Human Trafficking for Sexual Explotation and

Consent

João Paulo Orsini Martinelli, LLM, PhD.

Mackenzie University, Brazil.joao.martinelli@mackenzie.br

Concept of Human Trafficking

International Law: Human Trafficking is a problem of organized crime

Main international document: PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME

Concept of Human Trafficking

"Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

Vulnerability: absence of capacity to decide, lack of knowledge of the reality of facts, lack of capacity of resistance, lack of better options in life.

Presumption of vulnerability: age (under 18, lack of conscience and mental illness.

When the victim is vulnerable, the consent must be ignored.

"The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article (including vulnerability) shall be irrelevant where any of the means set forth in subparagraph (a) have been used”;

What about and cases in which there is no coertion, fraud or express vulnerability?

It’s crime of human trafficking even if the victim consents?

In Brazil, it’s crime. It does not matter if there’s coercion, fraud or consent.

Even a consent from an adult must be considered irrelevant.

Autonomy: the person must have full autonomy to decide on their behavior.

In principle, a person's autonomy should be respected by the criminal law.

But we have to ask: does the victim have autonomy?

Does the consent given coincides with the real will?

Why are there situations in which consent is not worth even when there is no coertion or fraud?

1)Criminal law must prevent future harms

2)Prostitution is a violation of human dignity

3) There are situations in wich the victims don’t have other options to survive

1) Criminal law must prevent future harmsThe victim is not aware of damage that can

happen in the future. For example, slavery and violence, difficulties of homecoming.

Cases in wich victims believe that his life will be controlled by himself but he becames slave of someone.

2) Prostitution is a violation of human dignity

Prostitution is a wrong activity and can’t be considered something normal

This argument can’t be only “moral”, it requires some harmful content

Working as a prostitute is a serious violation of sexual dignity

Prostitution is an offensive activity that transforms the person into commodity (market relationship)

3) There are situations in wich the victims don’t have other options to surviveThe social and economical vulnerability makes

person opt for prostitution because there’s no other option to survive

There is a relationship of exploitation between the strongest and weakest

Criminal Law have to prevent exploitation when some body has no other option to survive because most of victims belong to fragile groups

Is there legitimacy in State interventions when victims are vulnerable?State should limit the freedom of those who do

not have full autonomy

When there is no autonomy the state should prevent harm to the person consents

State must respect only free and real will of people

Paternalism

“Paternalism is the interference of a State or an individual on another person, against his will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm” (Gerald Dworkin)

Hard paternalism x Soft paternalism

Direct paternalism x Indirect paternalism

Soft paternalism is valid in democracy and human trafficking is a kind of hard paternalism because the victims are not all vulnerable

Human trafficking is a kind of indirect paternalism because the prohibition affects the liberty of prostituted person

State should allow prostitution only in case of full autonomy, which is hard to find.

In this case, it is better to ban all human trafficking instead of allowing the few cases of full autonomy.