Protection Project - South Africa Conference

South Africa Conference: “The Next Steps To Path Breaking Strategies in the Global Management and Prosecution of Sex Trafficking in South Africa”

Johannesburg, South Africa

22-24 June 2004

Anti-Trafficking Laws in South Africa: A Comparative and International PerspectiveI am really privileged to speak to you on the status of anti-trafficking legislation inSouth Africa from an international and comparative perspective. I had thechance to review the Report by the South African Law Reform Commission whichwas established by the South African Law Act of 1973, and let me tell you, I likedwhat I read. And I want to take this opportunity to say a few words about theReport. I understand the closing date for comments was March 31, 2004. So Ihereby ask for an extension.

In fact, my understanding is that the United Nations is in the process of appointing the Special Rapporteur and I think that South Africa and the South African government should think about nominating one of the members of this distinguished Commission. Because these Commission members have produced what is really a very comprehensive piece of work.

I do not only like it because it made reference to our annual Human Rights Report on Trafficking of Persons Especially Women and Children that we published on the status of trafficking in various countries around the world. But I think that the Commission’s work really addressed the main problems which we face in the anti-trafficking movement today. The Commission’s Report covered all forms of trafficking

But I must ask whether trans-national trafficking, what the Report calls cross border trafficking, includes internal trafficking because I am not sure whether the Report covered it. Because South Africa is not only an origin, transit and destination country for women and children, but there is also internal trafficking occurring in the country.
And it did not stop at commercial sex work although I do not like the term because I do not think sex is work or should be work. But it also talked about trafficking for non-commercial reasons, exploitation for personal gratification. What the report called personal gratification, a term I do not understand, perhaps it refers to domestic work and sexual abuse of domestic workers. The Report covered trafficking for domestic work, drug coerced trafficking, trafficking for forced marriages, trafficking for the purpose of adoption, and trafficking for the purpose of the removal of organs.
And then the Report asks the question: How should the crime of trafficking of persons be defined for the purposes of South African legislation and whether it should follow Article 3 of the United Nation’s Protocol. And to me, the answer is simple. Yes, follow the Protocol, but do not limit yourself to the Protocol, that is what the Protocol tells us. The forms of trafficking under Article 3 are not exhaustive, but they are mentioned , and now I am using the Protocol’s language, “at a minimum.” What does this mean? It means that

o       The definition of trafficking should depend on the specific forms of trafficking in a country.
       That is why I like the definition of trafficking under Article 111-b of the Law of Serbia it
         specifically refers to trafficking for pornographic purposes, exploitation in armed conflicts.
         And that extension beyond the Protocol is a good thing.

The same kind of extension you will find in Article 165 of the Moldovan Criminal Code. My favorite reference there, is the reference of the distinction between commercial sex and non-commercial sex. That will take care of issues like forced marriages, mail order brides and trafficking for child bearing.

The Report asked whether certain forms of trafficking should be classified as severe forms of trafficking in persons. I do not know what the Report is referring to. Is the Report referring to the concept of severe forms of trafficking under the U.S.’ Trafficking Victim’s Protection Act? Or, as I understand from reading the Report, it only means aggravated circumstances. And there is a difference here.

Severe forms of trafficking under the U.S. law covers the definition of trafficking itself. Trafficking is severe if it is in children or if there are illegal means used, in particular or especially, force, fraud or coercion.

The report talks about something else. The report talks about aggravated circumstances, if they exist, the penalty is enhanced. And of course this is a good criminal justice policy. Cases like

o      Trafficking for labour that involve sexual exploitation
o      Sex trafficking that also includes rape or forced abortion or the like.
o      Trafficking in persons that involves organized crime. That means, under the U.N.’s
        Convention, three or more traffickers.

I can go on and on, but because of the time limitations, let me answer some of the other questions that relate to the issue of a sentence or an enhanced sentence.

