European Journal of Crime, Criminal Law and Criminal Justice 21 (2013) 247–289

© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15718174-21042030

brill.com/eccl

Still Neglecting the Demand that Fuels Human Trafficking: A Study Comparing the Criminal Laws

and Practice of Five European States on Human Trafficking, Purchasing Sex from Trafficked

Adults and from Minors

Katalin Kelemen and Märta C. Johansson*

School of Law, Psychology and Social Work, Örebro University Fakultetsgatan 1, S-701 82 Örebro, Sweden

AbstractThis article discusses the implementation of duties to reduce the market for sexual services of trafficked persons, both adults and children. The article begins by describing the duties that stem from international and European obligations. It then presents the legislation and practice of five European states (Hungary, Italy, the Netherlands, Sweden and the United Kingdom) regarding human trafficking and the purchase of sexual acts from trafficking victims. The states in the study have introduced measures to combat human trafficking by effective prosecutions and sentencing of traffickers. They have, however, taken few measures to combat demand for the sexual services of trafficked persons; in some countries, no measures at all. As all the countries criminalise the purchase of sexual acts from children below the age of 18, the article examines whether this has afforded trafficked children effective protection against sexual exploitation. One key element in the crime of purchasing sex from a minor is knowledge of the child’s age. The subjective elements that states require range from strict liability (below certain ages) to negligence, and their practice also varies. The article ends by discussing the lacunae that remain before states can be said to secure trafficked persons’ right to effective protection against sexual exploitation.

KeywordsHuman trafficking; purchase of sex from children; demand for trafficking victims; liability regarding age

* Corresponding author, e-mail: marta.johansson@oru.se. The authors are very grateful for sugges-tions made by the anonymous referees. The article forms part of the research project “Att skilja mellan offer: Ett brottsofferperspektiv på människohandel och människohandelsliknande brotts-lighet” funded by the Swedish Crime Victim Compensation and Support Authority.

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1. Introduction

1.1. Addressing the Demand for Victims of Human Trafficking

States adopt a wide array of measures to counter human trafficking. These focus on prevention, prosecution, protecting the victims, and partnership with other states and organisations. Preventive measures range from information campaigns and supporting education measures and research, to reconstructing visa arrange-ments and asylum procedures so that these do not facilitate the trafficking of persons. States are also encouraged to dampen the demand for the services of trafficked persons as a way to help prevent trafficking in the first place.

Reducing demand is a challenge for states as the market for the services of trafficked persons is diverse. Criminals who control trafficked victims profit by forcing their victims to engage in illicit activities or in highly exploitative ones — unlawful in the manner engaged. At one end of the spectrum is activity that is illicit per se, such as organ harvesting, and work on illegal cannabis farms. At the other end of the spectrum is exploitative work in domestic service, agriculture or in construction that escapes the notice of health, safety and compensation enforcement officials. With the exception of forcing a victim to beg or steal directly for the controller, trafficking activities generally involve profiting from the invol-untary services of the victim to others. Prohibiting the use of the services of trafficked persons is a challenge, as purchasers may have varying knowledge of the victim’s conditions. However, if demand is what fuels human trafficking by making it profitable, it is insufficient to focus only on traffickers while ignoring those paying for the services of their victims — the market must be tackled.

Trafficking for sexual exploitation has long been considered the most common form of trafficking into Europe. One way to dampen the demand for sexual ser-vices by trafficked persons is to criminalise the purchase of sexual services. European states have diverging positions on such criminalisation, and it is not the focus of this study, except in so far as those approaches affect the demand for sexual services by trafficked persons. Various approaches that respond to demand for human trafficking can be found among states. Sweden, Norway and Iceland allow for prosecution of purchasers of all sexual services, whether stemming from human trafficking or not. Additional states are considering adopting similar legis-lation.1 Finland has criminalised the purchase of sexual acts only from trafficked

1) Legislation criminalising purchasing sex is being processed in Israel and France. In Scotland and Northern Ireland bills have been proposed to criminalise the purchase of sex in general. See the Proposed Criminalisation of the Purchase of Sex (Scotland) Bill (2), available online at: http://www.scottish.parliament.uk/parliamentary-business/Bills/51148.aspx, and Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill, available online at: http://www .scribd.com/-doc/103586132/Human-Trafficking-and-Exploitation-Draft-Bill-for-Consultation (accessed 2 January 2013).

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persons. Purchasing sexual services from persons subjected to force is a crime also under English law. Common to all states is an obligation to criminalise the pur-chasing of sexual acts from minors.2 States that have legalised the purchase of sex, and states that have criminalised it, thus prohibit purchasing sex from minors. Statistics show that a significant percentage of trafficked persons are under 18.3 Thus, the prohibition against purchasing sexual acts from youth could be used to hold buyers criminally responsible even in countries that do not prohibit purchas-ing sexual acts from adults or trafficked persons.

How has the criminalisation of purchasing sexual acts from minors been regulated and implemented? What are obstacles to effective implementation and what are factors that may affect its effect in reducing the market for the services of trafficked minors? Our study focuses on answering these questions.

1.2. The Purpose and Method of This Article

This article examines the criminalisation of purchasing sex from victims of human trafficking, especially minors. One of the objectives is to describe the international obligations on states to afford adequate protection against trafficking by address-ing demand, especially with regard to the protection of children from sexual exploitation. The backdrop to the article are questions concerning what legal measures have been adopted by states to reduce the market for human trafficking for sexual purposes, and obstacles to the success of these measures. Our study uses the comparative method, and explores the topic of demand fueling human trafficking by examining the criminal laws and practice of five European states. The comparative method implies concern for the policy considerations and law-making background of the examined national regulations and requires a glance at

2) The prohibition against exploitation of children is a general prohibition under human rights law. See the 1989 UN Convention on the Rights of the Child, 1577 UNTS 3, Articles 34–37(a); the 2000 UN Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitu-tion and child pornography, G.A. Res. 54/263, Annex II, 54 U.N. GAOR Supp. (No. 49) at 6, U.N. Doc. A/54/49, Vol. III (2000), Articles 3(1)(b) and (2); ILO Worst Forms of Child Labor Convention, C182, 1999, Articles 3(a), 3(b) and 7(a); Framework Decision 2004/68/JHA.3) EU statistics from 21 Member States on trafficking victims between 2008–2010 show that 65 per-cent of victims were women, 20 were men, 12 were girls and 3 were boys. M. Vassiliadou, Current trends and policies in trafficking in human beings in the European Union, Migration Policy Practice (MPP) (2012), p. 3 et seq., 3. According to official UK figures, between 1 Jan. 2011 and 15 Sept. 2011, 202 children were identified as trafficked in the UK, see http://www.ceop.police.uk/Documents/ ceopdocs/child_trafficking_update_2011.pdf (accessed 14 August 2013). The Dutch National Rapporteur on Trafficking in Human Beings (DNRT) reported that between 5–28% of trafficking victims were younger than 18 between 2001–2009. Between 2000–2008, 18% of Dutch Trafficking in Human Beings (TIHB) cases involved at least one underage victim. See Eighth report of the National Rapporteur on Trafficking in Human Beings, Human Trafficking — ten years of independent moni-toring (BNRM, The Hague, 2010), p. 93 et seq., 115.

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the law in action which may differ, and, as our study demonstrates, often does differ considerably from the law in books. The comparison is facilitated by the fact that all five examined states’ legal system belongs to the Western legal tradition, and they are all members of the European Union and the Council of Europe.

The five countries in the study were chosen with two purposes in mind: first, that the countries represent a wide spectrum of different approaches to the pur-chase of sexual services; and second, that their legal systems and materials would be accessible to the article authors. The states selected span a wide range of approaches to the market for sex: Sweden prohibits procuring and purchasing sexual services in general; English law prohibits procuring and the purchase of sexual acts from children and persons subjected to force; the Netherlands and Hungary permit regulated prostitution and do not criminalise purchasing from trafficked persons but do prohibit purchasing from children; and Italy expressly prohibits brothels, but does not criminalise the purchase of sexual services from adults or from trafficked persons. The article does not evaluate whether the mea-sures taken have led to a generally reduced market in the states concerned, but identifies legislation that can reduce the market, and gives examples of systematic obstacles to its effective application.

2. International Obligations to Protect Children from Sexual Exploitation

The duty on a state to combat demand for the services of human trafficking victims stems from obligations to combat human trafficking and to secure human rights within its jurisdiction. For victims of human trafficking who are forced to provide sexual services, securing their human rights begins with a state’s criminal laws. There are many measures that states can adopt to combat human trafficking, such as effective investigation, prosecution and sentencing of traffickers. The international obligations on states are often phrased in general terms, allowing the parties to a legal instrument to adopt the measures best suited for their national legal system and context, although the measures of implementation must lead to real enjoyment of the rights.4 Enjoyment of rights goes beyond pro-tection against state interference with an individual’s rights to include effective protection by the state against actions by private actors that hinder an individual’s

4) Under the 1969 Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS 331, states are to interpret and perform or implement their obligations in good faith (Articles 26 and 31). See, e.g., European Court of Human Rights (ECtHR) judgment in the case of Loizidou v. Turkey (1995), para. 72: “the object and purpose of the [European Human Rights] Convention as an instrument for the pro-tection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective” Furthermore, states cannot refer to their national regula-tions as justification for not fulfilling their international obligations (VCLT Article 27).

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enjoyment of his rights.5 This is often framed as the duty to exercise due diligence, which entails a duty to “prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.”6 Due diligence requires that legal pro-ceedings be effective and have a deterrent effect in order to prevent crime.

The obligations on states to take measures to reduce the market for trafficking stem from both global and regional instruments that focus on slavery, human traf-ficking, and on children. Children who are trafficked fall within the ambit of instruments aimed to cover children, trafficking victims, and victims of sexual exploitation.

2.1. Global Obligations to Protect Children and Trafficking Victims by Reducing the Sex Market

Varying obligations to take measures specifically to reduce the sex market can be found in global agreements. Under United Nations (UN) and International Labour Organisation (ILO) instruments there is a duty for states to criminalise sexual exploitation and prosecute those who offer children’s sexual services, as well as those who purchase or attempt to purchase sexual acts from children.7 The offences should be punishable by appropriately severe penalties.8 The United Nations Office on Drugs and Crime (UNODC) 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplement-ing the United Nations Convention against Transnational Organized Crime (the “Palermo Protocol”) is the most recent specialised global treaty on human

5) Human Rights Committee (HRC) General Comments (GC) 31 (2004), para. 8 and ECtHR case-law on protection as the state’s duty to “secure” enjoyment of the rights enshrined in the European Convention on Human Rights (ECHR). See, e.g., Z and others v UK (2001), Application no. 29392/95, Judgment 10 May 2001.6) HRC GC 31 (2004), para. 8.7) The least specific obligations are found in the 1989 UN Convention on the Rights of the Child (CRC) Articles 34–37(a). Clearer obligations are contained in the 2000 UN Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornogra-phy Articles 3(1)(b) and (2); also ILO Convention No. 182 (1999) on Worst Forms of Child Labor Articles 3(a), 3(b) and 7(a). The five states in the study are all parties to the CRC (the latest ratifica-tion in the group was the Netherlands on 6 Feb. 1995), the Optional Protocol (the latest ratification in the group was Hungary on 24 Feb. 2010) and ILO Convention No. 182 (the latest ratification was the Netherlands on 14 Feb. 2002). Status as of 26 September 2012 canbe found online at http://treaties .un.org/ and http://webfusion.ilo.org/public/applis/.8) 2000 UN Optional Protocol to the CRC on the sale of children, child prostitution and child pornography Article 3(3). See also the report “Building rights-based and comprehensive national child protection systems to prevent and combat the sale of children, child prostitution and child pornography” (A/66/228) by the Special Rapporteur on the sale of children, child prostitution and child pornography, on the importance of a preventive and prohibitive legal framework as part of effective preventive measures (para. 47).

