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.

Tools:

Financial Recovery: A Victim’s Guide to Restitution, CalVCP and CDCR Office of Victim and Survivor Rights and Services, available in English.


Maximizing Restitution Awards for Labor and Sex Trafficking Victims: A Guide for Federal Prosecutors and Pro Bono Attorneys, Fulbright and Jaworski L.L.P and Polaris Project, 2013, in English.

Crime Victims Restoration Fund

Drafters should include a provision for a crime victim’s restoration fund where none is already included in the criminal code or other laws. Funds should be administered according to existing regulations. Where regulations are not in place, drafters should consult Article 29 of the UNODC Model Law Against Trafficking in Persons

Key regulations include how victims may apply for restoration funds, the basis for calculation of payments, the circumstances under which compensation may be paid, and the process for appealing a decision. Victims should be eligible for compensation regardless of whether the offender is identified, arrested or convicted. A victim’s immigration status, return to his/her home country or the absence of the victim from the jurisdiction shall not prevent payment of compensation from the crime victim’s restoration fund. 

See: UNODC Model Law Against Trafficking in Persons, Art. 29, 2009; Polaris Project Model Comprehensive State Legislation to Combat Trafficking in Persons, 3.5, 2006; Model Provisions for State Anti-Trafficking Laws, Center for Women and Public Policy, Providing Eligibility for Benefits under the State Crime Victims Fund Proposed Language, 9, 2005; State Model Law on Protection for Victims of Human Trafficking, Division D, Section 10, 2005.

Illustrative Example:

Ghana’s Human Trafficking Act of 2005 contains provisions providing for the establishment of a “Human Trafficking Fund,” and also sets out the objectives of, management of, payment from, and accounting for the fund. 

Establishment of Fund

20. There is established by this Act a Human Trafficking Fund.

Sources of money for the fund

21. The moneys for the Fund include
(a) voluntary contributions to the Fund from individuals, Organisations and the private sector,
(b) the amount of money that Parliament may approve for payment into the Fund,
(c) grants from bilateral and multilateral sources,
(d) proceeds from the confiscation of property connected with trafficking, and
(e) money from any other source approved by the Minister responsible for Finance.

Objective of the Fund

22. The moneys of the Fund shall be applied as follows:
(a) towards the basic material support of victims of trafficking;
(b) for the skills training of victims of trafficking;
(c) for tracing the families of victims of trafficking;
(d) for any matter connected with the rescue, rehabilitation and reintegration of victims of trafficking in their best interest;
(e) towards the construction of reception shelters for trafficked persons in the districts; and
(f) for training and capacity building to persons connected with rescue, rehabilitation and reintegration.

Management of the Fund

23. (1) The Fund shall be managed by the Ministry.
(2) Moneys for the Fund shall be paid into a bank account opened for the purpose by the Ministry with the approval of the Minister for Finance.

Payment from the Fund

24. (1) Moneys issued from the Fund shall be by cheque signed by the accountant of the Ministry and any two of the following:
(a) the Chief Director of the Ministry;
(b) the secretary of the Management Board established under section 28, and
(c) one other member of the Management Board nominated by the members of the Management Board.
(2) The Management Board shall develop guidelines for disbursements from the Fund.

Accounts and audit

25. (1) The Ministry shall keep books of account of the Fund and proper records in relation to them, in the form approved by the Auditor-General.
(2) The Ministry shall submit the accounts of the Fund to the Auditor- General for audit within three months after the end of the financial year.
(3) The Auditor-General shall, not later than three months after the receipt of the accounts, audit the accounts and forward a copy of the audit report to the Minister.


Promising Practice: Canada provides a comprehensive compensation programme which includes funds for counseling and expenses such as emergency shelter and food, transportation, dependent care, and lost wages. Services may vary by province, but generally Canada also provides funds for the costs associated with participating in a court process, including travel, interpretation and special accommodation for disabled victims. (See: Canadian Resource Centre for Victims of Crime.)

Asset Forfeiture

Drafters should ensure that a trafficker’s assets, including overseas assets, may be forfeited and the proceeds from the sale of these assets be directed toward the trafficking victim’s rehabilitation. See: UNODC Model Law Against Trafficking in Persons, Art. 29, 2009. Drafters should clarify that both tangible property and cash may be forfeited and re-directed toward victim rehabilitation funds. Seized assets should be used first in paying restitution to victims and secondly in paying damages awarded to a victim in a civil action. The trafficker’s assets should be frozen during the legal action and pending judgment against him/her.