Issue 1: Definitely provide for a minimum sentence. Unfortunately many countries go for a maximum sentence that is reasonably high, but that allows the judge, under his or her discretion, to order a light sentence, a year or so. For example this is the case of the Criminal Court of Bulgaria. I am mentioning Bulgaria because I was there last December on a training program in South East Europe. I liked Sophia, but I did not like Article 159-a(2) when it provided for a punishment of imprisonment of 1-8 years.

And definitely do not limit yourself to imprisonment. Confiscation of assets is a must. Here the law of Italy is a good one as well as the law of the Dominican Republic. Why? Because these laws

Provide for forfeiture of assets
Use these assets to compensate victims of trafficking
And use these assets to start assistance and protection programs for the victims

And all that sounds very good, but make sure you know who you are punishing. You and I will agree that we should punish the trafficker.

Issue 2: But you and I have to agree as to what we mean as to the term trafficker. Are we talking about the principle or are we also including the facilitator. I am referring here to question number fourteen of the Report. And here I always draw a distinction between the private person and the public person. Something has to be done about the public official who facilitates the act of trafficking. Public corruption must be addressed. How do you do that as part of an anti-trafficking legislation? You do that in two ways:

When you define trafficking do not limit yourself to abuse of power which is what the Protocol covers, but also make abuse of office and illegal means because that gives rights to the crime of trafficking
And then when you provide for an enhanced penalty make the involvement of a public official an aggravated circumstance that warrants such enhanced penalty.

Also in answering in question number fourteen I would like to make a second distinction. The distinction between the natural person and the legal person. By legal person I mean the corporate person, the juristic person.

The taxi company
The advertising agency
The employment agency
The adoption agency
The matchmaking organization
The strip club
The massage parlor

I like the new massage law that just passed in Arizona and it will be effective July 1 2004 so by the time I arrive back to the US the law will be enforced. The law draws a distinction between massage and massage with special ending. So those who are offering the massage should not be part of sexual schemes.

You may agree or disagree with me, to me the institution of massage itself is questionable at least the way it is being practiced. I feel the same way about the institution of mail order brides or marriage by catalogue. I also have problems sometimes with international adoption as opposed to domestic adoption. But I do not get into any of that because I am having fun in South Africa and I am planning on staying for three more days and it is not a good idea to make enemies at this time.

You and I would agree that we should not punish the victim of trafficking, although that principle of the non-criminalization of the acts of the victim is not always clearly implemented in many legal systems around the world.

On the international level, the Protocol was silent as to that important principle.
On the national level, the United Nations Kosovo Regulations on Trafficking provides a good example. Under the regulations, prostitution, illegal entry and unauthorized work, do not give rights to a crime, as long as we reasonably believe that the person who committed such acts is a victim herself.

Also I would like to mention the U.S. law, especially that I just got my American nationality this May 20, 2004. Under the U.S. law, a trafficker who falsifies government documents may get up to 5 years in prison and the law makes it clear that this rule shall not apply to victims of trafficking if the act committed is incident to or caused by an act of trafficking.

This is a victim friendly law and I am using here the term used by the South Africa Reform Commission’s Report section 3.38. And the Report asks many questions on how to be friendly to a victim of trafficking and let me mention some of the measures that a country should take to be friendly to a victim of trafficking.

First do not deport the victim of trafficking, even as I said, she is in the country illegally.
Let her stay. Provide her with immigration status. And countries do not always agree to the conditions that have to exist for that to happen. Article 7 of the Protocol does not require any conditions. It talks about a compassionate and humanitarian basis for granting residency. Probably the one who wrote the Protocol was a Republican. I do not see that fully addressed in the report. As I said, countries disagree. And the Report talks about asylum and refugee status. That is not what we are talking about. It is very difficult to prove a victim of trafficking is an asylee or a refugee and that is why the Asylee/Refugee law will not always provide the answer.
And the Report asks the question about restitution, but restitution is not civil compensation. I would like to see the law provide for the right of victim of trafficking to file a civil action for damages including not only compensatory damages but perhaps punitive damages as well. This is the case under the US Trafficking Victim Protection Re-Authorization Act of December 2003 which amended the Trafficking Victim Protection Act of October 2000.

