INTERNAL EFFORTS TO DECREASE TRAFFICKING
South Africa ratified the United Nations Palermo Protocol in February 2004, but the protocol does not encompass all forms of trafficking specific to South Africa. The language in the pending anti-trafficking bill expands upon the UN protocol in order to address the forms of trafficking that are specific to South Africa. For instance, the bill covers forced marriages, child labor, the trafficking of body parts, and trafficking within national borders, as well as the impregnation of a female against her will for the purpose of selling her child when born. Other forms of trafficking covered under the bill are debt bondage, forced labor, removal of body parts, servitude, and sexual exploitation (NPA/HSRC, 2010).
Knowing the extent of human trafficking in a nation is essential to determining the optimal means to combat it. The 2010 NPA report emphasized that there is a dearth of empirical research on human trafficking in South Africa (NPA/HSRC, 2010). According to Carol Bews, obtaining accurate statistics on
any
crime in South Africa is a challenge: “Rape, child abuse, and child sexual abuse are all reportable conditions, but the government statistics on them are either nonexistent or absolutely unbelievable. It is estimated that in South Africa one in three children are sexually abused. We have a specialized unit, and we see the numbers that come in of persons requiring services. But when you put that together with the low numbers from the police, it just doesn’t add up.”
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Nde Ndifonka said that obtaining statistics related to human trafficking is a daunting task because of the hidden nature of the crime—it is not visible to local populations, police, or others who may be in a position to report it:
Victims who end up in sexual exploitation are often controlled by their traffickers and have limited freedom of movement. Those who are exploited for the purpose of domestic servitude may also find themselves enslaved behind closed doors, away from public view. As a result of the limited awareness of human trafficking, many who are in these situations do not identify themselves as victims of the crime; likewise, many law-enforcement personal are also unaware and unable to identify cases. Without such awareness required for external or self-reporting, many human trafficking cases go undocumented or are documented as other crimes.
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Ndifonka also states that the lack of comprehensive anti-trafficking legislation is a hurdle to obtaining accurate statistics. It is also an obstacle to every aspect of the nation’s anti-trafficking efforts. The passage of the Prevention and Combating of Trafficking in Persons Bill would allow prosecutors to go after not only perpetrators directly linked to trafficking but also those who are responsible behind the scenes. Also, traffickers would face more stringent sentencing. The legislation would allow for prosecution of all forms of human trafficking, not just trafficking for commercial sexual exploitation. It excludes consent as a defense, regardless of whether the victims are adults or children. It also carries a variety of penalties for crimes associated with trafficking, such as tampering with travel documents in furtherance of trafficking or intentionally benefiting from the services of someone who has been trafficked. Under the clauses of the last seen revision of the bill, tampering and intentionally benefiting from the services of a person who has been trafficked carry a prescribed fine (the amount not yet known) or imprisonment for a period not exceeding 10 and 15 years, respectively (NPA/HSRC, 2010).
In addition to the media and advocates who have focused on the passing of the anti-trafficking bill, in the years before the nation hosted the 2010 FIFA World Cup there was strong pressure on the government to decriminalize prostitution. Jackie Selebi, then national commissioner of the South African Police Service Police, who was later jailed in 2010 after he was found guilty of taking bribes from a drug dealer, stated that legalizing prostitution would allow police efforts that are typically used in policing such activity to be better spent elsewhere (Mbanjwa, 2007; NPR, 2007; BBC News, 2012). Some anti-trafficking advocates supported the proposal and argued that decriminalizing prostitution would help regulate the sex industry and thereby limit potential trafficking. Professor Vasu Reddy, acting director of the Gender and Development Unit at the Human Sciences Research Council of South Africa, asserted that the soccer event would have a ripple effect on human trafficking if the sex industry was not decriminalized. “[South Africa is] fertile ground for human trafficking … we need to ensure that by 2010 we have laws governing prostitution in order to regulate it, and laws to govern human trafficking” (Mbanjwa, 2007). Other experts believe that regulating the sex industry is simply not feasible. “The IOM is against it [legalizing prostitution], because the police and home affairs won’t be able to control it,” said Bongiwe Mlatsha at the February 2009 IOM workshop on human trafficking. “We simply don’t have the capacity” (Attwood, 2009). Bews believes in theory that legalizing prostitution would be an excellent step, but that it simply is not realistic: “Holland has legalized the sex industry, and they have the infrastructure to do so. But we don’t have the same structure. I don’t think it is practical in South Africa, at least not now. One of the issues in South Africa is that we administratively put laws into place that we don’t have the resources to actually implement. If passed, this would be one more instance of a strong law on paper, but not in practice.”
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According to former Chief Justice Pius Langa, trafficking is attributed to a demand for sex, organized crime syndicates, extreme poverty, war, unemployment, lack of food, and traditional practices that commodify women: “As long as these realities exist it will be extremely difficult to abolish trafficking completely, but it is equally dangerous to use these realities as an excuse for not going the whole hog in fighting trafficking. [It] will require a combination of extended research, legislative measures, improved policing and prosecution practices and judicial awareness” (Mail & Guardian, 2007).
In an effort to improve the situation of vulnerable children, the government has implemented monthly payments called child support grants since 1998. Those who qualify to apply for the grant are impoverished primary caregivers earning less than $98 or less than $134 a month (depending on where the caregiver and child live); the grant itself is for the child, not the caregiver. The grants have been associated with reduced poverty, improved health, and significantly increased school attendance and performance for the child. Still, there are significant constraints on the nation’s capacity to offer social protection for children. Birth certificates are required to qualify for services, but more than 20 percent of babies are not registered by their first birthday. Other documents that are necessary for application for the grant are proof of income and—if the applicant is unemployed—an Unemployment Insurance Fund card. Moreover, the child protection system lacks the staff and financial resources to aid the majority of children who need assistance (Williams, 2007; U.S. Department of Labor, 2009; South Africa Department of Social Development, n.d.).
