The Protection Project - A Comparative Analysis of the Anti-Trafficking Legislation in Foreign Countries: Towards a Comprehensive and Effective Legal Response to Combating Trafficking in Persons

Statement of Mohamed Y. Mattar, S.J.D.

Co-Director, The Protection Project at Johns Hopkins University
School of Advanced International Studies

House Committee on International Relations
Subcommittee on International Terrorism, Nonproliferation and Human Rights

June 25, 2003

A Comparative Analysis of the Anti-Trafficking Legislation in Foreign Countries: Towards a Comprehensive and Effective Legal Response to Combating Trafficking in Persons

The Status of the Early "Procuration Laws" and the "Prostitution Laws." On June 28, 1999, Laura Lederer, the former Director of The Protection Project at Johns Hopkins University School of Advanced International Studies testified before the 106th Congress stating:

"We have found that more than 154 countries currently have legislation that at least minimally target the prosecution of traffickers by prohibiting the procuration of women or children for the purposes of prostitution and forced labor. Most of these laws were drafted between 1912 and 1960 to address earlier waves of trafficking. However, these laws are poorly, if ever, enforced. In fact, we found that the prostitution laws are enforced, but the procuration laws are ignored. They're rarely invoked. So that the women and children end up in jail and the traffickers go free."

This was the status of anti-trafficking legislation in foreign countries prior to the passage of the United States Trafficking Victims Protection Act of 2000 [hereinafter referred to as the "TVPA"] and the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime [hereinafter referred to as the "UN Protocol"].

I am privileged to speak to you today on the current status of existing anti-trafficking legislation and to report to you on what has been done in the anti-trafficking legislative movement in foreign countries and what should be done to move towards a more comprehensive and effective legal response to combat the problem of trafficking in persons.

I would like to give you a brief overview of early anti-trafficking legislation.

First, most anti-trafficking legislation was enacted as a part of the Penal Code or Criminal Code rather than as separate comprehensive acts and, as such, they only addressed trafficking as a criminal offense. Since the function of criminal law is to describe crimes and determine punishments for such crimes, protection of women and children was not part of these laws.

Second, trafficking in persons was prohibited mainly as a prostitution related activity. Anti-trafficking legislation during this time were influenced by the "White Slave Traffic" Conventions, especially the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others. The Convention mandated that "The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person." In fact, this language was explicitly used in the criminal codes of many countries.

Third, trafficking in persons was not recognized as a specific crime. Instead, it was addressed under other related offenses such as kidnapping, abduction, illegal confinement, deprivation of liberty, international prostitution, sexual slavery, sexual violence, illegal transportation of aliens across state borders, torture, violation of equality, procurement and compelling a person to engage in sexual intercourse.

Fourth, criminal sanctions for the procurement of prostitution were limited to a small fine and/or short term of imprisonment, which is not comparable to the gravity of the crime.

Fifth, the trafficked person was treated as a criminal who is subject to deportation for the commission of the acts of illegal entry, falsification of travel documents and prostitution.

Inadequate Measures in Satisfying the Special Needs of Victims of Trafficking. Domestic laws provided limited measure of protection. In particular, the 1956 Suppression of Immoral Traffic in Women and Girls Act of India called for "rescue of women and girls" and "protective homes," the 1956 Prostitution and Prevention Act of Japan called for taking measures of "rehabilitation" of women in prostitution, the 1973 Women and Girls Protection Act of Malaysia provided for the removal of the women in prostitution to "a place of refuge" [Section 7], the 1973 Women and Girls Protection Act of Brunei provided for "care" and "education of women and girls detained under this act" [Section 25(1)], and the Measures in Prevention and Suppression of Trafficking in Women and Children Act of 1997 in Thailand provided for "appropriate assistance" to the trafficked woman or child including, "primary shelter" and repatriation. However, these measures were inadequate in meeting the special needs of victims of trafficking.

Regional Initiatives Calling for Adopting Domestic Measures to Combat Trafficking. On the regional level, there have been a number of initiatives calling for drafting comprehensive anti-trafficking legislation that not only criminalize the trafficking offense, but also prevent the act of trafficking and protect the victims of trafficking. The February 24, 1997 Joint Action to Combat Trafficking in Human Beings and Sexual Exploitation of Children adopted by the European Council mandates that Member States "review their relevant national laws" to classify trafficking as a criminal offense, provide the appropriate penalties for such offense and take the necessary measures that to ensure "appropriate assistance for victims…". The European Parliament, in a May 19, 2000 resolution, called for "legislative action against trafficking in human beings, including common definition, incriminations and sanctions." The European Council Framework Decision of July 19, 2002 mandates that Member States must take the necessary measures, no later than August 1, 2004 to criminalize trafficking in persons and provide for the appropriate penalties in addition to assistance to victims of trafficking. The 1994 Inter-American Convention on International Traffic in Minors mandates that "The States Parties undertake to adopt effective measures, under their domestic law, to prevent and severely punish the international traffic in minors defined in this Convention" [Article 7]. The Economic Community of West African States [ECOWAS] Declaration of December 2001 on the Fight Against Trafficking in Persons calls upon Member States to "adopt…such legislative…measures as that are necessary to establish as criminal offenses the trafficking in persons…" [Para. 5]. The January 2002 South Asian Association for Regional Cooperation [SAARC] Convention on Prevention and Combating Trafficking in Women and Children for Prostitution mandates that "The State Parties to the Convention shall take effective measures to ensure that trafficking in any form is an offence under their respective criminal law and make such an offence punishable by appropriate penalties which take into account its grave nature" [Article 3]. The Organization for Cooperation and Security in Europe [OSCE] Declaration on Trafficking in Human Beings of December 2002 states "We will consider adopting legislative…measures that permit victims of trafficking to remain in our territory, temporarily or permanently in appropriate cases…"

Recognition of Trafficking in Persons as a Human Rights Violation Under International Treaty Law. International conventional law has recognized trafficking in persons as a human rights violation. The 1956 Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery outlawed slavery practices including debt bondage, serfdom, bride price and exploitation of child labor. The 1979 Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] explicitly prohibited "exploitation of prostitution of women" and "all forms of traffic in women" [Article 6]. The 1989 Convention on the Rights of the Child mandated that state parties must take all appropriate measures to prevent "the abduction of, the sale of or traffic in children for any purpose or in any form" [Article 35]. The 1999 Convention to Eliminate the Worst Forms of Child Labour similarly prohibited "the use, procuring or offering of a child for prostitution…" [Article 3(c)]. However, it was the UN Protocol that provided the first definition of trafficking in persons and a comprehensive approach to the problem of trafficking. The Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which goes into effect July 1, 2003 provides that "No migrant worker or member of his or her family shall be held in slavery or servitude" and "No migrant worker or member of his or her family shall be required to perform forced or compulsory labour." [Article 11(1)-(2)].