Illustrative Examples

Polaris Project, a United States based anti-trafficking nongovernmental organization, recommends the following model language for Asset Forfeiture provisions:
 
(A) Any person who violates [state human trafficking offenses] shall forfeit to the State any profits or proceeds and any interest or property that the sentencing court determines to have been acquired or maintained as a result of committing [state human trafficking offenses].
(B) The following shall be subject to forfeiture to the State, and no property right shall exist in them:
(1) All assets, foreign, domestic, and within this State:
(a) of an individual, entity, or organization engaged in planning or perpetrating an act in this State which violates [state human trafficking offenses] and all assets, foreign or domestic, affording a person a source of influence over a trafficked individual;
(b) acquired or maintained by a person with the intent and for the purpose of supporting, planning, conducing, or concealing an act in this State which violates [state human trafficking offenses]; or
 (c) derived from, involved in, or used or intended to be used to commit an act in this State which violates [state human trafficking offenses].
(C) The court shall, upon petition by the Attorney General or State's Attorney [or: District Attorney/ County Prosecutor] at any time following sentencing, conduct a hearing to determine whether any property or property interest is subject to forfeiture under this section.
(D) Upon conviction of a person for [state human trafficking offenses], the court shall direct the Attorney General to seize all property or other interest declared forfeited under this section. All monies forfeited and the proceeds from sale of all property forfeited and seized under this section shall first be used to pay restitution to victims of human trafficking and subsequently to pay any damages awarded to victims in a civil action. Any remaining assets shall go to the state crime victims’ fund and toward the reimbursement of any local police department which has used its own funds in the detection, investigation, apprehension, and prosecution of persons for the violation of [state human trafficking offenses].
(E) Overseas assets of persons convicted of [state human trafficking offenses] shall also be subject to forfeiture to the extent they can be retrieved by the State.  
 
 
The Belgian Law related to trafficking in human beings allows for forfeiture of the assets of sex traffickers consistent with forfeiture provisions in its criminal code. The Belgian law states “The special confiscation provided for in Article 42(1) of the Criminal Code may be applied even where ownership of the objects in question does not lie with the convicted person.” See: Belgium Law containing provisions to combat trafficking in human beings and child pornography, Chapter 1, Art. 1 amending Art. 77bis §1.5, 1995 available at www.legislationline.org.
 
The Israeli “Prohibition of Trafficking in Persons” law also contains a forfeiture provision:
 
377D. Forfeiture
 
(a) In this section and in section 377E –
"Combating Criminal Organizations Law" means the Combating Criminal Organizations Law, 5763 – 20032;
"victim of an offense" means a person who is directly injured by an offense and a family member of a person who died as a result of the offense;
"offense" means the offense of holding under conditions of slavery according to section 375A and the offense of trafficking in persons according to section 377A;
"property" and "property related to an offense" have the same meaning as in the Combating Criminal Organizations Law.
 
(b) The provisions of sections 5 to 33 of the Combating Criminal Organizations Law, except for sections 8, 14(2) and 31 of the said law, shall apply to the forfeiture of property related to an offense, as the case may be and mutatis mutandis.
 
(c) Subject to the provisions of subsection (b), property that is subject to forfeiture according to the provisions of this part and also according to the provisions of the Combating Criminal Organizations Law or the Prohibition of Money Laundering Law, 5760 – 2000, shall be forfeited according to the provisions of this Law, unless there are
special reasons justifying that the forfeiture of the property not be carried out according to the provisions of this part.
 
(d) The Minister of Justice, with the approval of the Constitution, Law and Justice Committee of the Knesset, shall promulgate in regulations provisions regarding procedural rules in the matter of an application for a forfeiture order in a criminal or civil proceeding, proceedings for the hearing of objections to the forfeiture, application for steps to safeguard property, temporary relief, rehearing, appeal, and also provisions on the ways to effectuate the forfeiture, administer the assets and give notice to persons claiming right in the property.
 
(See: Israel Prohibition of Trafficking in Persons Law, 2006; available in English).
 
Civil Liability
 
Drafters should create a right for trafficking victims or their legal guardian, family member or representative to sue their traffickers for damages as a result of being trafficked. (See: UNODC Model Law Against Trafficking in Persons, Art. 27, 2009). The civil right of action should include:
  • Actual, punitive and compensatory damages, or any combination of those;
  • Injunctive relief and other appropriate relief;
  • Attorney’s fees and costs;
  • A statute of limitations that does not start until a minor reaches the age of minority or a ten year statute of limitations for an adult victim, and the statute of limitations should be suspended when:
  • A trafficking victim becomes disabled;
  • A trafficking victim could not have reasonably discovered the right due to the circumstances of the trafficking situation;
A provision stating that the defendant may not assert a defense of the running of the statute of limitations when the expiration is due to conduct by the defendant;A provision stating that the victim’s immigration status, return to his/her home country or the absence of the victim from the jurisdiction shall not prevent relief under the civil right of action; andA provision stating that the civil action shall be stayed during the pendency of any criminal action arising from the same occurrence in which the claimant is a victim.
(See: UNODC Model Law Against Trafficking in Persons, Art. 27, 2009; Polaris Project Model Comprehensive State Legislation to Combat Trafficking in Persons, 3.1, 2006; Model Provisions for State Anti-Trafficking Laws, Center for Women and Public Policy, Providing for Private Right of Action Proposed Language, 9, 2005; State Model Law on Protection for Victims of Human Trafficking, Division C, Section 6, 2005.)
 
