Moral and Legal Obligations of the State to Victims of Sex Trafficking: Vulnerability and Beyond

12:07 PM 13 July 2010 TKP, state Liability, Book version

Moral and Legal Obligations of the State to

Victims of Sex Trafficking: Vulnerability and

Beyond

Tsachi Keren-Paz∗

INTRODUCTION

In this chapter I examine the possible grounds on which the

state could be under an obligation to assist victims of

trafficking (‘victims’), and the scope of such obligation. In

particular, I will evaluate the relative importance of the

concept of vulnerability in interrogating such a ground, in

comparison to other grounds. In the context of sex-trafficking,

I focus on victims (who are mainly women) and who are those

forced into prostitution (whether transborder or domestic) by

illegal means. The analysis which follows is therefore limited

to the claims and conditions of victims, and it does not

necessarily extend to other prostitutes (whether migrating or

domestic). I avoid exploring here questions such as the extent

of the economic coercion operating on other prostitutes, the

number of victims among prostitutes (Keren-Paz & Levenkron

2011) and the ways to regulate non-forced prostitution

(Dworkin 1993; Nussbaum 1999; Doezema 2005) – all of

which important questions for biopolitical framework of

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analysis.1 Transnsnational trafficking involves countries of

origin (from which victims are recruited), transition and

destination (in which victims are exploited) (Levenkron 2008).

This chapter focuses on the obligations of destination

countries to assist victims. The assistance may include

restitution, compensation, other financial payments, or the

provision of benefits in kind (‘compensation’).

Legal obligations can be enforced on the state by courts,

either by a private law cause of action (mainly in torts and

restitution) or by other means such as administrative petitions

or human rights remedies. Moral obligations, by contrast,

create an expectation that the state would give victims some

kind of remedy and help. However, meeting these

expectations depends on the political will of the legislative and

executive branches.2 The chapter will focus on moral

obligations; these obligations reflect the different grounds to

expect the state to compensate victims. .While establishing

legal obligations might be at times extremely difficult, it is not

my purpose here to argue that this cannot be done. On the

contrary, the bigger project of which this chapter is a part

(Keren-Paz 2012) aims to establish private law causes of

action against all those involved in harming or profiting at the

expense of victims. Possibly, and depending on the context,

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facts and the jurisdiction, claims against the state can be

maintained.3

In the context of trafficking, there are four main grounds on

which to recognise the state’s obligation to assist victims: (1)

fault by the state in the way it dealt with victims; (2) fairness

— the fact that the state's acts and omissions (even if not

faulty) harmed victims and benefitted the state and its

residents; (3) the state's failure (even if not faulty) to protect

the victim from a serious violation of her rights by a third party

within its jurisdiction - such obligation could be linked with a

social contract theory (Heyman 1991);4 and (4) welfare state

rationale — the obligation to meet basic needs (Braybrooke

1987) and assist the vulnerable. Due to space constraints I

will not examine independently5 the latter two grounds, which

could obviously be linked with the notion of vulnerability.

Rather I will examine the more intricate relationship between

the other grounds for assistance and the concept of

vulnerability.

Grounds for assistance are generally rooted within a

distributive justice framework (Rawls 1971; Grey 1976).6

Accordingly, there are numerous distributive criteria for

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distribution, of which the four mentioned above are not

exhaustive. Consequently, victims' claims have to compete

both against other claims supported by fault, fairness,

contractarian theory and needs, but also against claims

supported by other grounds (e.g., merit and desert) (Lucas

1980). A comprehensive argument for the high priority that

should be given to claims of victims cannot be pursued here

for reasons of space. However, the following factors weigh

heavily when we prioritize compensating victims: victims'

vulnerability, the importance of their protected interest, the

degree of its violation, the benefit society derived from this

biopolitical violation, and society's failure to act appropriately

to combat trafficking.

The distributive justice framework is based on the assumption

that the relevant money which is to be distributed belongs to

the state; therefore, it has the discretion in how to spend it

(Walzer 1983:78-83; Grey 1976:887-88) since there are more

competing claims for assistance than there are sufficient

funds. However, as explained below, benefits forcefully

transferred from the victim, through the trafficker, to the state,

should be left out of such discretion and should be paid back

to victims (based on corrective justice). Restitution of gains,

then, serves as an independent fifth ground for compensation.

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RESTITUTION OF GAINS

The Collective Claim

Countries of destination benefit directly and indirectly from the

trafficking phenomena (Levenkron 2008).7 Indirect profit is not

received by the state but rather is enjoyed by different

residents. These include taxi drivers, real estate brokers,

home owners, hotel owners, vendors of clothing, shoes and

food, media advertizing the sex industry, lawyers who

represent traffickers and policemen who take bribes. Direct

profit is money passed from traffickers to the treasury by way

of fines, forfeited property, revenue tax, and added value tax.

Arguably, direct profit also includes revenues from indirect

profit (such as income tax on the part of profit made by taxi

drivers who transport victims).

