Human Trafficking And Sexual Exploitation Criminology Essay

When I was in Holland in August 1999, I was curious to see Amsterdam’s Red Light District for myself. Then it was the only place I knew in the world where prostitution was legal and have heard that women pose in window inviting customers in. I was with a friend and she started taking pictures of the women in the windows. When my friend took another picture when we were in the middle of the walkway, a prostitute came from behind her window, descendent on us furiously, grabbed the camera and violently removed the film from the camera. We were stunned, apologised profusely and hurriedly tried to make our way. A man came from somewhere and explained that taking pictures were prohibited. At that time I, like most people, have not heard about human trafficking.

The issue of human trafficking has received considerable attention in the last ten years from researchers, non-governmental organisations, governments and international bodies the world over. Like most countries, South Africa too is a signatory to the Protocol to Prevent, Suppress and Punish Trafficking in Persons (generally referred to as the Palermo Protocol). We formally consented to the Palermo Protocol in December 2003. Thus, as a nation we are obligated to ensure that our internal laws address the issue of human trafficking.

Human trafficking has been called a heinous, monstrous, [] crime against humanity [] . It has also been coined modern-day slavery. Human trafficking can take the form of sexual exploitation, labour exploitation, slavery, illegal adoptions, removal of organs and other body parts, for conveying drugs nationally and internationally. However, as much as the issue has been discussed and debated, it has contributed to the hype surrounding FIFA World Cup 2010 and how human trafficking for sexual exploitative purposes will increase [even though there is no research to draw from] during the soccer world cup. This led to discussions and public outcry on whether or not to legalise prostitution; and whether South Africa need a specific legislation dealing with human trafficking.

When I wrote my proposal, I considered several key focus areas. It soon became apparent that due to limitations such as time and length of paper, that I needed to reduce the key focus areas. Consequently I have decided for this paper, to focus on

definition of trafficking

the causes of trafficking

explore prostitution and whether or not it should be legalised

explore legislative developments pertaining to trafficking

protective measures available to victims of trafficking.

Research Methodology

The research methodology consisted majorly of in-depth desktop research on trafficking of adults, and not people under the age of 18 years, for purposes of sexual exploitation. Much has been written about human trafficking, but it is still difficult to find reliable studies thereof. Some of these factors include deficiencies in methodology; defining trafficking; high levels of mobility; and the underground nature of trafficking; links to organised crime; victims’ fears and unwillingness to participate in research; and potential dangers to researchers. [] 

Gould and Fick wrote that they failed to find a single prostitute who said she was being forced by unscrupulous pimps to sell sex against her will. [] This does not mean that there are no victims of sex trafficking in and around Cape Town.

I thought I could draw on an article written by Immelback Interviewing a Victim of Human Trafficking. [] Upon closer look I realised that she did not interview a victim of human trafficking, but interviewed the Victim Assistance team who works with victims of trafficking.

As it is difficult [] to set up interviews with victims of sex trafficking due to a host of reasons, including personal, I abandoned interviewing them for this paper due to my limitations. I decided to instead research movies and or documentaries that depict human trafficking for purposes of sexual exploitation. I will reflect on one of such movies, namely the movie “Taken” where Liam Neeson plays the role of a concerned and heroic father, whose daughter and friend have been trafficked for purposes of sexual exploitation, and he lengths he went to rescue them.

Throughout the paper I will try to avoid preferring to victims in the feminine form, even if the majority of the persons who victims of sex trafficking are women. This is to prevent sexism in my writing. [] 

A Review Of The Literature

Defining Human Trafficking

One of most debated issues of human trafficking is the definition of human trafficking. Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Procol) defines trafficking as:

trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Exploitation shall include at a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour of services, slavery or practices similar to slavery, servitude or the removal of organs;

the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this Article shall be irrelevant where any of the means set out in paragraph (a) have been used;

