Shafiq R Khan


Clarifying Concepts of Trafficking

This Article tries to demystify certain concepts about trafficking which have often been misunderstood and distorted. The clarity of these concepts is essential for proper understanding of the trafficking situations and for taking appropriate response……………

Trafficking vs. Prostitution:

Trafficking does not mean prostitution. They are not synonymous. In understanding trafficking, one should delink it from prostitution. As per the existing law, Immoral Traffic (Prevention) Act 1956 (ITPA) prostitution becomes an offence when there is commercial exploitation of a person. If a woman or child is sexually exploited and any person gains out of the same, it amounts to commercial sexual exploitation (CSE), which is a legally punishable offence wherein the culpability lies against all exploiters. Trafficking is the process of recruiting, contracting, procuring or hiring a person for CSE. Therefore, trafficking is a process and CSE is the result. The ‘demand’ in CSE generates, promotes and perpetuates trafficking. This is a vicious cycle. Trafficking could also be a means for other types of violations such as for developing pornographic material, for promoting sex tourism, for sexual exploitation under the facade of bar tending, massage parlours etc, or even for exploitative labour where sexual abuse may or may not coexist.

ITPA envisages only trafficking for CSE. Commercial activity need not be in a brothel, but could also occur in places including a residential dwelling, a vehicle, etc. Therefore a police officer who is acting under ITPA has powers to take steps in all such situations where trafficking leads to or is likely to lead to CSE in any \ form, including those under the facade of massage parlours, bar tending, ‘tourist circuit’, ‘escort services’, ‘friendship clubs’, etc.

1.2 Defining ‘Trafficking’:

The definition of trafficking can be found in the various sections of ITPA. Section 5 speaks about procuring, taking and even inducing a person for the sake of prostitution. According to this section, even attempt to procure and attempt to take or cause a person to carry on prostitution amounts to trafficking. Therefore ‘trafficking’ has been given a broad scope.

A detailed definition of trafficking is available in the Goa Children’s Act 2003. Though it is focused on child trafficking, the definition is comprehensive. Under section 2 (z), “child trafficking” means “the procurement, recruitment, transportation, transfer, harbouring or receipt of persons, legally or illegally, within or across borders, by means of 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 giving or receiving payments or benefits to achieve the consent of a person having control over another person, for monetary gain or otherwise”.

The offence of trafficking, essentially, has the following ingredients:

Displacement of a person from one community to another. The displacement could be from one house to another, one village to another, one district to another, one state to another or from one country to another.

Displacement is also possible within the same building. An example will clarify the point. Presume that the brothel keeper controls several young women who are inmates and that one of the women has a teenage daughter staying with her. If the brothel keeper, by duress or bribe, manages to get the mother to agree to allow the teenager to be used for CSE, the teenager has been moved out of the ‘mother’s community’ and into the ‘brothel community’. This displacement is adequate to constitute trafficking.

Exploitation of the trafficked person. The ITPA and related laws envisage sexual exploitation of the trafficked person. The process of exploitation may be manifest, as in a brothel, or latent, as in certain massage parlours, dance bars, etc, where it takes place under the facade of a legitimate commercial activity.

Commercialization of the exploitation and commodification of the victim. The trafficked victim is exploited as if she is a commodity. the exploiters generate revenue out of the exploitation. They may share a part of the revenue with the victim too. The victim who is getting a share of the money generated is often ‘branded’ as an accomplice and arrested/charge-sheeted and even convicted. The trafficked victim, whose freedom even to think, let alone move out, is dictated by the exploiters, should never be treated as an accomplice. Even if she gets a share of the ‘earnings’, the fact that she has been trafficked to CSE does not alter her status as a victim.

1.3 The organized crime of trafficking:

Human trafficking is a crime of crimes. It is a basket of crimes. In this basket one can dig out the elements of abduction, kidnapping, illegal detainment, illegal confinement, criminal intimidation, hurt, grievous hurt, sexual assault, outraging modesty, rape, unnatural offences, selling and buying of human beings, servitude, criminal conspiracy, abetment etc. Therefore, multiple abuse and abusers located at different points of time and place together constitute the organized crime of trafficking. A host of human rights violations like denial of privacy, denial of justice, denial of access to justice, deprivation of basis rights and dignity etc constitute other part of the exploitation. Therefore, there is no doubt that trafficking is an organized crime.

