Model
Law to Combat Trafficking in Persons
Released by the Office to Monitor and
Combat Trafficking in Persons
U.S. Department of State
March 12, 2003
Article I
Definitions
§100 “Trafficking in persons” shall mean
the recruitment, transportation, transfer, harboring or receipt
of a person by means of the threat or use of force or other
means of coercion, or by abduction, fraud, deception, abuse
of power or of a position of vulnerability, or by 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.1
§101 “Child” shall mean
any person under eighteen years of age.2
§102 “Exploitation” shall
mean3:
keeping a person in a state of slavery;
subjecting a person to practices similar to slavery;
compelling or causing a person to provide forced labor or
services;
keeping a person in a state of servitude, including sexual
servitude;
exploitation of the prostitution of another;
engaging in any other form of commercial sexual exploitation,
including but not limited to pimping, pandering, procuring,
profiting from prostitution, maintaining a brothel, child
pornography;
illicit removal of human organs.
§103 “Slavery” shall mean the status or condition
of a person over whom any or all the powers attaching to the
right of ownership are exercised.
§104 “Practices similar to slavery” are defined
in the Supplementary Convention on the Abolition of Slavery,
the Slave Trade, and Institutions and Practices Similar to
Slavery4 and include, in general,
debt bondage, serfdom, forced or servile marriages and delivery
of children for exploitation.5
§105 “Forced labor” shall
mean labor or services obtained or maintained through force,
threat of force, or other means of coercion or physical restraint.
§106 “Servitude” shall mean
a condition of dependency in which the labor or services of
a person are provided or obtained by threats of serious harm
to that person or another person, or through any scheme, plan,
or pattern intended to cause the person to believe that, if
the person did not perform such labor or services, that person
or another person would suffer serious harm.
§107 “Illicit removal of organs”
refers to the unlawful conduct, and not to legitimate medical
procedures for which proper consent has been obtained.
§108 “Abuse of a position of vulnerability”
shall mean such abuse that the person believes he or she has
no reasonable alternative but to submit to the labor or service
demanded of the person, and includes but is not limited to
taking advantage of the vulnerabilities resulting from the
person having entered the country illegally or without proper
documentation, pregnancy, any physical or mental disease or
disability of the person, including addiction to the use of
any substance,6 or reduced capacity to form judgments by virtue
of being a child.
§109 Coercion shall include violent
as well as some forms of non-violent or psychological coercion,
including:
threats of serious harm to or physical restraint
against any person;
any scheme, plan, or pattern intended to cause a person to
believe that failure to perform an act would result in serious
harm to or physical restraint against any persons;
or the abuse or threatened abuse of the legal process.
§110 Debt bondage shall mean the status or condition
of a debtor arising from a pledge by the debtor of his or
her personal services or those of a person under his or her
control as a security for debt, if the value of those services
as reasonably assessed is not applied toward the liquidation
of the debt or the length and nature of those services are
not respectively limited and defined.
§111 Terms not defined in this Article
shall be interpreted consistent with their use elsewhere in
domestic law.
Article II
Criminal Offenses and Related Provisions
§200 Trafficking in Persons7
Whoever engages in [or conspires to engage in, or attempts
to engage in, or assists another person to engage in or organizes
or directs other persons to engage in]8 “trafficking
in persons” as defined in Section 100 shall
be sentenced to any term of years or life imprisonment,9
be subject to forfeiture of property under Section 206, and
be ordered to pay full restitution to the trafficked person
or persons under Section 205.10
The recruitment, transportation, transfer, harboring, or receipt
of any child, or the giving of payments or benefits to obtain
the consent of a person having control of a child, for the
purpose of exploitation shall constitute trafficking in persons
irrespective of whether any of the means described in Section
100 have been established.11
§201 Unlawful Withholding of Identification Papers12
Any person who, acting or purporting to act as another person’s
employer, manager, supervisor, contractor, employment agent,
or solicitor of clients [such as a pimp], knowingly procures,13
destroys, conceals, removes, confiscates, or possesses any
passport, immigration document, or other government identification
document, whether actual or purported, belonging to another
person shall be fined under this title and imprisoned not
more than five years.14
§202 Transporting a Person for the Purpose of Exploiting
Such Person’s Prostitution15
Whoever knowingly transports [or conspires
to transport, or attempts to transport or assists another
person engaged in transporting] any person across an international
border for the purpose of exploiting that person’s prostitution,16
shall be punished in accordance with (b).17
Persons convicted of the crime of transporting
a person for the purpose of that person’s prostitution
shall be imprisoned not more than ten years, but the presence
of any one of the following aggravating factors can permit
a longer sentence up to a maximum of 20 years:
transporting two or more persons at the same time;
permanent or life-threatening bodily injury to a person transported;
transportation of one or more children; or
transporting as part of the activity of an organized criminal
group.
§203 Restitution18
Where a defendant is convicted of trafficking in persons under
Section 200, the court shall order the defendant to pay restitution
to the victim.
Restitution shall compensate the victim for:
costs of medical and psychological treatment;
costs of physical and occupational therapy and rehabilitation;
costs of necessary transportation, temporary housing, and
child care;
lost income;
attorney’s fees and other costs such as victim advocate
fees;
the greater of the (a) gross income or value to the defendant
of the victim’s services or labor or (b) the value of
the victim’s services as guaranteed under [insert reference
to appropriate labor standards laws];
compensation for emotional distress, pain, and suffering;
and
any other losses suffered by the victim.
