January 27-28, 2004 Mumbai, India. Linda Smith invited me to talk about the Indian law on trafficking in persons.

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1 "A Victim Centered Approach to the Immoral Traffic Prevention Act: A Call for a New Anti-Trafficking Law" Speech Given at the Conference on Next Steps in Path Breaking Strategies in the Global Fight Against Sex Trafficking Dr. Mohamed Y. Mattar, Adjunct Professor of Law and Co-Director of The Protection Project at the Johns Hopkins University School of Advanced International Studies Linda Smith January 27-28, 2004 Mumbai, India Linda Smith invited me to talk about the Indian law on trafficking in persons. I asked her: "So what do you want me to cover?" She said: "In Moldova, you addressed trafficking as a crime control issue. In the Dominican Republic you addressed trafficking as an immigration issue. In India I want you to address a victim-centered approach to trafficking. Linda, this is what I intend to do, but I will limit myself to law reform, not law enforcement. I will leave enforcement issues to the U.S. Department of Justice and International Justice Mission. The Immoral Traffic Prevention Act And the Indian law that is relevant to trafficking in persons is The Immoral Traffic Prevention Act. The ITPA or the PITA The Act was drafted back in 1956, one of the best acts drafted in the 50s The Act was amended by the Suppression of Immoral Traffic in Women and Girls Act of 1978 The Suppression of Immoral Traffic in Women and Girls Act of 1986 The Title So my observations that I want to share with you this afternoon are about the Immoral Traffic Prevention of And I feel comfortable say a few things about the Act after I heard sever areas of criticism this morning for those who are more familiar with the Act than myself as an outsider And the title of the law may suggest three things. One: that the Indian legislator is addressing trafficking as a moral issue

2 Tw that the Indian legislator is enacting a law on trafficking Three: that the India legislator is adopting a preventive approach to trafficking That is what the title of the Act suggests. However, my reading of the Act led me to reach somewhat different conclusions. And here are the three questions again. Moral Issue: Prostitution and Prostitution Related Activities Issue One: Does the Act address trafficking as a moral issue? The title suggest that there is moral trafficking And that there is immoral trafficking However, the intent of the Act as it has been interpreted by the Indian courts is "to inhibit or abolish commercialized vice namely the trafficking in women and girls for the purpose of prostitution. Obviously, the Act adheres to the 1949 United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which states in the Preamble that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community " However, prostitution itself is not an offense under the Act. It is not a crime. What is a crime are the prostitution related activities. Thus, the Act draws a distinction between prostitution and the exploitation of prostitution. Only the exploitation of prostitution is considered wrong. The Act prohibits, A) Under Article 3, keeping a brothel or allowing premises to be used as a brothel. And the Act defines a brothel to include: "Any place which is used for the purpose of sexual exploitation or abuse for the gain of another person or for the material gain of two or more prostitutes. So a room in a hotel being used for the purpose of prostitution qualifies as a brothel under the Act. B) And, under Article 6, detaining a person in a brothel for prostitution, with or without consent is also a crime. C) Under Article 4, living on the earnings of prostitution is a crime. So a husband living with his wife and allowing his wife to be a prostitute is doing so for the purpose of living on the earnings of the prostitution of his wife. How about prostitution itself? Prostitution itself is only wrong when it amounts to a nuisance. This is what article 7 tells us as: "Any person who carries on prostitution and the person with whom such prostitution is carried in any premises which are within a distance of two hundred meters of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind may be punishable with imprisonment for a tern which may extend to three months." This three month imprisonment is enhanced to 6 months in cases of solicitation for the purpose of prostitution under article 8 "by words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or hours in any way) "

