Routledge Handbook of Human Trafficking
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12 The US is the primary location and focus of this writer’s research. Also, in the interest of full disclosure, my religious background and identity is Christian. Other relevant intersections of my identity include that I am a white, cis-gender female, queer, US-American citizen, who holds feminist and antiracist commitments. For further reflection on the challenges and opportunities that attend this social location as relates to the anti-trafficking movement, see Campbell, L.M. and Zimmerman, Y.C., “Christian Ethics and Human Trafficking Activism: Progressive Christianity and Social Critique” (2014) 34 Journal of the Society of Christian Ethics 145, at p. 146.
13 Seifert, T., “Understanding Christian Privilege: Managing the Tensions of Spiritual Plurality” (2007) 12 About Campus 10, at p. 11.
14 Pew Research Center, America’s Changing Religious Landscape (12 May 2015).
15 Jakobsen and Pellegrini (n.5), at p. 13.
16 Ibid., at p. 13.
17 See Riswold, C.D., Jesus Is Not a Get-Out-of-Jail-Free Card: Christian Privilege and the Duggers (Patheos, 3 June 2015). The case of Laura Silsby’s Haitian child trafficking scheme is a dramatic instance of invoking a Christian identity and motivations as an attempt to avoid responsibility for law-breaking. Following the massive earthquake in Haiti on 10 January 2010, an American woman named Laura Silsby, and ten members of her Idaho-based Southern Baptist Convention-affiliated church group, attempted to take 33 undocumented Haitian children across the border to the Dominican Republic – where Silsby planned to oversee their adoptions to American families. Silsby had been informed by the Dominican consul in Haiti that the children did not have the necessary paperwork to leave Haiti legally, and that trying to bring them to the Dominican Republic without proper documentation could result in a human trafficking charge. When Silsby and her group were detained on 29 January 2010 as they attempted to leave Haiti with the undocumented children, Silsby justified their actions with reference to their religious motivations – telling CBS news reporters: “They are very precious kids that have lost their homes and families and are so deeply in need of, most of all, God’s love and his compassion.” (CBS News, “Americans Charged With Haiti Child Kidnap” (4 February 2010)), as quoted by Zimmerman, Y.C., Between Public Discourse and the Law: Good and Evil, and the Case of Laura Silsby and the New Life Children’s Refuge (Religion, Human Trafficking and Modern Slavery conference, Denver, CO, April 2011).
18 On Christianity’s ambivalent attitude toward slavery see Cannon, K.G., “Christian Imperialism and the Transatlantic Slave Trade” (2008) 24 Journal of Feminist Studies in Religion 127; Glancy, J.A., Slavery in Early Christianity (Minneapolis, MN: Fortress Press, 2006); Brooten, B. (ed.), Beyond Slavery: Overcoming Its Religious and Sexual Legacies (Basingstoke, UK: Palgrave Macmillan, 2010); Glancy, J.A., Slavery as Moral Problem: In the Early Church and Today (Minneapolis, MN: Fortress Press, 2011); Cone, J.H., The Cross and the Lynching Tree (Maryknoll, NY: Orbis, 2013).
19 Zimmerman, Y.C., Other Dreams of Freedom: Religion, Sex, and Human Trafficking (Oxford: Oxford University Press, 2012), pp. 77–102.
20 Choi-Fitzpatrick, A., “To Seek and Save the Lost: Human Trafficking and Salvation Schemas Among American Evangelicals” (2014) 1 European Journal of Cultural and Political Sociology 119, at pp. 129–130.
21 See, generally, Brock, R.N. and Thistlethwaite, S.B., Casting Stones: Prostitution and Liberation in Asia and the United States (Augsburg Fortress Press, 1996); Ipsen, A., Sex Working and the Bible (London: Routledge, 2014).
22 Riswold, Jesus Is Not a Get-Out-of-Jail-Free Card (n.17).
23 Riswold, C., On Christian Privilege and Being an Atheist Ally (Patheos, 6 September 2012).
24 Claude d’Estrée is the Executive Director of the Human Trafficking Center at the University of Denver’s Josef Korbel School of International Studies, and served as the United Nations Global Initiative to Fight Human Trafficking (UN.Gift) Special Rapporteur for Inter-Faith Response to Human Trafficking.
