Sometimes culturally specific signs like tattoos are used by perpetrators to denote their “ownership” of the victim, thus making the victim feel like an object, and keeping others away from her. In U.S. v. Cook,25 the defendant tattooed tribal tattoos on the victim’s back with the letter “S” to mark her as a slave and, in addition, tattooed the Chinese symbol for slave on her ankle. The defendant was convicted of sex trafficking.
The practice of tattooing or branding victims of trafficking for sexual exploitation is common in many countries, and is not limited to foreign cultural symbols. This can, perhaps, be looked upon as part of the ‘organisational culture’26 of pimping or sexual exploitation, though this may be a more controversial interpretation of “culture” than is generally used in this chapter. See for example R v. Urizar,27 where the defendant wanted the victim to tattoo “his name on her body because he said that he wanted the other guys in bars to know that she belonged to him”. He was convicted of human trafficking. There have been similar cases in the Netherlands28 and the USA.29
Sometimes traffickers use false claims about culture in order to control their victims. Such purported cultural practices were a feature of R v. Jumale and Zakaria.30 One defendant told the child victim that it was part of his culture for a girlfriend to have sexual relations with her boyfriend’s friends and family. The victim’s belief in this seemingly irrational lie did not prevent a conviction of trafficking a child for sexual exploitation and related offences.
Traffickers’ use of culture goes beyond exploiting the content of the victim’s culture to profiting from his cultural isolation. One of the tools of traffickers to isolate their victims is by means of “importing” victims into countries of destination with different cultural values and practices than their own. This is stated explicitly in the Australian case R v. Dobie,31 where Thai victims were brought to Australia and sexually exploited. The court noted that “[w]hile you did not keep the women locked up, you did not need to. They were isolated by culture, by language and poverty. You manipulated their isolation and frightened them with threats”. The defendant was found guilty of trafficking in persons and other related charges.32
Interestingly, the analysis of cases in this section seems to point to the tendency of courts worldwide to focus on victims’ beliefs in culturally specific practices as a control method, rather than an irrational belief which impugns victims’ credibility.33
Culturally based defences for perpetrators
Another substantive issue which is culture dependent relates to the perpetrators’ systems of values and beliefs. Should courts and law enforcement consider the cultural background of traffickers in deciding if a given act is exploitative? This question can arise in regard to perpetrators from a minority culture or from the culture of the majority, where traditionally that culture includes customs friendly to trafficking. In these last cases, the dissonance between cultures is a function of changes in the majority culture over time.
Some examples which highlight this question are the following: in jurisdictions which include forced marriage as a purpose of exploitation,34 if the perpetrator belongs to an indigenous culture which accepts this practice, should courts consider his cultural background and absolve him from responsibility wholly or partially, or mitigate his sentence? Other examples relate to child begging by minority populations whose culture endorses this. In jurisdictions which include begging in the purposes of exploitation,35 should such parents who send their children to beg be convicted of trafficking? Another example is early marriage. Should parents with a cultural tradition of early marriage be convicted of trafficking if they marry off their 12-year-old daughter? If so, should their sentences be mitigated?
In the context of trafficking, there has been very little published research on this question. However, the UNODC Issue Paper on the Concept of ‘Exploitation’ in the Trafficking in Persons Protocol,36 which surveyed twelve countries’ legislation, case law and practice on the concept of ‘exploitation’, found that acts like forced or servile marriage, temporary marriage, child begging and child marriage may be viewed differently by courts, depending on the ethnic background of the perpetrators.37 The Issue Paper considers whether this approach does not result in the risk of reverse discrimination and differing application of criminal justice standards.38
An important South African trafficking case exploring this issue is Jezile v. State.39 Here, a man genuinely believed he was acting according to traditions of customary law marriage when he forced a minor girl to marry him. While the court found him guilty of human trafficking for sexual purposes, it mitigated the sentence because of his belief that he was acting according to custom, even though experts had testified that the custom was implemented in an aberrant manner. The court stressed that traditional customs, in themselves, could not provide a basis for mitigation, but rather only the accused’s genuine belief in them.
The question of criminal responsibility, in cases where perpetrators belong to a culture which endorses the criminalised practice, is more general than its application to the crime of THB. It can arise in regard to homicide (in cases of honour killings), grievous injury (in cases of female genital cutting), the use of drugs (in regard to certain tribal or religious uses of drugs) or assault attended with bodily injury (in regard to certain folk healing).40
Should such cultural factors come into play? Should they be admitted in evidence? If so, should they serve as a defence or partial defence to the crime; or as a mitigating factor in sentencing? The discussion of these issues must be conducted in a wider arena than that of the crime of trafficking alone. Nor can we, in consequence, expect to provide an exhaustive answer to these fundamental questions. However, the wider discussion can inform us when addressing these issues in cases of THB and allied crimes. Hence, the importance in understanding the broader issues, as will be detailed below.
