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Further in – depth analysis of selected cases

Addendum to Section 5 of Case Digest1

5.16 State v. Giulani et al (ISRAEL)2

I. Kind of Crimes: Holding a person under conditions of slavery3; detaining a

person's passport – in the context of domestic servitude.

II. Kinds of Evidence: Testimony – Prosecution witnesses: the complainant,

Filipino friends who helped the complainant escape and Director of NGO who

encountered complainant after she escaped – all of whom could attest to her

emotional state, police officers who interviewed witnesses. Defense witnesses: the

two accused persons, owner of a grocery store, owner of a café, a neighbor (all of

whom testified they sometimes saw the complainant outside the premises by herself).

Statements – of accused persons submitted in evidence. Documents – Prosecution

evidence: records of telephone conversations and sms messages from the cellular

phones of the complainant, trackings of location of cellular phones belonging to the

complainant when telephone conversations and messages sent, receipts of money

received by complainant from the accused person no. 1. Defense evidence: a map of

the environs of the premises showing where public transportation was available. Real

evidence – photograph of the small room in which the complainant was housed;

demeanour of witnesses on the stand.

1Case Digest on Evidential Issues in Trafficking in Persons Cases accessible at:

https://www.unodc.org/documents/humantrafficking/2017/Case_Digest_Evidential_Issues_in_Traffick

ing.pdf 2 State of Israel v. Giulani, 29 February 2012, District Court of Jerusalem, Israel. The case is available in the UNODC Human Trafficking Case Law Database (UNODC Case No. ISR016). (Conviction affirmed by the Supreme Court, 6 September 2016, Criminal Appeal 6237/12.0 3 NOTE: both District and Supreme Court convicted the accused of a clause in this section addressing a

crime similar to involuntary servitude – which requires "substantive control over the life of a person or

denial of his liberty".

The section on holding a person under conditions of slavery in its entirety reads as follows:

"375A. Holding a Person under Conditions of Slavery

(a) Anyone holding a person under conditions of slavery for the purposes of

work or services, including sex services - is liable to sixteen years

imprisonment.

(b) Where an offense according to subsection (a) is committed against a

minor, the offender is liable to twenty years imprisonment.

(c) In this article, "slavery" means a situation under which powers generally

exercised towards property are exercised over a person; in this matter,

substantive control over the life of a person or denial of his liberty shall

be deemed use of powers as stated."

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III. Strengths in the Mosaic of Evidence: deception (regarding the amount of

salary), restrictions of freedom (lock and key imprisonment part of the time; constant

supervision; effective restriction of freedom by means of threats, warnings, evasions

excuses when complainant requested to go out alone, no free time; detention of

passport, no money, nowhere to go), isolation (not allowing unsupervised face to face

contact with others), subtle threats/subtle means of coercion (warnings that

complainant could be arrested if she exited premises, excuses, evasions when she

asked to go out independently, giving the complainant the feeling that leaving

independently was forbidden), vulnerabilities of complainant (young, foreign, poor,

lack of familiarity with language and culture, illegal status) low pay, poor working

conditions (long hours of work, no regular weekly, monthly or yearly vacations

despite requests for them, no regular breaks, on call 24 hours a day) poor living

conditions (tiny room formerly a bathroom - shower), duration of abuse (22 months),

signs of ownership (transferred to Israel from Jordan without asking for her consent,

though the court did not consider this evidence of ownership, as the complainant

testified she did not care where she worked), support for complainant's testimony

(other testimonies, receipts, cell phone records and tracking).

IV. Weaknesses in the Mosaic of Evidence: relatively good treatment (privacy in

small bedroom; considering complainant's wishes in respect of the kinds of work to be

done; respectful treatment; giving small presents on holidays; taking her to a doctor

when necessary; buying a telephone card for her, allowing her to watch television and

send sms messages during the work day), no violence or threats of violence, no

explicit prohibition on exiting premises, allowing her to talk on her phone to persons

in Israel and out of Israel without supervision, partial freedom in that she was

permitted to exit the premises to get the newspaper and go for short trips to the

grocery and to the accused persons' daughter, though she was supervised when she

did so, failure to flee even when she was not locked in the premises, inconsistencies

and unclearness in complainant's testimony regarding several issues (and for example

her hours of work, the accused persons' supervision over her use of cellular phones).

