Halting child trafficking remains tricky
One of the positive developments in Thailand in recent years has been the governmental commitment to eradicate human trafficking. It has been complemented by a spate of court cases against human traffickers, with some evident successes. Yet, there remains a challenging situation, particularly where children are the victims, compounded by the complexity of a transfrontier situation and the opacity of the vested interests behind the sex market.
The country is now supported by an extensive policy and legal framework which provides the tools to take action. Thailand is a party to the main international treaty on the subject of human trafficking -- the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organised Crime (2000) ("Palermo Protocol"). This treaty defines "trafficking in persons" as comprising three elements; the criminal act (such as recruitment or transfer of a victim); the means used (such as coercion, deception or abuse of power); and the purpose based on exploitation (such as sexual exploitation and forced labour).
In the case of child victims, however, it is not necessary to prove the second element (the means) and absolute protection is afforded to persons under 18 years old. Importantly, consent of the victim to the trafficking (whether adult or child) is immaterial, and the trafficker cannot use consent to rebut the claims of the victim. Furthermore, the Palermo Protocol calls for criminalisation of human trafficking, victim protection, safe repatriation, and prevention and cooperation measures, such as on border security.
Implementation of this treaty in Thailand has been witnessed by the enactment of the Act on Prevention and Suppression of Trafficking in Persons (2008), with two subsequent amendments, most recently the Anti-Trafficking Act (2017). These laws follow the Palermo Protocol, while providing additions based on the Thai situation. In particular, the 2017 law spells out the notion of abuse of authority by bearing in mind the victim's physical and mental condition as well as educational level. Progressively, there has also been an increase in sanctions (fines, imprisonment and even the death penalty).
In 2016, a law was also passed to lay down the procedures for dealing with human trafficking cases, with the establishment of court(s) to deal specifically with the crime of human trafficking, conferring more powers on the judges to undertake investigations ("inquisitorial role"), as well as expedited procedures targeting finalisation of cases in six months.
These are supported by various national policies, most recently the human rights agenda adopted by the current administration, as well as the commitment to the UN's Sustainable Development Goals. There is also a range of other laws that intersect with the anti-trafficking law, such as the Anti-Prostitution Act (1960) and the Criminal Code, remembering that the country is a party to the UN Convention on the Rights of the Child and its protocols.
In cross-border cases, national immigration law comes into play. However, the immigration law stands astride the thin line between victim and wrongdoer; where a person crosses into Thailand without the proper papers and where it is unclear whether the person is a victim of human trafficking, such law might classify the person as an illegal immigrant, consequently leading to immigration detention. Nevertheless, there are now various Memoranda of Understanding between government and other agencies to shift victims of trafficking from the immigration authorities to the social welfare authorities and to house victims in the latter's shelters.
A key challenge is how to identify the victims and how to ascertain their age, particularly to enable adequate protection to be accorded to children. While under the current national law and related procedure, the identification of the victim should be finalised within a week, this is hampered when it is not clear whether the person is under 18 years old. Should the age of the person be assessed through tests on the bones or teeth?
Experiences from other regions, such as Europe, question the accuracy of tests based on bones/teeth, as there is a possible margin of error concerning the actual age of the person. What should not be forgotten is the need to consult the child, examine the background circumstances, and access the family to help confirm the age. In today's world, technology can also help, such as online communication with the country of origin and local communities.
This is linked with situations where the victim claims to be over 18, when the reality may suggest otherwise. The interview process needs to be sensitive to the trauma already faced by the child and the pressures which may cause the child to be evasive, including over their real age, due to fear and apprehension. The environment facing the child may also inhibit the truth-seeking process: An interview at a police station hoping for quick results may be inappropriate if what the victim really needs is a comforting shelter to recover in before evidence-gathering begins.
What if the person accused of exploiting a child claims that the latter had stated that they were over 18 and the accused believed them at the time of the incident, in addition to the fact that the person consented to the act of exploitation? The mere fact that a child claims that they are over 18 should not be definitive, and the presumption -- and benefit of the doubt -- should weigh in favour of the child. This is now the judicial position in other parts of the world; the accused is under strict liability to the child, irrespective of the latter's claim of being over 18 years old. Add to that the global position today that criminal responsibility arises in trafficking cases, irrespective of whether the victim consents to the act of exploitation.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He was formerly a UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. This article is derived from his presentation at the recent Bangkok conference on Laws and Practices to help Victims of Human Trafficking, organised by Alliance Anti-Trafic and partners.
Professor of law at Chulalongkorn University
Professor Vitit Muntarbhorn teaches at Chulalongkorn University, Bangkok. He has helped the UN in a variety of positions and is currently a member of a UN Human Rights Commission of Inquiry. This article is derived from his speech at the recent Conference on Asean Traversing 2015: Challenges of Development, Democratisation, Human Rights and Peace, organised by Mahidol University, Bangkok.