A Regional Comparative Legal Analysis of Sex Trafficking and Sex Tourism Mohamed Y. Mattar, S.J.D. Adjunct Professor of Law and Executive Director, The Protection Project of The Johns Hopkins University School of Advanced International Studies (SAIS) Singapore April 25-27 2005 I am delighted to be here in Singapore, such a beautiful country, as a part of the War Against trafficking Alliance. I traveled with Linda Smith to: Moldova, where I criticized articles 165 and 206 of the Moldovan Criminal Code; The Dominican Republic, where I analyzed the Law n. 137-03 regarding Illegal Trafficking of Migrants and Trade in Persons; India, where I called for the amendment of the Immoral Traffic Prevention Act, and South Africa, where I discussed the proposed changes to the Sexual Offences Act. The assignment Linda gave me for this summit is to provide A regional comparative legal analysis of sex trafficking and child sex tourism in East and South East Asia, and I will include the United States, since there have been many cases of sex trafficking from Korea to Michigan, Japan to Hawaii, Taiwan to Seattle and Vietnam to Georgia, and there have been many cases of sex tourism involving Americans traveling to Cambodia and The Philippines. And because I am speaking after Professor Vitit, whom every time I listen to I learn something new, and because I am speaking to you before lunch, I will limit myself to a discussion of few things: A definition A link A target A doctrine A principle I. The definition Sex trafficking and sex tourism have something in common and that is bad sex, or to use the legal terminology, illicit sexual activity. And consequently any appropriate legal response to the problem of sex trafficking must redefine sex to avoid illicit sexual activities. After all, the term sex appears twice in the title of this summit. What does this mean?
It means that sex trafficking should not be limited to trafficking for the purposes of a commercial sex act. While prostitution is a main target of trafficking, one should not forget that trafficking for other forms of commercial sexual exploitation should be included in our definition of sex trafficking. So trafficking for the purposes of pornography should be explicitly recognized as a form of trafficking. But this is not enough. I define sex trafficking to include not only trafficking for a commercial sex act, but sexual explicit performances as well. And that is why I support the United States Department of Justice State Model Law on Trafficking that recognizes that many cases of trafficking involve not prostitution, but stripping. And that was the case in the first case that was decided under the Trafficking Victims Protection Act of 2000. In United States v. Virschenko, a Russian dancer recruited 6 women, including 2 minors, to Alaska to dance in a strip club. This is why Entertainment Visas should be strictly regulated so that they are not used illegally by the traffickers. So, it was no surprise that South Korea for a period of time ceased issuing entertainment visas to dancers from The Philippines, who usually ended enslaved by their traffickers. Virschenko was sentenced to 48 months in prison after he entered into a plea agreement with the Government. While plea-bargaining may help increase prosecution, a trafficker should not be able to completely drop his trafficking charges. I am in the process of drafting with the help of the University of Baltimore A Model Procedural Law on Trafficking in Persons. I propose the following language: A person charged with a trafficking offence may only enter into a plea agreement if the agreed plea includes a trafficking offence. Anyway, Civil law systems have no concept of plea-bargaining, and only Australia, Israel, Colombia and the US allow for a plea-bargaining. So, although stripping may be a profession that is recognized by the law, strip clubs should not be allowed to be used as front for prostitution. Similarly, while massage may also be a profession that is licensed under the law, prostitutionmassage or massage with special ending must be prohibited.
Sex is also bad when you take a trip as a tourist: with the primary purpose of having sex with a resident of the country of destination; or when facilitating or affecting sex by the tourist with such resident; or when you are traveling for business or vacation or other purposes and seize the opportunity to have sex on the side with children. This is the why not sex, or the situational child sex tourism, or the accidental child sex tourism and it is bad sex. So, intent to travel to have illicit sex should not be a requirement for the establishment of the crime of child sex tourism. This was the case under the United States Child Sexual Abuse Prevention Act of 1994. This is why in the U.S. until 2003 we basically had one case of prosecution. In United States v. Hersh, professor Hersh used to travel to Honduras to have sex with children. He brought a child to Florida as his adopted child. He sent him to school in the morning and had sex with him at night. His ex-wife called the FBI. Professor Hersh got 105 years in prison. Sex tourism, or packaged sex that includes airfare and ground transportation, hotel accommodation and sex tours should be illegal, whether you have sex with an adult or a child. I do not distinguish, in term of legality, between adult prostitution and child prostitution. Prostitution should be illegal, and this is the case in many countries in the region, including the Philippines, Cambodia, China, Japan, Malaysia, and Thailand. I also like our definition of bad sex to include not only commercial sex but non-commercial sex that involves abuse, whether we are talking about: a. forced marriages; b. arranged marriages; c. early marriages; d. temporary marriages; e. marriage by catalogue or mail-order bride f. marriage for the purpose of child bearing. The Philippines, for example, is widely known as a significant origin country for mail order brides. II. The link We have to aware of the link between sex trafficking and sex tourism.
