A speech delivered to an international visitor regional project for Europe Monday March 9th, 2004 at the Delphi International Program of World Learning in Washington. Mohamed Y. Mattar, Co-Director, The Protection Project I am delighted to speak to such a distinguished group of experts on trafficking in persons and I would like to share with you: - our vision at The Protection Project
- discuss with you the U.S. policy on trafficking in persons
- some of the most recent international responses to the problem
- especially the European initiatives
- and some of the initiatives of the countries that you represent
The Protection Project (TPP) is a legal human rights research institute based at the Johns Hopkins University School of Advanced International Studies. TPP documents and disseminates information about the scope of the problem of trafficking in persons, especially women and children, with a focus on national and international laws, case law, and implications of trafficking on U.S. and international foreign policy. TPP has collected the criminal laws concerning trafficking for the purpose of commercial sexual exploitation from over 190 countries and have analyzed these laws and their adequacy in addressing the various issues of trafficking in persons, including the prevention of trafficking acts and the protection of trafficking victims. TPP also conducts training programs and provides technical assistance to government officials, non-governmental organizations law enforcement officials, service providers and benefit-issuing agencies, on the problem of trafficking in persons and the benefits and services that victims of trafficking in persons require. We conduct training programs in the United States in cooperation with the Health and Human Services Department in 17 cities around the country educating service providers as to the benefits granted to victims of trafficking under the Trafficking Victims Protection Act (TVPA). We also conduct raining programs abroad. Last December, I was in southeast Europe and we visited Croatia, Bulgaria, and Serbia and we invited participants from Kosovo, Bosnia, Romania, and Macedonia. Participants from these countries will arrive in Washington, D.C. for an exchange program on the U.S. approach in combating trafficking in persons. We are also traveling 6 countries to identify victims of trafficking. These countries are Argentina, Australia, Azerbaijan, Cyprus, Singapore, and Peru The identification of victims of trafficking is the real challenge for all of us and we must find ways to reach victims of trafficking so that we can reach out to them. TPP was instrumental in the process of drafting the Trafficking Victims Protection Act (TVPA). The Protection Project provided testimony on the drafting of the TVPA to Congress before the Subcommittee on International Operations and Human Rights of the House Committee on International Relations before the Subcommittee on Near Eastern and South Asian Affairs of the Senate Foreign Relations Committee. The Protection Project has also advised Congress on the implementation of the TVPA by providing testimonies and statements to the Congressional Human Rights Caucus and the Congressional Children's Caucus Members' Briefing and to the House of Representatives International Relations Committee. The Protection Project has also been active in the interpreting of the TVPA. The Protection Project finds that an essential component to eradicating trafficking in persons is through the changing of legislation and laws. However, enacting legislation that makes trafficking in persons a serious crime is not enough. Without effective law enforcement and prosecutions of traffickers, traffickers continue their criminal activities unhindered. In many parts of the world today the rates of prosecutions for trafficking in persons are relatively low. Moreover, it is not only developing countries or countries in transition that show such low instances of prosecutions of traffickers. Countries that have more resources to prosecute cases still have low rates of successful prosecution of traffickers. Despite the suggested existence of a link between the extent of trafficking and the legalization or decriminalization of prostitution, some countries consider legalizing prostitution or certain aspects of prostitution as a means of combating trafficking in persons. I am not sure what works. Take, for example, the Netherlands and Germany – both legalize prostitution, and the argument is being that this helps decrease the trafficking. More research is needed to inquire into the link between legalization of prostitution and trafficking, because it is my contention that legalization of prostitution contributes to the problem of trafficking and does not solve it at all. Some legal systems do not contain provisions targeting the demand for commercial sex or for prosecuting the purchaser of sexual services. What is often most overlooked in regard to successful enforcement of even the best pieces of legislation is that not only must the law itself be changed to impose liability on customers of sexual services and on patrons of places where trafficked women may be forced into prostitution. Of course, my favorite law is the Swedish law. I am referring here to the January 1, 1999, law that makes buying sex, and not selling sex, a crime. Perhaps, my good friend from Sweden would help me with some statistics, because the statistics I have here are as follows: - In 1999, 94 cases were reported under this law with 10 resulting in conviction
