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Ylitarkastaja Venla Roth, UNODC expert group meeting

Ylitarkastaja Venla Roth, UNODC expert group meeting

UNODC Expert Group Meeting on "Case Digest of Trafficking in Persons Cases: Evidential Issues and Victim Protection Issues which Impact on Evidential Matters"

Vienna 6-8 May 2014
Senior Adviser Dr. Venla Roth, Office of the Ombudsman for Minorities/ National Rapporteur on Trafficking in Human Beings, Finland

Ladies and Gentlemen,

Firstly, I wish to thank the organizers of this meeting for giving me this opportunity to discuss these crucial matters with such a distinguished and experienced audience. I hope that this meeting will make you even more equipped to deal with trafficking cases and most of all its victims and the dynamic of sexual violence and abuse. At the moment, I serve as a Senior Adviser at the Finnish National Rapporteur's Office with a mandate to monitor counter trafficking efforts in Finland and to make recommendations for their improvement. Working with the issue of human trafficking has taught me a lot about the difficulties of the criminal justice system to deal with a trafficking crime which core elements and primary consequences are psychological in nature. 

I will tell you about one Finnish trafficking case related to sexual exploitation. The case concerns a nearly 50-years old business man who owned a large modelling company in Finland. Most of the recruited young girls and women were of Finnish origin, who had a dream of becoming an internationally recognized model. When the modelling company came to the attention of the police, the man had already run the business for more than a decade. No one knows how many victims there were in the end. In the District court in 2011, there were more than 20 victims who claimed that the business man had abused them sexually and forced them to sell sexual services to other men around Finland. Some victims had been exploited for years and they "services" had been sold for tens of clients. 

How was it possible that ordinary girls and women with ordinary backgrounds found themselves in this kind of an abusive situation? How is it possible that they did not escape but instead went back to the abusive situations time after time irrespective of the fact that they were not locked up or chained or feared deportation from the country? How is it possible that most of them did not actively resisted the abuser but submitted to exploitation and every time hoped that this would be the last time? How is it possible that most of them did not look for help and complain to the police? And in legal terms, how to prove the existence of mens rea in this kind of situation where the means of human trafficking are mainly psychological? 

In order to answer to all these questions, we, the lawyers, need experts who know how people behave in abusive situations. The dynamic of sexual violence and exploitation must be "interpreted" to us so that we are able to apply abstract penal provisions on human trafficking and especially its rather difficult and open concepts of the abuse of a vulnerable position and the abuse of power to a particular trafficking case. It is also very important to document the psychological consequences of sexual violence and exploitation. As you very well know, many victims suffer from serious mental diseases and disorders but not everybody remembers the crucial relevance of this documentation for the successful criminal proceedings. They can also be used when the court assesses the claims for damages and compensation. 

In this particular case, the most important evidence was provided by a therapist and a psychiatrist who helped the lawyers, judges and prosecutors, to understand the dynamic of sexual violence and exploitation. Those aspects which enable or facilitate sexual violence and exploitation are difficult to recognize objectively from outside. Subjugating another person to sexual violence and exploitation is often a gradual process where a victim renounces and abates her sexual self-determination and bodily integrity step by step and in the course of time. It is often difficult even for the victim herself to define the point where she did not give her consent any longer. Part of the dynamic of sexual violence and exploitation is that the victim does not even consider other alternatives but submits to the abuse. Other alternatives are not viable for the victim. In the situation of sexual violence and exploitation, victims lose their confidence in other people and the ability of society to protect them. 

In the abuse situation, the abuser has all the power over the victim and the victim loses the possibility to choose how to behave and act. The victim can live normal life beside, go to school or to work, have an own apartment and see her family and friends, but when the abuser tells her to come she cannot resist the abuser but obeys the orders. She submits to the exploitation also because of the person's psychological need to correct what has happened. She hopes that next time will be different and she will get another kind of, a positive, experience: experience that also her needs are listened and respected. She also hopes that she has not suffered in vain but will be able to balance her exploitative experiences and get something good out of the situation, such as an internationally recognized modelling career, marriage or well-paid job. The abuser has the key to her happiness and success but also the means to destroy her. In this particular case, the abusers threatened that he will spread out pornographic pictures taken of her without her consent, and thereby disgrace her in the eyes of her family. 