Restitution shall be paid to the victim promptly upon the
conviction of the defendant, with the proceeds from property
forfeited under Section 204 applied first to payment of restitution.
The return of the victim to her or his home country or other
absence of the victim from the jurisdiction shall not prejudice
the victim’s right to receive restitution.
§204 Forfeiture
All property, including but not limited to money, valuables,
real property and vehicles, of persons convicted of the crime
of trafficking in persons under Section 200 that was used
or intended to be used, or was obtained in the course of the
crime, or benefits gained from the proceeds of the crime,
shall be forfeited to the State.19 [Overseas assets of persons
convicted of trafficking in persons shall also be subject
to forfeiture to the extent they can be retrieved by government.]
§205 Sentencing Guidelines
As factually appropriate, the following adjustments
to the minimum sentence, or enhancements to the sentence of
a person convicted of the crime of trafficking in persons
shall apply20:
if the convicted person used, threatened use, or caused another
to use or threaten use of a dangerous weapon, 2 years shall
be added to the minimum sentence;
if a trafficked person suffers a serious
bodily injury, or if the convicted person commits a sexual
assault against a trafficked person, 5 years shall be added
to the minimum sentence;
if the trafficked person has not attained
the age of 18 years, 5 years shall be added to the minimum
sentence;
if, in the course of trafficking or subsequent
exploitation, the convicted person recklessly caused a trafficked
person to be exposed to a life threatening illness, or if
the convicted person intentionally caused a trafficked person
to become addicted to any drug or medication, 5 years shall
be added to the minimum sentence;
if a trafficked person suffers a permanent
or life threatening injury, 10 years shall be added to the
minimum sentence;
if a trafficked person dies as a result of
the trafficking, the sentence shall be between 20 years and
life imprisonment;
if the trafficking was part of the activity
of an organized criminal group [as defined at (insert reference
to law defining “organized criminal group” in
accordance with the UN Convention on Transnational Organized
Crime)], 3 years shall be added to the minimum sentence; or
if the trafficking was part of the activity
of an organized criminal group [as defined at (insert reference
to law defining “organized criminal group” in
accordance with the UN Convention on Transnational Organized
Crime)], and the convicted person organized the group or directed
its activities, 5 years shall be added to the minimum sentence.21
if the trafficking occurred as the result
of abuse of power or position of authority, including but
not limited to a parent or guardian, teacher, children’s
club leader, or any other person who has been entrusted with
the care or supervision of the child, {3} or {5} years shall
be added to the minimum sentence.
Definitions– For the purposes of this
section:
“Dangerous weapon” shall mean (i) an instrument
capable of inflicting death or serious bodily injury; or (ii)
an object that is not an instrument capable of inflicting
death or serious bodily injury but (I) closely resembles such
an instrument; or (II) is used in such a way that it creates
the impression that the object is an instrument capable of
inflicting death or serious bodily injury.
“Serious bodily injury” shall
mean injury involving extreme physical pain or the protracted
impairment of a function of a bodily member, organ or mental
faculty; or requiring medical intervention such as surgery,
hospitalization, or physical rehabilitation.
“Sexual assault” shall mean causing
another to engage in a sexual act by using force against that
person, threatening or placing that person in fear that any
person will be subjected to death, serious bodily injury,
or kidnaping, and engaging in a sexual act with an incapacitated
person, or a person who cannot express consent or with a minor
that constitutes statutory rape under domestic law.
“Permanent or life-threatening bodily
injury” shall mean injury involving a substantial risk
of death; loss or substantial impairment of the function of
a bodily member, organ or mental faculty that is likely to
be permanent; or an obvious disfigurement that is likely to
be permanent. Maltreatment to a life-threatening degree, such
as by denial of food or medical care that results in substantial
impairment of function, constitutes life-threatening bodily
injury.
“Life-threatening illness” shall
mean any illness [whether treated or untreated] that involves
a substantial risk of death, and includes at a minimum HIV
infection and tuberculosis.
[“Organized criminal group” shall
mean a structured group of three or more persons, existing
for a period of time and acting in concert with the aim of
committing one or more offenses established under this section
in order to obtain, directly or indirectly, a financial or
other material benefit.22]
§206 Consent or Past Sexual Behavior History of Victim
is Irrelevant23
In a prosecution for trafficking in persons under Section
200, the alleged consent of a person to the intended or realized
exploitation is irrelevant once any of the means or circumstances
set forth in Section 100 is established.24
In a prosecution for trafficking in persons
under Section 200, evidence of a victim’s past sexual
behavior is irrelevant and inadmissible for the purpose of
proving that the victim engaged in other sexual behavior,
or to prove the victim’s sexual predisposition.25
§207 Legal Age of Consent to Sex Not a Defense in Trafficking
Age of consent to sex, legal age of marriage, or other discretionary
age shall not be used as a defense to trafficking.
§208 Victim Immunity [Exemption] from Prosecution26
A victim of trafficking is not criminally liable for any migration-related
offense, prostitution, [insert other crimes and references
as appropriate], or any other criminal offense that was a
direct result from being trafficked.
§209 Extradition
Countries should extradite persons charged with trafficking
in persons on substantially the same terms and to substantially
the same extent as persons charged with serious crimes.27
Article III
Assistance and Protection for Victims
§300 Protection for the Safety of Victims28
Investigative, prosecutorial, and other appropriate authorities
shall take all steps necessary to identify victims of trafficking.
