The Implications of Gender and “Consent” with regards to the Crimes of Human Trafficking, Slavery, and the Slave Trade

[Coline Schupfer is an Associate Policy Officer at the Open Society Justice Initiative. You can find Coline on Twitter @colineschupfer. The views and opinions expressed in this article are those of the author alone and do not represent the position of any organisation.]

The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (“Palermo Protocol”), serves crime-fighting rather than rights-protecting purposes and is ipso facto sensitive to the ripples of political and economic considerations of security, defence, and migration control. Against this backdrop, this article analyses the transnational crime of human trafficking and the international crimes of slavery and slave trading, or “enslavement”, highlights the normative entanglement of their elements of crimes, and underscores the Palermo Protocol’s treatment of consent, which stands alone in its contemplation of situations where genuine consent is possible. Gendered and often sensationalised, human trafficking crimes continue to be intrinsically linked to sexual exploitation, with the fundamental difference being that while consent is a defence to sexual offences, with exceptions in cases involving children, it is not a defence in crimes such as slavery or slave trading, which are prosecuted based on the actions and intentions of the accused alone.

The international and transnational legal framework governing exploitation crimes

The Palermo Protocol defines trafficking as:

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.

As such, trafficking requires the satisfaction of three elements: (1) an act (the acquisition, movement, or maintenance of a person), (2) a means (such as force, coercion, or the abuse of power), and (3) an exploitative purpose. The act itself may not be criminal and initial acquisition or movement may even be voluntary. The Protocol recognises trafficking as a mechanism that allows exploitation to occur, but stops short of defining exploitation.

The trafficking definition mirrors and overlaps with the definition of enslavement as an international crime under the Rome Statute of the International Criminal Court, punishable as a crime against humanity if committed “as part of a widespread or systematic attack against the civilian population.”

Enslavement is defined as:

the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

The parallels to trafficking are particularly pronounced upon examination of the recognised indicia of enslavement, which include “psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”

At first blush, therefore, the methodology and factors deemed relevant for establishing ‘means’ or ‘exercise of the powers attaching to the right of ownership,’ as required for a finding of trafficking or enslavement respectively – are almost indistinguishable. This web of entangled narratives – vast in scope and age, can be traced back to the Nuremberg trials during which victim acquisition through recruitment or abduction (corresponding to the ‘act’ element of the trafficking definition) was heavily documented, as well as various acquisition techniques (akin to the ‘means’ element of the trafficking definition), such as “the use of force, propaganda and various ‘ruthless methods.’” More recently, the Trial Chamber in Kunarac found that although evidentiary proof of acquisition or disposal of a person is not a requirement for enslavement, it “is a prime example of the exercise of the right of ownership.” While acquisition techniques are more accurately viewed as characteristics of slave trading rather than slavery, courts including the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leona have routinely relied upon evidence of ‘capture’ or ‘abduction’ in the establishment of enslavement.

With regards to enslavement, the actus reus “is the exercise of any or all of the powers attaching to the right of ownership over a person” and the mens rea “consists in the intentional exercise of such powers.” The intent threshold for enslavement (dolus eventualis), however, is lower than for trafficking, which requires specific intent (dolus specialis). This elevated threshold is significant because it justifies a key distinguishing factor – whereas slavery/enslavement requires and envisages actual perpetration, exploitation need not have occurred to satisfy a prosecution under trafficking, which is a step ahead in criminalising the process of moving a person into a situation of exploitation, short of exploitation actually occurring. Similarly, with regards to the slave trade, actual perpetration need not have occurred, because the preparatory act (which itself may not be criminal), coupled with specific intent, i.e. a high intent threshold, is deemed sufficient to satisfy the elements of the crime.

Although the Rome Statute “continues the firm attachment to attributes of ownership enshrined in the 1926 definition,” the accompanying elements of the crimes concede “that certain practices not intrinsic to slavery could, under certain circumstances, become slavery.” In other words, the Rome Statute is firm both in its recognition of slavery de facto and de jure, as well as of trafficking, much like sexual violence or the slave trade, as an independent crime that can dovetail into slavery, and sometimes even become slavery. By corollary, the fons et origo of slavery mirror those of trafficking and necessarily include trafficking itself, with trafficking being a process through which slavery, servitude, and forced labour can occur.

In light of these commonalities, trafficking “should be definitively viewed by the same rubric of slave trading that was outlawed by the 1926 Slavery Convention.” Similarly, albeit contingent on satisfying the chapeau elements stipulated under the Rome Statute (i.e. to have been committed as part of a widespread or systematic attack), trafficking can largely be assimilated as enslavement.

