On Friday, 8 February, Felicity Gerry QC gave a talk at Doogue + George about how defence lawyers can best represent the interests of clients charged with criminal offences who may themselves be victims of human trafficking or exploitation. Felicity has been active with the International Commission of Jurists (Victoria) in advocating for a statutory defence for victims of trafficking who commit crimes. She is appealing to lawyers to look out for cases where a client’s status as a victim of exploitation or human trafficking can test the jurisprudence on defences or mitigating factors in a plea.
The notion of alleviating criminal responsibility on account of the particular vulnerability of the accused is controversial. But it is not without precedent internationally. The UK Modern Slavery Act 2015 has a narrowly drafted statutory defence for human trafficking victims who commit crimes. In that legislation, the defence is a form of duress, and there must be clearly defined nexus between the accused’s status as a human trafficking victim and the crime they are charged with.
Felicity is advocating for something broader still. This outspoken defence barrister wants legal recognition of the fact that otherwise innocent people are regularly exploited by sophisticated criminal networks, and this exploitation comes in many forms. These victims are not the people who should bear the full force of the law, even if they consent and willingly engage in the criminal activity. Limited culpability on account of vulnerability to exploitation and manipulation should be a recognised principle under law.
What is human trafficking?
Before coming to Australia, I worked in Cambodia with young people from disadvantaged backgrounds for almost 10 years. I learned from them what human trafficking and exploitation means—not from a legal perspective, but a lived one. In particular, I worked with a group of seven people in their late teens and early twenties who had grown up in poverty. Each of them was either a victim of human trafficking, or had a family member who was.
Over the course of two years working intensively with this group, I developed an unsettling and comprehensive perspective of how human trafficking affects the lives of nearly every young person I knew. The psychological impact of being disempowered, manipulated, bought and sold profoundly impacts upon one’s sense of agency. Being abused by not one but many adults and authority figures who are otherwise supposed to be protecting you, and seeing them also abuse each other, impacts upon one’s sense of right and wrong.
The international legal definition of human trafficking is as follows:
(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;
And is drafted more broadly in relation to children:
(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;
And consent is not a defence:
(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
In real terms, human trafficking was the young woman I worked with who was sold at 14 to a brothel by her mother in the slum she grew up in, so her mother could support her methamphetamine habit. It was the other young woman who got caught in a cycle of debt bondage to a brothel, also at the age of 14. She had been raped by her cousin and after telling a trusted family friend, was advised to go work in a brothel, as it was the only industry she was fit for. The child’s consent is not a defence to trafficking.
Another young woman was sent by her parents with her baby brother in arms to beg on the streets in small towns of Thailand, until she was arrested and taken into Thai immigration prison. One of my employees told me about the well-dressed woman who knocked on her family’s front door in her Cambodian village, who told her parents of the money their daughter could earn working as a housekeeper in Malaysia; and the prison-like residence she was held in when her family sent her with the rich woman, with no food, long work hours, and the horror stories of the young women who had gone to Malaysia and returned and could never go back home again as a result of what had been done to them overseas.
Each of these young people also had friends and family members who were victims of trafficking. One of my employees told me of her older brother who had come back after years at sea on a Thai fishing vessel, and they were afraid of him, of who he had become. She later lost two more brothers to the Thai fishing industry. Another of my employees came into work to tell me that he was concerned that his uneducated cousin had met a man from Korea through an agency that had no name and no headquarters, and was leaving the next week to a small village near the North Korean border to be his wife. He was concerned that she didn’t understand what was happening, where she was going and that she knew no one and could not speak the language. Another of my employees told me one day that she had been keeping her seven year old nephew locked in her house for the past three weeks, to protect him from his parents. She explained that her sister and brother-in-law were drug addicts, and they had just sold their baby and she was afraid they would sell him next.
In our time working together, we had many conversations as a group about what the world looked like through their eyes. We explored values like non-violence and compassion, and what those concepts meant to them. What I discovered was that as much as they were burdened by what they had themselves been victim of, each carried a great cloud of guilt or shame about what they had done to others. They each had stories of violence they had committed, drugs, coercion, theft. One young woman, who had been sold by her mother, told me about stabbing her sister in the back with a knife because she felt her mother loved her sister more. Another young woman told me she tried to get other girls in the brothel to take drugs because it made her feel better to know she wasn’t alone. She asked me how she could atone for this.
Nexus with human trafficking
Section 45 of the UK Modern Slavery Act provides a statutory defence for victims of human trafficking who commit crimes. To make out the defence it must be shown that there was a nexus between the crime and the status of the accused as a victim of trafficking. To enliven the defence, it must be shown that the accused was compelled to engage in the criminal activity; that the compulsion was a direct consequence of their being a victim of slavery; and the person is compelled by either another person or by their circumstances.
The rationale underlying the defence is that if a person has no choice, then they should not be held criminally responsible for conduct that contravenes the law. It is the same rationale as the defence of duress or necessity. It takes little imagination to apply this to a context where a vulnerable individual is coerced into selling drugs or is forced to recruit other women or girls to work in slavery-like conditions, for someone else’s profit.
However, compulsion to commit crime on account of one’s circumstances is not always so neat. For example, in Canada, it has been found that over half of human trafficking victims are Indigenous women. It is because Indigenous women are profoundly disenfranchised that they are uniquely vulnerable to human trafficking and sexual exploitation. The result of being trafficked is that they incur compounded psychological trauma, disempowerment, social stigma, and are more likely to turn to drugs, alcohol and live on the fringes of society. Whilst there may not be someone directly forcing these girls and women into a certain lifestyle for their own financial benefit, there will still be a very strong nexus between their status as victims of trafficking and exploitation, and their criminal activity.
