Prosecuting Trafficking in Persons: Known Issues, Emerging Responses

This paper is the second in a series that examines the different components of the criminal justice response to trafficking in persons. Specifically, this paper seeks to identify some of the practical issues that may affect trafficking prosecutions, such as unclear legal frameworks, the transnational nature of trafficking, and reliance on often traumatised victims as witnesses who may also be unwilling or unable to participate in prosecutions. Proposed strategies to support or improve prosecution practice include legal reform, protection of witnesses and specialist training for prosecution units. There has been limited research on trafficking prosecutions - and given the complexities of transnational cases - it seems important that priority is given to building an evidence base that draws on experience and primary data. Judy Putt General Manager, Research Background A review of the literature suggests that internationally, there has been limited research on the practice and experience of trafficking prosecutions. For example, there appear to have been few studies that have sought to systematically examine issues such as: * who is being prosecuted, and for which types of 'trafficking' crimes * how these cases are being prosecuted and defended; for example, what charges are laid, what evidence is presented in court, what protections are made available to witnesses, what defences are relied upon, and case outcomes * the factors that may impact on the conduct or outcome of trafficking prosecutions; for example, jury attitudes, legal complexity or perhaps the type of 'exploitation' alleged * the experience of participating in a trial, either as a trafficked person giving evidence, a witness, a person accused of 'trafficking', or as a prosecutor or defence lawyer. This lack of research may reflect the newness of the crime type or perhaps difficulties accessing relevant data. Hopefully in time, research will emerge that analyses these issues, drawing on primary data from, for example, trial observations, interviews with prosecutors and defence lawyers, and trafficked persons who give evidence in court. In the interim, what information is available about the conduct and experience of trafficking prosecutions? Much has been written about legal and policy frameworks. These studies provide insight into the structural context for trafficking prosecutions and, in some cases, insights into practice. There is also literature on factors that impact on trafficking prosecutions, such as investigative practices and victim support mechanisms. A small amount of information is available from training materials and other documents about how some countries are seeking to structure, train or resource their prosecution services to respond to trafficking in persons. In Australia, some information can also be derived from court reports and transcripts from trafficking prosecutions (i.e. trials involving charges laid under Divisions 271 and 272 of the Criminal Code (Cth)). While the available information is limited, it is nonetheless possible to identify some of the issues that have arisen in prosecutions to date, particularly in the United States and Australia, along with responses to these issues. As there are many issues that might potentially impact on a prosecution process, it is likely that this list will continue to grow and change, particularly as more research is undertaken. Factors affecting trafficking prosecutions Legal frameworks Laws are the basis of any prosecution process. Prosecutors will have great difficulty prosecuting traffickers and securing appropriate penalties if legal frameworks are incomplete, unclear or inadequate. Until recently, many countries either did not have specific criminal offences relating to trafficking in persons (a term defined in the United Nations Trafficking Protocol) or their laws were incomplete; for example, laws focused solely on women and children as victims, and trafficking for the limited purpose of sexual exploitation. …