NOWHERE TO HIDE: ENDING ANONYMITY IN THE FIGHT AGAINST HUMAN TRAFFICKING.

• Date: 22 March 2014
• Author: Berman-Vaporis, Rachel

The current legal framework for combating human trafficking for sexual exploitation is reviewed noting its strengths and weaknesses. Next, the Palermo Protocol is evaluated to determine which legal weaknesses are now adequately addressed and which continue to be a problem. A strategy is then suggested to overcome the remaining loopholes in the legal fight to end human trafficking for sexual exploitation. This strategy involves the development of a database of those who have been convicted of human trafficking for sexual exploitation and related crimes in an effort to unify the definition of human trafficking, serve as a tool for prosecuting human trafficking, and increase the amount of case law available on human trafficking crimes. The obstacles for combating human trafficking for sexual exploitation are compared to those for combating sex crimes in domestic legislation. The positive effect of having a database similar to a sex offender registry is discussed and the potential negative consequences that could result from such a database are considered. conclusions are drawn recommending the development of such database, as it will make the implementation of the Palermo Protocol and the prosecution of human traffickers, transparent to the international community. it will also act as a deterrent to those who participate in human trafficking for sexual exploitation.

INTRODUCTION

A nineteen-year old girl thought her stars had aligned when a woman approached her at the bus station. This woman offered her an opportunity to join her husband and get a job in the united states. she promised to help her. After days of cooking and cleaning for the woman to "earn her transportation to the United States," her benefactress turned her over to three men who beat her, drugged her, and sold her for sex. (1) For three months, she was locked in a small room as both men and women paid to rape and torture her. Her nightmare continued until American immigration officials discovered her in the trunk of her captor's car at the U.S.-Mexico border. But she had to spend six months in a detention center and endure consultations with multiple attorneys before she was "officially" identified as a trafficking victim. (2)

This is testimony from a trafficking victim who survived. But what happened to the men and women who tortured and raped her in Mexico? Or her captors who continually drugged and beat her? What happened to the woman who fraudulently promised to help her obtain employment but instead sold her into sexual slavery?

Human trafficking for sexual exploitation is on the rise all over the globe. (3) All too often, victims are ignored by authorities or fall through the cracks of a society whose priorities are elsewhere. Perhaps even more appalling is the fact that the people responsible for these heinous crimes often suffer little or no penalty. Instead, lower-level criminals present when police raid a trafficking ring receive a slap on the wrist, and all other individuals involved in the criminal enterprise suffer little if any penalty. All they lose are a few slaves that are easy to replace or re-apprehend.

The human trafficking problem has not gone unnoticed. The United Nations Convention Against Transnational Organized Crime ("UNTOC") and one of the accompanying protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("the Supplementary Protocol"), (4) have tried to foster international cooperation to end this cycle. (5) There has been little success to date due to the vague language found in both treaties and the lack of a specific tool to come out of these agreements to unify both the definition and prosecution of trafficking. Without such as tool, enforcement of human trafficking has been patchwork at best as national governments fruitlessly try to stem the flow of a crime that, because of its international character, requires international action.

This Note will focus on human trafficking for sexual exploitation ("HTSE"). The current legal and enforcement framework to combat HTSE is deficient in a number of ways. These deficiencies allow HTSE to flourish because countries are secretly able to renege on their treaty obligations. To unify the definition of HTSE, aid in the enforcement of treaty obligations, and diminish the prevalence of HTSE by exposing all of those who support this crime, countries must adopt the offenders of Humanity Database. The new tool proposed by this Note will allow individuals, NGOs, and governments to track the implementation of HTSE treaty obligations.

This Note does not in any way include those involved in legal prostitution. while there are arguments as to whether prostitution is inherently exploitive, this Note focuses on the parts of the sex industry that are illegal.

Part I of this Note will define and discuss the current status of HTSE. Part ii will discuss the current international legal framework concerning HTSE and its deficiencies. Part Ill will provide a specific solution to address these deficiencies in the form of the offenders of Humanity Database.

