The Protection Project - Remarks on the Anti-trafficking Law of Mexico

Remarks on the Anti-trafficking Law of Mexico

Presented to the Senate of Mexico

Mohamed Mattar, S.J.D.

Adjunct Professor of Law and

Executive Director of The Protection Project at the

Johns Hopkins University School of Advanced International Studies

October 17, 2005

Mexico City, Mexico

Thank you Mr. Chair for your kind words.

Distinguished members of the Senate of Mexico, Representatives of Civil Society and Guests:

It is a great honor to be speaking to you on such a serious problem that constitutes a violation of human rights and a threat to human security that must be confronted and eliminated.

The organization that I am representing today, The Protection Project, has sponsored two victims to testify before the US Senate on the need for the passage of the United States Trafficking Victims Protection Act of 2000. The victims were lured from Mexico to Florida to be sexually enslaved, serving sometimes twenty customers a day. This was the 1998 case of United States v. Cadena.

And today, October 17, 2005 I am privileged to be testifying before the Mexican senate on behalf of The Protection Project.

And the Trafficking Victims Protection Act has expanded the ruling in United States v. Kozminski, when the Supreme Court interpreted the involuntary servitude statute to criminalize only servitude that is brought about through physical or legal coercion, thus excluding psychological coercion in the case that involved two mentally retarded Mexicans who worked on a farm in Michigan seven days a week, often 17 hours a day for 15 dollars per week, and sometimes for no pay.

Mexico is a country of origin, destination, and transit for trafficking in women and children.Not only are women and children trafficked from Mexico to the United States, but also women and children from other countries are brought to Mexico and forced to work in prostitution.

It is encouraging that in May 2003 Mexico ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the United Nations Convention against Transnational Organized Crime. In March 2002, Mexico has also ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, in June 2000 the International Labor Organization Convention 182 on the Worst Forms of Child Labor, in June 1993 the International Labor Organization Convention 105 on the Abolition of Forced Labor, in 1959 the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery.

This long tradition of ratifying international treaty law demonstrates that Mexico is committed to fully comply with international law and I want to congratulate you on the legislative measures that you have already taken to combat trafficking in persons in accordance with international law.

However, Mexico does not have a specific law regarding trafficking in women and children. The Draft Law to Prevent and Punish Trafficking in Persons, that I liked reading, recognizes trafficking in persons as a specific crime and if passed, will fill the gap in the criminal justice system and provide a comprehensive and effective response to the problem of trafficking in persons.

Consequently, my remarks to you today attempt to present an argument in favor of the passage of a specific and comprehensive trafficking law.

I understand that the existing legislation of Mexico, mainly based on the Federal Criminal Code, prohibits various acts related to trafficking in persons.

The Penal Code prohibits procuring another person for purposes of prostitution, promoting and facilitating prostitution, (article 205)and living off the proceeds of the sex trade (article 207). The code also penalizes anyone who induces or requests another person to engage in commercial sex or facilitates the means for such a person to be delivered into prostitution. (article 207(1)) The code criminalizes maintaining a house of prostitution or other premises used for the purpose of prostitution. (article 207(3)) The code prohibits a person from conspiring, concealing, or permitting the commercial sexual activity of a minor. The code punishes the crime of corruption of minors.(article 201) The code also prohibits persons under 18 years of age from working in bars, taverns, or other centers of vice.(article 202) The 2003 amendments to the Penal Code have introduced the crime of child pornography as well as the crime of child sex tourism, including promoting, advertising or facilitating tours for the purpose of engaging in sexual activities with minor. Articles 461 and 462 of the General Health Act punish illegal trafficking ofhuman tissues, organs and their components from living or dead bodies. The Federal Law against Organized Crime establishes specific rules for the prosecution of organized crimes.

This is a long list of crimes that you have successfully passed. It shows a serious commitment to combat harmful and dangerous acts to the individual and the society in Mexico.

However, the anti-prostitution provisions are designed to criminalize prostitution related activities, in compliance with articles 1 and 2 of the 1949 Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, which Mexico acceded to in 1956. They do not specifically make trafficking in persons a crime and they do not cover all forms of trafficking in persons and as such they are inadequate. A specific anti-trafficking provision should recognize all forms of trafficking as a crime.

Ratification of the United Nation Protocol on trafficking requires Mexico to adopt a new legislation that is consistent with article 3 of the UN Protocol, which adopts a broad definition, an expansive view of what is recognized as “trafficking in persons” and provides that

"[t]rafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

The same article further defines the exploitation, as the purpose of trafficking, to include, “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor, or services, slavery, or practices similar to slavery, servitude, or the removal of organs….” Trafficking, thus broadly defined, must be recognized as a crime. To this end, the UN Protocol provides, in Article 5, that “[e]ach state party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol….”