There are differing views regarding these questions. Those who question whether cultural factors should be admissible claim that this may have pernicious effects on criminal justice standards, the legitimacy of the criminal law in the eyes of the wider public and the certainty and general application which are among the central aims of the criminal law, thus leading to discriminatory “multi-tiered justice”. They stress that the criminal law, by its nature, reflects the deepest values of the majority culture and question whether it is in tune with its aims to justify the violation of these values on the basis of culture. They also question in what way cultural factors differ from others which might reduce culpability, like poverty or abusive family situations. They wonder if allowing the admissibility of such factors would not place too heavy a burden on judicial administration. Finally, they question if giving weight to such factors would not, in the end, result in a lesser level of protection to particularly vulnerable members of minority ethnic and religious populations like women and children.41
On the other hand, those who support the admissibility of cultural evidence maintain that this would ensure individual fairness in ascribing responsibility or sentencing, and actually enhance the legitimacy of the system. They point out that some sort of profound and person-alised personal blameworthiness is necessary to justify punishment. They stress that the cultural defence is only one factor among others and is not intended to override them, but only to be taken into account.42
In order to strike a balance between these opposing considerations, most of the supporters of a “cultural defense” do not espouse an independent defence, but rather advocate fitting these factors into existing excuses or justifications such as “mistake of fact”, “mistake of law”, “self-defense”, “necessity”, or delving into the elements of the crime to determine if the cultural background of the perpetrator negates one of these elements.43 Some suggest additional considerations to strike an optimal balance and, for example, that the severity and prevalence of crimes should be considered in deciding whether to admit cultural factors into the equation.44 Alternatively, it is maintained, cultural fact
ors should be considered during the sentencing stage of the trial or even in proceedings outside the trial proper, like pardon and amnesty.45
The discussion is made even more complex when we recognise that cultures are not static, but rather dynamic and that, therefore, minority and majority cultures are constantly interacting and influencing one another.46
An additional question raised by this discussion is whether legislation is not a more fitting arena to discuss and decide such questions, rather than a criminal trial. Differences of opinion plague this issue as well.47
How does this discussion impact on cases of THB? It seems that a balance must be struck between allowing the criminal law to do what it is intended to do – to impose general standards anchored in the majority culture – without sacrificing the principle of individual fairness. The balance is never easy to attain. Sometimes, legislation is in order; sometimes the balance may be struck by using existing criminal excuses and justifications, and by evaluating the seriousness of the crime and its prevalence as counterweights to cultural factors. However, inevitably there will be cases which fall between the cracks, not fitting clearly into any existing criminal excuse or justification, but still requiring special consideration in the interests of fairness. In those cases, perhaps a mitigated sentence may provide an answer, as transpired in the Jezile case, or even a proceeding outside the trial proper, like a pardon, depending on the circumstances of the case.
It is possible that the diversity which characterises modern societies will result in more cases which address this issue.
The evidential impact of culture on court cases
Cultural factors can impact, not only on substantive legal questions, but also on the evaluation of evidence. This section will address two kinds of evidential impact. One relates to questions of credibility when victims hold culturally based beliefs which are not widely accepted or known by the majority culture. The other kind of impact relates to expert anthropological or ethno-graphic testimony. The question arises: when is there value in adducing such expert testimony? There does not seem to be a unified answer to this question in the cases, and perhaps under the surface of such decisions may lurk different approaches to the value of ‘soft science’ evidence in THB cases.
Impact on victim credibility
Sometimes victims believe traffickers’ assertions, even though a seemingly ‘reasonable person’ would tend to reject or doubt them. Such beliefs can be culturally based, and though they may be seen as eminently reasonable by members of the victim’s culture, the majority culture may view them as arrant nonsense. This cultural disparity may affect the court’s evaluation of the victim’s credibility.
Since trafficking cases rely heavily on victim testimony, this can, conceivably, lead to an exoneration of the defendant, though courts worldwide tend to hesitate to automatically impugn a victim’s credibility on this basis alone, but rather look to the whole picture to properly assess the significance of the victim’s beliefs.
As noted above, in cases revolving around ‘juju’-based threats, courts have viewed the perpetrators’ use of these beliefs as part of their methods of control. Thus, evidence about the victims’ belief in these ceremonies actually strengthened the case for the prosecution.
This was the case not only in a country like Nigeria, where ‘juju’ is well known and understood, as seen in Attorney General of the Federation v. Omoruyi48 and Attorney General of the Federation v. Okoya,49 but also in cases from the USA (US v. Afolabi),50 from the UK (R v. Anthony Harrison)51 and from the Netherlands (ECLI:NL:GHARN:2012:BV8582,52 ECLI:NL:HR:2014:47753 and ECLI:NL:RBGR O:2000:AA8975).54 In none of these cases did the victims’ belief in ‘juju’ render them non-credible in the eyes of the courts.