3 I am encouraged by what Assistant Attorney R. Alexander Acosta said at his keynote address when we were having lunch today. That there is a shift in prosecution and that more cases are now being prosecuted under Article 7 instead of Article 8. Trafficking Law? Issue Tw Is the Immoral Traffic Prevention Act an anti-trafficking law? The answer is maybe. No, depending on your definition of an anti-trafficking statute. The Act does not recognize trafficking in persons as a specific or separate crime. Instead, trafficking under the act is addressed merely as a prostitution-related activity. Trafficking under Article 5 is procuring, inducing or taking a person for the purpose of prostitution. The Act does not define for us trafficking in persons. The Act limits the crime of procurement to prostitution. The Act defines prostitution under section 2(F) as "the sexual exploitation or abuse of persons for commercial purposes." Exporting and importing of girls for prostitution is part of the penal code, sections 366A and 366 B and not the Immoral Traffic Prevention Act. The Immoral Traffic Prevention Act is basically an anti-prostitution law. It is not an anti-trafficking law. Issue Three: Does the Immoral Traffic Prevention Act adopt a preventive approach to trafficking? Although I do not believe that the traditional 3Ps approach, prevention protection, prosecution is adequate in analyzing the various aspects of a comprehensive response to combating trafficking in persons. I always add the 3 EXs. Extradition Extraterritoriality And Exchange of Information. Also, I always question whether legislation is a preventive issue or an issue of prosecution. I will submit to it for the purpose of examining the adequacy of the Act in combating trafficking. The Act focuses on criminalization and punishment. But it does not say anything about preventing prostitution or preventing trafficking. Nowhere in the Act is there any mention of addressing the root cause of the trafficking infrastructure or the appropriate preventive measures that must be taken to warn about the dangers of prostitution or the dangers of trafficking. Protection This brings me to the other P and that is protection. The Act provides, under Article 21, that the government may establish "protective homes," "institutions in which women and girls, who are in need of care and protection, may be kept."

4 And the government may also issues a license for a private person to establish and maintain such homes, provided that " the management of the protective home shall whenever practicable, be entrusted to women." This is interesting. Also interesting is that the Act, when establishing special police officers, including trafficking police officers, calls for associating such officers with social welfare workers, under article 13, including "women social welfare workers, whenever practicable" My understanding is that the government has been active in establishing these protective homes that provide education, job training and rehabilitation to victims of trafficking. I was also pleased to visit the protective, rescue, restorative homes that have been established and are maintained by Shared Hope International. Linda, you must be proud of what you have accomplished. Special Courts and The Double Witness Rule But a victim-centered approach to trafficking in persons requires more than just protective homes. The trafficked person must be recognized as a victim who is entitled to basic human rights including the right to be heard in court. I like that the Act calls for the establishment of special courts to decide cases of trafficking for the purpose of prostitution "if the central government or the state government is satisfied that it is necessary for the purpose of providing a speedy trial " [Article 22] However, it has been held that where the only direct evidence of the accused having imported a girl into the country is that of the girl herself and where it is not possible to obtain sufficient corroborative evidence, the evidence of the girl alone should be treated with caution and should not be " safely regarded as a basis for conviction in the absence of corresponding evidence." This is the double witness rule and it must be abolished. The double witness rule is contradictory to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which India signed on December 12, 2002, which mandates that "views and concerns [of the victims of trafficking] must be presented and considered against their offenders." Add to that the absence of any witness protection program in the Act. So how do we induce victims of trafficking to come forward and testify against their traffickers. But no where in the Act is there any reference to the trafficking person as a victim while the UN Trafficking Protocol does not define for us the concept of a victim of trafficking. I would like to refer you to the United Nations Declaration of the Basic Principles of Justice for Victims of Crime of 1985, which states that Victims are "persons who, individually or collectively, have suffered harm including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of the criminal laws operative within member states." I am encouraged by the ruling of the Indian Supreme Court and the Indian Supreme Court has various outstanding rulings protecting human rights people in this country that this status of a victim of a crime does not depend on whether such victim is an Indian citizen or a foreigner. In Railway Board v. Chandrima, a case decided in 2000, the Supreme Court of India affirmed awarding compensation for a victim of a rape committed in the building belonging to the