In order to truly understand this dynamic of sexual exploitation, we need expert witnesses and statements. All these aspects I referred above are relevant when we consider the elements of a trafficking crime, especially the open concepts of the abuse of a position of vulnerability and the abuse of power. The prevalence of the position of vulnerability or imbalanced power relation between the victim and her abuser should be assessed from the viewpoint of a victim rather than of the person who assesses the situation. People have different capacities in defending and protecting themselves, and this capacity can vary from a situation to another - a person can be very well equipped in one situation but loses the control in another. Trafficking is a crime which must be contextualized. 

In the court proceedings, the victim has to tell her story. We may think that the court is a safe environment but for the victim this is not always the case. Without taking into consideration the fear, disgust, even love and devotion and their consequences on the victim's behavior, we can destroy the case at this point irrespective of experienced investigations and all the efforts made. For the victim, the court proceeding can be the point where the exploitation become real for the first time. The court proceeding can, at best, provide the victim with a corrective experience but only if the victim is being dealt with respect. The experiences must be told and difficult questions must be asked but we can do it in a way which signals true interest, care and deference. 

We must also take into account the victim's wish not to see the abuser at the court and make sure that the abuser cannot have an inappropriate influence on the victim before, during or after the court proceedings. For example in so-called lover-boy cases, where the victim has fallen in love with her abuser, the victim may withdraw her statement before the court has given its judgment. This happens because the abuser has been able to convince the victim over the future and life together, in other words promised her that what she was looking for in the first place. After this the victim can be held criminally liable for unfounded denunciation to the police and can be held responsible for remarkable claims for damages. This has happened in Finland, and only because the court or the prosecutor did not make sure that the defendant did not have an opportunity to have an inappropriate influence on the victim during the court proceedings. 

I have also learned that from the victim's perspective the time between the exploitation, pre-trial investigations and court proceedings can feel very long. It may very well be that the victim has forgotten some of the details of what has happened to her. It is important to remember that our mind behaves like that: when we have experienced a severe trauma and lost our confidence in other people and the surrounding society, we need to forget the traumatizing experiences in order to heal and continue living. The court proceedings interrupt this healing process and if the case is being dealt with by several courts and the proceedings take many years, the victim has to remind her over the horrific experiences time after time. When the case reaches the Supreme Court, the victims may not want or be able to remember what has happened to them. Therefore, we need to find ways to avoid repetitive hearings and allow recorded interviews of the victims at the courts of law as evidence. When the rights of the accused are guaranteed, this should not pose a problem in the context of international human rights law. 

In this particular case, the defendant was convicted for more than 11 years of imprisonment and not only for trafficking but also for other sexual offences, such as rapes and other forms of sexual exploitation. This is a long prison sentence in the Finnish context. The defendant was found guilty for the sexual offences committed also by the third parties, sex buyers. I would like to note that this would not have been possible without a determined legal counselor who won the victims' trust so that they could tell their stories in a safe environment, who listened to their stories and translated them into a legal language and presented these case narratives in a form which was acceptable by the court. I cannot overemphasize the crucial importance of the professionalism and expertise of those who provide trafficking victims with legal counselling and aid. We know at the Rapporteur's office that this is not always the case. Many cases are never identified or recognized as trafficking cases which means that the victims do not have legal representation at all. And sometimes the legal counselors are not up to their tasks which may lead to the non-prosecution or acquittal. 

Trafficking cases may succeed or fail according to the quality and adequacy of the evidence provided. There are many components behind a successful judgment. This particular case taught me to understand the crucial importance of the documentation of psychological trauma and the use of therapists, psychologists and psychiatrists who have met the victim several times before the court proceedings as expert witnesses to explain and make understandable the mental elements of a trafficking crime. In order to use the whole potential of the definition and penal provisions of human trafficking and provide victims with sufficient protection of law, we need to understand the psychological dynamic of sexual violence and exploitation and its linkages to the legal concepts of vulnerability and power. 

Thank you for your attention.

10.05.2014