“Consent” and the criminalisation of choicelessness

The historical backdrop of 20^th century campaigns against ‘white slavery’ squarely place notions of consent into context. Albeit a cultural myth – one that more accurately stands as an expression of the then prevailing societal anxieties around immigration, race, and female emancipation – the gender dimensions and prostitution ideologies that weaved through the ‘white slave’ narrative continued to pervade the trafficking discourse from the onset and throughout. Notwithstanding the recognition of all persons as potential victims, it has been argued that in the Protocol’s drafting process, negotiations were not only influenced by the paradigmatic example of the young female sex slave, but in fact a direct product thereof. In the Palermo Protocol, therefore, consent arguably becomes an issue “because it is largely seen as an instrument to protect the stereotypical ‘trafficked woman.’” Globally, the connection between trafficking and prostitution remains strong. In Brazil, for instance, trafficking is defined exclusively in terms of sexual exploitation. The overemphasis of trafficking as a sex-sector phenomenon risks fomenting unfair and inaccurate prejudices against other forms of trafficking, makes it political, and also complicates perceptions of consent – because in the field of prostitution, consent is sensitive to cultural variability and a whole host of biases. In some places, moreover, the law’s restrictive understanding of coercion and its inability to grasp its “complex subjectivity” can also mean that victims who are not found “chained to a bed in a brothel” will be left without assistance, deprived of legal protection.

The Palermo Protocol recognises two distinct groups of people – traffickers and trafficked victims, while concurrently alluding to a third group – individuals who consented to being trafficked. This third group find themselves “relegated to an uncertain status,” at the criminal precipice. Although the Palermo Protocol does not expressly provide for the criminal prosecution of trafficked persons, neither is it immune to good victim/bad victim dichotomies, prejudices, stereotyping, and victim-blaming attitudes. Effective victim identification, per contra, requires an environment of trust that provide safe spaces for victims to share intimate, traumatising experiences. While one may argue that consent is necessary to differentiate between the smuggled migrant, trafficked victim, and indentured servant, consent questions risk creating a climate of adversarial questioning, intimidation, secondary victimisation, and even criminalisation. As Gallagher explains – often, “victims of trafficking are simply invisible: When they do come to the attention of the state, they are commonly misidentified as illegal or smuggled migrants.”

Although it is widely known that displacement increases vulnerabilities to trafficking, that transit provides rife opportunities for abductions for purposes of trafficking-related exploitation, and that individuals in refugee and internally displaced persons camps are favoured targets of traffickers, distinctions between migrating and trafficking are “frequently misunderstood or completely ignored.” Instead, restrictive migration policies and a lack of safe migratory routes drive channels underground and enable trafficking. Pushbacks across the Mediterranean furthermore demonstrate not only the disconnect between migration governance and the legal obligation to identify and protect, but vividly highlight state complicity in trafficking, torture, and other rights violations. Amid rising xenophobia and anti-migration sentiments, seeking protection and assistance has also become distinctly more difficult. Such trends were observed both by the Special Rapporteur on contemporary forms of slavery, who notes that irregular migrants “are more likely to be treated as perpetrators of an immigration offence than victims of domestic servitude entitled to protection, assistance and redress,” and by the Special Rapporteur on trafficking, who emphasised that the focus on immigration control has funnelled “a crime prevention perspective, which does not place human rights protection at the centre.”

A case for prosecuting human trafficking crimes without the din of gender and consent  

Despite clear human rights implications, the Palermo Protocol, like its parent instrument, was never intended to be a human rights document, and has invariably been more attentive to the politics of borders, sovereignty, and security. In legal proceedings, ambiguous standards for ascertaining evidence create procedural barriers to prosecution. In addition to imposing a specific intent threshold (dolus specialis), the trafficking definition comprises a consent contingency, whereby considerations of victim consent factor into an assessment of the crime.Consent is irrelevant upon prior proof of ‘means’ or where the person is a child, in which case both consent and ‘means’ are deemed irrelevant regardless of circumstances. In the case of an adult, however, where consent is contingent on ‘means’, the ambiguity that pervades ‘means’ risks prolonging debates over consent.

In contrast, consent does not feature in the legal establishment of slavery or slave trading crimes – a calculation that only takes into account the actions and intentions of the alleged perpetrator. Although relevant from an evidentiary point of view, enslavement crimes are ultimately “characterised by the perpetrator’s exercise of power.” Curiously, therefore, while the assessment of enslavement crimes will solely contest the actions and intentions of the accused, once we lift the slavery sign and all the political and emotional weight associated with it, we step back into the profit-chasing, power-driven playing field – but this time, we trifle with questions of consent, and risk treating victims as players.

Although human trafficking, slavery, and the slave trade are legally distinct, strict legal formalism and biased frameworks risk creating artificial distinctions by gendering what is better understood as a continuum of crimes.  From a prosecutorial perspective, the trafficking definition under the Palermo Protocol is attractive by drawing on the liability of all potential perpetrators in the trafficking chain. Despite this, prosecution remains notoriously low. It’s time we interrogate and address this gap in implementation and protection in the context of the human impact of the hostile environment to immigration. It’s time to investigate and prosecute human trafficking crimes through strict application of non-penalisation principles, with the focus of inquiry – as in all other non-sexualised crimes – sharply on the actions and intentions of the alleged perpetrators. And it’s time to finally place human rights at the centre of anti-trafficking laws, policies, and interventions.