HUMAN TRAFFICKING AND Sexual offences

1. HUMAN TRAFFICKING AND Sexual offences Dr. Kavita Singh, Associate Professor, WBNUJS kavita.singh@nujs.edu

2. a) What is trafficking? • In its dictionary meaning, the concept of trafficking denotes a trade in something that should not be traded in. Thus, we have terms like drug trafficking, arms trafficking and human trafficking. The concept of trafficking in people refers to the criminal practice of exploitation of human beings whereby humans are treated as commodities for profit, subjected to various forms of exploitation.

3. In India • Immoral Traffic Prevention Act (ITPA 1956) explain the various activities involved in trafficking. Under Section 5, trafficking includes • procuring, • taking and • even inducing a person for the sake of prostitution. • Even attempt to procure and attempt to take or cause a person to carry on prostitution is an offence.

4. The UN Protocol definition contains three main elements that constitute trafficking: • Acts: recruitment, transportation, transfer, harbouring or receipt of a person. • Means:threat/use of force, other forms of coercion, abduction, fraud, deception or abuse of power or of a position of vulnerability. • Purpose:prostitution, forced labour or services, slavery, slavery-like practices; servitude, organ trade etc. • The second part of the definition of trafficking focuses on the issue of consent.

6. CASE STUDY 1 • NEW DELHI, India (AP) — Teena discovered she had been sold by her boss while riding in an auto-rickshaw headed to New Delhi’s red-light district. The 12-year-old was working as a domestic servant in Calcutta when the homeowner told her about a good-paying job at his sister’s house in India’s capital. But instead, she was sold to a brothel owner and forced into prostitution for little more than a place to sleep and the occasional meal. Her ordeal lasted four years and Teena, now 21, says it left her “a very angry person.” “The anger come suddenly,” says Teena, who asked that her full name not be used because of the stigma associated with her past. Teena’s childhood before being sold into prostitution was filled with long days of domestic work in the rural eastern State of Jharkhand. She received little or no pay, she said, but “I was so poor, I could not leave.” At the urging of her mother, she moved to Calcutta for what she was told would be a paid maid’s position. When her boss then sent her to New Delhi, Teena never found out the price she was bought for on the human trafficking market. She was rescued from the brothel by STOP, an anti-trafficking group founded in 1998.

7. It must be kept in mind that trafficking is different from migration and smuggling. • There are important fundamental differences between migration, smuggling and trafficking: • Migration is a situation in which a person moves from one country to another or within one country. Migration can take place by legal or illegal means and it can be either voluntary (with the consent of the person migrating) or forced (without their consent). Usually, however, migration is voluntary. • Smuggling is the transport of a person (with their consent) to another country through illegal means. Smuggling has to include crossing of an international border. • Trafficking involves the following: • Movement of a person; • With deception or coercion; • Into a situation of forced labour, prostitution, servitude or slavery-like practices.

8. b) What are the varied elements of trafficking? • Displacement of a person from one community to another: While it is not necessary that the person is actually moved from one place to another to have been trafficked (displacement is also possible within the same building), usually victims are moved from one house to another, one village to another, one district to another, and so on. • Exploitation of the trafficked victim: Displacement of the victim is followed by various forms of exploitation being meted out to the victim – using force, deceit and threats, as the case may be. • Commercialization of the exploitation and commodification of the victim: Due to the portrayal of women as sex objects, and as property by patriarchal society, women have acquired a ‘face value’ within the ‘market’ whereby their bodies have become commodities in a commerce based on the exploitation of sex (hence, CSE- Commercial Sexual Exploitation).

9. What is the ‘route’ of trafficking? • Trafficking involves three focal points in spatial context: • • Source • • Transit • • Destination • Areas are identified on the trafficking map as being a source, transit or destination or a combination of any or all of these; however it is possible that all these may coexist. A girl child of a woman forced into CSE, living and also forced into CSE in the same brothel, for example, simultaneously depicts all three points on the trafficking map.

10. d) What is the difference between trafficking and prostitution? • Often, trafficking is confused with prostitution. These are not synonymous. Trafficking is the process / means while prostitution can be the result/end (of being trafficked). • Refer to Case Study 1: Teena was displaced and forcibly recruited into commercial sexual exploitation (CSE). While prostitution is a punishable offence when there is commercial sexual exploitation of a person and any other person who makes profit from the same [Section 2(f) of ITPA 1956], trafficking is the whole (or any point of the) process of recruiting, contracting, procuring or hiring a person for commercial sexual exploitation (CSE) or for any other purpose.

11. Trafficking is therefore the overall ‘process’ while prostitution/ commercial sexual exploitation/ forced labour is the ‘result’. • Thus, Meena has been both trafficked and forced into prostitution as she has been: • - Sexually exploited. • - She has been abused by a person(s) for commercial purposes. Her consent is irrelevant. • - She is the victim and not a criminal.

