this book demonstrates the need for a more inclusive framework for understanding human trafficking. Victim voluntariness, their unmet expectations, a nuanced understanding of what amounts to a vulnerability or risk-factor and the drivers of migratory decisions are lost when a criminal-justice oriented definition is the guiding framework for our understanding of trafficking in all contexts.
my focus in this chapter, however, remains on the legal treatment of human trafficking. Here I explain why courts should take into account the ‘unmet expectations’ of victims that are formed on the basis of their negotiations1 prior to departure or upon arrival in the destination country. While several authors have asserted the need to move away from a criminal justice framework, this simple assertion occludes the problem that arises in the migration framework.
It is essential for such a migration-centred approach to retain a central concern for injustice and exploitation at its core. The notion of unmet expectations is a potential path for its implementation.
recognising and analysing the expectations of the migrant that were in fact set by the would-be employer, recruiter, transporter etc., could help courts to establish the redress to which victims are entitled. This was seen in the Australian case of R v Dobie (2010) in which the Supreme court of Queensland used evidence of the victims’ negotiations with their trafficker – by email and text – about their conditions of work in Australia to determine the extent to which the intention of mr keith dobie differed from the expectations that were created in the minds of his Thai victims.
An alternative definition of trafficking is provided in this chapter. In endeavouring to develop such a definition, one point needs reiterating. This concerns the variable levels of autonomy exercised by individuals when making decisions and how these variances reflect upon victim responsibility and redress.
As I have argued throughout this book, evidence of a victim’s voluntary role in making decisions that lead to exploitative labour should never render ‘victimhood’, or redress, impossible. A victim’s negotiations with their trafficker(s) and their expectations concerning work and living conditions in destination countries are highly relevant in establishing their entitlement to, and scope of that redress. In this respect, strictly from a legal point of view, the Trafficking Protocol is correct –
1 One challenge that arises is the question of whether such negotiations are explicit.
In some cases, victims may have simply accepted the conditions that were offered to them.
although its definition is not faultless – in preventing such consent from being used in a trafficker’s defence where there is evidence of fraud or deception. However, from a social sciences perspective, this consent is central to our recognition of the ‘victim-agent’ whose autonomous decision-making discredits the naive and unknowing victim archetype.
turning to Principles from contract law: Unmet expectations, deception and redress
If we wish to retain the law as our lens for analysis, a contractual approach to trafficking may offer value. When one enters into a contract to buy a house, or – to better parallel the nature of human trafficking – a contract for employment to work as a waitress or a construction worker, the contract may be rendered void if the conditions of work are misrepresented or if the potential employee is deceived as to the nature of the object of the contract. While the agreement may have initially been entered into voluntarily by a migrant seeking social or economic betterment at the destination point, the individual may be recognised as a victim of fraud or deception and entitled to compensation in some circumstances. In my view, trafficking – when analysed from a legal perspective – should be considered from a similar lens. Indeed, I suggest that the Trafficking Protocol’s inclusion of such concepts as ‘fraud’ and ‘deception’ permit the adoption of a contractual approach to trafficking.
This ‘contractual’ perspective to trafficking has multiple advantages. By adopting this approach, we move beyond the current emphasis on criminal law enforcement, which is often aimed at identification and prosecution of traffickers rather than support and redress for victims. We avoid other shortcomings in this criminal justice framework, which has also been misused to rescue, rehabilitate or criminalise non-trafficked, voluntary sex workers. Most importantly, the contractual approach provides us with the conceptual tools to recognise women’s agency in a situation of trafficking. Some women do migrate irregularly for economic betterment based on some process of rational decision-making and their expectations about opportunities away from home. There tends to be little hesitation to recognise this in relation to men. I believe that evidence of such agency and voluntariness should not be a barrier to prosecuting traffickers.
A more migration-centred definition may also be better suited to non-legal discourse as well.
A more appropriate definition of trafficking – particularly when compared to that offered in the Trafficking Protocol – would be:
A process by which a person, whose origin is Point A, has:
(a) been moved (recruited in their home country,2 transported, transferred, harboured along the way or received in the destination country) to point B for the purpose of exploitation; or
(b) has consensually travelled from point A to B, but whose induced expectations created during the period of negotiation are unmet (i) upon arrival in point B or (ii) at some stage while residing in point B, in a way that his or her situation in point B rises to the level of exploitation.
Such movement may be within the country of origin or across borders. Unmet expectations of the victim may arise from deception or lack of information regarding living and working conditions in the destination country.
I propose the following definition of a victim of trafficking:
A migrant:
(a) who is coercively moved to the destination country; or
(b) whose induced expectations of work and life abroad are unmet, either (i) at the point of arrival in the destination country or (ii) at some stage while residing in the destination country, placing the victim in a situation of exploitation.
The fact that a potential migrant has engaged in some process of self-determined decision-making about their migration and expectations of work and life abroad, prior to departure, should not be seen as a reason to deny their victimhood.
The latter part of this definition highlights the fact that, although I emphasise evidence of voluntary or consensual movement throughout this book, at no point do I contend that the men and women identified during my research are not victims of trafficking. To express this idea, I have coined the phrase ‘voluntary victim’.