Victims—as a group—have the strongest claim possible to

restitution from the state of the direct profit made at their

expense. Such a claim could be constructed as restitution of

the gain itself, or (less desirably for reasons explained below)

as an obligation to compensate victims within the limits of the

state's direct profit. Ignoring, for the moment, problems of

proof, the direct benefit to the state belongs to victims, and

should be returned to them as a matter of right. Clearly, any

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profit made by the trafficker at the victim's expense belongs to

the victim based on principles of unjust enrichment (or

vindication of property): the trafficker made a profit, which is

unjust, at the plaintiff's expense. The unjust factor is based on

the duress extracted by the trafficker which prostituted the

victim (or alternatively on deriving a benefit from the victim's

resource—her body and labour—without her consent) and on

denying the victim all or part of this profit without her consent

(Keren-Paz 2009b:26-8; Keren-Paz 2009a).8

While the state, relative to the trafficker, has a good claim to

the profit (based on the interest in confiscating the profit from

crime, or in taxing profits), such claim should be subordinate

to the victim's restitutionary claim against the trafficker: since

this profit is the victim's property (rather than the trafficker's),

the state has no right to forfeit this money. Similarly, neither

fines nor tax can be satisfied from what is in effect the victim's

money.

In general, gain-based claims in restitution do not depend on

a show of fault by the defendant. The reason is that in the

absence of a valid cause for the enrichment, the defendant is

not worse off if required to make restitution than she would

have otherwise been. Indeed, this rationale is reflected in

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restitution law’s defences of a change of position and bona

fide purchase for value. The state cannot qualify as either,

when it confiscates or taxes traffickers' proceeds, since, by

definition, when the state confiscates the money, it is aware of

the victims' contrary claim to the money.9

Understanding that direct profits from trafficking is the victims'

money, adequately responds to the difficulty involved in

interfering with the state's discretion as to how to spend

money in general, and for welfare purposes in particular.

Since it is not the state's money, the state is not at liberty to

keep the money or spend it for other purposes. All the direct

profit made by the state is the result of slave-labour. No-one,

but the slaves, have a claim for this profit. No resident has a

claim to a benefit extracted from victims illegally, and no one

would be worse off if victims would be compensated within the

limits of the state's direct benefit, for harms suffered in the

process of enslavement.

Victims' vulnerability is a useful, yet unnecessary, factor in

justifying restitution. One can hardly justify on distributive

grounds a forced subsidy by one of the most vulnerable

groups in society—trafficked prostitutes—to be used for any

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other purpose. In any event, since victims have a strong right-

based claim to the profit made at their expense, the role of

distributive considerations is peripheral. The state is not

allowed to take people's money in an arbitrary manner, just

because the money could be used for good purposes. In this

sense, taking the profits which belong to victims is arbitrary at

least with respect to the amount in excess of what the state

could have taxed the victim for her profits. The victim's

restitution claim, however, should not be taxed, since such

profit is the result of forced labour. The profit is derived from

an interest and an activity which are arguably inalienable—

right to bodily integrity and sexual autonomy—this fact (rather

than the fact that the profit was derived from prostitution per-

se) renders taxation of the resulting profits inappropriate.10

An individual Claim?

Thus far, the argument established that victims—collectively

and individually—have a right for restitution of gains made by

the state at their expense. But can victims sue the state

successfully given problems of proof? If not, what other

remedies to an individual victim or victims as a group can be

derived from the right for restitution? Whenever a victim can

demonstrate the exact profit made at her expense which was

received by the state she should have a valid private law

restitutionary claim for restitution of this amount. In a similar

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vein, a victim who won a tort claim against the trafficker

should be able to satisfy her claim from the state within the

limit of the state's direct benefit at her expense.

More difficult questions arise when the victim cannot prove

that the state has profited at her expense. When the state

receives—by way of forfeiture, tax, or fine—profits of

trafficking, there is no indication whether or not all of the profit

is the result of trafficking (as opposed to prostitution which is

not forced), how many victims produced the profit and what

the share of each is. Even if all victims could have been

identified and found, they would find it hard to know and prove

how much money was made at their expense. A willing court

could come-up with rebuttable presumptions about the profit

made by the trafficker at the victim's expense (trafficker's

profit), but would find it hard to assess what part of it was

received by the state (state's profit). Moreover, if the profit

made by a trafficker from trafficking several victims exceeds

what was taken by the state, rules about apportioning the

profit between victims are needed. Restitution law developed

complicated apportionment rules in the context of the doctrine

of tracing into commingled funds but these rules, and their

applicability would not be examined here.11

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When victims cannot prove the state’s enrichment at their

expense according to established rules, a possible solution is

to distribute the amounts confiscated by the state to victims,

on (1) a pro-rata, (2 a first-come-first-served basis or (3)

based on some other criteria. This involves some kind of intra-

victim subsidy, which might be inevitable, as will be explained

below; it also requires some administrative, statutory-based

regulation in order to distribute the money to the victims.

Other—less desirable—solutions can use the money for

trafficking-related activities such as prevention, prosecution

and protection of victims. Such solutions raise further

difficulties and distributive dilemmas which could be illustrated

by Israel's Prohibition of Trafficking in Persons (Legislative

Amendments) Law 2006. This Act created a Fund to which

trafficking-based confiscated property is deposited and

authorized expenditure from the Fund for four purposes: (1)

rehabilitation, treatment, and protection of victims of an

offense; (2) compensation of victims showing a final judgment

for compensation and no reasonable possibility to realize all

or part of the judgment; (3) prevention of the commission of

an offense; and (4) carrying out the functions of law

enforcement authorities in enforcing the provisions of this law

in respect to an offense. The first purpose should be funded

by at least half of the annual funds in the Fund.