Most countries have taken the definition verbatim when they drafted their anti-trafficking laws. Kara [] undertook several research trips to investigate human trafficking on four continents. He questions whether the definition is subparagraph 3(a) includes exploitation. [] He opines that the wording only speaks to the movement portion of the chain, which explains why anti-trafficking law focus on movement more than exploitation [] . He argues that trafficking is not about movement, it is about slavery. [] He writes that current anti-trafficking efforts primary seek to crack down on modern-day slave traders, resulting in little more than adjustments in routes, larger bribes to border guards, and the procurement of false travel documents. [] He suggests that a much clearer understanding of sex trafficking is required- wherein the movement and the purpose of the movement are disaggregated as criminal acts- to achieve greater abolitionist effectiveness. [] He suggests two definitions which could be used to eradicate sex trafficking, namely

Slave trading- process of acquiring, recruiting, harbouring, receiving, or transporting an individual, through any means and for any distance, into a condition of slavery or slave-like exploitation. [] 

Slavery- process of coercing labour or other services from a captive individual, through any means, including exploitation of bodies or body parts.

He argues breaking the definition into different parts should be effective when formulating efforts to combat the crime of sex trafficking, and that confusion over what trafficking is results in blunted purpose, diffracted focus and exclusion of important components of trafficking-related crimes. [] 

The Human Sciences Research Council (HSRC) Tsireledzani 2010 report dealt with the problems of trafficking. They have expanded the definition of trafficking to include trafficking within national borders; forced marriages; child labour; impregnation of a female against her will for the purposes of selling her child when born; and trafficking of body parts. [] 

In South Africa Gould and Fick created a stir with their controversial research on sex trafficking in Cape Town. They argue that the definition is too broad [] and that there seem to no agreement on what could be considered as exploitation [] . Another criticism of the definition by Gould and Fick is the issue of consent of the victim being irrelevant. [] They opine that by ignoring the fact that the victim consented to be trafficked, is to ignore the specific needs of the victim, especially the victim who do not wish to return home to the same circumstances that led the victim to be trafficked in the first place. [] Gould and Fick conclude that critiques would suggest that the term ‘trafficking’ may not be a useful lens through which to consider issues of exploitation and abuse in the sex work industry. [] 

Sex trafficking and prostitution are often perceived as two sides of the same coin. However, it is not. It is important to differentiate between sex trafficking and prostitution.

With sex trafficking

the person is being exploited to perform sex work;

the person is not directly paid, but money might be sent to the victim’s family;

the person is compelled to do the sex work;

the person is not in a position to stop working unless the person ‘escape’;

the person does not have autonomy of movement- it is restricted;

the person is not able to negotiate a rate, fee, hours;

the person is not able to negotiate the sexual acts;

the person is not able to negotiate safe sexual practices;

With prostitution, however, the sex worker

is paid directly (if the person is based at a brothel, money might be paid either to person self or the person managing the brothel);

can decide to stop whenever;

choose to do the sex work due personal circumstances;

can negotiate sexual acts;

can negotiate safe sexual practices;

can negotiate the rate, fee and hours;

is able to enjoy freedom of movement;

can still enjoy life as a person (fall in love, have babies, etc)

Why does sex trafficking occur?

The root causes of trafficking are complex, the vulnerability resulting from poverty is a major contributor. [] The HSRC list pull factors such as economic inequality, conflicts, adoption trade, the use of organs or body parts in rituals. [] They list poverty and deprivation, persistent unemployment, gender discrimination, lack of information and education, harmful socio-cultural practices and lack of legislative and policy protection as push factors. [] They also cite issues such as disempowerment, social exclusion, and economic vulnerability- the result of policies and practices- marginalise entire groups of people, rendering them vulnerable to being trafficked. [] 

The general perception is that only men are traffickers. Women are also involved in human trafficking, not only as victims, but also as traffickers. [] It has been found that traffickers are also women, as mainly Mozambican women in partnership with their compatriots and South African men who transport trafficked victims from Maputo to Johannesburg or Durban. [] Victims trafficked to Europe are recruited by Malawian businesswomen. [] 

Kara argues that sex trafficking occurs because it is a lucrative business. [] He equates sex trafficking with drug trafficking. [] He states that drug trafficking generate greater dollar revenues, but [sex] trafficking is more profitable. [] Unlike a drug, a [human] does not have to be grown, cultivated, distilled, or packaged. [] Unlike a drug, a [human] can be used by the customer again and again. [] 34It generates profits through the vulgar and wanton destruction of lives. [] 

Kara describes several five ways how sex slaves are acquired, namely deceit, sale by family, abduction, seduction or romance, or recruitment by former sex slaves. [] Each of these ways will be briefly illustrated below.

