[T]he vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s immigration status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce.10
While providing some very broad guidance on what may constitute vulnerability in this context (“any hardship”), the commentary does little to clarify the circumstances under which such vulnerability could be abused for exploitative purposes. EU Trafficking Directive 2011/36/EU11 also explicitly adopts the language of the Trafficking in Persons Protocol’s Interpretative Note in defining “position of vulnerability” as “a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved”.12
Several different tools and documents produced by UNODC13 and the International Labour Organisation (ILO)14 address vulnerability to trafficking in some detail. However, these focus primarily on factors that make persons vulnerable to trafficking and that contribute to identification of victims. They do not address the more complex question of whether, from the point of view of criminal law, a particular characteristic of the victim or the victim’s situation was abused as a means of their trafficking. They provide little or no insight into how the indicators of vulnerability proposed can or should be applied in the context of victim or perpetrator identification; a criminal investigation; or a prosecution.
One potentially useful resource is a set of ILO survey guidelines to help States and others measure the problem of forced labour.15 The Survey Guidelines address abuse of a position of vulnerability in the context of forced labour – a phenomenon that overlaps with, or at least is closely linked to, trafficking.16 They explain that:
[T]hreats of denunciation to the authorities, is a means of coercion where an employer deliberately and knowingly exploits the vulnerability of a worker to force him or her to work … taking advantage of the limited understanding of a worker with an intellectual disability and threatening women workers with dismissal or with being forced into prostitution if they refuse to comply with the employer’s demands.17
In identifying abuse of vulnerability as a means of introducing an individual into, or maintaining him or her in a situation of, forced labour, the Survey Guidelines also prescribe a requisite state of mind that the exploiter “deliberately or knowingly” uses a person’s vulnerability to “force” him or her to work.
Part 2: survey of abuse of a position of vulnerability in national practice
The national practice aspect of the UNODC Study involved a review of legislation and case law, as well as in-depth interviews with practitioners and experts from twelve countries representing different regions and legal traditions (Belgium, Brazil, Canada, Egypt, India, Mexico, Moldova, the Netherlands, Nigeria, Switzerland, the United Kingdom, and the United States). This was supplemented by interviews with practitioners from outside these countries, including several practitioners who work across multiple jurisdictions. The focus of the country surveys was squarely on how the concept of abuse of a position of vulnerability is understood and applied in the context of criminal investigation and prosecution of trafficking in persons. This focus served to exclude broader considerations of APOV within national structures and procedures for the identification of trafficked persons. However, as noted below, the two aspects were found to frequently overlap.
The review of law and practice confirmed widespread confusion and inconsistency around the means element of the definition of trafficking in general, with the concept of APOV presenting particular challenges for States. A summary of the key findings is set out below.
Substantial differences in formulation of the ‘means’ element within national definitions of trafficking
States have taken very different approaches to transposing the three-element structure of the international legal definition of trafficking into their national law. APOV is explicitly referred to as a “means” by which trafficking may take place in the national law of only three of the twelve States formally surveyed (Egypt, Moldova, and the Netherlands). In Nigeria and the United States, the national definition of trafficking mirrors the three-element structure but with a more restricted list of means that does not include APOV. Belgium and Canada have adopted a definition of trafficking that comprises only two elements: an “action” and an exploitative “purpose”. The remaining States surveyed (Brazil, India, Mexico, Switzerland, and the United Kingdom) have taken divergent approaches, none of which align with the above categories. For example, in Brazil, select means have been transposed into legislation and are relevant to determining penalties but not to establishing the trafficking offence. Indian legislation does not define trafficking nor explicitly mention means in criminalising it, though proposed amendments would introduce means including APOV, but only where victims are exploited in prostitution. In the United Kingdom, trafficking offences are captured across various legislative acts, one of which appears to introduce a means element including a concept akin to APOV, though only for some forms of exploitation. Recent amendments to anti-trafficking legislation in the United Kingdom do not require means when determining whether a person has been subject to slavery, servitude, or forced or compulsory labour; regard may be had to all the circumstances, including those that make a person more vulnerable than others.18
Despite these great differences in legislative approach, APOV is a fraught issue for all countries surveyed for the study, including those whose legal definitions do not include this aspect of the means element (or indeed any means element at all). For example, a review of relevant case law in the United States confirmed that while APOV is not included as an explicit means in the national legal framework, considerations about the existence of vulnerability and its abuse can be relevant to both proving the listed means of ‘coercion’ and the exploitative purpose.