1. HUMAN TRAFFICKING FOR SEXUAL EXPLOITATION

   1. The Current Status of Human Trafficking for Sexual Exploitation

      Simply, human trafficking is slavery. (6) Some of the earliest information on slavery comes from the code of Hammurabi in the eighteenth century B.C. and from sources from the seventh century B.C. on the role of slaves in Greek society. (7) Human trafficking is the modern manifestation of slavery. (8) HTSE first rose to prominence as an international issue in the late nineteenth and early twentieth centuries. (9) At that time, the problem was commonly known as "white slavery" and focused "primarily ... on trafficking in women for 'immoral purposes' or prostitution." (10) Early treaties on this subject "emphasized the coordination of information among state parties and discussed steps to repatriate the victims." (11)

      This issue reemerged into international concern during "the growing global movement for women's rights" in the 1970s. (12) Currently, it is estimated that about 20.9 million persons are trafficked a year, and of these, over 4.5 million are trafficked for sexual exploitation. (13) Despite the estimated 20.9 million trafficking victims, only 41,210 were identified as such in 2011. (14) Trafficking can occur domestically, within a State, or across international borders. (15) While the human trafficking operation takes many forms, (16) often traffickers use force or lure their victims with false promises in order to obtain control over their victims and shuttle them across borders. (17) Although men and boys are trafficking victims, the majority of victims are women and girls. (18) In fact, 98% of individuals trafficked for sexual exploitation are female. (19) While the business model for human trafficking can range anywhere from the small-scale entrepreneur model to global organized crime networks, the U.N. Office on Drugs and Crime ("UNODC") estimates that yearly profits from all aspects of human trafficking reach upwards of $31.6 billion. (20) Profits for individual human traffickers vary, with sophisticated cartels "fetching $400,000 a head for sex or forced labor." (21) Estimates of human trafficking are imprecise because of the "disparities in governmental and non-governmental definitions and the underground nature of human trafficking." (22) However, the monopolistic competition model can likely best explain a human trafficking business enterprise. (23) This form of imperfect competition includes many producers that sell products that are slightly differentiated from each other but are not perfect substitutes. (24) "There are many sellers in the [human trafficking market]" made up of "organized groups of criminals or small, loose networks of entrepreneurs." (25) And they are all selling the same product: human beings.

      currently, the benefits to be gained from human trafficking far outweigh the costs, which assures "a willing cadre of traffickers." (26) while the profits are in the billions, due to the hidden nature of human trafficking, the exact effects of this business and the economic consequences if it is eliminated are not known. (27)

      While HTSE has gained increasing media attention in the last few years, its prevalence is not a new problem. Since the passing of UNTOC and the Supplementary Protocol, (together the "Palermo Protocol") in 2000, many countries are beginning to proactively combat human trafficking. (28) These countries have set up their own frameworks to combat HTSE and human trafficking for labor purposes. However, of the limited resources available, more resources are devoted to labor trafficking instead of sex trafficking. (29) This lack of focus on HTSE can compound the problems associated with combating HTSE. (30)

      Ironically, despite being a profitable enterprise for the traffickers, the modern human trafficking trade is rooted in the poverty of the victims. (31) Traffickers feed off the economic desperation of their victims and prey on their vulnerabilities in order to coerce, trick, or forcibly recruit them. (32) Traffickers lure their victims by exploiting "the dreams and fears of the poor" and by such means as "fraudulently advertising employment opportunities." (33) The key to the traffickers' success is the targeting of the individuals who are "the most vulnerable and marginalized in societypeople who are already struggling to survive." (34) This most marginalized segment of society consists of women and girls because of "their greater susceptibility to poverty, illiteracy, and lower social status," making it more difficult for women and girls to escape HTSE once they are enveloped in it. (35) Economic disparities have contributed to the continued rise of HTSE, mostly in developed nations, and are aided by "cultural views of women as less valuable than men." (36) These views produce "a more tolerant view of prostitution...