Recent Anti-Trafficking Legislation Recognizing the Trafficked Person as a Victim of a Crime. In response to these international mandates a number of new anti-trafficking legislation have been enacted. These laws shifted the focus from criminalizing the behavior of the trafficked person to recognizing such a person as a victim of a crime. These laws include: the "Prohibiting Trafficking in Human Beings for Sexual Purposes Act" of Sweden, which entered into force on July 1, 2002; the Nigerian Act to Establish the National Agency for Traffic in Persons Law Enforcement and Administration to Enforce Laws Against Traffic in Persons, To Investigate and Prosecute Persons Suspected to be Engaged in Traffic in Persons, and to Take Charge and Co-ordinate the Rehabilitation and Counseling of Trafficked Persons and For Other Matters Connected Therewith; the UNMIK Regulation No 2001/4 on the Prohibition of Trafficking; Law Number 678 of Romania on the Prevention and Combat of Trafficking in Human Beings (December 2001); Combating of Trafficking in Persons and Sexual Exploitation of Children Law of Cyprus of 2000 and the Bulgarian Law On Combating Illegal Trafficking of Human Beings of 2002. In 2002, Greece, Denmark and Pakistan enacted anti-trafficking legislation and in 2003 France and the Philippines enacted anti-trafficking legislation.

Amending Existing Criminal Laws to Criminalize Trafficking in Persons as a Specific Offense. In addition to the enactment of comprehensive anti-trafficking legislation, some countries have amended existing Criminal Codes to criminalize trafficking in persons as a specific offense. These amendments include: Article 169 the Criminal Code of Portugal, as amended by Act 99/2001, of August 25, 2001; Article 165 "Trafficking in Human Beings" of the Criminal Code of Moldova as amended, which entered into force September 13, 2002; Article 149 "Trafficking in Human Beings or Other Transfer Deals in Respect of Human Beings" of Ukraine which entered into force on September 1, 2001 and Article 110a "Trafficking of Human Beings" of the Criminal Code of Albania, as amended by Law No. 8733 of January 24, 2001. In addition, Armenia, Bosnia and Herzegovina, Serbia, Tanzania and Turkey have amended their existing Criminal Codes to recognize trafficking in persons as a specific offense.

Recent Draft Anti-Trafficking Legislation. Many countries are considering drafting new anti-trafficking legislation. These drafts include: the Federal Law of the Russian Federation on "Countering Trafficking in Persons and Measures to Protect Victims of Trafficking in Persons;" the Georgian Draft Law on Amendments to the Criminal Code on "Trade in People [Trafficking in Persons] and other Unlawful Deal [bargain, agreement] Regarding Transfer of a Human" Article 144; and the Draft Amendments to the Criminal Code of Tajikistan Article 130, "Trafficking in Human Beings." In addition, the following countries are in the process of enacting new anti-trafficking laws: Burkina Faso, Burundi, Cote d'Ivoire, Croatia, Dominican Republic, Equatorial Guinea, Finland, Gabon, Jamaica, Kyrgyz Republic, Mauritius, Niger, Slovenia and Togo.

A Call for a Comprehensive Legal Approach to Trafficking that Include Crime Control, Human Rights, Immigration Status, Behavioral Model, and Foreign Policy. A study of these recent anti-trafficking laws indicates that the crime control approach to trafficking in persons has been coupled with a human rights-based approach to trafficking. Many immigration policies have been redefined to allow for a legitimate immigration status for the trafficked person. Some laws even provide for what I call a behavioral approach. In addition, the United States recognizes trafficking in persons as a foreign policy objective.

The following is a discussion of these five approaches to the problem of trafficking.

1. Crime Control: An Effective Criminal Law Approach to the Offense of Trafficking in Persons

Anti-Trafficking Legislation Must Criminalize All Forms of Trafficking. Obviously any anti-trafficking legislation must address the scope of what it considers to be an offense of trafficking. Some criminal codes only criminalize trafficking for the purpose of prostitution, such as the Criminal Code of Germany as amended by the Criminal Law Reform Act (trafficking in human beings) of 1992; Article 246 entitled "Trafficking in human beings for the purpose of sexual relations" of the criminal law of the Czech Republic, as amended in 2002; the 2002 "Prohibiting Trafficking in Human Beings for Sexual Purposes Act" of Sweden; Article 169 of the Criminal Code of Portugal, as amended by Act 99/2001 which prohibits trafficking for "Prostitution" and Article 250(a) of the penal code of the Netherlands prohibits trafficking in human beings for the purpose of "the performance of sexual acts" (Draft of 2001).

A Distinction Between Commercial and Non-Commercial Sex. A comprehensive anti-trafficking law should not be limited to criminalizing trafficking for the purpose of prostitution. Here I would like to draw a distinction between commercial sex and non-commercial sex.

Commercial Sex. Commercial sex typically covers prostitution. However, there are other forms of commercial sex such as pornography and sex tourism, which may constitute a form of trafficking. For example, the Criminal Code of Colombia explicitly criminalizes sex tourism. The Code provides that "any person who directs, organizes, or promotes tourist activities that include the sexual use of minors shall be punished by imprisonment of three to eight years. The penalty shall be increased by one half if the conduct is committed with a minor under the age of twelve years" (Article 219). Section 2423 of the Mann Act prohibits a United States national or resident from traveling abroad with the intent to engage in illicit sexual activity with a child.

