CASE STUDIES DESLIE BILLICH JANUARY 2016 IOWA

PURPOSE OF THE CASE STUDIES These are rather simple exercises the purpose of which is simply to engender discussion on this complex crime, highlight issues of identification, when is an offence smuggling or trafficking, and how evidence can be gathered, and for what purpose. They focus principally on work related trafficking scenarios There are three case studies

Case One: Niran, a young Myanmar man from a poor family is recruited to travel to a nearby country to work in the fishing industry. He is promised by the recruiter that he will live in good accommodation, he will be provided with all his meals, will be taught basic English and will be able to send money/remittances home to his family. He is also promised that the work will continue for at least 12 months. Niran agrees with the recruiter that a portion of his pay each month, for a period of 6 months, will be used to meet the transportation costs incurred for his travel. In effect he is required to pay back to the recruiter the costs of his travel to this country. Niran agrees to all these terms and enters the country legally with a work visa. The recruiter obtained the work visa for Niran. 3

When Niran arrives he is housed in an unventilated container with six other workers. His meals consist of rice and nothing else, and even then maybe only once a week. The workers come from different countries. They all seem to live in similar conditions to Niran. There is a language barrier in some cases but not all. He is not given any safety equipment; he receives no training, he is at sea working for months at a time, and does not receive the English language training he is promised. Some money is taken from his monthly salary to meet the transportation costs and this continues beyond the six month period, but he is still able to send a very small amount home every month. 4

When Niran arrives at his place of work he no longer has any contact with the recruiter. His only contact then is with his supervisor, who he does not understand very well as he speaks another language. Niran takes all directions from this supervisor. The supervisor also pays him. Niran does not believe he is the owner of the fishing vessel, but he seems the only man in authority. Niran complains to him about the breach of the conditions promised by the recruiter, and the supervisor says he is not aware of any of the conditions as he was not involved in that process and that the recruiter only deals with the owner of the fishing vessel. 5

What Questions Might You Ask? Have you sufficient facts to determine this? If not, what other facts would you need to know? What other questions would you need to ask? Is he receiving minimum wage? Does he have his passport? Is there any force, fraud, or coercion? Would this be considered debt bondage? If not, what further facts would you need? He consented- so is this smuggling? He did have a valid work visa. Does this make a difference? Teaching points- unsafe working conditions alone do not create a trafficking victim. Discuss how different facts could turn this into an TIP case. (If it is not already) Evidence of human trafficking could be the following: (a) Withholding his passport; (b) paying less than minimum wage; (c) extended working hours (d) any evidence of force, fraud or coercion in getting him into the country; (e) logs showing no diminution in his debt despite his work; etc. As a law enforcement officer, or prosecutor, what would you need in terms of evidence to establish a crime of trafficking? Who would you charge? The recruiter? The employer? What concerns might you have if you were a prosecutor? If you were a law enforcement officer, how would you locate the owner of the vessel? What investigation hurdles might you have? What if the vessel was registered in another country? 6

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8 Case Three: The police raid a brothel in August 2014 and found five men and two girls. The police take all seven persons into custody and transfer them to the police station. After interviewing all seven persons police arrest and charge the five men for using the services of a prostitute. The men say that they were not using the services of the prostitutes. They say they were simply “hanging around”. At this point the police cannot find any evidence that the five men were involved in trafficking of the girls. The police obtain statements from the two girls, who say that they were kept at the brothel against their will, had their travel documents taken from them, and were forced to commit sexual acts for clients. They say they were not paid. The girls were released.

9 The police did not arrange for a medical examination of the girls. The principal reason for this is that the hospital was over 40 kilometres away and that it was the middle of the night. The police suspected that one of the girls was underage, despite the fact that she told the police she was 19 years of age. The police did not make any further enquiries regarding her age. The girls did not hear again from the police. They provided initial statements and were then advised when the matter was to be heard in court. In court the prosecutor did not file the girls’ statements. No further follow up was made by the police.

DIFFERENCES BETWEEN THE TWO CASES 10 Is either or both Trafficking in Persons? Have you sufficient facts to determine this? If not, what other facts would you need to know? In Case One what about the child prostitute? Is there any difference in how a child victim of trafficking is treated? What if anything further would you need to know about the child in Case Two? Would the clients in Case Two be guilty of trafficking in persons? Would the man who collected the money be guilty of trafficking in persons? In Case Three is there any difference between this factual circumstance and Case Two? If so, what? With the girl who was above 18 what are the elements that need to be established to satisfy an offence of trafficking in persons? Were they present? What if she voluntary agreed to be a prostitute? Can the child voluntarily agree?

11 Case Four: Identification of a victim of trafficking, what is force/coercion- M is a citizen of Indonesia where she worked as a prostitute to support herself and her two-year old son. But she finds she is not making enough money to support her family. She is ultimately recruited to continue her profession in Thailand in an area where the tourist industry is high, and where her return would be greater. She uses a recruiter who makes all the arrangements for her to work in one establishment. However, not long after she arrives she is moved from one establishment to another. She does not like this. She is usually transported with two or three other girls. The girls come from different countries. There are dedicated drivers. At each establishment there is a different front of house man or woman. She ahs little to do with any of them.

12 She normally provides sexual services for foreign men. The hours are long, and she gets very tired. The front of house man from the first establishment is her pimp. She is told by him when she arrives that she is required to turn all of her earnings to him as he had arranged her travel from Indonesia to Thailand. She hands over her money every day and receives $2 a day back from him for her own incidentals. She services up to 30 clients a day. She witnesses the clients paying large amounts of money to the pimp. She is treated poorly and is even making less money than when she was in Indonesia. She wants to leave but she witnesses her pimp beating and raping girls who try to leave. She retains her own travel documents.

Trafficking? Smuggling? Unfair work conditions? Is M a human trafficking victim? Has she experienced, coercion? Has she been physically abused? Is she being exploited? She did contact the recruiter herself. Is there force, fraud, or coercion? If yes, what facts constitute force, fraud or coercion? If no, what facts would be needed to show force, fraud or coercion? If M had not witnessed any violence or rape, could she still be a human trafficking victim if there was any other form of coercion (e.g., confiscation of her passport or other documents; extraordinary debts based on provisions; etc.) 13

Trafficking? Smuggling? Unfair work conditions? Does it make a difference that M was a prostitute in Indonesia and knew she would be a prostitute in Thailand? Explain. What if M was under age? Would it make a difference? Explain. 14