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While all the purposes are trafficking-related, a few distributive

tensions arise. One is between victims and potential victims.

Any money spent on prevention of crime comes from the

pocket of victims whose rights were violated. Another is

between victims (and potential victims) and other members of

society. Furthermore, any y money spent on law enforcement

benefits (alongside victims) other members of society and

comes from victims' pocket. It is doubtful whether such

regressive subsidy is commendable. A third distributive

tension exists between the status of different victims. For

example, victims whose money was forfeited (through the

traffickers) could subsidize all other victims (and potential

victims) who benefit from the Fund by way of satisfaction of

claims, rehabilitation, prevention and enforcement. Victims of

sex-trafficking also subsidize victims of trafficking for other

purposes since an overwhelming part of the money

confiscated comes from sex-traffickers.

It should be clear, however, that a similar tension would exist

if all victims were able to sue their traffickers for restitution

and compensation. A victim’s claims against the trafficker for

compensation and restitution are cumulative (Keren-Paz

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2009b:43-8; Keren-Paz 2010:97-99). This means that

traffickers will almost never have sufficient funds to satisfy

both claims. Prioritizing restitution over compensation, then,

would leave victims of ‘non-contributing’ traffickers ineligible

for compensation. The question to be answered, therefore,

concerns what is the appropriate priority between involuntary

creditors who transferred wealth into the debtor's hand, and

those who did not.12 The creation of the Fund, however,

increases the subsidy. Under private law rules, all the victims

of one trafficker will have to satisfy their claims from his

assets. Under the Israeli Fund, the victims of all traffickers will

have to satisfy their claims from what was collected from

several traffickers.

The problems created by the Israeli scheme appear

elsewhere. Article 23(3) of the Council of Europe Convention

on Action against Trafficking in Human Beings (Warsaw

2005), ratified on 17 December 2008 by the UK, imposes

obligation on member states to adopt such legislative and

other measures as may be necessary to enable it to

‘confiscate or otherwise deprive the instrumentalities and

proceeds of [trafficking-related] criminal offences.’ Article

15(4) imposes obligation ‘to guarantee compensation for

victims in accordance with the conditions under its internal

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law, for instance through the establishment of a fund for victim

compensation… which could be funded by the assets’

confiscated from traffickers.

The problem with such a scheme is that it uses victims’

money—to which they have a right in restitution—to

compensate them, whereas victims’ claim for restitution and

compensation against the trafficker should accumulate. To be

sure, the victim does not have as strong a right against the

state to compensation as she has to restitution of direct

benefit received by the state. However, to the extent that the

state has a moral or legal duty to compensate the victim (for

reasons explained below), the commitment to do so is hollow

if the state uses victims' money to compensate them.

FAULT

The state’s moral obligation to compensate victims might be

based on the fact that it acted, or omitted to act, in a faulty

way towards the victim. This requires explanation. Fault is a

major ground for imposing legal obligation in tort law on the

defendant to compensate the claimant; and it is linked to

notions of corrective rather than distributive justice. However,

fault and corrective justice do not overlap. Some theories of

corrective justice (and some torts) are based on strict liability;

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and not all faulty behaviour leads to liability. At common law,

liability for negligent omission is largely denied, unless a

special relationship exists between the claimant and the

defendant, and this is true also with respect to the state. But

while judges might understandably recoil from intervening with

the government’s discretion in how to spend its limited

resources – an unavoidable intervention if a duty to protect

the claimant is recognized – the fact that an omission (or an

act) is faulty provides a valid ground for the claimant to expect

compensation from the state. Fault, therefore, is yet another

distributive criterion – alongside fairness, needs and desert –

which should be taken into account while distributing public

funds. Indeed, at times the state compensates victims in

circumstances where the state's acts or omissions were faulty

but probably no liability could be established due to problems

of duty, causation or limitation.13

In the context of trafficking, the state's fault can be manifested

by inadequacy of: 1) criminal legislation; 2) law enforcement

activity to crack down trafficking; 3) public education to reduce

demand for indiscriminate/commercial sex; 4) absence of

schemes facilitating escape of victims and 5) absence of

schemes facilitating recovery of victims and their

rehabilitation. While such fault is not likely to be translated into

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tort liability due to the absence of duty of care with respect to

such broad discretionary decisions it can justify some kind of

statutory-based compensation, or at least provide some help

to victims to rehabilitate. The following discussion will identify

three acts and omissions by the state which is arguably faulty,

and hence create a ground for compensating victims.

