Here it is relevant to note that practical problems often have a sharper political edge. For example, in countries where all prostitution is assumed to be exploitative, APOV can be used to categorise all persons working in prostitution as victims of trafficking, and all persons otherwise involved in prostitution (including pimps, brothel owners, and managers) as traffickers. The effect can be to both reduce the agency of the presumed ‘vulnerable’ person(s), and/or potentially exclude people who are presumed not to be vulnerable. For instance, where economic or social ‘difficulties’ and irregular status (and the defendant’s knowledge of these facts) operate to vitiate consent of women in the sex industry, it is not clear that the same low-threshold for nullifying consent would operate in respect of regularised or non-foreign sex workers – or indeed of workers in other sectors.
Evidentiary issues associated with APOV
The evidentiary requirements of APOV under the Trafficking Protocol appear to be two-fold: (i) proof of the existence of a position of vulnerability on the part of the victim; and (ii) proof of abuse of (or intention to abuse) that vulnerability as the means by which a particular act (recruitment, harbouring, etc.) was undertaken. Practitioners surveyed for the study agreed that the elements of proof used to establish APOV should be the same elements that are required to establish other aspects of the offence. For example, as is required with respect to other means, the perpetrator must have intended to use the means to commit an act for the purpose of exploitation, and the degree of ‘abuse’ of that vulnerability must be sufficiently serious as to vitiate the consent of the victim.
However, the treatment of APOV in national practice appears to be quite different. For example, among those countries that have included APOV within their definition of trafficking, the focus of inquiry is generally on establishing the fact of vulnerability, rather than on proving its abuse.25 In effect, this means that the mere existence of vulnerability may be considered sufficient to satisfy the means element and thereby help support a conviction. Some countries have further established that abuse of, or intention to abuse, vulnerability may be inferred from a defendant’s knowledge of the (proven) vulnerability. In the Netherlands, ‘conditional intent’ is sufficient – such that the perpetrator need not take initiative in abusing the victim’s vulnerability, or intentionally abuse it, but simply be aware of the vulnerable position.26 In Moldova, the subjective element of the crime is direct intention to abuse the victim’s vulnerability, requiring proof that the offender knew of the victim’s vulnerability, often established by the relationship between the perpetrator and victim. Similarly, Egyptian courts require only proof that the offender was aware of the victim’s vulnerability, generally proven by the relationship between them.
While practitioners noted that ‘knowledge’ refers to a mental state and can be correspondingly difficult to prove – particularly in comparison with other, more tangible means, such as force or deception, that require a specific action or initiative on the part of the trafficker – the threshold of proof does not appear to be very high. This, coupled with the readiness with which intention is inferred from knowledge, raises concerns that APOV may open the door to conduct that does not seem to reach the threshold of trafficking being prosecuted as such.
It is widely accepted that the significant evidentiary obstacles associated with trafficking crimes makes the involvement of victims in the criminal justice process vital to the success of prosecutions.27 Practitioners interviewed for the study noted that when a prosecution relies on APOV (often because other means were not available), these challenges would be particularly acute. Persons trafficked through abuse of a position of vulnerability often do not identify as such: they have typically escaped a bad situation and ended up in a less worse one. They have no incentive to cooperate in the prosecution of the exploiters, whom they may well have approached in the first instance and feel grateful towards. Lack of victim testimony, or unhelpful testimony, can make it extremely difficult to establish APOV, even if the fairly low standards noted above are in place.
Practitioner views on the value of the concept of APOV
The UNODC Study explicitly sought to move beyond an analysis of practice and ascertain the views of criminal justice practitioners on the value of the concept of abuse of a position of vulnerability. Those views were far from uniform – ranging from “vital” and “essential” (given the convictions that would not be achieved otherwise), to “neutral” (no impact one way or another), to “harmful” (given the problematic convictions that result or could result from its misapplication).
Some practitioners from countries that have included the concept in their national law expressed the view that omission of this means from the definition of trafficking would result in fewer convictions, particularly in cases where the victim did not identify as such, or where direct means were not present or could not be proved. They saw APOV as providing them with an additional (or, sometimes, the only) avenue to both capture and explain trafficking that occurs through means more complex, subtle, and ambiguous than force, fraud, and coercion. In this regard, it was repeatedly noted that traffickers are becoming increasingly adept at recognising and manipulating vulnerability to create dependencies, expectations, and attachments. Indeed, the use of other, more ‘tangible’ or ‘direct’ means such as force and violence was noted to have decreased in recent years, as more subtle strategies of abuse of vulnerability are refined. This fact was stressed as increasing the relevance of APOV and the need to strengthen understanding of it.
However, practitioners from States that have included only the more direct means noted that the essence of abuse of vulnerability – including its modern and evolving manifestations – can be captured through an appropriate interpretation of these more direct means. For instance, in Nigeria, deceit, inducements, and threats or use of force are effective means because the victim’s vulnerability is abused. In the United States, vulnerability and its abuse are relevant in proving the listed means of ‘coercion’ and in determining sentences within stipulated maximum and minimum penalties. Abuse of vulnerability is also a major consideration in establishing appropriate sentences in Belgium, where means are not part of the trafficking offence but are relevant in determining whether the offence is accompanied by aggravating circumstances that should bear on the sentence imposed.