V. Particularly Difficult Evidentiary Challenges: Purported consent of complainant

to the conditions, denoted by her failure to escape even when allowed to exit the

premises; how to prove separate guilt of husband and wife in cases of domestic

servitude.

VI. Verdict: The female accused person was convicted of holding a person under

conditions of slavery in that her freedom was denied, and in addition, of detention of

the complainant's passport. The male accused person was convicted of both crimes as

an accomplice. The sentence meted out to each of the accused persons was 4 months

of imprisonment to be done by means of public service4, 6 months suspended

sentence for 3 years, with the condition being that the accused persons not commit the

4 According to Israeli law, if the sentence of imprisonment meted out by the Court is less than six months, the convicted person may fulfill it by means of public service outside of prison.

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crimes of which they were convicted for a period of 3 years, a fine of 2000 shekels5 to

be paid by each of the accused persons and compensation to the complainant of 15000

shekels6 to be paid by each of the accused persons.

NOTE: both the District Court and the Supreme Court interpreted the relevant slavery

section as including two separate kinds of crime: slavery and involuntary servitude.

They convicted the accused persons of the involuntary servitude clause because her

freedom was denied by the accused persons.

VIII. Facts of the Case: The following are the facts accepted by the District Court,

after evaluating the different versions of the complainant and the accused persons.

The Supreme Court accepted the District Court's factual evaluation.

The complainant, a young Filipina woman of 20 years of age from a poor background,

agreed to travel to Jordan under the auspices of an agency called "Manpower" in order

to work in domestic service for a monthly salary of $200. Upon arrival in Jordan, she

was signed on a contract in Arabic, which language she did not understand, according

to which she would receive $150 a month instead. She worked under this contract for

a daughter of the accused persons for a period of 4 months for which she received no

salary. In November of 2007 the female accused arrived in Jordan in order to take the

complainant to work as a domestic servant in her home in Israel. The complainant

worked in the house of the female accused and her husband, the male accused, for 22

months. During that time, no contract was signed between the complainant and the

accused persons. Though the only permitted legal visa for persons like the

complainant was for the purpose of performing nursing care, in effect, the

complainant performed domestic service, and thus had no legal status in the country. 7

The complainant cleaned the accused persons' villa, babysat for their grandchildren,

cooked and served dinner and was on call continually, as she lived on the premises.

She was housed in a tiny room which had been a bathroom – shower and had space

for a toilet, a small shower, a folding bed and a shelf for her personal effects. She was

given a key to this room, so that she had some privacy when within. She worked long

hours from 7 a.m. until at least 8 p.m. and longer if there were guests. She was not

given any random or regular vacations, whether weekly, monthly or yearly despite her

requests. During her work day she was permitted to watch television or to send sms

messages while working, but there were no regular breaks. In effect she was

accessible to the accused persons at all hours of the day.

5 According to the exchange rate in force at the time of the judgment in the District Court this was worth approximately $532 for each of the accused persons. 6 According to the exchange rate in force at the time of the judgment in the District court this was worth approximately $3,989 for each of the accused persons. 7 According to Israeli law, only certain forms of employment entitle a foreign worker to a legal visa. Among these is nursing care, not domestic work.

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On occasion, the female accused asked the complainant to work in other houses, but

she received extra compensation for this and when she expressed reluctance to

continue, was not pressed to do so.

The accused persons locked the house when they were within it or when they left it,

and gave the complainant no key. On one occasion they went on a vacation to the

resort town of Eilat and locked the complainant in the house. During this period, their

daughter would unlock the house to take the complainant to work in her house and

lock her in the accused persons' house at the end of the day.

The complainant was not permitted to leave the premises independently except for

short trips to the grocery store or to the home of the accused persons' daughter, both

of which were a short distance from the house. Even during these short trips, the

complainant was supervised by the female accused, though she did not always

accompany her. For longer trips, the complainant was accompanied by the accused

persons, one of them or their daughter. While she was never expressly forbidden to go

out on her own, when she expressed a desire to do so, the female accused responded

with a series of warnings, excuses and evasions and for example: the complainant was

warned that the police might arrest her should she leave the house unaccompanied;

she was taken to the mall by the accused or her daughter instead of allowing her

independent exits; she was told to watch television.