Once victims are identified, these authorities shall provide
reasonable protection to victims of trafficking to prevent
recapture by the traffickers and their associates, secure
the victim and the victim’s family [if they reside in
(country name)] from threats, reprisals or intimidation by
the traffickers and their associates, and ensure the victim
has an opportunity to consult with a victim advocate or other
appropriate person to develop a safety plan.29
§301 Witness Protection
Victims of trafficking who are witnesses or potential witnesses
may be eligible for applicable witness relocation and protection
programs for victims of organized criminal activity or other
serious offenses, if it is determined that an offense involving
a crime of violence directed at the witness or potential witness
if likely to be committed. The programs may include:
relocation
new identity, documents establishing identity
new residence
employment or work permits
protection of confidentiality of identity and location
§302 Protection for the Privacy of Victims30
In a prosecution for trafficking in persons under Section
200, or unlawful use of documents under Section 201, the identity
of the victim and the victim’s family should be kept
confidential by ensuring that names and identifying information
of the victim and victim’s family are not released to
the public, including by the defendant.
§303 Information for Victims31
The [Ministry of Justice] and/or [court]
and/or [other appropriate authority] shall inform victims
of trafficking, in a language they can understand, of their
legal rights and the progress of relevant court and administrative
proceedings, as appropriate, including but not limited to
prosecution of the criminal offenders, proceedings for the
return of the victim to their country of citizenship or lawful
residence, and procedures for seeking legal immigration status
under section 305.
§304 Opportunity for Presentation of Victim’s Views
and Concerns32
The [Ministry of Justice] and/or [court] and/or [other appropriate
authority] shall provide an opportunity to a victim of trafficking,
if the victim desires it, to present the victim’s views
and concerns at appropriate stages of criminal proceedings
against traffickers, in a manner not prejudicial to the rights
of the defendant. An interpreter who speaks a language the
victim understands should be made available to the victim
[during the course of legal proceedings].
§305 Support for Victims33
Within [one year] of the enactment of this legislation, the
[appropriate authority] in conjunction with [other appropriate
authorities] shall develop plans, in consultation with non-governmental
organizations and other elements of civil society, for the
provision of appropriate services, from governmental and non-governmental
sources, for victims of trafficking and dependent children
accompanying the victims, including34:
appropriate housing, taking into account
the person’s status as a victim of crime and including
safe conditions for sleeping, food and personal hygiene;
psychological counseling in a language the victim can understand;
medical assistance in a language the victim can understand;
other material assistance as appropriate;
employment, educational, and training opportunities; and
legal assistance or legal information in a language the victim
understands.
Victims of trafficking shall be eligible to work and to receive
proof of work authorization [for the duration of their presence
in (country name)] OR [in the manner prescribed in (insert
reference to appropriate existing law)].
Victims of trafficking and their accompanying
dependent children shall be entitled to receive social benefits
[in the same manner as refugees] OR
[for the duration of their stay in (country name)] OR
[in the manner prescribed in (insert reference to appropriate
existing law)].
Residence in shelters or other facilities established under
this section shall be voluntary, and victims may decline to
stay in shelters.
Victims shall have the option to communicate with and receive
visits from family, friends, attorneys, and advocates.35
Absent exigent circumstances, victims of
trafficking, once identified as such, shall not be housed
in prisons or other detention facilities for accused or convicted
criminals. Child victims of trafficking, once identified as
such, shall not be housed in prisons or other detention facilities
for accused or convicted criminals under any circumstances.
The authorities described in (a) shall take
into account the age, gender, and special needs of victims
and accompanying dependent children in formulating plans to
provide services to them and in delivering such services.
Plans developed in accordance with (a) shall
be submitted for approval to [insert appropriate authority],
which authority shall also undertake periodic reviews of the
plans and their implementation to ensure compliance with the
requirements of this Article and to ensure that all victims
are treated with respect for their human rights and dignity.
§306 Immigration Status of Victims36
The [authority with responsibility for issuing visas or temporary
residence permits] shall provide victims of trafficking and
accompanying dependent children with appropriate visas or
other required authorization to permit them to remain in [name
of country] for the duration of the criminal prosecution against
the traffickers, provided that the victim is willing to comply
with reasonable requests, if any, to assist in the investigation
or prosecution of the traffickers.
[Victims of trafficking shall be eligible
for permanent residence in [country name][in the manner prescribed
in (insert reference to appropriate existing law)], provided
they have complied with reasonable requests, if any, for assistance
in the investigation or prosecution of acts of trafficking.
Dependent children accompanying the victim also shall be eligible
for permanent resident status in [country name][in the manner
prescribed in (insert reference to appropriate existing law.)]
[A victim’s spouse and children, and
in the case of child victims, the parents or guardian, and
the victim’s siblings, shall be eligible to join the
victim in [country name] as part of the victim’s initial
application for temporary or permanent residence under (a)
or (b).]