Deceit

Deceit involves false job offers, travel, or other income-generating opportunity, false marriage offers (mail order brides). [] He opine that in countries where marriage is the only way for a female to secure social acceptance, basic rights, and avoid a lifetime of persecution, false marriage offers are effective ways to acquire sex slaves. [] People living in refugee camps are very susceptible to sex trafficking as they are often not allowed to leave the camp to seek employment. [] Traffickers visiting refugee camps with job offers are usually very successful in getting people. [] 

Sale by or involvement of family members

I first encountered family involvement when I read a news article. [] The article said that police had ‘rescued’ a seventeen year old teenage girl from Klerksdorp from a brothel in Table View. [] It alleged that the mother of the teenager knew the brothel owner and have promised her daughter that she will be working as a child minder. [] Did the mother knew that her daughter will be expected to do sex work? Poverty, desperation and displacement lead many families to sell a family member into slavery, and that they seldom are sold for greed. [] Parents are often forced by poverty and ignorance to enlist their children, hoping to benefit from their wages and sustain the deteriorating family economic situation. [] 

Abduction

People are rarely abducted into sex trafficking, because it is difficult to transport person without drawing attention. People are also abducted in and from conflict zones and forced to serve as sex slaves to rebel commanders or are sold as slaves. [] 

Kara says that not only is the abducted victim unwilling to travel, but also will to escape at any opportunity. [] If a person is abducted into sex trafficking, the person is usually also drugged to facilitate easier movement.

Seduction or Romance

Victims are also lured into trafficking by promises of love and marriage. Traffickers would find attractive and vulnerable people (more often girls), offering them love and marriage, treating them to expensive gifts, seducing them to migrate to a rich country where they can build a life together. [] Once the victim reaches the other country, they are forced into sexual slavery. [] 

Recruitment by former slaves

This too might be difficult to comprehend, but people are also recruited by other victims of trafficking. [] Sex slaves employ adaptive mechanisms to survive their ordeals, including drug and alcohol abuse and the morose acceptance that their fate. [] In East Africa, Ugandan women working as prostitutes in the Gulf States lure young girls from their country because they are usually preferred by male clients. [] 

Lastly, Kara controversially opines that the United States is more responsible than any other nation for the inimical accretion in human exploitation, trafficking, slavery since the fall of the Berlin Wall. He notes that through the International Monetary Fund and other institutions, the US government rapidly imposed its particular brand of unfettered market economics upon the developing world, unleashing catastrophic increases in poverty, social upheaval, mass migration and lawlessness. [] 

Should sex work be legalised?

When dealing with the issue of sexual exploitation, the question is often raised whether or not to legalised or to decriminalise prostitution. Kara too addresses this in his research. He writes that the argument that prostitution be legalised rests on the premise that women have a right to control their bodies. [] He indicates that legalisation would mean that prostitutes could enjoy the same benefits that other occupations do. [] Legalisation would also allow for state monitoring to ensure that prostitutes were less subject to violence and exploitation and that it would make it more difficult to traffic people for sexual exploitation because victims would have rights under the law, and that criminalising prostitution leads to increased victimisation of trafficking victims. [] Those who are against legalising prostitution argue that purchasing sex and operating sex establishments should be criminalised because prostitution can never be a choice and that the “profession” is inherently based on a system of male sexual dominance, appropriating the female body for pleasure and reinforcing the subordination and sexual objectification of women. [] He further writes that legalisation gives protection to brothel owners to purchase trafficking victims and inflict greater exploitation behind closed, but legal doors. [] He writes that only governments, organized crime, and pimps benefit from legalisation and women and children suffer state-sanctioned rape and slavery. [] He does not elaborate on how governments benefit from legalising prostitution.

