The Mens Rea of Human Trafficking: The Case of Migrant Domestic Workers

• Published date: 01 September 2019
• Date: 01 September 2019
• DOI: 10.1177/1057567718788931
• Subject Matter: Articles

Article

The Mens Rea of Human

Trafficking: The Case of

Migrant Domestic Workers

Daphne Demetriou

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Abstract

Efforts to eradicate human trafficking continue, with the 2017 Trafficking in Persons Report calling on

governments to improve the detection and prosecution of all involved in this crime, with specific

reference to recruitment agencies. Yet despite calls to examine the wider scope of potential traf-

ficking perpetrators, an important element remains problematic; namely, establishing that all

involved in the recruitment and movement of individuals possess the requisite mental element for

this crime. This article examines this mental element and applies it to the different actors commonly

involved in the migration and alleged trafficking of migrant domestic workers. The article concludes

that establishing such experiences as human trafficking and attributing the mental element of the

offense to all people in the supply chain becomes less attainable. The flexibility permitted under the

United Nations Trafficking Protocol, as to the national threshold for the crime’s mens rea, has

resulted in disparities as to what and who the crime of human trafficking encompasses. The specific

intent element of the Protocol is at odds with the constructive knowledge element incorporated in

some states, a reality that runs counter to the intentions of the Protocol’s drafters for a unified

definition and jeopardizes the prosecution of trafficking cases. In rectifying this, it is pivotal for states

to ensure that alternative legal provisions are available to capture those who often pave the way to

migrant domestic workers’ exploitation.

Keywords

human trafficking, UN trafficking protocol, mens rea, migrant domestic workers, recruiters

In an effort to move away from the long-standing nexus between human trafficking and sexual

exploitation, a number of bodies now focus on other forms of human trafficking, specifically relating

to labor trafficking. Among these, there have been a number of initiatives and academic literature

addressing trafficking for domestic work. Notably, the Organization for Security and Co-operation

in Europe (OSCE) has been pursuing an agenda, since 2010, for tackling what they refer to as

“human trafficking for domestic servitude” (Harroff-Tavel & Nasri, 2013; Humanitarian

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Middlesex University Dubai, Dubai, United Arab Emirates

Corresponding Author:

Daphne Demetriou, Middlesex University Dubai, Block 17, Room S09, Knowledge Village, Dubai, United Arab Emirates.

Email: d.demetriou@mdx.ac.ae

International CriminalJustice Review

2019, Vol. 29(3) 262-283

ª2018 Georgia State University

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DOI: 10.1177/1057567718788931

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Organization for Migration Economics [HOME], 2012; Human Rights Watch [HRW], 2014a,

2014b; OSCE, 2010; Ricard-Guay, 2016).

It is well recorded that domestic workers, specifically migrant domestic workers, who are the

focus of this article, are often exposed to egregious forms of exploitation, and these can reach the

threshold of slavery, forced labor, and/or servitude (CN and V. v France, 2012; CN v. The United

Kingdom,2012;J. and others v. Austria, 2017; Siliadin v. France, 2005). These are forms of

exploitation which are explicitly recognized under the third element of the UN Trafficking Proto-

col’s definition. Reports reveal that many migrant domestic workers are exposed to long working

hours, limited or no remuneration, confiscation of documents, no freedom of movement, and

physical, sexual, and psychological abuse (Amnesty International, 2013; Anti-Slavery International

2014; HRW, 2014a, HRW, 2016; UN Human Rights Council (UNHRC), 2014).

Such exploitation has been included by national and international bodies under the trafficking

regime. Yet when looking at prosecuting individuals for such exploitation under the crime of human

trafficking, things become more complicated, since evidence is required to demonstrate that the

suspected individual meets all the elements of the offense.

The UN Trafficking Protocol provided the first international definition of human trafficking,

which comprises three elements: namely, the action element that includes recruitment, transporta-

tion, transfer, harboring, or receipt of persons; through specific means, such as coercion, deception,

and abuse of a position of vulnerability; and for a particular purpose, namely, that of exploitation,

(UN Trafficking Protocol, Article 3(a)). Article 5 of the Protocol requires states to criminalize the

practice of human trafficking within their national jurisdictions. Notably, the number of countries

that have adopted such antitrafficking criminal provisions increased from 33 in 2003, to 158 in 2016

(UN Office on Drugs and Crime [UNODC], 2016).

Considering the crime of human trafficking as set out in the Protocol, the three aforementioned

elements are divided into the actus reus and the mens rea of the trafficking offense. While the action

and means elements are considered to be the actus reus of the offense, the purpose of exploitation is

viewed as the mens rea (Gallagher 2010; UNODC, 2009a). Yet when one attempts to apply the

international definition of human trafficking to the commonly reported circumstances under which

migrant domestic workers come into exploitation, establishing the mens rea of the offense, through-

out the chain of actors involved in their recruitment and movement, becomes problematic.

Accordingly, this article looks at the mental element of this crime, as stipulated in the UN

Protocol, and examines this in light of the experiences and reported exploitation of migrant domestic

workers. By looking at the drafting history of the Protocol, as well as other accompanying docu-

ments, it attempts to apply this element to the different actors commonly involved in the migration

and alleged trafficking cases of migrant domestic workers, with a particular focus on the more

problematic role played by recruiters. Following this, other lower gradations of mens rea adopted by

some states are considered, setting out their implications in finding individuals liable of human

trafficking.

The article argues that the threshold of mens rea, as stipulated in the UN Trafficking Protocol,

will likely result in recruiters and agents in the countries of origin escaping liability, due to the break

in chain of actors and events from the time of recruitment to the actual exploitation at the country of

destination. Means such as deception and coercion are often reported as part of recruiters’ practices

in deploying workers abroad, and thus the recruiters are likely to be held accountable for lesser

offenses, such as the charging of exorbitant fees and contract substitution. Nevertheless, due to the

mens rea threshold as per the Protocol, their role in paving the way to exploitation, through these

practices, will likely fall short for the requisites of a human trafficking prosecution. Bearing this in

mind, the article suggests that states should either adopt a lesser threshold of mens rea, which would

then potentially allow for the trafficking prosecution of recruiters as well as employers, or maintain

Demetriou 263