Some countries allow for some kind of temporary residency status for the period of the court proceedings. So as long as the victim is going to testify let her stay in the country of destination, so that the state can have a case against the trafficker and then deport her.

But this is not really what we are talking about. Do we consider trafficking of persons a crime against the state? Or should trafficking of persons be a crime against the individual, the people, the human being. If we are trying to protect here the security of the trafficking victim we should think about the Trafficking Victim Protection Act as our model. Which provides the victim of trafficking with permanent residency status.

I think that is the right approach. I was in London this last April talking to the Helsinki group about trafficking in persons as a threat to human security as opposed to state security. I made the case that we should incorporate human security as the basis for the protection of victims of trafficking. But providing this type of assistance to victims of trafficking is not the only measure you have to take to be victim friendly.

When we talk about trafficking and protection of victims of trafficking I like to distinguish what I call the Three Re-s

Re-habilitation
Re-integration
Repatriation

The three Res must be implemented in any victim friendly anti-trafficking legislation. And the Report in question number twenty asks the question, and I am quoting “How can interaction and cooperation between the government and NGOs be fostered in order to ensure effective provision of services to victims?” I love that question for several reasons.

The term provision is key here. When we talk about trafficking we talk about the three Ps: Prevention, Protection and Prosecution. I would like to think in the 5 Ps: Prevention, Protection, Prosecution, Participation and Provision which means assistance. Which is different then protection and that was a point emphasized in the American Bar Association’s discussion of the trafficking tour the ABA is putting together to advise countries as to how to comply with the Protocol.

But question number twenty makes reference to a very important aspect of combating trafficking and that is the cooperation between Government and NGOs. I have a few words to say about that here.

On the domestic level countries differ. Some countries establish a task force to combat trafficking and make NGOs a member of such a task force. And some countries limit that relationship between Government and NGOs, by making the NGO a consultant. They do not have to be present in meetings conducted by a country’s task force and that is the U.S. policy.

On the international level I advocate what I call an international obligation, which is opposed by the Protocol, to cooperate of Governments with NGOs. An international obligation of cooperation. If you carefully read Article 6 on protection and assistance and Article 9 on prevention, you would agree with me that the Protocol imposes an obligation on the Government to cooperate with NGOs.

And talking about governments reminds me of what I call the Three Exs. I am not talking about the Three Axis’ of Evil, but what I am talking about are

Extra-territoriality
Extradition and
Exchange of information

You need all three if you are serious about combating trafficking on the international level. And I understand that in South Africa the Extradition Act of 1962 provides for extradition of persons accused or convicted of certain offenses. I would like to see trafficking in persons recognized as an extraditable offense. Now you do not need an extradition treaty if you are a party to the Convention of Organized Crime. The Convention itself will provide you with the basis for the extradition. South Africa signed the Protocol.

A good thing that South Africa has ratified the Convention and the Protocol on Trafficking this last July 1 2003. And if you want to know the status of the parties of the Protocol as of Wednesday June 16, 2004 4pm Eastern time they are 61 countries who have ratified it.