Although I have to admit that there are no studies that prove such a link. I hope that this will be an area of research that Shared Hope International is going to be looking into. The Protection Project will be happy to be part of this research. But I like that his link be established as a part of a law that is designed to combat sex trafficking and sex tourism. How do you do that? Well, you define sex trafficking to include sex tourism. In fact, the early draft of Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime included sex tourism as a form of sexual exploitation. And on the plane, I was preparing for a question which I expect you to ask me and that is: Why the United Stats did not ratify the United Nations Protocol? A hearing was held in the United States Senate Foreign Relations Committee on June 17th, 2004. And Senator Richard Lugar, the chair, asked: Will the Protocol require implementing legislation for the United States? The answer was: No, sir. I am quoting: The Trafficking Victims Protection Act sets out a comprehensive framework for protecting victims of trafficking and combating trafficking in persons domestically and abroad. Another question was raised: Would ratifying the Protocol require the United States to change its policy in prostitution? Answer was: No, sir. And I am quoting: The Protocol is without prejudice to how state parties address prostitution in their respective domestic laws. Thus, the practices and policy choices related to prostitution of individual states in the United States are unaffected by this Protocol. In the East and South-East Asia region Only the Philippines, Laos and Burma have already ratified the Protocol. While Cambodia, Indonesia, Japan, Thailand and Fiji signed the Protocol The countries of Singapore, China, South Korea, Malaysia, Vietnam did not even sign it. The Philippines, implementing the provisions of the Protocol, explicitly recognizes sex tourism as a form of trafficking in Article 4 of the 2003 Philippines Anti-Trafficking in Persons Act. Based upon this article, I drafted Article 2(2) of the Model Law, which reads as follow:
It shall be considered an act of trafficking in persons when a person undertakes tours and travel plans consisting of tourism packages or activities utilizing a child for prostitution or sexual exploitation. The act of trafficking may be transitional, such as trafficking young girls from the Shan State in Burma into the sex tourism industry in Thailand, after they are surgically revirginized so as to continue to generate high profits for the Thai sex industry. But the act of trafficking may be internal where these Thai children are moved in Thailand to tourist zones. So, there is sex in the city or Sex and the city and there is sex performed in a foreign land. Both must be criminalized as bad sex, as the case under article 3(a) of the 2003 Anti-Trafficking in Persons Act of The Philippines, which makes trafficking an offence with or across national borders. III. The target Any effective legal response to the problem of sex trafficking or sex tourism must target all the actors in the exploitation enterprise. That will naturally include the natural person, the customer, the client, the purchaser of the sexual services, the tourist who is traveling to engage in sex with a child. Here the legal system must do two things. The legal system must recognize sex tourism as a specific offence. Unfortunately, none of the countries in the region follow the Australian model. I am referring here to the Australian Child Sex Tourism Act, No. 105, of July 5, 1994. The United States PROTECT Act, Section 105 is another good model. Under the PROTECT Act, two important cases have been decided. United States v. Clark, where Micheal Louis Clark, a 69-year-old retired U.S. Sergeant was sentenced to 8 years in prison for traveling to Cambodia and engaging in sex with homeless children 10 and 13 years old. And United States v. Seljan, a case decided in 2005, where John W. Seljan, an 87-year-old man from the United States, was sentenced to 20 years in prison for traveling to the Philippines to engage in sex with two girls who were 9 and 12 years old. So, sex tourism must not only be recognized as a specific offence. It must also be recognized as a serious crime. The punishment for sex tourism in the United States is up to 30 years in prison.
