum standards in the TVPA call on foreign governments to prohibit all forms of trafficking, to prescribe penalties that are sufficiently stringent to deter the crime and that adequately reflect the heinous nature of the crime, and to vigorously punish offenders convicted of these crimes.
Legally Prescribed Penalties: In assessing foreign governments’ anti-trafficking efforts for the TIP Report, the Department of State holds that, consistent with the 2000 UN Convention Against Transnational Organized Crime (which is supplemented by the UN TIP Protocol), criminal penalties to meet this standard should include a maximum of at least four years’ deprivation of liberty, or a more severe penalty.
Imposed Penalties: The Department of State holds that imposed sentences should involve significant jail time, with a majority of cases resulting in sentences on the order of one year of imprisonment or more. Sentences should take into account the severity of an individual’s involvement in trafficking, imposed sentences for other grave crimes, and the judiciary’s right to hand down punishments consistent with that country’s laws. This principle of seeking adequate imposed prison sentences and discouraging suspended sentences for convicted trafficking offenders was explicitly added to the TVPA’s minimum standards through the TVPRA of 2008. Convictions obtained under other criminal laws and statutes can be counted as anti-trafficking if the government verifies that the offenses involve human trafficking.
Protecting Victims Adequately
The TVPA minimum standards’ criterion on victim protection reads:
“Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked, including by providing training to law enforcement and immigration officials regarding the identification and treatment of trafficking victims using approaches that focus on the needs of the victims.”
Every country narrative of the TIP Report specifically addresses these elements. In addition, the Department of State has decided to implement this criterion with the following guidelines:
In evaluating whether a country fully satisfies this part of the minimum standards on victim protection, the Department of State considers the following to be critical factors:
1) Proactive identification: Victims should not be expected to identify themselves. They typically are afraid of coming forward and fear authorities will consider them criminals, irregular migrants, or disposable people. Formal screening procedures should go beyond checking a person’s papers. Some form of systematic procedure should be in place to guide law enforcement and other governmental or government-supported front-line responders in the process of victim identification.
2) Shelter and temporary care: A government should ensure that victims have access to primary health care, counseling, and shelter. Such provisions should allow victims to recount their trafficking experiences to trained social counselors and law enforcement at a pace with minimal pressure. Shelter and assistance can be provided in cooperation with NGOs. Part of the host government’s responsibility includes funding and referral to any NGOs that provide shelter and assistance. To the best extent possible, trafficking victims should not be held in immigration detention centers or other detention facilities.
The Department of State gives positive consideration to two additional victim protection factors:
a. Victim/witness protection, rights and confidentiality: Governments should ensure that victims are provided with legal and other assistance and that, consistent with its domestic law, proceedings are not prejudicial to victims’ rights, dignity, or psychological well-being. Confidentiality and privacy should be respected and protected to the extent possible under domestic law. Victims should be provided with information in a language they understand.
b. Repatriation: Source and destination countries share responsibility in ensuring the safe, humane, and, to the extent possible, voluntary repatriation/ reintegration of victims. At a minimum, destination countries should contact a competent governmental body, NGO, or international organization in the relevant source country to ensure that trafficked persons who return to their country of origin are provided with assistance and support necessary to their well-being. Trafficking victims should not be subjected to deportations or forced returns without safeguards or other measures to reduce the risk of hardship, retribution, or retrafficking.
Prevention: Spotlight on Addressing Demand
Human trafficking is a dehumanizing crime that reduces people to commodities. On the supply side, criminal networks, corruption, lack of education, poverty, and misinformation about employment opportunities and the degrading nature of the promised work make people vulnerable to the lures of trafficking. This is true of both sex trafficking and forced labor. The movement to end human trafficking includes significant efforts to address these factors that “push” victims into being trafficked, but it also recognizes a “pull” factor as part of the cause. A voracious demand fuels the dark trade in human beings.
Unscrupulous employers create demand for forced labor when they seek to increase profits at the expense of vulnerable workers through force, fraud, or coercion. One key to addressing such demand is raising awareness about the existence of forced labor in the production of goods. Many consumers and businesses would be troubled to know that their purchases— clothes, jewelry, and even food—are produced by individuals, including children, who are forced into slave-like conditions.
In the global marketplace for goods, ensuring that complex supply chains are untainted by forced labor is a challenge for both businesses and consumers. But denying access to foreign markets for products made with forced labor will reduce the incentive to exploit forced labor and encourage ethical business behavior. Increased information on export products and production chains—drawn from a variety of sources, including other governments—makes such efforts more effective.
Any successful effort to combat human trafficking must confront not only the supply of trafficked humans, but also the demand for forced labor and commercial sex that fuels it. Partnerships between governments and private businesses that purchase products made with low-skilled labor are one commendable way to address potential demand for forced labor. Efforts by some governments to arrest, prosecute, and punish adults who seek to exploit children in the commercial sexual trade is one form of addressing demand for commercial sex acts.