Ramos says that as long as women and girls continue to be a marginalized population, they remain vulnerable to human trafficking (Reporters Uncensored, 2010). The only way to diminish the marginalization of any population is to create and enforce equal rights and treatment of that group. In the case of Iran, the only way to stop the vulnerability of girls and women to human rights violations, including human trafficking, is to create and enforce equal rights and treatment of girls and women. This means discontinuing the segregation of women from men in public life, as equality in a separate-but-equal approach to any population is innately fictional. Unfortunately, bringing about equality for women in Iran is easier said than done. While Article 3 of the Constitution of Iran states that men and women have the same rights and protection under the law, it also makes clear that the principles of Islamic law
(shariah/shari’a)
are the supreme law. Article 20 states: “All citizens of the country, both men and women, equally enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic criteria” (Islamic Republic of Iran, 1979). This poses a significant challenge for the anti-trafficking movement, as religious law, not state law, prevails. So even if amendments were made to the constitution or if a Penal Code was adopted that equalized the sexes, these changes would be deemed null and void if they contradict Islamic law. Also, the Guardian Council, which is tasked with ensuring that laws passed by parliament are in accordance with Islamic law, would not approve it.
In 2012 the government adopted a new Penal Code. The text of the code illustrates the government’s objective to appease the international community but not make any significant changes. Soon after the code was adopted, a member of government and a government spokesperson announced that stoning and the execution of juveniles no longer existed in the code. It turns out that this is not true. Yes, children who commit crimes deemed to be less serious do not face corporal punishment, but those of maturity (girls who have reached the age of 8 years and 9 months and boys who have reached the age of 14 years and 7 months) who commit
hadd
offenses such as illicit (outside of marriage) sex (
zina
), theft, homosexual acts, or consumption of an intoxicant face the same sentencing as adults.
2
Under Islamic law,
zina
is punishable by 100 lashes or death by stoning. In the Penal Code, under the chapter on
zina
, unmarried persons who commit
zina
face flogging. Yet the chapter is silent on those who are married. This makes it appear as if stoning is no longer the sentence for married persons who commit
zina
, but a closer look at the code, specifically Articles 172 and 198, illustrates that the immutable sentence of stoning for married persons who commit
zina
still exists. Under Article 198,
zina
must be proved by the testimony of two just men and four just women for unmarried persons and by the testimony of at least three just men and two just women for married persons. As it stands now, both human trafficking and the moral crimes a victim may commit during the trafficking experience are criminalized. This means that persons who are trafficked and, for example, commit
zina
as a result of their trafficking experience can face flogging (if unmarried) or death (if married). Victims face detainment, punishment, and, if a foreign national, deportation for their moral crimes (Hosseini-Divkolaye, 2009; ODVV, 2009; Nayyeri, 2012).
WHAT HAPPENS TO VICTIMS AFTER TRAFFICKING
The State Welfare Organization for Social Affairs assists victims and those at risk of trafficking through social emergency centers, which provide health care, counseling, and legal services. In addition, the organization administers temporary housing facilities for women, which are available to, but are not specifically designed for, trafficking victims (Hosseini-Divkolaye, 2009). Iran does not have a process to identify trafficking victims, and law-enforcement officials do not differentiate between victims of trafficking and undocumented migrants. Overall protective measures for victims are still weak. As a result, victims do not typically receive the requisite support and protection that they need. Victims of human trafficking in Iran often face detention, deportation (if a foreign national), and punishment for crimes they committed during their trafficking experience such as illegal border crossing, prostitution, or extramarital affairs. One such case is the 16-year-old victim of human trafficking for commercial sexual purposes who was publicly hung for crimes against chastity that she committed during the trafficking experience (U.S. Department of State, 2006, 2010; Hosseini-Divkolaye, 2009; ODVV, 2009).