25 Cf. International Federation of Red Cross and Red Crescent Societies, Code of Conduct.
26 d’Estrée, C. and Zimmerman, Y., “Code of Conduct for Religious Institutions, Faith Communities and Faith-based Organizations for Their Work With Survivors of Forced Labour, Human Trafficking and Modern Slavery” (2008, 2010), Human Trafficking Clinic, Josef Korbel School of International Studies.
27 Richardson, J.T. (ed.), Regulating Religion: Case Studies from Around the Globe (Alphen Netherlands: Kluwer, 2004).
28 Richardson, J.T., “Proselytization: Closing Thoughts From a Sociologist”, in Hackett, R.I.J. (ed.), Proselytization Revisited: Rights Talk, Free Markets and Culture Wars (New York: Routledge, 2014), at p. 458.
29 Hertzke (n.3), pp. 344–345; Michael Horowitz, “How to Win Friends and Influence Culture”, Christianity Today (September 2005) 71, at p. 71.
30 International Religious Freedom Act 1998, s.2(b)(1).
31 Ibid., s.2(a)(2) and s.2(a)(4).
32 Ibid., s.2(a)(3).
33 Ibid.
34 Ibid., s.2(a)(2), s.2(a)(3), and s.2(a)(4). The principal forms of religious practice the statute mentions are: assembly (s.2(a)(4)); observance (s.2(a)(3) and s.2(a)(4)); study (s.2(a)(4)); teaching (s.2(a)(3)); worship (s.2(a) (3)); and having, adopting, or changing a religion or faith (s.2(a)(3) and s.2(a)(5)).
35 Ibid., s.2(a)(7)(C).
36 Ibid., s.2(a)(7)(A) and s.2(a)(7)(B).
37 Zimmerman, Other Dreams of Freedom (n.19), pp. 40–41. For further discussion of the history and rhetoric of evangelical Christian concerns about religious persecution see Castelli, E., “Praying for the Persecuted Church: US Christian Activism in the Global Arena” (2005) 4 Journal of Human Rights 321; and McAlister, M., “The Politics of Persecution” (2008) 249 Middle East Report 18.
38 Michael Horowitz, as quoted by Olasky, M., The Jews of Our Time (WORLD, 11 April 2009).
39 Horowitz (n.29), at p. 76.
40 Hertzke (n.3), pp. 163 and 169; Zimmerman, Other Dreams of Freedom (n.19), pp. 40–41; Campbell and Zimmerman (n.12), pp. 148–149.
41 Horowitz (n.29), pp. 75–76. See, also, Zimmerman, Other Dreams of Freedom (n.19); and Campbell and Zimmerman (n.12), p. 149.
42 Horowitz (n.29), at p. 71.
43 Ibid.
44 Hertzke (n.3), at p. 322.
45 Ibid., at p. 325.
46 Zimmerman, Y.C., “Christianity and Human Trafficking” (2011) 5 Religion Compass 567, at p. 572; Zimmerman, Other Dreams of Freedom (n.19), pp. 45–49; Campbell and Zimmerman (n.12), p. 149.
47 Zimmerman, Other Dreams of Freedom (n.19), pp. 70–76; Zimmerman, “Good Freedom” (n.1). See, also, Dixon, D.N., “Aid Workers or Evangelists, Charity or Conspiracy: Framing of Missionary Activity as a Function of International Political Alliances” (2005) 4 Journal of Media and Religion 13; and Hackett’s discussion of ‘aid evangelicalism’ (n.2), at p. 8.
48 Agustín, L., “Rescue Industry”. See The Naked Anthropologist, http://www.lauraagustin.com/site-map/rescue-industry.
49 Welch, S.D., A Feminist Ethic of Risk (Revised edition., Minneapolis, MN: Fortress Press, 2000), at p. 15.
50 Scholl, L.C., I Heart Sex Workers: A Christian Response to People in the Sex Trade (St. Louis, MO: Chalice Press, 2012), at p. 150.