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trafficking.9 It covers trafficking for purposes of sexual exploitation, forced labour, slavery or practices similar to slavery, servitude and removal of organ.10 The Palermo Protocol expresses a relatively unspecific obligation to reduce the mar-ket, while requiring that states do take measures: Article 9(5) states that “States Parties shall adopt or strengthen legislative or other measures, such as educa-tional, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”11

2.2. Regional Obligations to Protect Children and Trafficking Victims by Reducing the Sex Market

2.2.1. The Council of EuropeThere are further obligations under regional treaties. Under the Council of Europe’s (COE) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)12 there is an obligation to give effective protec-tion against exploitation, especially of vulnerable persons. The European Court of Human Rights (ECtHR) has clarified that this is done by, among other things, criminalising, investigating, prosecuting and imposing sufficiently severe punish-ments for states to provide effective deterrence against violations of Convention rights. In the context of human trafficking and the sex market context several rights, such as Article 3 and Article 8, may come into play.13 The primary one is nevertheless the prohibition against slavery or servitude (Article 4).14 In the case

   9) 2237 UNTS 319. All five states in the study are parties to the Palermo Protocol. The most recent ratification was by Hungary on 22 December, 2006. Status as of 27 September, 2012 at treaties.un.org.10) Article 3(a).  11) Article 9(5).12) The five states in the study are parties to the ECHR (the last ratification in the group by Hungary 5 Nov. 1992), available online at: http://www.conventions.coe.int (accessed 15 August 2013).13) Under article 3 States may not subject persons to treatment contrary to the article, and must protect against such treatment by private or other parties. See, e.g., European Court of Human Rights, X. and Y. v the Netherlands, Application no. 8978/80, Judgment 26 March 1985, margin no. 23, 24, 27; M.C. v Bulgaria, Application no. 39272/98, Judgment 4 December 2003, margin no. 150, 153. For Article 8, see, e.g., ECtHR, Stubbings and Others v. United Kingdom, Application no. 22083/93, Judgment 22 October 1996, margin nos 62–64.14) In ECtHR, Siliadin v. France, Application no. 73316/01, Judgment 26 July 2005, the punishment consisting of a fine for breach of Article 4 was considered to give insufficient support against such violations: “the member States’ positive obligations under Article 4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation” (margin no. 112). The Court also criticised the imprecise language of the legislation which gave scope for varying interpretation and application. The ECtHR found that the criminal law failed to give the minor applicant in the case practical and effective protection against the

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of Rantsev v. Cyprus and Russia15 the ECtHR described the comprehensive approach and measures that states must adopt to combat human trafficking beyond investigation and prosecution. Positive duties on states are, for example, to adopt criminal legislation, effectively prosecute and penalise violations; effec-tively investigate potential trafficking; and ascertain potential victims, even when the persons do not cooperate, and at credible suspicion, remove them from risk.16 In the case, Cyprus was found, inter alia, to have violated its obligations under Article 4 by its continuing use of the artiste visa regime, which functioned as a vehicle for entry into the country for purposes of organised prostitution.17 Russia was found to have breached its obligations to protect by failing to effectively inves-tigate how the young woman in the case originally had been recruited in Russia.18 The Rantsev case did not concern a child, but as the ECtHR has a practice of approaching protection from the individual’s situation and vulnerability, the requirements on states are even higher with regard to children.19

Two other conventions from the Council of Europe are relevant with regard to the sex market. Recourse to child prostitution must be criminalised according to Article 19(1)(c) of the 2007 COE Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS 201).20 There are no exact levels set for states, but penalties for violations should be effective, proportionate, and

treatment she had been subjected to and called for “greater firmness” due to increasingly high stand-ards that are required regarding protection (margin nos 143–144, 147–148). Other important cases under Article 4 are Rantsev v. Cyprus and Russia, Application no. 25965/04, Judgment 7 January 2010, margin no. 282; C N v United Kingdom App no 4239/08, Judgment 13 November 2012; C N and V v France App no 67724/09, Judgment 11 October 2012.15) ECtHR, Rantsev v. Cyprus and Russia (fn. 14).16) Further duties are to regulate businesses that are used as cover for trafficking activities; evaluate immigration legislation and policies so that they do not encourage, facilitate and tolerate trafficking; train government personnel, such as in law enforcement and immigration; and support recovery, access to justice and legal assistance. ECtHR, Rantsev v. Cyprus and Russia (fn. 14), margin nos 284–287.17) ECtHR, Rantsev v. Cyprus and Russia (fn. 14), margin no. 293. The artist visa allowed employers to apply for visas for artists. The majority of the visas, however, were used for women who worked in the sex trade, and had long been criticised, e.g., by the COE’s Commissioner for Human Rights.18) ECtHR, Rantsev v. Cyprus and Russia (fn. 14), margin nos 307–309.19) ECtHR, X and Y v Netherlands (fn. 13), margin no. 27, 30; ECtHR, Z and Others v UK, Application no. 29392/95, Judgment 10 May 2001, margin nos 73–74; ECtHR, E and Others v UK, Application no. 33218/96, Judgment 26 November 2002, margin nos 88–101; M. C. v Bulgaria (fn. 13), margin nos 148–153, 167.20) Attempts should also be criminalised, according to Article 24(2). All five states in the study have signed the treaty (the latest signature by Hungary 29 November 2010), but it has not yet been ratified by Hungary and the UK. Status as of 15 August 2013 available online at: http://www.conventions.coe .int.

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dissuasive.21 In contrast, under Article 19 of the 2005 COE Convention on Action Against Trafficking in Human Beings (CETS 197)22 states need only to consider criminalising use of the services of a trafficked person, whether minors or not.23

2.2.2. The European UnionAll five states in the study are members of the European Union, which has been active in combating human trafficking and harmonising member states’ legislation.24 Article 5 of the EU Charter of Fundamental Rights25 states: “(1) No one shall be held in slavery or servitude. (2) No one shall be required to perform forced or compulsory labour. (3) Trafficking in human beings is prohibited.” The new 2011 EU Directive on preventing and combating trafficking in human beings and protecting its victims,26 to be transposed before 6 April 2013, replaces the earlier Council Framework Decision of 2002,27 which had required the adop-tion of a more holistic and contextual approach to human trafficking.28 The 2011 Directive focuses more on prevention than before.29 In addition, it refers to an

21) Article 27(1).22) The convention is wider in scope than the 2000 UNODC Palermo Protocol and covers both inter-nal and transnational trafficking, as well as trafficking that is unconnected to organised crime. All five examined states have ratified the convention (the latest was Hungary in April 2013). Status as of 15 August 2013 available online at: http://www.conventions.coe.int.23) Article 19 — Criminalisation of the use of services of a victim:Each Party shall consider adopting such legislative and other measures as may be necessary to estab-lish as criminal offences under its internal law, the use of services which are the object of exploita-tion as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings. The commentary notes that the aim of having regulated demand in a separate article is to under-line the importance of dealing with demand in order to prevent and fight trafficking itself. The aim of the measures that states choose should be “effective dissuasion”. Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report, Council of Europe Treaty Series No. 197, 2005, paras 108–110.24) See, e.g., S. Bressan, ‘Criminal Law against Human Trafficking within the EU: A Comparison of Approximated Legislation?’, 20 European Journal of Crime, Criminal Law and Criminal Justice (2012) 137–163.25) The EU Charter (2007/C 303/01) became binding when the Lisbon Treaty entered into force December 2009.26) 2011/36/EU.27) 2002/629/JHA.28) 2011/36/EU, adopted on 5 April 2011, and to be implemented by 6 April 2013. Although Denmark and the UK were excluded, the UK later opted to be bound by the Directive.29) The EU Commission’s Group of Experts on Trafficking in Human Beings uses the term “new generation prevention strategies” in moving from the earlier focus on the symptoms of trafficking to focusing on the causes. The strategy includes evaluating the effectiveness of adopted measures

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earlier Directive of 2009 requiring that States criminalise and provide sanctions when employers use the services of trafficked third-country nationals, knowing that they are trafficked.30 The new Directive suggests that Member States should consider imposing sanctions on employers who use any services of any trafficking victims, when they know that they are trafficked, and that this should also include buyers of sexual services. Those encompassed by the Directive are not only traf-ficked third-country nationals, but also legal residents and Union citizens.31 The focus on tackling demand to reduce trafficking has been part of the EU’s active work in supporting cooperation between Member states, as well as between Member States and third countries.32 In the latest published EU strategy, the Commission presented addressing demand as a key component of prevention and one of its prioritised areas.33

A new EU Directive on combating the sexual abuse and sexual exploitation of children and child pornography,34 has also been adopted, replacing the earlier

through, for example, analyses of consumer demand of disadvantaged and vulnerable groups, such as migrants and children, for the very reason that they are easier to exploit and avoid repercussions, such as prosecution. Opinion No. 7/2010, p. 12 et seq.30) 2009/52/EC, paras 22 and 24, Articles 9(1)(d) and 10.31) 2011/36/EU, para. 26, Article 18(4).32) See, e.g., the 2009 Action Oriented Paper (AOP) on strengthening the EU external dimension on action against trafficking in human beings: “The importance of tackling demand with a view to suc-cessfully preventing and combating THB should be underlined. In order to discourage demand as a root cause that fosters all forms of exploitation of persons and leads to THB, legislative or other measures, including educational, social, cultural, administrative measures, should be adopted or reinforced. Action should be taken to prevent and discourage the demand for sexual exploitation as well as for labour exploitation, particularly in sectors prone to exploitation such as agriculture, the building industry, the catering industry, the tourist industry and domestic work.” 11450/5/09/REV 5, Annex, p. 19. The demand dimension of THB is, nevertheless, not approached systematically within the EU. The Presidency Conclusions from the Conference “Towards a multidisciplinary approach to prevention of trafficking in human beings, prosecution of traffickers and protection of victims” [Brussels, 18–19 October 2010] reported that apart from victim-centred and crime control-centred preventive approaches, a “root cause-centred” approach (one that aims to improve condition in the country of origin) is also needed. Market or destination-centred approaches were not touched upon at all. 5725/11, Annex, p. 20.33) COM (2012) 286, EU Strategy towards the Eradication of Trafficking in Human Beings (2012-2016), 19 June 2012. The focus on demand as a “root cause” was recently underlined by the EU Trafficking Coordinator, Vassiliadou, Myria, at the European Commission. See Vassiliadou, supra fn. 3, pp. 5–6. The preceding Action Plan implementing the 2009 Stockholm Programme had held: “Trafficking in human beings, [and other grave crimes], should be tackled in a comprehensive way. More effective prosecution and conviction are as important as attending to the needs of the victims of these crimes and reducing the demand for services from potential victims.” COM (2010) 171, p. 6.34) Directive 2011/92/EU of 13 Dec. 2011 to be transposed by 18 Dec. 2013, although Denmark is excluded.

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Council Framework Decision of 2004.35 Under Article 4(7), engaging in sexual activities with a child in the context of prostitution should be punishable by a maximum term of imprisonment of between 2-5 years depending on the child’s age and the member state’s age of consent.36 Under Article 7(2), attempts to com-mit the actions listed should also be criminalised, and according to Article 17(4) states should ensure that they have jurisdiction without requiring double crimi-nality. There is thus a requirement on States to criminalise and prosecute pur-chases and attempted purchases of sexual acts from children, whatever the children’s origin or status in the country, and whether trafficked or not.

As outlined above, there are thus international obligations on European states to combat human trafficking by taking measures to reduce the demand that fos-ters exploitation, including sexual exploitation. There is no consensus among states to prohibit all sex purchases, but there is agreement on the need to combat sexual exploitation of children by criminalising the purchase of sexual acts from all individuals under 18. There are thus stricter requirements on states regarding the sex market arising from the child-centred approach than from the human traf-ficking approach. How have states legislated and responded to purchases of traf-ficked minors so far?

3. Combating Human Trafficking in National Legal Systems

3.1. Criminalisation of Human Trafficking

The analysis of the examined five countries shows that in the last two decades there has been a convergence between the legal regulations on human trafficking and child prostitution, mainly due to the influence of international law (in par-ticular, UN and COE Conventions) and harmonisation in the ambit of the European Union. There is an increasing awareness of the problems related to human trafficking and of the difficulties that law enforcement officers and prose-cutors meet in practice. However, European states still have diverging positions on prostitution and on the purchase of sexual services. A certain degree of harmonisation has been reached in relation to the criminalisation of human trafficking and child prostitution, but there are still significant differences in the definitions and the sanctions provided by the five states in the study, as well as in

35) 2004/68/JHA.36) According to the earlier Council Framework Decision Article 5(1) states were to ensure maxi-mum penalties of between one to three years, or, according to Article 5(2)(c), of five to ten years when the child was under the age of consent, and the perpetrator either had endangered the life of the child, the actions involved violence or caused serious harm to the child, or the offences commit-ted were connected to organised crime. Stronger sanctions are thus recommended in the new Directive, and for older children.