Kara investigated two countries’, the Netherlands and Sweden legislation regarding prostitution. The Netherlands have legalised prostitution and Sweden has criminalised it. Even though prostitution was legal in Amsterdam, brothels were not until October 2000, when the ban was lifted to enable the Dutch government to exercise more control over the sex industry and counter abuses. [] Brothel owners are issued licences if they are in compliance with certain standards, including panic buttons in work areas, hot and cold running water, and free condoms. [] 

National Legislative framework

Since South Africa signed and ratified the Palermo Protocol, we had to ensure that we enact legislation in accordance. The US Office to Monitor and Combat Trafficking in Persons 2010 report ranked South Africa as Tier 2. This means that our government do not fully with the Trafficking Victims Protection Act’s (TPVA) minimum standards, but are making significant efforts to bring us into compliance with those standards.

Currently our anti-trafficking law is in draft stage, and it is not known if and when the bill will become law. It has been stated that we have several laws that deals with aspects of human trafficking, inter alia the Children’s Act 38 of 2005 (Chapter 18- sections 281 to 291); Films and Publications Board 65 of 1996; Human Tissues Act 65 of 1983; The Corruption Act 94 of 1992; Prevention of Organised Crime Act 121 of 1998; Infringement of Immigration Act 13 of 1996; Refugee Act 130 of 1998; and Extradition Act 67 of 1962. I will discuss these legislative provisions contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act [] as well as the Prevention and Combating Trafficking in Persons bill (2009).

The Criminal Law (Sexual Offences and Related Matters) Amendment Act

The Sexual Offences Act (SOA) can be used in the interim to charge and prosecute traffickers and victims of trafficking. Section 70 and 71 of the SOA are transitional provisions relating to trafficking. Section 70 deals with application and interpretation and section 71 deals with trafficking in persons for sexual purposes.

Section 70 states that

70(b) “trafficking” includes the supply, recruitment, procurement, capture, removal. Transportation, transfer, harbouring, sale, disposal, or receiving of a person, within or across the borders of the Republic, by means of

a threat of harm;

the threat or use of force, intimidation or other forms of coercion;

abduction;

fraud;

deception or false pretences;

the abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act; or

the giving or receiving of payments, compensation, rewards, benefits or any other advantages

for the purpose of any form or manner of exploitation, grooming or abuse of a sexual nature of such person, including the commission of any sexual offence or any offence of a sexual nature in any other law against such person, whether committed in or outside the borders of the Republic, and trafficks and trafficked have a corresponding meaning.

Section 71 reads

71(1) Any person (“A”) who trafficks any person (“B”) without consent of B, is guilty of the offence of trafficking in persons for sexual purposes.

71(2) A person who-

orders, commands, organises, supervises, controls or directs trafficking

performs any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking or

incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participates in trafficking, is guilty of an offence of involvement in trafficking in persons for sexual purposes.

71(3) For the purpose of subsection (1), consent means voluntary or uncoerced agreement.

The SOA elaborates further on the circumstances. It states that

71(4) Circumstances in which B does not voluntarily or without coercion agree to being trafficked, as contemplated in subsection (3), include, but are not limited to, the following

where B submits or is subjected to such an act as a result of any one or more of the means or circumstances contemplated in subparagraphs (i) to (vii) of the definition of trafficking having been used or being present; or

where B is incapable in law of appreciating the nature of the act, including where B is, at the time of the commission of such act-

asleep;

unconscious;

in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that B’s consciousness or judgement is adversely affected.

71(5) Any person who has been trafficked is not liable to stand trial for any criminal offence, including any migration-related offence, which was committed as a direct result of being trafficked.

Any act of trafficking which is not included in sections 70 and 71 of the SOA, such as kidnapping,

assault (common, and assault GBH), extortion, slavery, attempted murder, and murder have to be

prosecuted under general statutory or common law offences. [] 

Malachi v Cape Dance Academy International Pty Ltd &Others

In a recent reportable case of Tatiana Malachi v Cape Dance Academy & Others [] , even though the legal question did not deal with human trafficking, I think that it was a case of human trafficking. The facts are cited as follows.

