Sexual offending, prostitution & human trafficking
1. Trafficking in human beings (THB)
Legal approaches
- Principal legal instruments on three policy levels (bold print = most important)
▪ UN
▫ 2000 Trafficking Protocol to UN TOC Convention (= Palermo convention)
* UN convention against Transnational Organised Crime
* Two of the protocols are important: trafficking and smuggling protocol (separate)
= Trafficking should not be mixed up with smuggling! Even if today both concept are
being blurred constantly. Smugglers are being represented as traffickers. Both
phenomena may be connected sometimes (evolve frome the one into the other)
BUT fundamentally the definitions are very different for good reasons
▫ 2000 Smuggling Protocol to UN TOC Convention
▫ 1950 Convention on THB and exploitation prostitution
* Old convention, professor imposes to this/thinks its a bad convention (it criminalizes
prostitution)
* Conventions in trafficking of human beings but also about sex work
▪ CoE (Council of Europe)
▫ Didn’t have any conventions until 2005, it is more human rights centered so it focuses more
on the human rights side
▫ 2005 Warsaw Convention on THB
* More modern, same approach as 2000 protocol. When it comes to the core definition
and approach for human trafficking, the UN standard is being taken over in this CoE
convention
▪ EU
▫ 2002 FD on THB
* Hard law instrument, before Warsaw & after Palermo
* They obligate their members to criminalize trafficking when certain constitute elements
are there. They require member states to come with minimum sanctions for that
behavior.
* We had earlier instruments, was the first organisation out of the three that had any legal
instruments but it was soft law
▫ 2004 residence permit directive for THB victims
▫ 2011 directive on THB
* This is the current instrument
* Repealing the 2002 FD
* Amended by directive 2024/1712 of 13/6/2024 (transposition 15/7/2026)
▫ EU has taken in the Warsaw convention, the human rights side, but looks even further ⇒ it
is more (or even the most) complete > they are stronger, better, more protective instruments
▫ The EU is the only one with an internal market and borders
- Why do we criminalise smuggling: to protect the territory
▪ Smugglers can also be traffickers (ARE DIFFERENT THINGS)
▫ Trafficking creates victims
- Three policy levels who have a shared agreement on the three key element/levels (like the
definition of criminal law)
1
,Gender-neutral criminal law approach
- It’s not because we often use gender neutral terms that we don’t need gender specific policy
- However: particular vulnerability women
▪ Feminization of poverty
▪ Gender discrimination
▪ Lack of educational/professional opportunities in home countries
- Specific attention to (criminal) status of exploitation in prostitution
▪ Even then: gender-neutrality important
▪ Also: male/boys prostitution
▫ The swedish models seeks to protect women from men, because men are the bad ones
and women need protection from them: pushes sex works completely under the radar
* It’s gaining popularity in other states
▪ Gender: false rationale for criminalization clients of prostitution?
- THB problem expanded from sexual to labour sphere
▪ Significant number of male victims
- Extra on the swedish model:
Criminal law tries to formulate things is a gender neutral fashion. However we shouldn’t be ignorant or in
denial of the fact that women are facing particular vulnerabilities especially in countries where we have
feminisation of poverty, gender discrimination, lack of opportunities. We need to bear them in mind and
hope that policies are taking account of the situation (they are). Some are translating that in a call for
criminalisation of sex work and economic model behind it. Women are more featuring the sex industry but
we do not have exclusively women or girls in sex work or prostitution. Some policies of certain countries
are entirely gender based (like Sweden). The Swedish model when it comes to sex work had been followed
by a range of EU countries, following this old paternalist convention model. They argue that the impact of
prostitution on women is inacceptable on a societal level. They are denying the realities of male and boy
prostitutes. We look to more certain groups because the prevalence is bigger but we need to look in
indifferent directions! In ’93 they had trafficking for sexual exploitation in truly bad circumstances with
women being smuggled into Europe/Belgium from the Philippines, being forced into prostitution, their
papers taken away etc. slavery like circumstances. The trafficking in human beings picture in the late
nineties was really about women being trafficked for forced sexual exploitation. If you look at the reality of
the last decade in Europe, it’s completely different. 90% of victims are typically young males who have
been trafficked and exploited in other labour spheres. It doesn’t mean we don’t have trafficking situations
like before! In general, those are the figures. We have seen an enormous change! Do not look upon
trafficking problems as predominantly as something which affects women. On a contrary, there is an
enormous lot of woman fighting for a rights positions to do sex work. A lot of the many so-called trafficking
policies are hindering them to do so and this is frustrating!
