Legal Protection
last updated September 1, 2005

Because trafficking violates national immigration laws, police and immigration officials are most likely to come into contact with trafficking victims in destination and transit countries. Indeed, when cases of trafficking enter national legal systems, victims are often charged with a violation of immigration law, while traffickers are left unpunished. Victims of trafficking, as well as other forms of illegal migration, are vulnerable and are at risk for further exploitation. Immigration legislation should distinguish between trafficking victims and other migrants and provide for prosecution of individuals who aid and facilitate the trafficking of women. The Canadian Immigration and Refugee Protection Act of 2001, for example, recognizes trafficking in persons as a criminal offense and provides for a maximum penalty of $1,000,000 and life imprisonment. Immigration officials, including border guards, customs officials and adjudicators, also require specific training on the dynamics of trafficking so that they can learn to more effectively identify trafficking victims. 


International documents on trafficking have called on states to take steps to protect victims from the immigration consequences of trafficking. The U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children includes provisions to protect victims from legal consequences. Victims who are returned to their home countries should only be repatriated "with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking." In addition, states should consider permitting victims to remain in the country to which they have been trafficked, either temporarily or permanently. The Brussels Declaration recognizes that victims should not be "re-victimised, further stigmatised, criminalised, prosecuted or held in detention centers for offences that may have been committed by the victim as part of the trafficking process."

In February 2002, the European Union drafted a Proposal for a Council Directive "on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities." The aim of the proposal is the creation of a directive that would introduce a residency permit to be issued to adult victims of trafficking or illegal immigration that are third-country nationals. The victims would be granted a thirty-day period in which to consider whether they will cooperate with national authorities in the prosecution of traffickers. During this period, the trafficked person would be eligible for aid, in the form of housing, medical and psychological care and other forms of social assistance. The proposal also calls for the possibility of issuing a short-term (six month) residency period for those victims who cooperate with authorities. 

The 2004 Model State Anti-Trafficking Criminal Statute (Note: Section 225 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 recommends a new model state statute be promulgated.) also seeks to protect women from any legal consequences that result from being trafficked. Victims are "not criminally liable for any migration-related offense, prostitution [insert other crimes and references as appropriate], or any other criminal offense that was a direct result from being trafficked." Victims who "comply with reasonable requests, if any, to assist in the investigation or prosecution of traffickers" should be granted temporary residence permits or visas to remain in the country for the duration of prosecution. In addition, victims who cooperate in this manner must be eligible for permanent resident status.

Belgium, Italy, the Netherlands and Spain have all amended their domestic legislation to aid the reintegration of trafficking victims and to enable victims to cooperate with authorities. Victims are granted residency permits as well as housing and medical assistance.

In the United States, the Victims of Trafficking and Violence Protection Act of 2000 created two new visa categories that do not immediately confer immigrant status but allow victims of trafficking to remain in the United States during criminal prosecution and to receive certain benefits and services. The T and U visas are discussed in more detail in the Trafficking: Law and Policy section. 

Victims' advocates agree that in order to combat trafficking in women, victims must cooperate as witnesses in criminal processes. Although all victims may face safety risks, victims that cooperate with authorities and assist in investigations may require additional protections. Investigators should conduct continuous risk assessments to protect victims at each stage of the investigative and judicial process. This includes protecting the privacy and identity of victims. In addition to protecting the identity of victims, depending on the level of threat, some victims may need to be protected through witness protection programs. Such programs might include relocation, a new identity and new documents, and new residence, employment or work permits. In order to accommodate victims of trafficking, entry criteria for witness protection programs may need to be revised. The European Union has also recognized that it may be helpful to develop regional witness protection programs.

Women's rights activists stress that effective witness and victim protection should not be superseded by the goals of prosecutors. The victim's interests may be at odds with the interests of the state prosecutor, so victims must be allowed to make personal decisions about their own safety. Victims who are unwilling to cooperate in legal proceedings for any reason, may be ineligible for protection and services in some countries. Much needed economic, housing and medical services for victims should not be predicated on a woman's agreement to participate in investigation and prosecution of traffickers.