§307 Assistance for Citizen/Permanent Resident Victims
Abroad37
The [Ministry of Foreign Affairs], through
its diplomatic missions and consular offices abroad, where
practicable, shall offer assistance to citizens of or persons
holding permanent residency in [name of country] who are victims
of trafficking in persons located abroad, including but not
limited to:
assistance in understanding the laws of the
foreign country to which they have been trafficked, including
their rights as victims, options for reporting the crime,
and opportunities for seeking restitution or other benefits
that are available under the laws of that country;
assistance in obtaining emergency services,
including but not limited to medical care and counseling;
at the request of either the victim or the
appropriate authorities in the other country, replacement
or provision of passports and other travel documents necessary
for the victim to return to [name of country] without undue
or unreasonable delay;
material assistance in returning to their
[last] place of residence in [name of country][in the same
manner provided for other citizens or persons with right of
permanent residency who become stranded abroad][when the country
to which the victim was trafficked does not provide such assistance].
The [Ministry of Foreign Affairs], through
its diplomatic missions and consular offices abroad, shall
publish and disseminate information on the rights of victims
of trafficking under the laws of [name of country] and the
country or countries for which the diplomatic mission has
responsibility both to the appropriate authorities in that
country and to possible victims of trafficking who are citizens
of [name of country]. In the case of diplomatic missions and
consular offices of countries of destination for trafficking
victims, such information shall be provided to appropriate
authorities and to potential trafficking victims who are citizens
or lawful residents of the country for which the mission or
office has responsibility.
Diplomatic missions of [name of country]
abroad shall appoint an officer to be responsible for implementing
and supervising plans and ensuring the provision of services
required under this section.
The [Ministry of Foreign Affairs] in cooperation
with [other appropriate authorities] shall develop plans within
[six months or other time period] of the adoption of this
section for the safe, orderly return without undue or unreasonable
delay of citizens or persons holding permanent residency in
[name of country].
§308 Verification of Citizen/Permanent
Resident Status and Age
Upon request by the appropriate authority or representative
of another State, the [appropriate authority] shall, without
undue or unreasonable delay, verify whether a person who is
a victim of trafficking in persons is a citizen, or national
of, or holds permanent residency in [name of country].38
Upon request by the appropriate authority
or representative of another State, the [appropriate authority]
shall, without undue or unreasonable delay, verify 1) the
age of a person who is a victim of trafficking in persons
and who is suspected of being a minor and 2) whether the victim
is a citizen, national of, holds permanent residency in [name
of country], or any other immigration status the victim may
have in [name of country].
The [appropriate authority] shall designate
an appropriate officer to respond to inquiries described in
(a) and (b).
§309 Return of Victims to the Country of Citizenship/Permanent
Residence39
Within [six months or other time period] of the enactment
of this legislation, the [appropriate authority] in conjunction
with [other appropriate authorities] shall develop plans for
the safe return to their country of citizenship or a country
in which they hold permanent residency. Where possible, the
appropriate authorities shall work closely with international
organizations and NGOs in this process.
Plans developed under (a) shall take into
account the right of victims to seek temporary or permanent
residence under the provisions of Sections 306(a) and (b)
and other rights guaranteed under other applicable laws.
§310 Victims Unable to Prove Citizenship Status Through
Normal Means40
Victims of trafficking abroad who claim to be citizens or
persons holding permanent residency in [name of country],
but whose identity cannot be verified through ordinary means,
can establish their right to return to [name of country] by
demonstrating significant connections to this country through
such factors as:
place of birth;
presence of family members;
presence of friends;
significant knowledge of specific geographical areas or neighborhoods;
long-term residence in this country;
native-speaker level understanding of spoken [insert name
of national language or languages]; or
any other means.
The list of factors in (a) is not exhaustive,
and not every factor is required to make the determination.
Determinations under this section are to be made with due
concern for compassion and justice to victims. The fact that
the victim would not be eligible for citizenship based on
the showing made under this section shall not be a bar to
reentry.
[Diplomatic missions abroad shall delegate
a specific diplomat to make determinations under this section.
Victims may appeal an adverse determination to the [Minister
of Justice or other appropriate authority].]
Where the appropriate authority determines
an individual is eligible to reenter [name of country] under
this section, the diplomatic mission abroad shall issue a
[Certificate of Identity], permitting reentry.
§311 Services for Returned Victims of Trafficking
Victims of trafficking who return from abroad shall have access
to educational and training programs provided by any governmental
or private entity without being differentiated from other
participants on the basis of having been trafficked;
Diplomatic missions and consular offices
in destination countries shall provide assistance to returned
victims of trafficking in securing restitution for their losses
under the laws of the destination country[, and every such
mission and office shall designate an officer to take responsibility
for providing this assistance].
§312 Appropriate Implementation for Child Victims
The provisions of Article III shall be provided to trafficking
victims who are children in a manner that is in the child’s
best interests and appropriate to their situation. Child trafficking
victims shall be provided with appropriate services, which
may include understanding of their rights, privacy, housing,
care, and age-appropriate support and rights specified in
Article III. Special programs should be developed to accommodate
child witnesses including:
testimony of minor conducted outside court setting or by video
all testimony and court proceedings take place with parent,
legal guardian or foster parent present
whenever safe and possible, children should be reunited with
family members either in country of origin or destination
country
special mental and physical medical care tailored to the child’s
needs
upon return to the country of origin or resettlement in a
new country, child victims of trafficking should be guaranteed
education which at least matches the general standard of education
in the country
Article IV
Misuse of Commercial Transportation
§400 Responsibilities of International Transportation
Companies41
International transportation companies must verify that every
passenger possesses the necessary travel documents, including
passports and visas, to enter the destination country and
any transit countries.