Current mainstream criminal law definition
- It’s not because you have one of the elements that there is a crime, the other two elements also
have to be present
- Any of the elements can also happen online
- UN, CoE, EU are taken together. The specificities (especially EU legal instruments) are coming later.
For now, the three have come with the same approach to trafficking meaning trafficking is bad when
it consists of the following 3 constituent elements.
2
,Movement
- 1st element: movement
▪ Recruitment, transportation, transfer, harbouring, subsequent reception of a person, including
exchange or transfer of control over that person
▫ Even where no organised criminal group is involved
▫ Even where no border is crossed
* Most trafficking today is within the EU, does not involve the crossing of a border & manly
concerns nationals
* The UN convention speaks of transnational organised crime but it can be human
trafficking even when it is not transnational (doesn’t cross borders) or isn’t organised.
▫ Even where the victim has legally entered, has legal residence in or is a national of the
state where the trafficking occurs
* Meaning we may have trafficking of Belgians in Belgium. It may be about foreigners but
it is not a necessity!
▫ Even where there is no profit motive (!!)
* In contrast with smuggling! There it is a core constituent element!
* The motive may be financial but it doesn’t need to be
Means
- 2nd (core!) element: means
▪ Where either, provided the person involved is not a child!! (i.e. a person below the age of
18), in which case the above conduct will constitute punishable trafficking even if none of the
forthcoming means has been used (⇒ so if it’s a minor this second element isn't even
necessary to speak about trafficking!!)
▫ Use is made of coercion, force or threat, including abduction
▫ Use is made of deceit or fraud
▫ There is an abuse of authority or of a position of vulnerability, which is such that the person
has no real and acceptable alternative but to submit to the abuse involved
* It is also abusive! You can’t argue that it isn’t coercive if the person has not been given a
viable other option.
▫ Payments or benefits are given or received to achieve the consent of a person having
control over another person
* When you are providing someone with benefits to do it, so if you do it indirectly
▪ The consent of the person involved being irrelevant where any of these means has been used
▫ Meaning that the drafters of the legal instrument are not denying that the persons may be
consenting to a coercive situation, they are just saying that the consent is irrelevant. it allow
sit to avoid the difficulty with “can you consent or not?”. It is just invalid and bad if it
happens!
Envisaged exploitation
- 3rd element: envisaged exploitation
▪ For the purpose of (either)
▫ Exploitation by forced or compulsory labour or services, including slavery or practices
similar to slavery or servitude
* Various perspectives and implementation differences
▫ Exploitation of the prostitution of others or other forms of sexual exploitation
* Important int’l legal, policy and implementation differences
▫ Organ transfer or removal (for EU: not until 2011 directive = LATE)
3
, ▪ No consensus as to whether also for the purpose of exploitation of
▫ Begging (explicitly included under forced labour or services > to avoid discussion) (EU
directive)
* If you use children to ultimately collect money (instrumentalising children, women with
children at the street etc.), EU directive has concluded this (unlike UN & CoE)
▫ Criminal activities (EU directive)
* EU is leading because they have more exploitation forms which should also be labelled
as trafficking
▫ Illegal adoption (2nd Optional Protocol CRC + 2024 EU amending directive)
* CRC = children’s right convention (UN)
▫ Surrogacy (2024 EU amending directive)
▫ Forced marriage (2024 EU amending directive)
▪ Online dimension for the 3 elements: implicitly incorporated
- Two elements are enough for Belgian law to be talking about THB (f.e. When you bring a friend to
their job as an escort you can be sued for trafficking since you do apply to element 1 and 3)
‘Knowing use’ of services offered by THB victims
- CoE 2005 Convention & 2011 EU THB directive | not compelling
▪ States invited to consider criminalization as a means to tackle the demand side
▫ They argued that it was important to work on demand to prevent trafficking (if you take
away the demand, the supply will stop). BUT this is limited in approach and there is a
linkage between both! Trafficking is not entirely demand driven. They were invited to
consider criminalization but it wasn't mandatory.