Illustrative Example:
 
The State of California in the United States has enacted a civil liability law which has been successfully used to secure damage awards for the harm suffered at the hands of sex traffickers.
 
California Civil Code: Civil Action
 
52.5. (a) A victim of human trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney's fees and costs.
(b) In addition to the remedies specified herein, in any action under subdivision (a), the plaintiff may be awarded up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater. In addition, punitive damages may also be awarded upon proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking.
(c) An action brought pursuant to this section shall be commenced within five years of the date on which the trafficking victim was freed from the trafficking situation, or if the victim was a minor when the act of human trafficking against the victim occurred, within eight years after the date the plaintiff attains the age of majority.
(d) If a person entitled to sue is under a disability at the time the cause of action accrues, so that it is impossible or impracticable for him or her to bring an action, then the time of the disability is not part of the time limited for the commencement of the action. Disability will toll the running of the statute of limitation for this action.
(1) Disability includes being a minor, insanity, imprisonment, or other incapacity or incompetence.
(2) The statute of limitations shall not run against an incompetent or minor plaintiff simply because a guardian ad litem has been appointed. A guardian ad litem's failure to bring a plaintiff's action within the applicable limitation period will not prejudice the plaintiff's right to do so after his or her disability ceases.
(3) A defendant is estopped to assert a defense of the statute of limitations when the expiration of the statute is due to conduct by the defendant inducing the plaintiff to delay the filing of the action, or due to threats made by the defendant causing duress upon the plaintiff.
(4) The suspension of the statute of limitations due to disability, lack of knowledge, or estoppel applies to all other related claims arising out of the trafficking situation.
(5) The running of the statute of limitations is postponed during the pendency of any criminal proceedings against the victim.
(e) The running of the statute of limitations may be suspended where a person entitled to sue could not have reasonably discovered the cause of action due to circumstances resulting from the trafficking situation, such as psychological trauma, cultural and linguistic isolation, and the inability to access services.
(f) A prevailing plaintiff may also be awarded reasonable attorney's fees and litigation costs including, but not limited to, expert witness fees and expenses as part of the costs.
(g) Any restitution paid by the defendant to the victim shall be credited against any judgment, award, or settlement obtained pursuant to this section. Any judgment, award, or settlement obtained pursuant to an action under this section shall be subject to the provisions of Section 13963 of the Government Code.
(h) Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim. As used in this section, a "criminal action" includes investigation and prosecution, and is pending until a final adjudication in the trial court, or dismissal.
 
(See: California Civil Code, Section 52.5, 2009.)
 
Ensuring Privacy and Identity of Victims
 
Drafters should ensure that special provisions for the protection of a trafficking victim’s privacy and identity are included in the law. Such protections should include:
  • The processing, storage and use of personal data exclusively for the purposes for which they were compiled according to existing laws and regulations;
  • Protocols for the sharing of information between agencies involved in the victim identification and assistance with full respect for the protection of privacy of the victim;
  • The confidentiality of information exchanged between a victim and professional providing medical, psychological, legal or other assistance services shall be confidential and shall not be exchanged with third persons without the consent of the victim;
  • Interviews with the victim during court proceedings should be conducted with respect for the victim’s privacy and away from the public and media;
  • The confidentiality of the results of medical examinations of the victim and their use only for criminal investigation and prosecution; and
  • The prohibition against public disclosure or publication of the victim’s name, address, or other identifying information including photographs.
 
Drafters should ensure that special provisions for the protection of a child victim’s privacy and identity are included in the law. Such protections include the above listed provisions as well as special consideration for the victim’s age. (See: Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Council of Europe, 2007)
 
Orders for Protection, Harassment Restraining Orders and Other Court Orders
 
Orders for protection, harassment restraining orders and other court orders may be available for victims of trafficking. For more information, see the Domestic Violence and Sexual Assault sections of the endvawnow.org module.
 


[1] Go to http://www.endvawnow.org/en/modules/view/8-legislation.html#6, choose Sex Trafficking of Women and Girls.