Published in March 2019 

 

 
  This module is a resource for lecturers  

 

The issue of consent

 

The Protocol against Trafficking in Persons mandates that where the means element is present, the consent of the victim is irrelevant. In practice, some traffickers facing prosecution may argue that their victims consented to being exploited. UNODC has published an Issue Paper on this subject, entitled The Role of 'Consent' in the Trafficking in Persons Protocol.

For a range of reasons, victims may appear to have given their consent, and therefore appear not to be victims of the crime of trafficking. This can be a result of socio-economic factors. For example, victims may be accustomed to working long hours in poor conditions. Their alleged consent may also be a product of cultural factors, including emphasis on the family head or unit as a decision-maker or gender roles that discourage women and girls from expressing agency. Psychological factors such as fear, shame and an inability to face what has happened may also be relevant. Likewise, victims may be labouring under the false impression that when they initially consented to a trafficker's offer of employment or other benefit, they effectively consented to all abuse and exploitation that followed, and thus fail to recognize themselves as victims of crime, even if the abuse and exploitation was not known to them at the time their consent was given ( UNODC, 2014).

Nonetheless, the actions and intentions of perpetrators are the focus when determining whether the offence of trafficking has been committed. Where arguments are made that consent should be material, the general counter-argument is that consent should not be permitted to override fundamental human and social values, such as dignity, freedom and protection of the most vulnerable within society.

However, while there may be general agreement about the nature of these values, there is no universal agreement of their boundaries, or how they should be understood and applied to particular trafficking cases. "Values" can be invoked to support very different positions on the issue of trafficking (see also UNODC, 2017). Trafficking for sexual exploitation is a good example in this sense. On the one hand, there are those who invoke values of human dignity to support their contention that courts should adopt a broad reading of exploitation on the basis that commercial sex workers are incapable of giving their free and informed consent. There are others who reject that proposition and say that commercial sex work is a legitimate and informed vocational choice for sex workers. They therefore advocate for a restrictive reading of exploitation (see also Module 13).

 

Consent in the Protocol

Article 3(b) of the Protocol against Trafficking in Persons states that the "consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used". A number of interpretative issues continue to persist regarding the "means" element and its interrelationship with victim consent under the Protocol and the enforcement of anti-trafficking law at the national level (see UNODC, 2014). For example:

  • Does the Protocol require that the "means" used actually vitiate or impair the consent of an alleged victim?
  • Need the "means" be of sufficiently serious character and effect to negate consent?
  • When is consent relevant and in relation to what stage of the trafficking process?
  • How does the existence of consent mitigate sentences to be imposed on convicted offenders or compensation awarded to victims?

Nevertheless, the following observations can be made:

  • Generally speaking, consent must be fully informed and freely given to provide any potential basis for a criminal defence. As provided in article 3(b), it is therefore negated if it was obtained by any of the "means" listed in article 3(a). These include threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.
  • As noted previously, in the case of child victims, consent is never a defence, regardless of whether any means are used, as children lack legal capacity to consent to their exploitation. Pusuant to article 3(d), proof of the means element is not required for trafficking in children.
  • As a matter of public policy, victim consent is not a recognized defence to many crimes. The focus needs to remain on the acts of the perpetrators, not on the victims, and the perpetrators' behaviour, more than the one of the victim, should be under examination.
 

Exploitation alone is insufficient

The definition of trafficking in persons affirms that exploitative conditions alone are insufficient to establish the offence of trafficking of adults. Agreement to work in a situation that may be considered exploitative will not constitute trafficking if the victim's agreement was obtained by free and informed consent, that is, the agreement was entered into and continues to operate without the use of any of the means prescribed in article 3(a). Nevertheless, exploitation alone may constitute other offences, including forced labour or breaches of national labour or prostitution laws.

Box 5

Where consent is rendered irrelevant

A fraudulent job offer

In many trafficking cases the false offer includes the promise of valid work and residency permits. Sometimes the victim will agree to being smuggled into a country illegally in order to find work but they clearly do not consent to the subsequent exploitation.

Deceit regarding the conditions of work

The fact that a victim knew in advance that she was going to work in a brothel does not mitigate the criminal liability of the trafficker who subsequently imposes exploitive conditions contrary to promises made. The elements of means and exploitation exist. The gravity of the offence is not diminished because the victim was aware of the nature of the work but was misled about working conditions.

Where exploitation involves children

Where a child and the child's parents give their consent to the use of the child for labour, the child is still a victim of trafficking - even where they gave their consent without being threatened, forced, coerced, abducted or deceived. Where an act of trafficking and the purpose of exploitation are established, the fact that no improper means were used does not excuse the crime where children are involved.

UNODC, Toolkit to Combat Trafficking in Persons (2008), Chapter 1 - International Legal Framework
 

National law and practice

Ultimately, the determination of issues surrounding consent will turn on the particular facts of each case and the national legislation and case law of the relevant jurisdiction. Many jurisdictions have adopted the position that victim consent should not be a defence (such as Argentina, Indonesia and Thailand). Many have simply adopted the language of the Protocol against Trafficking in Persons, while others have designated that consent cannot be invoked as a defence to any conduct that would constitute an offence; cannot preclude the existence of any relevant criminal offence nor it can exempt the perpetrator from liability; or that it does not impede prosecution by the State (see, for example, Indonesia's laws). A series of surveys and consultations undertaken by UNODC confirmed that in States where the law does not refer to consent, there is often jurisprudential affirmation that silence on this issue is irrelevant in trafficking cases and/or evidence of practitioner understanding of and support for the principle of the irrelevance of consent in trafficking cases - at least at the prosecutorial level ( UNODC, 2014).

