US State Dept. Trafficking in Persons Report 2014

[Clark]

http://www.state.gov/j/tip/rls/tiprpt/2014/226646.htm

Topics of Special Interest

Human Trafficking and the Demand for Organs

More than 114,000 organ transplants are reportedly performed every year around the world. These operations satisfy less than an estimated 10 percent of the global need for organs such as kidneys, livers, hearts, lungs, and pancreases. One third of these operations include kidneys and livers from living donors. The shortage of human organs, coupled with the desperation experienced by patients in need of transplants, has created an illicit market for organs.

Governments, the medical community, and international organizations, such as the World Health Organization, are addressing the illicit sale and purchase of organs through the adoption of regulations, laws, codes of conduct, awareness campaigns, and mechanisms to improve traceability of organs, as well as to protect the health and safety of all participants. Many countries have also criminalized the buying and selling of human organs. Unscrupulous individuals seeking to profit from this shortage, however, prey on disadvantaged persons, frequently adult male laborers from less-developed countries. These living donors are often paid a fraction of what they were promised, are not able to return to work due to poor health outcomes resulting from their surgeries, and have little hope of being compensated for their damages. This practice is exploitative and unethical, and often illegal under local law. Sometimes it also involves trafficking in persons for the purpose of organ removal.

But what makes an illegal organ trade also a human trafficking crime?

The sale and purchase of organs themselves, while a crime in many countries, does not per se constitute human trafficking. The crime of trafficking in persons requires the recruitment, transport, or harboring of a person for organ removal through coercive means, including the “abuse of a position of vulnerability.” Cases in which organs are donated from deceased donors who have died of natural causes do not involve human trafficking.

Some advocates have taken the position that when economically disadvantaged donors enter into agreements for organ removal in exchange for money, they invariably become trafficking victims because there is “an abuse of a position of vulnerability.” Abuse of a position of vulnerability is one of the “means” under the Palermo Protocol definition of trafficking in persons. Thus, if a person who is in a position of vulnerability is recruited by another who abuses that position by falsely promising payment and health care benefits in exchange for a kidney, the recruiter may well have engaged in trafficking in persons for the purpose of organ removal. The UN’s Office on Drugs and Crime (UNODC) states in its Guidance Note on “abuse of a position of vulnerability” as a means of trafficking in persons that the abuse of vulnerability occurs when “an individual’s personal, situational, or circumstantial vulnerability is intentionally used or otherwise taken advantage of such that the person believes that submitting to the will of the abuser is the only real and acceptable option available to him or her, and that belief is reasonable in light of the victim’s situation.” Thus, poverty alone—without abuse of that vulnerability in a manner to make a victim’s submission to exploitation the “only real and acceptable option”—is not enough to support a trafficking case, whether the exploitation is sexual exploitation, forced labor, or the removal of organs.

Victims’ Consent

A common perception of a trafficking victim is of a woman kidnapped, made to cross a border, forced into sexual slavery, and physically beaten. The reality of human trafficking is frequently much more subtle. Vulnerable individuals may be aware of, and initially agree to, poor working conditions or the basic duties of the job that underlies their exploitation. Victims may sign contracts and thereby initially agree to work for a certain employer, but later find that they were deceived and cannot leave the job because of threats against their families or overwhelming debts owed to the recruitment agency that arranged the employment.

On the issue of victims’ consent to exploitation, the Palermo Protocol is clear: if any coercive means have been used, a victim’s consent “shall be irrelevant.” This means that a man who has signed a contract to work in a factory, but who is later forced to work through threats or physical abuse, is a trafficking victim regardless of his agreement to work in that factory. Similarly, a woman who has voluntarily traveled to a country knowing that she would engage in prostitution is also a trafficking victim if, subsequently, her exploiters use any form of coercion to require her to engage in prostitution for their benefit. If a state’s laws conform to the Palermo Protocol requirements, a trafficker would not be able to successfully defend a trafficking charge by presenting evidence that a victim previously engaged in prostitution, knew the purpose of travel, or in any other way consented or agreed to work for someone who subsequently used coercion to exploit the victim.

With regard to children, the Palermo Protocol provides that proof of coercive means is not relevant. Thus, a child is considered to be a victim of human trafficking simply if she or he is subjected to forced labor or prostitution by a third party, regardless of whether any form of coercion was used at any stage in the process.

Even if the legal concept of consent is clear, its application is more complex in practice, especially when the victim is an adult. Many countries struggle with uniform application of this provision. In some countries, courts have thrown out trafficking cases when prosecutors have been unable to prove that the victims were coerced at the outset of recruitment. For example, in one European country, a judge rejected trafficking charges in a case where a mentally disabled man was forced to pick berries. Despite clear use of force to compel labor—the victim was dragged back to the labor camp with a noose around his neck—the court held that lack of proof of coercion from the very beginning of recruitment nullified the trafficking. In other countries, defense attorneys have made arguments that victims’ prior prostitution proves that they had not been forced to engage in prostitution. More subtly, consent may influence whether prosecutors bring trafficking cases at all. Cases without the “paradigmatic victim” may prove more difficult to win because there is a risk that the judge or jury will view the victim as a criminal rather than a victim. To be successful, these cases require both strong legal presentations and compelling evidence in addition to victim testimony. Efforts to further address the challenging issue of consent would not only help ensure that victims’ rights are protected, but would also align prosecutions with the Palermo Protocol requirements. Such efforts might include the explicit incorporation of the Palermo Protocol provision on consent into domestic criminal law and the training of investigators and prosecutors. It is helpful to clarify for fact finders—whether they are judges or juries—that consent cannot be a valid defense to the charge of trafficking and to educate them on the various forms that apparent consent may take (e.g., contracts, failure to leave a situation of exploitation, or victims who do not self-identify as victims). Similarly, investigators can learn that investigations do not need to stop just because a victim had expressed a form of consent.