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the sentencing practice. In particular, liability rules concerning the perpetrator’s knowledge of the victim child’s age are not harmonised.37

A comparison of the five states’ regulations brings a number of eye-opening observations. The criminalisation of human trafficking constitutes an interna-tional obligation and is, at the same time, quite a new crime for four of the five states in the study (the exception being the Netherlands).38 In the UK39 and in Italy anti-trafficking legislation is contained in a number of instruments. In the UK specific trafficking crimes have been created in several laws, such as trafficking people for sexual exploitation40 and trafficking people for labour or other exploi-tation.41 In Italy the specific criminal offence of human trafficking replaced the outdated criminal offence of “slave trading” by modifying Article 601 of the Penal Code in 2003.42

This does not mean that these states were previously not able to prosecute traf-fickers. Traffickers could be prosecuted for smuggling of migrants, for example, if the trafficked persons were transported across a national border. This was the case in Italy, where the Immigration Act, adopted in 1998, punishes aiding and abetting of illegal immigration, which essentially corresponds to smuggling of migrants.43

37) See infra at IV.2.38) The first of these four to introduce the crime of human trafficking was Hungary in 1998 (with Article 43 of Act no. LXXXVII of 1998, as part of the fight against organised crime), followed by Sweden in 2002 (SFS 2002:436), and Italy in 2003 and the UK in 2003-2004. In the Netherlands human trafficking has been contained in Article 250a of the Penal Code since 1911. In Hungary, already in 1995 reference was made to human trafficking as an aggravating circumstance in two criminal offences: changing of family status and child endangerment (Article 193 and 195 of the old Penal Code). The two aggravating circumstances were introduced in order to comply with the 1989 UN Convention on the Rights of the Child (by Article 8 of Act no. XLI of 1995).39) The article refers to the UK, but an explanation is here required. As criminal matters fall within “devolved powers” (statutory powers given to the Parliaments of Northern Ireland, Scotland and Wales) each division may legislate in such matters. Border and immigration control are examples, however, of areas that fall within “reserved powers” (decisions remaining within UK responsibility, including N. Ireland and Scotland within its ambit). See A. Trench, Devolution and Power in the United Kingdom (Manchester: Manchester University Press, 2007). Some of the acts referred to in this section, such as the AIA (2004), encompass the UK, while others, such as the SOA (2003) do not. The unit more closely examined will be England and Wales (which uses the same legal system). Because of the internal jurisdictional division several of the sources referred to, such as Crown Prosecution documents, are relevant only for England and Wales. The article refers to the specific units (e.g., E and W) where relevant. In all other cases the UK is referred to as a whole.40) Sexual Offences Act (SOA) 2003, s. 57–59 (E, W and Northern Ireland), amended by the Protection of Freedoms Act (PFA) 2012 which inserted section 59A. See also Criminal Justice (Scotland) Act (CJA) 2003, s. 22 on “traffic in prostitution”.41) Asylum and Immigration Act (AIA) 2004, s. 4 as amended by section 110 of the PFA 2012.42) Act no. 228 of 11 August 2003.43) Article 12 of Legislative decree no. 286/98.

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It proved to be an especially effective tool to combat human trafficking, as another provision of the same Act (Article 18) granted a special stay permit for social pro-tection to victims of trafficking and exploitation.44 Before 1998 Italian prosecutors could use Article 600 of the Penal Code, which criminalised (and still criminal-ises) reduction to slavery, i.e. the result of trafficking and not the trafficking itself. They also frequently applied criminal offences related to prostitution, criminal-ised by an old special law called “Legge Merlin”.45 There have also been provisions criminalising child prostitution (Article 600-bis) and child pornography (Article 600-ter), both introduced in 1998, and until the 2003 reform the old criminal offence of slave trading (Article 601), but these do not cover acts of trafficking. The use of these provisions to combat human trafficking up until 2003 resulted in very heterogeneous practice. In the UK (E and W), common law has been the source of the crimes of kidnap and false imprisonment which were used when prosecuting human trafficking and related exploitation even before 2003.46 Similarly, the stat-utory offences of threats to kill,47 managing or assisting in the management of a brothel,48 and making or controlling a false instrument49 were already in force when the specific trafficking crimes were introduced. In any case, the available measures were not sufficient to cover all cases of human trafficking. The specific criminalisation of human trafficking makes it possible, for example, also to pros-ecute internal trafficking.50

3.2. National Definitions of Human Trafficking and the Palermo Protocol

As mentioned above, all five states in the study are parties to the Palermo Protocol (2000), which played a fundamental role in harmonising the definition of human

44) See more in Research based on case studies of victims of trafficking in human beings in 3 EU Member States, i.e. Belgium, Italy and The Netherlands (undated), Hippokrates JAI/2001/HIP/023, available online at: http://www.ec.europa.eu/jus-tice_home/daphnetoolkit/files/projects/2001_010/int_trafficking_case_studies_be_it_nl_hippokrates.pdf (accessed 5 August 2013), p. 133.45) Act no. 75 of 20 February 1958, which punishes, among others, anyone who recruits another person to carry out prostitution (Article 3(4)), and anyone who causes a person to travel into the territory of another state or in any other place other than his or her usual residence with the purpose of facilitating his or her prostitution (Article 3[6]).46) Crown Prosecution Service, Legal Guidance, available online at: http://www.cps.gov.uk/legal/ s_to_u/sentencing_manual/kid-napping_false_imprisonment/ (accessed 12 August 2013). The CPS is responsible for the prosecution of cases investigated by police in England and Wales.47) Offences Against the Person Act 1861, s. 16.48) SOA 1956, s. 33A.49) Forgery and Counterfeiting Act 1981, s. 1.50) None of the five states of the study include the requirement of an international component in their definition of human trafficking. Consequently, it can be applied to internal trafficking. See more in detail infra Sections 3.2 and 3.4.

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trafficking adopted by the different countries.51 Sweden, Italy and the UK crimi-nalised human trafficking after the Protocol’s adoption, while both the Netherlands and Hungary adapted their already existing definitions to its wording.52 Notwithstanding this, there remain significant differences.

The Swedish definition of trafficking includes exploitation for service in war and other activities that involve or create an emergency situation for the affected person; something not specified in the Palermo Protocol.53 Additionally, the Swedish law does not require a connection to organised crime, nor transporting someone across a national border. However, the preparatory works pose an addi-tional requirement of a “power relationship” that is not specified in the criminal legislation itself, and is one of the main reasons for the difficulty to convict for human trafficking.54 In the UK, as already specified above, the crime of human trafficking is split in two specific trafficking crimes: trafficking for sexual exploita-tion and trafficking for labour or other exploitation. Both require intentionally arranging or facilitating travel of another person into, within, or from the UK while intending or believing that an act prohibited under the law will be commit-ted against the person or this person will be exploited.55 But while the definition of trafficking for labour or other exploitation specifically mentions the use of means, there is no such component in the definition of trafficking for sexual exploitation.56

51) See supra fn. 9.52) Palermo Protocol Article 3(a): “Trafficking in persons” shall mean the recruitment, transporta-tion, 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 vulnerabil-ity 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 mini-mum, 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.53) See Swedish Penal Code 4:1a, section 2.54) The prosecutor must prove that the victim’s possibility of choice was absent and the perpetrator was in a superior position vis-à-vis the victim. Prop. 2009/10:152 pp. 15–16, 18–19; Människohandel och barnäktenskap - ett förstärkt straffrättsligt skydd mot människohandel (SOU 2008:41), p. 63. For appli-cation, see, e.g., Svea hovrätt, judgment of 10 October 2012 in case no. B 5309-12, p. 20; Hovrätten över Skåne och Blekinge, judgment of 26 March 2012 in case no. B 111-12, p. 8; Hovrätten för Västra Sveriges judgment of 21 September 2012 in case no. B 2827-12, p. 21.55) SOA 2003, s. 57-59 (E and W and N. Ireland), CJA 2003, s. 22 (Scotland), and AIA 2004, s. 4. The new section 59A(1) of the SOA, inserted in 2012 (see supra fn. 40), is similar, but adds that it concerns sexual exploitation. Exploitation includes treatment contrary to Article 4 of the ECHR, the removal of organs as well as exploitation by use of means outlined in Article 3 of the Palermo Protocol (section 4(4)(c-d): force, threats, deception, or abuse of vulnerability).56) The components required are taking a measure for a certain purpose. The means are instead aggravating factors to be taken into account at sentencing. See, e.g., Sentencing Guidelines Council

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In Italy, as already mentioned, the specific criminal offence of human traffick-ing replaced the outdated criminal offence of “slave trading” in 2003.57 The defini-tion of “trafficking” given by Article 601 of the Italian Penal Code corresponds to the definition found in Article 3 of the Palermo Protocol as regards the means, but not as regards the acts covered by it. The Protocol defines trafficking as “recruit-ment, transportation, transfer, harbouring or receipt of persons”, while the Italian Penal Code simply refers to inducing, through certain means, another person to enter or leave the territory of the state, to stay there or to move inside it. It means that internal trafficking is covered, but the Italian definition does not make any reference to recruitment or receipt of persons.58 Essentially, Italian law defines human trafficking as trafficking of enslaved persons (by referring to the criminal offence of reduction to slavery contained in the previous article)59 by the means provided for in the Palermo Protocol.60

The other two states involved in the study that already had the crime of human trafficking in their Penal Codes at the time of the Palermo Protocol’s adoption, however, amended their legislation in order to align more closely with the latter´s

(for England and Wales), Sexual Offences Act 2003, available online at: http://sentencingcouncil.judiciary.gov.uk/docs/web_SexualOffencesAct_2003.pdf (accessed 050813), p. 131.57) See supra Section 3.2.58) See also ECPAT International, [Italy] Country Progress Card 2010, available online at: http://www.ecpat.net/TBS/PDF/2010_Italy_Progress_Card.pdf (accessed 6 August 2013), p. 12.59) The criminal offence of reduction to slavery contained in Article 600 of the Penal Code was also modified in 2003. Before 2003 it simply referred to “reducing a person to slavery or to conditions analogous to slavery”, without giving a precise definition, causing interpretative problems. Now a clear definition can be found in the first paragraph of the article: “exerting on another person powers corresponding to ownership, placing or holding another person in conditions of continuing subjec-tion by forcing him or her into labour, sexual services or begging, or by exploiting him or her in any other way”. This new definition includes also the act of holding another person in slavery, which means maintaining the victim’s condition of slavery. Before 2003, judges made often reference to the definition offered by the 1926 Slavery Convention (signed at Geneva on 25 September 1926) and to the examples contained in the Supplementary Convention on the Abolition of Slavery (signed at Geneva on 7 September 1956). See, e.g., the judgments Corte di cassazione, Fifth Chamber, 24 January 1996, no. 2390, and Corte di cassazione, Fifth Chamber, 20 March 1990, no. 3909. See also Scheda sin-tetica della Legge n. 228/2003, available online at: http:// www.solideadonne.org/pdf/legislazione/scheda_legge_228_1998.pdf (accessed 6 August 2013), p. 7. Also the Italian Constitutional Court dealt with the problem and analysed thoroughly Article 600 of the Penal Code in order to find an interpre-tation compatible with the Constitution. See its decision no. 96 of 8 June 1981.60) Moreover, it seems that the Italian legislature has meant “human trafficking” as a necessarily organised activity, since there is a separate provision (Article 602) for those who commit single acts of buying, selling or ceding an enslaved person that do not amount to “trafficking”. See also M. Cartabia, E. Lamarque and F. Viganò, FRA Thematic Study on Child Trafficking. Italy, 2009, available online at: http://fra.europa.eu/sites/default/files/fra_uploads/515-Child-trafficking-09-country-it .pdf (accessed 6 August 2013), p. 3.

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definition. The original Dutch provision on human trafficking had been modified several times even earlier, inter alia in 1993,61 and was redrafted in 2005 to include additional forms of exploitation, such as labour exploitation.62 The latest changes to the article on human trafficking entered into force 1 July 2009. Today the long and detailed provision covers both cross-border and internal trafficking, and includes specific regulations on the trafficking of children.