Faulty Failure to Rescue

The state’s failure to tackle trafficking at both legislative and

executive levels can serve as a (moral) ground for

compensation. Slavery is appalling, sexual assault is

devastating, and their combination is horrific. Accordingly, law

enforcement agencies should give high priority to the

eradication of trafficking. However, it is clear that when the

state does not live up to the morally required level of

investment in fighting trafficking, there could be no tort liability

towards victims.14 Setting priorities with respect to law

enforcement activities is a policy decision which is immune

from tort liability in almost all common law jurisdictions. In

addition to lack of tort law duty of care, in such cases it is

difficult to establish breach of duty, and causation. A less

decisive conclusion is warranted when the police knew (and

perhaps should have known) about a concrete risk to an

identifiable victim, and failed to act reasonably in order to

reduce that risk. In such circumstances duty could be owed in

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some jurisdictions, and liability at times is imposed.15 But

even if tort liability is to be denied, with respect to the

examples given below, the failure to provide adequate

protection to victims does give rise to a moral duty to

compensate victims.

In Israel for example, where prostitution is legal, but pimping

is not, brothels known to the police continue to operate

unhindered for years. Sometimes the police would

accompany the Inland Revenue on raids aimed at collecting

taxes, but they would not try to stop the activity or to examine

whether forced prostitutes were held there (Levenkron 2008).

It is a repugnant law enforcement system which goes after the

financial products of sexual slavery while leaving the chickens

which lay these golden eggs in the cage.

Consider the following three examples. In 1996, the Tel-Aviv

Police Vice Department raided a major Israeli brothel named

Tropicana in order to release from captivity... two Makak

monkeys which were kept in a cage in the lobby in order to

entertain the clients while they wait (Katz 2005; Beckerman

2006). In 1999, Jacky Yazdi, the owner of Tropicana was

interviewed by ABC News and a local newspaper where he

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recounted trafficking-related offences. Inter alia he admitted

he was buying women from former USSR countries, he

revealed where he hid the women during police raids, and

mentioned that in the preceding two years, about 200 women

were arrested by the police for illegal entry into Israel.

Notwithstanding this, Tropicana's activity was not stopped,

Yazdi was not arrested, and no attempt was made to free the

trafficked women. ‘In 1996 Israel, as far as police enforcement

was involved, monkeys faired better than prostitutes.’

(Levenkron 2010).16 In yet another Israeli case, a victim is

currently suing the state alleging that the police used her

trafficker as an informant and practically gave him immunity

for the trafficking-related offences he was implicated with.17

Finally, in England, a Lithuanian victim held in a sauna

managed to escape, and helped by two female bystanders,

ran to the local police station. The police did not understand

her as she could not speak English. They escorted her back

to the sauna she had been trafficked into. Apparently no

check was made on Interpol, which had her details as a

missing person, nor was any attempt made to use an

interpreter (Stephen-Smith 2008:19).18

Hindering Recovery

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The state’s failure to facilitate recovery by victims is faulty

whenever simple, costless measures that can improve

victims' recoverability are not taken.19 For example, often

criminal codes authorize the court to order the offender to pay

compensation to victims. Arguably, a failure by the

prosecution to include the trafficker’s undertaking to

compensate victims as a term of the plea bargain, or to ask

for a compensation order at the sentencing hearing, is faulty.

It could be argued, against such a conclusion, that the failure

is not faulty since it is based on prosecutors' fear that

compensation to victims would come at the expense of the

length of imprisonment, or victims' credibility as witnesses

(OSCE/ODIHR 2008:115). However, even if the assumptions

behind such policy are sound, the prioritization of punishment

over the victim's protection is unreasonable. Regressively, it

sacrifices the victims’ entitlement —who to begin with are very

vulnerable—in order to promote the interests of other

members in society. Alternatively, even if such prioritization is

not faulty, fairness and egalitarianism demand that the state

would compensate those whose interests have been

sacrificed on the alter of the common good.

In practice, an obligation to compensate a victim under the

plea bargain is not satisfied unless the money is deposited in

court prior to approval of the plea bargain by the court. The

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failure to insist that the trafficker deposit the money in the

court’s fund before the plea bargain is approved in court is

faulty, especially since at this stage, there is no arguable

trade-off between promoting recovery and other legitimate

goals. Including such a measure is simple and costless and

the benefit to victims from its adoption is significant.

Policemen's Wrongdoing

Victims often report that policemen in uniforms are among

their clients (Stephen-Smith 2008:17; Levenkron & Dahan

2004). Elsewhere I argued that sexual contact between a

client and a victim amounts to a tort even if the client could

not have known that the specific prostitute was forced (Keren-

Paz & Levenkron 2009). It is unclear, however, whether the

state could be legally liable in tort for such behaviour, based

on the doctrine of vicarious liability.20 Be it as it may,

policemen's wrongdoing creates a valid ground to expect that

the state would compensate victims. By purchasing sex while

in uniform, the policeman not only assaults the victim, but he

also creates the impression that the police condone the

enslavement of the victim. The state, by entrusting policemen

with power, created the risk of abusing this power and hence

should compensate victims when the policeman abused his

power and purchased sex while in uniform. Similarly, the state

should compensate victims where corrupted policemen are

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bribed to inform traffickers about police raids; such behaviour

prolongs victims' enslavement.

FAIRNESS

Another ground for compensation is based on the idea that

those benefitting from a certain activity should compensate its

losers. Trafficking benefits society in several ways, so it is fair

that society—through the state—should compensate victims.