Other practitioners agreed that inclusion of APOV as a ‘means’ would likely support more convictions for trafficking, but observed that this may not necessarily be a desired outcome. They noted that trafficking is an extremely serious crime carrying severe penalties, and expressed the view that proving a charge of trafficking should be difficult. In addition, trafficking convictions should be strictly reserved only for trafficking crimes: the definition should not expand to support prosecutions for conduct that does not rise to the level of seriousness envisaged by a criminal charge of human trafficking.
Conclusion: risks and opportunities
The concept of “abuse of a position of vulnerability” was introduced into the Trafficking in Persons Protocol to ensure that a sufficiently wide range of exploitative conduct (and means of making that conduct and its exploitative outcome possible) was captured within the international legal definition. However, drafters were not prepared to establish its parameters with any specificity. Their instruction, issued through an Interpretative Note, that APOV “is understood as referring to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved”28 is vague and subjective, raising many more questions than it answers. For example, what does a real alternative mean? Must the alternative be specific, available, and known and, if so, to the victim, the perpetrator, or both? Is it necessary to objectively establish the existence of a particular alternative? And what makes an alternative acceptable? To whom must an alternative be acceptable? Must it be acceptable from an objective point of view, or is the acceptability of an available (and ‘real’) alternative to be measured fr
om the point of view of the alleged victim? More critically, the substance of the instruction focuses only on the existence of vulnerability, thereby implying that any subsequent inquiry into whether the alleged perpetrator actually abused or intended to abuse the vulnerability of the alleged victim is unnecessary. This is potentially at odds – or at least establishes a tension with – the clear meaning of the text. It also reduces the threshold of culpability by contradicting the principle that the actus reus of a crime be established on the basis of the perpetrator’s acts or omissions, not on the basis of the victim’s situation.
The shortcomings of the Interpretative Note are reflected in national law and practice, with the UNODC Study providing ample confirmation that States are interpreting and applying the concept of APOV in very different – and sometimes highly problematic – ways. The dangers associated with a concept as vague and ill-defined as APOV are well articulated by a prosecutor with experience across multiple jurisdictions:
I was always uncomfortable with the abuse of vulnerability phrase. Abuse of power or authority seems less problematic to me because power differentials are more easily quantifiable and can be based on well-recognized legal concepts such as “colour of law”, guardianship, employment, parental and in loco parental relationships. But “vulnerability” seems awfully imprecise, with uncertain legal foundation. As a general statement in the Protocol it may be fine, but when that phrase is imported into a national criminal statute without limiting language or clear definitions, it is a problem. In my view, the phrase violates fundamental due process and fairness by failing to make clear what is and is not prohibited. Also, because the phrase is subject to various interpretations, it allows for inappropriate or politically driven prosecutions. This is a particular concern in countries with weak institutions under pressure to demonstrate results in the area of trafficking. I have seen evidence of this in my work: examples of abuse of vulnerability being frequently used, without much analysis, to justify a number of prosecutions that did not in fact appear to be trafficking at all. Given the high sentences provided in many new TIP laws, vague and imprecise language criminalizing conduct can have serious consequences.29
The UNODC Study sought to address these and other difficulties by offering a Guidance Note for practitioners that explicitly set out an understanding of APOV. It is notable that this Guidance Note was developed and adopted by the same group of practitioner experts brought together to review the draft Study. The note offers the following interpretation:
Abuse of a position of vulnerability occurs when an individual’s personal, situational or circumstantial vulnerability is intentionally used or otherwise taken advantage of, to recruit, transport, transfer, harbour or receive that person for the purpose of exploiting him or her, such that the person believes that submitting to the will of the abuser is the only real or acceptable option available to him or her, and that belief is reasonable in light of the victim’s situation. In determining whether the victim’s belief that he or she has no real or acceptable option is reasonable, the personal characteristics and circumstances of the victim should be taken into account.
It remains to be seen whether a more consistent understanding of APOV, in keeping with the spirit of the Protocol, emerges over time. Subsequent work on other aspects of the definition undertaken by the present authors appears to confirm that the battle for conceptual clarity must be fought on many fronts.30 Vagueness and imprecision obstruct the work of those seeking to end impunity and secure justice for victims, and enable potentially harmful expansion of what is considered to be ‘trafficking’. At the same time, the decline in use of more ‘direct’ means by traffickers, as they become more skilled at preying upon a seemingly endless pool of vulnerable people, underscores the need to keep definitional tools sharpened against the evolving landscape of exploitation. States must retain the capacity to shape their laws to meet national needs, but clear parameters that reflect an understanding of trafficking as a serious crime – that can be perpetrated by subtle, as well as more direct means – should be agreed and respected.