A broad definition of trafficking in persons is adopted by Article 6 of the Mexican Draft Law to Prevent and Punish Trafficking in Persons. Article 6 states: “Trafficking in Persons is committed when someone recruits, transports, transfers, harbors or provides lodging to persons, by any means, for forced labor, prostitution and other forms or sexual exploitation, slavery or practices similar to slavery or extraction of organs.”

Distinguished members of the Senate:

If you allow me, I would like to applaud those who prepared the Draft Law.

The Draft Law does not require unnecessary elements for the establishment of the crime of trafficking and therefore makes prosecution of such a crime easier. The Draft Law does not require force as an illegal means for the commission of the crime. Use of force or violence merely constitutes an aggravated circumstance that enhances the penalty. The Draft Law does not require the involvement of organized criminal group for the commission of the crime. However, article 7 states that if the act is committed by perpetrators acting “in groups of two or more people,” the penalty may be enhanced.

The Draft Law does not require transnationality and therefore recognizes internal trafficking.

The Draft Law also considers as an aggravating circumstance an act of trafficking that is committed by a public person and this is an important measure to combat public corruption.

The Draft Law provides for the liability of the legal person making a corporation responsible for the crime of trafficking in persons. (article 10)

These are all provisions which I believe provide a model of adequate and effective criminal law.

However, since the function of a criminal code is merely to proscribe a crime and provide for punishment for such a crime, a more comprehensive law is needed to provide for preventive measures and protect victims of trafficking. I believe that the Draft Law to Prevent and Punish Trafficking in Persons, if passed, could be such a comprehensive law.

A comprehensive trafficking in persons law should be based on primary principles.

First, a trafficked person should be recognized as a victim of a crime. Victims of trafficking are not always recognized as “victims,” but often mistaken for illegal migrants and deported. So, trafficking in persons is often perceived as illegal immigration, or a form of smuggling of aliens.

The Draft Law should consider defining the trafficked person as a victim in accordance with the UN Declaration of Basic principles of Justice for Victims of Crime and Abuse of Power, which provides that “Victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights […]”

Second, a victim must be broadly defined to include members of her family, or others, if necessary. Applying the “derivative victim doctrine,” article 19 of the Draft Law provides that legal and judicial authorities shall “provide protection to victims’ families while they reside in Mexico to avoid intimidation and threats from traffickers,” and thus complies with the UN Declaration of Basic principles of Justice for Victims of Crime and Abuse of Power, which defines the term “victim” to include, “where appropriate, the immediate family or dependants of the direct victim and persons who have suffered to assist victims in distress or to prevent victimization.”

It is also essential that an anti-trafficking law adopt the principle of non-criminalization of the acts of victims of trafficking. The non-criminalization principle is important because the acts of victims of trafficking usually involve illegal acts, such as prostitution, illegal entry, unauthorized work, fraud or other types of illegal activities.

A good example is provided by the United Nations Regulation No 2002/4 on the Prohibition of Trafficking in Persons in Kosovo. The UN Regulation states that “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.”

Another good example is provided by Section 208 of the United States Department of Justice Model Law to Combat Trafficking in Persons of March 2003. This Section, titled Victim Immunity [Exemption] from Prosecution, states that “a victim of trafficking is not criminally liable for any migration related offense, prostitution, or any other criminal offense that has been a direct result from being trafficked.”

I would suggest that the Draft Law provide for the “non-criminalization” or the “excuse” principle.

Distinguished members of the Senate:

Based upon these principles, victims of trafficking must be entitled to basic rights.

A state is under international obligation to protect the victims of trafficking. The UN Protocol calls upon the state parties to protect the privacy and identity of victims of trafficking in persons “[i]n appropriate cases and to the extent possible under [their] domestic law….” (article 6(1)) This can include “making legal proceedings relating to such trafficking confidential.”(article 6(1)) Further, it calls upon the state parties to “consider implementing measures to provide for the physical, psychological, and social recovery of victims of trafficking in persons….” (article 6(3)) Finally, the UN Protocol provides that the state parties should “endeavor to provide for the physical safety of [such] victims…,” (article 6(5)) provide for “legal … measures that offer victims of trafficking in persons the possibility of obtaining compensation for damages suffered[,]” (article 6(6)) and “consider” granting a victim of trafficking residency status. (article 7)

The Draft Law takes these protective measures into consideration in providing for a “Bill of Rights” for victims of trafficking that I advocate and feel proud to learn.