Applicant is a citizen of the Republic of Moldova. She was employed as an exotic dancer at a nightclub managed by the first respondent (Cape Dance Academy International PTY LTD) and second respondent (House of Rasputin Properties PTY LTD). On her arrival in South Africa during March 2009, applicant handed her passport to the owner of Rasputin. Applicant was initially informed that her passport would be kept for 30 days in order to have it registered at the Police station. Second respondent subsequently kept applicant’s passport during the entire period of her employment. The owner of second respondent informed applicant that he would not return her passport unless the applicant paid him $2000 for her air ticket and R20 000 as a levy. The applicant was unable to pay either of these amounts, as she was not earning sufficient income during her employment with second respondent.

The applicant was to remain in custody pending the return date, which was to be 30 July 2009. If the applicant furnished adequate and satisfactory security for the total claim of R100 000 plus interest and costs, the applicant would be released from custody and the order for arrest discharged. The applicant had no assets of any tangible value in South Africa and therefore was unable to furnish adequate and satisfactory security. By agreement between the parties, the first and second respondents secured the discharge of the arrest warrant by the third respondent and the applicant was released from the custody on 24 July 2009.

Applicant sought and received the assistance of the Consul General of Russia to facilitate her return to her home country Moldova. Prior to her departure from South Africa on 9 July 2009, applicant was arrested and taken into custody at Pollsmoor Prison. The arrest was made pursuant to a court order issued by the third respondent ex parte on 9 July 2009 and warrant of arrest tanquam suspectus de fuga.

If we interpreted sections 70 and 71 as is, based on the facts of this case, Ms Malachi arrived in March 2009 and “employed” as an exotic dancer. It not evident from the facts how she got to be employed as an erotic dancer. Let’s forget that Ms Malachi is from Moldova, a place well-known for trafficking of victims for sexual exploitative purposes. How did she get to know about a possible position as exotic dancer? An advertisement might have been placed on the internet? Supposed she applied for the position as exotic dancer and her application was successful. Was there a formal agreement concluded between Ms Malachi and her employer? As she is a foreign national, she had to apply for permit to visit South Africa. It is not common practice to register passports at police stations when visiting a foreign country. This begs the question why Ms Malachi’s passport had to be registered at the police station, or was this a ploy to get her to hand over her passport and in the process prevent her from leaving the country.

In terms of civil procedure, one can apply for relief by way of an ex parte application under the following circumstances

Where the order is requested that does not affect another person; [] 

Where immediate relief is essential and notice of the application to the respondent will frustrate the requested relief; [] 

Where preliminary relief is essential in a proceeding that will later be followed up with a notice to the opposition; [] 

Where a nulla bona return is relied upon in the case of an application for sequestration and no notice of the application is given to the respondent; [] 

Where the relief is required so urgently that the normal provisions of time and notice cannot be complied. [] 

It is also not clear on which basis an ex-parte application was made and by whom against Ms Malachi, but an warrant was issued for her arrest. This warrant and subsequent arrest not only prevented Ms Malachi from leaving South Africa, but also restricted her movement. Can the ex-parte application to keep Ms Malachi in South Africa be considered a form of intimidation and coercion as stated in section 70 of SOA. A case could certainly be made she was legally ordered not to leave South Africa. If we apply the sections 70 and 71 of SOA, it would mean that all the respondents and other role-players such as the police who arrested Ms Malachi could be charged with the offence of trafficking for the purpose of sexual exploitation.

If we apply the SOA to the facts, and if it is found that Ms Malachi is a victim of trafficking, then all the respondents could be guilty of human trafficking. Regretfully the SOA does not address the issue of fines and penalties if persons are found to be criminally liable. The SOA has thus the same power as a shark without teeth. If one does not know that the shark has no teeth, the shark appears dangerous and scary, but as soon as we find out that the shark has no teeth, we would dance and play around the shark, because the shark has been rendered harmless.