Non-Commercial Sex. In the event that non-commercial sex involves abuse, it should be considered an illicit activity, especially in cases of forced marriages, arranged marriages, early marriages, temporary marriages, marriages for the purpose of child bearing and mail-order brides. It must be noted that mail-order brides may be classified as trafficking for the purpose of labor or a case of sex trafficking. Section 652 of the United States Illegal Immigration Reform and Immigrant Responsibility Act of 1996 imposes upon the matchmaking organizations an obligation to inform the prospective bride "upon recruitment, such immigration and naturalization information as the Immigration and Naturalization Service deems appropriate, in the recruit's native language, including information regarding conditional permanent residence status and the battered spouse waiver under such status, permanent resident status, marriage fraud penalties, the unregulated nature of the business engaged in by such organizations, and the study required under subsection (c)."

The 2003 TIP Report Monitoring the Status of Commercial Sex and Non-Commercial Sex. Section 105(d)(5) of the TVPA calls for the Inter Agency Task Force to Monitor and Combat Trafficking in Persons to "examine the role of the international "sex tourism" industry in the trafficking of persons and the sexual exploitation of women and children around the world." The 2003 United States Department of State Trafficking in Persons Report [hereinafter referred to as "TIP Report"] examines the problem and makes explicit reference to its significance in the countries of Brazil, Cambodia, Costa Rica, Cuba, France, Gambia, India, Jamaica, Japan, Malawi, Mauritius, the Philippines, South Africa, Sri Lanka, Taiwan and Thailand.

The TIP Report, in addition to documenting cases of sex trafficking and labor trafficking, also addresses the problem of marriage which may contribute to the problem of trafficking in the countries of Armenia, Belarus, Finland, Ghana, Malawi, Niger, Taiwan, Uzbekistan and Vietnam. The TIP Report also makes references to pornography and trafficking for the purpose of pornography in Gambia, India, Lithuania, Mexico, the Philippines and Zimbabwe.

The TVPA Limiting Sex Trafficking to Trafficking for a Commercial Sex Act. It must be noted, however that the TVPA narrowly defines sex trafficking to mean "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act" and defines "Commercial Sex Act" to mean only "any sex act on account of which anything of value is given to or received by any person" [Section 103(9) and 103(3), respectively].

An anti-trafficking legislation must address all forms of trafficking including trafficking for the purpose of commercial sex and non-commercial sex, trafficking for the purpose of forced labor, including domestic service, street begging, camel jockeying, trafficking for the purpose of illicit inter-country adoption, trafficking for military purposes, trafficking for the removal of organs and trafficking for other forms of exploitation.

Determining the Elements of Criminal Liability in a Trafficking Case: What Should Be Included and What Should be Excluded. My reading of recent anti-trafficking legislation suggests that some legal systems make prosecution of cases of trafficking difficult by including unnecessary elements, which make such proof difficult or impossible.

Is Proof of Material Profit Required? Some anti-trafficking legislation require material profit. For instance, Article 110 of the Criminal Code of Albania of 1995 requires proof of "material profit or any other profit." Likewise, Article 113-2 of the Criminal Code of Moldova, as amended in 2001, defines trafficking in human beings to include trafficking "with the purpose of obtaining profit." Article 180(b) of the German Law on Trafficking in Human Beings also makes material benefit an element of the crime of trafficking. Although, in the event that the act of trafficking was "committed with the intention of gaining valuable benefit," such act may warrant an enhanced penalty as provided, for example, by Article 246 of the Criminal Code of the Czech Republic.

Should Organized Trafficking Be Required for the Establishment of the Crime? Criminal liability of a trafficker should not depend upon whether the activity is organized. Many cases of trafficking involve only an individual and individual trafficking should not be excluded from the definition of the crime. If the act of trafficking is committed by a member of an organized gang, the punishment for such crime should be enhanced such as the case under Article 246 of the Criminal Code of the Czech Republic. Similarly, Article 181 of the German Law on Trafficking in Human Beings makes "professional recruitment" grounds for an enhanced penalty of 10 years instead of 5 years.

Defining Trafficking to Include Transnational Trafficking and Internal Trafficking. Most cases of trafficking are transnational in nature; however, internal trafficking must be included in any definition of trafficking in persons. Crossing international borders should not be an element of the crime itself, although it may warrant an additional penalty. Internal trafficking is a problem in many countries, including Afghanistan, Brazil, Haiti, India, Malawi, the Philippines and Russia, and should not be excluded from the definition of trafficking.

Recognizing Trafficking as a Form of Violence Against Women or as a Form of Slavery Should Not Effect the Prima-Facie Case of Trafficking. Violence also should not be an element of the crime of trafficking, although it may be grounds for increasing the penalty for such crime. Likewise, while trafficking is a form of slavery, enslavement, as traditionally, defined should not be required for the existence of the crime of trafficking.

The TVPA Narrowly Defining "Illegal Means" by Requiring Force, Fraud, and Coercion.
Illegal means should be broadly defined to include debt bondage, disclosure of confidential information to the victim's family or to other persons, confiscation of travel documents, abuse of power, abuse of office, bribery, abuse of a position of vulnerability and other illegal or improper means. The TVPA requires force, fraud or coercion to prove a case of trafficking. Such requirement may render prosecution of a case of trafficking difficult where the victims of trafficking are not coerced into prostitution. Suffice here, to mention the case of United States v. Wu was prosecuted under Title 18, United States Code Sections 2421 and 2422 and not under the TVPA.

Trafficking in Persons Must Be Recognized As A Serious Crime. Many anti-trafficking laws do not provide for the appropriate sentence to the crime of trafficking. For instance, Article 367 of the Criminal Code of Chile only provides for a fine for "one who promotes or facilitates the entry or exit of persons to or from the country to exercise prostitution in the national territory or abroad." According to Article 436 of the Criminal Code of Turkey "Whoever transports from one place to another a virgin or a woman who has not yet reached the age of twenty-one for the purpose of prostitution…seduction or procurement or transportation, will be sentenced to between one and three years of imprisonment and be fined from nine thousand to ninety thousand liars."

Legal systems do not always consider sex trafficking as grave a crime as other sexual offenses. Many laws do not impose similar punishments for trafficking offenses as for other serious crimes such as rape. For example, in Guatemala, the punishment for rape under the Criminal Code is six months to one year in prison, whereas the punishment for trafficking is only a fine.

