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The Realities of Investigating & Prosecuting Human Trafficking Cases Advocate Val Lotan Organised Crime Component DPP: KZN 24/03/2010
Human Trafficking in its simplest definition is: “Modern Day Slavery” Buying and selling of human beings for purpose of exploitation
The Saartjie Baartman Story A famous SA example of trafficking of a human being for exploitation
l In 1810 - 21 year old Saartjie Baartman l. A farm worker in the Cape l Promised fame, fortune and freedom by a visiting surgeon from England l She accepted and travelled to London with him.
l She was exhibited naked in Paris and England exploited by her trafficker for profit. l Labelled “Hottentot Venus” l She died 6 years after leaving SA at age 27. l Her body was dissected, organs removed and displayed in a French Museum. l 200 years later her experience is all too common for men, women and children
S 70 (1) (b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides the prosecution with transitional legislation within which to prosecute human trafficking
Criticism of S 70 / S 71 l Only trafficking for sexual exploitation is criminalised!!! l Police and Prosecutors have to therefore look to other legislation to deal with other forms of TIP. l Hence the urgency for the TIP to be passed to address all forms of exploitation
Section 70 Act 32 of 2007 Defines trafficking as:
SUPPLY and SALE
REMOVAL, DISPOSAL & RECEIVING
OF A PERSON WITHIN OR ACROSS THE BORDERS OF SA by
BY THREATS FORCE CO-ERCION INTIMIDATION ABDUCTION FRAUD DECEPTION ABUSE OF POWER GIVING OF A BENEFIT
FOR THE PURPOSE OF SEXUAL EXPLOITATION
OTHER FORMS OF TRAFFICKING INCLUDE THE FOLLOWING: Police and Prosecution have to use other legislation to address other forms of exploitation
The faces of trafficking common to our cases
“Fresh young Meat” at a price! -People have sell by dates -The younger, fresher the person (incl. virgins)– the higher the price that will be paid -Older, addicted, persons will be sold to brothels that can only afford a low price to pay
Face of violence “I wasn’t even permitted to sleep. I could eat, but only if very fast, just for a few minutes. I had no right to sleep. If I decided to go to bed, he would beat me, and throw me out onto the street. ”
Loss of Personal Freedom
Rape, sexual assault
Trafficking is a Human rights Crisis Internationally !!!!! l Human trafficking: 3 rd largest criminal industry in the world, outranked only by arms and drug dealing. l The U. N estimates that trafficking in persons generates $7 to $10 billion annually for traffickers.
Why does Organised crime syndicates focus on Trafficking in Human Beings 1. Low Investment costs 2. Maximum profits can be obtained 3. Penalties are mild when compared to other organised crime, such as drug offences
l HT may be difficult to detect and requires proactive / reactive investigations to uncover l It is a Crime shrouded by secrecy l Fronts of legitimate businesses l Victims are threatened / afraid to talk l Corruption is rife in various departments.
We have yet to receive a direct report of Human Trafficking being reported It is usually the underlying offences of “prostitution” keeping a brothel Immigration Offences that are reported Certain of these offences can form the basis of a Human trafficking investigation and includes elements of organised crime
From these cases we have identified signs of HT such as: l Evidence of control and lack of ability to move freely or leave job l Signs of physical abuse / threats of abuse l Fear or depression l Non-English speaking l Recent arrival from Asia, Latin America, Eastern Europe, Canada, Africa, India or within the country.