51 Ibid., at p. 151.
29
The interface between trafficking in persons and culture
Rahel Gershuni
Introduction1
Culture may impact on trafficking in persons cases in a variety of ways. This is not surprising, as often victims or perpetrators, or both, come from different cultures than that of the majority population. The reasons for this lie in the centrality of vulnerability to the trafficking process.2 Often victims come from foreign populations or ethnic minorities which tend to be particularly vulnerable to trafficking.3 Sometimes perpetrators, too, come from foreign or minority cultures which are not fully integrated into the larger society.4 In such cases, sometimes the minority culture even endorses thei
r actions as part of its cultural traditions. This dissonance between cultures may also transpire when the majority society has, over time, changed its system of values, though traditional practices continue to be followed in various enclaves.
Preliminary issues
What is “culture”? Definitions of “culture” are varied;5 this chapter does not purport to decide among them. For our purposes, a working definition might be that
Culture … is a publicly shared, specific and identified framework in which the meaning of symbols is common … Culture will be found where there is a definable group with common history that shares fundamental values, norms, and practices.6
The following terms will be used in the context of their meaning in the Palermo Protocol and the interpretative literature which has developed around it: “means” and “purpose of exploitation”.7
This chapter should be seen as an initial foray into the fascinating world of culture and trafficking. It will focus on the crucial issue: the impact of culture on court cases – substantively and evidentially.8
It is important to understand why culture is so central to an understanding of vulnerability. Here, the insights of the philosopher Jean Amery are particularly powerful, both because of their graphic imagery and since they relate to a meeting between two western European cultures – those of Vienna and Antwerp in the period immediately preceding World War II. A disparity between cultures, even if they are both European, can leave a person with a feeling of acute confusion:
Reduced to the positive psychological basic content of the idea, home is security. If I think back on the first days of exile in Antwerp, I still have the memory of a staggering on shaky ground. The mere fact that one could not decipher people’s faces was frightening … Was the smile of the police official who checked our papers good-natured, indifferent or mocking? Was his deep voice resentful or full of goodwill? I didn’t know … I staggered through a world whose signs remained as inscrutable to me as Etruscan script. Unlike the tourist, however, for whom such things may be a piquant form of alienation, I was dependent on this world full of riddles.9
The impact of culture on substantive law
Culture can impact on substantive law in a number of ways. It can highlight the “means” or control methods of traffickers,10 who may take advantage of the cultural backgrounds of their victims in order to recruit them or prevent them escaping exploitative situations. This is often done by means of threats or false representations which would not influence members of the majority culture and are thus sometimes not well understood by law enforcement or courts. Alternatively, a cultural tradition in which the trafficker himself genuinely believes may lead to the trafficking of a victim from the same culture.
Another substantive issue which may arise is to what extent courts should ascribe responsibility or mete out punishments to traffickers from cultures that endorse their actions. Examples of this issue can be found in cases of child begging, child labour or forced or early marriage, which may be acceptable in the culture of the minority, but are considered a purpose of exploitation in the law of the particular jurisdiction.
This section, and the next, consider cases of THB and allied crimes like slavery, forced labour, peonage and involuntary servitude. This is not intended to blur the distinctions among such crimes, but rather to widen the net of learning by drawing on case law revolving around crimes which threaten similar values of autonomy and human dignity, include similar patterns of control by perpetrators and raise similar evidential problems.
The impact of culture on the control methods of traffickers
In a number of prosecutions, traffickers have used “means” or control methods targeted to exploit members of certain cultures. Sometimes perpetrators and victims come from the same cultures, which may facilitate exploitation by means of cultural beliefs and practices.11
The most graphic example of the use of a cultural belief to exploit victims is that of ‘juju’ ceremonies.12 ‘Juju’ is defined as “objects, such as amulets, and spells used in religious practice, as part of witchcraft in West Africa”.13 In a number of cases involving West African victims, ‘juju’ ceremonies were used in order to ensure that young women trafficked for prostitution would pay their ‘debts’ to their traffickers and not escape from their exploitative situations. Examples of such cases are found in Nigeria, Germany, the UK, the USA and the Netherlands.
While various jurisdictions address these cases in differing ways, in general, courts understand that traffickers use ‘juju’ to exercise control over their victims. Thus in US v. Afolabi,14 evidence of ‘juju’ ceremonies performed before the arrival of the victims in the USA was deemed admissible to prove the defendant’s plan to frighten Togolese girls into staying with her in an exploitative situation in her hair braiding salons. The court added that the jury could have reasonably concluded that the defendant’s threats made it more difficult for the girls to leave the forced labour situation. The defendant was convicted of trafficking for forced labour and other charges.