It is significant that the Draft Law grants a victim of trafficking an immigration status. Article 21 states: “Public entities and federal authorities shall adopt necessary measures to allow TIP victims to stay in Mexico temporarily or permanently as applicable. Temporary residency permits will be provided to TIP victims that assist in investigation and those in danger of retribution by traffickers.”

This is an important means that the Draft Law properly provides for especially because Mexico is not only a country of origin but also a country of destination for victims of trafficking. Women are trafficked to Mexico from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Russia, and other parts of Eastern Europe.
This is an important means that the Draft Law properly provides for, especially because the population law while provides for a refugee status in Article 42 does not contain provisions as to the treatment of victims of crimes, including the crime of trafficking in persons.

Perhaps the Draft Law would consider in this context a “Recovery and Reflection Period”, such as the one provided by the April 24, 2004 European Council Directive on the Residence Permit Issued to Third-Country Nationals Who Are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate with the Competent Authorities, and implemented in article 16 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings.

Perhaps also the Draft Law would consider including victims of trafficking

in a witness protection program.

The Draft Law properly provides for measures to guarantee the protection of children traveling abroad alone. I believe that the Draft Law should also allow for other special rules that takes into consideration the special needs of children.

I would like to make a reference here to the 2005 Council of Europe Convention on action against Trafficking in Human Beings, which contains a number of provisions addressing the special needs of children victims of trafficking. For instance, the Convention calls upon member states to adopt a child-sensitive approach in the development of policies and programs to prevent trafficking. [article 5(3)] Similarly, the Convention calls upon state parties to adopt measures to reduce children’s vulnerability to trafficking in persons. [article 5(5)] Furthermore, the Convention states that special measures must be adopted when identifying children as victims of trafficking, including appointing a legal guardian, and keeping the identity of children anonymous. [article 10 and 11] State parties should provide access to education for children in an effort to assist them in their social recovery. [article 12(1)(f)] Moreover, the Convention provides that the residence permit for child victims should be issued in accordance with the best interest of the child. [article 14(2)] Likewise, child victims should not be returned to their country of origin if such return is not in the best interest of the child. [article 16(7)] The best interest of the child should be also taken into account during the prosecution of traffickers [article 28(3)]. To this end, special court proceedings should be adopted to protect children’s private life and safety. [article 30]

In regards to rules of testimony, the following is a proposed language based on the United States law, which may be considered. “The court shall make a preliminary finding regarding whether at the time of trial the child is likely to be unable to testify in open court in the physical presence of the defendant, jury, judge, and public for any of the following reasons:

(I) The child will be unable to testify because of fear.

(II) There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying in open court.

(III) The child suffers a mental or other infirmity.

(IV) Conduct by defendant or defense counsel causes the child to be unable to continue testifying.”

The Draft Law provides in article 11 for the right of a victim of trafficking for restitution. Other models of compensation may also be taken into consideration.

For instance, article 22 of the anti-trafficking law of Azerbaijan provides that all the property obtained from human trafficking is transferred to specially established assistance fund for the victims of trafficking and directed to pay compensation for victims, social rehabilitation, medical and other expenses. Courts can also consider whether to award compensation for moral damages.

The Dominican Republic’s Law Number 137-03 Regarding Illegal Trafficking of Migrants and Trade in Persons provides for such compensation in a unique provision. Article 2 paragraph II provides that the proceeds of the fines of the crime of trafficking shall be used in two ways: 1) To compensate the victims of trafficking for material damages as well as moral damages; 2) Such proceeds shall also be used for establishing the programs and projects of protection and assistance that the law provides for the victims of trafficking.

Article 16(5) of the Russian Draft law states that proceeds received from confiscation of assets may be used to pay “compensation, restitution and damages” to victims of trafficking. Article 16(5) further allows for using these proceeds to finance anti-trafficking institutions, law enforcement agencies, as well as programs designed to assist victims of trafficking.

Article 38 of the law of Nigeria provides that victims of trafficking have the right to file a civil action against the traffickers and even public officers involved in the act of trafficking and ask compensation, restitution and recovery for economic, physical and psychological damages.

Article 14 of the law of the Philippines provides that in addition to the penalties for the crime of trafficking, courts should also order forfeiture in favor of the government of all the proceeds and properties derived from the commission of the crime.