l Lack of ID or immigration documents l Debt bondage l Earnings taken by manger/boss/pimp l Previous arrests/history l Presence of a “mama san” / person in charge
Challenges to investigations: l HT is a Crime that may be difficult to identify and detect – due to its covert nature l Victims are threatened / afraid to talk l Exploitation takes place behind the fronts of legitimate businesses l Language barriers l Inexperienced police and prosecutors unable to identify, investigate or prosecute effectively the crime of TIP
Fronts of legitimate businesses Massage Parlours
Strip clubs Night clubs Gentlemen’s Club
“Thai 2” Case Study
This case started as a “simple” investigation of “Prostitution”
It Became A High Profile Racketeering Case based on the predicate offences of prostitution, keeping a brothel and money laundering
BRIEF OUTLINE OF FACTS METRO POLICE RECEIVED INFORMATION OF: Acts of Prostitution Keeping a Brothel Harboring illegal foreigners Taking place at a house in a residential area in Durban
Trap set “Buy and Bust” Ø Agent sent in to confirm the existence of the brothel and prostitution Ø Planned a buy and bust next day Ø Ø SAPS infiltrate the house Trap money recovered on premises Ø Ø Agent gave signal Ø Ø Ø Client “caught with a female” Ø R 19 700 cash recovered Agent sent in with marked money Was offered “services of a sexual nature” for reward Monies paid over to females – proceeded to room
No search warrant 9 Thai females living at this house and 1 Asian SA male Legal and illegal permits Asian male married to Thai female (the mama san) Exhibits Found: Condoms Cash
Initial Charges on Arrest C/S Sexual Offences Act 23 of 1957 l “Prostitution” C/S Immigration Act 13 of 2002 l l Harbouring / accomodating / employing foreigners Contravening conditions of permit
WHAT HAPPENED TO SUCH CASES IN COURT? l Accused charged for Immigration / prostitution offences only l Pay bail / Plead guilty l ADMISSION OF GUILT / Bail paid by trafficker / pimp /manager
l Accused l Some required to leave the RSA did not leave RSA l Continued with pattern of illegal activities whilst out on bail or after conviction. l Blatant disregard for the law l Repeat offenders
At the time the accused were arrested there was NO Human Trafficking legislation in place
Yet the facts fitted a human trafficking structure that was highly organised
Females recruited in Thailand to work as Prostitutes in SA Recruiter made all travel & accommodation arrangements Arrive at destination & commence work as a prostitute Voluntary consent Debt Bondage Passports taken away Pay R 60 000, 00 Debt to accused Acts of prostitution Keeping a brothel & Money laundering Females could not leave the house unsupervised
AS THE PROSECUTOR I ASKED THE FFG. QUESTIONS l How could this case be effectively dealt with using existing legislation? l How could the owner and managers of the brothel be held accountable when they were not directly involved in the commission of the basic offences?
How could we get more effective sentences How could Prostitution/ brothel / immigration offences be taken seriously and not be regarded as “minor offences”?
The Prevention of Organised Crime Act 121 of 1998 POCA Section 2: Racketeering Sections 4 and 6: Money Laundering
Racketeering is a Tool that: l l l l Targets managers Participants Employees Associates “Kingpin” Boss Owner Targets those persons who are and are not directly involved in the commission of the basic offences
WHY WAS POCA LOOKED AT IN THIS CASE? ORGANISED STRUCTURE SEIZE THE PROCEEDS OF CRIME FEMALES TRAFFICKED FOR PROSTITUTION ENTERPRISE PATTERN OF ONGOING CRIMINAL ACTIVITY PROSECUTE MANAGERS PARTICIPANTS GOAL PUT BROTHEL OUT OF BUSINESS TARGET OWNER MANAGER
STATE PROVED ENTERPRISE BY SHOWING HOUSE BROTHEL HOUSE PROVIDED SYSTEM OF AUTHORITY COMMON PURPOSE CENTRAL OPERATIONAL POINT OF ILLEGAL ACTIVITY CONTINUITY OF STRUCTURE TO CONDUCT UNLAWFUL ACTIVITIES
ENTERPRISE HOUSE HUSBAND WIFE ACCUSEDMANAGERS EMPLOYEES PROSTITUTES VICTIMS PORA ACCUSED
WHO WERE THE ACCUSED Enterprise House ACC 1 Husband ACC 2 Wife
Racketeering The state had to prove that each accused was “employed by or associated , participated in or managed” the enterprise.
