The exploitation of vulnerable individuals or those belonging to a minority has always been present in society. Currently, one of the most common forms of exploitation is sexual exploitation, which occurs mainly against women and through the crime of human trafficking.
Trafficking in women for sexual exploitation is one of the most attractive criminal activities today. This is because, in addition to its high profits, it is a crime that is difficult to detect and report.
It is estimated that trafficking generates around 32 billion dollars a year and that the number of people trafficked, according to the International Labour Organization (ILO), is 800 annually.
International Legislation
Policies regarding human trafficking gained momentum starting in 2000 with the creation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, popularly known as the Palermo Protocol, the main international legal instrument on the subject and a major milestone in the regulation of this crime.
The aforementioned Protocol arose from the United Nations Convention against Transnational Organized Crime, approved by the General Assembly of the United Nations (UN) in November 2000.
The concept of trafficking in persons in the Protocol is set out in Article 3(a). Paragraph (b) adds that consent given by the victim will be considered irrelevant if any of the forms of vitiation provided for in paragraph (a) exist.
National Legislation
In Brazil, regulation is established through Article 149-A of the Penal Code, which defines human trafficking as follows:
Article 149-A: To procure, entice, recruit, transport, transfer, buy, house or shelter a person, through serious threat, violence, coercion, fraud or abuse, for the purpose of:
(...)
V – sexual exploitation.
It should be noted that for the crime of human trafficking to exist, there must be some vitiation of consent; that is, there must have been serious threat, violence, coercion, fraud, or abuse, as provided for in the article's heading. If this vitiation is absent, the consent given by the victim is valid, thus negating the crime.
However, it wasn't always this way. The previous wording of the Penal Code did not include defects of consent as part of the concept of the crime, only as causes for increasing the penalty. Thus, the victim's consent was always irrelevant and disregarded in any context, since the existence of defects was not necessary for the crime to be characterized.
However, with the advent of Law No. 13.344 of 2016, defects became part of the concept of the crime of human trafficking and, therefore, without them the crime does not exist. Thus, currently, valid/unblemished consent given by the victim is relevant and means that the criminal conduct does not exist.
It is important to highlight here that the term "abuse" used in Article 149-A of the Penal Code should be interpreted as "abuse of a situation of vulnerability," as foreseen in the Palermo Protocol.
The question that needs to be discussed is: is this vulnerability actually analyzed and investigated in each specific case?
Vulnerability Concepts
It is certain that the victim's vulnerable situation is one of the main reasons for their consent to trafficking, given that it undermines the individual's autonomy and capacity, influencing their decisions.
According to Daniel Resende Salgado, this situation of vulnerability does not refer to the definitions of vulnerable people according to the Penal Code, such as minors or the mentally ill, but rather to the lack of material equality between the trafficker and the victim.
Several vulnerable situations influence human trafficking, especially unequal power relations, such as gender, race, economic power, social background, and education, as evidenced by the report from the United Nations Office on Drugs and Crime (UNODC).
The report further explains that, in the context of human trafficking, vulnerability refers to factors inherent to the person or related to the environment in which they live, such as poverty, inequality, discrimination, and gender-based violence.
Thus, all these factors trigger financial hardship for the individual, limiting their choices and making them more susceptible to recruitment by traffickers.
The victim's vulnerable condition is directly linked to social, cultural, economic, political, and environmental factors, and is understood as a situation where the victim has no choice but to believe that sexual exploitation is their best or only way out.
It is clear that vulnerability has a great influence both when the trafficker chooses their ideal victim, the one most likely to accept the offer, and when the victim consents to this exploitation.
According to Anália Ribeiro Pinto, people who find themselves in situations of socioeconomic vulnerability, without opportunities for decent employment, are more susceptible to human trafficking and, therefore, their choices should not be considered free and valid.
Precisely because of this, the legal system decided to define "abuse of a vulnerable situation" as one of the defects of consent capable of characterizing the crime of human trafficking.