12. e) Who is a trafficker/offender? Traffickers can be, but are not limited to, the following persons: • Recruiter/Agent of Recruiter • Seller of trafficked person • Buyer of trafficked person • Transporter • Conspirator • ‘Customer’/clientele, who create/perpetuate demand • Pimp • Brothel madam • Brothel managers • Financier • Parent(s)/guardian(s) who knowingly sell/cause to sell/traffic their children/ward.

13. f) Who is a ‘victim’ of trafficking for CSE? • It is crucial to note that all trafficked persons are victims, irrespective of their proclaimed/apparent voluntariness. A victim of trafficking for CSE is: • • Any person above the age of 18 who through force or threat of force, coercion, abuse of power, etc were/are required to perform sexual acts without their consent, by any person(s), for profit or gain of a third person. • • Children and minors who are found in places of CSE i.e. “children” who have not completed the age of 16 years and ‘minors” who have completed the age of sixteen years but have not completed the age of eighteen years, who are found in places of CSE.

14. g) Are people trafficked only for CSE? • Commercial sexual exploitation is only one of the results of trafficking. Trafficking in human beings also results in non-sex based exploitation such as forced labour and other forms of exploitation. • Some manifested forms of exploitation (non-CSE) that may result from trafficking in persons include: • workers in the unorganized sector • slave trade/bondage • child labour • drug peddling • organ trading • forced marriages, mail order brides • beggary • adoption rackets • entertainment and sports (camel racing, exotic dancing, circus, etc.) • others

15. h) Where can CSE take place? • The scene of crime (SOC) includes the source, the transit and destination points. In fact, in the case of CSE, the SOC is not limited to the place of exploitation – or, for example, the brothel alone. •  Therefore, for example, CSE can take place: • On the streets • In massage parlours • At bars • In the brothels • In vehicles used for transfer • In the form of escort service • At places where the survivor of trafficking has been sent for the purpose of recording pornography, transport of the same, and where the pornographic material is stored, purchased, used etc. • At other places.

16. i) Is trafficking a continuing crime? • Trafficking is an organized and continuing crime. Multiple crimes can be culled out under trafficking such as abduction, kidnapping, illegal detainment, illegal confinement, criminal intimidation, hurt, grievous hurt, rape, outraging modesty, rape, unnatural offences, selling and buying of human beings, servitude, criminal conspiracy, abetment, etc. Therefore, multiple abuse and abusers located at different points of time and place together constitute the organized crime of trafficking.

17. Section 370 IPC • ‘ (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by— • First.— using threats, or • Secondly.— using force, or any other form of coercion, or • Thirdly.— by abduction, or • Fourthly.— by practising fraud, or deception, or • Fifthly.— by abuse of power, or Sixthly.— by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1.— The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.— The consent of the victim is immaterial in determination of the offence of trafficking

18. Section 370 A • Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine. • Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished With rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine. • 1 Criminal Law (Amendment) Act, 2013

20. Presumption U/S 3 (2A) • Presumption of knowledge that the premiseses or any part thereof are being used as a brothel – if – • Report in published in news paper • A copy of the list of all things found during the search

22. Presumption of Knowingly living on the earning of prostitution. {Section 4(2)} • When • Any person above 18 years • Living with, or to be habitually in the company of prostitute. • Exercise control, direction or influence over the movement of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution. Or • Acting as tout or pimp

24. ‘Customers’ liablity • Section 5 (1) (d) • Causes or induces a person to carry on prostitution.

25. Place of Trial • Section 5 (3) • Place of procurement • Place were inducement was made to go • Taken or caused to be taken from • Attempt being made • Place where she may have gone • Because of – inducement, attempt or otherwise.

27. Presumption U/S 6 – An important tool • Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1). • (2-A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.

28. (3) A person shall be presumed to detail a person in a brothel or in upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there, • (a) Withholds from her any jewellery, wearing apparel, money or other property belonging to her, or • (b) Threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person. 

29. No Prosecution on the instance of such person who withhold her. Section 6 (4) • (4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.

33. Section 9: • Seducing a person or causing or aiding or abetting her seduction when she is in the custody of a person having custody, charge or care or in a position of authority over any person. Imprisonment of either description for a term not less than seven years but which may extend to life or up to ten years and fine.

34. Rescue, Search & Closure of Brothel • Section 15: Search Without warrant • Section 16: Rescue of Person – Any Magistrate (MM, JM, DM, SDM) • Section 17A – Condition to be observed before placing persons rescued under Section 16 to parents or guardians. • Section 18 Closure of brothel.

36. Sexual Offences • The IPC has a number of sections dealing with numerous offences linked to commercial sexual exploitation of women and children. The Table below gives a brief list: • Rape- 375, 376 • Unnatural offences-377 • Assault/ Criminal force/ act to dishonour/ outrage modesty, defamation- 354, 355, 509, 500

37. Rape • ‘375. A person is said to commit “Rape” if that person–– • (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of another person or makes the person to do so with him or any other person; or • (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or • (c) manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such person or makes the person to do so with him or any other person; or • (d) applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

38. First.–– Against the other person’s will. • Secondly. –– Without the other person’s consent. • Thirdly. –– With her consent when her consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt. • Fourthly. –– When her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married. • Fifthly.–– With the consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent. • Sixthly. –– With or without consent, when she is under eighteen years of age. • Seventhly. –– When the person is unable to communicate consent.

