Human trafficking investigations and victim identification

monique_esmerAuthor: Monique Emser
Research Associate,  Department of Criminal and Medical Law, University of the Free State, South Africa

World Day of Social Justice –  Ending human trafficking and forced labour: 20 February 2015

The identification and investigation of human trafficking cases is perhaps one of the most challenging and complex activities facing law enforcement and prosecution in South Africa, and the African region.

Despite new laws, widespread awareness-raising, the formation of specialised multi-agency task teams, and training of key public officials, little inroads have been made in combating and preventing trafficking. Indeed, the number of reported cases and victims assisted remain low, while the prevalence of trafficking appears to be increasing. Human trafficking remains a hidden crime which obviates simple solutions.

Comprehensive and socially inclusive counter-trafficking legislation which is victim-centred is a vital component for effective counter-trafficking governance. While South African anti-trafficking legislation was signed into law in 2013, it is yet to commence. Human trafficking remains partially criminalised. Prosecution of the crime, and victim assistance, is reliant on a transitional and inchoate legal and policy framework. The slow pace to bring the new law into force has several implications for law enforcement, prosecutors and service providers who are beginning to confront the problem at both national and local levels.

An effective law enforcement response ‘is not limited merely to the application of law in individual cases but has relevance to all dimensions of the complicated facets of trafficking.

Accountability, formalised cooperation and coordination of counter-trafficking role players are either limited or lacking within and across agencies and jurisdictions. This can negatively impact upon the identification and investigation of human trafficking cases, victim assistance and protection, and ultimately the successful prosecution of traffickers.

Indeed, lack of communication between agencies may be a primary contributor to the paucity of cases.[1] Counter-trafficking operations are reliant on valuable information (intelligence) which ‘is often scattered or unrecorded, hampering cooperation between relevant authorities and playing into the hands of traffickers.’[2]

An effective law enforcement response ‘is not limited merely to the application of law in individual cases, but has relevance to all dimensions of the complicated facets of trafficking.’[3] A positive burden is placed on law enforcement which deals with a wide range of counter-trafficking issues from victim assistance and protection to the prosecution of traffickers.

Indeed, ‘[i]nitial actions taken by police are crucial to the ultimate success of prosecutions.’[4] Any miscalculation or incorrect procedure can lead to the case being thrown out on a technicality.

The so-called ‘Doctor’s Case’ in KZN, reviewed in the latest LexisNexis quarterly Human Trafficking Awareness Index report, is illustrative of the need for procedural accuracy in the application and execution of search warrants. This trial within a trial has raised questions around victim testimony and issues of witness credibility, as well as the authenticity of the commissioned affidavit and admissibility of evidence obtained from a search of the alleged brothel premises.

Counter-trafficking practitioners have two key obligations: (i) to combat trafficking by prosecuting traffickers, protecting victims and preventing the crime; and (ii) to do no harm. Unfortunately, trafficked persons are often subjected to double victimisation.

This typically occurs when victims are treated as criminals by the police or immigration officials. For instance, when brothels are raided or when a victim’s illicit migration status leads to their deportation (and who are subsequently picked up in their country of origin by those who trafficked them in the first place); or when they are shunned by their own families and communities solely because of their victim status and return to their traffickers or exploiters.

In addition, law enforcement officers tend to be reluctant to intervene in cases of sex or labour trafficking where they perceive the victim to be complicit with their own victimisation or belong to a sub-population who has a poor relationship with law enforcement.[5]

Compounding this is the role played by institutional resistance to investigate cases of human trafficking where the prosecution and conviction rate is low.

[1]See for example, Phyllis J. Newton, Timothy M. Mulcahy, Susan E. Martin, ‘Finding Victims of Human Trafficking’, NORFC Final Report, October 2008.

[2]Austrian Ministry of Interior Development of Guidelines for the Collection of Data on Traffickingin Human Beings, Including Comparable Indicators, Vienna: International Organization for Migration, (2008): 20.

[3]Kevin Bales and Steven Lize, ‘Investigating human trafficking: challenges, lessons learned and best practices’, FBI Law Enforcement Bulletin, April 2007, Vol. 76, No. 4(United States Department of Justice, Federal Bureau of Investigation).

[4]Jana Arsovska and StefJanssens, ‘Human Trafficking & Policing: Good & Bad Practices’, in Cornelius Friesendorf (Ed.), Strategies Against Human Trafficking: The Role of the Security Sector, Study Group Information, National Defence Academy and Austrian Ministry of Defence and Sports, September (2009): 170.

[5]Amy Farrell, Jack McDevitt, Stephanie Fahy, ‘Understanding and Improving Law Enforcement Responses to Human Trafficking: Final Report’, December 2008.

About the Author:
This is the first in a series of three related opinion pieces written by Monique Emser, PhD, who wrote this in her personal capacity. She is an expert on human trafficking in South Africa. She works as a research associate with the Department of Criminal and Medical Law at the University of the Free State, as well as a member of the KwaZulu-Natal Human Trafficking, Prostitution, Pornography and Brothels Task Team. She also wrote the first two LexisNexis Human Trafficking Awareness Index™ reports available at www.lexisnexis.co.za/ruleoflaw

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