Speech Given at the Conference on New Steps in Path Breaking Strategies in the Global Fight Against Sex Trafficking Dr .Mohamed Y. Mattar, Adjunct Professor of Law and Co-Director of the Protection Project of John Hopkins University School of Advanced International Studies Santo Domingo, Dominican Republic December 8-9, 2003 1. Lost in Translation On the seventh of August 2003, a new model of anti-trafficking legislation was born in the Dominican Republic: Law Number 137-03 regarding illegal trafficking of migrants and trade in persons. This is how the title was translated to me in English language. If the verbiage seems personally inaccurate, do not blame me. Blame what was lost in translation. 2. Smuggling of aliens and the trafficking in person The Dominican Republic model of anti-trafficking legislation is unique in the fact that is the only law in the legal family that addresses both smuggling of aliens and trafficking of persons. This is why the Dominican Republic law provides an exclusive model for comparative law scholars to analyze, debate and theorize about. There is a difference, however, between the smuggling of aliens and the trafficking of persons and both require different legal responses, thus making me question its stability as good legislative policy. Smuggling of aliens is defined as: - Illegal entry, which, by its very nature, is transnational.
- Consent. The smuggled alien initiated the smuggling and thus pays for the service.
- Dismissive. This means that the exploitative purpose may not necessarily exist in a case of smuggling of aliens.
- Trafficking in persons, however, assumes that:
- The crime is both transnational (i.e. the trading Dominican women to work as prostitutes in Europe) AND domestic (the trafficking of children from different areas of the country to tourist destinations on the coasts).
- Trafficking in persons always entails some form of exploitation.
- A condition of servitude
- A condition of slavery
- A condition of practice similar to slavery
The appropriate legal response should be reconsidered under these circumstances. A smuggled alien should be deported since they are considered illegal. A trafficked person should be entitled to a legal and valid immigration status because they are recognized as victims. Another difference is whom the crime is exactly affecting. The smuggling of aliens is a crime against the State, trafficking in persons should be recognized as a crime against the individual. So the challenge is how do we as a global community identify victims of trafficking? 3. The Preamble The preamble to the Dominican Republic Law follows the United Nations Protocol. Similar to the Protocol it does not specify anything about identification of victims of trafficking. I would have expected to see in the law a specific provision mandating efforts of the government to identify victims of trafficking. It is not enough to talk about victims of trafficking. We must make every attempt to find them, identify them and become advocates for them. This is possibly why the legislators in countries other than the Dominican Republic have separated smuggling of aliens from trafficking in persons. The flipside would be the Dominican Republic placed both definitions in one zone under one umbrella. The Dominican Republic Law recognizes the two protocols to the United Nations Convention against transnational organized crime. One of these protocols is to prevent, suppress and punish trafficking in persons. The other addresses the smuggling of aliens by land, sea and air. The preamble makes references to the United Nations Declaration of Universal Human Rights, clarifying the Dominican Republic’s definition of the global definition of human rights. I would have liked the preamble to make reference to the United Nations Convention on the 2003 international law that makes a statement on the rights of migrant workers and the members of their families. It would have been nice to also see a reference to the United Nations Declaration of the Principles of Justice and the rights of victims of a crime. 4. Prevention, Protection, Prosecution If the Dominican Republic Law is unique in its structure covering smuggling and trafficking, it is also comprehensive in its approach to trafficking in persons as a human rights violation. Unlike the majority of anti-trafficking legislation around the world that addresses trafficking as a part of the Criminal Code, the Dominican Republic moves from the criminalized zone to provide for the necessary protective measures that must be taken to combat trafficking. The Dominican Republic Law adopts the Three P’s approach to trafficking, and as such it joins the United States, Kosovo, Romania, Bulgaria, Nigeria and Cyprus. All of these countries provide for a comprehensive approach to combating trafficking that is not limited to a criminal law approach thus making trafficking in persons an offense. If I may make a point of reference to article 11 paragraph I, which provides for undertaking activities involving dissemination campaigns, the inclusion of economic activities to prevent trafficking should have been part of articles 12-15, the preventive section to combat trafficking. The legislator instead chose to squeeze this preventative measure within the protective measures provided by the law. 5. Forms of Trafficking The Dominican Republic Law is comprehensive in defining forms of trafficking to the point of going beyond the United States Trafficking Victims Protection Act and the United Nations Protocol on Trafficking. The United States law is limited to sex trafficking and labor trafficking. The sex trafficking part of the United States law is aimed more towards the commercial sex act that is prostitution. It does not include non-commercial sex in its definition of sex trafficking such as mail order brides and the trafficking for the purpose of marriage. The United Nations Protocol is wider in scope. It addresses the exploitations of prostitution of others including other forms of sexual exploitation, forced labor or service, servitude, slavery, practices similar to slavery and the removal of organs. The Dominican Republic Law is even wider in its scope than the Protocol, and this is a good thing; it defines trafficking in persons to include other forms of trafficking such as: - Trafficking for pornography