- In 2000, 92 cases were tried under this law with 29 resulting in conviction
- In 2001, 86 cases were prosecuted with 38 resulting in conviction
But, more importantly, to reform the functional equivalent of the law, the customs, the traditions, and acceptable behavior. Countries that tolerate, accommodate, or normalize prostitution should review their policies and inquire into whether such tolerance, accommodation, and normalization contribute to the rising numbers of trafficking victims. I would like to emphasize that a more comprehensive legislative reform is needed. An anti-trafficking legislation should not be limited to the specific provision in the criminal code. While any effective legal response to combating trafficking in persons should ideally be embodied in a comprehensive anti-trafficking law, such legal response should take into consideration all relevant laws. Countries that are presented here today have adopted recent anti-trafficking legislation, which I believe are really good laws: - In Bosnia, I like article 186. It defines trafficking broadly following the UN Protocol Article 3, and although I like the maximum sentence of 10 years, I do not like the fact that the minimum sentence is only 1 year. Unless it is trafficking in children, where the sentence is not less than 5 years, and if there is involvement of organized crime, the sentence is not less than 10 years.
- I also like Article 111-b of the Criminal Code of Serbia. It even goes beyond the Protocol and covers trafficking for the purpose of criminal activities, begging, pornographic purposes, and armed conflict. That is a comprehensive definition of trafficking that includes not only trafficking in accordance with Article 3 of the Protocol, but other forms of trafficking such as armed conflict.
- The Albanian law does not only speak about trafficking in human beings in Article 110, but it has a specific Article on trafficking in women for prostitution and another article for trafficking of children. I like the penalties; it can be up to 15 years if you are trafficking a woman, and it goes up to 20 if you are trafficking a child.
Human rights have been an important foreign policy objective of the United States and combating trafficking in persons has become a significant foreign policy issue. The Foreign Assistance Act of 1961 prohibits economic assistance to any government that engages in a "consistent pattern of gross violations of internationally recognized human rights." This policy provides that: “the United States shall, in accordance with its international obligations as set forth in the charter of the United Nations and in keeping with the constitutional heritage and traditions of the United States, promote and encourage increased respect for human rights and fundamental freedoms throughout the world without distinction as to race, sex, language or religion." Accordingly, a principle goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries." This policy was reemphasized by the February 2000 Trafficking in Persons National Security Presidential Director which clearly stated that prostitution and related activities which are inherently harmful and dehumanizing contribute to the phenomena of trafficking in persons. This is the administration’s policy which you also see in the United States Leadership Against HIV / AIDS, Tuberculosis, and Malaria Act of 2003. Section 2-23 makes it clear that “the sex industry, and sexual violence are additional factors in the spread of HIV/AIDS epidemic”. And Section 104 of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 explicitly provides that no funds made available to carry out this Act, or any amendment made by this Act, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking. And it is difficult to establish the link between trafficking and AIDS, and that is why I like the Trafficking Victims Protection Reauthorization Act. The TVPRA provides for funding for research that furthers the purpose of the TVPA and address the findings of the TVPA. This research includes: - Looking into the economic causes and consequences of trafficking
- Examining the relationship between trafficking in persons and global health risks.
- Evaluating the effectiveness of programs and initiatives funded by Federal agencies to prevent trafficking and to protect and assist victims.