In addition, the legal infrastructure imposed by the state

(which benefits many) exacerbates victims' vulnerability. For

this reason too, the state should compensate victims. Thee

idea of fairness is that those who benefit from a given activity

should bear its costs. When an activity that benefits many

results with few paying its price, it is fair that the cost would be

shared by all those benefiting from the activity (Keating 2000).

An even stronger case for compensation exists when the

losers were not supposed to benefit from the activity which

benefitted many (Fletcher 1972). Society benefits from

trafficking in several ways.

First, all clients benefit from prostitution and trafficked women

are often a significant segment of the industry.21 Moreover,

trafficking results with increased supply of prostitutes and this

might lead to: 1) reduced price, 2) the existence of prostitutes

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with lesser ability to turn-down objectionable practices

demanded by clients, and 3) the reduction of bargaining

power by non-forced prostitutes (Keren-Paz & Levenkron

2011).

Second, prostitution is sometimes defended on the ground

that it is an outlet for male libido and that without access to

commercial sex, the incidence of sexual assaults would

increase (Davis 1937:755). The factual accuracy of this

assumption is disputed (Monto 2000), and in any event, from

a normative perspective it cannot justify the sexual assault of

victims in order to prevent the sexual assault of other women

(Keren-Paz & Levenkron 2011). However, if the factual

assumption is correct, victims (and prostitutes) benefit society

by reducing the incidence of sexual assault of other women.

Third, as explained above, the financial profit made at the

victim's expense, benefits the state's economy.

Not only does society benefit from the violation of victims'

rights but it also harms victims. The actors who violate directly

and indirectly the rights of victims—traffickers, clients,

publishers of sex-ads—are all part and parcel of society. But

society's responsibility towards victims is not based merely on

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the fact that the perpetrators are its members. It is also based

on the normalization of purchasing commercial sex, the

construction of male sexuality, the oblivion towards the

question whether women are forced into prostitution, the

failure to curb demand for commercial sex (or at least for

indiscriminate demand for commercial sex), and the tolerance

towards pimping which might hide in it instances of trafficking.

The violation of victims' rights is a result of entrenched social

structures and social construction of sexuality,

commodification and otherness.

Moreover, in the context of trafficking, the state contributes

directly by its regulatory framework to the vulnerability of

victims: the threat of deportation due to victims' status as

illegal immigrants renders victims more vulnerable to

pressures and threats by traffickers, and reduces victims'

ability and willingness to flee captivity or complain to the

police.22 This structural vulnerability is enhanced by factors

which are external to what the state does. Victims face

language, informational and cultural barriers which make

them less likely to seek help from the state. They often come

from countries with corrupted law enforcement forces and

have very little confidence in the police (Bales 1999:38). This

basic distrust is fed by traffickers who intimidate victims by

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telling them that illegal entry is a serious offence which is

severely punished in the country of destination (Levenkron

2008).

Having border control for itself is a reasonable policy. Even if

the details of the policy are assumed to be reasonable still a

fairness-based claim for compensation could be made on

distributive justice grounds: the state's policy benefits many

(society) but it harms victims by enhancing their vulnerability.

As the border control example illustrates three fairness-

related grounds for assistance could be gleaned. First, is the

idea of fairness. Second, is the combination of fairness with

egalitarianism: where the people paying the price of a

beneficial policy are otherwise disadvantaged, then, they

should be compensated. Third, is an anti-extortion rationale:

the state is under an obligation not to create or exacerbate

conditions that would render (vulnerable) people susceptible

to exploitation by third parties. Accordingly, the problem with

current immigration control policies is that their inflexibility

gives traffickers leverage over victims. This is the result the

state is morally obligated to rectify. Border control policy has

two effects. Prior to the victim's escape it serves as another

measure of control by traffickers over victims. This yields a

ground for compensation. After the victim's escape the victim

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might be under a risk of deportation. This risk should be

removed since (1) no victim should be faced with the dilemma

of submitting to slavery or having to be deported; (2)

deportation of victims puts them at risk of being re-trafficked

(Levenkron 2008; Stephen-Smith 2008:19) and (3)

deportation affects negatively victims' prospects to sue

successfully traffickers and clients (Levenkron 2008).

The major challenge to fairness as ground for compensation

is based on the difficulty to attribute the acts of individuals, or

even of society to the state. In what sense is the state—as

distinct from clients, taxi drivers and women spared from

sexual abuse—either involved in the injurious activity or

benefits from it? Certainly, no automatic translation of acts

and omissions by individuals could be attributed to the state.

Nevertheless, three answers could be offered to the

attribution challenge, which could explain why the state is not

necessarily under an obligation to compensate victims in full

(as would have been the case had the risk-creating activity

been made by the state itself).

