Speech Give at the Conference on Path Breaking Strategies in 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 Chi_in u, Moldova November 17-18, 2003 1. The Progressive Reach of International Law The copy that I obtained of the anti-trafficking persons legislation for Moldova is a high-quality example of human rights law. It needs to be specific, serious, and most important it needs to be able to make a connection with the human aspect. The issues concerning the procedures of drafting an anti-trafficking bill are all taken into account however these are set off-balance by the ability to make a choice. Do you address the issue of trafficking as a part of a comprehensive act or as a part of the Criminal Code? This is where the international community differs. Some legal systems adopt a comprehensive approach, addressing trafficking in a separate comprehensive act. This is the case of the Trafficking Victims Protection Act of the United States. This is the American model that is followed by countries such as Nigeria, Kosovo, Romania, Cyprus, and Bulgaria. In these laws you do not only criminalize trafficking, you also address prevention and protection. The Moldavian legislator chose to address trafficking as a part of the Criminal Code. Since June 12, 2003, the law finally recognized trafficking in persons as a specific offense whereas the old law talked about related activities. The new law talks about trafficking in human beings in article 165 and the trafficking in children in article 206. It is comprehensive in two ways. The law is all-inclusive in defining the forms of trafficking. In fact the Moldavian Law’s definition of trafficking is broader in scope than the United States’ Law and the United Nations Protocol definition of trafficking. Section 103 of the United States Law defines trafficking to include only sex trafficking and labor trafficking. Sex trafficking is limited to trafficking for the purpose of a commercial sex act. A commercial sex act is basically prostitution. The United Nations Protocol is somewhat wider in its definition of what we consider trafficking. Article 3 covers the exploitation of prostitution of other including other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, and the removal of organs. The Moldavian Law, while it includes the forms of trafficking as specified by the United Nations Protocol, goes above and beyond. It recognizes trafficking not only commercial sex but also as non-commercial sexual exploitation. This includes mail order brides, trafficking for the purpose of childbearing, and trafficking for marriage. An explicit reference is used to define the illegality of adoption, the use of persons in armed conflicts, the utilization of persons in criminal activities, and the trafficking for the purpose of pornography. If we want to combat trafficking, the global community has to recognize all forms of trafficking as criminal offenses. That is what the Moldavian Law does. 2. The legal definition of “illegal means” The Moldavian Law is wide-ranging in defining the “illegal means” required for the establishment of the crime of trafficking. The United States Law talks about force, fraud, and coercion and the United Nations Protocol makes the abuse of a position of vulnerability sufficient to establish a case of trafficking. The Moldavian Law is even more specific in ascertaining an explanation for court cases. It covers the common means of recruitment of victims of trafficking, in particular the confiscation of documents, servitude for repayment of debt, and the threat of disclosing confidential information. Confiscation of documents is what happens when the trafficker withholds the victim’s travel documents so she cannot leave. It is false imprisonment at best. The servitude for repayment of debt is clarified by stating “a debt whose limits are not reasonably defined.” The threat of disclosure of confidential information is illegal under Moldavian Law. The information may be leaked to the person’s family or other persons that the victim is a prostitute, thus nullifying any future relations. 3. The Legal Means of Consent It is significant when we address the issue of consent. Is the consent of the victim relevant? Is consenting a “defense?” Not when you have any of these illegal means, which need to be defined on a broad base. Consent, if you have one of the illegal means mentioned above, becomes either nonexistent or defective, and in both cases, it becomes irrelevant. This is the position of the United Nations Protocol and this is my interpretation of a law similar to the Moldavian Law that adopts that expansive view of what we consider illegal means. This is how specific the Moldavian Law is although the law was silent on the issue of consent. 4. Taking Trafficking Seriously The Moldavian Law is serious in recognizing trafficking as a serious crime. The United Nations Convention against transnational organized crime defines a serious crime as any offense and the punishment of which is four or more years. The Moldavian Law starts with seven years and that is only the “minimum sentence.” The law talks about giving seven to fifteen years, which produces a very serious image upon the legislation. If the crime involves the trafficking of children then the sentence is upgraded to ten to fifteen years. Where there are aggravated circumstances, the law enhances the penalty to ten to twenty years. This includes if the trafficked victims are pregnant women or if they were raped, both being very serious statements. The law projects the penalty to fifteen to twenty-five years or life if the crime is committed by an organized crime. Since we have to recognize trafficking not only as a crime but also as an organized crime, we have to something about it by providing an enhanced penalty. But this is not enough. An anti-trafficking legislation must also provide for the confiscation of the assets of the traffickers. There are laws like the Italian Law that provides for using the proceeds of these confiscated assets to initiate programs to help victims of trafficking. The Moldavian Law was silent as to the issue of forfeiture. 