Civil Remedies for Trafficking Victims
Last updated June 2014
 
In partnership with UN Women, The Advocates for Human Rights created the following sections on United Nations Treaties, Conventions and General Recommendations, and Regional Laws and Agreements for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls.[1] This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
Legislation on violence against women should provide safety, aid, and empowerment for survivors through criminal and civil provisions that include a broad range of remedies and reparations.
 
Drafters should include provisions for restitution, asset forfeiture, civil liability or causes of action for sex trafficking, a crime victims’ rehabilitation fund, orders for protection or harassment restraining orders, protections for privacy, and a victim-advocate caseworker privilege. 
 
Drafters should add victims of trafficking to any classification or definition of “crime victim” to ensure that victims of trafficking for the purpose of sexual exploitation receive all of the services and benefits available.
 
In 2012, the Human Rights Council conducted a panel discussion on women’s human rights including the theme of remedies and reparations for women subjected to violence. A Summary of the Human Rights Council panel discussion on the theme of remedies for women subjected to violence: Report of The Office of the United Nations High Commissioner for Human Rights sets forth some general principles, challenges, and promising practices in providing effective, just, and culturally sensitive reparations for women who have been subjected to violence in different contexts.
 

·       It is the obligation of States to ensure that women victims of violence have full access to justice, including reparations.

·       Reparations encompass compensation, restitution, rehabilitation, measures of satisfaction, and guarantees of non-repetition.

·       Victims must be adequately informed of their rights to reparations.

·     The reparation process should “allow for women and girls to come forward when they are ready and the registration process should take into account obstacles women may face if displacement is necessary or other costs are implicated.”

·       The reparation process “must not expose women to further harm, stigmatization and ostracism and should take into account their safety and best interest at all times, including by ensuring confidentiality and avoiding public disclosure of violations suffered.”

·      The reparation process should ensure eligibility standards for reparations are inclusive, avoid re-victimization, and are aware of obstacles and challenges victims of certain crimes may face.

·        The reparation process should ensure meaningful participation by the victim in the design and delivery of reparations.

·       Generic compensation schemes that do not have a requirement of prosecution or conviction provide a positive avenue through which women who experience violence can claim compensation. This is especially significant given the low number of convictions in various areas.

·       Remedies and reparation programmes should be also created in post-conflict settings.

·       In traditional and informal justice processes, care should be taken to monitor customary dispute-resolution mechanisms as well as differences in outcomes that exist between decisions at the formal judicial level and the non-formal process that fail to protect women’s rights.  (See also the module on Justice that reviews formal and informal justice mechanisms.)

·       In developing reparation policies and programs, there is a call for “substantive participation of women who have been subjected to violence and civil society actors, such as women’s groups and community leaders, alongside men and boys, to ensure a holistic concept of remedies and reparations.”

·       Effort should be made to ensure remedies and reparations “are specific to individual circumstances and culture in order to prevent discrimination, stigmatization, and re-victimization of victims of violence.”

(See: Summary of the Human Rights Council panel discussion on the theme of remedies for women subjected to violence, Human Rights Council, 2012)

 
Drafters should review Module 13 of the UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, which explains the different forms of compensation for victims: through the assets of offenders (civil liability) or through state-funded compensation schemes. See: UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners, Module 12, 2009.
 
Promising Practice: Reparations Extended to More Victims of Sexual Violence in Peru
After six years of limiting reparations for sexual violence only to victims of rape, Peruvian congress passed a law in 2012 making victims of other forms of sexual violence eligible for civil war reparations. According to Peru’s truth and reconciliation commission, the newly recognized forms of sexual violence – including sexual slavery, forced abortion, forced prostitution and kidnapping – were widespread during Peru’s twenty-year conflict. The law will extend reparations to at least 500 more women, who now will be eligible for monetary compensation and free healthcare, therapy, and even education, since many women who experienced sexual violence during the civil war were not able to continue in school. (See: Mattia Cabitza, “Peru Widens Civil War Compensation for Victims of Sexual Violence,” The Guardian, 28 June 2012; Womankind Worldwide, Press Release, 2012 in English; DEMUS, Press Release, 2012 in Spanish).
 
COMP.ACT Project Case Study-
 
Anti-Slavery International and La Strada International initiated and led the European campaign, COMP.ACT to increase awareness and implementation of compensation measures for victims of human trafficking. The campaign lists several goals: to raise awareness and to insert compensation into the international anti-trafficking agenda; research the current options and obstacles victims face when attempting to access compensation; make recommendations for improved implementation of compensation strategies; and ensure greater access to compensation for trafficking victims in Europe. 
 
The campaign was based on the premise that victims of trafficking have a right to seek compensation, as established in international law, and that such measures not only empowers victims and supports recovery, but also can be seen as a prevention mechanism. The COMP.ACT coalition engaged partners in 14 countries throughout Europe to conduct research on the current measures for compensation available to victims on a national level and the various obstacles that victims face when accessing compensation. Each country-based coalition then made recommendations to address the obstacles victims face and conducted awareness raising activities in country. Internationally, partners raised awareness in the international community and conducted advocacy to include compensation measures in national, regional and international law.
 