▪ Demand-supply elasticity much underresearched, especially in sexual sphere
▫ Especially in the sphere of sex work and trafficking, demand and supply elasticity has been
hardly researched. There may be quite some supply that triggers demand.
- For which forms of exploitation | sexual only, or labour as well? other?
▪ Country level (examples) so far essentially limited to sexual sphere (UK, The Netherlands)
(later)
▪ Labour sphere: only indirect user accountability through several liability or participation
- 2024 EU amending directive (new Article 18a)
▪ “When it is an intentional act, the use of services provided by a victim of an offence referred to
in Article 2, where the victim is exploited to render such services and the user […] knows that
the person providing the service is a victim of an offence referred to in Article 2”
▪ It’s about knowledge in the head of a perpetrator who uses services of the victim of trafficking
▪ We actually need to look at the demand side and see how we can change this, since it’s so
cheap
▪ The UK has choice to do a criminalisation for people who purpose sex workers
▫ Argumentation was that its difficult to separate and that they work with a certain system that
someone is liable (which is against the presumption of innocence)
▫ The goal was not to protect victims but to criminalise sex work
▪ The Netherlands have also introduced it
▫ Problems do arise around identifying and established people have knowledge > how do you
prove that people were aware that the person giving services was a victim of trafficking
▫ There has been a very long debate how it would work in practice before it was implemented
▪ How would it work in the labour sphere?
▫ It will have to work for all possible exploitation spheres (f.e. economical exploitation)
4
1. Trafficking in human beings (THB)
Legal approaches
- Principal legal instruments on three policy levels (bold print = most important)
▪ UN
▫ 2000 Trafficking Protocol to UN TOC Convention (= Palermo convention)
* UN convention against Transnational Organised Crime
* Two of the protocols are important: trafficking and smuggling protocol (separate)
= Trafficking should not be mixed up with smuggling! Even if today both concept are
being blurred constantly. Smugglers are being represented as traffickers. Both
phenomena may be connected sometimes (evolve frome the one into the other)
BUT fundamentally the definitions are very different for good reasons
▫ 2000 Smuggling Protocol to UN TOC Convention
▫ 1950 Convention on THB and exploitation prostitution
* Old convention, professor imposes to this/thinks its a bad convention (it criminalizes
prostitution)
* Conventions in trafficking of human beings but also about sex work
▪ CoE (Council of Europe)
▫ Didn’t have any conventions until 2005, it is more human rights centered so it focuses more
on the human rights side
▫ 2005 Warsaw Convention on THB
* More modern, same approach as 2000 protocol. When it comes to the core definition
and approach for human trafficking, the UN standard is being taken over in this CoE
convention
▪ EU
▫ 2002 FD on THB
* Hard law instrument, before Warsaw & after Palermo
* They obligate their members to criminalize trafficking when certain constitute elements
are there. They require member states to come with minimum sanctions for that
behavior.
