UN (Palermo) Protocol, Article 3
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
Council of Europe Convention on Action against Trafficking in Human Beings, Article 10 - Identification of the victims
1 - Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
2 - Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
A successful and identification process is key in making sure that women victims of trafficking get the assistance and support they are entitled to, and to make sure that women victims are not charged with administrative or criminal offences, such as ‘illegal residence’, ‘irregular earnings’, or other criminal activities.
Institutionalised cooperation between key actors (involving social services, NGOs, and law enforcement agencies, etc) is needed in order to achieve a reliable identification process. Cooperation is an ongoing process, and regular meetings are necessary.
Outreach work in prostitution environments is important for identification of women VOT. The close links between the sex industry, porn industry and brothels must also be recognised when working towards identifying women VOT.
Women VOT will oftentimes have difficulties to disclose information or talk about their experiences of abuse and violations (and thus be correctly identified as victims of trafficking). Consequently, the process of identification can take time, as the story of a woman changes over time as she gets support, feels safer, and feels more trust.
It is essential that women’s organisations, with experience of working with women victims of sexual abuse and violence, participate in the identification process.
It is important to use a ‘low threshold’ in the process of identification, and to put in place a process that in practice ‘Reverses the burden of proof’: women in prostitution that are found irregularly residing in the host country should first and by assumption be treated as possible victims of trafficking and therefore exempted from criminal and administrative charges until proven otherwise. It is important to stress that the consent of a victim is irrelevant, and there is a need to change attitudes on this.
It is important to recognise that even if a woman came by her own initiative she can along the way become a victim of trafficking. What starts as a migration process can become trafficking.
The identification process is also about being able to offer alternatives to women, including the possibility to stay in a host country.
It is important that frontline staff have the necessary skills and continuously up-skilled (judges, municipality workers, medical staff, etc). The training must be ongoing. A manual laying down the basics for identification of a woman victim of trafficking for sexual exploitation is a good tool.
Any distinction between the ‘unworthy’ woman in prostitution and the worthy ‘victim’ woman in prostitution is unacceptable. All foreign women in prostitution are victims of trafficking.
It is a moral obligation of host countries to take all necessary action in order to identify victims of trafficking and to assist women VOT, since it is in the host country that the exploitation has taken place.