Practitioner perceptions of abuse of vulnerability in the crime of trafficking
The UNODC Study found that vulnerability is central to understanding trafficking, in that abuse of vulnerability is considered to be an inherent feature of most, if not all, trafficking cases. Responses to questions about specific vulnerability factors were remarkably similar across very different countries of origin and destination. Commonly cited examples included age (youth and, less commonly, old age); irregular legal/migration status; poverty; precarious social status; pregnancy; illness and disability (mental and physical); gender (typically being female, but also transgender); sexuality; religious and cultural beliefs; isolation caused by migration and/or inability to speak the local language; lack of social networks; dependency (on employer, family member, etc.); threats to disclose information to family members, officials, or others; and abuse of emotional/romantic relationships.
Some of these vulnerability factors, such as age, illness, disability, gender, and poverty, were acknowledged to be pre-existing or intrinsic to the victim. Others, such as isolation, dependency, and irregular legal status were recognised as vulnerabilities that can be created by the exploiter in order to maximise control over the victim. Both pre-existing and ‘created’ vulnerability were acknowledged as capable of being subject to abuse. However, in identifying vulnerability factors, few practitioners noted the distinction between pre-existing and created vulnerabilities, or indeed between vulnerability as susceptibility to trafficking, and abuse of that vulnerability as a means by which trafficking occurs or is made possible. Indeed, many practitioners approached the existence of vulnerability as synonymous with its abuse.
Relationship of abuse of vulnerability with other means
The survey of national law and practice sought to ascertain whether APOV could ever stand alone as the sole means by which an individual is moved into or maintained in a
situation of exploitation, i.e. whether a prosecution or conviction could be successfully pursued where APOV is the only means used by a trafficker. There appear to have been very few cases prosecuted on this basis, and those examples that were made available failed to demonstrate that the success of the prosecution depended on proof of that means.19 Egyptian courts, for example, have relied on APOV in cases concerning marriage of minors (for whom means anyway need not be established) for purposes of exploitation, where other means cannot be shown. The survey noted a high level of fluidity between the various ‘means’ stipulated in national laws due, at least in part, to the absence of definitions of terms. For instance, even within the same jurisdiction, different understandings of ‘abuse of power’ were evident – it was explained as referring to situations involving abuse by public officials (Brazil, Nigeria, the United Kingdom), or involving any relationship of dependence (the United Kingdom, Switzerland), or as a corollary to APOV, whereby a person’s vulnerability gives rise to another person’s power (India, the Netherlands, the United Kingdom). The absence of definitions of key concepts grants a significant measure of judicial discretion when it comes to the ‘means’ element of the definition of trafficking and is clearly a major factor in creating and sustaining such widely divergent understandings around APOV. Some practitioners noted that definitional imprecision is not necessarily disadvantageous: drawing clear distinctions between stipulated means may pose a barrier to prosecutions that are pursued on the basis of multiple means.
The precise relationship between APOV and other means appears to depend on how the concept is or is not reflected in the legal framework. In some cases, vulnerability and/or its abuse is used as a subsidiary means in that its function appears to be bolstering or substantiating evidence of other means. For instance, it may be established that a person has been deceived through the abuse of their position of vulnerability, where a less vulnerable person would not have been deceived. Even in Nigeria, where APOV has not been transposed into legislation, it is considered a key component of deception: vulnerability makes a person susceptible to deceit where another person would not be. In other cases, establishing APOV is an important means by which an explicit element of the offence can be established. In Moldova, for instance, where legislation explicitly provides for several forms of APOV, practitioners consider that APOV alone can satisfy the means element.
Relationship of abuse of a position of vulnerability with the ‘act’ element
The international definition of trafficking establishes a clear link between the ‘act’ element and the means of trafficking: it is necessary to establish that an offender abused the victim’s position of vulnerability in order to recruit, transfer, harbour, or receive that person. The relationship between APOV and the ‘acts’ of trafficking was not directly considered during the country surveys, yet emerged as an important issue during subsequent discussions amongst practitioners.
In practice, and in much the same way that specific ‘means’ are often not identified in establishing that trafficking has occurred, the particular ‘act’ on which a prosecution relies is rarely made explicit, and the link between ‘acts’ and ‘means’ is typically not articulated. However, country surveys confirmed that ‘recruitment’ is the act most frequently cited in connection with APOV, reinforcing the tendency to focus on vulnerability as susceptibility to trafficking rather than abuse of vulnerability as a ‘means’. This stands to reason in countries of origin from where victims are recruited, but was also echoed by respondents in countries where exploitation takes place, in pointing to pre-existing vulnerability as the reason traffickers selected particular people for recruitment. There is very little information available on APOV being linked to other specified acts, such as harbouring or receiving, though it was noted that less ‘subtle’ means may be more relevant to control victims after the recruitment phase (Nigeria), suggesting that APOV may be more relevant for some trafficking ‘acts’ than others or, indeed, that the evidentiary burden differs according to the ‘act’ with which the allegation of APOV is or should be linked.
