Good morning/afternoon. I am pleased to be part of this panel on the "Conditions of Victims of Trafficking in countries of Destination."

Today, I would like to address legal responses to "the Conditions of Victims of Trafficking in countries of Destination."

The title of panel suggests to me that any legal response must and would be affected by:

• First, the conditions of victims of trafficking.
  
  So the first question one should address is what conditions are we talking about, which any legal response must address.
• Second, what do we mean by victims of trafficking whom the legal system must protect.
  
  So, the second question one must address is, "Is a trafficked person a victim?"
• And third, does the legal response of a legal system differ in countries of destination as opposed to countries of origin?
  
  So the third question one should address is, "do we have different legal responses, depending upon whether the country is a destination country, a consumer country, a receiver country, as opposed to source country, a provider country, a country of origin.

Let me start by addressing the first question.

As to the conditions of the victims of trafficking, which any legal response must address, the case of United States v. Castaneda, a case decided in 2001, illustrates such conditions. The case involved a co-owner of the Mood and Music nightclub, who recruited three young women from the Philippians for waiting tables and singing. Once hired, they were forced to provide male customers with sexual services in private rooms.

This is sex trafficking.

It involves the following conditions

• Women being trafficked from one country to another
• Deception, fraud, or false promises of employment
• And, vulnerable victims who as the court pointed out "couldn't just pack up and go home."

That is why the dissenting judge, Judge Silverman, supported the application of the "Vulnerable Victim Enhancement" doctrine in the case.

But that's not all! There is the case of United States v. Satia, another case decided in 2001. The case involved a Cameroonian Female minor who was enslaved and harbored in the defendant's home to be used as their domestic servant in violation of the prohibition against involuntary servitude.

This is labor trafficking.

But that's not enough. I would like to see any legal response addressing conditions of victims of trafficking to include not only sex trafficking or labor trafficking, but all forms of trafficking including:

• Baby trafficking or the sale of children in the name of inter-country adoption
• Trafficking of human organs
• Forced marriages
• Sex Tourism
  
  AND
  
  
• Trafficking in Children for Military Purposes Does the U.S. Trafficking Victims Protection Act of 2000 cover all that?
  
  I'm not sure…
  
  Perhaps the U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children does.
  
  So, the idea here is that any legal response should be comprehensive enough to address all forms of trafficking in persons. Any legal response would differ according to the form of trafficking we are talking about.
  • So, if we are addressing trafficking in children, special needs of children must be addressed including:
    • Special child protection centers.
    • And, a witness protection program which make it possible for a child witness t
      • Testify outside the court,
      • Allow for the removal of the defendant from the courtroom,
      • Allow for a child to be questioned by a special youth examiner, or
      • Be accompanied by an appropriate person
  Similarly, if we are talking about sex trafficking, the special status of a trafficked person as a prostitute and not, for example, an immigrant laborer, must be specifically addressed by the legal system.
  • Should that special status, as a prostitute, constitute grounds for deportation of an illegal alien who is being trafficked?
  • Should that special status, as a prostitute, preclude the testimony of the trafficked person under the "double witness rule?"
  • Should that special status, as a prostitute, constitute inadmissible evidence under the exclusionary rule?
  All these are questions, which must be included in any legal response to the issue of the conditions of victims of trafficking in countries of destination.
  
  That brings me to the second question. "Is a trafficked person a victim?"
  
  Well,
  
  
• The UN Protocol talks about trafficked persons as victims, but the Protocol does not define for us the concept of a victim of trafficking.
• However the concept of a victim of a crime has been defined by the U.N. Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, which states that victims are "persons who, individually or collectively, have suffered harm including, physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that are violation of criminal laws, operative within member states…"
  
  I would like to see the term victim of trafficking included in every legislation addressing conditions of victims of trafficking.
  
  Why? So we can emphasize the fact that a trafficked person is a victim and not a criminal.
  
  What does this mean for us?
  
  It means that trafficked persons, as victims, should not be penalized for immigration law or labor law violations.
  
  
• This is the principle of non-criminalization of a trafficked person as stated in the UN Regulation on the Prohibition of Trafficking in Persons in Kosovo. The Kosovo regulation states "a person is not criminally responsible for prostitution or illegal entry, presence or work in Kosovo, if that person provides evidence that supports a reasonable belief that he or she was the victim of trafficking."
• Treating trafficked persons as victims also means that the fault of the victim of trafficking should not be a defense in a civil compensation action. A victim should not be denied civil remedy by being blamed for her own victimization. This is the principle of no fault liability, a proposed amendment to the Civil Code of Russia. We hope it will pass.
• We would also like to see the state itself paying for such compensation when an official of the state, whether that official is a police officer, an immigration officer, or any other public official is involved in this trafficking scheme.
  
  Now, to the third question. Does the legal response of a legal system differ in countries of destination as opposed to countries of origin?
  
  To me, countries of origin must adopt preventive measures to address the problem of trafficking. The legal system of such countries must take care of:
• Travel agents which falsely advertise for sex tourism, so any sex tourism act, like section 2421 of the United States Code or the Child Sexual Prevention Act of 1994 should apply not only to a person who is traveling abroad to engage in sex with a child, but must also apply to the tour operator.
• And, the legal system of an origin country must provide for regulations restricting the activities of an employment agency, which sends workers overseas. For example, the 1995 Migrant Workers and Overseas Filipino Act provides in section 14 for travel advisory and information dissemination.
• Likewise, article 34 of the labor code of the Philippines, an origin country, prohibits any person to engage in the recruitment or placement of workers in jobs harmful to the public health or morality or the dignity or the Republic of the Philippines.

These are countries of origin. Preventive measures must be emphasized and implemented.

In countries of destination, trafficked victims should be entitled to 10 fundamental and basic rights, which, to me, constitute a bill of rights for victims of trafficking. And, these rights are:

• The right to safety
• The right to privacy
• The right to information
• The right to legal representation
• The right to be heard in court
• The right to compensation for damages
• The right to medical assistance
• The right to social assistance
• The right to seek residence
• The right to return

Legal responses in implementing these ten rights differ among legal systems.

Take for instance the right to safety.

• Some legal systems do not provide for any type witness protection.
• Other legal systems provide for such protection such as the 2000 Act, but to provide for such protection, you have to recognize trafficking as not only a crime, but a serious crime because:
• This program does not apply except when a witness is testifying in cases involving serious crimes.
• The witness protection program under the United States Victim and Witness Protection Act provides for protection of a witness in proceedings concerning "an organized criminal activity or other serious offense."
• So, the United States Trafficking Victims Protection Act of 2000 had to recognize trafficking as "an organized criminal activity or other serious offense" for the purpose of applying the witness protection program.

The second example is the right to civil compensation.

Again, legal systems differ.

• Some legal systems, such as the U.S., provide for mandatory restitution, but restitution under the U.S. Act is a criminal sanction. The Act does not provide for a private civil action for damages.
• Other legal systems, such as Cyprus, provide for civil compensation. It provides for not only compensatory damages, but punitive damages as well. Article 8(3) of the 2000 Combating of Trafficking in Persons and Sexual Exploitation of Children Law of Cyprus states that "the court may award punitive damages when the degree of the exploitation or the degree of relationships or the dominating position of the offender with regard to the victims so require."

So, what do we need?

We need to study all of these legal systems.

We need to learn from all of these legal systems because:

• "law develops mainly by borrowing" and
• "the ability of a legal system to react to change depends in large part on its ability to make good use of the experiences of other systems."

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