Rethinking the Law and Order Approach to Trafficking in Persons

By Cristina S. Sevilla*

Trafficking in persons (TIP) has predominantly been tackled from a limiting criminal justice perspective. The U.S. State Department’s annual TIP Report highlights trafficking-related convictions in classifying countries under its tier system. The report’s emphasis on rule of law indicators, rather than prevention and victim services, impacts how countries focus their anti-trafficking resources. For example, over time Thailand has increased its efforts targeting the prevention of human trafficking, and therefore reduced its investigation, prosecution and conviction efforts.  However, this shift to prevent exploitation resulted in a drop in the TIP report rankings, down to the lowest ranking of Tier 3.  As another example, in its vigorous zeal to achieve a better ranking, the Philippine government amended its anti-trafficking law in order to increase its number of convictions. The focus on convictions distorts the point. 

What has been achieved by this focus on convictions? When the dust settles after law enforcement raid and rescue operations, what happens to the victims? Do victims receive appropriate care and services, such as shelter, temporary facilities, livelihood programs, psychosocial and family support?

The reality is that with limited government resources, in countries like the Philippines, support services and care are only given to victims who cooperate in investigation and prosecution, in spite of state policies that mandate otherwise. Fellow anti-trafficking advocate, John Whan Yoon with World Vision-Laos observed, “Many Lao victims are identified in Thailand and so prosecution takes place in Thailand. The Lao government only provides repatriation services. With limited government resources, most reintegration assistance services are provided by NGOs.”

Even for those victims who cooperate, the questions persist: are services provided for their full recovery and reintegration, or are these services provided only in aid of investigation and prosecution? Are they given services to prevent re-victimization? Or are they just “rescued,” counted and documented, only to be “rescued” again and again? Such a cycle of raid, rescue, documentation, and re-trafficking would increase the number of investigations a country could conduct, and maybe even their prosecution numbers. Certainly, it would help on the road to Tier 1. With this emphasis on criminal justice, we must ask why countless victims do not report or cooperate with law enforcement. Even within the criminal justice model, we must examine whether there are measures to assist victims and address their concerns.

One story is illuminating.  In 2014, a young woman was trafficked into sex in the Philippines. She had a history of child sexual abuse and was a victim of domestic violence. She got pregnant. She decided to give her baby to a childless couple, and in exchange, she asked for money to travel back to her community of origin. The anti-trafficking law enforcement team arrested her. She was charged with qualified trafficking for “trafficking” her baby, by giving the baby away, which carries the penalty of life imprisonment, subsequently downgraded to child abuse. Her story will certainly become a number increasing the investigation and prosecutions under Philippine law and international indicators. But rather than an offender, she should have been treated as a vulnerable individual, a victim herself, who requires services. Instead of prosecuting her, the government should have considered her vulnerabilities and placed her baby with social welfare agencies until she had been rehabilitated.

In countries where economic and gender inequity remain major challenges, with justice systems that leave a lot to be desired, a solely criminal justice approach will neither prevent victimization nor deter criminals. There is not one single reason why trafficking occurs, and there is no one single solution to address it. States must rethink their approach to trafficking, and refocus resources, energy and efforts to addressing its varied and complex root causes. Rather than a reactive law and order approach, emphasis must be on addressing the factors that make people vulnerable to trafficking and exploitation. We must strengthen victim services and dedicate sufficient resources to prevent re-victimization and enable victims to escape the vicious cycle of violence and exploitation. The U.S. State Department should support this effort, by using the TIP Report to emphasize effective prevention and protection efforts in countries around the world.

*Cristina S. Sevilla is a human rights attorney specializing in anti-trafficking efforts in the Philippines. She is a founder of Action Against Violence and Exploitation, Inc. (ACTVE), a civil society organization that provides legal aid to marginalized women and children who are victims of violence and exploitation.