- Trafficking for illegal adoption
- Forced marriages
- Trafficking in organs
I want to draw your attention to the Dominican Republic Law Number 329-98: Regulating Donation, Extraction, Conservation and Interchange for Transplant of Organs and Human Tissues of August 11, 1998. While Article 23 of this law provides for a penalty of five to fifteen years, the new Dominican Republic Law increases this penalty from fifteen to twenty years. And you tell me how you are going to reconcile these two laws in a case of trafficking in human organs. Any adequate response to trafficking in persons must be comprehensive enough to cover all forms of trafficking. That is why I like the new Dominican Republic Law. The new Law went beyond the Penal Code article 334-1 which penalized trafficking for the purpose of prostitution. But this is not the only reason. 6. Private Person/ Public Person Any effective legal response to trafficking in persons must go after all the actors that are involved in or facilitate the trafficking enterprise. I would like to draw two basic distinctions regarding the persons involved in or facilitate the act of trafficking. The first would be to recognize the difference between the private person and the public person. In many cases of trafficking, the private person is an organized criminal group as two or more people. This is different than what the United Nations Convention against transnational organized crime tells us. The United Nations Convention talks about three or more people. The Dominican Republic Law takes this into consideration. If the trafficker is an organized group, article 7-c makes the action an aggravating circumstance that enhances the penalty by five more years. While the penalty for trafficking is under article 3 the punishment is between fifteen and twenty years in prison is increased by five more years every time one has an organized criminal group involved in the trafficking. The Dominican Republic Law also specifically recognized the role not only of organized crime but the public person. This is something that I find fascinating; article 7 again provides the five years enhancement penalty when the perpetrator of the crime is a public official. I would have liked the issue of corruption not only to be addressed as an aggravating circumstance but also in the definition of trafficking. The Dominican Republic Law defines illegal means to include the abuse of power. It would have been nice to have also included the abuse of office as a form of illegal means that gives rights to a criminal offense. This is a really good approach to fighting corruption as it relates to trafficking; few legal systems address corruption as it relates to trafficking, although in my judgment fighting corruption is the most important measure which should be taken to combat trafficking. 7. Natural Persons/ Legal Persons In addition to the distinction of a private person and a public person, there is a distinguishing difference between a natural person and a legal person. Here I would like to praise the Dominican Republic Law for specifically providing liability of the legal person. Article 4 specifically provides for the criminal liability of the organizations or corporations that are involved in trafficking persons and provides a number of penalties including fines, revocation of license, closure of business and prohibitions of performing any activities because of the involvement of such corporate persons, moral persons, legal persons in trafficking. A travel agency involved in sex tourism, and there is a lot of sex tourism going on in the Dominican Republic, should be subject to criminal liability under this law. The employment agency that is illegally recruiting Haitians to work in agricultural and construction centers and placing them in conditions of servitude shall be subject to criminal sanctions under the law. When the adoption agencies arrange illegal adoptions of children from the Dominican Republic to the United States or Puerto Rico should also be subject to criminal liability under the law. According to UNICEF, 75% of minors involved in prostitution are involved in the brothels, discos, restaurants and hotels. These establishments should be subject to criminal liability. Children are also trafficked to work as a shoe shiners and street beggars. That is why safety and health inspectors, including the labor inspections, of these establishments must be enforced under the Dominican Republic labor laws and the health and safety regulations. In fact the law provides such penalties that apply to corporations shall apply to political or other organizations recognized by the law. While addressing the responsibility of the legal person, the law does not address the responsibility of the natural person, the person that creates the demand for sex. The client. The customer. The Dominican Republic Penal Code prohibits procurement for the purpose of prostitution in article 334. At the same time article 334 prohibits receiving benefits of prostitution. This makes the offenses punishable by imprisonment of three months to three years. It does not, however, criminalize prostitution; it only criminalizes prostitution-related acts. Whether is good or bad, I do not know. There are other legal systems that adopt different approaches: - Muslim countries make prostitution illegal and penalize both the women in prostitution and the customer.
