As a country with the largest population and number of victims of trafficking, both actual and potential, the efforts of the People’s Republic of China (PRC) in contributing to a more uniform implementation of international legal norms and obligations in its current anti-trafficking mechanism, primarily through its Criminal Law, are inadequate.
Trafficking in person (TIP) under the Trafficking Protocol1 consists of three elements: action, means and purpose. Using this framework, the Criminal Law of the PRC has the following issues:
a. Failure to include males as subjects entitled to protection;
b. Neglect of the importance of means; and
c. Insufficient protection for trafficked victims, as well as deterrence against trafficking, for purposes other than economic exploitation.
The Trafficking Protocol requires that the means of trafficking should enable the person committing the act to gain control over another person (the victim).2 Although there is no explicit provision on this issue under the Criminal Law of the PRC, case law provides traces of its recognition as a required element. The Supreme People’s Court uses the Guizhou Province case as a textbook example to elaborate the standards of offense for consummated/accomplished or attempted acts in trafficking cases: the state of someone having control over another is a determinant factor in the accomplishment of the offense.3
In this case, a couple from Guizhou Province gave their baby to Lu under the false impression that Lu was interested in the adoption of the baby. Lu then asked another person (Wang) to search for a buyer. Both Lu and Wang were caught in a hotel waiting for the buyer. Lu was convicted as the principal of the trafficking offense and sentenced to five years fixed-term imprisonment with 10,000 RMB fine; Wang, the accessory, was sentenced to three years fixed-term imprisonment with 6,000 RMB fine. The offenders were caught before the final transfer of the child was completed, hence the intense discussion over the standards of accomplishment of the crime. The Supreme People’s Court commented that standards of accomplishment vary considering the definition of the crime and legislative intent. The acts of abducting, kidnapping and buying aimed at gaining control over the victims are accomplished once the victims fall under the control of the actors. The acts of transporting and transferring aimed at handing over the victims at a designated place to a designated person are accomplished when the victims had been successfully relocated to another place or handed over to the trafficker. The act of buying shall be deemed accomplished once payment is delivered. In this case, Lu took the acts of abducting, transferring, and selling of the victim and, during the first two stages, had control over the victim. The selling act was not completed due to the intervention of the police. The element of “having control over another person” was thus specified and contributed to his conviction.
Another difference in the criminalization of TIP between the Criminal Law of the PRC and the Trafficking Protocol is the definition and scope of the purpose. The intention to exploit as stipulated by the Trafficking Protocol can be attributed to any individual or entity involved at any stage of trafficking. The Trafficking Protocol has a non-exhaustive list of forms of exploitation.4 Yet, the element of purpose under the Criminal Law of the PRC is limited to “selling.”
A case in Guangdong Province in 2015 indicates the danger of overlooking other forms of exploitation as purposes for trafficking.5 A perpetrator, convicted of false imprisonment of another and sentenced to eleven months fixed-term imprisonment, was actually trafficking in children for the purpose of forced labor by paying them to get their consent. The maximum penalty for false imprisonment, three-year fixed-term imprisonment without aggravating circumstances, is far lighter than the penalty for forced labor or abducting and trafficking in women and children. The person was first charged with the offense of forced
labor but he argued that the purpose was to retrieve the 400 RMB agency fee and made plea for the offense of false imprisonment. The purpose claimed did not correspond to the offense of trafficking. Additionally, the Court failed to distinguish the contradictory testimonies of the offender and the victims on the severity of violence or coercion inflicted upon the victims and the length of imprisonment.
This case exemplifies the extreme vulnerability of a child both as a victim and a witness. A child may act in an unanimated way when providing testimony due to limited cognition of the maltreatment,6 his/her own legal situation (such as staying in shelter for abused children),7 recollection of facts and fantasy; however, the legal system of China lacks effective mechanism to ensure the credibility of witness, let alone children. Three other similar cases were brought before the same district court in the past four years, where offenders were mostly convicted of committing the offense of forced labor with no aggravating circumstances. All cases involved minor victims who were voluntarily recruited and transferred with the deceptive promise of payments or benefits but found themselves trapped in a situation of exploitation,8 where the defendant would be found guilty of TIP should the Trafficking Protocol be applied.
Some Proposals
In view of the current state of criminal legislation and jurisprudence in PRC regarding TIP, a few proposals are offered.