The accused persons held the complainant's passport in their possession and did not

give her access to it, despite her requests.

The complainant had the physical ability to flee the house on various occasions, but

feared to do so because she did not know anyone and had no ready money.

The accused persons allowed the complainant to converse and send messages by

means of the cellular phones in her possession – whether to the Philippines or in Israel

- and did not supervise these contacts. Thus, the accused persons bought the

complainant a sim card for her cellular phone, and their son helped her to install it.

They also bought her telephone cards for her cellular phones. By these means she was

able to contact family members in the Philippines and her one friend in Israel.

However, the accused persons did not allow her free face to face contacts with others.

They implemented this approach by creating a climate in which she was given the

feeling that it would be better for her not to form contacts with other foreign workers;

by accompanying her on the rare occasions when they permitted her to visit her one

friend in Israel; by limiting her visits to church. Thus when the complainant requested

to attend church, on one occasion, instead of taking her to a nearby church, the

accused persons transported her to a distant church in order to supervise her, and this

church turned out to be closed; on another occasion they refused her request.

The complainant's salary was $150 a month, which is far below the minimum wage in

Israel. She never received the whole of this salary, but rather only partial sums that

she requested to have transferred to the Philippines. However, this partial payment

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may have been due to her reluctance to open a bank account, as proposed by the

accused persons. Thus, while she requested to have part of her salary transferred to

her family in the Philippines, she did not request to receive the remainder herself. The

Court concluded that possibly, this remainder would have been paid to her, had she

left the accused persons' house under different conditions.

The accused persons treated the complainant properly and correctly. They did not

force upon her kinds of work that she did not wish to do, took her to receive medical

attention when necessary, supplied her with the food she requested, gave her various

presents on occasion, allowed her to watch television and send sms messages while

working, and fulfilled her modest requests. They did not raise their voices towards

her, insult or abuse her. Nor did they exercise violence towards her. They allowed her

privacy in her tiny room.

Due to the distress caused by the lack of freedom experienced by the complainant, she

arranged with two Filipina workers, whom she contacted, to pick her up from the

house in a taxi on September 6, 2009, which was a vacation day for these workers.

When the female accused returned to the house on that day, she inadvertently left the

key to the house in the kitchen or living room and the complainant was able to use it

to exit the house. The Filipina workers reported her to be agitated and hysterical

during this rescue and took her to the offices of "Kav Laoved" (The Hotline for

Workers).

IX. Legal Issues Addressed:

NOTE:

• Legal Issues Pertain to Slavery Offence Alone: Since the conviction of the

accused persons for detention of the complainant's passport was based on a

credibility assessment, rather than on the analysis of legal issues - the legal

issues below relate to the crime of "holding a person under conditions of

slavery" alone.

• A Crime with Two Aspects: In order to better understand the legal issues

analyzed below, it should be noted that both the District and Supreme Courts

analyze the crime of "holding a person under conditions of slavery" as

including two crimes: slavery which requires treating the victim as property

and involuntary servitude which requires either substantive control over the

victim's life OR denial of his freedom. Both instances convicted the accused

persons on the basis of the involuntary servitude clause, as the complainant's

freedom was denied. The District Court deemed "substantive control over a

person's life" to be only marginally proved and the Supreme Court did not

think it necessary to address this issue in view of the clear denial of freedom.

The following are among the legal issues which arise in this case:

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1. Consent of Victim/Her Failure to Flee: In this case, though the complainant

admitted she had the physical ability to flee the premises, she did not do so. In

addition, she never took steps to make an escape feasible monetarily, as she

never requested the accused persons to pay her the part of her salary which

was not transferred to the Philippines, though this might have allowed her to

flee with some financial backing.

Underlying these questions lies the issue of her possible consent to the

conditions under which she worked, the assumption being that a failure to flee

when presented with an opportunity to do so, might point to consent.

The theoretical issue of the relevance of the victim's consent is handled

slightly differently by the District and Supreme Courts. The District Court

expressly states that the non-consent of the victim is not an element of the

crime of "holding a person under conditions of slavery". The reasons for this

ruling are technical and substantive. Technically, non – consent of the victim

does not appear as an element of the crime of "holding a person under

conditions of slavery". Substantively, the Court draws on the international

case of Kunarac8 dealing with enslavement, and on Israeli cases on trafficking

in persons for prostitution in order to adopt the thesis that the victim's consent,

even if proven, cannot justify a violation of human dignity and basic rights.