39. Explanation 1.–– Penetration to any extent is “penetration” for the purposes of this section. • Explanation 2.–– For the purposes of this section, “vagina” shall also include labia majora. • Explanation 3.–– Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act: • Provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. • Exception.1-Medical procedure or intervention not rape • Exception 2-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not Rape.

40. Punishment • 376. (1) Whoever, except in the cases provided for by sub-section • (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and • shall also be liable to fine.

41. (a) being a police officer, commits rape– (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a person in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or • (b) being a public servant, commits rape on a person such public servant’s custody or in the custody of a public servant subordinate to such public servant; or • (c) being a member of the armed forces is in the area by virtue of deployment by the Central or a State Government, commits rape; or

42. (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or • (e) being on the management or on the staff of a hospital, commits Rape on a person in that hospital; or • (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards, the person assaulted, commits rape on such person; or • (g) commits Rape during communal or sectarian violence or • (h)commits Rape on a woman knowing her to be pregnant; or • (i) commits rape on a person when she is under sixteen years of age; or

43. (j) commits rape, where the person assaulted is incapable of giving consent; or • (k) being in a position of economic or social dominance, commits rape on a person under such dominance; or • (l) commits rape on a person suffering from mental or physical disability; or • (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a person; or • (n) commits rape repeatedly on the same women, • shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

44. 376 A- Punishment for causing death or resulting in persistent vegetative state of victim.- RI not less than 20yrs extend to life, or death • 376 C- Sexual intercourse by a person in authority- RI not less than 10yrs liable to fine • 376 D- gang rape- RI not less than 20yrs extend to life, with fine • 376 E- repeat offence- Imprisonment for life, or with death

45. Compensation • Interim compensation ordered in BodhisattwaGautam v. SubhraChakrabortyAIR 1966 SC 922. Section 357 Criminal Procedure Code authorizes Courts to order convicts to pay compensation to victims. • Delhi Domestic Working Woman’s Forum v. Union of India (1995) 1 SCC 14 • Karnel Singh v. State of Madhya Pradesh AIR 1995 SC 2472 • State of Punjab v. Gurmit Singh AIR 1996 SC 1393 • RaoHarnarain Singh, Sheoji Singh and other v. The State AIR 1958 Punj 123

46. A landmark judgment, as far as the offence of rape goes, has been State of Punjab v. Gurmit Singh, in which the Supreme Court laid down the following parameters: •  Delay in lodging the FIR is not material when properly explained. • Testimony of the victim in cases of sexual assault are vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in convicting the accused on the victim’s testimony alone. • Trial of sexual offenses should be in camera and invariably by women judges wherever available. • Court must refrain from making observations that cast aspersions on the character of the victim. • Court is under an obligation to see that the victim is not unnecessarily harassed and humiliated in cross-examination. • AIR 1996 SC 1393

47. Unnatural offences •  Unnatural offences especially against women and children are common in cases of trafficking and in the course of their being commercially sexually exploited. There is no concept of consent as regards unnatural offences. A mere commission of the act with or without consent attracts prosecution U/S. 377. The offence is punished with imprisonment for life, or with imprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine.

48. Immoral Traffic (Prevention) Act, 1956

49. Victim and witness care & protection during trial: • Victims are wary of the court ambience. Do orient and counsel them. Assure them that their rights will not be violated and that their truthful version of all facts is essential for delivery of justice which is in their interest and also in the larger public interest. • Victims require briefing on the facts of the case, especially to recall the events in a logical way. This should be done before she is put in the witness box. • Prosecutors ought to ensure that the defense-side does not violate the rights of the victim. Embarrassing questions need to be avoided. Intervention of the court should be sought immediately to prevent any such violations. • All efforts should be made to ensure the anonymity of the victim. Anonymity provides strength and confidence to the victim.

50. Move the court for allowing in-camera trial. The Supreme Court of India • (Refer Judgement dated 26 May 2004, in ‘Sakshivs Union of India’) has directed that in-camera trial should be extended to all cases of sexual assault on children. A screen has to be provided in the trial court so that the child victim is not exposed to the suspect and accused persons. A child counselor should be provided to assist in the court. Adequate recess should be allowed during trial proceeding so that the child victim gets rest. This is a landmark judgement in ensuring child rights and, therefore, needs to be implemented in letter and spirit. The police and prosecutors should move the trial courts for the same. • Video conferencing is an ideal mechanism to prevent victimization of the trafficked victim. It should be done whenever possible. The Supreme Court, in its landmark decision, in State of Maharashtra vs Dr. Praful B. Desai2003 (4) SCC 601,has underscored the validity of video conferencing and enumerated the safeguards to be ensured during the trial of cases.