The Realities of Investigating & Prosecuting Human Trafficking Cases

1. The Realities of Investigating & Prosecuting Human Trafficking Cases Advocate Val Lotan Organised Crime Component DPP: KZN 24/03/2010

2. Human Trafficking in its simplest definition is: “Modern Day Slavery” Buying and selling of human beings for purpose of exploitation

3. The Saartjie Baartman Story A famous SA example of trafficking of a human being for exploitation

4. In 1810 - 21 year old Saartjie Baartman • A farm worker in the Cape • Promised fame, fortune and freedom by a visiting surgeon from England • She accepted and travelled to London with him.

5. She was exhibited naked in Paris and England and exploited by her trafficker for profit. • Labelled “Hottentot Venus” • She died 6 years after leaving SA at age 27. • Her body was dissected, organs removed and displayed in a French Museum. • 200 years later her experience is all too common for men, women and children

6. S70 (1) (b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007provides the prosecution with transitional legislation within which to prosecute human trafficking

7. Criticism of S70 / S71 • Only trafficking for sexual exploitation is criminalised!!! • Police and Prosecutors have to therefore look to other legislation to deal with other forms of TIP. • Hence the urgency for the TIP to be passed to address all forms of exploitation

8. Section 70 Act 32 of 2007 Defines trafficking as:

9. SUPPLY and SALE

10. RECRUITMENTPROCUREMENT

11. TRANSPORTATIONTRANSFER

12. CAPTUREHARBOURING

13. REMOVAL, DISPOSAL & RECEIVING

14. OF A PERSON WITHIN OR ACROSS THE BORDERS OF SA by

15. BY THREATS FORCECO-ERCIONINTIMIDATIONABDUCTIONFRAUDDECEPTIONABUSE OF POWERGIVING OF A BENEFIT

16. FOR THE PURPOSE OF SEXUAL EXPLOITATION

17. OTHER FORMS OF TRAFFICKING INCLUDE THE FOLLOWING: Police and Prosecution have to use other legislation to address other forms of exploitation

18. The faces of trafficking common to our cases

19. “Fresh young Meat” • at a price! • People have sell by dates • The younger, fresher the person (incl. virgins)– the higher the price that will be paid • Older, addicted, persons will be sold to brothels that can only afford a low price to pay

20. “I wasn’t even permitted to sleep. I could eat, but only if very fast, just for a few minutes. I had no right to sleep. If I decided to go to bed, he would beat me, and throw me out onto the street.” Face of violence

21. Loss of Personal Freedom

22. Rape, sexual assault

23. Trafficking is a Human rights Crisis Internationally !!!!!!!!! • Human trafficking: 3rd largest criminal industry in the world, outranked only by arms and drug dealing. • The U.N estimates that trafficking in persons generates $7 to $10 billion annually for traffickers.

24. Why does Organised crime syndicates focus on Trafficking in Human Beings • Low Investment costs 2. Maximum profits can be obtained 3. Penalties are mild when compared to other organised crime, such as drug offences

25. HT may be difficult to detect and requires proactive / reactive investigations to uncover • It is a Crime shrouded by secrecy • Fronts of legitimate businesses • Victims are threatened / afraid to talk • Corruption is rife in various departments.

26. We have yet to receive a direct report of Human Trafficking being reportedIt is usually the underlying offences of “prostitution”keeping a brothelImmigration Offencesthat are reportedCertain of these offences can form the basis of a Human trafficking investigation and includes elements of organised crime

27. From these cases we have identified signs of HT such as: • Evidence of control and lack of ability to move freely or leave job • Signs of physicalabuse / threats of abuse • Fear or depression • Non-English speaking • Recent arrival from Asia, Latin America, Eastern Europe, Canada, Africa, India or within the country.

28. Lack of ID or immigration documents • Debt bondage • Earnings taken by manger/boss/pimp • Previous arrests/history • Presence of a “mama san” / person in charge

29. Challenges to investigations: • HT is a Crime that may be difficult to identify and detect – due to its covert nature • Victims are threatened / afraid to talk • Exploitation takes place behind the fronts of legitimate businesses • Language barriers • Inexperienced police and prosecutors unable to identify, investigate or prosecute effectively the crime of TIP

30. Massage Parlours Fronts of legitimate businesses

31. Escort Services

32. Strip clubs Night clubs Gentlemen’s Club

34. “Thai 2” Case Study

35. This case started as a“simple”investigation of “Prostitution”

36. It BecameA High Profile Racketeering Case based on the predicate offences of prostitution, keeping a brothel and money laundering

37. BRIEF OUTLINE OF FACTS METRO POLICE RECEIVED INFORMATION OF: • Acts of Prostitution • Keeping a Brothel • Harboring illegal foreigners Taking place at a house in a residential area in Durban

38. Agent sent in to confirm the existence of the brothel and prostitution Planned a buy and bust next day Agent sent in with marked money Was offered “services of a sexual nature” for reward Monies paid over to females – proceeded to room Agent gave signal SAPS infiltrate the house Trap money recovered on premises Client “caught with a female” R19 700 cash recovered Trap set “Buy and Bust”

39. No search warrant • 9 Thai females living at this house and 1 Asian SA male • Legal and illegal permits • Asian male married to Thai female (the mama san) • Exhibits Found: • Condoms • Cash

40. Initial Charges on Arrest C/S Sexual Offences Act 23 of 1957 • “Prostitution” C/S Immigration Act 13 of 2002 • Harbouring / accomodating / employing foreigners • Contravening conditions of permit

41. WHAT HAPPENED TO SUCH CASES IN COURT? • Accused charged for Immigration / prostitution offences only • Pay bail / Plead guilty • ADMISSION OF GUILT / Bail paid by trafficker / pimp /manager

42. Accused required to leave the RSA • Some did not leave RSA • Continued with pattern of illegal activities whilst out on bail or after conviction. • Blatant disregard for the law • Repeat offenders

43. At the time the accused were arrested there was NO Human Trafficking legislation in place

44. Yet the facts fitted a human trafficking structure that was highly organised

45. Voluntary consent Debt Bondage

46. AS THE PROSECUTOR I ASKED THE FFG. QUESTIONS • How could this case be effectively dealt with using existing legislation? • How could the owner and managers of the brothel be held accountable when they were not directly involved in the commission of the basic offences?

47. How could we get more effective sentences How could Prostitution/ brothel / immigration offences be taken seriously and not be regarded as “minor offences”?

48. The Prevention of Organised Crime Act 121 of 1998 POCA Section 2: Racketeering Sections 4 and 6: Money Laundering

49. Racketeering is a Tool that: • Targets managers • Participants • Employees • Associates • “Kingpin” • Boss • Owner Targets those persons who are and are not directly involved in the commission of the basic offences

50. WHY WAS POCA LOOKED AT IN THIS CASE?