Notes
1 Report of the meeting of the Working Group on Trafficking in Persons held in Vienna from 27 to 29 January 2010, UN Doc. CTOC/COP/WG.4/2010/6 (17 February 2010), para 31(b). Note that the mandate specifically directed the research towards “assist[ing] criminal justice officers in penal proceedings”.
2 Other concepts studied were the principle of the irrelevance of consent and ‘exploitation’ as the overarching purpose of trafficking. See UNODC, The Role of Consent in the Trafficking in Persons Protocol (Vienna: UNODC 2014) (Hereafter UNODC, Consent Study) and UNODC, The Concept of Exploitation in the Trafficking in Persons Protocol (Vienna: UNODC 2015) (UNODC, Exploitation Study).
3 UNODC, Abuse of a Position of Vulnerability and Other ‘Means’ Within the Definition of Trafficking in Persons (Vienna: UNODC, 2012) (Hereafter UNODC Study).
4 See, for example, United Nations, Global Plan of Action to Combat Trafficking in Persons, UN Doc. A/RES/64/293 (12 August 2010), preambular para 3.
5 International Labour Office and the European Commission, Operational Indicators of Trafficking in Human Beings (2009).
6 See, for instance, Trafficking in Persons Protocol, art 9(4), European Trafficking Convention, art 5; EU Trafficking Directive, Recital paras 12, 22, 23. For a full discussion of the obligation of prevention with regard to addressing vulnerability to trafficking, see Gallagher, A.T., The International Law of Human Trafficking (2010) at chapter 8 and OHCHR, Recommended Principles and Guidelines on Human Trafficking: Commentary (Geneva: OHCHR 2010), pp. 105–116.
7 The Trafficking in Persons Protocol does not define ‘exploitation’, rather providing a non-exhaustive list that includes, “at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs”. UN Trafficking in Persons Protocol, art 3(a). The travaux préparatoires indicate that the words “at a minimum” were included to ensure that unnamed or new forms of exploitation would not be excluded by implication: Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, A/55/383/Add.1 (3 November 2000), at 343, note 22 and at 344, note 30. See further UNODC Exploitation Study, supra.
8 UNODC, Anti-Trafficking Practitioners’ Manual (Vienna: UNODC, 2009), Module 1, 4. UNODC further notes that domestic law could enable mens rea to be established on a lesser standard than direct “intent” (such as recklessness, wilful blindness, or criminal negligence): Ibid.
9 Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, A/55/383/Add.1 (3 November 2000), para 63.
10 European Trafficking Convention Explanatory Report, para 83.
11 European Union Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (2011) art 2(1).
12 Ibid., art 2(2). Note that the Interpretative Note to the Protocol refers to “real and acceptable alternative”, appearing to require that both elements be satisfied. The language of the Directive requires only that the alternative be “real” or “acceptable”.
13 See, for example, UNODC, Model Law Against Trafficking in Persons (Vienna: UNODC, n.d.), pp. 10–11, www.unodc.org/documents/human-trafficking/UNODC_Model_Law_on_Trafficking_in_Persons.pdf.
14 See, for example, International Labour Office and the European Commission, Operational Indicators of Trafficking in Human Beings (2009).
15 ILO, Hard to See, Harder to Count: Survey Guidelines to Estimate Forced Labour of Adults and Children (Geneva: ILO, 2012).
16 Concerning the relationship between forced labour and trafficking, the survey guidelines note that “forced labour is closely linked to human trafficking”, citing t
he CEACR’s explanation that “trafficking in persons for the purpose of exploitation is encompassed by the definition of forced or compulsory labour provided under Article 2, paragraph 1 of the [forced labour] Convention”. Ibid., 12, 19. While acknowledging that the Protocol’s definition does not require either movement or the involvement of a third party, the survey guidelines consider whether these factors should be included in an “operational definition of trafficking for forced labour, for the purpose of data collection”. Ibid., 19 (emphasis in original). This discussion forms part of a broader debate about the scope of the trafficking definition referred to in the text of this chapter. See further Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), pp. 35–36, 47–53.
17 Ibid., 16. Note that the guidelines also affirm certain limits: “the obligation to stay in a job because of the absence of alternative employment opportunities, taken alone, does not equate to a forced labour situation; however, if it can be proved that the employer is deliberately exploiting this fact (and the extreme vulnerability that arises from it) to impose more extreme working conditions than would otherwise be possible, then this would amount to forced labour.” Id.
18 Modern Slavery Act 2015, sections 1(3) and (4)(a).
19 A notable exception is the 2009 Dutch Chinese restaurant case, mentioned below.
20 It is beyond the scope of this chapter to explore exploitation in any depth beyond this basic understanding, and the reader is referred to the subsequent UNODC Exploitation Study (2015).
21 See for instance: PUDR v. Union of India (The Asian Games case) 1982 AIR 1473.
22 Chinese restaurant case, Supreme Court 27 October 2009, LJN: B17099408.
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