In Hungary, the scope of the criminal offence of human trafficking was extended in 2002.63 A new Penal Code was adopted by the Hungarian Parliament in June 2012 which entered into force recently, on 1 July 2013.64 It is worth pointing out that the general definition of human trafficking, both in the old and the new Code,65 does not make reference to the means or purpose specified by Article 3(a) of the Palermo Protocol.66 Instead these means constitute aggravated circumstances, like in the case of the crime of trafficking for sexual exploitation in the UK. However, while in the English legislation the purpose of exploitation is a required component, the Hungarian Penal Code’s basic offence does not make reference to it. A novelty of the new Code is that the purpose of exploitation becomes an aggravating circumstance, and the legislature tries to give an abstract definition of the term ‘exploitation’ that is left open to interpretation in the Palermo Protocol.67 According to the new interpretative provision exploitation is “abusing the defenceless situation of a person for the purpose of gaining benefits”.68

61) J. Outshoorn, Pragmatism in the polder: Changing prostitution policy in the Netherlands, 12 Journal of Contemporary European Studies (2004) 165–176, at p. 170.62) Article 273f of the Dutch Penal Code.63) Article 21 of Act no. CXXI of 2001.64) The old Penal Code was Act no. IV of 1978, the new Code is Act no. C of 2012.65) Human trafficking is defined by Article 175/B(1) in the old Code and by Article 192(1) in the new Code.66) Both the old and the new Hungarian Penal Codes define human trafficking as: (1) sale and purchase for money or other consideration, (2) exchange for another person, or, for these purposes, (3) recruitment, (4) transportation, (5) harbouring, (6) concealment and (7) acquiring for others of a person. In the drafting of the new Penal Code also the new EU Directive (2011/36/EU) played an important role. The explanatory notes attached to the bill state explicitly that the definition pro-vided by the Directive, which however takes up the definition of the Palermo Protocol, was trans-posed into Hungarian law as an aggravated crime of human trafficking. See Legislative proposal no. T/6958 of the Hungarian Government, presented in Parliament in April 2011, available online at: http://www.parlament.hu/irom39/06958/06958.pdf (accessed 15 August 2013).67) Article 3(a) of the Palermo Protocol gives examples but no definition. It specifies sexual exploita-tion and the exploitation of prostitution, forced labour or services, slavery or practices similar to slavery, servitude and the removal of organs.68) See Article 192(8) of the new Code. The explanatory notes explain that in the meaning of the provision a benefit is not necessarily an economic benefit, but it can be any other kind of advantage obtained by exploiting the victim. See Legislative proposal no. T/6958 (fn. 66), at p. 316. In the old

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Moreover, it is important to note that the Hungarian definition covers a much more restricted range of cases than the Palermo Protocol, as it requires the sale or the exchange for another person of the trafficked person, or at least this purpose. It means that one cannot be convicted for human trafficking if the sale or exchange or the intent to commit either of these is not proven.69 It is a unique solution among the states involved in the study. No other state requires sale or exchange of a person as a component of the crime of human trafficking.70 Thus, we can say that the definition provided by the Hungarian Penal Code is both broader and more restrictive than the one contained in the Protocol. It does not make refer-ence to the means or the purpose of trafficking in the basic offence, but it requires the sale or exchange for another person of the victim, which is the main reason behind the low number of convictions.71

Even the newly introduced criminal offences have been subject to several sub-stantial modifications, aiming to offer remedy for shortcomings that developed in their application. In Sweden substantial changes were made both in 2004 and 2010 in order to cover internal trafficking and to combat all forms of trafficking pur-poses more effectively.72 In the UK (England, Wales and Northern Ireland) the Sexual Offences Act 2003 and Asylum and Immigration Act 2004 (AIA) were recently amended by the adoption of the Protection of Freedoms Act 2012.73

Code there is no reference to exploitation in general, but the purposes of labour and sexual exploita-tion are listed among the aggravating factors (Article 175/B(2)(c)–(d)).69) U.S. Department of State, Trafficking in Persons Report 2012, pp. 183-184, available online at: http://www.state.gov/j/tip/rls/tiprpt/2012/index.htm (accessed 6 August 2013). See more infra Section 3.3.70) In Italy, even if it is not required by the basic offence of trafficking in human beings, it constitutes a special criminal offence set out in Article 602 of the Penal Code (“buying and selling of slaves”).71) See also infra Section 3.3, in particular fn. 97.72) See SFS 2004:406 and SFS 2010:371. In 2004 the requirement of an international component was removed. Trafficking was also explanded to include exploitation for other than sexual purposes. In 2005 the crime of gross procurement (“Grovt koppleri” — Penal Code 6:12, section 3) was adjusted in order to provide a catch-all for trafficking-like acts (SFS 2005:90; prop. 2004/05:45 at p. 107 et seq. [preparatory work]) However, gross procurement covers only post-trafficking exploitation for sexual purposes and not trafficking itself. The crime of trafficking does not require that the exploitation takes place. Gross procurement does not either cover other forms of exploitation, such as forced labour. Thus further changes were highly necessary in order to combat all forms of trafficking purposes — not only for sexual exploitation — more effectively. In 2010 the tenets of the crime of human trafficking were altered in order to correspond more closely to the wording in Article 3 of the Palermo Protocol.73) See supra fn. 46. A bill (Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill (HL Bill 15)) is presently being discussed in the UK Parliament that would bring the crime of trafficking more in line with the Palermo Protocol, and add to the protection of victims, available online at: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0015/lbill_2012 -20130015_en_1.htm (accessed 6 August 2013).

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In conclusion, even if the legal regulations on human trafficking have con-verged due to the influence of international law and EU law, national definitions still differ considerably, which brings significant differences in practice. Moreover, the phenomenon of human trafficking is dealt with by a complex network of crim-inal offences and applicable sanctions which brings greater protection as well as inconsistencies in practice within the same jurisdiction. The Italian Penal Code, for example, still provides for four criminal offences related to this phenomenon,74 and the crimes set out in the Immigration Act and in the “Legge Merlin” have also remained in force, without major changes. 75 English prosecutors can choose from different crimes when prosecuting human trafficking and related exploitation, which widens the scope of protection for closely related exploitation that would not be covered by the crime of trafficking.76 However, in Sweden the use of alter-native crimes has not widened protection but is due to the difficulties to convict for the crime of human trafficking. It has shifted the focus towards exploitation rather than the process of trafficking that precedes it.77 Similarly, in Hungary pros-ecutors often rely on other trafficking related crimes to prosecute human traffick-ing cases.78

3.3. Sanctions and Sentencing

The differences in how the examined states deal with the phenomenon of human trafficking are not limited to the definitions, whether they make reference to means or to purpose and in case to which ones. There are also significant diver-gences in the applicable sanctions, partially due to the fact that the aggravating

74) Reduction to slavery (Article 600), trafficking in human beings (Article 601), buying and selling of slaves (Article 602) and organised criminal groups acting with the aim of committing the crimes set out in Articles 600–602 of the Penal Code and in Article 12(3-bis) of the Immigration Act (Article 416[6]). However, the application of Article 416(6) does not exclude prosecution for the crimes which constituted the aim of the organisation. According to established case-law they can be applied cumulatively. See C. Negri, La tutela penale contro la tratta di persone, in: G. Tinebra and A. Centonze (eds.), Il traffico internazionale di persone (Milan: Giuffrè, 2004), p. 215 et seq., at pp. 234–235.75) Even if in the Immigration Act the sanctions were increased and new aggravating circumstances were introduced in 2009. Act no. 94 of 15 July 2009 that entered into force on 8 August 2009. Today Article 12 is an especially long provision, composed of 27 paragraphs, regulating in detail not only the offences and their sanctions, but also the powers of the law enforcement authorities in relation to trafficking in migrants and the duties of private carriers.76) See supra at III.1, in particular fn. 46–50.77) With regard to sexual exploitation many are prosecuted for aggravated procurement rather than trafficking. However, there is insufficient criminalisation of other forms of exploitation, such as forced labour, that could be used instead of the crime of trafficking.78) Such as smuggling of migrants. See infra Section 3.3, fn. 96.

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circumstances vary between national legislation. Table 1 presents the applicable sanctions for the basic offence of human trafficking, for internal trafficking and for child trafficking:

As shown in Table  1, the levels of punishment differ considerably in the five states. The same is true for the sentencing practice. The UK (E and W and N.I.) and Italy apply the harshest level of punishment for the basic offence (maximum 14 and 20 years, respectively), while in Hungary the applicable sanctions are differen-tiated and graded according to the seriousness of the aggravating circumstances, ranging between a minimum of maximum 3 years of imprisonment and life sen-tence. The Netherlands is considering increasing the maximum sentence to twelve years.79

Though fines are a possible punishment at conviction both in the UK and in the Netherlands, the official guidelines advocate a custodial sentence in both

Table 1. Applicable sanctions for the basic offence of human trafficking, for internal trafficking and for child trafficking.

Sweden UK (E, W and N.I.) Netherlands Hungary Italy

Human trafficking

2–10 years less serious: max. 4 years

indictment: max. 14 years (guidelines: min. 2 years, coercion: min. 6 years) summary: max. 1 year

max. 8 years + fifth category fine (max. 74 000 euros)

max. 3 years for purpose of exploitation: 1–5 years + numerous aggravating circumstances up to life sentence

8 to 20 years aggravated: increased by one-third to half

Intra-state included above

indictment: max. 14 years summary: max. 6 month

included above

included above

included above

Of children not specified aggravating factor moving sentences towards the max. 14 years

(under 16) max. 12 years

(only if for exploitation) min. 5–10 years, up to life sentence

8 to 20 years increased by one-third to half

79) http://www.government.nl/documents-and-publications/press-releases/2012/02/29/maximum -punishment-for-human-trafficking-to-be-increased.html (accessed 8 August 2013).

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countries.80 In the UK (E and W), the victimisation of a child is an aggravating factor, and the guidelines state that such aggravating factors as using the vulnera-bility of a victim should move sentences towards the maximum of 14 years. If a number of children are victimised, the sentences may be decided to run con-secutively, which lead to cumulative sentences higher than the starting point for each individual offence.81 In the Netherlands, the 2010 Guidelines for prose-cutors  on sentencing advocate 12–24 months of imprisonment for exploitation of a person for a period between one day and six months if there are no aggravating circumstances.82 For exploitation longer than 12 months, the Guidelines suggest imprisonment for 36–48 months.83 Though sentencing to imprisonment in the Netherlands increased over the years, in 2007 and 2008 six and seven per cent respectively of sentences for aggravated human trafficking led to conditional sentences or community service.84 In only 56% of convictions unconditional cus-todial sentences were imposed.85

Swedish, Dutch and Hungarian legislation are not yet in line with the 2011 EU Directive’s requirement that the trafficking of a child under 18 should involve a maximum penalty of at least 10 years of imprisonment,86 as is also required by the 2005 COE Convention against Trafficking in Human Beings.87 In Sweden, the fact that the victim is a child can be considered to be an aggravating circumstance and may result in a higher sentence, but such a determination depends upon the court

80) The sentencing guidelines for the SOA 2003 for E and W state that the starting point for sentenc-ing should be a custodial sentence. See Sentencing Guidelines Council, Sexual Offences Act 2003 (fn. 56), p. 130 et seq. According to the guidelines, where a victim was coerced the starting point is six years custody for involvement at any level of trafficking, and two years custody in cases where a victim was not coerced. See id., p. 131.81) See Sentencing Guidelines Council, Sexual Offences Act 2003 (fn. 56), p. 130.82) Human trafficking as a crime does not require that the intended exploitation comes to pass — only that there was intent to exploit for one of the purposes listed. Thus, if the authorities stop the trafficker and the intended victim before the exploitation begins, there can still be prosecution for human trafficking. It is, of course, easier to prove the intention to exploit if the exploitation has begun to take place.83) Richtlijn voor strafvordering mensenhandel in de zin van seksuele uitbuiting (Article 273f Sr) (2010R007), available online at: http://www.om.nl/onderwerpen/mensenhandel_en/@155132/ richtlijn (accessed 060813).84) Eighth report of the DNRT (2010) (fn. 3), p. 208–209.85) Ninth report of the National Rapporteur on Trafficking in Human Beings, Trafficking in Human Beings: Visible and Invisible. A Quantitative Report 2007-2011 (BNRM, The Hague, 2013), p. 84.86) Directive 2011/36/EU, Article 4(2)(a).87) Article 24(b) requires that the trafficking of persons under 18 should always be seen as an aggra-vating circumstance. Entry into force: The Netherlands on 1 August 2010; Sweden on 1 September 2010; and Hungary on 1 August 2013.

