Another important and basic consideration in drafting criminal law provisions on trafficking is to ensure that the trafficking victim is not punished for her connection to the trafficking. Provisions intended to punish accomplices to the offenses that comprise a case of trafficking should never be used to prosecute the victim. Thus, legislation should be drafted with the clear intent of punishing the trafficker(s). Trafficked persons are often treated by national law enforcement as criminals, both in countries of destination and origin. In destination countries, victims are most likely to be prosecuted for immigration violations, violations of employment law and for involvement in prostitution. If returned to their home country or country of origin, trafficking victims could face prosecution for using false documents, illegally leaving the country or for having worked in the sex industry. The OSCE makes two broad recommendations to protect trafficked persons from criminal prosecution: that States not prosecute victims for "trafficking-related offenses" (i.e. using false documents or working without authorization) and that if trafficked persons are prosecuted for crimes committed during the period in which they were trafficked, they be afforded a legal defense of having been subjected to psychological coercion, physical force or threats when committing the crime. The U.S. anti-trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, for example, states that "Victims of severe forms of trafficking should not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked, such as using false documents, entering the country without documentation, or working without documentation." (Sec. 102 ((b)(19)).
Guidelines for assuring the protection of trafficked persons are discussed in more detail below, and are also enumerated in two documents:
The Recommended Principles and Guidelines on Human Rights and Human Trafficking, issued by the UN High Commissioner for Human Rights (2002) and
The NGO-created Human Rights Standards for the Treatment of Trafficked Persons by the Global Alliance Against Traffic in Women, Foundation Against Trafficking in Women and the International Human Rights Law Group (1999).
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