Recently, many anti-trafficking laws increased the criminal sanctions for the crime of trafficking in persons. For instance, Israel has changed its law to enhance the penalty to 16 years of imprisonment for "any person who buys or sells another person for the purpose of prostitution…" The Women and Children Suppression Prevention Act of 2000 of Bangladesh states that "whoever brings or traffics or sends any [women] abroad with the intention of using that woman in prostitution or using for unlawful or immoral purposes or buys or sells or lets to hire or hands her over for any kind of torture or similar reason, keeps a woman in his possession, [care] or puts under his custody, shall be punished with death sentence or life imprisonment…" [Section 5(1)].

I have no contention with the maximum penalties provided in most of the countries of the Asia-Pacific region, although the minimum sentence should not be less than 4 years in accordance with the United Nations Convention against Transnational Organized Crime [Article 2]. In Burma punishment is up to 10 years imprisonment. In Cambodia punishment is 5 to 10 years, which is enhanced to 10 to 20 years if the offense is committed against a minor younger than 15. In Indonesia punishment for trafficking is imprisonment up to 6 years. In Malaysia punishment for trafficking is imprisonment for up to 5 years. In Singapore the punishment for trafficking is also imprisonment for up to 5 years.

Prison sentences tend to be shorter in most European countries, including the sentences for trafficking in persons. The European Council Framework Decision of July 19, 2002 mandates that European countries provide penalties for trafficking of at least 8 years imprisonment. It must be noted that European domestic laws as well other legal systems following the civil law model do not recognize plea-bargaining as a device, which may result in a lesser sentence. The TVPA provides for up to 20 years imprisonment and recognizes plea-bargaining.

Criminal sanctions for trafficking in persons should not be limited to prison sentences. An anti-trafficking legislation must also provide for the forfeiture of the assets of the trafficker, the proceeds of which are to be used to compensate victims of trafficking.

Recognition of Trafficking in Persons as a Transnational Crime. Since trafficking is transnational in nature, combating the problem requires transnational legal responses.

Applying the Extraterritorial Principle to the Crime of Trafficking in Persons. For instance, Article 5 of the Criminal Code of Macau provides that the criminal law is applicable to acts carried outside of Macau when such acts constitutes the crimes of "trafficking in human beings," "trade in slavery" and such acts are committed by a national or resident of the country. In Thailand, the Penal Code Amendment Act has expanded the territorial jurisdiction of courts to cover "indecent sexual acts" and "trafficking offenses" provided in Section 282 and 283 of the Penal Code, irrespective of where such offenses are committed. In New Zealand, The Crimes Act Amendment of 1995 applies to offenses concerning sexual conduct with children committed by nationals abroad [Article 144A]. The Act also prohibits assisting persons traveling overseas for the purpose of having sex with children. In Ireland, under the Sexual Offenses (Jurisdiction) Act of 1996, persons who are nationals or residents of Ireland may be prosecuted for sexual offenses committed against children abroad. Law No. 269 of August 3, 1998 amended Article 604 of the Penal Code to extend its application to sexual offenses committed abroad by an Italian national or to the harm of an Italian national or by a foreign national in conjunction with an Italian national sex tour [Article 144C]. The Crimes (Child Sex Tourism) Amendment Act of 1994 of Australia provide for a similar rule. Other legal systems must consider the application of anti-trafficking legislation on extraterritorial basis, irrespective of the place where the crime of trafficking occurs.

Recognition of Trafficking in Persons as an Extraditable Offense. Trafficking in persons must be recognized as an extraditable offense. For instance, in Cyprus trafficking in persons and sexual exploitation of children are deemed as extractable offenses under the Extraction of Fugitive Law No 97 of 1970.

Under the United Nations Convention against Transnational Organized Crime, it is interesting to note that in Article 16(4) if a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider the Convention the legal basis for extradition in respect of any offence to which this article applies.

Recognition of Trafficking in Persons as an Offense for the Purpose of Applying Anti-Money Laundering Legislation. Countries should expand the scope of the offense of money laundering from one solely related to goods arising from illicit-drug trafficking, to one related to all proceeds derived from trafficking in persons and other serious crimes. An anti-money laundering law must authorize the seizure of proceeds from prostitution, trafficking in persons, or other illegal activities.

Cooperation Between Countries of Origin and Countries of Destination. Bilateral treaties on mutual assistance in criminal matters must be a part of any transnational legal response since apprehension of traffickers, investigation of cases of trafficking and prosecution of the traffickers sometimes require cooperation between countries of origin and countries of destination in matters including request for assistance, search, seizure, attachment and surrender of property, measures for securing assets, service of judicial decision, judgments and verdicts, appearance of witness and expert witnesses and transmittal of information of records. This regional approach has been adopted by the 1996 Inter-American Convention on Mutual Assistance in Criminal Matters. Likewise, the 1959 European Convention on Mutual Assistance in Criminal Matters provides for similar measures.

Building Consensus as to the Appropriate Legal Response to Trafficking in Persons Through a Regional Approach. Consequently, a regional approach to the problem of trafficking is imperative. Such an approach builds regional consensus as to the forms of trafficking which must be subject to criminalization and the appropriate response for the prosecution of such crimes.

2. A Behavioral Model Approach to Trafficking in Persons: Targeting All Principle Actors in the Trafficking Enterprise.

Any comprehensive legal response to trafficking in persons must extend liability to all those who are responsible for committing or facilitating the act of trafficking.

Distinction Between Private Actors and Public Actors. I would like to first draw a distinction between public actors and private actors. While the trafficking act, whether the act of "recruitment, transportation, harbouring or receipt of persons" [UN Protocol, Article 3(a)] may be committed by a private individual or group, many cases involve a public official, an immigration officer, a law enforcement agent, a border patrol officer or other officials who facilitate the act of trafficking or refrain from prosecuting such an act. In such cases, an anti-trafficking law must render such an act a crime and provide for an enhanced penalty for such crime.

The United Nations Convention against Transnational Organized Crime criminalizes the corruption of public officials [Article 8] and requires that "Each state party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses, when committed intentionally: (a) the promise, offering, or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties; (b) the solicitation or acceptance by a public officials, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties." The Convention further requires that State Parties shall "adopt legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials" [Article 9].