The requirement in (a) applies both to staff
selling or issuing tickets, boarding passes or similar travel
documents and to staff collecting or checking tickets prior
to or subsequent to boarding.
Companies which fail to comply with the requirements
of this section will be fined [insert appropriate amount].
Repeated failure to comply may be sanctioned by revocation
of licenses to operate in accordance with [applicable law][insert
reference to law governing revocation of licenses].
§401 Liability of International Transportation Companies42
When a transportation company knowingly transports victims
of trafficking into the country, that company shall be liable
for costs associated with providing accommodation and meals
for the victim and any accompanying dependent children for
the duration of the victim’s stay in facilities designated
under Section 305 and shall bear the costs of their transportation
either [to the national border] [or] [to the victim’s
point of departure] [or] [to a port of entry of the country
of which the victim is a citizen or in which the victim holds
residency][whichever is appropriate under the circumstances].
§402 Role of Government
Governments should take steps to educate
citizens about sex tourism. It should warn citizens that traveling
to another country to engage in sex with a minor or a trafficked
person may be a crime in the destination country or in the
home country, or may constitute child abuse. These steps should
include:
cooperating with airline industry, hotel
industry, taxi industry, and others to jointly produce educational
materials alerting them to evidence of sex tourism by their
customers and warning them against facilitating such behaviors
warning citizens and employees in the industries mentioned
in §402(1) that a crime may be committed when someone
engages in sex with a minor, sex tourism, or frequents a brothel
holding trafficked women and children
giving up to date information about the links between HIV/AIDS
and other STDs and trafficking.
§403 Measures to Ensure the Safety of Children Traveling
Unattended Across International Borders43
Operators or crews of commercial vehicles, including airplanes,
trains, and buses, shall hold the travel documents of children
traveling into [name of country] without a parent, guardian,
or other responsible adult from the time the child boards
the vehicle and shall surrender the documents upon arrival
to the appropriate immigration authority.
At every port of entry, the [immigration
authority] should, if practicable, provide officers to meet
children traveling without a parent, guardian, or other responsible
adult, receive the child’s travel documents from the
operator of the commercial vehicle, and assist the child in
passing through immigration and customs inspections. The officer
shall surrender the child only to a parent, guardian, or other
responsible adult upon presentation of [appropriate identifying
documents], and shall obtain a receipt indicating final destination,
purpose of travel, and identification and address information
of the receiving adult.
Operators or owners of commercial vehicles
delivering children traveling without a parent, guardian,
or other responsible adult into [name of country] shall pay
a fine of [insert appropriate amount] for every child that
arrives without necessary travel documents.
Article V
Prevention of Trafficking
§500 National Task Force for Prevention of Trafficking44
The [President, Prime Minister, or other appropriate authority]
shall establish an inter-agency task force to develop and
implement a National Plan for the Prevention of Trafficking
in Persons. Such a task force should include all aspects of
trafficking, including sex trafficking and labor trafficking.
The [Prime Minister or other appropriate
authority] shall appoint the members of the task force, which
shall include at a minimum the [representatives of] the Minister
of Justice, Foreign Affairs, Labor, Interior, [insert other
ministries as appropriate] and/or other appropriate high-level
government officials [including officials with responsibility
for law enforcement, immigration, and human and social services].
The task force shall carry out the following
activities either directly or via one or more of its constituent
ministries as appropriate:
Develop the National Plan for the Prevention of Trafficking
in Persons.
Coordinate the implementation of the Plan.
Coordinate the collection and sharing of trafficking data
among government agencies. All data collected shall respect
the privacy of victims of trafficking.
Coordinate the sharing of information between agencies for
the purposes of:
determining whether individuals crossing or attempting to
cross the international border of [name of country] with travel
documents belonging to other persons or without travel documents
are perpetrators or victims of trafficking in persons45; and
detecting criminal groups engaged in trafficking.
Identify and engage in efforts to facilitate cooperation with
foreign countries, particularly those which are a significant
source of victims, transit location, or destination of victims.
This cooperation shall aim to strengthen bilateral, multilateral,
local, and regional capacities to assist trafficking victims,
prevent trafficking, prosecute traffickers, and assist in
the appropriate reintegration of victims of trafficking.46
Establish policies to enable [name of country]’s government
to work with non-governmental organizations and other elements
of civil society to prevent trafficking and provide assistance
to victims.
§501 Data Collection and Dissemination47
The [appropriate authority] shall, in cooperation with [or
other appropriate authorities] collect and periodically publish
statistical data on trafficking.48
The [responsible authority] shall elicit the cooperation and
assistance of other government agencies, non-governmental
organizations, and other elements of civil society as appropriate
to assist in the data collection required under (a).
The appropriate authorities in each agency
that play a vital role in addressing trafficking shall make
best efforts to collect information relevant to tracking progress
on trafficking, including but not limited to:
numbers of arrests, prosecutions, and successful
convictions of traffickers and those committing trafficking
related crimes (pimping, pandering, procuring, maintaining
a brothel, visa fraud, document fraud, and other crimes related
to trafficking)
statistics on the number of victims, including age, method
of recruitment etc.
trafficking routes and patterns (country of origin, transit
countries)
method of transportation (car, boat, plane, foot)
border crossing issues (with fraudulent documents, without)
§502 Training49
The [appropriate authority/authorities] shall [provide][strengthen]
training for law enforcement, immigration, and other relevant
officials in addressing trafficking in persons.
