Human trafficking and the law

Women and girls, who are often themselves victims of human trafficking and are sexually exploited by criminal gangs, are being prosecuted and convicted for human trafficking-related crimes, according to a new UN Office on Drugs and Crime (UNODC) report.

The over-representation of women and girls as both victims and perpetrators has been a consistent theme to emerge from the UNODC’s Global Trafficking in Persons Reports, says Flinders University criminology PhD candidate Alexandra Baxter who contributed an Australian case study to the latest report.

“From my research into Australia cases, I identified a significant theme during the sentencing of these women which was the victim-offender ‘should have known’ better because she was a victim,” says Ms Baxter, who is also working on the ‘Slavery and slavery-like practices in South Australia’ project.

“Indeed, this supported the findings of the UNODC report regarding a lack of judicial understanding of the impacts of prior victimisation on offending for women who are victims of sexual exploitation,” she says.

Despite the small scale of trafficking operations known in Australia, women often hold principal roles in the trafficking organisation and are not identified as holding roles observed in other jurisdictions, such as those held by pimp-controlled victim-offenders in the USA.

Victims often have no alternative but to obey an order, the global report found. Some hope to limit their own exploitation or escape poverty by playing a role in the criminal process.

Yet at the same time, the traffickers use these women and girls as a shield to protect themselves from being punished for their crimes.

The failure to appropriately recognise and respond to various forms of prior victimisation was a common theme to emerge from the 53 cases from 16 jurisdictions analysed in the report, Ms Baxter adds.

“It demonstrates, therefore, the need for a much a greater understanding of women who are victims of human trafficking for sexual exploitation who are also and identified as the offender in the court’s eyes.”

The UNODC report is a step forward to produce much-needed understanding, she says. “I hope my PhD will expand our understanding of the ways which the Australian judiciary considers these types of criminal cases.”

“Ever since UNODC started collecting statistics on human trafficking 15 years ago, women and girls have consistently represented the majority of reported victims,” says Zoi Sakelliadou, a UNODC Crime Prevention and Criminal Justice Officer, who coordinated the development of the international study.

“We’ve also seen that the percentage of female perpetrators of trafficking who are at the same time victims of this crime, is steadily high too, especially if compared to female offenders in other crimes.”

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It was not just the statistics that led UNODC to analyse this topic, she says, but also the calls from law enforcement and criminal justice officials to research this trend further.

“Police officers, prosecutors and judges we cooperate with have repeatedly stressed the complexity of investigating and adjudicating cases that involve female victims of trafficking as alleged perpetrators,” she says.

The key finding of the study was the double exploitation and victimisation of the women and girls in the cases that were examined.

“The traffickers not only earned a profit by sexually exploiting the victims, but then made them commit crimes so they could escape liability and prosecution,” says Ms Sakelliadou. “They deliberately used them in low-level roles that were more exposed to law enforcement authorities – meaning they were more likely to get caught.”

These roles included the recruitment of new victims, collecting proceeds, imposing punishments, or posting advertisements for victims’ sexual services.

Where money was a factor, it was to escape the extreme poverty that had led to the initial trafficking or involved financial family obligations, especially in the case of single mothers.

Many of the victims in the reviewed cases continued to be sexually exploited even if they engaged in criminal acts.

The study also highlights the clear links between human trafficking and violence against women, domestic violence, and the role of intimate partner violence.

“We found that in around a quarter of the cases examined, the women had been subjected to multiple forms of violence prior to and during the trafficking process, including from early childhood,” Ms Sakelliadou says.

The team behind the study focused on 53 court cases from 2006 to 2020, which took place in 15 countries in Europe, Asia, Africa and South America and the European Court of Human Rights and included a female defendant that was also a victim of trafficking for sexual exploitation.

The study, Female victims of trafficking for sexual exploitation as defendants: A case law analysis, used the UNODC Knowledge Portal on Trafficking in Persons, a global database of case law and legislation.

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