By Zoé-Pascale de Saxe Roux (J.D. cum laude and Master of Laws with Honours in International and Comparative Law Cornell University Law School, Class of 2024), Claire Kamau (J.D. Cornell University Law School, Class of 2024) and Morgan Barnett (Cornell University Law School, Class of 2025).
The criminal justice system overlooks the exploitation of many women subject to sex trafficking, as the selection of trial cases is often based on the construct of the “ideal victim.”[1] The “ideal victim” is typically the most traumatized complainant but also frequently the most white, straight, and gender-performing complainant.[2] Discourse surrounding acceptable standards of victimhood can erase women’s lived experiences. [3]
Furthermore, courts often ignore the oppressive control wielded by traffickers, especially when trafficked women simultaneously occupy the status of accused (a prostitution or trafficking charge) and victim. [4] By overlooking the abuser/abused dynamics, courts ignore the motivation to engage in crime, including 1) alleviating exploitation; 2) making money; 3) maintaining positive ties with a trafficker; or 4) coercion. [5]
Coercion, in particular, can underscore why women who experience sex trafficking will engage in crime. According to Article 3(a) of the Trafficking in Persons Protocol, coercion can include threats, abduction, fraud, and abuse of power. [6] Coercive control is often gendered and includes limiting financial access, regulating sexual activity, and threatening children. [7] Defense lawyers can highlight these factors under the defense of duress or necessity. [8]
However, the “ideal victim” stereotype can again emerge to undermine any such criminal defenses because, for many courts, sex trafficking is equivalent to being enslaved. Trafficked women being free to leave a trafficker for a period of time, such as to go outside or run errands, can lead to the dismissal of prior trauma. [9]
The non-punishment principle as a response to the “ideal victim” dichotomy.
The international community recognizes the non-punishment principle, which argues that trafficked persons should not be punished for illegal conduct they commit as a direct consequence of being trafficked. [10] This principle encourages seeking assistance and minimizing re-traumatization. For example, the United Nation’s Recommended Principles and Guidelines on Human Rights and Human Trafficking provides that states should not prosecute women for illegal activities directly resulting from being trafficked. [11] Argentina, in the Dulcinea case, for example, has welcomed this approach, arguing that the prosecution of victim-offenders constitutes “revictimization and a form of ‘institutionalized violence.’” [12]
The non-punishment principle is an international doctrine that could effectively contrast the “ideal victim” construct at the domestic level.
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[1] Marie Segrave, Sanja Milivojevic & Sharon Pickering, Sex Trafficking: International Context and response, 69 (2009), https://www.taylorfrancis.com/books/mono/10.4324/9781315542560/sex-trafficking-modern-slavery-marie-segrave-sharon-pickering-sanja-milivojevic.
[2] Id. at 70.
[3] See e.g., Elizabeth Salazar Vega, Trans Women: The Unseen Victims of Human Trafficking, available at: https://insightcrime.org/news/analysis/trans-women-unseen-victims/
[4] United Nations Office on Drugs and Crime, Female Victims of Trafficking for Sexual Exploitation as Defendants, 25-26 (2019), available at: https://www.unodc.org/documents/human-trafficking/2020/final_Female_victims_of_trafficking_for_sexual_exploitation_as_defendants.pdf.
[5] Id. at 33, 42.
[6] Id. at 48.
[7] Id. at 53-55.
[8] UNODC, Female Victims of Trafficking, 76-78.
[9] Id. at 140-141.
[10] ICAT, NON-PUNISHMENT OF VICTIMS OF TRAFFICKING, The Inter-Agency Coordination Group against Trafficking in Persons at 1, available at: https://www.unodc.org/documents/human-trafficking/ICAT/19-10800_ICAT_Issue_Brief_8_Ebook.pdf
[11] Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, available at: https://www.ohchr.org/sites/default/files/Documents/Publications/Traffickingen.pdf
[12] Dulcinea, Argentina, case number. 91017032, p. 52, https://sherloc.unodc.org/cld/case-law-doc/corruptioncrimetype/arg/2015/case_no._91017032.html?lng=en&tmpl=som.