Although South Africa is taking regulatory steps to improve the identification of victims, improve the services provided to victims, and ensure that victims are not punished for crimes associated with their trafficking experience, there is a shortage of social service providers available to implement the laws. Also, while local NGOs, the NPA, and the IOM do their best to provide anti-trafficking training, the instruction and attendance are not consistent enough to ensure that the majority of immigration personnel, border patrol, police, and other enforcement personnel have adequate knowledge about the issue. An increase in training could not only help in the identification of victims but also bring attention to corrupt enforcement officials.
The large number of children with ill or deceased parents in South Africa creates a highly vulnerable population that is susceptible to a variety of abuses, including human trafficking. There needs to be a greater government focus on protecting these children and ensuring that they are sheltered from exploitation and harm. Another group that could benefit from more attention from the South African anti-trafficking movement is men. Law enforcement focuses little attention on debt bondage and indentured servitude; as a result there is little consideration for human trafficking victims who are men. These victims—men and women—need to have access to shelters and social services provided to other victims of human trafficking.
Muti murders are probably the most shocking form of human trafficking in South Africa. Collaborations between traditional healers and social service providers, such as those suggested by Bews and Ndifonka, may be the optimal way to address this form of human trafficking within local communities. Without cooperation from trusted traditional healers, muti murders and the demand for body parts are likely to continue.
PART IX
Hard-to-Prove Criterion and a Slap on the Wrist
Throughout the world the severity of the crime of human trafficking is often undermined by a lack of government responsiveness to the issue—a lack of enforcement and minimal investigations. This pattern is exacerbated by the hard-to-prove trafficking criterion, which results in prosecutors’ charging defendants with less directly related and less severe offenses that result in minimal or suspended sentences
.
In Australia the number of criminal prosecutions and convictions remains low, and the average sentence is 7 years and 10 months. One hurdle that prosecutors face is a result of the anti-trafficking law itself, which exists in two discrete divisions, 270 and 271. Anti-trafficking experts maintain that the essential element in defining human trafficking is not the movement of persons but rather the exploitative purpose. The exploitative purpose of trafficking is addressed under Division 270, which prohibits slavery, sexual servitude, and deceptive recruiting. Division 271 focuses on the movement of victims. The problem is that, thus far, prosecutors in forced-labor cases have not used both divisions; they depend solely on Division 271, improperly placing the emphasis, and burden of proof, primarily on movement
.
In the United Kingdom, prosecutors must prove intent both to transport and to exploit the victims. This double-intent criterion ignores the realities of internal trafficking of citizens and migrant workers. The Sexual Offences Act 2003 prohibits trafficking into, within, or out of the United Kingdom for sexual exploitation; the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 prohibits trafficking to, within, or out of the country for the purposes of labor and other exploitation, including organ removal or benefit fraud (fraudulently attaining state benefits). The problem is that these acts place as much judicial focus on the movement of victims as on the exploitative purposes of the trafficking. The requirement that prosecutors demonstrate a trafficker’s intent to arrange or facilitate travel, arrival, or departure to, from, or within the United Kingdom for the purpose of exploitation significantly weakens their ability to succeed. As a result, prosecutors often opt to use lesser offenses to prosecute traffickers. This strategy reduces both the severity of the sentence and the level of protection and support afforded to victims
.
In some nations only sex trafficking is recognized under the law. Until March 2011 Chile criminalized only child prostitution and transnational trafficking for the purpose of sexual exploitation. The former law, Article 367 of the Penal Code, did not criminalize forced labor of children or adults or internal sex trafficking of adults. Because government statistics thus far reflect only offenses covered under the earlier law, it is impossible to determine to what extent other forms of human trafficking exist. For example, child labor is practiced widely in Chile. Experts estimate that 200,000 children between the ages of 5 and 17 work under unacceptable conditions, and the average age of child laborers is 12. But how many of these children are victims of forced labor is undetermined. Victims not covered by the earlier law were without legal remedy and comprehensive services and thus were vulnerable to repeat exploitation. The new law is comprehensive: it prohibits trafficking for the purpose of’ sexual exploitation, including pornography; forced labor or services; slavery or practices similar to slavery; or the removal of organs. This is a significant step, but effective implementation will require comprehensive training of police, social service providers, immigration officials, and judges on the new law and how to properly and proactively identify and investigate all forms of human trafficking. It will also require changing the practice, common among judges in Chile, of suspending sentences of less than five years
.
In Germany the law adequately protects victims of all forms of human trafficking. It is in the implementation of the law that victims are not treated equally. The government focuses its anti-trafficking efforts primarily on sex trafficking and is just beginning to identify the issues of forced labor and severe labor exploitation. Male victims of human trafficking are particularly marginalized; most counseling centers that provide specialized services for trafficking victims support only women. And both labor traffickers and sex traffickers are still apt to receive light or suspended sentences. For example, of the 135 sex traffickers convicted in 2009, 75.6 percent received nominal to no jail time. There were only 10 convictions of labor traffickers in 2009, and none of the offenders was sentenced to imprisonment. The result of these sentencing patterns is that the vast majority of traffickers go unpunished
.
CHAPTER 17
Australia
She vomited into a bucket for 60-plus hours while at the detention center. The coroner’s shocking report on her death as well as the treatment she faced in the center made headlines throughout Sydney.