The first answer concerns instances when the state

contributes to the exploitation of victims, for example, through

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its border control policy. The second answer responds to

instances when trafficking is the net result of social structures

,and as such, it transcends the involvement of specific

individuals in trafficking. In addition, such a scenario insists

that it is the state's role to respond to societal problems. Such

a “thick” concept of the state is not accepted universally, but

is, I argue, normatively appealing. The state should advance

the conditions for human flourishing, and this includes a moral

obligation to respond to societal problems. Accordingly, since

society in destination countries is both responsible for

harming victims and benefits from this phenomenon the state

should be called to answer for society. The third answer

highlights the character of trafficking as a forced transfer of

benefits from the victim to society. The state by failing to

prevent this transfer benefits from the violation of victims'

rights (this again presupposes the state's accountability for

society). Accordingly, the state's omission harms the victim

and benefits the state, and therefore fairness demands that

the state compensate the victim. In general, fairness

arguments to hold the state liable towards individuals are

more convincing when the harm is the result of the state’s

active creation of risk. Imposing liability for omissions is

trickier, since it is harder to see what the benefit to the public

is from the omission. But in the trafficking context, violating

victims' rights does confer some benefits on society, as

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explained above. In the paradigmatic nonfeasance claim23

against the state, no one benefits (significantly) from the

state's omission (for example, a failure to improve visibility in

a dangerous junction). This highlights the nature of trafficking

as a form of ‘taking’ where benefits are extracted forcefully

from victims, and redistributed to other members of society.

Accordingly, in the trafficking context, the public benefits from

the state's inaction since this inaction increases the

magnitude of the benefit misappropriated from victims to other

members of society. In addition, this suggests that states

might have some financial disincentive to fight trafficking; the

incentive to look the other way might be an independent

justification to impose a duty to compensate victims on the

state.

Fairness, therefore, is based on the assumption that the

losses to losers are outweighed by the gains to the public.

Therefore, the decision to impose the risk is reasonable, but

nevertheless compensating losers is justified. Translating this

logic to omissions means that while the decision not to spend

more on prevention of trafficking is reasonable, still

compensating victims is justified. Alternatively, as explained

above, the grounds for compensating victims might be based

on the evaluation that the state was at fault by not doing more

to protect victims.

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REMEDIES

The different grounds for assistance can yield varying support

for different remedies. It is one thing to support restitution of

all benefits made at the victim's expense (even those that

were not captured by the state) or full compensation for the

injury endured by victims (the restitutio-ad-integrum rule which

governs private law remedies). Yet, it is quite another thing to

support more limited remedies such as issuing victims visas

and work permits or providing victims with health coverage,

support for housing and occupational training. Providing

victims with visas and work permits does not involve any

financial burden on the state. Even if such burden is imposed

on society, it is only fair that the society that enslaved victims

and benefitted from it, will bear the burden of assisting

victims. Support for housing and occupational training does

impose, however, a financial burden on the state's welfare

system. Yet, there is a case to be made that victims of

trafficking deserve to enjoy state benefits given their 1)

(forced) contribution to the state's economy, 2) extreme

vulnerability and 3) protected interest and the extent of its

violation.

Victims also have a strong claim to receive health insurance

coverage from the state.24 Frequently, their significant health

27


problems (Keren-Paz & Levenkron 2009:445,n.34) are a

consequence of trafficking. It is only fair that the society in

which women were enslaved in order to provide sex services

to its men, should at least take upon itself to provide full

health coverage to the victims. While fault or fairness-based

obligations can support full compensation of victims, one

should not commit oneself to an all-or-nothing approach.

Accordingly, the social responsibility obligation to victims can

yield more limited remedies, such as occupational programs,

assistance in accommodation and health coverage, as well as

narrower remedies such as providing victims with visas and

work permits. In general, obligations based on fault probably

could justify a more comprehensive remedy than fairness-

based obligations, which in turn yield a stronger remedy than

contractarian and needs-based obligations. Victims’

compensation schemes for criminal injury commonly award

victims limited compensation which cover the victim's basic

needs or reflect a hybrid rationale – more than fulfilling basic

needs but less than full compensation.25 This presumably

reflects an increased obligation to protect victims from

violation of their basic rights by third parties, which does not

amount to an obligation to indemnify the victim for her loss.

Not only do different grounds for compensation justify different

measures of recovery, but also each rationale for

compensation might support different measures. For example,

28


victims affected by police wrongdoing seem to have a

stronger claim than victims whose vulnerability was

exacerbated due to inadequate anti-trafficking legislative

measures by the state.

The theoretical framework canvassed above raises two

questions. First, what is the relationship between the different

grounds for compensation? Restitution of direct benefits

received by the victims should accumulate to any

compensation or assistance by the state. The obligation to

provide some kind of compensation becomes hollow, if it is

being fulfilled with what is in effect victim's money. Beyond

that, fault, fairness, contractiarianism and needs-based

obligations probably work as alternative to each other. The

remedy for those victims who have been wronged by the

state, includes what they should have received according to

the fairness and need rationales. Similarly, the fairness-based

remedy includes what should have been given to victims

according to a needs-based rationale. Second, what is the

appropriate level of generality for the compensation exercise?

Given the significant administrative costs involved in an

individual examination of each victim's claim, it would be

better to avoid such individual examination. The remedies

given to victims should be at a level reflecting the fact that

29


victims' claims for compensation and assistance are based on

fairness, needs, and some degree of structural fault by the

state. Cases involving more particular allegations of concrete

fault might be better pursued in court, although some

administrative forum to adjudicate such concrete claims might

be another appropriate solution.