1.4 The trafficked person:

In the context of ITPA (especially S.5 ITPA) and related laws, a trafficked person could be a male or a female of any age who has been trafficked for CSE in a brothel or any place where CSE takes place. ITPA provides punishment even for attempt to traffic a person. Therefore, even before the person is physically trafficked, the law comes into operation.

1.5 Child:

Child is a person who has not attained the age of 18 years. Any child who is vulnerable to trafficking is considered a “person in need of care and protection” under the Juvenile Justice (Care and Protection of Children)Act, 2000(JJ Act). Law enforcement agencies are duty bound to rescue such children, produce them before the Child Welfare Committee and extend all care and attention.

1.6 Trafficked adult:

Regarding adults, the mere consent of the person does not exclude the possibility of trafficking. If the consent was obtained under duress, coercion, fear or any pressure, then the consent has no meaning and, therefore, all such instances amount to trafficking. Thus, even when an adult woman is ‘picked up’ from a brothel on the charge of ‘soliciting’, it cannot be presumed that she is guilty of soliciting unless and until the ‘mens rea’ (i.e., the intention) is investigated.

A woman trafficked for CSE is a victim of CSE and not an accused.

1.7 Traffickers and other exploiters:

Trafficking is an organized crime. There are several persons involved at several places, starting with (a) place of recruitment, (b) places of transit and (c) places of exploitation. Therefore,

The brothel in charge and other exploiters in the brothel, or the final place

of exploitation, which would also include:

The brothel “madam” or the person in charge of the ‘dance bar’ or ‘massage parlour’ or such other place where exploitation takes place.

The ‘managers’ and all other dramatis personae in such places.

The hoteliers or persons in charge of hotels, etc where exploitation takes place. This includes keepers of places/vehicles used as a brothel (S.3.1 ITPA), persons who allow premises to be used as a brothel (S.3.2 ITPA), persons who detain victims in brothels and other places of exploitation (S.6 ITPA), and those who allow public places to be used for prostitution (S.7.2 ITPA).

The “customer” or “clientele”, who is the abuser of the trafficked woman, is undoubtedly, an exploiter. He is the one who perpetuates ‘demand’ and CSE and is, therefore liable under ITPA and other laws.

The financiers: All those who finance the various processes involved in trafficking are part of the nexus. This may include those who finance recruitment, transportation, stay, accommodation, and even those who indulge in money lending and borrowing at the brothels.

The abettors: All those who abet or support the exploitation or any process involved in trafficking are triable under ITPA (sections 3, 4, 5, 6, 7, 9 ITPA).

Those who are living on the earnings of CSE: Any person who knowingly lives, wholly or partly, on the earnings of prostitution is liable (S.4 ITPA).

This includes all those who have a share in the illegal benefits derived from the exploitation. The financiers who lend or collect money from the brothels (or hotels) and do business out of such transaction are also liable under this section. The hotelier who profits from the exploitation of girls is undoubtedly an accused u/s 4 ITPA.

The spotter, the recruiter, the seller, the purchaser, the contractor, the agent or anybody acting on their behalf.

The transporters, the harbourers and those who provide shelter are also part

of the racket.

All conspirators: In nearly all trafficking situations, several persons conspire at the various stages involved in the process of exploitation, thereby constituting a case of conspiracy. If there is a meeting of minds, followed by an overt act in pursuance thereof, the law of conspiracy (S120 B IPC) is attracted. According to the ITPA, those who conspire to allow any premises to be used as a brothel (S. 3) or those who live on the earnings of exploitation, even partly (S.4), or those who procure or induce or take the person for prostitution (S.5) are all considered conspirators. Therefore, the list of exploiters and abusers is inevitably long, undulated and not always apparent at first glance. Only professional investigation can expose the linkages involved and bring all such persons to book.

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