Box 6

Examples national legislation addressing the issue of consent

  • Article 16 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act of 2007 of Malaysia provides that " In a prosecution for the offense (of trafficking) it shall not be a defence that the trafficked person consented to the act of trafficking in persons."
  • Article 18 of the Law No. 6 of 2008 of Mozambique provides that " the victim's consent does not exclude or mitigate criminal liability attributable to the perpetrators of the crimes covered by this law".
  • Article 2 of the Modern Slavery Act of 2005 of the United Kingdom  states that " It is irrelevant whether V consents to travel, whether V is an adult or a child".
  • Similarly, Article 7 of the Trafficking in Persons Act No. 4 of 2014 of Zimbabwe, states that " It shall not be a defence to a charge of trafficking in persons for an offender to prove that a victim consented to any act constituting the offense".

UNODC has published a model law to assist States to draft their national trafficking legislation. The model law addresses the issue of victim consent, as does the UNODC Toolkit to Combat Trafficking in Persons (see Box 7).

Box 7

Extract from UNODC model law against Trafficking in Persons

It is logically and legally impossible to "consent" when one of the means listed in the definition is used. Genuine consent is only possible and legally recognized when all the relevant facts are known and a person exercises free will.

However, if there is any doubt about the issue of consent in national domestic law, a separate paragraph should be included in the law. For example:

  • "The consent of the trafficked person to the (intended) exploitation set forth in article 8, paragraph 2, shall be irrelevant if one of the means listed in article 8, paragraph 1 (b), is used."; or:
  • "In a prosecution for trafficking in persons under article 8, the alleged consent of a person to the intended exploitation is irrelevant once any of the means or circumstances set forth in article 8, paragraph 2, is established."
UNODC, Model Law against Trafficking in Persons (2009)
Box 8

Consent issues in practice

  • Consent of the victim can be a defence in domestic law, but as soon as any of the improper means of trafficking are established, consent becomes irrelevant and consent-based defences cannot be raised.
  • In most criminal justice systems the effect would be that prosecutors would raise evidence of improper means and the defence counsel would tender evidence of the victim's consent, leaving the court to assess the validity of the evidence of both the prosecution evidence and the defence.
  • Trafficking occurs if consent is nullified or vitiated by the application of any improper means by the trafficker. In other words, consent of the victim at one stage of the process cannot be taken as consent at all stages of the process - and without consent at every stage of the process, trafficking has taken place.
  • Another legal question which will arise is whether under domestic law the subject had the capacity to consent to the recruitment or subsequent treatment. Article 3 (c) of the Trafficking in Persons Protocol makes the consent of a child irrelevant and the capacity to consent may be further restricted under the domestic law of a particular State.
UNODC, Toolkit to Combat Trafficking in Persons (2008), Chapter 1 - International Legal Framework
 

Other issues regarding consent

Finally, it should be noted that consent may be relevant in a number of respects outside proof of the crime of trafficking itself. For example, while victim consent may not provide a defence to a charge of trafficking, it might be relevant to punishment of offenders (sentences may be lower where the victim "consented" to the exploitation). It may also undermine the identification of suspected victims and the application of corresponding protection and assistance measures. For instance, there are trafficking victims who may have actively sought out the situations in which they were exploited, may have become accustomed to them and may even consider themselves "better off" living and working in exploitative conditions than in their previous situations at home. Some may have also developed complex relationships with their traffickers, often characterized by control, familial ties, dependency and even affection ( UNODC, 2014). Additionally, victim consent may have a negative impact on the quantum of any compensation granted.

Box 9

Consent in sentencing - Belgium Case study: Corr. Ghent, 2 April 2012, 19de k (Dutch) (BE-44-1)

Key facts: This case deals with the economic exploitation by a Belgian national (of Sierra Leone origin) of a Sierra Leone national in Ghent, Belgium. The accused was prosecuted for human trafficking and human smuggling, falsification of documents, and fraud. The victim paid USD 3 500 to the accused to be brought to Europe. Upon his arrival in Ghent, the victim received free shelter at the home of the accused. In exchange, the defendant sent the victim to work and organised for the victim's salary to be paid to an account linked to a false identity that the victim never received.

Decision by the Court of First Instance of Ghent, Criminal Section: The Court found the accused guilty of falsification of documents, fraud, human smuggling and trafficking in human beings, in conditions contrary to human dignity. The court ruled that the consent of the victim to the employment was irrelevant, as well as the fact that he had been employed in a normal work environment and in normal labour conditions. The court found that the accused had abused the vulnerable position of the victim given his illegal residence and the lack of social protection and financial means. The victim had no other reasonable choice than to suffer the abuse.

Penalties/compensation:

  • Penalty: three years' imprisonment (of which 18 months on probation) and a fine of EUR 11 000.
  • Compensation: EUR 10 625 (material and moral damages).
European Commission, Study on case-law relating to trafficking in human beings for labour exploitation: Final report (2015)
 
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