CONCLUSION

In the context of trafficking, the state's acts or omissions might

violate a victim's legal right. If this is established, the victim is

entitled for full restitution or compensation (as the case may

be) to vindicate her right. While this chapter hinted at possible

grounds of liability – in torts and restitution – a legal obligation

to compensate the victim was not the focus of inquiry. Rather,

I have explored how different criteria of distributive justice can

support moral obligation by the state to compensate victims.

When the state directly benefited from value forcefully

transferred from the victim, justice requires that the money is

paid back to victims. Even if individual victims cannot sue

successfully in restitution, the state should have no discretion

with respect to the use of such money (even for other anti

trafficking-related activities); it should be paid back to victims.

30


Beyond this, the spending of limited resources is a matter for

the state's discretion and different criteria for distribution can

yield different grounds to hold the state under some obligation

to compensate, or assist victims. The fact that society benefits

from trafficking and from background legal rules which make

victims further vulnerable, supports compensation to victims

based on fairness. The fact that the state and its agents act in

a faulty way, supports compensation to victims even though

such fault is insufficient ground to establish tort liability. The

fact that the violation of victims' rights occurred within the

state's jurisdiction supports compensation based on social

contract theory. Finally, the fact that victims are an extremely

vulnerable group with significant needs supports assistance

based on needs-based and welfare state rationales.

While vulnerability is a stand-alone ground for assistance

(contractarian theory and needs) it might also play a role in

determinations of fault and fairness. However, the state's

obligation to compensate victims does not hinge merely (or

perhaps even mainly) on victims' vulnerability. Just allocation

of risks and benefits in society justifies, on different grounds, a

robust duty on the state to compensate, assist and make

restitution to victims. Moreover, basing victims' claims on

grounds independent of vulnerability might increase the

31


acceptability of compensating victims and justify higher

measures of recovery. It therefore might be conceptually and

politically superior to the alternative of basing victims'

compensation on their (correct) identification as extremely

vulnerable individuals. Victims are not the only vulnerable

people; the welfare state is under attack; needs-based claims

are generally unpopular, and victims' needs-based claims are

likely to be even less popular since victims are prostitutes and

foreigners. Highlighting the benefits made by the state and

society at victims' expense, the relationship between the harm

to victims and the benefits derived and the inadequate way in

which victims are treated by the state should increase both

the acceptability of victims' claims and the ensuing

compensation.

NOTES

∗ Senior Lecturer, Keele Law School. [email protected] 1 I focus on the experience of victims of sex-trafficking, but most of the analysis is applicable to all types of victims. For the experience of the former see Keren-Paz & Levenkron 2009:439-44. 2 At the international level, a state which ratified the UN Palermo Protocol (2000) or the Council of Europe Convention (Warsaw 2005) will be under obligation to protect victims, prosecute traffickers and prevent trafficking. However, victims cannot enforce these obligations on the state at the domestic level. 3. For litigation against the state and its prospects see nn 17,18,20,24 below and Keren-Paz 2009a. 4 Victims' compensation schemes such as UK’s Criminal Injury Compensation Board are based on such logic. See e.g., Criminal Injuries Compensation Act

32

mailto:[email protected]


1995 (UK); NY CLS Exec, Art 21 (2008). Indeed, in December 2007 the Board awarded compensation to four victims of trafficking (Townsend 2007).

5 I will briefly refer to these grounds in the remedies and conclusion sections.

6 As the discussion below clarifies, while the first two grounds (and the restitution ground) might support a legal claim which is based on corrective justice, they are also relevant as criteria for distribution within a distributive justice framework. 7 Countries of origin profit from trafficking due to a reduction in the number of people unemployed, and due to flow of cash sent by victims. Transition countries profit from the purchase of tourist services such as flights and hotels. 8 In Keren-Paz 2009a I elaborate on the distinction in English law between vindication of property and unjust enrichment. 9 This is explained further in Keren-Paz 2009a:28-9. For rejection of four challenges to victims' restitutionary claims see Keren-Paz 2009b:30-33 (illegality); 32-33 (encouraging prostitution and illegal entry); 28-30 (commodification); 43-8 (causation). 10 For a more detailed doctrinal account of the claim and qualifications see Keren-Paz 2009a; 2012. The qualifications are based on problems of proof, the distinction of confiscation of profit from confiscation of instrumentalities of crime and the possible need to account for the service made by state in increasing the collectability of the trafficker’s debt to the victim. 11 I deal with some of these issues in Keren-Paz 2009a. 12 For the claim that all involuntary creditors should have the same priority regardless of whether the debt resulted with transfer of wealth to the debtor see Dagan 2004: 317-27. 13 See e.g., The Compensation for Victims of Ringworm Law 1994 (Israel) (compensation for immigrants injured by irradiation against ringworm of the scalp disease); Restitution for World War II Internment of Japanese American and Aleuts 1989 (U.S); CBC News (21 December 2006) (Compensation for children taken from home and put in Catholic orphanages in the 40s and 50s, in which they suffered serious abuse); CBC News (11 January 2008). 14 However, such a failure might violate international obligations, and in the UK, the provisions of the Human Rights Act 1998. 15 Liability was imposed (outside of the trafficking context) in Canada and Israel. See Doe v BCP (1998); State of Israel v Weiss (2004); In England, the House of Lords’ decision in Smith v CCS (2008) seems to preclude liability for negligent failure to protect an identifiable victim from a specific and imminent risk. But see n.18 below.