Some anti-trafficking laws explicitly consider public corruption in the context of trafficking. For instance, the Criminal Code of Moldova recognizes not only "abuse of power" but "abuse of office" as an illegal mean which give rise to an enhanced penalty [Article 113/2].

Distinction Between Natural Persons and Legal Persons. I would like to draw a second distinction between natural persons and legal persons. Any effective legal response to trafficking in persons must address not only the liability of the trafficker, a natural person, but also the legal person or the corporate person that facilitates such acts. Travel agencies, employment agencies, adoption agencies, matchmaking organizations, advertisement agencies, hotels, restaurants, bars, taxi companies and sex operators must all be criminally liable for any illicit activity

The liability of sex operators including, strip clubs, massage parlors, escort services, should not be limited to compliance with residential zoning regulations. Instead, nuisance/tort liability should be combined with criminal liability in examining the legitimacy of sex operators. Sex operators who abuse their employees or force them to engage in illicit sexual activities should be fined, have their business license revoked, or be forced to close their business.

The July 2002 European Council Framework Decision on Trafficking in Persons calls upon countries to provide for liability of legal persons. The UN Protocol explicitly addresses the liability of commercial carriers "including any transportation companies or the owner or operator of any means of transport" [Article 11(3)].

Who Should be Liable? The Customer or the Victim: Addressing the Issue of Demand. "Prostitution laws" are divided as to whether to criminalize the act of the person in prostitution or the person who is buying the sexual services. However, few legal systems criminalize the behavior of the customer.

Criminalizing the Act of Prostitution and the Act of Purchasing Sexual Services. Muslim countries such as Saudi Arabia, Iran, Pakistan, Yemen, Mauritania, Jordan, Bahrain, Sudan, Tunisia, Malaysia, Brunei and the United Arab Emirates punish both the woman in prostitution and the customer.

Making the Purchase of Sexual Services a Crime. The Swedish Act "Prohibiting Purchase of Sexual Services" 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." Attempts to purchase sexual services is punishable under Chapter 23 of the Swedish Penal Code.

Knowledge of Trafficking Makes the Customer Liable. Another approach is adopted by Article 418-a of the Criminal Code of Macedonia which provides that "The one that uses or enables another person's usage of sexual services from the persons for whom he knows are victims of human trafficking will be punished with from six months up to five years imprisonment." The new draft legislation of Croatia of May 2003 follows the Macedonian model in criminalizing the act of the customer if he has knowledge that the person in prostitution has been trafficked.

When the Customer is Associated with United States Military. According to the Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3261-67 2000), criminal jurisdiction is established for acts committed by persons employed by or accompanying military forces outside the United States, including civilian employees of the Department of Defense and its contractors, if such acts would carry prison sentences of over one year within the United States.

When the Customer is a Tourist Engaging in Sex with a Child. Title 18, United States Code Section 2423 makes sex tourism a crime by prohibiting travel of United States citizens and residents who travel abroad to engage in illicit sexual activities with a child.

When the Customer is a Diplomat. I would like to say that the law of diplomatic immunity should not be used as a shield to justify abuse of domestic servants in the United States.

The Principle of Non-Criminalization of the Behavior of the Victim of Trafficking. While the customer should be penalized, the victim should be immune from liability every time she commits an illegal act as long as such act is related to their trafficking, whether this act is illegal entry, falsification of travel documents, or prostitution. This is the principle of non-criminalization of the behavior of the victim of trafficking, which has been articulated in United Nations Regulation No 2002/4 on the Prohibition of Trafficking in Persons in Kosovo, stating 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."

The Principle of No-Fault Liability in Civil Actions. Treating trafficked persons as victims means that the fault of the victim of trafficking should not be a hindrance in a civil compensation action. A victim should not be denied civil remedy by being blamed for her own victimization. This is principle of no-fault liability, which should implemented by a civil judge. Treating trafficked persons as victims also means that a victim of trafficking must be granted the opportunity to abandon the illegal work and allowed to apply for employment, which is valid under the law.

To What Extent Does the 2003 TIP Report Consider the Issue of Demand? The TIP Report addresses the issue of demand by making explicit references to the law of Sweden stating that "the Government…passed a pioneering law that criminalizes the purchase rather than the sale of sex…" The TIP Report also makes reference to the Islamic law approach to the issue of demand explicitly stating that in Saudi Arabia "Islamic law prohibits sexual relationships outside the context of marriage and provides for strict penalties if the law is breeched." The TIP Report rightly criticizes the application of Islamic law in Pakistan when it states "If rape or forced prostitution cases are prosecuted under the Islamic law-oriented Hudood ordinances, victims are reluctant to testify since, the woman's testimony is tantamount to an admission of adultery if prosecutors conclude that her testimony does not meet the burden of proof." This application is inconsistent with the Qur'anic legislation, which states that women should not be forced into prostitution and if they are compelled they should not be punished because they have been forced into prostitution [Holy Qu'ran, Surah 24:33].

In a statement I submitted for the hearing before the Committee on International Relations, House of Representatives, 107th Congress, Second Session, June 19, 2002, I stated that although the TVPA does not require that the TIP Report takes into consideration "the extent of trafficking" but only "the extent to which the country is a country of origin, transit, or destination for severe forms of trafficking" warning about the harm of prostitution must be addressed in any program warning against the danger of trafficking. It is not clear to what extent the TIP Report takes into consideration the issue of demand in placing countries in certain tiers. Only the countries of Ghana, Lithuania, Morocco and the United Arab Emirates out of the 26 countries placed on Tier 1 outlaw prostitution. The other 22 countries legalize, decriminalize, or tolerate prostitution.

This approach is inconsistent with the TVPA, which explicitly distinguishes between sex trafficking and labor trafficking and does not consider sex as a form of labor. A review of this approach is imperative in light of the Trafficking in Persons National Security Directive of February 2003 which explicitly states that "Prostitution and related activities, which are inherently harmful and dehumanizing, contribute to the phenomenon of trafficking in persons…"

Potential Victims of Trafficking: Preventive Legal Measures to Combat Trafficking. The causes of vulnerability of women and children must be addressed in any preventive legal response, which must address poverty, lack of education, unemployment, gender discrimination, and other root causes of the trafficking infrastructure.