There is a need to closely adhere to the definition of TIP in Article 3(a) of the Trafficking Protocol and ensure that the legal rights and interests of males, especially male minors, as well as those of bisexual, transgender, and any persons regardless of sex, are adequately protected.
The law should also specify the element of means of control by a person over another in order to underscore the means of “abuse of a position of vulnerability”9 and deception approach.
Finally, the purpose of trafficking in the current criminal law should include exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, removal of organs, or other forms of exploitation such as forced or servile marriages, debt bondage, serfdom, forced or coerced begging, illicit conduct of biomedical research on a person, the exploitation of children and adolescents in illicit or criminal activities or in armed conflict, and other forms of exploitation that accord with national experience.10
Zhang Wei is a graduate of the Johns Hopkins University, majoring in Comparative and International Law and has long been participating and coaching students in moot court competitions in China.
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Endnotes
1 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, United Nations General Assembly resolution 55/25,8 January 2001. The definition of TIP under Article 3:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age. See full document at
www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20
Convention/TOCebook-e.pdf.
2 Ibid. In an alleged sex-trafficking of minors case before the Tokyo High Court with the assistance and supervision of the UNODC (Tokyo High Court 2009 (U) No.992, also UNODC No: JPN001), the court upon appeal reversed a lower court guilty verdict due to the lack of illegal “control over the victims” in ways such as psychological pressure or physical influence
on the Chinese victims (17 and 18 years old respectively) which prevented the victims from escaping.
Also, it is noted that in times of war, offenses related to trafficking, such as rape, enslavement, sexual slavery, and enforced prostitution constitute war crimes and crimes against humanity according to the Statute of the International Criminal Court, Articles 7(1)(c), 8(2)(h)(xxii), 8(2)(e)(vi), UN Doc A/CONF. 183/9. The element of “ownership” which is similar to having control over another, is a critical element of enslavement as a crime against humanity, and later redeemed part of customary international law. See Prosecutor v. Kunarac, International Criminal Tribunal for the Former Yugoslavia, IT-96-23&23/1, Judgment, paras 539-542.
3 The First Criminal Tribunal of the Supreme People’s Court, editor, Analysis and Interpretation of Classic Cases of Trafficking in Women and Children and Selected Rules and Regulations, Beijing: China Legal Publishing House, 2010, pages 227-235.
4 Trafficking Protocol, Article 3(a). Also see UNODC, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (hereinafter the “Travaux Préparatoires”), New York, 2006, pages 343-344.
5 Judgment, People’s Court of Yuexiu District, Guangzhou, Guangdong Province. Case No. (2015) Hui yue fa xing chu zi di 952.
6 L. Sayfran, E.B. Mitchell, G. S. Goodman, M. L. Eisen, and J. Qin, “Children’s Expressed Emotions when Disclosing Maltreatment.” Child Abuse & Neglect, Vol. 32, No. 11, 2008, pages 1026-1036.
7 J. A. Quas, and M. Sumaroka, “Consequences of Legal Involvement on Child Victims of Maltreatment” in M. E. Lamb, D. La Rooy, C. Katz, and L. Malloy, editors, Children’s Testimony: A Handbook of Psychological Research and Forensic Practice, second edition, 2011, Wiley-Blackwell.
8 Judgment, People’s Court of Yuexiu District, Guangzhou, Guangdong Province, case No. (2015) Hui yue fa xing chu zi di 322; Judgment, Basic People’s Court of Yuexiu District, Guangzhou, Guangdong Province, case No. (2014) Hui yue fa xing chu zi di 889; Judgment, People’s Court of Yuexiu District, Guangzhou, Guangdong Province, case No. (2014) Hui yue fa xing chu zi di 166.
9 See Interpretive Notes for the Official Records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (“Interpretive Notes”), UN Doc. A/33.383/Add.1, 3 November 2000, page 12, para 63; Also UNODC, UN.GIFT. Model Law against Trafficking in Persons (“Model Law”), 2009, page 10. Examples can be found in the state practice of United States State Department Model Law to Combat Trafficking in Persons, 2003 and the Law Containing Provisions to Combat Trafficking in Human Beings and Child Pornography of Belgium, Article 77 bis (1)2).
10 Interpretative Notes, page 12, paragraph 64; See also Model Law, pages 32, 35, 36.