Pattern of Racketeering Activity planned, l ongoing, l repeated and continuous participation or involvement of the accused in the illegal activities of the enterprises affairs. l l PORA comprised of contraventions of the Sexual Offences Act and money laundering counts
GOAL OF THE ENTERPRISE USING THE PROCEEDS OF CRIME Enterprise Club THRO EMPLOYING PROSTITUTES KEEPING A BROTHEL HARBOURING FOREIGNERS FINANCIAL GAIN
METHODS ENTERPRISE USED TO OBTAIN GOALS MONEY LAUNDERING Offences were: • ongoing • continuous • planned • repeated (PORA) SCHEDULE 1 OFFENCES IN YELLOW KEEPING A BROTHEL RECRUITED FEMALES PROCURED FEMALES IMMIGRATION OFFENCES ENTERPRISE CONTRAVENED BUSINESS LICENCE GRANTED PROSTITUTION LIVED OFF EARNINGS OF PROSTITUTION
Money Laundering Offences
THE ACCUSED PARTICIPATED DIRECTLY INDIRECTLY WHICH ALLOWED THEM TO BENEFIT FROM THE PROCEEDS OF CRIMES IN AFFAIRS OF THE ENTERPRISE
Accused Made arrangements, Transacted, used, acquired, or possessed The income from prostitution/ brothel which formed the proceeds of unlawful activities Effect was to conceal source of money Hide fact that monies came from acts of prostitution And that income was from the club
l The two accused were charged with 21 charges in total l Offences included contraventions of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), the Sexual Offences Act 23 of 1957 and the Immigration Act 13 of 2002
STATE EVIDENCE: 8 witnesses l 3 Thai witnesses l 1 client l The undercover agent and arresting officer l A credit control supervisor at Ethekwini municipality l Officer from the Department of Home
Evidence of the Victims Revealed: l Accused 1 and 2 recruited, procured, transported, accommodated and employed a number of Thai females to work as prostitutes at the said premises. l Both accused lived off the earnings of prostitution by the said Thai females. l Both accused had no legitimate employment
State Proved that: l Accused 1 and 2 were responsible for managing operations and activities at the house / enterprise. l Accused 1 and 2 as managers and employers benefited from the income received from the unlawful activities and business conducted by the enterprise
ITO Money Laundering Offences l State relied exclusively on the viva voce evidence of the 3 victims. l No paper trail l No documentary exhibits found
Exploitation l Debt bondage – R 60 000 l Did not earn a cent until debt paid l On “call” 24 hours 7 days a week unless sick l After debt paid still had to pay portion of earnings to accused l Passports removed until debt paid l Not allowed out of house unsupervised. l Could not refuse to work – assaulted l Approximately 12 -15 clients per day
l Both accused closed their cases without testifying nor calling any witnesses. l Defence stressed point that the witnesses came to SA to do voluntary prostitution. l The Court was therefore left with the evidence of the State only.
Charges Counts 1 -2: Racketeering Count 3: Procurement of a female to have unlawful carnal intercourse Counts 4 -5: Persons living on earnings of prostitution Counts 6 -7: Keeping a Brothel
Counts 10 -11: Facilitating Prostitution Counts 12 -13: Receiving remuneration for commission of act of indecency Counts 14 -15: Owner / occupier managing / controlling brothel Counts 16 -19: Immigration Offences Counts 20 -21: Money Laundering (S 4 and S 6)
l The accused were convicted of 17 out of 22 charges l Included contravening section 2 (1)(f) of POCA – Managing an enterprise, l All charges under the sexual offences Act, l All money laundering charges l 2 immigration charges.
What has this case proved? l That was and still is considered by many as “minor offences” -namely “prostitution” and keeping a brothel can be regarded as “crimes that are committed in an organised fashion”.
This case further proves that “ordinary people” are committing “extra-ordinary crimes” in an organised manner.
l Too often the focus is on larger syndicates, which are more organised and structured and who commit offences which are regarded as “priority crimes”. l This case has proved that racketeering and money laundering convictions can be obtained for such “less prioritised offences”.
This conviction is st the 1 in the RSA For Racketeering based on the predicate offences of prostitution and brothel offences And where the facts fitted the crime of Trafficking in Persons KZN DOES IT AGAIN!!!!!
This conviction would not have been possible without the testimony of the victims !!!
The Economics of Human Trafficking Supply Demand
The Client can be prosecuted!!!!! Section 11 Act 32 / 2007: Engaging sexual services of persons 18 years or older
Addressing “demand” is key to the prevention of sex trafficking. SA law caters for the prosecution of clients
Investigators and Prosecutors must be able to look at the bigger picture by: Targeting the manager /owner / boss /pimp and look behind the face of prostitution!!!
Thank You for your attention! Advocate Val Lotan [email protected] gov. za Cell: 0845200143 Office: 031 -3345267 Fax: 031 -3345220