So go after the trafficker and do not punish the victim of trafficking, but how about the customer? Well legal systems do not always agree as to whether it is a good policy to make life miserable for brothels and brothels attendees

If you go to the Netherlands, prostitution is ok. It is legalized and do not ask me why the Netherlands is on Tier 1 of the State Department’s 2004 Trafficking Report.
And if you can afford to fly, and you go to Germany, prostitution is ok. And again, do not ask me why Germany is on Tier 1 of the U.S. State Department’s Trafficking Report.
I was in Turkey just last January and Article 215-b defines trafficking in persons without mentioning the word sex at all. Why? Because sex there is considered a form of labour, and the Turkish legislator felt that it is sufficient to define trafficking as the exploitation for forced labour. Whether that labour is sex or something else.
I have to mention Lebanon since it is a country from the Middle East and that is where I come from. And in Lebanon, if you want to be a prostitute all you have to show is that you are not a virgin and that you are not under 21 years old. And if so, you can get a license to practice.
But you can ask me why Sweden is on Tier 1 of the report. I believe that it should be on Tier 1 because if you would like to buy sex in Sweden, under the January 1, 1999 law, buying sex is a crime, selling sex is not and you can get up to six months imprisonment.
And if you do not like the Swedish model let me offer you the Macedonian model which was followed by Croatia. Under both laws, if you are buying sex from a woman in prostitution with the knowledge that she is a victim of trafficking, you may end up in prison for up to 5 years.

And since I mentioned the U.S. State Department’s Report, I have to say a word or two about the placement of South Africa on Tier 2. What does this mean? It means that South Africa does not fully comply with the minimum standards for the elimination of trafficking, but the Government of South Africa is making significant efforts to do so.

And I believe that there are good efforts being made on many fronts. Because time is of the essence. Let me mention some of these efforts in areas which I like, and which are of interest to me. The first area is the new law that the government is considering. And that is

Chapter 5 Article 24 under the Sexual Offenses Amendment Bill covers trafficking, which is a good development since traffickers are currently prosecuted under a variety of statutes including the Child Care Act of 1983 and the Prevention of Organized Crime Act of 1988, in addition to the Sexual Offenses Act of 1957. But I have some problems with Article 24. There are not too many.

My first problem is, it is not clear to me how Article 24 defines trafficking. It talks about a person who “trafficks” another person would be guilty of “trafficking.”

Another problem is the issue of consent. That is the big one because unlike the Protocol, which makes consent irrelevant as long as illegal means are used. Unlike the Protocol , Article 24 seems to adopt a narrow definition of what it considers an illegal means. The Protocol talks about taking advantage of a position of vulnerability and does not require force. I think the definition of trafficking should be reconsidered including the issue of consent. But section 6 of Article 24 is very good because it provides for exemption of liability. It specifically provides “ a person who has been trafficked is not criminally liable for any migration-related offence, prostitution or any other criminal offence that was a direct result of being trafficked”

But the article does not say anything about

The liability of the public person
Or the liability of the natural person, the customer.
And punishment under the article is limited to a fine or imprisonment which is bad because you can impose a fine and not imprison the trafficker.
And it does not say anything about forfeiture of assets.

And of course I do not want to repeat myself, but much of what I addressed at the outset applies to Article 24. One final point of course. The Sexual Offenses Act is only about sex trafficking so other forms of trafficking are not covered by the Sexual Offenses Amendment Bill.

But you don’t have to talk about all forms of trafficking in one Article, take for example the whole area of human organs, it is addressed by the Human Tissue Act of 1983, which states that no one may receive payment for the transfer of any human tissue including an organ. Although I am not sure the punishment is serious enough because the Human Tissue Act talks about a maximum fine of $300 or imprisonment of no more than one year.

The second area, which is really important for all of us to address together is the link between trafficking and HIV/AIDS. The United States Leadership Against HIV/Aids Act of 2003 makes that link. But I believe that further research must be done to examine the issue and that is the link between trafficking and prostitution. And the global health risk as the term used by the Trafficking Victims’ Protection Re-Authorization Act.

Something has to be done. Legal responses must be designed to combat that severe problem.

One of these responses is provided by the Sexual Offenses Amendment Bill which provides for criminal non-disclosure. The Act provides in Chapter 1 sec 5, and I quote “ A person (A) who engages in intimate contact with another person (B) and who intentionally does not disclose to (B) that he or she has HIV or AIDS is guilty of an offence of criminal non-disclosure of HIV or AIDS.” And “intimate contact” is defined as, I quote, “the contact of a sexual nature that exposes the body of one person to a bodily fluid of another person.”

