It is important to understand the irrelevance of consent: Article 3(b) of the Trafficking Protocol states that a victim’s consent to exploitation is irrelevant when the trafficker has used “means”. It is always irrelevant when the victim is a child, for whom no means element is required. Practitioners should understand that victims of trafficking may have voluntarily entered into trafficking situations and appear to have consented to exploitative practices but should still be considered victims of trafficking.
A mandatory requirement of the Trafficking Protocol is for States Parties to criminalize trafficking in persons. Unless trafficking in persons is a crime in domestic law, there is a risk that other crimes that exist in the law will not be sufficient to bring traffickers to justice, allowing the ongoing exploitation and abuse of victims to go unpunished. Where trafficking in persons is not criminalized, or is not criminalized in a way that aligns with the Trafficking Protocol, trafficking may be treated as a less serious crime, international investigative cooperation may be hampered, and victims may be denied access to the full package of rights that they should be entitled to as victims of human trafficking
As defined by the Trafficking Protocol, three elements must be present to constitute the crime of trafficking: An act of the trafficker, by particular means, for the purpose of exploitation. However, if the victim is a child, trafficking in persons is established with only an “act” and exploitative “purpose”; the “means” element is not required (article 3[c] Trafficking Protocol). Further details in the Introduction.
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Table 1. The elements of the crime of trafficking in persons
To Go Further
- United Nations Office on Drugs and Crime (UNODC), Issue paper: The role of “consent” in the trafficking in persons protocol, 2014.
Policy Approaches
Criminalizing trafficking in persons and related criminal offences
- Include the elements of the crimes (act, means, purpose) in national legislation, and also provide effective punishment (article 5 of the Trafficking Protocol).
- Establish that the crime occurs when a trafficker uses “means”, even if the victim has consented (article 3[b] of the Trafficking Protocol).
- Establish in legislation that, in the case of children victims of trafficking, the element of “means” is not required for the crime of trafficking in persons to occur.
- Criminalize the acts of attempting to trafficking in persons, participating as an accomplice and organizing or directing others to commit a trafficking offence.
- Criminalize other crimes related to the crime of trafficking, such as participating in an organized criminal group, laundering the proceeds of crime, corruption, and obstruction of justice.
- Establish extraterritorial jurisdiction in relation to trafficking and related offences.
- Enact extradition and mutual legal assistance laws. See the United Nations Office on Drugs and Crime (UNODC) cooperation tool, an online directory of competent national authorities for extradition requests and mutual legal assistance.
It is also good practice to ensure that law, policy and practice guard against the risk of victims being punished or otherwise penalized for crimes that they may have committed as a direct result of being trafficked. For instance, in situations in which victims of trafficking are migrants, they may have illegally crossed borders, overstayed visas, or committed some other violations of law in the course of being trafficked transnationally. Some are exploited in activities that are illegal in some countries, such as drug cultivation or the sex industry.
Policy Approaches
Non-punishment of victims of trafficking
- Promote legislation that protects victims of trafficking from criminalization for offences they may have committed as a result of being trafficked.
- Encourage involvement of victims in investigations and prosecutions of traffickers.
- Ensure that victims are not detained in immigration or other facilities. Such detention can constitute a form of revictimization that can impede their recovery.
Key messages
- When States define the crime of trafficking in persons in accordance with international law, it facilitates international cooperation on counter-trafficking.
- Trafficking is a three-element crime, involving an act, means and purpose, unless the victim is a child, in which case only an act for an exploitative purpose needs to be established.
- Where trafficking is not criminalized, or is not criminalized in line with the Trafficking Protocol, trafficking may be treated as a less serious crime, international investigations may be hampered, and victims may be denied access to the full package of their rights.
- A victim’s consent to exploitation is irrelevant when the trafficker has used “means”. It is always irrelevant when the victim is a child.
- Victims of trafficking should not be punished or penalized for crimes they have committed as a direct result of having been trafficked, including immigration-related offences.