5. The Application of Punishment to the Involved Actors When creating a piece of human rights legislation, the punishment of all actors needs to be taken into account. From the trafficking enterprise, the legal persons, the corporate persons to the travel agency, the employment agency, the adoption agency, and the sex operators. Would the Moldavian Law apply to all these persons? It remains to be seen whether the law will be applied to include the liability of corporate persons but this is how serious we should be about combating trafficking. 6. The Human Element We also have to be human and not forget our target in an anti-trafficking legislation. There are three statements regarding the matter of how a trafficked person must be recognized as a victim. The Moldavian Law, article 58 of the Criminal Procedure Code, defines a victim as “any person…who has been caused moral, physical, or (…) damage.” No doubt that a trafficked person fits this definition of victim. I would like to see article 58 applied to the victims of trafficking. The trafficked person must be recognized as a victim who is entitled to basic rights. The Moldavian Criminal Procedure Code talks about the right to information, the right to file a lawsuit, the right to file a civil action lawsuit during the criminal proceedings asking for the (…) and moral damages and for restitution, including medical care. Again I would like to see these rights apply to victims of trafficking. The trafficked person must be recognized as a victim who is entitled to basic rights as a victim not a criminal. This means that the victim of trafficking must be excused from criminal liability. This is the principle of non-criminalization of the acts of the victim of trafficking. This is the rule under article 165 (4) of the Moldavian Law. But we have to be careful on how we interpret the rule here. I, personally, have some problems with 165 (4). The Moldavian Law makes the application of this principle contingent upon the victim’s “cooperation” with law enforcement authorities. We should interpret “cooperation” broadly to include any type of willingness, the want to assist law enforcement, and in a reasonable request for assistance in investigation and prosecution of a case of trafficking. The immunity or the excuse rules should not be contingent upon the victim serving as a witness and that we should not require them to testify. If one requires a testimony, however, we have to apply the Moldavian 1998 Law on “State Protection of the Victim, on Witnesses and other persons who provide Assistance in Criminal procedures.” Questions arise when addressing the trafficking of children: How does one define a child? Would one apply the rule to any person who is under eighteen? How about a child who is nine or ten? How do you require cooperation on their part? In article 206 (4), the Moldavian Law makes the same requirement regarding children who are being trafficked. We also have to be careful on how we define “the acts” that are excused because of trafficking. The Moldavian Law, article 362 talks about “Illegal Crossing of the State Borders.” Illegal entry by a victim of trafficking should not be a crime under this principle. The Moldavian Law makes prostitution an administrative offense and whether you consider prostitution a criminal or an administrative offense, when prostitution is linked to trafficking, it should not be an offense. 7. Legal Systems Approach the Problem Differently Some legislation institutes legalize prostitution, some decriminalize, and some punish the women that are in prostitution. Others punish the customer, and I like that approach. The Swedish Law makes buying sex, not selling sex, a crime. You get up to six months imprisonment for this offense. The Macedonian Law as well as the Croatian Law both makes knowledge of the fact that women in prostitution are the basis of criminal liability. You get from six months to five years for that. 8. In closing There are lessons to be learned by a comparative scholar especially when the goal is harmonizing the trafficking laws. We have to think about going after the customer. We have to also think about recognizing a right to return for victims of trafficking in the process of repatriation in countries of origin. The recognition and action about preventing such acts to continue in countries of origin. I know that that it will take time and we need to join the existing international consensus on recognizing trafficking persons as a human rights violation as evident in the United Nations Protocol and the International Criminal Court statute as a crime against humanity. Under article 17, we needed 40 instruments of ratifications. On September 26, we reached this number. In December, before Christmas, the Protocol was changed to International Law. Moldova would like to be a part of that process. Thank you.
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