Female sex-trafficking victims face immense challenges in obtaining justice against their trafficker(s). The first challenge is the application in Iran of Islamic law, which maintains that a woman’s testimony is worth half that of a man.
3
For instance, under Article 198 of the new Penal Code, illicit—out of marriage—sex, punishable by flogging or stoning, may be proved by the testimony of two just men and four just women for unmarried persons and by the testimony of at least three just men and two just women for married persons (Nayyeri, 2012). The second hindrance is that women who have been forced to prostitute are vulnerable to execution for adultery (U.S. Department of State, 2010). The government does not encourage trafficking victims to aid law-enforcement authorities in their investigation and prosecution of trafficking cases. Victims from other nations are typically detained for a short time and then returned to their country of origin, where they may face hardship or retribution. The nation offers no legal alternative to deportation (U.S. Department of State, 2008b, 2010).
WHAT HAPPENS TO TRAFFICKERS
No amalgamated information on the total number of persons convicted of human trafficking offenses is available, but there is sporadic evidence that some traffickers in Iran have been convicted. Of course, it is difficult to know what this means in relation to the scope of human trafficking in Iran, particularly since internal trafficking and forced labor go mostly unacknowledged. In 2003, 53 Afghan refugee tribesmen were sentenced to a total of 281 years’ imprisonment, 222 lashes, and fines for ensnaring girls with marriage offers and then trafficking them to Pakistan for commercial sexual exploitation. Additionally, an Iranian court sentenced 27 people to from 14 months to 10 years’ imprisonment for trafficking of young girls to the UAE for commercial sexual exploitation. In 2004 a woman and her accomplice husband were arrested and convicted for trafficking young girls and women to work in a brothel in the northern city of Qazvin. In the same year, 20 members of a human trafficking ring in the city of Bileh Savar were arrested and convicted (U.S. Department of State, 2003, 2004). An international smuggling network based in Tehran was disbanded in 2007. The trafficking ring smuggled women and girls from Central Asia through Iran, and then to the Gulf states. Twenty-five people were arrested for their involvement in the group. It is unclear how many of the smuggled persons were trafficking victims. It is also unknown how many of these individuals were prosecuted and sentenced (U.S. Department of State, 2008a).
Officials have also been arrested for their involvement with human trafficking. Some members of the Islamic Revolutionary Guard Corps and the State Security Forces were arrested in 2006 for engaging in commercial sexual exploitation of children (some as young as 13 years old). The victims were also arrested, most likely for engaging in prostitution (U.S. Department of State, 2007).
Traffickers receive inconsistent sentences, ranging from three years’ imprisonment to death (U.S. Department of State, 2003, 2004). The variability results in part from whether the Penal Code or the anti-trafficking law is applied. For instance, if the Penal Code applies, those who encourage or facilitate people to enter prostitution or promiscuity face 1 to 10 years in prison, which is not much different than sentences under the Anti–Human Trafficking Law. But if the offense is held to jeopardize the moral health, values, and social security of Iran, then offenders face increased punishment or death. If the Penal Code does not apply, then the extent of punishment is determined by the Anti–Human Trafficking Law, which imposes between 2 and 10 years’ imprisonment and a fine. The fine is either twice the amount earned by the offender or the amount promised to the offender by a third party (Fehresti, 2010). Under Article 8 of the Anti–Human Trafficking Law, all assets, whether movable or unmovable, are to be seized by the government. Zahra Fehresti, the author of an analysis of trafficking legislation in Iran, has suggested that victims could be reimbursed with the seized assets (Fehresti, 2010). This step has not yet been taken by the Iranian government, but it would surely be a useful strategy.
INTERNAL EFFORTS TO DECREASE TRAFFICKING
Although some portions of the Penal Code address offenses related to human trafficking—such as abduction and procurement of sex—there was a clear need for a more comprehensive anti-trafficking law. The 2004 Anti–Human Trafficking Law filled in some of the gaps. For instance, the Anti-Trafficking Law does not permit consent by the victim to reduce a trafficker’s liability. The result is that any contract that undermines a person’s basic rights—such as dignity or moral qualities—is rendered void (Fehresti, 2010). But although the Anti–Human Trafficking Law has been ratified, it is not effectively enforced. Specifically missing from the law is a mechanism to coordinate law-enforcement (UNODC, 2007).