The punishment for sex tourism in Australia is up to 17 years in prison. In Singapore, under the Children and Young Persons Act anyone who participates in transferring a child for consideration is subject to imprisonment for up to 4 years and this is not a serious offence. And under the Women s charter, anyone who buys, sells, procures, or traffics into or out of Singapore a woman or a girl for the purpose of prostitution is to be punished by imprisonment up to 5 years and this is not a serious offense. And it is not enough since it does not target the customer, the natural person. An international initiative that has been taken recently is encouraging. The United States, on Women s Day, March 8, 2005 introduced a new Resolution to the United Nations Commission on the Status of Women. The U.N. Resolution was adopted calling upon governments to Take all appropriate measures to eliminate demand for trafficked women and girls for all forms of exploitation, and Adopt or strengthen and enforce legislative or other measures, such as educational, social and cultural measures, including through bilateral and multilateral cooperation, to deter exploiters and eliminate the demand that fosters trafficking of women and girls for all forms of exploitation. The early draft of the Resolution recognizes that prostitution and the trafficking 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, basically adopting the language of the 1949 Convention but countries that legalize prostitution did not like this language so it was deleted in the final draft. But the resolution is in line with article 9(5), of the Trafficking Protocol that calls upon countries to discourage demand for sex that fosters exploitation of women and children and that leads to trafficking. And countries have been struggling to address the issue of demand for sex, and unfortunately demand is on the rise. For instance, the Swedish law of January 1, 1999 prohibits buying sex not selling sex and the purchaser of sexual services may get up to six months imprisonment. This is Chapter 23 of the Swedish penal Code. The statistics that The Protection Project acquired show that: In 1999: 94 clients were charged with the crime; In 2000: 22 clients were charged with the crime; In 2001: 86 clients were charged with the crime;
In 2002: 110 clients were charged with the crime; And in 2003: the number of clients charged is more than tripled: in 2003, 300 clients were charged with the crime of buying sex. Similar laws have been enacted in Norway and Finland. However, both laws only criminalize buying sex from a person under the age of 18. Another approach is adopted by article 418(a) of the criminal code of Macedonia, which criminalizes buying sexual services from a woman in prostitution with the knowledge that she is a victim of trafficking. Punishment here is between six month and five years imprisonment. In the United States currently there are two pending pieces of legislation that call for measures to combat demand. One is End Demand for Sex Trafficking Act of 2005 calling for public awareness programs, educational programs for the first time purchasers of unlawful commercial sex, publication of names and addresses and other good measures discouraging demand. The second is the Trafficking Victims Protection Reauthorization Act of 2005 that will amend Section 108 of the Trafficking Victims Protection Act of 2000 (TVPA) whereby the United States monitors the status of severe forms of trafficking in persons a. by examining whether a country is taking measures to combat demand for commercial sexual activities; b. the Act also amends the section by asking whether a country is taking measures to combat sex tourism. c. The Act will also amend the Section by inquiring into whether the government of a foreign country is taking measures to ensure that its nationals do not exploit victims of trafficking and whether the government of the country punishes those who do so. This is important, since the UN peacekeepers fall under the exclusive criminal jurisdiction of their own country. There are currently 15 UN peacekeeping missions operating around the world. Rule 4 of the UN General Assembly Code of Conduct of 1993 explicitly states that UN peacekeepers should "not indulge in immoral acts of sexual, physical, or psychological abuse or exploitation of the local population or United Nations staff, especially women and children." There were 24 cases of misconduct found by the United Nations Board of Inquiry. None of them resulted in conviction by the national authorities. These are additional duties to be carried out by the U.S. State Department office to monitor and combat trafficking in persons.