Relationship of APOV with the ‘purpose’ element (exploitation)
The relationship between the ‘means’ of trafficking and the exploitative purpose is a complex and contested one. Simply understood, the exploitation element of the trafficking definition can inform what is meant by ‘abuse’ of vulnerability, in the sense that it means only that the trafficker used the victim’s vulnerability for the criminal purpose of exploiting him or her.20
The survey confirmed that a number of countries (including several that have dispensed with the means element altogether, and others that have incorporated only direct means, such as force and coercion) have integrated abuse of vulnerability into their understanding of exploitation. In such situations, the victim’s vulnerability is typically explored alongside other means, such as deceit (as mentioned above), or to ascertain the trafficker’s exploitative intent. In the Netherlands, for instance, APOV was indicated as being useful in determining that the intended purpose is in fact exploitation, and in ensuring that a person exploited for criminal purposes is identified as a victim and not prosecuted for crimes he or she committed in the course of being exploited. In other countries, rather than being treated as a separate element of the crime, the victim’s vulnerability and its abuse by traffickers may be relevant to ascertain the overall narrative of the crime, and to substantiate evidence of exploitation. This is the case in India, where judgments have revealed that abuse of vulnerability is implicit in understanding forced labour,21 and in the United States, where APOV is not specified as a means in domestic understanding of the offence, but is nonetheless relevant to proving other means and exploitation. Similarly, in Canada, where there is no means element, consideration of the totality of the circumstances that place a victim in an exploitative situation may include vulnerability factors and their abuse.
In several countries, strict application of APOV appears to have contributed to lowering the threshold for ‘exploitation’. Put simply, exploitative conduct that may not otherwise be associated with trafficking – perhaps because it appears to lack a clear coercive or deceptive element (such as pimping or labour rights abuses) –is being prosecuted as such through invocation of APOV. Several stark examples emerged, including a case in the Netherlands in which a group of irregular migrants approached a Chinese restaurant manager and in some instances ‘begged’ him to give them work. The manager accommodated the migrants in shared bedrooms and paid them less than minimum wage, and was subsequently prosecuted for human trafficking. It did not matter that he took no initiative and did not intentionally abuse their vulnerability; the standard of ‘conditional intent’ was satisfied by his awareness of the vulnerable situation of the migrants.22 APOV is considered the easier means to prove in the Dutch context and has lowered the threshold to such an extent that there is some unease as to whether trafficking has become conflated with irregular employment of migrants who are themselves in irregular situations.
APOV and the principle of the irrelevance of consent
The Trafficking Protocol is unambiguous on the point that consent is irrelevant in relation to trafficking in children, or, in the case of adults, where any of the specified means have been used. The nature of the means is immaterial.23 For consent to be considered irrelevant where APOV is the means used, the person to whom consent is given must have abused an existing or created vulnerability (the origin of which is irrelevant) in order to secure an act intended to result in exploitation. It is clear that mere use of means alone is not enough; the result of the use of those means to achieve the relevant ‘act’ must be that the victim’s consent was vitiated.24
Unsurprisingly, consent tends to be a non-issue in the face of clear consent-nullifying means such as force, abduction, or gross deception. However, the country surveys confirmed that where APOV and other ‘softer’ means are alleged, consent can indeed be an issue. For instance, in some countries, APOV may only be
considered a potential ‘means’ where the victim appears to have consented to the situation – it is the victim’s vulnerability and its abuse that is used to explain away and nullify the apparent consent. Even where APOV is not explicitly included as a ‘means’ in legislation, it may nevertheless be relevant to explaining how consent was vitiated: i.e. how a person could be deceived or coerced by the trafficker in a situation where a non-vulnerable person would not have been.
The relationship between APOV and consent will sometimes be at issue in situations where the victim does not explicitly identify themselves as such. In this sense, the presence of consent can be relevant to establishing whether a given set of circumstances points to a crime (and whether that crime is indeed trafficking). For example, in Moldova, while it is clear that consent is vitiated by the use of ‘direct’ means, APOV is important in establishing that consent is vitiated in less clear cases, and can be the difference between a case being treated as one of pimping and one of trafficking, resulting in higher penalties for the perpetrator and more protections for the object of the crime. Similarly, in Switzerland, even though no means element is included in Swiss law, APOV can render consent to prostitution irrelevant, serving to make what would otherwise be prostitution a situation of trafficking-related exploitation.
Routledge Handbook of Human Trafficking Page 40