In this same vein, the UNODC's 2021 Global Report on Trafficking in Persons indicated that 51% of trafficking cases had the victim's economic vulnerability as the main factor, recognizing the abuse of vulnerability as the primary recruitment tactic used by criminals.
The report also concluded that poverty and unemployment are the main reasons why people become victims of human trafficking.
He added that precarious and degrading financial conditions and the lack of prospects for decent employment lead people to accept this type of offer, since it is often the only survival option they find.
In light of the above, it is clear that the victim's vulnerable condition goes far beyond being a minor or having a physical or mental disability. Vulnerability is intimately linked to the environment and the way in which the person lives.
In short, vulnerability is present in cases of poverty, unemployment, dysfunctional homes, domestic violence, low levels of education, or any other context that limits an individual's choices, preventing them from making a truly unbiased decision.
It is thus noticeable that a proposal for exploitation is much more likely to be accepted by a person in a situation of financial difficulty or who lives in a dysfunctional home, than by a person with good socioeconomic conditions.
For this reason, it is easy to see that traffickers take advantage of this vulnerability and the victim's lack of options to achieve their desired result.
Therefore, it is of great importance that the victim's vulnerability—that is, their financial situation, social environment, or level of education—be analyzed in each specific case by the responsible authorities, such as police officers, members of the Public Prosecutor's Office, and judges.
In short, defects of consent are essential elements of the criminal offense, meaning that they are part of the conceptualization/description of the conduct and, without them, there is no crime to speak of.
Conclusion
As seen above, one form of vitiated consent is the abuse of the victim's vulnerable condition, and therefore, its existence means that the victim's consent is not considered valid and the crime is characterized.
Whereas, in the absence of defects, the victim's consent is valid and, therefore, the crime is no longer considered to have occurred, that is, it ceases to exist.
For this reason, and to prevent the crime from being wrongly mischaracterized, a thorough analysis and investigation of the victim's vulnerable condition is necessary during the legal process.
However, this investigation is not always carried out. Most of the time, the focus is only on whether the victim consented and whether they were in a situation of fraud, kidnapping, coercion, or deception, with no mention of the abuse of the victim's vulnerable situation.
Furthermore, when they mention the condition of vulnerability, alleging its non-existence, it becomes clear that there is no investigation into the victim's financial situation, their education, their home, their family, or any other situation that could actually determine whether the victim is considered vulnerable or not.
Therefore, how can one speak of the non-existence of abuse of vulnerability if that vulnerability is not investigated/questioned?
Legal proceedings often emphasize only that the victim consented and was fully aware of their fate. However, this is not the same as stating that the victim was not in a vulnerable situation. Therefore, this does not prove that abuse did not occur.
Therefore, it is important that a thorough investigation be carried out in each specific case. The victim's financial, social, employment, and educational situation is of great importance in determining whether or not a situation of vulnerability exists.
The condition of being vulnerable is what makes an individual a much easier target for traffickers, since any promise of improvement in quality of life will be attractive.
A careful and thorough analysis of vulnerability is essential to avoid mischaracterizing the crime and to ensure that criminals do not go unpunished for their actions.
Become a professional prepared to perform these and all other analyses that the Criminal Law system may require of a lawyer. With the postgraduate degree in Criminal and Procedural Law from IDP Online , you have classes that fit into your routine and access to renowned professors in the field.
Bibliographic references
BRAZIL, Decree No. 5.015, of March 12, 2004. Promulgates the United Nations Convention against Transnational Organized Crime.
BRAZIL, Decree No. 5.017, of March 12, 2004. Promulgates the Additional Protocol to the United Nations Convention against Transnational Organized Crime relating to the Prevention, Suppression and Punishment of Trafficking in Persons, Especially Women and Children.