Some people are alluding that the SOA is sufficient to deal with sex trafficking. Even though Pithey opines that it is debatable whether there is a need for special legal provisions, and that there is little use for specific trafficking legislation, she advocates for one specific legislation that provides the legal framework to investigate and prosecute trafficking with more ease and focus. [] 

The Prevention and Combating of Trafficking in Persons Bill [] 

Clause 3 in Chapter 2 of TIP deals with public awareness. It states that an Intersectoral Committee established by clause 37 must, and where appropriate, after consultation with relevant non-governmental organisations, establish public awareness programmes or other measures for the prevention of trafficking in persons designed to inform and educate the public, victims of trafficking on their rights as victims, legal or other measures in place to ensure their safety, recovery and repatriation, and organisations, institutions or law enforcement agencies that may be approached for the assistance or information.

Clause 12 addresses the issue of reporting and referral of adult victim of trafficking. Clause 12 (2) reads that [a]ny person who on reasonable grounds suspects than an adult person is a victim of trafficking may report that suspicion to a police official for investigation.

There is nothing wrong with this provision, except for the underlined word, “may”. I suggest that the word “may” be changed to “must”. If TIP has been enacted before July 2009, then based on the facts in Malachi discussed above, and if the wording of may is changed to “must”, and if the presiding officer who granted the warrant of arrest, had any suspicion that Ms Malachi is a victim of sex trafficking, the presiding officer would be obligated to report the case to the police for investigation.

Criminal prosecution against adult sex trafficking victims

Clause 15 reads that no criminal prosecution may be instituted against an adult person who has been certified to be a victim of trafficking for

entering or remaining in the Republic in contravention of the Immigration Act; assisting another person to enter or remain in the Republic in contravention of the Immigration Act;

possessing any fabricated or falsified passport, identity document or other document used for the facilitation of movement across borders; and

being involved in an illegal activity to the extent that he or she has been compelled to do so, as a direct result of his or her situation as a victim of trafficking.

Criminal prosecution against a trafficker

Clause 4(3) stipulates that the accused charged with the offence of trafficking cannot use consent of the victim as a defence.

Offences and Penalties

If a person is found guilty of trafficking, he or she could be liable on conviction to a fine or imprisonment, including imprisonment for life. [] An employer can also be held liable for trafficking and the person in the employ of the employer if the person acted within his or scope of employment. It can result in the business licence or registration being revoked. An Internet Service Provider if found liable, can also be fine or be imprisoned for a period up to five years.

Offence

Penalty

Trafficking

Fine or Imprisonment (including life)

Debt bondage

Fine or Imprisonment up to 10 years

Destruction, confiscation, possession, concealment of or tampering with documents

Fine or Imprisonment up to 10 years

Using services of victims of trafficking

Fine or imprisonment up to 5 years

Conduct facilitating trafficking in persons (advertising, publishes, broadcasts, distribution, etc)

Fine or Imprisonment up to 10 years

Compensation

Clause 25 deals with compensation. A complainant or the prosecutor or a court on its own accord can order a convicted person to pay appropriate compensation for special and general damages to the sex trafficking victim and the State. Clause 25 also sets out the procedure, and limitations for compensation.

Deportation

Clause 27 states that summary deportation of a victim of sex trafficking is prohibited.

Repatriation

Clause 28(2) stipulates that the Director-General: Home Affairs may not order the sex trafficking victim to return without giving due consideration to the safety of the person during and after the repatriation process; … and the possibility that the person might be harmed, killed or trafficked again.

Recommendations

I recommended the following

that the definition of human trafficking be simplified;

the phrase “human trafficking for purposes of sexual exploitation” be changed to sex trafficking;

the anti-trafficking bill needs to be made an act;

Specialised investigation and prosecution units must be established;

Social context training on human trafficking to be done with ideally all police officers, investigators, prosecutors and presiding officers;

Continuous public awareness initiatives to be implemented; and

Compensation for victims of trafficking

Conclusion

I started this paper recounting my experience in Holland in 1999 and how little was known about the crime of sex trafficking due to poor public awareness raising campaigns. These campaigns are important because prevention is better than cure. It is now almost 11 years later and at the time of writing this paper, it is Human Trafficking Awareness Week (04 – 10 October) and nothing much has changed. People still know little about sex trafficking, and yet the crime is continuing, and victims of sex trafficking does not know that there is help and assistance.