The U.S. Trafficking Victims Protection Reauthorization Act of 2003 grants a victim of trafficking the rights to file a civil suit seeking compensatory as well as punitive damages.

Whilethe Draft Law establishes an Inter-Agency task Force (article 12), it does not include NGOs in the Task Force. The UN Protocol provides: “[e]ach State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.” The Protocol also provides that “policies, programmes and other measures established in accordance with [Article 9] shall, as appropriate include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.” These provisions, in my judgment, establish an international obligation on state parties to cooperate with non-governmental organizations.

While the Draft Law provides for cooperation with non-governmental organizations, (article 13), it should consider including representatives of NGOs in the structure of the Task Force. For instance, section 20 of the law of the Philippines establishes an Inter-Agency Council Against Trafficking and requires that three representatives from NGOs be members of it.

Granting NGOs such a role will no doubt strengthen the participation of civil society in the fight against trafficking. Perhaps, the draft law would also like to provide for the participation of the ordinary citizen. Here is a language that I suggest to be added to article 12 that provides for preventive measures: “Federal authorities shall…implement the following …measures to prevent trafficking in persons including “to inform the public on its duty to report any suspicious trafficking activities.”

Distinguished members of the Senate:

The other international responsibility of the state is to undertake measures with respect to prevention of trafficking in persons. The UN Protocol provides that “State Parties shall establish comprehensive policies, programs and other measures: (a) to prevent and combat trafficking in persons….” (article 9(1)). Such measures include, but are not limited to, “research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons.” (article 9(2)) In addition, these measures should include steps “to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.” (article 9(4))

Consequently, failure of the government, or its inaction, in preventing trafficking in persons constitutes a violation of its obligations under international law.

The Draft Law in Chapter III adequately provides for preventive measures against trafficking in persons.

The Draft Law makes reference to the role of the natural person in the context of trafficking. Article 12(11) explicitly provides for developing “strategies and programs to eliminate demand for TIP, pointing out the consequences of committing the crime.”

The UN Protocol on trafficking has recognized this link between demand and trafficking. Article 9(5) of the Protocol states that “states Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters exploitation of persons, especially women and children, that leads to trafficking.”

Few legal systems fully comply with this mandate. The 1998 Swedish law on the Prohibition of Purchase of Sexual Services criminalizes only the purchase, and the attempted purchase, of casual sexual services, while selling sex is not considered a crime. The Swedish law provides that "a person who obtains casual sexual relations in exchange for payment shall be sentenced-unless the act is punishable under the Swedish Penal Code-for the purchase of sexual services to a fine or imprisonment for at most six months." However, both laws only criminalize buying sexual services from a person under the age of 18. In some legal systems knowledge of trafficking makes the customer liable. This approach is adopted by Article 418-a of the Criminal Code of Macedonia which provides that “[t]he one that uses or enables another person’s usage of sexual service from the person for whom he knows are victims of human trafficking will be punished with imprisonment from six months up to five years.” Article 19 of the Council of Europe Convention on Action Against Trafficking in Human Beings states: “Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”

The Draft Law may consider addressing the issue of demand not only in the context of prevention, but prosecution as well.

Buying sex should be a crime. The purchaser of services of victims of trafficking must be subject to liability.

Distinguished members of the Senate:

Legislation is one of the primary sources of social change and social regulation. Legislative measures are one of the most effective means of combating a serious problem, such as trafficking in persons. And that is why the UN Protocol on Trafficking calls upon state Parties to adopt not only educational, social and cultural programs, but legislative measures as well.

At least 34 countries have enacted comprehensive anti-trafficking laws. In these laws the legislator does not only criminalize trafficking, but also provides for the prevention of the act of trafficking and protection of the victims of trafficking. And at least 106 countries have a specific provision recognizing trafficking as an offence in the criminal code. Mexico falls in the category of the minority countries that still adhere to the traditional model that is based on criminalizing prostitution related activities or other similar acts.

But Mexico had the experience and the tradition of enacting comprehensive laws to provide protection for the needy and the vulnerable. Suffice here to mention the April 28, 2000 Law for the Protection of Girls, Boys and Adolescents, which promotes a culture of protection of the rights of children.

In Mexico, the Draft Law, I must say, is well drafted and carefully designed to address trafficking in persons in all its aspects. It addresses the status of victims of trafficking. It covers trafficking in persons, especially women and children, not only as a crime control or law enforcement issue, but also as a human rights violation and a threat to human security.

The Draft Law deserves your consideration.

Thank you for holding these hearings.

I applaud your commitment and leadership.