I would like to recognize Amy O Neil Richard, Senior Special Advisor to the Director of the Office and I would like to applaud the leadership of Ambassador John Miller. However, it remains to be seen how these new standards for the elimination of trafficking would affect the 3 tier and the watch list placement, especially considering that many of the countries that the U.S. places in tier one are countries of demand. It also remains to be seen how countries in the Asian region will change their laws and policies, especially considering that none of the countries in the region adequately provides for effective measures that target demand. But going after the natural person is not enough. We also have to hold the legal person liable. This is the juristic persons, the moral person, the corporate person. Liability of the legal person was established for the first time under international law in accordance with Article 10 of the United Nations Convention against Transnational Organized Crime, which calls upon the state parties to provide for criminal, civil and administrative sanctions that may be imposed against the corporation. And that is why the model law in Article 2 of the Model law provides that Any person, whether natural or legal, who directs, organizes, promotes, facilitates, or transports tourist activities that include the sexual use of a child is guilty of the offense. Penalties include imprisonment and forfeiture of property traceable to profits or other proceeds from the enterprise. In the United States, a restraining order was issued against the Big Apple Oriental Tours in July 2003, restricting the company that arranged trips soliciting customers for prostitution in the Philippines and Thailand, from organizing or advertising any future tours. But since we are nice people here, and we like corporations and businesses, I would like to advocate for the Code of Conduct and encourage corporation and businesses to abide by it. Here I would like to recognize the good work of ECPAT. The idea is simple; corporations must adopt an ethical policy to combat commercial sexual exploitation of children in the tourist industry. Corporations must consider profits made from commercial sexual exploitation of children in the tourist industry must be considered illegal gains. A recent report by the ILO, the International Labour Organization indicates that between 2-14% of the Gross Domestic Product of Indonesia, Malaysia, The Philippines, and Thailand comes from sex tourism. And we cannot be effectively targeting the actors in the exploitation enterprise without targeting the public person. So, in addition to going after the natural person and the legal person, corruption of the public person must be confronted.
In United States v. Kang, a case decided this last February 2, 2005, a Korean couple, owners of a nightclub in New York lured Korean women to New York with promises of jobs as hostesses. They were then forced to have sex with their clients. An agent of the U.S. Department of Homeland Security was indicted for conspiracy to obstruct justice for attempting to force one of the victims to get on a flight to South Korea to keep her from testifying against the couple. IV. The Doctrine Sex Trafficking and sex tourism are transnational crimes that require transnational policies and a regional approach that includes cooperation. In 2004, Cambodia, Laos, China, Thailand and Vietnam adopted the Mekong Children s Recommendations for Action on Human Trafficking. Recommendations included: a. closing karaoke bars linked to the sex trade, b. cracking down on corruption and bribery, and c. calling on parents and the public to do more to protect children from trafficking But the doctrine that is important for our purpose in combating demand in sex tourism is the doctrine of extraterritoriality. Tourists travel to countries of destination that have lax laws and lack adequate legislation that punishes a sex tourist or do not enforce such legislation. So, countries of origin must enact laws that hold their nationals criminally liable for acts they committed outside their territory. This is what we mean by the doctrine of extraterritoriality as basis for jurisdiction. And this is the case under the penal code of Thailand that amended the Act whereby the code has expanded the jurisdiction of Thailand to cover indecent sexual acts and trafficking offenses provided in section 282 and 283 of the code, irrespective of where such offenses are committed or the nationality of the offender. But there are problems in the application of an E.T. legislation. One is the age of a child. a. While article 1 of the Convention on the Rights of the Child defines a child as every human being below the age of 18 years, the Convention allows state parties to recognize the age of majority earlier. b. The age of legal consent also varies from one country to another
c. The 1994 Australian sex tourism law prohibits an Australian from engaging in sexual activities with children under the age of 16 while abroad. 16 is also the age recognized in the extraterritorial laws of the Netherlands and Belgium, while France and Sweden are satisfied with the age of 15. We need a uniform age of consent, preferably 18. Otherwise, the tourist will go free every time he has sex in a country of destination that has a lower age of consent and the extraterritorial law requires double criminality. And this is why an effective E.T. legislative should not require double criminality. Unfortunately, unlike the laws in the U.S., Germany, Australia and Belgium, the laws of Sweden, The Netherlands and Switzerland will not prosecute a citizen for the crime of sex tourism committed in another country, unless his action constitutes an offence that violates the law in both countries, the country of origin and the country of destination where the crime has been committed. Another problem besides double criminality is double jeopardy. The law of Sweden, for example, does not allow a Swedish judge to prosecute a sex tourist who has been prosecuted in the country of destination or to convict such tourist with a sentence that is higher that the sentence imposed for the crime in the country of destination. Conviction for a short sentence or acquittal for sex tourism in a country of destination bars the prosecution of the sex tourist in his country of origin under this interpretation of the doctrine of extraterritoriality. Anyway, it is encouraging that in addition to extraterritoriality the international community is now considering trafficking in persons as a crime against humanity that is to be universally condemned under article 7 of the International Criminal Court statute. V. The Principle According to the traditional approach to combating sex trafficking and sex tourism, we have to adopt a 3Ps approach. Prevention, such as enacting anti-trafficking legislation. Currently if you ask me about the legal anti-trafficking map or the current status of anti-trafficking legislation based on our study at the Protection Project, there are at least 25 countries that have comprehensive anti-trafficking laws, such as The Philippines 2003 anti-trafficking act; and there are at least 15 countries that have pending bills, such as Indonesia. I will be in Indonesia next week, talking about the new bill and it is a good one; and there are about 100 countries that have criminal law provisions that comply with Article 5 of the UN Protocol but are not doing much in the areas of protection and prevention. And this is the case in Russia. I will be there next month making the case that article 127 is not enough.
