In evaluating the existing law on trafficking for purposes of sexual exploitation, one finds both positive and negative features within the existing system. On the positive side, the law defines the crime in ways that facilitate prosecution by limiting the required elements of the crime or removing problematic defenses.
The law removes the moral
character of the victim from consideration of the basic crime Thus, the
fact that the person is or is not an "honest" and virgin women, under
18, or a prostitute may only be considered when punishment is
applied. Similarly, the contentious question of consent by the woman
or child is irrelevant. This does not mean that enforcement officials
do not evaluate consent - merely that the law does not consider consent
relevant.
Finally, the law avoids imposing an obligation to prove the
trafficking act is part of a larger organization or conspiracy. Proving
the crime of trafficking requires only the identification of one victim
and one perpetrator. It does not require proof of a criminal
organization nor even that it be practiced for profit.
Finally, recent changes have filled gapping holes in prior efforts to proscribe
trafficking by, for example expanding the scope of the law to proscribe
internal trafficking and to, at least theoretically, include the possibility
of proscribing trafficking in males as well as female.
The law, however, is seriously flawed in a number of ways.
To a certain extent, these problems arise out of the piece meal nature of
the legislation, where efforts to address trafficking are incorporated in
differing laws with differing foci (i.e. laws on prostitution versus the
special laws against the sexual exploitation of children.) These include
the following.
First, the trafficking of women must be linked to prostitution,
not simply to sexual exploitation and the perpetrator must be aware that
the trafficking was for purposes of prostitution. Thus trafficking to
facilitate the production of pornography, for the sale of women through
marriage broker networks or other types of sexual exploitation may not
be prosecutable as trafficking. (These requirements are not applicable
to children who are protected against all forms of sexual exploitation.)
Second, trafficking is exclusively a matter of public criminal
process. On the positive side, this means that it does not require the
participation of the victim or the victim’s representative. Conversely, it
also means that the action is dependent upon state action to enforce it
and subject to the discretion of enforcement officials.
Enforcement
Legislation, of course, merely lays the groundwork for efforts
to eradicate trafficking. The second requirement is that the government
must effectively enforce those statutes. According to this and other
research efforts, that enforcement has been limited and inadequate. As
noted by one researcher, "Although existing since 1941, this criminal
offence (art. 231) has rarely been applied".
Measuring enforcement efforts is extremely difficult.
Governmental representatives have not always cooperated in supplying
information. Traffickers may have been charged with related but not
trafficking offences. Finally, in the case of children and adolescents,
they are prosecuted under a totally different provision of the penal code
and therefore not included in obtainable trafficking statistics.
Nonetheless, a number of indicators suggest that enforcement remains
extremely limited and rare.