Such training shall focus on
methods used in identifying victims of trafficking;
methods for prosecuting traffickers;
methods for protecting the rights of victims, taking into
account the need to consider human rights and special needs
of women and children victims, and that victims should be
treated as victims rather than criminals; and
methods for promoting the safety of victims, including, for
example, the training of police and immigration officers to
recognize victims of trafficking quickly.
The [responsible authority] shall seek the input and/or participation
of appropriate non-governmental organizations and other relevant
organizations in the preparation and presentation of training
called for in this Section.
§503 Public Awareness50
For those at risk of becoming trafficking victims: The [Ministry
of Education or other appropriate authority] in cooperation
with [other appropriate government agencies] and [appropriate
non-governmental organizations or other elements of society]
shall prepare public awareness programs designed to educate
potential victims of trafficking in persons and their families
of the risks of victimization. Such public awareness programs
shall include but shall not be limited to:
information about the risks of becoming a
victim, including information about common recruitment techniques,
use of debt bondage, and other coercive tactics, risk of maltreatment,
rape, exposure to HIV/AIDS and other sexually transmitted
diseases, and psychological harm related to victimization
in trafficking cases; and
information about potential victims rights in [name of country]
and in major destination countries and under international
law, as well as methods for reporting suspected recruitment
activities.
For Trafficked Persons: The [Ministry of
Justice or other appropriate authority] in cooperation with
[other appropriate government agencies] and [appropriate NGOs
or other elements of society] shall prepare and disseminate
educational materials designed to inform victims of trafficking
in [name of country] of their rights, the measures in place
to ensure their safety, recovery, and safe return to their
home countries, and how to contact appropriate law enforcement
authorities. Such materials shall include, as appropriate,
pamphlets, brochures, posters, advertisements in mass media,
and any other methods appropriate for reaching victims of
trafficking.
General Public Awareness: The [Ministry of
Justice or other appropriate authority] in cooperation with
[other appropriate government agencies] and [appropriate non-governmental
organizations or other elements of society] shall prepare
and disseminate public awareness materials designed to discourage
the demand that fosters the exploitation of persons, especially
women and children, and that leads to trafficking.
Such materials may include information on
the impact of trafficking on individual victims, aggregate
information on trafficking world-wide and domestically, as
well as warnings of the potential for criminal consequences
for taking part in trafficking. [Such materials may include,
as appropriate, pamphlets, brochures, posters, advertisements
in mass media, and any other appropriate methods.]
Privacy limitation: Materials described in this section may
include information on the impact of trafficking on individual
victims. However, any information on the experiences of individual
victims
shall preserve the privacy of the victim and the victim’s
family.
All public awareness programs established under (a) –
(c) shall be evaluated periodically to ensure their effectiveness.
§504 Exclusion of Persons Implicated in Trafficking51
The [appropriate authority] shall periodically identify, in
a public report, every person who is a trafficker of persons,
or who has knowingly assisted or conspired with another to
to traffic in persons.
Persons identified in reports under (a),
or whom an overseas consular official knows or has reason
to believe is a trafficker of persons, or who has knowingly
assisted or conspired with a trafficker to traffic in persons,
shall not receive an entrance or transit visa.
The visas of persons identified in reports
under (a) shall be revoked.
§505 Border Inspections52
The [appropriate authority] shall implement policies to screen
persons entering or leaving the country to determine if they
are victims of trafficking in persons.
Such screening shall be undertaken with consideration
for the right of individuals to travel, and shall not result
in undue invasion of the individual’s privacy or undue
restriction of the individual’s freedom of movement.
§506 Applicability of Labor Standards
Standards for working conditions specified in [insert reference
to appropriate law] shall apply equally to persons with or
without the legal right to work in [this country].
The [Ministry of Labor] shall investigate
complaints of unlawful working conditions without regard to
the immigration status of complainants and without regard
to the nature of the work or services involved.
Article VI
Security and Control of Documents
§ 600 Integrity of Travel and Identity
Documents53
The [appropriate authority or authorities] shall appoint a
[commission] to monitor the quality of travel and identity
documents issued by that authority to ensure that they comply
with International Civil Aviation Organization standards and
that they cannot easily be misused and cannot readily be falsified
or unlawfully altered, replicated, or issued.
The tasks of the [commission] shall include,
but not be limited to:
monitoring technical developments in the field of anti-counterfeiting
in order to recommend improvements to such documents as they
develop;
monitoring the issuance of travel documents abroad, with attention
to patterns of abuse such as misrepresentation, corruption
and fraud;
monitoring the issuance of travel documents domestically,
with attention to patterns of abuse such as misrepresentation,
corruption and fraud; and
forwarding examples of abuse described in paragraphs (2) and
(3) to the appropriate authorities for investigation.
§601 Verification of Legitimacy and
Validity of Documents54
Upon request by the appropriate authority
or representative of another State, the [appropriate authority/authorities]
shall verify within a reasonable time the legitimacy and validity
of travel or identity documents issued or purported to have
been issued by [such authority] and suspected of being used
for trafficking in persons.
The [appropriate authority/authorities] shall
designate an appropriate officer to respond to inquiries described
in (a) or to establish procedures for responding to such inquiries
in a regular and timely fashion.
Interpretive Notes
1 Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention Against Transnational Organized
Crime, (“Protocol”), G.A. res. 55/25, annex II,
55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol.
I) (2001), Art. 3(a).