- The Swedish law penalizes buying sex but not selling sex. The customer, not the prostitute, is subject to a sentence up to six months imprisonment.
- The Macedonian as well as well as the Croatian law penalize the customer if he buys sex from women in prostitution with the knowledge that the women is a victim of trafficking. In this case, he may be subject to six months to five years of prison.
8. The Victim Let us talk about the person that all of us should be concerned about. It’s not the private person or the public person nor is it the natural person or legal person. It is the trafficked person, the victim of trafficking, the vulnerable victim of trafficking. The Dominican Republic Law, unlike many other laws, rightly refers to the trafficked person as a victim although it does not define for us what a victim is. It recognizes the trafficked person as a victim who is entitled to basic rights. The law talks about: - The right to privacy
- The right to identity
- The right to confidentiality
- The right to legal assistance
- The right to be heard in court
- The right to physical, social and psychological counseling
- The right to information
- The right to housing
- The right to medical care
- The right to education, training and decent employment opportunities
a. Right to Return That is the comprehensive list of human rights but there is one right that I do not see in the Dominican Republic Law. It is the right to return. The United Nations Protocol imposes in article 8 an obligation of repatriation on countries of origin such as the Dominican Republic, and perhaps an explicit reference to the right to return would have been a good provision to add to this Bill of Rights created by the Dominican Republic Law. b. Civil Compensation I do not see on this list of human rights the right of the victim of trafficking to civil compensation. Although I understand that a victim of trafficking may file a civil suit under article 1382 of the Civil Code that is the fault liability article. I also understand that the Dominican Republic Law 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: - To compensate the victims of trafficking for material damages as well as moral damages.
- That 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.
To my knowledge only the Italian law provides for similar measures. I would like to draw your attention to the other law that provides for confiscation of the proceeds of a crime, law number 72-02 regarding Money Laundering of June 2002. I would like to see trafficking in persons recognized as a crime for the purpose of applying the money laundering law to the crime of trafficking. c. Residency Status Provision I also do not see a provision allowing for some kind of legal residence status for victims of trafficking who is trafficked to the Dominican Republic. At least in he appropriate cases such victim should not be automatically deported. They should be allowed to stay at least temporarily so that they are able to testify against the traffickers. 9. Exemption of Criminal Liability This brings me to two of my favorite doctrines that have been implemented in the Dominican Republic Law. A trafficked person may commit crimes while being trafficked is reinforced by the doctrine of the exemption of criminal liability. Crimes may include illegal entry, prostitution, illegal presence, and unauthorized work. Article 8 of the law provides for exclusion of the victims of trafficking from prosecution from such criminal acts. The law, however, makes such an excuse or exemption conditioned upon collaborating or providing the identity of the person responsible for trafficking. It is here that I have some problems with article 8. Collaboration should at least be broadly interpreted so it does not mean requiring the victim of trafficking to testify in a criminal case. While we should encourage testimony, we shall not require it. If we require it we have to provide the victim of trafficking with witness protection. I am not sure I see any witness protection in the Dominican Republic Law. Any compliance with a reasonable request for assisting law and enforcement in investigating or prosecuting a case of trafficking should be sufficient to satisfy the requirement of collaboration of article 8. In addition, I do not see how one would apply that collaboration condition in cases of trafficking in children, especially young children. Article 1B of the Dominican Republic Law defines a young child as any person who has not obtained the age of twelve. How does one require a child who is under the age of twelve to collaborate with law enforcement? I believe that an exception for a child victim should have been provided in article 8. This brings me to the issue of trafficking in children as opposed to trafficking in adults. Under articles 7E of the Dominican Republic Law makes trafficking in children an aggravating circumstance, which triggers the five-year enhancement penalty, and this is a good thing. This is not enough. If you look at article 231 law 136-03, which provides the right of a child to confidentiality, this article must be fully applied. A child should also be entitled to special rules of testimony including the right to testify outside the court or accompanied by their guardian. 