In view of these principles and goals, the United States has made significant efforts to combat trafficking in persons. On October 28, 2000, the United States implemented the Trafficking Victims Protection Act (TVPA), which recognizes trafficking as a human rights violation. The Act changed the criminal justice policy of the United States. The Act for the first time recognized trafficking as a specific offense, whether trafficking for sex or trafficking for labor. But the Act does not confuse sex with labor and does not make sex as a form of labor and that is why the term "sex work" is not a term that you will find in my vocabulary. And the Act recognizes trafficking as a serious crime: Under the Act, you get 20 years imprisonment, and the 20 years can be increased to life imprisonment if you are trafficking a child under the age of 14. And if you are traveling with the intent to engage in illicit sexual activity with a child, you commit a crime under the Section 105 of the Protect Act, which amended the 1984 Child Sexual Abuse Protection Act, Section 2423. The Sex Tourism Act is now part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, or "Protect Act", Section 105 "Penalties Against Sex Tourism." That brings me to another famous case, and that is United States v. Hersh of 1998. In this case Professor Hersh traveled from Florida to Honduras to have sex with young boys from ages 8 to 16, and he brought back a boy, age 15, by doing a false passport, and claiming that the boy was his adopted son, and enrolled him in a school in Florida in the morning and had sex with him at night. Professor Hersh was sentenced to a total of 105 years imprisonment. But there were very few cases in which a tourist was tried for sex tourism. It was hard to prove “intent,” i.e., traveling with the intent to engage in illicit sexual activity with a child. On the day following President Bush’s speech to the United Nations on September 23, 2003 on Iraq and Sex Tourism, Michael Lewis Clark, a 69-year-old retired United States army sergeant, was charged with sex tourism in one of the first indictments under the new law. Clark was indicted by a Seattle Grand Jury on two counts: traveling to via foreign commerce to Cambodia, engaging in illicit sexual conduct with a minor. He paid two young homeless boys, aged ten and thirteen, two dollar each to have sex with them. The new Sex Tourism Act, while criminalizing travel with intent in illicit sexual conduct also makes engaging in illicit sexual conduct in foreign places a crime. It also increases the penalty to 30 years of imprisonment. And it applies US law on extraterritorial basis. And it does not require double criminality, or double jeopardy. So, you can indict a person for sex tourism although the act is not considered as a crime in the place it was committed. And you can indict that person regardless of the punishment specified for the crime in the foreign place where it was committed. And I understand that sex tourism is a problem in countries like Austria, for example, and I understand also that Austria has a very good sex tourism act. I am referring here to the 1994 Sex Tourism Crime Amendment Act. The Austrian Airlines, as I have been told in a report which I read recently, was advertising Thailand, and a young topless Thai girl was on the advertisement. And that is why I like the Trafficking Victims Reauthorization Act when it addressed sex tourism specifically, in the area of prevention and called for the development and dissemination of materials to inform travelers about sex tourism, its dangers and the criminal penalties that may be imposed for the crime of sex tourism. The Act also changed the immigration policy of this country. No longer is the trafficked person deported. The Act allows a trafficked victim to apply for a T visa, and there are 5,000 of them. Unfortunately, only 368 victims have been granted the T visas from 2002 up to now: - 5 visas in 2002
- 285 visas in 2003
- and 78 visas so far in 2004
This is a permanent immigration status. Other countries go for a temporary one. · In Germany, as I understand, the Aliens Act grants victims of trafficking a grace period of at least 28 days, to decide whether to cooperate with the authorities as witnesses or prepare to return to their countries of origin. - In Portugal, victims of trafficking can obtain a residency permit if they cooperate with prosecution.
- In the Netherlands, expulsion of an illegal alien who is a victim of trafficking may be suspended for 3 months, during which such victim decides to report the trafficking offense. If the victim decides to report, the residency permit is issued for the complete duration of the investigation, prosecution, and trial. In addition, a residency permit can be issued to a victim of trafficking upon the conclusion of criminal proceedings on humanitarian basis, which includes the risk of reprisals against the victim or her family, the risk of prosecution in the victim’s country of origin, and the difficulty of social reintegration in the country of origin.