2 Id., Art. 3(d).
3 Id., Art. 3(a).
4 United Nations Treaty Series vol. 266,
p. 3, Sec. 1, Art. 1.
5 See Interpretive Notes (travaux preparatoires)
to the UN Protocol, which states, “...where illegal
adoption amounts to a practice similar to slavery as defined
in article 1, paragraph (d), of the Supplementary Convention
on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery, it will also fall within
the scope of the Protocol.”
6 The reference to substance addiction is
intended to combat traffickers’ intentionally causing
victims to become addicted to substances as a means of exerting
coercive control over them.
7 Protocol, Art. 5 (State Parties obliged
to criminalize intentional trafficking in persons).
8 Id., (State Parties are obliged to criminalize
attempting to commit, participating as an accomplice, and
organizing or directing others to commit an offense). The
bracketed language will not be necessary if the laws of the
state party include general provisions for conspiracy, attempts,
and accomplice liability that apply to all crimes.
9 The range of sentences appropriate for
traffickers may vary greatly depending on the facts of a particular
case. Section 205 sets forth a list of factors that should
be considered by a court in determining the length of sentence
that should be imposed. Countries that have plea bargaining
may want a higher range (10 to 20 years) for trafficking.
Those that do not may be more comfortable with 5 to 10 year
ranges.
10 Id., at Art. 6(6), (State Parties obliged
to ensure victims’ opportunity to obtain compensation
for damages suffered).
11 Id., at Art. 3(c).
12 The UN Protocol does not require criminalization
of this activity, but this suggested provision may prove useful
in combating trafficking in persons.
13 The procuring of such documents is prohibited
to allow prosecution of travel agents and visa brokers who
knowingly arrange visas, passports, and plane tickets to facilitate
trafficking.
14 See Kosovo Regulations, Ch. I, §
3; see also 18 U.S.C. § 1592.
15 The UN Protocol does not require criminalization
of prostitution, but the suggested language may prove useful
in combating trafficking in persons.
16 Exploiting the prostitution of another
can be defined as obtaining of a financial or other benefit
from the prostitution of another person.
17 While some countries would prosecute the
offense of transporting a person for the purpose of prostitution
regardless of whether the offender receives any financial
or other benefit, other countries would require proof of exploitation
of the prostitution of another person.
18 Protocol, Art. 6 § (6) (State Parties
required to provide measures to enable victims of trafficking
to obtain compensation). Modeled on U.S. restitution statutes,
18 U.S.C. §§1593, 3663.
19 States may choose to include in their
statutes additional detail on the disposition of properties
forfeited under this provision. The following disposition
is recommended: “This property shall be sold at auction
by [insert appropriate authority] and the proceeds used to
fulfill restitution to the victim ordered under Section 203
with one-half of excess funds dedicated to the support of
victim services provided in accordance with Section 305 and
one-half directed to the support of agencies dedicated to
investigating or prosecuting trafficking.” For those
countries that do not have asset forfeiture provisions, civil
remedies may be an appropriate alternative. For those countries
that do not have asset forfeiture provisions, civil remedies
may be an appropriate alternative.
20 Trafficking in persons is a serious crime
that should be punished accordingly. The laws of numerous
countries provide for significant periods of incarceration
for convicted traffickers. For example, U.S. law was recently
amended to increase basic penalties for trafficking-related
crimes from 10 to 20 years. Enhanced penalties are warranted
in particular circumstances, such as where trafficking causes
injury, illness, or death. Such enhancements are consistent
with the Protocol’s purpose of protecting victims of
trafficking. See Protocol, Art. 2(a) and (b). The TVPA states
that sex trafficking through the use of force, fraud, or coercion
should be punished on par with sexual assault. In articulating
minimum standards for the elimination of severe forms of trafficking
in persons, § 108(a)(2) of the TVPA states, “the
government of the country should prescribe punishment commensurate
with that for grave crimes, such as forcible sexual assault[]”
for many forms of trafficking, including any trafficking for
the purpose of a commercial sex act. TVPA § 108(a)(2).
For an example of a similar enhancement, see Regulation No.
2001/4 on the Prohibition of Trafficking of Persons in Kosovo,
(“Kosovo Regulations”) Ch. I, § 2.2 (United
Nations Interim Administration Mission in Kosovo, January
12, 2001). Governments should adapt these enhancements in
a manner consistent with their own law and its treatment of
serious crimes.
21 Enhanced penalties where the trafficking
was part of the activities of an organized criminal group
or where the defendant organized or directed such a group
is consistent with the status of the Protocol as a supplement
to the United Nations Convention Against Transnational Organized
Crime. Protocol, Art. 1 § 1. For an example of a similar
enhancement, see Kosovo Regulations, Ch. I, § 2.3.
22 United Nations Convention against Transnational
Organized Crime, (“Convention”) A/RES/55/25, Article
2 (a). This definition is only necessary if the enacting country
has not previously inserted the Convention’s definition
of “organized criminal group” into its domestic
law.
23 Similar provisions may be useful to add
in criminal prosecutions other than for trafficking in persons,
such as in cases of sexual assault.
24 Protocol, Art. 3(b).
25 Id., Art. 2(b) (purpose of Protocol is
to protect and assist victims while respecting their human
rights); Art. 6(a) (State Parties obliged to protect privacy
of victim). See also Fed. R. Evid. 412.