* We had earlier instruments, was the first organisation out of the three that had any legal
instruments but it was soft law
▫ 2004 residence permit directive for THB victims
▫ 2011 directive on THB
* This is the current instrument
* Repealing the 2002 FD
* Amended by directive 2024/1712 of 13/6/2024 (transposition 15/7/2026)
▫ EU has taken in the Warsaw convention, the human rights side, but looks even further ⇒ it
is more (or even the most) complete > they are stronger, better, more protective instruments
▫ The EU is the only one with an internal market and borders
- Why do we criminalise smuggling: to protect the territory
▪ Smugglers can also be traffickers (ARE DIFFERENT THINGS)
▫ Trafficking creates victims
- Three policy levels who have a shared agreement on the three key element/levels (like the
definition of criminal law)
1
,Gender-neutral criminal law approach
- It’s not because we often use gender neutral terms that we don’t need gender specific policy
- However: particular vulnerability women
▪ Feminization of poverty
▪ Gender discrimination
▪ Lack of educational/professional opportunities in home countries
- Specific attention to (criminal) status of exploitation in prostitution
▪ Even then: gender-neutrality important
▪ Also: male/boys prostitution
▫ The swedish models seeks to protect women from men, because men are the bad ones
and women need protection from them: pushes sex works completely under the radar
* It’s gaining popularity in other states
▪ Gender: false rationale for criminalization clients of prostitution?
- THB problem expanded from sexual to labour sphere
▪ Significant number of male victims
- Extra on the swedish model:
Criminal law tries to formulate things is a gender neutral fashion. However we shouldn’t be ignorant or in
denial of the fact that women are facing particular vulnerabilities especially in countries where we have
feminisation of poverty, gender discrimination, lack of opportunities. We need to bear them in mind and
hope that policies are taking account of the situation (they are). Some are translating that in a call for
criminalisation of sex work and economic model behind it. Women are more featuring the sex industry but
we do not have exclusively women or girls in sex work or prostitution. Some policies of certain countries
are entirely gender based (like Sweden). The Swedish model when it comes to sex work had been followed
by a range of EU countries, following this old paternalist convention model. They argue that the impact of
prostitution on women is inacceptable on a societal level. They are denying the realities of male and boy
prostitutes. We look to more certain groups because the prevalence is bigger but we need to look in
indifferent directions! In ’93 they had trafficking for sexual exploitation in truly bad circumstances with
women being smuggled into Europe/Belgium from the Philippines, being forced into prostitution, their
papers taken away etc. slavery like circumstances. The trafficking in human beings picture in the late
nineties was really about women being trafficked for forced sexual exploitation. If you look at the reality of
the last decade in Europe, it’s completely different. 90% of victims are typically young males who have
been trafficked and exploited in other labour spheres. It doesn’t mean we don’t have trafficking situations
like before! In general, those are the figures. We have seen an enormous change! Do not look upon
trafficking problems as predominantly as something which affects women. On a contrary, there is an
enormous lot of woman fighting for a rights positions to do sex work. A lot of the many so-called trafficking
policies are hindering them to do so and this is frustrating!
Current mainstream criminal law definition
- It’s not because you have one of the elements that there is a crime, the other two elements also
have to be present
- Any of the elements can also happen online
- UN, CoE, EU are taken together. The specificities (especially EU legal instruments) are coming later.
For now, the three have come with the same approach to trafficking meaning trafficking is bad when
it consists of the following 3 constituent elements.
2
,Movement
- 1st element: movement
▪ Recruitment, transportation, transfer, harbouring, subsequent reception of a person, including
exchange or transfer of control over that person
▫ Even where no organised criminal group is involved
▫ Even where no border is crossed
* Most trafficking today is within the EU, does not involve the crossing of a border & manly
concerns nationals
* The UN convention speaks of transnational organised crime but it can be human
trafficking even when it is not transnational (doesn’t cross borders) or isn’t organised.
▫ Even where the victim has legally entered, has legal residence in or is a national of the
state where the trafficking occurs
* Meaning we may have trafficking of Belgians in Belgium. It may be about foreigners but
it is not a necessity!
▫ Even where there is no profit motive (!!)
* In contrast with smuggling! There it is a core constituent element!
* The motive may be financial but it doesn’t need to be
Means
- 2nd (core!) element: means
▪ Where either, provided the person involved is not a child!! (i.e. a person below the age of
18), in which case the above conduct will constitute punishable trafficking even if none of the
forthcoming means has been used (⇒ so if it’s a minor this second element isn't even
necessary to speak about trafficking!!)