The District Court also rules that the failure to flee or undertake steps to

make escape possible are not, in themselves circumstances which negate

the crime. It notes that in many cases victims come from vulnerable

populations, do not speak the local language, have no friends or family in the

country and therefore have no practical way to find proper shelter. In addition,

it notes that often the victims are illegal in the country of destination or believe

themselves to be illegal and have no information regarding their legal options.

In view of this background, even if a victim has the physical chance to flee his

employer, this does not suffice in order to negate the crime. The Court cites

international cases in which the victim fled his or her employers and

subsequently returned to them and yet these employers were convicted

nonetheless. However, it also notes that proof of a continuous opportunity

to flee from the premises, may erode to a certain extent, the claim that the

victim's freedom was denied and that he was isolated, both of which are

circumstances which impact directly upon the crime.9

As to the case before it, the Court dismisses the claim that failure to flee or to

take steps enabling the complainant to flee, negates the crime. The Court

8 Prosecutor v. Kunarac, Kovac and Vukovic, Cases IT-96-23-T and IT-96-23/1-T ICTY Trial Chamber, Feb. 22, 2001. 9 NOTE: In the relevant section "denial of freedom" is an element of the crime as is "substantive control over a person's life".

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mentions the explanation of the complainant – that she did not know anyone

and had no money to flee. It rules that the fact that the complainant did not

request to receive the remainder of her salary in cash does not attest to her

satisfaction with the conditions in the accused persons' house.

Firstly, as said, the failure of the victim to flee or to undertake steps to

make escape feasible does not negate the crime.

Secondly, the Court notes the many practical difficulties involved in fleeing

which are not limited to financial circumstances. In this case, the complainant

was not familiar with Israel, as she had never traveled the country on her own;

she did not have access to her passport; she did not know Hebrew; the female

accused person had warned her several times that she would be arrested by the

police if she left the house alone; the complainant had no friends in Israel

besides one who left the country at some point; she was not familiar with the

environs, and for example where there were likely to be hotels or how much

they cost. Nor did she know anything about the cost of living in Israel.

In addition, the District Court notes that escaping from an employer is a

dramatic, extreme step which is likely to arouse concerns in anyone in any

situation and especially in the complainant who was a young girl of 20. All

these circumstances combine to make it easy to explain why she did not

undertake steps to allow her to flee. The Court also notes that the complainant

testified that she kept hoping that the conditions would improve with time,

which fact also explains why she did not escape or undertake steps to enable

her to do so.

While the Supreme Court agrees that the non - consent of the victim is not an

element of the crime, it qualifies this in regard to the clause in the crime by

which substantive control over the person's life or denial of his freedom is

deemed to be slavery. Drawing on case law in the United States, the Supreme

Court concludes that this clause relates to the crime of involuntary servitude

which requires that the victim cannot change his situation. It follows that

while prior consent to the situation is not relevant to the crime, victim

consent may be relevant in later stages. During these stages, it is not enough

that the victim feared to leave, but rather it must be proven that he was unable

to do so. When is consent relevant during these later stages? If the consent of

the victim is a necessary precondition to the imposition of continued servitude

over him and the victim could have realistically, practicably and actually left

the premises – it is possible that this will be enough to negate the crime.

However, the Court stresses that this "actual and practicable" possibility of

flight does not mean one moment's opportunity, but rather a real possibility,

taking into account a constellation of circumstances like familiarity with the

local language, financial resources to leave, a place to which the victim can

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flee, his access to personal documents like a passport, his familiarity with the

geographical environs, his legal status in the country, his age, education,

medical condition, and other personal circumstances.

In view of these numerous qualifications, it is questionable if the Supreme

Court analysis would differ from that of the District Court when addressing

particular cases. And indeed, as regards the case at hand, the Supreme Court,

like the District Court, reaches the conclusion that the complainant did not

consent to her situation and could not have reasonably and actually have fled,

in view of the fact that she had no money, no passport, no legal visa, knew no

one in the country, did not know where the residence of the accused was

located and had nowhere to go.