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in each case.88 Thus Sweden does not yet “ensure” in its legislation that when determining the penalty for human trafficking, the trafficking of a child is treated as an aggravating circumstance. Dutch legislation, on the other hand, applies the aggravating circumstance of child trafficking only if the child is under 16 years of age. Thus trafficking of a 17-year old child does not explicitly fall within the scope of aggravating circumstances. However, according to the 2010 Guidelines for pros-ecutors on sentencing, the sexual exploitation of a 16–17-year old should be treated as an aggravating circumstance.89 In Hungary, many of the aggravating circum-stances, among them trafficking of children, are based not on the basic offence of human trafficking (punishable with maximum 3 years of imprisonment) but on its aggravated case which requires the purpose of exploitation (punishable with one to five years in prison).90 Thus, trafficking of children is an aggravated case of human trafficking only if committed for the purpose of exploitation; otherwise it falls within the ambit of the basic offence. This shortcoming is probably attribut-able to an oversight of the legislature that decided to apply cross-references within the long and complex provision on human trafficking.91

The number of prosecutions and convictions for human trafficking also vary considerably among the five examined states. This is due to several factors. First, the position of these countries in the international criminal network of human trafficking differs. Second, the size of the five states’ population also varies consid-erably. It is obvious that Italy, with its nearly 60 million inhabitants, will deal with more court cases than Sweden, with its 9 million inhabitants. Third, the complex network of applicable criminal offences also influences the sentencing practice. This may explain why only eight persons were convicted of trafficking in human beings in the UK (E and W) in 2011,92 while in the Netherlands an average of 200

88) Penal Code 29: 1–2. Age is not specified as an aggravating circumstance. However, the text lists the use of the vulnerable position of another person or that they had special difficulties in defending themselves as aggravating factors, and these could encompass children.89) Richtlijn voor strafvordering mensenhandel in de zin van seksuele uitbuiting (fn. 83).90) See also supra Section 3.2. A maximum penalty of at least five years in prison is the penalty level required by Article 4(1) of Directive 2011/36/EU. Moreover, in the Hungarian Penal Code there is a specified difference regarding the sentence length and the different ages of children. If the child is under 18, the punishment is minimum 5 to 10 years in prison (if no other aggravating circumstances apply). If she is under 14, it is minimum 5 to 15 years (if no other aggravating circumstances apply). In the case of children under 14 the punishment can reach life imprisonment (in case of more appli-cable aggravating circumstances), while in the case of children under 18 it never exceeds 15 years. See Article 192 of the Penal Code.91) Article 192(4)(a) refers back explicitly to par. 2 of the same article which contains the aggravated case of human trafficking for the purpose of exploitation and not to par. 1 that sets out the basic offence.92) Secretary of State for Justice answer to Parliamentary questions, Column 917W on 19 June 2012, available online at: http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120619/

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cases have been investigated each year since 2006. Out of these cases, 75% are prosecuted, and slightly over half have led to convictions,93 which means approx. 70–80 convictions a year. One must pay attention also to the statistical technique used by the single countries or organisations. The statistics may refer to the number of perpetrators (in the UK) or victims or the number of cases (the Dutch example),94 and may take into consideration the number of investigations, con-victions or both. The number of prosecutions for human trafficking is very low also in Hungary: on average not more than 20–30 cases a year.95 This is in part due to the fact that Hungary is first of all a transit country in the international network of traffickers. It is difficult to prove the crime if the traffickers are caught at the border before the exploitation takes place, which will mostly take place in the country of destination. Consequently, many cases of trafficking are dealt with as smuggling of migrants.96 The very strict evidentiary requirements related to the Hungarian Penal Code’s definition of human trafficking also reduce the number of prosecutions.97 Thus, prosecutors often rely on other trafficking-related crimes to prosecute human trafficking cases, as is the case also in Sweden. Finally, another

text/120619w0003.htm/ (accessed 12 August 2013). According to UKHTC, 2077 potential victims in the UK (England, Wales, Northern Ireland and Scotland) were identified during 2011. See UKHTC: A Baseline Assessment on the Nature and Scale of Human Trafficking in 2011, p. 4, at www.soca.gov.uk/about-soca/about-the-ukhtc/national-referral-mechanism/statistics (accessed 6 August 2013).93) DNRT report from 2012: Kwantitatieve gegevens over (de vervolging en berechting van) ver-dachten en veroordeelden in mensenhandelzaken in de periode 2006–2010, available online at: http://www.bnrm.nl (accessed 14 August 2012). See also Ninth report of the DNRT (2013) (fn. 85), pp. 82–86.94) A case can involve several victims and/or perpetrators.95) Between 2001–2005 there were 137 cases of human trafficking examined by the Hungarian authorities. See L. Fehér (ed.), Nemzetközi emberkereskedelem [International human trafficking] (Budapest: Témavezető, 2008, at pp. 174–175 and 257. In 2008–2010, according to Eurostat data, 70 persons were convicted for human trafficking in Hungary, which shows the same annual average. See Eurostat, Trafficking in human beings, Luxembourg, 2013, available online at: http://www.ec .europa.eu/anti-trafficking/ (accessed 15 August 2013), p. 84.96) Between 2000 and 2007 there were 282 cases of human trafficking and related violation of per-sonal liberty investigated by the Hungarian police, while 22 784 cases of smuggling of migrants. Source: ERÜBS (United Police and Prosecution Criminal Statistics), cited in Fehér (fn. 95), at p. 167 and 260.97) In particular, as already explained above (see supra Section 3.2), prosecutors have to prove that the victim was bought or sold (even if not necessarily for money), or exchanged for another person. There were cases of defendants convicted for human trafficking who sold or bought a person for a car, a television or the cancellation of debt. Moreover, the sale does not have to be necessarily a valid contract from the point of view of private law. The private law definition of sale is not applied by the criminal courts to cases of human trafficking. See Z. Hrabovszki and A. Kenéz, The Hungarian Judicial Practice Against the Offence of Trafficking in Human Being, National Report for the OSCE, 2007, available online at: http://www.osce.org/cthb/25184 (accessed 6 August 2013), p. 9 et seq.

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reason for the low number of prosecutions, common to several other offences related to organised crime, is the high rate of cases that never reach the authorities due to lack of trust by the victims in the authorities and fear of retaliation.98 In Italy, according to the UNODC Global Report, 594 persons were arrested between 2004 and 2007 for the new criminal offence of human trafficking,99 and between September 2003 and the end of 2007 prosecutions were initiated against 972 per-sons. However, these numbers can be misleading as the same offenders might have been prosecuted for multiple charges simultaneously.100 Moreover, the crim-inal offence of reduction to slavery101 was used much more frequently in the same period: between 2003 and 2007, prosecutions were initiated for this crime against 2119 persons, which is double that of prosecutions for human trafficking.102

3.4. Child Trafficking

As regards child trafficking, when statistics are available they show that a consid-erable part of human trafficking involves children. It is estimated that 300 children are trafficked in the UK each year.103 In the Netherlands, at least 16% of cases

98) See Fehér (fn. 95), p. 175. This observation can be easily extended to several other countries as well.99) The numbers are based on data obtained from the Italian Direzione Centrale Polizia Criminale.

See UNODC, Global Report on Trafficking in Persons, 2009, available online at: http://www.unodc .org/documents/Global_Report_on_TIP.pdf (accessed 6 August 2013), p. 258.100) Most of the prosecuted persons were Romanian (217), Italian (203), Albanian (176) and Nigerian (144). Source: National Anti-mafia Bureau. See UNODC, Global Report (fn. 99), p. 258. According to the Report of an ad hoc parliamentary committee prepared in 2009, in 2006 323 and in 2007 278 persons were reported to the authorities for the crime of human trafficking. See Comitato Parlamentare per la Sicurezza della Repubblica, Relazione. La tratta degli esseri umani e le sue impli-cazioni per la sicurezza della Repubblica, Doc. XXXIV n. 2, 29 April 2009, available online at: http://www.parlamento.it/ (accessed 6 August 2013), p. 29.101) Article 600 of the Italian Penal Code.102) Source: National Anti-mafia Bureau. See UNODC, Global Report (fn. 99), p. 259. The numbers reported by the 2009 Report of the ad hoc parliamentary committee show the same difference. See Comitato Parlamentare per la Sicurezza della Repubblica (fn. 100), p. 29. Among the criminal offences related to human trafficking contained in the Italian Penal Code (see supra fn. 74) the most rarely used one is Article 602 (slave trading). In the referred period only 268 persons were charged with this offence. Source: National Anti-mafia Bureau. See UNODC, Global Report (fn. 99), p. 259. The new offence of human trafficking set out in Article 601 offers the basis for around 25-30% of the prosecutions initiated for the crimes provided for in articles 600, 601 and 602. See ECPAT International, Sex Trafficking of Children in Italy, available online at: http://www.ecpat.net/EI/Publications/Trafficking/Factsheet_Italy.pdf (accessed 6 August 2013), p. 3. Regarding the crime in the Immigration Act (aiding and abetting of illegal immigration), it was applied to 3953 persons between 2007-2008. See Comitato Parlamentare per la Sicurezza della Repubblica (fn. 100), p. 30.103) 202 children were identified as trafficked between January and September 2011. 53 of the chil-dren were trafficked for sexual purposes; 56 for labour exploitation; 23 for domestic servitude; 53 for

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registered at the Prosecutor’s Office have involved children younger than 18 years.104 In Hungary, the proportion of children among victims seems to be even higher: more than a quarter are minors, mostly between 14 and 17 years of age.105 The perpetrators are fully aware of the victim’s age in almost every case, and try to conceal it by providing them with false documents.106

The Netherlands is the only country in the study that has specific criminalisa-tion on child trafficking.107 In Sweden convictions are facilitated, however, where children are involved, as prosecutors do not have to prove that any means were used — in line with Article 3(c) of the Palermo Protocol. It is sufficient to show that an action, such as recruitment, was taken for the purpose of one of the types of exploitation, such as sexual exploitation.108 Nevertheless, as in Hungary, 109 prosecutors need to prove that a suspect knew that the child victim was not yet 18 years old.110 As seen above, the UK (E and W), Netherlands, Italy and Hungary treat the trafficking of a child as an aggravating circumstance, while in Sweden it

benefit fraud; and 36 for various types of criminal exploitation. See Child Trafficking Update October 2011 by The Child Exploitation and Online Protection Centre (CEOP), available online at: http://www.ceop.police.uk/Documents/ceopdocs/child_trafficking_update_2011.pdf (accessed 2 January 2013), p. 6, 11. Between October and December 2011 98 children were referred to the NRM. Possible trafficking for labour exploitation concerned 37 children, sexual exploitation 29 children, and domestic servitude 19 children. See Serious Organised Crime Agency Intelligence Report of May 2012, available online at: http://www.soca.gov.uk/about-soca/library/doc_download/387-nrm-statis-tics-october-to-december-2011.pdf (accessed 2 January 2013), p. 11 et seq.104) DNRT report from 2012 (fn. 93).105) See Fehér (fn. 95), p. 257. A study by two Hungarian criminal judges reports an even higher rate of child victims. In the 17 cases examined more than half of the victims were minors. See Hrabovszki and Kenéz (fn. 97), p. 9.106) See Fehér (fn. 95), p. 256 et seq. In order to be held responsible for child trafficking, which is an aggravated case of human trafficking, the perpetrator must be aware of the fact that the victim is younger than 18. See Hrabovszki and Kenéz (fn. 97), p. 9. So it seems that there has to be some evi-dence that the trafficker had knowledge of the victim’s age.107) Article 273f of the Dutch Criminal Code. 1. Any person who: 8) wilfully profits from the sexual acts of another person with or for a third party for remuneration or the removal of that person’s organs for remuneration, when this other person has not yet reached the age of eighteen years; […] shall be guilty of trafficking in human beings and as such liable to a term of imprisonment not exceeding eight years and a fifth category fine, or either of these penalties. DNRT unofficial transla-tion available online at: http://www.dutchrapporteur.nl/legislation/ (accessed 8 August 2013).108) Penal Code 4: 1a, section 2.109) See Hrabovszki and Kenéz (fn. 97), p. 9 et seq.110) Prosecutors must show that the suspect had intent (dolus) regarding the victim’s young age, in line with article 1:2, s. 1 of the Swedish Criminal Code. For an overview on the application in prac-tice, see M. Johansson, ‘Att göra ett ansvarigt sexköp: uppsåts- och oaktsamhetsbedömningar vid underårighet i fall av människohandel, koppleri och sexköp’, Svensk juristtidning (2012) 219–257, at 222-223.

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is possible, though not required, to consider the victim’s age when meting out the sentence.

What might be the most interesting development to note is the application of domestic trafficking legislation to children. Even though all countries in the study have criminalised domestic trafficking, some countries, such as Sweden, have no convictions yet. In 2010 a Swedish first instance court held that the prostitution of a 14-year-old constituted gross procurement rather than human trafficking as “she seemed to have voluntarily followed [the suspect] and when she was in the apart-ment she was able to move around freely”.111 Though the court recognised that the child was young, intellectually underdeveloped, and, at the time, intoxicated and had possibly been using drugs, it found that she was not under sufficient control to qualify the actions taken against her as human trafficking.112 In a judgment from 2008 a first instance court found that because a man who had prostituted his intellectually underdeveloped girlfriend over 100 times had not begun to prosti-tute her immediately after she moved into his apartment, there was insufficient support for the argument that his original motive when he allowed her to follow him home was to exploit her.113 Thus there was no immediate and evident connec-tion between the actions taken and the purpose of exploitation.

Other countries, such as the Netherlands and the UK (E and W), have inter-preted their legislation on domestic trafficking extensively.114 Both countries view the introduction of a minor into prostitution as human trafficking,115 and thus have large numbers of national trafficking victims and sentences for domestic trafficking that concern sexual exploitation of minors. In 2011, more than 43 UK

111) Malmö tingsrätt, case no. B 5513-10 (2 November 2010), p. 60 (author’s own interpretation).112) Ibid. The appellate court reduced the sentence to three months imprisonment for procurement Hovrätten över Skåne och Blekinge, case no. B 2917-10 (18 February 2011). Although the “control” requirement that was applied by the court has since been removed from the crime of human traf-ficking, the courts’ understanding of the kind of influence and measures that are covered by article 4 of the Palermo Protocol is limited. See fn. 60.113) Attunda tingsrätt, case no. B 886-07 (11 July 2008). The man was also convicted for procuring other women.114) Section 58 of SOA 2003 covers the situation when someone intentionally arranges or facilitates travel within the UK and plans to do anything to the person that is a “relevant offence” or knows that someone else will commit such an act. The term “relevant offence” is defined under section 60(1) SOA 2003 as: (i) an offence under Part 1 of the Sexual Offences Act 2003; (ii) an offence under Section 1(1)(a) of the Protection of Children Act 1978; (iii) anything done outside England, Wales and Northern Ireland which would be an offence if done in England, Wales or Northern Ireland.115) Trafficking in Human Beings. Fifth Report of the Dutch National Rapporteur, 2007, p. 67; CPS Policy for Prosecuting Cases of Human Trafficking, 2011 (for E and W), available online at: http://www .cps.gov.uk/publications/docs/policy_for_prosecuting_cases_of_human_trafficking.pdf  (accessed 15 August 2013), p. 21 et seq.