BRAZIL. Decree-Law No. 13.344, of October 06, 2006. Provides for the prevention and repression of internal and international trafficking in persons and for measures to assist victims.
BRAZIL. Decree-Law No. 2.848, of December 07, 1940. Penal Code. Accessed April 12, 2022.
BRAZIL. Brasilia Rules on Access to Justice for People in Vulnerable Situations. XIV Ibero-American Judicial Conference. Brasilia, 2008.
BRAZIL. Superior Court of Justice. Appeal in the Motion for Clarification in the Appeal in Special Appeal No. 1.625.279. Rapporteur: Justice Reynaldo Soares da Fonseca. Case Inquiry. Brasília, April 19, 2022.
BRAZIL. Federal Regional Court of the 1st Region. Criminal Appeal No. 0005165-44.2011.4.01.3600/MT. Rapporteur: Mônica Sifuentes. Case file consultation. Brasília, March 30, 2022.
CID, Clarisse Trigo. Trafficking of Women for Sexual Exploitation: Consent as a form of (de)characterization of the crime. Undergraduate Thesis (Law) – Faculty of Legal and Social Sciences, University Center of Brasília, Brasília, p. 31. 2020.
Human Trafficking: Trafficking in persons generates US$32 billion annually. March 13, 2010. Folha de Londrina.
GEBRIM, Luciana Maibashi; ZACKSESKI, Cristina. The problem of consent in international trafficking of persons for the purpose of sexual exploitation. Brazilian Journal of Criminal Sciences, São Paulo, year 24, v. 119, Mar./Apr. 2016.
GRECO, Alessandra Orcesi Pedro; RASSI, João Daniel. Crimes against sexual dignity. São Paulo: Atlas, 2010, pp. 118-119.
GUERALDI, M; DIAS, J. In search of Eden: trafficking in persons and human rights, Brazilian experience, ISBN: 978-85-7549-040-2, São Paulo, 2014.
KAZTMAN, R. Seduced and abandoned: the social isolation of the urban poor. Revista de la CEPAL, Santiago de Chile, n. 75, p. 171-189, 2001.
MARQUES, Fernando Tadeu; CALDAS, Suzana Lopes de Faria. International Trafficking in Persons for the Purpose of Sexual Exploitation: An analysis in light of a specific case in Brazil. Montevideo, n. 46, p. 108-134, 2019.
PINTO, Anália. Human trafficking: prejudice and discrimination, Journal of the Regional Court of the 3rd Region, ISSN 1982-1506, São Paulo, 2019.
RANDOW, Giselle Leite F.; TULER, Luiza Carla M. da R.; OLIVEIRA, Rayani Tamila de Souza Amorim; ESBERARD, Shevah A.. Human Trafficking, Vulnerability and Moral Coercion as Driving Factors: An analysis of data from the Recent Report of the Ministry of Justice and Public Security. VII UNIFACIG Scientific Seminar. 2022.
RODRIGUES, Thais C. de. International Trafficking in Persons for the Purpose of Sexual Exploitation and the Question of Consent. São Paulo: Law Course, University of São Paulo, 2012.
RODRIGUES, Thais C. de. International trafficking of persons for sexual exploitation. São Paulo: Saraiva, 2013.
SALGADO, Daniel Resende. Trafficking in human beings for the purpose of sexual exploitation: abuse and the manifestation of will in a context of vulnerability. Revista do Tribunal Regional Federal da Terceira Região, v. 1, p. 213-228, 2019.
SANTOS, KEYLLA VIEIRA. The vulnerability of women victims of trafficking for sexual exploitation in Brazil from the perspective of Law 13.344/2016.
UNODC (2021): Global Report on Trafficking in Persons. Vienna: United Nations.
UNODC. Thematic document. Abuse of vulnerable position and “other” means within the definition of trafficking in persons. Vienna. 2012.
XIMENES, Daniel de Aquino. Social Vulnerability. Graduated from the Federal University of Minas Gerais.