Birth registration laws should be enforced in accordance with Article 7 of the Convention on the Rights of the Child since unregistered children, such as 400,000 children in Honduras, are left vulnerable to exploitation. They do not attend school and they are targeted by traffickers who force them to work or sexually exploit them. Labor laws regarding the minimum age of employment should be enforced so that children do not enter the workforce at an age where they can be subject to exploitation. Similarly, the laws regarding the age of marriage, the age of consent and the age of majority must also be enforced.

The Legal System Must Allow For a Role of Non-Governmental Organizations. Laws that regulate the activities of organizations within civil society, especially non-governmental organizations, human rights organizations and advocacy groups, must also be reviewed in any legislative attempt to combat trafficking in persons. NGOs play a vital role coordinating with governmental agencies and providing services to victims of trafficking. Unfortunately, many countries are still ruled by authoritarian leaders who do not allow elements of civil society to perform these functions.

3. An Immigration Policy Approach: Granting a Victim of Trafficking a Residency Status in the Country of Destination

The Trafficked Victim: A Prohibited Immigrant Under Traditional Immigration Law. Traditional immigration law treated a trafficked victim as a "prohibited immigrant" who is ineligible for admission or entry into the country "if such a persons is a…prostitute" and "prostitution is a grounds for deportation." This is the rule in Section 22 of the Immigration and Deportation Act of Zambia, Section 8 of the Immigration Act of Uganda, Article 10 of the Tanzania Citizenship Act, Section 9 of the Immigration Act of Swaziland, Section 31 of the Immigrants and Emigrants Act of Sri Lanka, Section 8 of the Immigration Act of Mauritius, Section 5 Immigration Law of Malta, Section 3 of the Proclamation Regulation the Issuance of Travel Documents and visas and Registration of Foreigners of Ethiopia and Section 14 of the Immigration Act of Zimbabwe. This traditional immigration law policy must shift its focus from denying women in prostitution entry into a foreign country to recognizing trafficking as a grounds for inadmissibility.

The Entertainment Visa as a Disguised Vehicle for Trafficking: Strict Regulations Must be Enforced. A legal system must control issuance of visas so that traffickers do not take advantage of existing types of visas that disguise the real purpose of travel of the holder of the visa. Although entertainment visas are used properly and legally in some countries, the law must provide for strict requirements so that such visas are not used illegally by the traffickers. In Cyprus the law allows for only 15 entertainment visas per nightclub and requires that prospective employers apply for the visa on behalf of the employee. The Thai law requires a letter issued by the employer confirming responsibility of the applicant for the entertainment visa and specifying the time of employment. In Norway, an entertainer who obtains an entertainment visa may work for a period of no more than one year, and an applicant for an entertainment visa must submit a written contract specifying the terms of employment. In Chile, the law requires an explicit authorization from the Ministry of Interior for the approval of an entertainment visa. In Portugal before the issuance of the entertainment visa, an inquiry is conducted into the criminal record and medical history of the applicant. The South Korean law requires HIV testing in addition to identity references. This month, South Korea ceased issuing entertainment visas to Philippine dancers because of the high numbers of women being trafficked to South Korea under the auspices of working as dancers.

Withholding the Travel Documents of Foreign Nations: A Call for the Abolition of the Sponsorship Rule. The February 23-26, 2003 International Conference on Pathbreaking Strategies in the Global Fight against Sex Trafficking states in its recommendations released by the State Department that "the holding of passports and other travel documents by employers of foreign workers" must be outlawed. As I stated in an article published in Volume 26, Fordham International Law Journal, March 2003 entitled "Trafficking in Persons, Especially Women and Children, in Countries of the Middle East: The Scope of the Problem and the Appropriate Legislative Responses," the sponsorship rule is still followed in some countries of the Middle East and it must be abolished. It is encouraging that the Council of Ministers Decree, No. 166 (July 12, 2001) of Saudi Arabia has provided that the relationship between the employer and the alien employee must be regulated in accordance with the employment contract and not the sponsorship rule.

Is Trafficking in Persons a Crime Against the State or a Crime Against the Individual: A Call for a Humanitarian Basis for Granting Victims of Trafficking an Immigration Status. Deportation is still the norm in most parts of the world including the countries of the Middle East, Latin America, Africa and Asia. It reflects a traditional immigration law approach. Legal systems differ as to the basis of granting victims of trafficking a residency status.

In Belgium, a residency status is dependent upon the "legal proceedings." First, a 45 day period is granted to allow the victim to decide whether to make statements (a complaint against the trafficker) or to prepare for a return to his or her country of origin. Second, a victim who has made a statement or filed a complaint during the 45 day period receives a temporary permit valid for three months and a temporary work permit for the same period. Third, if the prosecuting authorities decided to proceed with the case, the residency permit becomes valid for longer periods, usually six months, which may be renewed until the legal proceedings are concluded. Then the victim returns to their country of origin.

In Germany, 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 country of origin. In Portugal, victims of trafficking can obtain a residency permit if they cooperate with prosecutors. In Hungary, the Alien Act provides for the possibility of suspending an expulsion order against victims of trafficking if they intend to testify against their traffickers. In Italy, the immigration law of 1998 provides victims of trafficking who are aliens, a special residency permit for a six month period. In Spain, a victim of trafficking, under a 2000 Act, is not to be deported if such victim reports the perpetrators of such trafficking to the proper authorities. They are granted temporary work permits. Once the legal proceedings are completed, the government facilitate the return of the victims of trafficking to their country of origin.

In the Netherlands, expulsion of an illegal alien who is a victim of trafficking may be suspended for three months during which such victim decides to report the trafficking offense. If the victim decides to report, a residency permit is issued for the complete duration of the investigation, prosecution and trial. However, a residency permit may also be issued to a victim of trafficking upon the conclusion of the criminal proceedings. Such permit is granted on humanitarian grounds which includes the risk of reprisals against the victim or her family, the risk of persecution in the victim's country of origin for committing an offense related to prostitution, and the difficultly of social reintegration in the country of origin.

