There are a number of problems with this definition. First, it defines trafficking exclusively as an international problem, ignoring the fact, as supported by this study, that trafficking can and does take place within a single country. The essence of trafficking is the movement of an individual away from their community of origin into a community in which they lack social support, may be isolated by language, culture and/or ethnicity, and where they make lack legal standing.
While international trafficking creates these conditions, the movement of
vulnerable individuals from an indigenous community or an isolated
rural community into a urban environment can create the same
conditions. Thus for the purposes of this study, we have applied the
above referenced excerpted definition without reference to transport
across international state lines.
Second, the Palermo Protocol is attached to the International
Treaty on Organized Crime. It therefore focuses upon the involvement
of criminal organizations. This study attempts to research the entire
phenomena of trafficking including participation by individuals not
affiliated with a formal international organized crime organization. The
research seeks to situate trafficking within the general social and
cultural context - not just limited to the context of organized crime.
Third, the Protocol covers all forms of exploitation, including
forced labor and involuntary servitude. While acknowledging the
legitimate concern for these areas and the resemblances among these
differing types of trafficking, for strategic purposes it was deemed
necessary to restrict the focus of this research to trafficking for
purposes of sexual exploitation.
Finally, as noted by Ann Jordan, the Protocol does not require
that governments guarantee protection and assistance to the victim of
trafficking. While this does not alter the definition of trafficking as a
criminal offense, it does fail to recognize that the protection against
trafficking should be treated as a human right that carries with it related
rights of care and rehabilitative support. Thus, for purposes of this
study, one feature of the research will examine how domestic law can
correct this failure within the international community's efforts.
Another aspect of the law concerns the term "consent". The
issue of consent has proved to be a significant source of contention and
controversy.
"This issue includes the debate on whether women can
consent to prostitution. Some are of the opinion that they
cannot... .Their arguments are based on the irrefutable
assumption that no agreement can be made to the practice
of prostitution and to the forms of sexual labor that profit
from that activity. Others support this view, because they
consider consent to prostitution as a result of economic
coercion or abuse of the economic vulnerability of the
person. Those that are on the opposite side of the debate
support the idea that women may freely consent to
becoming sexual workers and this choice must be
respected.
There is consensus regarding a minor's inability
to give valid consent to this kind of exploitation, but
discussion is still ongoing as to an actual age for giving
such consent in light of the world's cultural diversity.
After closely analyzing and reflecting upon this debate,
researchers for this study rejected the idea of focusing upon consent of
the woman in the abstract. Rather, they elected to focus upon the
behavior of the exploiter through adoption of the term "induced
consent". Within many areas of law, it is a crime to abuse someone's
inexperience, simplicity or inferiority when one knows that the
proposed activity is or will be injurious to that person.
In this sense, "induced consent" shifts the question away from the victim and
towards the concept of control and abuse by a dominant group, in this
case, those who promote commercial sexual exploitation, in relation to
a vulnerable person or a group of people.