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minors were identified as trafficked within the UK for sexual exploitation,116 and for the last few years the majority of identified trafficking victims in the Netherlands,117 as well as underage trafficking victims, have been Dutch citizens.118 Thus what in other countries might be prosecuted as procuring of minors is often prosecuted as human trafficking. It should be noted that the UK (E and W) focus in domestic trafficking is on gangs,119 and in the Netherlands, on “lover boys”,120 as those recruiting into prostitution by various seduction techniques often are called.

4. National Regulation of the Use of Sexual Services

4.1. Criminalisation of Purchase of Sexual Services from Trafficked Persons

While there has been clear convergence between the legal regulations on human trafficking and child prostitution, as regards purchase of sexual services there is still a wide spectrum of solutions applied by national legislatures in Europe. This is mainly due to the fact that regulation of prostitution in general is a field closely associated with state sovereignty, and states are free to choose their criminal poli-cies. The five states in our study represent five different approaches to prostitution and, in particular, to the purchase of sexual services.121 Table 2 summarises which acts related to sexual services are criminalised in the examined countries:

As Table 2 shows, only purchasing sexual acts from a child is criminalised in all five states. The criminalisation of purchase of sex from children is required by

116) UKHTC: A Baseline Assessment on the Nature and Scale of Human Trafficking in 2011 (fn. 92), p. 4. 15 British children were identified as trafficked within the UK in 2011. See Child Exploitation and Online Protection Centre, Child Trafficking Update, October 2011, available online at: http://www .ceop.police.uk/Documents/ceopdocs/child_trafficking_update_2011.pdf (accessed 120813), p. 11.117) 2010: 315 Dutch victims; 2009: 240; 2008: 320. Figures from CoMensha (The Coordination Centre for Human Trafficking) Annual Report 2010, available online at: http://www.mensenhandel.nl/cms/docs/comenshajaarverslag-2010.pdf (accessed 12 August 2013), p. 8. CoMensha is responsible for keeping the national register of trafficked persons.118) 130 out of 195 underage victims in 2011 were Dutch. Ninth report of the DNRT (2013) (fn. 85), p. 42.119) CPS Policy for Prosecuting Cases of Human Trafficking (fn. 115), p. 21 et seq.: “Internal trafficking is characterised by the recruitment, grooming, or other forms of coercion of young girls or boys lead-ing to sexual exploitation by organised crime gangs in the UK. […] It often involves coercion by an individual who is older or more powerful than the victim and can range from swapping food, drugs, alcohol or cigarettes for sexual favours. They may be sexually abused before being taken to other towns, cities and venues where the sexual exploitation continues.”120) Eighth report of the DNRT (2010) (fn. 3), pp. 95 and 132–133.121) See also supra Section 1.2.

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international law and EU law, as already explained above.122 However, while the 2005 COE Convention on Action Against Trafficking in Human Beings (ratified by all five states involved in our study)123 requires states to consider criminalising use of services of a trafficked person as well, whether minors or not,124 only Sweden and the UK (England, Wales and Northern Ireland) followed this recommenda-tion, though limited to the use of sexual services and not other kinds of services (e.g., labour). Among the examined states only Sweden has prohibited the purchase of sexual services in general,125 as well as purchase from a child.126 Still there is no general prohibition on using the services of trafficked persons in Swedish law.127 While in Sweden purchase of sexual services from anybody,

Table 2. Acts related to sexual services that are criminalised in the examined countries.

Sweden UK Netherlands Hungary Italy

General prohibition on purchasing sexual services

YES NO NO NO NO

Prohibition on purchasing sexual services from a child

YES YES YES YES YES

Prohibition on purchasing sexual services from a trafficked person

not specifically (an aggravating circumstance at purchase of sexual service)

YES (E, W and N.I.)

NO NO NO

Procuring children YES (general prohibition on procurement)

YES YES (internal trafficking)

YES YES

Prostitution in public place

NO YES YES YES (admin. infraction)

NO

122) See supra Section 2, and more in detail infra Section 4.2.123) See supra fn. 28.124) See Article 19 of the 2005 COE Convention on Action Against Trafficking in Human Beings (CETS 197), available online at: http://www.conventions.coe.int.125) ”Köp av sexuell tjänst” — Penal Code 6:11.126) ”Köp av sexuell handling av barn” — Penal Code 6:9.127) Usury (“ocker” — Penal Code 9:5) might be considered the exception. In Swedish law the crime of usury involves taking advantage of a person’s difficult circumstances, imprudence or

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whether trafficked or not, constitutes a crime, in the UK there is, in addition to the crime of paying for the sexual services of a child,128 the crime of paying for the sexual services of a prostitute subjected to force or exploitation.129 The latter crime covers victims of trafficking. It is thus not a criminal offence to purchase sexual acts in other situations in the UK, though solicitation is an offence.130

If we examine the sentencing practice, however, it can be noted that so far there have been no recorded prison sentences for the purchase of sexual services either in Sweden or in the UK. In Sweden, though important resources have been made available in order to combat human trafficking, procuring (pimping) and sex pur-chasing, the legal consequences of having purchased are relatively mild. In most cases, the suspects confess and summary judgments are meted out.131 Cases are brought to court where there is no confession but sufficient evidence to prosecute, or where the prosecutor decides to continue the case, for example in order to bring charges in the same trial as prosecution for human trafficking. In both the situation of summary judgment and of trial the most common sentence is a fine.132 Even if the maximum sentence for having purchased sexual services was increased in 2011 from an earlier maximum of six months imprisonment to one year,133 so far there are no recorded prison sentences for this crime, as Swedish

dependence in order to gain something that is not in proportion to the payment given. Sweden is most likely in contravention of its obligations under the ILO Convention on Forced Labour No. 29 (1930) for not criminalising the use of forced labour. Moreover, unlike many other countries where purchasing is also a crime, Sweden does not criminalise the sale of sexual services. It is the procurer and the purchaser, not the seller, who risk prosecution.128) SOA 2003, s. 47 (E and W and N.I). Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s. 9.129) SOA 2003, s. 53A (E and W and N.I). Inserted by the Policing and Crime Act (PCA) 2009, s. 14 (SI 2010/507) with entry into force on 1 April 2010. This crime consists of three components: (1) mak-ing or promising payment for the sexual services of a prostitute, (2) the prostitute has been subjected to exploitative conduct likely to induce or encourage him/her to provide the sexual service, (3) the exploitative conduct was engaged in for the purpose of gain. There is no requirement to prove that the defendant was aware or should have suspected the background of the exploitative conduct; it is enough to have made or promised payment for the sexual service. There is thus strict liability regard-ing the exploitative background. See Explanatory notes to the PCA 2009, available online at: http://www.legislation.gov.uk/ukpga/2009/26/contents (accessed 8 August 2013), paras 71–72. This low threshold of responsibility is countered by restrictions on the sentence: a conviction can only lead to fines — not prison. See SOA 2003, s. 53A (4).130) Section  51a Sexual Offences Act 2003 — liable to a fine on summary conviction. See also Prostitution (Public Places) (Scotland) Act 2007 - liable to arrest without warrant (s. 2).131) Förbud mot köp av sexuell tjänst: En utvärdering 1999-2008 (SOU 2010:49), p. 201 et seq.132) Statistics from the Swedish National Council for Crime Prevention (Brottsförebyggande Rådet), available online at: http://www.bra.se.133) The legislature motivated the change by calling for use of a greater range in sentencing, request-ing factors such as mental disability or drug intoxication of sellers, their capacity only to speak a

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sentencing practice is that the lower level of a sentencing scale should generally be used and that prison is the gravest penalty that should be meted out with restriction.134 According to statistics there were 402 decisions involving the pur-chase of sexual services in 2010, and of these 326 led to fines (ca 260 summary judgments and ca 60 court judgments).135 The average sentence has been the pay-ment of a fine equivalent to 50 days of the convicted person’s salary.136

In the UK, The Home Office Human Trafficking Strategy of 2011 referred to the criminalisation in England, Wales and Northern Ireland of paying for sexual ser-vices of a person subjected to force or exploitation, and stated that tackling demand was a “key element in disrupting the market for trafficking and reducing its profitability”.137 However, applying the legislation seems to have low priority.138

foreign language, the purchase being arranged by a third party, or especially degrading circum-stances should be taken into account when sentencing. See Proposition 2010/11:77, p. 7 et seq., 21.134) Penal Code 1:5, 30:1, 4. Swedish National Council for Crime Prevention’s statistics from 2000-2010 contain no record of prison sentences for the purchase of sexual services. Under Swedish sentencing practice, certain crimes characterised as “artbrott”, when coupled with the gravity of the acts in ques-tion, carry with them a presumption of meriting prison (Penal Code 30:4). If the act for which a suspect has been prosecuted is found to have a severity that merits a sentence of at least six months, coupled with the character of the crime as an “artbrott”, the presumption is that the sentence should be served in prison, unless there are strong reasons against this. See J. Zila and N. Jareborg, ‘Straffrättens påföljdslära’, 3rd edn (Stockholm: Juridik, 2010), p. 149; M. Borgeke, ‘Att bestämma påföljd för brott’ (Stockholm: Juridik, 2008), p. 239 et seq. Where the maximum sentence for the crime is six months, or even one year, it is only in extreme cases that the value of the act in a case would be considered to warrant actually imposing a six-month sentence. In such cases judges will generally be cautious to sentence to prison at all. It is most common that offenders are sentenced to fines; only in a few cases have suspended sentences and probation been meted out.135) Swedish National Council for Crime Prevention’s statistics. There were 11 waivers of prosecution. No statistics were available regarding the remainder of the decisions: prison, suspended sentence, or community service.136) The amount of day fines (50) originated from a Supreme Court judgment (NJA 2001, p. 527) examining a sentence for the purchase of sexual services. Fine levels are based on the claimed income of the convicted persons.137) Human Trafficking: The Government’s Strategy, 2011, para. 94, available online at: http://www.homeoffice.gov.uk/publications/crime/human-trafficking-strategy?view=Binary (accessed 15 August 2013).138) In the 2011 Home Office Review of Effective Practice in Responding to Prostitution no reference was made to applying the UK legislation on paying for the sexual services of a prostitute subjected to force or exploitation as a component of reducing demand. Home Office, A Review of Effective Practice in Responding to Prostitution, October 2011, available online at: http://www.homeoffice .gov.uk/publications/crime/responding-to-prostitution?view=Binary (accessed 9 August 2013). The Home Office published a report in 2012 based on an internal review of the legislation targeting human trafficking. The demand side was not mentioned, evaluated nor stated to be a strategic prior-ity in the government’s trafficking strategy. Home Office, Report on the Internal Review of Human Trafficking Legislation, May 2012, available online at: http://www.homeoffice.gov.uk/publications/crime/human-trafficking-legislation?view=Binary (accessed 9 August 2013).