The Anti–Human Trafficking Law comes into play only if the Penal Code does not cover the offense. Furthermore, the Anti–Human Trafficking Law is deemed invalid in instances in which it contradicts Islamic law, which is considered the supreme law (Fehresti, 2010). Additionally, there is a lack of continuity between the Anti–Human Trafficking Law and the Penal Code. Under the Anti–Human Trafficking Law, an offender who traffics a person younger than 15 years of age faces a maximum of 10 years’ imprisonment. Under the Penal Code, the same offender faces a maximum penalty of 15 years’ imprisonment (Islamic Republic of Iran, 1991). The same is true in instances of attempted human trafficking. The punishment for offenders who initiate “coercion, threat, or force the victims to comply against their wills but fail to do so due to factors out of their control” (Anti–Human Trafficking Law) or who attempt “conspiracy against lives or assets of people even if it fails” (Penal Code) can face different sentencing for the same crime. Sentencing ranges from 6 months to 2 years, 6 months to 3 years, or 3 to 5 years’ imprisonment depending on whether the Anti–Human Trafficking Law or the Penal Code is used (Fehresti, 2010).
Another concern is that the Anti–Human Trafficking Law appears to be based on the notion that human trafficking involves transit—either in or out of a country. The premise that trafficking includes actual transport of a person is a common misconception that can be detrimental to the nation’s anti-trafficking measures. It can also further marginalize persons trafficked within Iran. One step that could help to create continuity between law and practice is for Iran to ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. This step would push the government of Iran to create a uniform definition of human trafficking within Iran as well as create continuity of law between Iran and nearby nations that are signatories to the protocol such as Armenia, Azerbaijan, Oman, Saudi Arabia, Turkey, and Turkmenistan (UNODC, 2008).
Contradictions exist between the definitions of and penalties for trafficking and trafficking-related offenses, and there is an inconsistent pattern in the arrest, prosecution, and sentencing of traffickers. Victims consistently face arrest and punishment for crimes associated with their trafficking experience. As indicated by the Iranian delegate at the February 2010 Trafficking in Persons Working Group in Vienna, who stated that the government of Iran would not accept recommendations that called for absolving trafficking victims of their crimes, this state of affairs is not likely to change in the near future. The delegate stated that while the victim status of a woman in prostitution might be taken into account by the judge, he opposed the idea that such a woman should not be prosecuted (U.S. Department of State, 2010). This creates a situation in which victims are understandably fearful of seeking justice against their trafficker because, once the incident is reported, the victim is under scrutiny and punishable for crimes committed under duress. The term
gender apartheid
, used by attorney Norma Ramos to describe the situation of women in Iran, may sound extreme, but the unequal standing of women and men has laid the foundation for a highly marginalized population. Women and girls are not only limited in their daily endeavors such as walking in public or riding the bus but also in the eyes of the judiciary, where the testimony of a woman is worth half that of a man. The result is that human trafficking cannot properly be addressed simply through anti-trafficking laws. In order to take steps toward the elimination of human trafficking, Iran must adequately address the contradictions that exist between policy, religious law, and the social practice toward women.
PART VII
Social Hierarchy
In some nations a strict social hierarchy creates a marginalized population that is immensely vulnerable to exploitation, including human trafficking. In other nations the social hierarchy subjects people to hereditary slavery wherein a person faces indentured servitude or slavery upon birth. To be clear, slavery is human trafficking; the exploitation included in the definition of human trafficking is “at a minimum, the exploitation of prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs” (United Nations Convention Against Transnational Organized Crime, 2004)
.