The TVPA does not require the victim of trafficking to testify in court to be eligible for a residency status under T-visa regulations. A victim of trafficking need only comply with any reasonable request for assistance in the investigation or prosecution of acts of trafficking. A victim may apply for an adjustment of the temporary status to acquire a permanent residency status. This new immigration policy shifts the focus from interception-detention-repatriation to prevention-protection-prosecution. This is a human rights approach to trafficking in persons, which must be followed by all legal systems.

The 2003 TIP Report Documenting Countries that Provide a Residency Status. The TIP Report takes into consideration whether a country provides a victim of trafficking a temporary or permanent residency status. The TIP Report made references to the following countries: Belgium, Bulgaria, Norway, Bosnia and Herzegovina, Czech Republic, Denmark, Portugal, Turkey, Romania, Russian Federation, Sweden, Moldova, Germany, Austria, Italy, Span, the Netherlands, Israel, Canada, France, Hong Kong, Hungary, Macedonia, Pakistan, Switzerland, the United Kingdom and Bahrain. Other countries of destination must consider granting victims of trafficking a residency status.

4. A Human Rights Based Approach to Trafficking in Persons

Colombia, which is listed on Tier 1 of the 2003 TIP Report, recognizes, in Law No. 360, that "every person who is a victim of crimes against sexual liberty and human dignity has the right to be treated with dignity, privacy, and respect." This human rights approach must be emphasized in any anti-trafficking legislation in all legal systems.

A Bill of Rights for Victims of Trafficking. Victims of trafficking in persons should be entitled to basic human rights, especially 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, and the right to return to their country of origin. Victims of trafficking should to be treated with dignity, fairness, compassion and respect for their human rights.

The Double Witness Rule or the Corroborative Evidence Rule: A Violation of the Right of a Victim of Trafficking to be Heard in Court. These rights are being violated by legal systems that still follow the double witness rule or the corroborative evidence rule, which provides that in cases of trafficking in persons, the admission of evidence of only one witness is not permissible unless the witness's testimony is corroborated by another witness or other material evidence implicating the accused. This rule means that we are not treating the victim of trafficking as a credible witness. The rule is contradictory to the UN Protocol which mandates that "views and concerns [of the victims of trafficking] must…be presented and considered…against offenders." [Article 6(2)(b)]. This rule is followed by the legal systems of the countries of The Bahamas, Botswana, Fiji, Gambia, Iran, Ireland, Israel, Jamaica, Kenya, Kiribati, Lesotho, Liberia, Malawi, Mauritius, Nigeria, Pakistan, and St. Kitts and Nevis, St. Lucia, St. Vincent and Grenadines, Seychelles, Sierra Leone, Tanzania, Tonga, Tuvalu, Uganda, and Zambia.
Special Testimonial Rules for a Child Witness. Special testimonial rules must be adopted to meet the special needs of child witnesses. A child witness should be allowed to testify outside the court or in court without the presence of the offender. A child witness should also to be accompanied by a proper guardian.

Protection of the Right of Privacy of the Victim and the Derivative Victim Doctrine. Victims of trafficking are entitled to the right to privacy, which should extend to members of the victim's family, in accordance with the derivative victim doctrine. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defines the term victim to include "the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization." The Declaration calls for "taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation." These measures must be explicitly recognized in an anti-trafficking legislation.

Extending Witness Protection Programs to Victims of Trafficking. Victims of trafficking should be entitled to the right to safety. They must be included in any witness protection program. Such program does not apply except when a witness is testifying in cases involving serious crimes. For instance, 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 TVPA had to recognize trafficking as "an organized criminal activity or other serious offense" for the purpose of applying the witness protection program to victims of trafficking.

Recently, a number of countries enacted special witness protection laws including the law of July 14, 1999 of Portugal on "Governing the Enforcement of Measures on the Protection of Witnesses in Criminal Proceedings;" the law of March 2, 2001 of Bosnia and Herzegovina on "Special Witness Identity Protection in Criminal Proceedings;" the Law No. 137/2001 of Czech Republic on "The Special Protection of a Witness and Other Persons in Connection With Criminal Proceedings," the Law of January 28, 1998 on "State Protection of the Victim, of Witnesses and Other Persons Who Provide Assistance in the Criminal Proceedings" of Moldova; and the August 31, 2001 Witness Protection Program Act of Canada. Other legal systems should adopt similar measures to include victims of trafficking in witness protection programs.

Victims of Trafficking Should be Entitled to Civil Compensation: a TVPA Shortcoming. Victims of trafficking should be entitled to the right to compensation for damages. Civil compensation is not restitution and restitution should not be a substitute for civil compensation. While the TVPA empowers a criminal court to order restitution, it does not provide victims of trafficking the ability to file a private civil action for damages. Other legal systems allow for such possibility including the right of trafficked person to seek punitive damages "when the degree of the exploitation or the degree of relationship or the dominating position of the offender with regard to the victim so require." And I am quoting the 2000 Cyprus Combating of Trafficking in Persons and Sexual Exploitation of Children Law. So while the award of restitution depends upon a conviction of a crime and is a part of the sentencing of such crime, civil compensation should be awarded even if the trafficker is not convicted. I 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 the trafficking scheme.

5. Trafficking in Persons as a Foreign Policy Objective: The Role of the United States in Assisting Foreign Countries in Drafting Anti-Trafficking Legislation.

As I stated in an article entitled "Monitoring the Status of Severe Forms of Trafficking in Foreign Countries: Sanctions Mandated Under the U.S. Trafficking Victims Protection Act", Brown Journal of World Affairs, Summer/Fall 2003, Vol. X, Issue 1:

"Human rights have been an important foreign policy objective of the United States… 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 principal goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries."… The TVPA explicitly recognized trafficking in persons as a "grave violation of human rights" and "a matter of pressing international concern." I also stated that "(M)onitoring and combating trafficking in persons in foreign countries is not limited to reporting on the status of severe forms of trafficking in these countries. The United States Congress was not satisfied with merely making a statement of condemnation of human rights violation in the context of trafficking. Congress, in addition to the reporting process, decided to "name names" or engage in "shaming" by classifying countries into different categories, depending on their efforts to combat trafficking through the three tier model. It is also the policy of the United States, under the TVPA, to take actions against governments that do not comply with the minimum standards for the elimination of trafficking and are not making significant efforts to bring themselves into compliance with such standards. However, sanctions against governments must be carefully considered and applied in light of the numerous exceptions stipulated in the TVPA, especially when sanctions have adverse affects on the innocent population, including women and children. Sanctions should not be imposed when providing assistance instead of imposing sanctions will induce the offending government to make the necessary efforts to comply with the minimum standards for the elimination of trafficking as required by the TVPA." The United States should continue its policy of constructive engagement.