Additional cases in which perpetrators have used this cultural belief as a method of control include Attorney General of the Federation v. Omoruyi,15 where the testimony of a ‘juju’ priest contributed to a conviction for THB in Nigeria; Attorney General of the Federation v. Okoya,16 where the defendant’s use of ‘juju’ to intimidate the victims contributed to a conviction for organising foreign travel for the purpose of prostitution in Nigeria; R v. Anthony Harrison,17 where minor Nigerian girls trafficked to the UK were subjected to a ‘juju’ ceremony in order to frighten them, which contributed to the conviction of the defendant for conspiracy to traffic persons for sexual exploitation and other charges; R. v. Osezua,18 where the use of ‘juju’ against three young Nigerian girls brought into the UK in order to traffic them to Italy for purposes of sexual exploitation contributed to the defendants’ conviction for trafficking in persons and conspiracy to traffic.
In one case before the High District Court of Mannheim in Germany,19 the understanding of the court regarding the effects of the use of ‘juju’ contributed to a conviction for serious THB charges. In two additional cases in Berlin, which involved threats used by ‘juju’ priests to intimidate the victims, the defendants were convicted of serious human trafficking charges.20
An interesting case from the Netherlands shows how fear of ‘juju’ threats was tackled by law enforcement forces in a creative way, by use of the same cultural beliefs which served to intimidate the victims in the first place. In ECLI:NL:GHARN:2012:BV8582,21 Nigerian victims were reluctant to cooperate with police because they feared the ‘juju’ threats and did not trust the police. In order to counter this, the police had the victims talk to a former victim of human trafficking and a ‘juju priest’ who helped the victims to rid themselves of the curse. Only after this did the police question the victim – sometimes in the presence of the former victim.
Another control method used by traffickers is shaming or threats of stigma. While this method can be used irrespective of culture, its power is enhanced in cases where victims come from cultures in which shame is a dominant form of social control.
Thus, in some cases, either the trafficker explicitly threatens the victim that he will reveal shameful facts should she or he try to escape, or profits from fears of the victim that exposure of shameful acts will follow his or her attempts to flee his or her situation.
One case in which the fear of such shame contributed to the victim remaining in her exploitative situation was R v. Kovacs.22 In this case, a Filipino woman was brought to Australia and both sexually assaulted on numerous occasions by the male defendant and forced to work seven days a week, for many hours, at a takeaway shop and in domestic work, for no regular wages (though some money was sent to her family in the Philippines). The victim remained in her situation, though she was not locked in her room, was not prevented from leaving the store or house and had access to a telephone and to mail. The court held, however, that this ‘freedom’ was “
largely illusory or non-existent”, as subtle means of control were being employed by the perpetrator, and in view of the explanation of the victim that in Filipino society what she was undergoing would shame her and her mother. The defendants were convicted of slavery offences. While the case does not explicitly state that the defendant threatened the victim with shaming, it does talk of subtle means of control and shows how powerful such a threat could be, given the cultural background of the victim.
In LB-2012–63028,23 from Norway, a threat of shaming appears explicitly in the facts of the case. Here the defendants interviewed some 50 Filipina women for an au-pair job in Norway, and exchanged a series of emails and chats with two women while the women were in the Philippines. While the initial emails and chats were innocent, subsequently it was made increasingly clear by the male defendant that sexual services would be required. Nevertheless, the victims agreed to come to Norway. The first victim arrived six months earlier than the second and was pressured to have sexual relations with the defendant. The victim testified that although she knew this would happen, she hoped it would not. She was reluctant at first, but the male defendant reminded her that she had agreed. The defendants did not employ violence or lock and key imprisonment. At most, there was a subtle threat that people in the Philippines would find out if the victim did not consent. The defendants were convicted of trafficking in persons.
Sometimes a perpetrator uses the cultural values of the victims in order to limit their freedom. Thus, in US v. Farrell,24 Filipino workers were exploited severely in the hotel of the defendants, working seven days a week at various jobs, receiving little money and forced to repay steadily increasing debts to the perpetrators. Their freedom of movement was severely curtailed and their passports taken. The victims surrendered their passports to the defendants when asked to do so, although they were reluctant. The court stated that this behaviour derived from a belief which characterises Filipino culture whereby respect should be given to employers. The defendants were convicted of peonage.