Victims of trafficking or victims of poverty?
In her talk, Felicity proposed two things – firstly, a statutory defence for victims of human trafficking and exploitation who commit crimes. And secondly, for lawyers to be aware that some clients may have had their agency compromised as a result of their circumstances. Certain kinds of crimes should trigger lawyers to ask further questions—drug mules, crop sitters, brothel owners, foreign labourers—about the context in which they were operating. In a case of a clear-cut plea, the client’s experiences of exploitation can be raised in mitigation. With the perfect test case, the application of available defences will be tried.
The controversial question of whether or not to mitigate criminal responsibility for accused who are themselves victims of organised crime, is how wide to draft the defence. The UK Act drafts it narrowly. Firstly, it is limited to a strictly defined concept of “human trafficking” which entails being made to travel or being transported for the purpose of exploitation. The defence then bears the evidential burden that they are a victim of human trafficking, which the prosecution must then disprove beyond reasonable doubt. The defence is limited in scope by the element that the person must have no realistic alternative to engaging in that criminal activity. And finally, its application is limited to certain offences.
The rationale for such a defence is to protect persons who are themselves victims of crime and as a result have engaged in activity that they would not otherwise have engaged in but for their circumstances. But this rational equally applies to a much wider range of people whose vulnerability has been exploited and they have been compelled them to act in a way that they would not otherwise have done.
When the nexus between committing crimes and being a victim of one’s circumstances is examined in its complexity, it would seem to encapsulate most of the people in the criminal justice system—those who have themselves been victims of poverty or violence and, as a result, are disempowered, or see themselves on the margins of society, and turn to drugs and alcohol to cope. And as a result, find themselves at some point or another in contravention of the law. Surely they should not all be excused from criminal responsibility. The question behind drafting the ideal defence is how wide to cast the net.
The question of consent further muddies the waters. There is a reason why consent is not n excuse under the international definition of human trafficking. This clause recognises that the most vulnerable people are those most likely to be exploited and compelled to act in the interests of another, and they may agree because it is the best option in the circumstances—or at least it is presented to them as such. A young man may agree to slavery-like work conditions, for example, because it is the only option available to him. The young woman I worked with had “voluntarily” committed herself to a brothel—not because she wanted this life for herself, but because she knew her family was desperate for money and this was a way she could help them. Another young woman may voluntarily go to a recruitment agency to take advantage of opportunities to work abroad, or a marriage agency to find someone to live with, but she may not fully understand the nature of the operation she is engaging with.
The challenge that Felicity raised was how these principles of mitigated agency and thus criminal responsibility should apply in Australia. How responsible is the drug mule who knew or was reckless to the fact that he was facilitating criminal activity, but did not know the scale of what he was doing? Who was driven by a need for money, and drawn into a sophisticated ploy by experienced criminal networks who prey on exactly such people for their own benefit? This person may not have been forced to comply, but their consent may not have been entirely free either. Or the individual living in Australia with no family, limited English, an expectation to send remittances back home, and few employment options, who develops a relationship of trust with someone from their native country? How responsible is this person when those they trust give them a place to live and a sense of support and community, in exchange for cultivating their cannabis crop. How free really is this person to say no?
My students and employees in Cambodia were, ultimately, victims of a failed government. They, their brothers, sisters, cousins, nieces, nephews and parents were also guilty of great wrongs and, often, illegal acts. Sometimes they were jailed for it, often not, and sometimes they were jailed for wrongs they hadn’t done, or for wrongs they themselves were victims of. In Cambodia, you can’t turn to the law for guidance about right and wrong. The law in Cambodia was and is as arbitrary as everything else in these young people’s lives.
Jumping forward several years, and I now work as a criminal defence lawyer in Melbourne. I am now in a position to help people who may have committed wrongs, but who are often victims of great injustices themselves. I work in a jurisdiction that abides by the rule of law, where we generally trust that our laws and law enforcement system protects vulnerable people from those who may hurt them. We think of our laws as necessary and effective to protect people like those I worked with in Cambodia, to ensure that that kind of exploitation and victimisation of the vulnerable doesn’t happen here.
And to an extent, this is true—Australia is a lawful society where young people are not as immediately aware of the meaning of human trafficking as those I knew in Cambodia. But to a troubling extent, the law also fails to protect the vulnerable, and indeed further victimises them. Many of my clients are themselves compelled by unfortunate circumstances—whether that be poverty, mental illness, or being foreigners with little or no social support. Not all can rely on their circumstances as an excuse against criminal responsibility. But after Felicity’s talk, I will consider their vulnerability in a different light than I did before. And I will find ways of inviting the law to do so as well.
 Modern Slavery Act 2015 (UK), s 45(1)(b).
 Modern Slavery Act 2015 (UK), s 45(3)(b).
 Modern Slavery Act 2015(UK), s 45(2).
 https://www.ourcommons.ca/Content/Committee/421/JUST/Brief/BR10002955/br-external/NativeWomensAssociationOfCanada-e.pdf and https://edition.cnn.com/2016/08/23/world/canada-indigenous-sex-trafficking/index.html
 Modern Slavery Act 2015 (UK), s 45(1)(d).