Constructive Engagement: The Need for Extending the State Department Legislative Assistance to Countries of the Middle East and Latin America. Congress recognized in Section 102 of the TVPA states that "[E]xisting legislation…in …other countries [is] inadequate to deter trafficking and bring traffickers to justice, failing to reflect the gravity of the offenses involved." The TVPA provides for assistance to foreign countries especially in "… drafting of laws to prohibit and punish acts of trafficking" [Section 109].

The United States, through the Department of State and in cooperation with the Department of Justice and other agencies, has been assisting countries in drafting comprehensive anti-trafficking legislation. These countries include: the ECOWAS countries, countries in Southeastern Europe, the Philippines, Togo, Thailand, Vietnam, Brazil, the Dominican Republic, Haiti and Russia.

It is to be noted that none of the countries of the Middle East except Sudan were placed in Tier 3, although none of these countries have a specific anti-trafficking legislation. Morocco and United Arab Emirates were placed in Tier 1, while Bahrain, Israel, Kuwait, Lebanon, Qatar and Saudi Arabia were placed on Tier 2. The Department of State has worked closely with some of these countries to improve the status of victims of trafficking and the results of these efforts were fairly documented in the narratives of the 2003 TIP Report, regardless of the discretionary judgment that was made regarding the placement of a country in a particular tier. I urge the Department of State to continue such efforts in the area of legislation, which I think believe reform.

Similarly, most legal systems in the region of Latin America and the Caribbean still follow the traditional legal approach to trafficking and do not have a specific anti-trafficking legislation. Again, many countries within this region need the guidance of the Department of State in drafting comprehensive and effective anti-trafficking legislation.

The Role of Anti-Trafficking Legislation in Placing Countries in a Particular Tier in the 2003 TIP Report. Although the TIP Report takes into consideration whether a country has a specific anti-trafficking legislation that criminalizes trafficking and provides for the appropriate sentence for such trafficking, it is not clear to what extent the TIP Report considers legislation in placing countries in the three tiers. It may be argued that absence of an anti-trafficking legislation should be a determinative factor excluding a country from Tier 1. The same argument has previously been made regarding prosecution, which has been characterized as the most important criterion of serious and sustained efforts to eliminate trafficking in persons. In my judgment the TVPA rightly does not indicate any priority to be given to any particular criterion of the seven criteria stipulated in Section 108.

As I stated in my aforementioned article: "The minimum standards adequately address the various aspects of the problem of trafficking. There is no doubt that combating trafficking requires effective prosecution of the traffickers, but the root causes of the problem must also be addressed. Preventive measures must be taken to decrease the supply of innocent women and children. In the meantime, the trafficked person must be treated as a victim and governments must establish the necessary protective programs to assist victims of trafficking."

"Does the TVPA require equal weight of these criteria in assessing government efforts to eliminate trafficking? It has been argued that prosecution should be considered the most important criterion of serious and sustained efforts to eliminate trafficking in persons, since the very first indicator is "whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons that take place wholly or partly within the territory of the country." The TVPA, however, does not indicate that it lists these criteria in any particular order. The seventh and last criteria in determining such efforts, is "whether the government of the country vigorously investigates and prosecutes public officials who participate in or facilitate severe forms of trafficking in persons, and take all appropriate measures against officials who condone such trafficking." If one follows this argument, it may be concluded that the TVPA considers combating public corruption as the least important indicator of government efforts in eliminating trafficking. Official corruption threatens any efforts to combat trafficking and it must be confronted, otherwise any preventive measures or protective initiatives taken by the government would be severely and adversely affected. Abuse of public office for private gain circumvents the implementation of human rights, since misuse of government expenditures results in misallocation of resources, denying the population the right to education, employment, health and adequate living conditions. Another problem with this argument is that it may implicitly indicate that prevention of the root causes of trafficking is less important, although as it has been pointed out that "prevention is the key" in combating trafficking in persons. In addition, while prosecution of the traffickers is an important tool in the fight against trafficking, many governments still treat trafficked persons as criminals who are not entitled to any rights. The mere fact that governments have changed their policies towards the protection of the trafficked person must be considered a "serious" step towards eliminating trafficking, even if such governments have not yet taken all the necessary measures to investigate and prosecute cases of trafficking, especially since the legislator never intended that governments would be required to fulfill all the criteria listed in the TVPA as an indication of its serious and sustained efforts."

The United States "Model Law to Combat Trafficking in Persons" as a Model of a Anti-Trafficking Legislation to be Borrowed by Foreign Countries. The Model Law to Combat Trafficking in Persons released by the Department of State in March 2003 serves as a good model of an anti-trafficking legislation. The Model Law is based upon the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the United Nations Regulation No 2002/4 on the Prohibition of Trafficking in Persons in Kosovo; the United States Trafficking Victims Protection Act of 2000 and the Romanian Law on Prevention and Combating Trafficking in Human Beings. The explanatory notes to the Model Law make references to these laws. I believe that other comparative anti-trafficking laws must also be considered in assisting foreign countries to design a comprehensive and effective legal response to combat trafficking in persons.

Bernhard Grossfeld, a comparative law scholar, recognized in "The Strengths and Weakness of Comparative Law" that "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."

Since the Model Law follows the UN Protocol and promotes its definition of trafficking and the approach to combat the problem of trafficking, the United States should expedite the UN Protocol ratification process. As of today there are 25 countries that have already ratified the UN Protocol. We need forty instruments of ratification for the UN Protocol to become international law.

In conclusion, 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 to which I made reference in my testimony.

Thank you.