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In the recent 2012 GRETA report the UK government reported that no one had yet been convicted of purchasing sex from a trafficked person.139 A recent NGO study found there was little awareness of the offence amongst the general public.140

In the three remaining states in our study (Hungary, Italy and the Netherlands) purchase of sexual services from trafficked persons is not legally prohibited. Although not a direct requirement of the 2005 COE Convention, or the 2011 EU Directive,141 the regional obligations are that they consider criminalising the use of the services of trafficked persons. The states, however, show a different approach to prostitution. The Netherlands decriminalised brothels and the exploitation of prostitution (procurement), and gave brothel owners the possibility to receive operating licenses by local authorities.142 The administrative approach to prostitu-tion aimed to have local bodies fulfil the task of overseeing the running of prosti-tution and allowing the police to focus on dealing with illegal prostitution and abuses in the unlicensed sector.143 One of the objectives given for the decriminali-sation of brothels was to make the fight against human trafficking more effec-tive.144 The belief was that trafficking would take place only in the unlicensed sector.145 It is not a goal of Dutch prostitution policy to reduce the sex market in general. In discussing criminal measures aimed to curb demand, the Dutch

139) GRETA Report Concerning the Implementation of the COE Convention on Action against Trafficking in Human Beings by the United Kingdom, 12 September 2012, para. 316, available online at: http://www.coe.int/t/dghl/moni-toring/trafficking/Docs/Reports/GRETA_2012_6_FGR_GBR_en .pdf (accessed 9 August 2013).140) S. Edwards, All Change: Preventing Trafficking in the UK, April 2012, available online at: http://www.antislavery.org/in-cludes/documents/cm_docs/2012/a/atmg_all_change_prevention.pdf (accessed 9 August 2013).141) See supra Section 2.2.2, 2011/36/EU, para. 26, Article 18(4).142) For a background, see Outshoorn (fn. 61), p. 165 et seq.143) Certain parts of the sex industry, such as the escort sector, do not require licences, and are thus not illegal though they are unregulated. See Eighth report of the DNRT (2010) (fn. 3), p. 59.144) See Explanatory Memorandum to the amendment, 1996-97 25437, No. 3. The six reasons given were: “1. control and regulation of the running of prostitution; 2. improvement of the combat of exploitation of involuntary prostitution; 3. protection of minors from sexual abuse; 4. protection of the position of prostitutes; 5. separation of prostitution and peripheral criminal phenomena; 6. reduction in the scale of prostitution by illegal migrants.” Trafficking in Human Beings. First Report of the DNRT, 2002, pp. 15–16.145) While some evaluations of the licensing found that the municipalities’ oversight functioned well, other studies claimes that it was not living up to its aims, as revealed by cases of human traffick-ing within the licensed sector. The DNRT has called for better supervision in several reports, and highlighted the fact that the largest human trafficking case (the ‘Sneep case’) to be identified and prosecuted in 2008 concerned brothels in the licensed sector. The trafficking had involved 78 women at the time of the arrests, in plain sight in the windows of the red-light district (de Wallen). The brothel group had been active in the Netherlands and other European countries for over 10 years. A study by van Hout and van der Laan on the actual practices in three Dutch cities was carried out,

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National Rapporteur on Trafficking in Human Beings (DNRT) identified what it called often ideologically motivated efforts to criminalise purchase of sex, and called for other measures, such as information campaigns to clients.146 The ratio-nale is that criminalisation of clients purchasing sex from ordinary sex workers or trafficked persons would drive prostitution underground and reduce social authorities’ and other groups’ access to the victims.147 The idea of criminalising purchase from a trafficked person was inter alia rejected by the Dutch Minister of Justice in 2010: “Criminalisation of a client who uses the services of a prostitute whom he knows to be in a situation of exploitation is in itself conceivable, but is extremely problematic from the perspective of enforcement.”148

While The Netherlands decriminalised brothels, they are legally prohibited in Italy and Hungary.149 However, purchasing sexual services from an adult is not a crime in either country. In Italy, the client can be prosecuted only if he promotes or exploits the prostitution, or participated in trafficking. According to the Italian Supreme Court, promotion of prostitution necessarily implies that the promoter is a third person to the sexual service who mediates between the prostitute and the client.150 A few legislative reforms were proposed by right-wing politicians

revealing why signals of trafficking are missed. See M.M.J. van Hout/F.J. van der Laan, ‘Schone Schijn. De signalering van mensenhandel in de vergunde prostitutiesector’ (Waddinxveen: Korps Landelijke Politiediensten, 2008). The licensed sector is limited to Dutch citizens and foreign nationals who are given a work permit. However, the possibility to gain such a work permit only exists for EU-nationals. Non-EU citizens who have chosen to remain or who came to the Netherlands after 2000 have there-fore only been able to work illegally. They are allowed to work if they have a valid residence permit on other grounds, such as marriage or co-habitation (van Hout/van der Laan, p. 50).146) Fifth Report of the DNRT (2007) (fn. 115), pp. 3–4. The DNRT has advocated informing clients of signs of trafficking, encouraging them to be alert and to report suspected trafficking, and to use legal forms of prostitution instead (“channelling discouragement policy”). Eighth report of the DNRT (2010) (fn. 3), pp. 74–75.147) Fifth Report of the DNRT (2007) (fn. 115), p. 4.148) Eighth report of the DNRT (2010) (fn. 3), p. 76. Instead, the draft Regulation of Prostitution Act proposed that it would be a criminal offence to purchase sexual services from a prostitute who is not registered or who is working for an unlicensed operator. Article 29, ‘Rules on the regulation of pros-titution and on combating abuses in the sex industry, Parliamentary Documents II 2009/10, 32 211, no. 2. The maximum punishment for a breach of Article 29 is a prison sentence of six months or a third-category fine. The DNRT has pointed out that even this non-adopted proposal falls short of the obligation in Article 19 of the 2005 COE Convention.149) Italy: Chapter I of Act no. 75 of 20 February 1958 (“Legge Merlin”) that imposes the closing of brothels, legally existing in Italy until 1958. The punishment for the basic offence is two to six years in prison and a fine. Hungary: Article 201(3) of the new Penal Code (punishment: one to five years in prison).150) In the concrete case it was found that acts such as giving a lift to the prostitute after the sexual intercourse does not constitute a crime (Cassazione penale, Third Chamber, Judgment no. 44198 of 14 October 2004).

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that would have criminalised prostitution in public places or in places open to the public, and also would have punished clients. However, these reforms have not been passed.151 In Hungary, on the other hand, prostitution is prohibited in so-called ‘protected zones’, i.e. certain public places determined by local govern-ment.152 Hungary chose the policy of regulating prostitution in 2001.153 Procuring for prostitution and pimping continue to be punished.154 The new Code has extended the definition of procurement in order to protect children better. Now it has a second variant consisting of offering or inviting persons under 18 for prosti-tution.155 However, this conduct does not cover the sex purchase, and can be car-ried out by the procurer only. Purchase of sex from a child is criminalised by another provision of the Penal Code.156

151) A bill called “Progetto Bossi-Fini-Prestigiacomo” (legislative proposal no. 3826 of 20 December 2002) would have subjected prostitution in public places and purchasing sexual services in public places to administrative sanctions. Prostitutes who were forced with violence or threat would have not been punishable. The client would have been subjected to a lighter punishment (200–1000 euros, in case of reiteration 2000–3000 euros) than the prostitute (200–3000 euros, and in case of reitera-tion even arrest for 5 to 15 days). See D. Balestrieri, ‘I delitti di prostituzione’, in: A. Cadoppi, S. Canestrari, M. Papa and M. Adelmo (eds.), Trattato di diritto penale (Torino: UTET, 2010), p. 144 et seq. A similar legislative proposal was presented in Parliament by the right-wing politician Alessandra Mussolini on 22 May 2008.152) See Article 143-145 of Act no. LXIX of 1999 and Article 172 of Act no. II of 2012 on administrative infractions which replaced the previous Act and is applied to infractions committed after 1 April 2012.153) Hungary moved back and forth between regulated prostitution and prohibitionism in the 20th century. Prostitution was a criminal offence in the socialist era, even if, due to difficulties in producing evidence, prostitutes were more often prosecuted as ‘dangerous shirkers’, i.e., for avoiding working (set out in Article 266 of the Penal Code, abolished in 1993 by Act no. XXIII of 1989). Prostitution as a criminal offence (provided by Article 204 of the Penal Code) was abolished only in 1993 (by Act no. XVII of 1993). See also L. Fehér, A prostitúció szabályozásának problémái Magyarországon [Problems of regulating prostitution in Hungary], in: L. Fehér and J. Forrai (eds.), ‘Prostitúció, prostitúcióra kényszerítés, emberkereskedelem’ [Prostitution, forcing to prostitution, human trafficking] (Budapest: Szociális és Családügyi Minisztérium Nőképviseleti Titkárság-Kiút Veled Egyesület, 1999), p. 128 et seq., at p. 129. Prostitution constituted an administrative infraction between 1993 and 2001.154) See Articles 205–207 of the old Penal Code and Article 200-202 of the new Penal Code, in force since 1 July 2013.155) Article 200(2) of the new Code. The explanatory notes attached to the proposal of the new Code (see fn. 66) explain that this change aims at complying with international obligations, e.g., EU Directive 2011/93/EU where it is defined as “causing or recruiting a child to participate in child pros-titution” (Article 4(5)). The word “offering” is used by the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted on 25 May 2000 (Article 3(1)(b)), also explicitly referred by the proponent of the bill.156) Article 203 of the new Penal Code. See infra Section 4.2.

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4.2. Accountability for Purchasing Sexual Acts from Children

While there are divergences in the examined states as to the approach to purchase of sexual services from an adult or from a trafficked person, they have all respected their international obligation to criminalise purchasing sexual services from a child.157 The purchasing of sexual acts from children has been prohibited by many states primarily in order to combat teenage prostitution. The prohibition aims to protect young persons who are old enough to consent to sexual activities generally from sexual exploitation before they are sufficiently mature to make informed and responsible decisions. The purchase of sexual acts from youth is also prohibited by states where it is otherwise legal to purchase sexual acts from adults, such as in Australia, Denmark, Germany, Hungary, Italy, the Netherlands, and New Zealand. In countries where the purchasing of sexual acts from adults is prohibited, such as in Iceland, Norway and Sweden, the regulation on purchasing sexual acts from children aims to strengthen the protection of youth by stronger sanctions against offenders than for purchasing from adults, as well as giving the child the status of victim in legal proceedings.

As already discussed above, the figures show that a significant percentage of trafficked persons are under 18.158 Thus, the prohibition against purchasing sexual acts from youth could be used to hold buyers criminally responsible even in coun-tries that do not prohibit purchasing sexual acts from adults or from trafficked persons as such.

4.2.1. Sanctions and SentencingWhile there is a certain degree of harmonisation in the criminalisation of purchase of sexual services from children, when it comes to sanctions there are considerable differences between the five states in the study. These differences can be found not only in the level of punishment, but also in the sentencing prac-tice. As we have already pointed out, criminal law is still a a field closely associated with state sovereignty, which is reflected not only in different criminal policies (a good example is the legislature’s approach to the phenomenon of prostitu-tion),159 but also in the fact that international agreements typically do not determine an exact required level of punishment.160 Only EU legal measures set a

157) See Table 2 supra.158) See supra Section 3.4.159) See supra Section 4.1.160) The Palermo Protocol does not determine the sanctions to be imposed for human trafficking. The 2007 COE Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse provides only that penalties should be effective, proportionate, and dissuasive. See supra Section 2.2.1.

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minimum level for the maximum term of imprisonment. In the case of purchase of sex from children this minimum level is determined to be five years, if the child has not reached the age of sexual consent, and two years, if the child is over that age.161 These levels are respected by all five examined states, but the sanctions range from two years (for the maximum term of imprisonment) in Sweden to seven years in the UK as regards children over the age of consent. Moreover, the legal age of consent also varies from state to state — between 14 and 16 years. Table 3 presents the sanctions and legal age of consent applied by the five states in our study.

Table 3. Sanctions and legal age of consent applied by the five states in our study.

Sweden UK Netherlands Hungary Italy

Age of consent

15 years 16 years 16 years 14 years 14 years

Purchase of sexual services

max. 1 year – – – –

From exploited person

same as above fine (E, W and N.I)

– – –

From children

max. 2 years (artbrott)

younger than 18 years: max. 7 years

aged 16–18: max. 4 years + 4th category fine

aged 12–18: max. 3 years

aged 16–18: 6 months – 3 years

younger than 16 years: max. 14 years

aged 12–16: max. 8 years + 5th cat. fine

aged 12–14: 1–5 years (if the purchaser is above 18)

aged 14–16: 2 to 5 years

Rape of a child

max. 6 years up to life imprisonment

max. 12 years + 5th cat. fine

under 18: 5–10 years

under 18: 5–10 years

Aggravated max. 10 years under 12: 5–15 years

under 10: 7–14 years

Prostitution in a public place

– fine local regulations

administrative infraction

–

161) Article 4(7) of Directive 2011/92/EU. As mentioned above in Section 2.2.2, the new Directive rec-ommends stronger sanctions than the previous Framework Decision (2004/68/JHA).