This concept reflects the increasing evidence of non-coerced recruitment and/or transportation of victims at the preliminary stage of the trafficking process and provides a vivid image to contrast the kidnapped victim archetype. This apparent oxymoron also addresses, in part, the concerns of many academics with how to recognise both agency and victimhood simultaneously.
Here also the ‘spectrum of migration’ offers much value. This lens of analysis recognises the divergence of experiences that fall within its parameters, including
‘trafficking’ i.e. failed migration and also recalls the importance of migrant expectations. If we accept the subjective view of the individual migrant of what
2 It is unclear whether the use of the term ‘recruitment’ in the Trafficking Protocol meant pre-departure recruitment. Further confusion arises from the lack of any interpretive materials on the ‘action’ element of trafficking (Gallagher, 2010: 29 footnote 74). However, if we read the term recruitment in its context, as we are expected to do under the basic principles of interpreting legal text, the language suggests pre-departure recruitment, after which would follow transport, transfer, harbouring and then receipt.
constitutes a satisfactory meeting of their expectations when embarking on the search for work abroad, we would be looking at ‘success’ from their point of view. Success might constitute economic betterment for themselves and/or for their families (remittances); it might be linked to new experiences for themselves (socially and economically); or as observed in countries like Ghana, it might involve something as intangible as social prestige (the ‘burger mommy’), particularly upon returning home. Recognising such factors requires a victim and migration centred perspective more than a criminal justice one.
legitimate and non-legitimate expectations
The above critique and the introduction of principles from contract and labour law still requires us to define the perimeters of what will and will not constitute a case of human trafficking.
From a legal perspective, courts should take into account these ‘unmet expectations’ of victims that are formed on the basis of their negotiations prior to departure or upon arrival in the destination country. However, two challenging situations arise. The first is where potential migrants have excessively low expectations, that is, they accept conditions that by social standards involve unacceptable levels of servility. The second is where the potential migrant has unreasonable expectations.
As to the first, I would contend that we would need to clearly specify what society deems to be unacceptably exploitative situations. The rational of John Stuart Mill is helpful in establishing the boundaries of these standards:
In this and most other civilized countries, for example, an engagement by which a person should sell himself, or allow himself to be sold, as a slave, would be null and void; neither enforced by law nor by opinion … the reason for not interfering, unless for the sake of others, with a person’s voluntary acts, is consideration for his liberty. His voluntary choice is evidence that what he chooses is desirable, or at the least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it.
But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it, beyond that single act … The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom. (Mill, 1859: 299–300)
Based on the meaning of liberty, we cannot accept that a decision to enslave oneself is a voluntary contractual transaction that needs to be upheld. Rather such a decision must be nullified. In terms of defining the criteria for unacceptable, servile conditions of work, the definitions offered in the Slavery and Supplementary Slavery Conventions are helpful. Cases may be instances of slavery or may be cases of both trafficking and slavery. Any offer of employment involving such
conditions as enslavement, debt bondage, serfdom, servile marriage or child servitude – as defined in the Slavery Convention and Supplementary Slavery Convention – even where they are accepted and tolerated by the individual victim, should be treated as exploitative and contested. Based on the analysis in this book, the cases that fall in this category sit at the extreme end of the migration spectrum and are less representative of the majority of cases verified by the empirical data.
Nonetheless, research by Bélanger offers further considerations. In Vietnam, several returnees expressed the view that having to work for 6–18 months to reimburse expenses – i.e. to pay off a debt – was a reasonable cost of migration (Bélanger, 2014: 102). Not only does this highlight the transactional and calculated nature of movement but it also gives further additional guidance for defining the framework for ‘reasonable’ and ‘unreasonable’ expectations. Specifically on this question of debt bondage, further data collection is needed to establish the boundaries of reasonableness, taking into account mill’s guidance above that it is not freedom to be able to alienate one’s freedom.
As to the second challenge of unreasonable expectations, this is easier to address in practice than to describe in abstract terms. A social and legal standard of reasonableness must be specified. This may include setting standards about what may be reasonable remuneration, hours and conditions of work. However, the notion of unmet expectations rests on the victim’s expectations created through a process of negotiation. If a person is given reason to believe that their expectations will be met, even where such expectations are ‘unreasonable’ and a more rational person would not have believed them to be true, the individual may or may not be a victim. Such a situation would need further exploration.
courts may draw on principles such as the ‘reasonable person’3 as is commonly applied in law while analysing the particular circumstances of the victim who was led to believe that their unreasonable expectations would be met. This, for example, would allow judges to take into consideration factors such as lack of basic education, psychological vulnerability or extreme poverty, if and when they prove to be relevant, when looking at the individual case.
labour laws: exploitation and regulating conditions of Work
It is important to reiterate the overarching principles of human rights law that must govern any analysis of trafficking. Trafficking of men and women, by its 3 The principle of the reasonable person, often referred to as the ‘reasonable man’, is a common law concept that applies an objective standard against which the reasonableness of a person’s behaviour, perspective or interpretation is assessed. A particular challenge of applying the reasonable person test in the context of trafficking is whether to apply a standard of what is reasonable in the source country – most likely – or at the destination point. In the case of R v Dobie, discussed earlier, the courts considered the victim’s experiences as sex workers in their home country, thailand, to establish their expectations for work and life in Australia.