2. Circumstances which Impact on the Crime: Both the District Court and the

Supreme Court enumerate various circumstances which may contribute to

proving the crime of "holding a person under conditions of slavery". Both

instances also divide these circumstances according to their relative

importance, though there are slight differences between them. The analysis of

the Supreme Court will be relied upon here.

NOTE: The analysis is based on a crime which requires substantive control

over the life of the victim or denial of his freedom.

• Circumstances which prove elements of the crime: These include

control of the living place of the victim so as to prevent him from

leaving it; isolating the victim from others, including his family and

friends; transferring the victim from one person to another, sometimes

accompanied by giving or receiving remuneration for him; use of

violence or threat to punish the victim or to frighten him from leaving;

a threat of deportation or arrest as a result of illegal status in the

country; detention of travel documents or identity documents like a

passport and refusal to release them to the victim.

• Circumstances which do not directly prove elements of the crime,

but are indications as to its existence: These circumstances need to

attain a critical mass in order to point to the crime, but there is no

mathematical formula to assess when this critical mass is reached. All

that can be said is that if all these circumstances are present – there is a

high likelihood that the case is one of slavery, whereas if none are

present, it is possible that the case is not one of slavery. These

circumstances can be divided into two sub categories:

- Circumstances relating to the surroundings of the victim, the

mode of his employment and his living conditions – all of which

attest to the vulnerability of the victim and his dependence upon

the accused. These circumstances may include: work violating

protective labour laws (like number of hours of work, weekly and

yearly vacation); payment of low salary as compared to the

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minimum wage in the country of destination and not the

country of origin. (Sometimes this is attended with deceptive

promises of a higher salary); control of the victim's money; debt

bondage; poor living conditions (inadequate lodging, food and

clothing); failure to provide adequate medical care to victim; power

imbalance between victim and accused; a humiliating or degrading

attitude towards the victim.

- Circumstances relating to sociological characteristics of the

victim: These circumstances attest to the victim's special

vulnerability to crimes of restrictions of freedom and may include:

foreignness in the country; illegal status in the country; the country

of origin is a poor, developing country with low salaries; low

education or lack of education; limited familiarity with the

language and culture of the country; the victim's age and personal

circumstances; a low socio-economic status or a desperate need for

money; a mental or emotional disability.

NOTE: The Court stresses that this list of circumstances is not exhaustive and that

there may be cases in which the distinction between the two kinds of circumstances

will not be sharply delineated.

In applying the first list of circumstances which represents elements of the crime, the

Court rules that all of them are fulfilled in the case before it. The accused persons

controlled the living place of the complainant and prevented her from leaving the

house without supervision; they isolated the complainant from face to face contacts

with others, clarifying to her that she should not speak with other foreigners. Her

contact with her only friend was supervised by the accused. In view of the fact that

the accused allowed the complainant to maintain telephone contact with others, this

isolation was partial, but this does not negate the crime. In addition, the accused

persons threatened the complainant that if she left the house, she would be arrested

by the immigration police due to her illegal status; they detained her passport; they

received the complainant and transferred her from time to time to their daughter.

In applying the second list of circumstances, the Court noted that many of the

elements were present, though not all. The complainant was employed in violation of

most of the protective labour laws of Israel – long hours of work each day, without

a weekly or yearly vacation, for a low wage which departs appreciably from the

minimum wage in Israel; reneging on the promise to pay her $200 a month; even this

low wage was not paid to her in its entirety. Though some of her living conditions

were adequate, lodging her in a small bathroom which was not supposed to be used

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for human habitation was not proper and may even display a degrading attitude

towards her. 10

In addition, there was a significant power imbalance between the complainant and

the accused. Part of this power imbalance derives from built in circumstances: The

accused are residents of Israel, well off and respected in their community, living in

comfort. On the other hand, the complainant is a young girl, of foreign citizenship,

and illegal status. Upon arrival in Israel she did not speak the languages which apply

here, though she could speak some English. She had no property. Nor did she have

access to money except the sums she received from the accused persons on holidays.

During most of the period she resided in Israel, she did not know anyone until she met

one friend. The complainant did not even know where she was living, as she was

never permitted to exit the premises independently except for short distances.

Moreover, during the first period after she arrived in Israel she did not even know

which country she was living in.