10. Vulnerable Victim My second favorite doctrine is the vulnerable victim enhancement doctrine. It simply means that if the criminal takes advantage of a condition of vulnerability of his victim, his penalty should be enhanced. This brings back article 7E with its 5-year enhancement penalty when the victim of trafficking suffers from psychological disabilities or mental illness. This is in addition to the five-year enhancement penalty under article 7A when the victim suffers physical or mental injury as the result of trafficking. The law enhances penalties in the cases when serious harm was caused to the victim of trafficking in article 7A and provides a similar enhanced penalty if the case was where the trafficker takes advantage of a vulnerable victim. 11. How Serious – Rape/ Drugs This is a serious penalty that the Dominican Republic Law recognizes in cases of trafficking in persons and makes it comparable to the penalty in other sexual offenses including rape under article 331 of the Penal Code, which provides ten to fifteen years for the crime of rape. I would like to draw your attention to the law number 24-97 of November 1997 regarding domestic violence, which provides a similar penalty in this case. The Dominican Republic Law is also serious in recognizing trafficking in persons as a serious crime just as it was in recognizing the trafficking in drugs as a serious crime under law 50-88 regarding drugs and controlled substances. Article 54 of that law provides for a penalty up to twenty years regarding drug traffic. 12. Cooperación I liked the way the Dominican Republic Law uses the term “cooperación.” It uses it in two contexts. The law calls for international cooperation, however, because of the transnational nature of the crime of trafficking, I would have liked to seen the Dominican Republic Law provide for transnational policies. Absent from the law is what I call the “Three Exes:” - Extradition: The recognition of trafficking in person as an extraditable offense.
- Extraterritoriality: The application of the domestic law regardless of the place where the act was committed.
- Exchange of information between countries of origin and countries of destination.
Although the law in article 12 talks about the exchange of information between agencies of the government, the law uses the term “cooperación” when it refers to the necessity of cooperation between government institutions and non-government organizations (NGO). The role of NGO’s is a significant one in the area of trafficking in persons. That is why it could have been a good policy for article 15, which establishes the task force, to include representatives of NGOs. The task force established by article 15 includes: - The Ministry of Women’s Issues
- The Ministry of Foreign Affairs
- The Office of the Attorney General through the Department for Combating Trafficking in Women, Young Boys and Girls, and Teenagers.
- The Department of Immigration
- The Interdepartmental Committee for Protecting the Migrant Women
I am sure that these government institutions shall consult with representatives of NGOs regardless of the fact that the law does not explicitly provide for such consultation. 13. In closing This is my reading of the new Dominican Republic Law: - It is unique
- It is comprehensive
- It is still serious
- I am sure that it will be effective in combating horrific crime of trafficking in persons. That is why the Dominican Republic was moved from tier three to tier two in the United States Annual Trafficking in Persons Report. This means that while the government of the Dominican Republic does not fully comply with the minimum standards for the elimination of trafficking, the government is making a significant effort to bring itself into compliance.
- I am also aware that the Dominican Republic will soon ratify the United Nations Protocol especially under article 17 where we needed forty instruments of ratifications and have reached that goal.
On December 25th 2003, Christmas Day, the United Nations Protocol became the International Law and all nations including the Dominican Republic celebrated not only Christmas but also the establishment of an international legal framework for the elimination of trafficking in persons. Thank you.
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