▫ Use is made of coercion, force or threat, including abduction
▫ Use is made of deceit or fraud
▫ There is an abuse of authority or of a position of vulnerability, which is such that the person
has no real and acceptable alternative but to submit to the abuse involved
* It is also abusive! You can’t argue that it isn’t coercive if the person has not been given a
viable other option.
▫ Payments or benefits are given or received to achieve the consent of a person having
control over another person
* When you are providing someone with benefits to do it, so if you do it indirectly
▪ The consent of the person involved being irrelevant where any of these means has been used
▫ Meaning that the drafters of the legal instrument are not denying that the persons may be
consenting to a coercive situation, they are just saying that the consent is irrelevant. it allow
sit to avoid the difficulty with “can you consent or not?”. It is just invalid and bad if it
happens!
Envisaged exploitation
- 3rd element: envisaged exploitation
▪ For the purpose of (either)
▫ Exploitation by forced or compulsory labour or services, including slavery or practices
similar to slavery or servitude
* Various perspectives and implementation differences
▫ Exploitation of the prostitution of others or other forms of sexual exploitation
* Important int’l legal, policy and implementation differences
▫ Organ transfer or removal (for EU: not until 2011 directive = LATE)
3
, ▪ No consensus as to whether also for the purpose of exploitation of
▫ Begging (explicitly included under forced labour or services > to avoid discussion) (EU
directive)
* If you use children to ultimately collect money (instrumentalising children, women with
children at the street etc.), EU directive has concluded this (unlike UN & CoE)
▫ Criminal activities (EU directive)
* EU is leading because they have more exploitation forms which should also be labelled
as trafficking
▫ Illegal adoption (2nd Optional Protocol CRC + 2024 EU amending directive)
* CRC = children’s right convention (UN)
▫ Surrogacy (2024 EU amending directive)
▫ Forced marriage (2024 EU amending directive)
▪ Online dimension for the 3 elements: implicitly incorporated
- Two elements are enough for Belgian law to be talking about THB (f.e. When you bring a friend to
their job as an escort you can be sued for trafficking since you do apply to element 1 and 3)
‘Knowing use’ of services offered by THB victims
- CoE 2005 Convention & 2011 EU THB directive | not compelling
▪ States invited to consider criminalization as a means to tackle the demand side
▫ They argued that it was important to work on demand to prevent trafficking (if you take
away the demand, the supply will stop). BUT this is limited in approach and there is a
linkage between both! Trafficking is not entirely demand driven. They were invited to
consider criminalization but it wasn't mandatory.
▪ Demand-supply elasticity much underresearched, especially in sexual sphere
▫ Especially in the sphere of sex work and trafficking, demand and supply elasticity has been
hardly researched. There may be quite some supply that triggers demand.
- For which forms of exploitation | sexual only, or labour as well? other?
▪ Country level (examples) so far essentially limited to sexual sphere (UK, The Netherlands)
(later)
▪ Labour sphere: only indirect user accountability through several liability or participation
- 2024 EU amending directive (new Article 18a)
▪ “When it is an intentional act, the use of services provided by a victim of an offence referred to
in Article 2, where the victim is exploited to render such services and the user […] knows that
the person providing the service is a victim of an offence referred to in Article 2”
▪ It’s about knowledge in the head of a perpetrator who uses services of the victim of trafficking
▪ We actually need to look at the demand side and see how we can change this, since it’s so
cheap
▪ The UK has choice to do a criminalisation for people who purpose sex workers
▫ Argumentation was that its difficult to separate and that they work with a certain system that
someone is liable (which is against the presumption of innocence)
▫ The goal was not to protect victims but to criminalise sex work
▪ The Netherlands have also introduced it
▫ Problems do arise around identifying and established people have knowledge > how do you
prove that people were aware that the person giving services was a victim of trafficking
▫ There has been a very long debate how it would work in practice before it was implemented
▪ How would it work in the labour sphere?
▫ It will have to work for all possible exploitation spheres (f.e. economical exploitation)
4