In addition to these built in circumstances, the accused persons created a power

imbalance by not normalizing the complainant's status in the country, by not giving

her vacation days, by not allowing her to leave the house on her own, by threatening

her that she would be arrested if she left the house alone - all of which actions did not

allow her to become familiar with her environment and thus establish contacts with

others.

The Court recognizes that the accused persons did allow the complainant to maintain

telephone contact with persons in the Philippines and in Israel and that they treated

the complainant relatively correctly: not exercising violence against her, not abusing

her and taking care of her basic needs. However, while taking these circumstances

into account, they do not negate the crime.

As to the sociological characteristics enumerated above, the Court deemed that most

of them are fulfilled in the case at hand. The complainant was a young woman from

the Philippines – a country with a low standard of living and low salaries; she was

illegal in the country; she did not speak the languages of the country and was not

familiar with the culture; in view of the fact that she and her family took out a loan in

order to return the cost of the airplane ticket, she needed a source of income.

Due to the importance of some of the circumstances enumerated, they will be

addressed separately below.

3. Signs of Ownership - Exercising Powers over a Person as if over

Property: The first clause of the section entitled "holding a person under

conditions of slavery" is similar to the definition in the 1926 Slavery

10 NOTE: The District Court did not see this aspect as severely as did the Supreme Court. While it stated that these living conditions were not improved ones, they did not feel they were unfitting for human residence.

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Convention. It reads: "a situation under which powers generally exercised

towards property are exercised over a person". While the District Court

(affirmed by the Supreme Court), ruled that signs of ownership are crucial

circumstances impacting directly on this crime, it ruled that this element had

not been fulfilled, as the complainant was not treated like property.

In the District Court the Prosecution pointed to two signs of ownership over

the complainant. The first sign was that the female accused did not ask the

complainant's consent to move from Jordan to Israel which the Prosecution

claimed was tantamount to treating her as property. The District Court

dismissed this claim. It concluded from the complainant's testimony that it

was not important to her where she would work, as her main goal was to earn

money, whether in Jordan or in Israel.

The second sign of ownership claimed by the Prosecution was that sending

the complainant to work in other houses was tantamount to treating her as

property. While the District Court ruled that transferring a victim from one

person to another can be a sign of ownership, it dismissed this claim in the

case before it. The Court noted that the complainant's opinion was asked in

regard to working at other houses, that she was paid for this work and that

when she decided she did not wish to continue it, her wishes were respected.

In addition, the Court notes elsewhere that the accused persons did not force

the complainant to do kinds of work she did not wish to do, even in their

house.

The Supreme Court accepted the conclusions of the District Court that the

complainant was not treated as property, as by the time the appeal was heard,

the parties agreed on this point.

4. Denial of Freedom: The Israeli section on "holding a person under conditions

of slavery" includes a final clause which states that denial of a person's

freedom is tantamount to slavery. The District Court (affirmed by the Supreme

Court) ruled that actions aimed at denying a victim's freedom directly impact

on this element of the crime, and that the element of denial of freedom was

fulfilled in this case. The following holdings are of particular interest:

• There is no need that the denial of freedom be present throughout

the entire period of exploitation: The Supreme Court ruled that in

order to fulfill this element, it is not necessary that the denial of

freedom take place during the entire period of time that the victim was

held by the accused. It suffices that his freedom was denied during

part of the period. Thus even if there were only short periods during

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the 22 months when the complainant's freedom was denied – this is

enough to fulfill the element of denial of freedom.11

• Not allowing a person to independently leave premises is a severe

restriction of freedom: The District Court considers this kind of

restriction severe, though it is not lock and key imprisonment.

NOTE: The Supreme Court does not address this point explicitly,

though it considers limiting exits by means of supervision as a denial

of freedom.

• In order to constitute a denial of freedom, there is no need that the

victim be explicitly told not to leave the premises: The District

Court rules that though the accused persons never explicitly told the

complainant that she was forbidden to leave the premises, it was

sufficient that they de facto clarified that leaving the house could be

done only for limited times and short distances, whereas any other exit

must be accompanied by them. The Court describes how this was

done – by means of threats, warnings, evasions and excuses on the

part of the female accused person. It also notes that the detention of

the complainant's passport was a significant part of this matter. The

Court describes how the female accused exploited this passport

detention by warning the complainant that she could be arrested by the

police if she left the house on her own. Thus, the accused undertook

two steps, which combined, made leaving the house not practicable.