Another shift in U.S. policy is to recognize trafficking in persons as a human rights violation and to treat the trafficked person as a victim, not a criminal, a victim who is entitled to basic rights. And I put together a Bill of Rights on behalf of victims of trafficking that includes: - not only the right to seek residency
- but the right to safety
- the right to privacy
- the right to legal representation
- and the right to civil compensation
- the right to medical care
- the right to social assistance
- and the right to return.
A notable change is that in certifying victims of trafficking in persons, the Department of Health and Human Services will consider statements from local and state law enforcement officials that the victim of trafficking has been willing to comply with reasonable requests for assistance in the investigation and prosecution of cases of trafficking in persons. Benefits available to certified victims are also extended to minor dependent children of victims of trafficking. The TVPRA allows for a victim of trafficking to file a civil action against their trafficker and recover damages and attorney’s fees. However, any civil action filed during a criminal proceeding must wait until there is a final verdict in the case. The TVPRA amends the existing T-Visa regulations and allow for trafficking victims under the age of 18 to apply for a T-Visa without the requirement of compliance with reasonable requests to assist in the investigation and prosecution in a trafficking case. It also extends the T-Visa to a victim’s unmarried siblings under the age of 18. This is a significant shift in the human rights law of this country. There is another significant shift, and that is the change of the foreign policy of this country. The Act makes trafficking in persons as important as fighting weapons of mass destruction or terrorism or drug trafficking. The Act mandates that the United States monitors the status of sever forms of trafficking in foreign countries. And you all know that this week Cuba, along with North Korea and Burma, have been subject to U.S. sanctions. They were placed in Tier 3 with Sudan and Liberia. Now we have 26 countries in Tier 1 and 80 countries in Tier 2. And the U.S. Department of State's Office to Monitor and Combat Trafficking in Persons keeps the pressure on countries to do something about trafficking. In order to strengthen the foreign policy objectives of the Trafficking Victims Protection Act of 2000, the TVPRA has created three additional minimum standards for the elimination of trafficking. The Department of State Office to Monitor and Combat Trafficking rate countries according to whether or not foreign countries comply with the minimum standards for the elimination of trafficking. The new minimum standards include: - Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant.
- As I understand, it is estimated that 75 percent of women in prostitution are foreigners.
- In Netherlands, at least 3,000 women and girls are brought to the Netherlands from abroad by deception or fraud each year, and are forced into prostitution.
- Whether the government of the country, consistent with the capacity of such government, systematically monitors its efforts to satisfy the criteria described in paragraphs (1) through (8) and makes available publicly a periodic assessment of such efforts.
- Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year.
The new amendments also stipulate that a country that does not provide data regarding investigations, prosecutions, convictions and sentences of trafficking to the Department of State after reasonable requests, will be presumed that the country has not investigated, prosecuted, convicted or sentenced cases of trafficking. The TVPRA also creates a special watch list that includes a list of countries that require “special scrutiny.” And trafficking is a significant problem. The CIA estimates that between 800 and 900 thousand women and children are trafficked annually around the world. And between 18 and 20 thousand are trafficked annually into this country. From what countries? - From Russia, Ukraine and Central Europe from Mexico, China, and Vietnam
To what states? - Florida has a high rate of trafficking, as well as California, Texas, New York, Washington, Washington, DC, and Hawaii.
Where did I get this information? Thanks to Alex Acosta and the US Department of Justice. Between the years of 2001-2003 the Department of Justice prosecuted 106 cases of trafficking, 74 of them sex trafficking, and 72 cased resulted in convictions and guilty pleas. Of those cases 54 were convicted on sex-trafficking charges. In 2004 there are trafficking prosecutions going against at least 9 defendants, 7 of those already resulted in pleas and convictions. At least 20 cases involving 58 traffickers were prosecuted under the TVPA, and 13 of those cases involved sex trafficking. So, the US Department of Justice, I believe, is doing a good job going after the traffickers and prosecuting cases of trafficking. And as I mentioned at the outset of my talk to you, prosecution is a key in any effective response to combat the problem of trafficking. I will be happy to answer any questions that you might have.
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