5 Railways and was perpetrated by Railway employees. The Supreme Court rejected the argument that the victim of the crime was from Bangladesh and therefore was not entitled to any relief and held that: "The victim who was not the citizen of this country was, nevertheless, entitled to all the constitutional rights available to a citizen so far the right to life was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution." The Court went on to say that "our Constitution guarantees all the basic and fundamental rights set out in the Universal Declaration of Human Rights of 1948 to its citizens and other persons." Unfortunately, the Act does not provide for the forfeiture of the assets of the trafficker which may be used to compensate the victims of trafficking and this is the case under the Dominican Republic law that Assistant Attorney General Acosta helped put together. The assets can also be used to initiate programs of assistance and protection along with providing incentives to police officers who investigated cases of trafficking in persons. The Principle of Non-Criminalization In addition, recognition of the trafficked person as a victim of a crime requires the application of the principle of noncriminalization of the acts of the victim of trafficking. Another victim centered approach that is absent in the Act. To be sure, the Act, in cases of engaging in prostitution in public places or solicitation for the purpose of prostitution, provides for the possibility of the court in lieu of a sentence of imprisonment, ordering for the detention of the female offender in a "corrective institution" after giving her the opportunity to be heard and making a determination that the character, state of health and mental condition of the offender and other circumstances of the case, are such that the offender is likely to benefit by such instruction and discipline [article 10], the female offender is to be kept in the corrective institution for a period between 2-5 years or until "there is a reasonable probability that the offender will lead a useful and industrious life.: But the Act punishes the woman in prostitution not the client except if he is engaged in a sexual act with a prostitute in a public place. A better approach is adopted by the January 1, 1999 law of Sweden that makes buying sex a crime that may subject the customer to 6 months imprisonment. In Macedonia, article 41 of the Criminal Code provides for a penalty of 6 months to 5 years imprisonment for anyone who buys sex from a person for whom he knows that she is a victim of trafficking. It is also not clear whether the Act applies to legal person as opposed to the natural person. It is also important to address the liability of the public person as opposed to the private person. Forms of Trafficking But limiting trafficking for the purpose of prostitution, as the case under the Immoral Traffic Prevention Act, ignores other forms of trafficking that must be confronted. Sex trafficking is not limited to trafficking for a commercial sex act. And commercial sex is not limited to prostitution. Trafficking of children for the purpose of sex tourism should also be recognized as a crime.

6 Non-commercial sex may constitute as a form of exploitation that gives rise to trafficking. A broad definition of trafficking should be considered by the Indian legislator to include: Trafficking of girls for the purpose of marriage to avoid the payment of a dowry, especially in cases of child marriages, despite the fact that the Child Marriage Restraint Act of 1929 prohibits marriages in which the female is under 18 and the male is under 21 years. Trafficking of girls for religious purposes to serve in temples as a "female slave of God" While trafficking for the purpose of forced labor may be recognized as a crime under Article 374 of the Penal Code that prohibits unlawful compulsory labor, the punishment for such offense is limited to one-year imprisonment. And while the Bonded Labor System Abolishment Act of 1976 prohibits bonded labor. Unfortunately, the Child Labor [Prohibition and Regulation] Act of 1986 merely sets conditions of employment of children under the age of 14. The Act must explicitly recognize trafficking for domestic service, begging and camel jockeys as forms of trafficking In closing In India, the right a person against exploitation is guaranteed under article 23 of the Constitution, which prohibits "traffic in human beings and similar forms of forced labor." The Immoral Traffic Prevention Act is limited to prohibiting prostitution and prostitution related activities. The Act was designed to implement India's international obligations in accordance with the 1949 United Nations Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others. The 1949 Convention mainly focuses on prostitution, not trafficking. But now we have a new UN Protocol It was the UN Protocol that created the international consensus as to what is considered to be trafficking in persons. The UN Protocol has become international law this last Christmas Day, December 25, Compliance with its international obligations under the UN Protocol will require the Indian legislator to review to the Immoral Traffic Prevention Act. Such review is also imperative in light of the regional SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution that, while limiting trafficking under Article 13, to "the moving, selling or buying of women and children for prostitution " requires that State parties to make the necessary changes to provide for the care and maintenance of the trafficked person. Such review is also imperative in light of 1998 Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children The Action Plan explicitly provides in Paragraph 22 that "the present legal framework results in the revictimization of the victims of exploitation while the exploiters go free." My understanding is that the Indian legislator is considering a new domestic violence law. It is also my understanding that the Indian legislator is enacting a new domestic service law. A new anti-trafficking act is needed to provide a more comprehensive approach to trafficking in persons A new anti-trafficking act is needed to recognize the trafficked person as a victim of crime who is entitled to fundamental human rights.