33


16 Yazdi was arrested by the Israeli police in 7th June 2010 after being sought-after for trafficking-related offences since 2008.

17 Plonit v Gaiman (pending). The state denies in its statement of defence such behaviour; it admitted the trafficker was used as an informer but denied that he was given any immunity and insists the informer was warned not to commit any offences. 18 Possibly, such behaviour could trigger liability in tort even under the extremely narrow confines of Smith (2008) either based on the fact that this case arguably involved misfeasance (active creation of risk by the defendant which injured the claimant) and not merely nonfeasance (failure to save the claimant from external risk the defendant did not create) by (unknowingly) handing the victim over into the traffickers' control, or as a rare exception to the no liability for nonfeasance rule. The possibility of such a rare exception was recognized by the majority in Smith at paras [78], [97], [109], [135]. 19 Other grounds to support a moral obligation by the state to facilitate recovery are based on: 1) the state's contribution to the vulnerability of victims, both in general and with respect to their ability to recover from potential defendants in particular; 2) the need to improve access to justice of marginalized groups; and 3) the fact that the serious violation of rights occurred within the state's jurisdiction. For possible measures to improve recovery by victims see Keren-Paz 2009b:51-2. 20 According to the traditional Salmond test which governs the scope of vicarious liability, a negative answer is likely since the employee's tort was not committed in the course of employment. However, in both the UK and Canada courts broadened the scope of liability of employers for sexual assaults committed by employees: Lister v Hersley (2001); Bazley v Curry (1999). However, unless the policeman purchased the sexual services while performing his professional duties (e.g., investigating), as opposed to doing so while he was ‘merely’ on duty, it is uncertain that state liability would follow under Lister and Bazely. 21 For an argument that clients should be strictly liable in torts to victims based on fairness (and other considerations) see Keren-Paz & Levenkron 2009. 22 In countries like the USA, the criminalization of prostitutes makes victims further vulnerable and might negatively affect their ability to sue successfully traffickers and clients. 23 See n. 18 above for the distinction between nonfeasance and misfeasance.

24 In Israel, victims' petition to the High Court of Justice is pending in Ploni v Minister of Health. The petitioners ask that the state give full health coverage to victims who contracted AIDS and Hepatitis B during the period they were

34


forced into prostitution. During hearing the state agreed to give intermediate treatment to victims at the state's expense. 25 New York's victims' compensation scheme, for example, compensates victims for pecuniary losses but puts a cap on lost earnings and does not provide compensation for pain and suffering.

CASES CITED Bazley v Curry (1999) 174 DLR (4th) 45 (Supreme Court, Canada). Doe v. Board of Commissioners of Police [1998] 39 O.R.3d 487 (Gen. Div.,

Ontario). Lister v Hersley Hall LTD [2001] UKHL 22. Plonit v Gaiman CC (Tel-Aviv) 55775/06 (District Court, Israel) (pending

decision). Ploni v Minister of Health HCJ 5637/07 (Supreme Court, Israel) (pending

decision). Smith v Chief Constable of Sussex Police [2008] UKHL 50. State of Israel v Weiss (2004), CA 1678/01, P.D. 58(5) 167 (Supreme Court,

Israel).

LEGISLATION CITED Compensation for Victims of Ringworm Law 1994, S.H. 1478 (Israel). Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw 2005). Criminal Injuries Compensation Act 1995, c.53 (UK). Forfeiture of Profits from Publications Recounting Crime Law 2005, S.H. 1993

(Israel). Human Rights Act 1998, c.42 (UK). N.Y. Exec. Law (McKinney 2001) (New York). NY CLS CPL (2007) (New York). NY CLS Exec (2008) (New York). Penal Law 1977, S.H. 5737, p. 226; S.H. 5766 P. 230 (Israel). Penal Regulation (Managing the Special Fund Handling Confiscated Property and Fines Imposed in Human Trafficking and Enslavement Cases) 2009, KT 6759 (Israel). Powers of Criminal Courts (Sentencing) Act 2000 c.6 (UK). Prohibiting Profiting from Recounting Crimes Act, S.O. 2002, c.2 (Ontario). Prohibition of Trafficking in Persons (Legislative Amendments) Law 2006, S.H. 2067 (Israel). Restitution for World War II Internment of Japanese American and Aleuts 50 USC 1989 (U.S.). Unjust Enrichment Law 1977, S.H. 924 (Israel). UN Palermo Protocol (2000) Protocol to Prevent, Suppress and Punish

Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc. A/55/383 (Nov. 15, 2000).

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http://www.lexis.com/research/buttonTFLink?_m=fe5923b105f1c575daa63498934fe2a7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b24%20Pace%20L.%20Rev.%20631%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=117&_butInline=1&_butinfo=NY%20EXEC%20632-A&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=5c750abc864de01621ccd8469419a44c


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Moral and Legal Obligations of the State to Victims of Sex Trafficking: Vulnerability and Beyond

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