And this is the case in most other countries in the Asian region, as mentioned in the Summit Report. And there are the remaining 50 something countries that do not care. So anti-trafficking legislation is needed. That is prevention. And other good examples or best practices of prevention include: Thailand adopting in 2000 a Compulsory Education Act, raising the age of compulsory education to 9. Or Indonesia following the Tsunami banning travel of children abroad without their parents. Protection: it means that you recognize the trafficked person as a victim. A bad practice is what happened in August 2002, when 10 Vietnamese girls ranging from age 12 to 18 were arrested and convicted on immigration violations in Cambodia. The girls were sentenced to 3 months in prison and subsequently deported, even though they were trafficked into Cambodia against their will and were forced to engage in prostitution. A trafficked person must be recognized as a victim. Such person must also be recognized as a vulnerable victim. I adopt a 5 Vs approach to the victim-centered analysis, including 1. the victim; 2. the derivative victim; 3. the potential victim; 4. the presumed victim, and 5. the vulnerable victim. In the United States, the vulnerable victims enhancement doctrine was argued in two cases that are important for the purpose of this summit. In United States v. Verapool, the wife of the Thai ambassador recruited girls from Thailand to work in her home and restaurant in Los Angeles. They were enslaved. In United States v. Castaneda, the co-owner of the Mood & Music Club recruited three young women from The Philippines for waiting tables and singing. Once hired, they were forced to provide customers with sexual services in private rooms. Prosecution: It means enforcing the law by punishing the offender.
The first successful prosecution of sex tourists was in Norway in 1990, where the Norwegians were sentenced for indecent intercourse with 13-year-old boys in The Philippines and Thailand. In Australia as of March 2004 there have been 16 prosecutions and 12 convictions under the 1994 Sex Tourism Act. But imprisonment is not the only criminal sanction that should be considered by the legal system. Australia has a pedophile watch list used by law enforcement agencies to warn other countries when a known child sex offender is heading their way. Other countries should consider revoking the passport of a convicted sex tourist so he may not be able to travel again as a tourist for the purpose of engaging in sex with a child. But there is a missing P, and that is the principle of participation. By participation I mean the participation of the ordinary citizen, who should be encouraged to actively participate in reporting suspicious criminal activities, whether they are sex trafficking or sex tourism. And by participation I mean the instrumental role that non-governmental organizations play in conducting public awareness campaigns alerting the traveler that sex tourism is a crime. NGOs have the capability of bringing together Airlines, Airports, Tour Operators, Travel Agencies, hotels, bars, and other corporations and businesses to send the right message to the tourist, especially when such tourist is traveling to a country where sex tourism is significant using the language of the United States Trafficking Victims Protection Reauthorization Act of 2003. The United Nations Protocol was not explicit in providing for the participation principle, although it mandates that state parties must operate with NGOs in adopting prevention measures to combat trafficking under art. 9, and measures of assistance and protection under Art. 6. I make the argument here that there is an international obligation of cooperation with NGOs that is imposed upon every state. That is why I like article 13 of the United Nations Convention against Corruption, which was adopted October 31, 2003, and 15 countries have already ratified it. We need 30. Article 13 of the Convention provides that each state shall take appropriate measures to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations And if I am talking about the principle of participation and the role of civil society, nongovernmental organizations and community-based organizations, let me recognize the compassionate service of Shared Hope International.
In the conclusion of this six-country program I would like to recognize the leadership and commitment of the Founder and President of Shared Hope International and the War against Trafficking Alliance. On behalf of The Protection Project at the Johns Hopkins University School of Advanced International Studies, I present an award of appreciation to my good friend, reliable partner, and natural leader, Linda Smith. Thank you.