The female accused also implemented additional actions in order to

prevent the complainant from freely leaving the house: deflecting the

conversation from the topic when the complainant requested to leave;

accompanying the complainant if the female accused agreed to allow

her to leave the house. The Court terms this practice of accompanying

the complainant – "a close and choking accompaniment."

NOTE: The Supreme Court does not address this analysis explicitly,

but accepts that the constant supervision, threats, and detention of

passport combined to limit the complainant's ability to exit the

premises and establish contacts with others.

• Freedom to come and go from a room in the house is not sufficient

to negate the element of "denial of freedom": The District Court

rules that the relative freedom given to the complainant in her small

bedroom in the accused persons' house is certainly not sufficient to

negate the denial of her freedom, as this room was in the accused

persons' house, in the same part of the house as their bedroom. They

always knew where she was and could always call upon her.

11 However, the District Court expressly stated that the complainant's freedom was denied during the entire period she worked for the accused persons. See below, section on "Duration".

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NOTE: The Supreme Court does not explicitly address this point, but

in affirming the conviction, clearly accepts that freedom within the

complainant's tiny room did not negate the denial of her freedom.

• Constant accessibility/lack of time for oneself as part of denial of

freedom: The District Court ruled that the lack of any vacation days

or regular breaks did not allow the complainant to replenish her

energies and to distance herself physically and emotionally from her

work in the accused persons' house. Though she was permitted to

watch television and send sms messages while working, she was

constantly accessible to the accused persons who could call upon her

to do tasks, even if she was in her room. Thus, the complainant had no

power or autonomy over herself or her time. This was viewed in the

context of the element of "denial of freedom".

NOTE: The Supreme Court does not address this point explicitly in its

analysis of "denial of freedom".

NOTE: The above rulings are of particular interest in view of the

language of the Israeli law which requires denial of freedom, not merely

restriction of freedom.

5. Substantive Control over a Person: The Israeli section on "holding a person

under conditions of slavery" includes a final clause which states that

substantive control over the person (as well as denial of his freedom) is

tantamount to slavery.12

The District Court ruled that the proof of this element was borderline. Though

the accused persons did control the complainant's exits from the house, the

Court notes that the accused persons did not force her to do kinds of work that

she did not wish to do and allowed her to use her cellular phones to contact

people without supervision. In addition, it notes that the complainant did have

privacy in her small room and had the freedom to watch television and send

sms messages while doing her work.

The Supreme Court does not see a need to address this issue, as the accused

persons may clearly be convicted in view of their denial of the complainant's

freedom. However, it hints that the case may present enough proof of this

element as well.

6. Isolation:

• A crucial circumstance: Both the District and Supreme Courts view

actions aimed at isolating the complainant as crucial circumstances

12 Compare this with the Canadian section 279.01 on trafficking in persons which includes in the 'acts' of trafficking – "exercises control, direction or influence over the movements of a person".

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which impact directly upon the elements of the crime of holding a

person under conditions of slavery.

• Partial isolation can suffice to convict: While the Courts rule that

the accused persons allowed the complainant to maintain unsupervised

telephone contact with persons in the Philippines and in Israel, they

conclude that they prevented her from establishing face to face

contacts with others. The accused persons told her not to talk to other

foreign workers when she went to the beach with them; accompanied

her on the rare occasions when she visited her one friend, so that, on

the occasion of that friend's birthday, the complainant preferred not to

attend, rather than appear, accompanied by the accused persons or

their daughter.

In acting in this way, the accused persons, and especially the female

accused, created a feeling or climate by which the complainant

believed that it would be better for her not to establish contact with

other foreigners.

The Supreme Court notes that in view of the unsupervised telephone

contact allowed by the accused persons, the complainant's isolation

was only partial. Nevertheless this does not negate the crime.

7. Low Salary:

• Low salary as an indirect form of proof: The District and Supreme

Courts view low salary as a circumstance which may indirectly

contribute towards proving the crime, if combined with other

circumstances, but is not, in itself, proof of an element of the crime.

