ROLE OF CONSENT IN HUMAN TRAFFICKING

Abstract

Human trafficking has, since the turn of the century, consistently featured on the global political agenda, and recognition of the growing dimensions of this criminal activity has been the catalyst for a host of legal and policy responses aimed at the prevention of trafficking, the prosecution and punishment of traffickers and, more recently, for making provisions for identifying, assisting, supporting and protecting the victims of this phenomenon. The trade in human beings has flourished because of increased economic and social integration and has been facilitated by the ease of movement of workers, capital and goods, all of which are aided by increasingly sophisticated global networks of communication and transport. The body of persons engaging in transnational movement includes economic migrants – regular and irregular – students, visitors and asylum seekers. This body of persons involved in transnational movement also includes adult female victims of human trafficking for sexual exploitation, the latter being the chief concern of this body of work. As a system of bespoke rights for trafficked victims has been increasingly brought into the anti-trafficking regime, the role of consent – or lack thereof – in human trafficking has become increasingly important in traffic-related debate, and it has become apparent that this element has a significant role to play in terms of establishing who the victims are, and how they should be treated. In order to launch a coherent and cohesive multi-pronged attack on human trafficking, particularly one invoking the criminal law, there is need to reach consensus as to what human trafficking actually is in a legal sense, so that there is clarity as regards both the meaning of ‘trafficking in persons’, and the obligations placed on state parties to the various agreements and legislation which form the anti-trafficking regime. The most recent international legal definition of ‘trafficking in humans’ is provided within Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), and is replicated verbatim in Article 4 of the Council of Europe Convention on Action Against Trafficking in Human Beings (CoE Trafficking Convention).Despite enough and well-examined scholarly literature regarding human trafficking, perhaps the most perplexing obstacle to prevention of human trafficking lies in the inability of governments and nongovernmental organizations to properly identify victims of human trafficking and quantify their numbers. Indeed, the wide body of scholarship relative to human trafficking reveals stark inconsistencies in representations of the number of human trafficking victims, which various sources claim, “range from the hundreds of thousands to millions per year.” The conundrum arises from an inability to isolate the jurisprudential, conceptual, and practical distinctions between victims of human trafficking (those forced to perform certain acts) and smuggled migrants (those who consent to being transported across international borders as means to engage in certain acts). Granted, the conceptual distinction between the human trafficking victim and the smuggled migrant appears well established in juridical constructions, as the divergent objectives of each crime determine the culpability and blameworthiness associated with offenders. Despite different objectives, though, the empirical line of demarcation between the crimes is not readily identifiable because the difference turns on consent.