In their report , COMP.ACT: Findings and Results of the European Action for Compensation for Trafficked Persons, the coalition reports a number of results in the first three years of the project. Examples of reported successes include:

·       Partners have reported an increase in the number of trafficked persons applying for and receiving compensation. For example, since 2010, LEFӦ-IBF of Austria has claimed compensation for every trafficked person in criminal court, and that 7 persons in 2012 were awarded compensation.

·       Inclusion of compensation in anti-trafficking policies and action plans. For example, Bulgarian partners, Animus Association/La Strada Bulgaria successfully incorporated compensation into the national referral mechanism.

·       Increased knowledge of compensation and access to information and strategies to effectively claim compensation for victims and advocates. For example, La Strada Ukraine trained hotline consultants and La Strada Belarus conducted six regional trainings for law-enforcement.

·       Increased knowledge and awareness about compensation internationally. Since the beginning of the campaign, compensation has been included in a number of international or regional legislation and policy. For example, the European Union Directive 2011/36/EU includes the right to compensation, and the Group of Experts on Action against Trafficking in Human Beings that monitors the implementation of the Council of Europe Convention (GRETA) have included information on compensation in their country reports and recommended member states to remove any barriers that may be in place for victims of trafficking.

COMP.ACT Toolkit, COMP.ACT Project: European Action for Trafficked Persons, 2012, in English.

Guidance on Representing Trafficked Persons in Compensation Claims, COMP.ACT Project: European Action for Trafficked Persons, 2012, in English.

Listen to the Secretary General of the Council of Europe announce the launch the COMP.ACT campaign to demand compensation for trafficking victims.  Listen in English. 

(See: COMP.ACT: Findings and Results of the European Action for Compensation for Trafficked Persons, COMP.ACT Project, 2012)

Note: While restitution, asset forfeiture and crime victims’ rehabilitation funds are typically part of the criminal law scheme addressing sex trafficking, they are included here because they should be reviewed with provisions such as civil liability claims and other means of compensating victims for harm.

Restitution

Drafters should include a provision for restitution to trafficking victims where none is already included in the criminal code or other laws. 

Legislation should provide that a survivor of sex trafficking must receive restitution as part of the criminal case against the offender if the offender is convicted or accepts a plea without regard for the offender’s economic circumstances.

Legislation should provide that all victims of sex trafficking must be informed of their rights to restitution and compensation.

Legislation should require a process that does not penalize victims for delaying their request for restitution or compensation. The process should take into account barriers which victims of sex trafficking face when reporting that they have been victims, such as language barriers, private spaces, literacy barriers, barriers due to displacement, and confidentiality.
Compensation should not be a substitute for other criminal penalties for the offender. (UN Handbook 3.11.5).
Legislation should provide for the creation of a government-sponsored compensation or reparations programme which entitles survivors to apply for and receive fair compensation regardless of whether the case is charged or if the offender is found guilty. (See: UN Handbook 3.11.5)

Restitution should be one of the many criminal sanctions imposed upon the trafficker upon conviction. Judges should give priority to restitution over fines. Restitution should include: 
  • Return of property;
  • Payment for the harm or loss suffered;
  • Reimbursement for expenses incurred as a result of the victimization, provision of services and restoration of rights, including:
  • Costs of medical, physical, psychological or psychiatric treatment;
  • Costs of physical and occupational therapy or rehabilitation;
  • Costs of necessary transportation, temporary childcare, temporary housing or the movement of the victim to a safe residence;
  • Lost income and due wages according to national law and regulation regarding wages;
  • Legal fees and other costs or expenses incurred, including costs incurred related to the participation of the victim in the criminal investigation and prosecution process;
  • Payment for non-material damages, resulting from moral, physical or psychological injury, emotional distress, pain and suffering suffered by the victim as a result of the crime committed against him or her;
  • In the case of an offence resulting in death, or bodily injury that results in death, the costs and expenses of necessary funeral and related services; and
  • Any other costs or losses incurred by the victim as a direct result of being trafficked and reasonably assessed by the court.

(See: UNODC Model Law Against Trafficking in Persons, Art. 28, 2009; Polaris Project Model Comprehensive State Legislation to Combat Trafficking in Persons, 1.8, 2006; Model Provisions for State Anti-Trafficking Laws, Center for Women and Public Policy, Mandatory Restitution to Victims Proposed Language, 4, 2005; State Model Law on Protection for Victims of Human Trafficking, Division C, 2005.)

Illustrative Examples:

Losses eligible for restitution under the law of California, United States, (1202.4 (a)(1) of the California Penal code)include: medical expenses, wages or profits lost due to injury, replacement value of stolen or damaged property, cost of installing security devices, retrofitting of residence or vehicle if required due to injuries sustained in the crime, mental health counseling expenses, attorney fees for loss recovery, repairs to damaged items, interest at 10% per annum, and other losses directly related to the crime. (See: Community Services Programs, Restitution Services, State of California.)

18 USC §3663A which states in part:

1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate…
3) The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.  a (1) and (3).

Drafters may also consult language in the State Model Law on Protection for Victims of Human Trafficking, Division C related to the procedure for an order of restitution and enforcement of the restitution order.

When a trafficking victim cannot be fully compensated by a convicted offender, the government should make funds available through a crime victim’s restoration fund.

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