However, the District Court adds that if it is proven that low salary or

denial of salary assists accused persons to exercise control over the

victim, to strengthen the victim's dependence upon them, and to thus

prevent the victim from leaving premises, it can then be considered

proof of an element of the crime (control over the life of the person or

denial of his freedom). The Court rules that in this case, this motivation

was not proven, especially since the accused offered to pay additional

sums of money to the complainant and she refused.

• The standard is minimum wage in the country of destination, not

origin: The Supreme Court expressly states that in evaluating the

lowness of a salary, attention should not be paid to the situation in the

country of origin, but rather, in the country of destination.

8. Living Conditions: Both instances view the complainant's living conditions

as a circumstance which does not prove a specific element of the crime, but

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can contribute, along with other circumstances, to proving it. They agree that

adequate food and clothing was given to the complainant. However, while the

District Court views the tiny bathroom - bedroom as worthy of human

habitation (though it is not considered to be an improved condition), the

Supreme Court considers it a room not intended for human habitation and

possibly even degrading.

9. Duration: The District Court views the extended period of time during which

the complainant worked for the accused persons as a significant circumstance

in convicting them. It emphasizes that during the entire period of 22 months,

the situation of denial of freedom did not change and the complainant did not

have one day of real freedom, which caused her great distress, culminating in

her escape.

NOTE: The Supreme Court does not expressly address this point.13

10. The Crime Does Not Require Physical Violence/Good Treatment Not a

Defense: The accused persons were convicted of "holding a person under

conditions of slavery" despite the fact that they did not exert physical violence

against the complainant, and despite the fact that they treated her correctly –

allowing her to receive medical care, respecting her wishes as to the kinds of

work she did, giving her small presents on occasion.

However, it should be noted that the Supreme Court considered housing the

complainant in a bedroom – bathroom as unfit for human habitation and

possibly degrading.

11. Warning or Threat?

As mentioned, the accused persons never explicitly forbad the complainant from

leaving their house. However, the District Court ruled that they acted in a way which

did not leave her a realistic possibility of exiting the premises alone for an extended

period. Among the actions undertaken by the accused were detention of the

complainant's passport and warning her that the police could arrest her if she exited

the house alone. The Court viewed these as two combined actions, which together

prevented the complainant from actually exiting the premises alone. It notes that the

female accused person exploited the detention of the complainant's passport in order

to make her warning feasible. In this way, the warning became a threat – though this

is not explicitly stated by the Court.

X. Defense Claims:

The following defense claims, of general import, were raised:

13 Indeed the Supreme Court rules that even short periods of restrictions of freedom suffice to convict.

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Selective Enforcement: The Defense claimed that in other similar situations, the

Prosecution did not indict on "holding a person under conditions of slavery" and that

the indictment was discriminatory. The Supreme Court dismissed this claim because

the other cases brought forth were not sufficiently similar and no improper motive

was proved on the part of the Prosecution.

Vague Criminal Section: The Defense claimed that the criminal section on "holding

a person under conditions of slavery" was vague which left the elements of the crime

unclear and did not allow the defense to properly prepare the case, especially since

this was the first case prosecuted according to that section. The Supreme Court

dismissed this claim, deeming the elements of the crime to be sufficiently clear,

though couched in general language and stressing that certain criminal activity

requires broad language in order to catch all its manifestations. It added that in such

cases, judicial interpretation is the proper way to address general language, adding

that the fact that this is the first time the law is subject to judicial interpretation does

not mean that it is inherently vague, as in that case, no new law could ever be

enforced.

Husband's Part in the Crime: The Defense claimed that the husband should not

have been convicted as an accomplice, as he did not perform any of the criminal acts,

but rather only his wife, who was in direct contact with the complainant. The Supreme

Court dismissed this claim, pointing out that the male accused paid the complainant

her low salary; was aware of the fact that the complainant's visa was limited to

nursing care work, and not domestic work, thus contributing to her illegal status in the

country, which was an important part of the crime; was aware of the complainant's

work routine such that it is impossible to believe he did not take part in locking her

into the house at times. Thus, the male accused took a substantive part in the

conditions under which the complainant was held and can be considered an

accomplice in the crime.

The Complainant's Criminal Action: The Defense claimed that the complainant

fled the house because she stole the female accused person's jewelry. This claim was

dismissed by the District Court on the basis of a credibility evaluation which was

accepted by the Supreme Court. Interestingly, this is a typical claim in many cases.

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