26 Trafficking involves force, coercion,
deception, and or other similar means to obtain or maintain
the labor or services of the victims. These means should negate
the intent necessary to impose criminal liability on the victim
for acts that result from the trafficking. In some cases,
however, victims have been prosecuted for acts that resulted
directly from having been trafficked. This provision is intended
to prevent such prosecution, and is modeled on Kosovo Regulations,
Ch. III, § 8, except that the phrase “if the person
provides [evidence]” is omitted in order to avoid placing
the burden of persuasion on the victim.
27 As Congress wrote in Finding number 24
in the Victims of Trafficking and Violence Protection Act
of 2000, Pub. L. No. 106-386, 114 Stat. 1464: “Trafficking
in persons is a transnational crime with national implications.
To deter international trafficking and bring its perpetrators
to justice, nations including the United States must recognize
that trafficking is a serious offense. This is done by prescribing
appropriate punishment, giving priority to the prosecution
of trafficking offenses, and protecting rather than punishing
the victims of such offenses. The United States must work
bilaterally and multilaterally to abolish the trafficking
industry by taking steps to promote cooperation among countries
linked together by international trafficking routes. The United
States must also urge the international community to take
strong action in multilateral for a to engage recalcitrant
countries in serious and sustained efforts to eliminate trafficking
and protect trafficking victims.”
28 Id., Art. 6(5) (State Parties obliged
to “endeavour to provide for the physical safety of
victims while they are within its territory”).
29 See id., Art. 6(3). The reference to consultation
with victim advocates or other appropriate persons includes
non-governmental victim advocates.
30 Protocol, Art. 6(1) (State Parties obliged
to protect privacy and identity of victims to the extent possible
under domestic law).
31 Id., Art. 6(2)(a) (State Parties obliged
to provide information on relevant court and administrative
hearings as appropriate).
32 Id. Art. 6(2)(b) (State Parties obliged
to provide assistance to enable victims to present their views
and concerns as appropriate).
33 Id., Art. 6(3) (State Parties obliged
to consider providing such services to victims). In providing
such services, State Parties are urged to cooperate with NGOs
and other elements of civil society. Much of this section
is modeled on the Romanian Trafficking Law, Ch. 5. The general
goal of this section is to ensure that the human rights of
victims are protected, as called for in the Preamble to the
UN Protocol, and as generally incorporated throughout the
Protocol. This section is intended for source, transit, and
destination countries.
34 It is recognized that countries have varying
amounts of resources and that some plans will take longer
to implement than others, or that implementation may depend
on the availability of foreign financial support.
35 Regulations may be appropriate to state
that where victims reside in shelters or other facilities
established under this section, reasonable restrictions on
the time, place, or manner of such communications may be imposed.
Prior to receiving visitors, victims should be counseled that
they have the right to refuse to see the traffickers or the
traffickers’ associates.
36 Id., Art. 7 (State Parties obliged to
consider permitting victims to remain either permanently or
temporarily).
37 Id., Art 8(1), (4). This section is largely
modeled on the Romanian Trafficking Law, Ch. V, Arts. 28-30.
38 Protocol, Art. 8(3).
39 Id., Art. 8(2).
40 For a discussion of the difficulties faced
by persons who are unable to establish citizenship, particularly
hill tribe and long-term refugee women from Thailand, and
the recommendations on which this section is based, see Human
Rights Watch, Owed Justice: Thai Women Trafficked into Debt
Bondage in Japan, 118-123, 200 (2000).
41 Protocol, Art.11(3)-(4) (State Parties
obliged to adopt measures to prevent commercial carriers being
used in the trafficking in persons).
42 Modeled on Romanian Trafficking Law, Ch.
VI, Art. 47.
43 Traffickers of children often use fictitious
travel documents to enable children to board aircraft and
then destroy the fictitious documents enroute. See Carron
Somerset, What the Professionals Know: The Trafficking of
Children into, and through the UK for Sexual Purposes, pp.
22, 44 (ECPAT UK, Nov. 2001) available at www.antislavery.org/
homepage/resources/Children PDF.
44 Modeled on U.S. law, Victims of Trafficking
and Violence Protection Act of 2000, Pub. L. No. 106-386,
114 Stat. 1464, 1473-4.
45 Protocol, Art. 10 (1)(a).
46 Id., Art. 9(4).
47Id., Art. 9(2), 10(1)(b)-(c).
48 Such data should include but not be limited
to: (1) numbers and nationalities of persons trafficked into
or out of or transiting through [name of country] in the course
of being trafficked and the source, transit, or destination
country or countries of such persons; (2) purposes for which
the persons were trafficked including those set forth in Section
102; (3) means and methods used by criminals for the purpose
of trafficking in persons, including the recruitment and transportation
of victims, routes, and links between and among individuals
and groups engaged in such trafficking; (4) age and gender
of victims; (5) size, organization, and composition of criminal
organizations engaged in trafficking; and (6) types of travel
documents that individuals have used or attempted to use to
cross an international border for the purpose of trafficking
in persons. In implementing (a), the [responsible authority]
shall establish categories for the reporting of aggregate
data including but not limited to those defined in (a).
49 Id., Art. 10(2).
50 Id., Art. 9(5).
51 Id., Art. 11(5).
52 For a discussion of how attempts to identify
victims based on stereotypical thinking result in abridgement
of freedom to travel, see Owed Justice 196-200.
53 Protocol, Article 12.
54 Id., Art. 13.
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