Interestingly, even in a case revolving around deception regarding a cultural belief, R v. Jumale and Zakaria,55 previously mentioned, the victim was not seen as non-credible though she believed a defendant’s seemingly irrational statement that it was part of his culture for a girlfriend to have sex with her boyfriend’s friends and family. The victim’s belief in this representation did not prevent a conviction of trafficking a child for sexual exploitation and related offences.
At present, there does not appear to be a clear case where the court’s lack of understanding of a cultural belief led to exoneration due to loss of victim credibility. However, there is a case which may be instructive, though it does not clearly involve a belief based on culture: State of Israel v. AGGR.56 Here, the defendant gathered around himself a group of women and children and controlled every aspect of their lives by means of his charismatic personality, and by representing himself as a spiritually enlightened being. He threatened that if they left him, he would cause them harm by dint of his supernatural powers. The alleged victims’ belief in the defendant’s threat contributed to his exoneration from the charge of ‘holding a person under conditions of slavery’. The court could not understand how Israeli citizens from average, normative backgrounds could believe the defendant’s representations about his powers. Whether or not this group can be seen as a culture or subculture, this case shows how a court’s lack of understanding of a seemingly irrational belief can lead it to impugn victims’ credibility and consequently to exonerate the defendant.
The use of expert testimony
The question arises: when should expert evidence be adduced to explain a cultural belief or practice and when not? The following cases shed some light on this question, though the answer is not entirely clear.
This question arises in cases which include the use of ‘juju’. In Nigeria, since the practice is widespread and forms part of the cultural fabric,57 no special evidence is deemed necessary to explain this method of control, as can be seen in Attorney General of the Federation v. Omoruyi,58 where the testimony of a ‘juju’ priest, together with the confessional statements of the defendant and the testimony of a police officer, sufficed to contribute to a conviction on human trafficking.
On the other hand, in other countries, where a belief in ‘juju’ is not widespread, special evidence may be required to explain this method of control. Thus, in a British case, R v. Anthony Harrison,59 the prosecution enlisted the expertise of an anthropologist with a specific interest in Nigeria and witchcraft practices. Evidence given by this witness assisted the jury to understand the complex relationships between the trafficker and the victims as well as the cultural context. Harrison was convicted of conspiracy to traffic two victims for sexual exploitation and other charges.
In another British case, R v. Osolase,60 expert testimony was again used to explain the impact of ‘juju’ rituals on instilling fear in victims; the defendants were convicted of trafficking in persons and conspiracy to traffic.
Expert ethnologist testimony was also used in a German case in the High District Court of Mannheim61 which involved the use of ‘juju’, in order to explain the complexity of the victims’ belief system and the ramifications of ‘juju’ in Nigerian culture. This testimony contributed to the conviction on serious human trafficking charges. On the other hand, in two cases in Berlin, which involved threats used by ‘juju’ priests to intimidate the victims, the court relied only on victim testimony, which it viewed as credible, to convict on serious human trafficking charges, and no expert testimony was deemed necessary.62
Extensive use of such expert testimony appears in Jezile v. State,63 where the court sought to understand the ambit of customary law marriage and its relation to South African legislation and constitutional tenets, in order to decide if such a custom could serve as a defence to a charge of trafficking.
An additional kind of case where expert testimony was adduced concerned the cultural meaning of certain tattoos. Thus in U.S. v. Cook,64 the defendant tattooed tribal tattoos on the victim’s back with the letter “S” to mark her as a slave and the Chinese symbol for slave on her ankle. Expert testimony established the significance of the Chinese symbols. The defendant was convicted of sex trafficking.
Another
case in which victim testimony sufficed to substantiate a cultural belief was R v. Kovacs.65 There, the victim explained why she had not fled by testifying that revealing sexual abuse would shame herself and her mother as members of Filipino society. Similarly, in US v. Farrell,66 the appellate court seemingly accepted the victims’ explanation that they had reluctantly surrendered their passports due to the Filipino value of honouring employers.
What emerges from the foregoing analysis is that, in general, expert testimony is not necessary if the given cultural belief is shared or at least known by most members of a society, as is the case with ‘juju’ in Nigeria. However, it is not entirely clear when expert testimony is used in countries where the given cultural belief or practice is not prevalent. Moreover, when the given cultural practice is a traditional one, no longer shared by all members of the society, expert testimony may still be necessary.
It is possible that under the surface lie different approaches to the use of anthropological evidence in cases of trafficking and allied crimes.67 On the one hand, those who raise doubts about this kind of expert testimony maintain that not all victims from one culture behave in the same way, making anthropological testimony of limited value. In addition, they point out that such testimony may cloud the issue and lead to the defence producing opposing expert opinion on the same subject.
On the other hand, some maintain that such expert evidence is valuable and indeed essential in certain cases. Thus anthropological evidence can reveal the meaning and significance of various cultural beliefs like ‘juju’; the significance of a certain sign like a tattoo; or the role of shame or stigma in the victim’s behaviour.
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