And in some other countries the issue of HIV/AIDS is addressed with criminal law through public health statutes.

In the U.S. every state and territory has a generic criminal statute that could apply to conduct that exposed others to HIV and 24 states have adopted statutes that criminalize exposure or transmission of HIV generally or specifically by either spitting, donating blood or sexual intercourse. There is a possible charge of attempted murder or attempted manslaughter. And there are 15 states that have passed statutes that deal specifically with acts that are already crimes, including prostitution, rape or assaulting a peace officer, punished separately or more severely when the perpetrator knows he or she has HIV. And in some cases that have been brought, HIV infection, for those convicted for assault, has been an aggravating factor. Many states have amended existing criminal or quasi-criminal public health legislation to penalize the non-disclosure of HIV/AIDS.
In Australia, the New South Wales province amended its public health legislation making it an offence for a person who knows s/he has AIDS to engage in sexual intercourse without informing the other person of the risk of infection.
But in Canada, a law in its Criminal Code does not explicitly and specifically define as an offence the transmission of HIV or exposure to another person of the infection. But charges have been laid for the transmission of HIV/AIDS as

o       criminal negligence causing bodily harm,
o       a common nuisance,
o       assault,
o       administering a noxious thing and
o       attempted murder.

Canada has proposed an amendment to this Bill that would allow an “infecting act” to include

o       sexual intercourse,
o       any physical contact that may transmit the bodily fluid of one person to another
         bloodstream and
o       any act that the accused knew was capable of transmitting HIV.

The United Nations Guideline on HIV/AIDS and Human Rights concludes that

o       “Public health law should ensure that people are not subjected to coercive measures
         such as isolation, detention or quarantine on the basis of their HIV status. Where the
         liberty of persons living with HIV is restricted due to their illegal behavior, due process
         should be guaranteed.”
o       And “criminal law should not include specific offenses against the deliberate and intentional
         transmission of HIV, but rather should apply general criminal offenses to these exceptional
         cases. Such application should ensure that the elements of foresee-ability, intent causality
         and consent are clearly and legally established to support a guilty verdict and/or harsher
         penalties.”

The HIV/AIDS epidemic is one that is ravishing the people of South Africa, the African continent and all nations of the world. So I ask that when making legislation in addressing this crisis that legislators consider carefully the consequences of criminalizing the transmission of HIV/AIDS, whether intentionally or not. A debate is occurring throughout many nations in the world, especially in the U.S. and Canada, whether criminalization will produce the result of stopping the spread of this infection or whether it will force HIV/AIDS victims to go underground.

In the context of trafficking in South Africa criminalization of the transmission of HIV/AIDS may target and penalize the trafficked victim who under forced prostitution, contracted the disease. Many trafficked victims are forced to have unprotected sex with the traffickers who initiate them into prostitution and then forced to have further unprotected sex once trafficked into the country of transit and destination.

And so I ask legislators to consider along with criminal sanctions to consider a serious investment to the fight against HIV/AIDS by creating legislation that will provide services and programs that will not only educate South Africans on the ways HIV/AIDS are transmitted but provide South Africans with the services that actively promote prevention of the infection and protection for those who already have the infection.

I applaud the effort that South Africa is making with the criminal non-disclosure provision in the Sexual Offenses Amendment Act as it shows that the South African government is addressing a problem that not only has many consequences for the health of its country but the health of South Africans and the health of the human race.

To conclude I would like to say that the link between trafficking and AIDS, trafficking and poverty, trafficking and gender inequality, trafficking and unequal opportunity proves the point I tried to make, that trafficking of persons is a threat against The State as well as The People and any effort to combat the problem must address not only as a state security issue but a human security issue.