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Table 3 shows that the Netherlands162 and the UK163 apply a graver sanction to purchase from children below the age of 16, i.e., below the age of consent, but even in Italy, where the age of consent is 14, a graver penalty is imposed if the seller is below 16. In Hungary, on the other hand, sexual intercourse with a child below the age of consent (14) is punishable only if the perpetrator is an adult, and it is sub-ject to a more severe punishment than purchase of sex from a child.164

From the perspective of sanctions provided by law, the most severe state is the UK, which provides for life imprisonment in the most serious cases of rape of a child. The most lenient regime is set by Sweden, which imposes a maximum of ten years in prison even for aggravated cases of rape. The most striking difference between the two states’ sanction regime can be found in the punishment imposed for purchase of sex from a child between 15 and 16 years of age: in the UK up to 14 years in prison, in Sweden only up to two years. However, the gap between the different levels of punishment provided by the law can be significantly reduced or widened by court practice. In the UK, for example, summary convictions lead to the application of a much less severe sanction than following indictments,165 and penetrative and non-penetrative acts are distinguished, the former leading to lon-ger sentences, while the latter, in the case of 13-year-olds and older, may involve a prison sentence of up to 6 months or a fine.166

In the Netherlands, notwithstanding the apparently severe provisions of the Penal Code, these seem to be dead letters as there is no material accessible that shows their application in practice.167 The rationale that criminalisation of clients

162) Article 248b of the Penal Code, introduced in 2000.163) Section 47 of the SOA 2003 of paying for the sexual services of a child consists of three parts: (1) intentionally obtaining a sexual service, (2) having made or promised payment or knowing that someone else has done so for the service, (3) the child is under 18 and the purchaser does not reason-ably believe that the child is 18 or older, or the child is under 13. The sentences specified in ss. 3-5 differ for child victims under 13, under 16, and under 18. The Protection of Children and Prevention of Sexual Offences (Scotland) Act (PCPSO) 2005, s. 9 is structured similarly.164) The criminal offence of sexual acts with a child under 14 years old could be applied to purchas-ers even before the criminalisation of purchase of sex from minors in 2007 (Articles 201–202 of the old Code, kept by Article 198 of the new Code, changing only the name of the crime from “tainting” to “sexual abuse”). Therefore before 2007 there was no possibility to prosecute the purchaser if the seller was an adolescent of at least 14 years old. The crime of sexual acts with a child can be applied only to adult perpetrators in order to avoid punishment of adolescent couples. However, a sexual act with a child under 12 constitutes rape, regardless of the perpetrator’s age (Article 197(2) of the new Code).165) SOA 2003 Article 47(4-5) (E and W); Sexual Offences (N.I.) Order 2008, Article 37(4-5); PCPSO 2005 (S), s. 9(4-5).166) See Sentencing Guidelines Council, Sexual Offences Act 2003 (fn. 56), p. 116 et seq. (E and W).167) No information from the DNRT, other anti-child exploitation bodies or organisations on appli-cation of the provisions has been found or numbers given upon request. The UN Committee on the

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purchasing sex from ordinary sex workers or trafficked persons would drive pros-titution underground and reduce social authorities’ and other groups’ access to the victims,168 applies similarly to youth. Though the criminalisation exists, there seems little incentive to use it against clients in order not to endanger access to the youth themselves. However, as care providers only have access to the licensed sector, and, as the prostitution of youth is illegal, it must either be covered up in the licensed sector by false identification documents, or kept in the unlicensed sector. Access is thus a less probable reason. Oversight by police and local authori-ties focuses on the licensed prostitution sector, such as brothels, and it seems that most prostitution of youth takes place in the non-licensed sector where supervi-sion is more difficult.169 Likewise, there is still no available case-law on the appli-cation of purchase from children in Hungary. However, there it is more likely due to the very strict evidentiary rules according to which the prosecutor has the burden to prove that the perpetrator knew the child’s age.170

In Sweden, the crime of purchasing sex from a child carries with it a presump-tion for prison (“artbrott”), in contrast to the crime of purchasing sexual services, where the maximum sentence is one year, and a six-month sentence would be rare. However, a recent examination of sentencing after convictions for the crime of purchasing sex from a child shows that in 26 court cases only four of the con-victed persons were given a prison sentence; other persons convicted were given suspended sentences, probation, or fines. Five cases did not go to trial at all, as the suspects confessed to the crime and were given summary sentences.171 It is ques-tionable if summary sentences should be used in these cases at all, as they are meant for crimes with lower maximum sentences, such as shoplifting, where the maximum sentence is imprisonment for six months. In a study172 of human traf-ficking and related cases in appellate courts between 2004–2010 seven convictions

Rights of the Child lamented the lack of information in the Dutch report of 2007 regarding inter alia the prosecution of purchasers of children under the duties stemming from the UN Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. CRC/C/OPSC/NLD/CO/1 6 May 2009.168) See supra Section 4.1.169) Investigating Exploitation: Research into Trafficking in Children in the Netherlands, 2005, available online at: http://www.kinderrechte.gv.at/home/upload/50%20thema/nl_investigating _exploitation-research.pdf (accessed 12 August 2013), pp. 91–92.170) See more infra Section 4.2.2.171) ‘Sexköp av barn leder sällan till fängelse’, Dagens Nyheter (7 May 2012). Source: BRÅ statistics from 2010.172) The study resulted in the article by Johansson (fn. 110), and formed part of the larger research project ‘Att skilja mellan offer: Ett brottsofferperspektiv på människohandel och människohandels-liknande brottslighet’, funded by the Swedish Crime Victim Compensation and Support Authority.

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by first and appellate courts for the purchase of sexual acts from children were found. In one case the sentence was a fine, in another a suspended sentence.173 In the remaining five cases prison sentences were meted out. The choice and length of prison sentences seem primarily to flow from the other grave crimes that the suspects were convicted of — rape and gross procurement.174 There are two cases where the convictions were solely for purchase of sexual acts from a child. In the first case, the one-year prison sentence was meted out for 15 purchases from chil-dren.175 In the second case, the two-month prison sentence was for a handful of purchases from a child.176

4.2.2. The Importance of Age: Whose Burden of Proof?In our analysis special attention has been given to accountability for purchasing sex from children and, in particular, to the burden of proof relating to the knowl-edge of age. The issue is not covered by comparative studies, and information is available to a very limited extent even in domestic academic literature and in gov-ernmental or NGO reports. However, the question is of fundamental importance, as in absence of strict liability or a presumption of knowledge of the child’s age it is very difficult for prosecutors to prove the crime. Liability rules concerning knowledge of age are even more important in those states where the purchase of sex from adults does not constitute a crime, since in those states there would be no other crime to fall back on.177

Liability rules and age limits in the five states examined are presented in Table 4.

173) Stockholms tingsrätt, case no. B 1070-06 (18 October 2006) and Svea hovrätt, case no. B 8918-06 (14 March 2008); Norrköpings tingsrätt, case no. B 733-07 (7 October 2008) and Göta hovrätt, case no. B 2988-08 (22 December 2009).174) Solna tingsrätt, case no. B 6645-08 (28 September 2009) s. 107 and Svea hovrätt, case no. B 8039-09 (22 December 2009); Södertälje tingsrätt, case no. B 401-10 (29 June 2010) and Svea hovrätt, case no. B 6183-10 (21 October 2010); Örebro tingsrätt, case no. B 1999-09 (23 December 2009) and Göta hovrätt, case no. B 64-10 (26 February 2010).175) Vänersborgs tingsrätt, case no. B 830-09 (19 May 2009) and Hovrätten för Västra Sverige, case no. B 2625-09 (15 July 2009).176) Örebro tingsrätt, case no. nr B 7161-09 (28 June 2010) and Göta hovrätt T2240-10 (24 October 2011).177) But in Sweden, the only state in our study which criminalises purchase of sex in general, apply-ing one crime or the other still has important consequences. It is not only a question of penal sanc-tions, which are lower in case of general purchase of sex than at purchase from children (see Table 3), but of pecuniary consequences. In Sweden damages are common at convictions for purchasing from children, but have so far not been ordered at convictions for purchase from adults, as the latter is primarily considered a crime against the state which does not cause harm or offence to the person providing the sexual service; thus it is not a violation of personal integrity, as the former. Prop. 2004/05:45, p. 91; RH 2008:79 (Svea hovrätt, case no. B8918-06 (14 March 2008)).

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Table 4. Liability rules and age limits in the five states examined.

Sweden UK Netherlands Hungary Italy

Age limit for sex purchase from youth

15–18 years old

13–18 years old

16–18 years old

14–18 years old

14–18 years old

Liability high threshold of negligence: the suspect needs to be shown to have been aware of risk of low age

burden of proof on purchaser to show reasonable belief that child was 18 (if successful, the burden shifts to prosecutor to show belief was not reasonable)

strict liability

no presump tion of knowledge of the child’s age, general rules of liability apply (mistake of fact)

general rules of liability apply (mistake of fact)

Further age limits

until 14 years old

until 12 years old

until 15 years old

until 12–14 years old

until 13 years old

Liability the same (for rape of a child), but higher probability of conviction

strict liability, no defence of reasonable belief possible

strict liability (for intercourse with a child)

no presump tion of knowledge of the child’s age, general rules of liability apply (mistake of fact)

the ignorance of age cannot be invoked as an excuse: strict liability

Legal age of sexual consent

15 years 16 years 16 years 14 years 14 years

If we look at the written rules, on paper, the Netherlands appears the most severe state, as it requires the prosecutor to prove the child’s age but not the knowledge of age on behalf of the purchaser, regardless of the age of the child.178 However, this severity has little practical effect as the crime does not seem to be applied by Dutch prosecutors.179 Italy and the UK, which have not criminalised the purchase of sex in general, make a distinction according to the child’s age, and apply strict liability only to the purchase of sex from children under a certain age.180 The age limit carrying with it strict liability only coincides with the age for sexual consent

178) Initial report to the Committee on the Rights of the Child, CRC/C/OPSC/NLD/1, 8 January 2008, para. 12.179) See supra Section 4.2.1.180) Article 609-sexies of the Italian Penal Code provides that ignorance of the victim’s age cannot be invoked as an excuse by the perpetrator. The article was introduced by Act no. 66 of 15 February 1996. It seems to constitute a stricter rule than a legal presumption. In the UK, SOA 2003 Article 47(1)(c)(ii); Sexual Offences (N.I.) Order 2008, Article 37(1)(c)(ii); PCPSO 2005 s. 9(1)(c)(ii).

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in Italy. In the UK the age of consent is higher (16 years) than the age limit deter-mining strict liability (13 years). The latter usually coincides with the age limit where there is a presumption of rape. Even in Hungary there is a different age limit for sexual consent (14 years, like in Italy) and for the presumption of rape (12 years), but strict liability never applies.181 The burden to prove that the perpe-trator knew the child’s age is on the prosecutor, both in cases of sexual acts with a child under the age of consent or rape, and in cases of purchase of sex from children.182 This might explain the fact why there are still no published cases of this new crime. As purchasing sex from an adult is not a crime in Hungary, a failure to prove that the accused person was aware of the fact that the seller of the sexual act was a minor leads to a judgment of acquittal. There is no other criminal offence for which the purchaser could be prosecuted if the prostitute is an adoles-cent between 14 and 18 years of age, which is the majority of cases of child prostitution.183

If the victim is a child above the age limit determining rape, there is a presump-tion of knowledge of the age (that can be rebutted by the suspect) only in the UK.184 In Italy and in Hungary there is no such presumption, and ignorance of the victim’s age is considered a mistake of fact.185 Since purchase of sex in general

181) See the general principle provided by Article 4 of the new Penal Code, repeating Article 10 of the old Code, according to which an act constitutes criminal offence only if committed with intention or, if the law expressly provides so, with negligence. The Penal Code does not contain any provision that would provide for strict liability or presumption of knowledge of the victim’s age in relation to the crime of purchase of sexual services from a minor. There is no strict liability in any case. Even if sexual act with a child under the age of 12 is considered as rape, it is a criminal offence requiring mens rea, so it cannot be committed merely by negligence. Thus ignorance of the victim’s age is considered a mistake of fact. See N. Kis (ed.), ‘A Büntető Törvénykönyv magyarázata I-II-III’, Vol. II [Commentary to the Penal Code] (Budapest: 2006), pp. 709–710. The Penal Code provides that a negligent mistake is to be punished only if the given criminal offence has a negligent form (Article 27(3) of the old Code and Article 20(3) of the new Code).182) It means that the perpetrator’s belief will determine which criminal offence will be applied. If he believed that the child was above 12, but under 14, he will be punished for sexual abuse. If he believed that the child was above 14, but under 18, it can only be purchase of sex from children, if the purchase is proven. Finally, if he believed that the child was an adult, there will be no conviction.183) See Hrabovszki and Kenéz (fn. 97), p. 15.184) If the purchaser presents evidence of his ‘reasonable belief ’ that the provider was at least 18 years of age, then the burden shifts to the prosecutor to prove that the ‘belief ’ was not reasonable. With regard to cases of children under 13, there is strict liability and no defence of reasonable belief is possible.185) For Hungary see supra fn. 181. In Italy, the aggravating circumstance of the crimes against individual personality (reduction to slavery, human trafficking and child prostitution) set out in Article 600-sexies (perpetration against a child below 14) is not applicable if the defendant proves that he was ignorant or mistaken about the age of the victim. See Cassazione penale, Fifth Chamber,

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does not constitute a crime in these two states, the age of the victim is clearly a constitutive element of the crime, and a mistake about this fact excludes liability. Moreover, culpability regarding the mistake is not relevant, since the crime of pur-chase of sexual acts from children can only be committed with intention.186 It constitutes a very serious obstacle to prosecutions of purchasers of child prostitu-tion, as purchasing sex is not a crime if the seller is not a minor. The perpetrator can easily invoke ignorance of age as an excuse. According to Italian law, the accused is only limited from invoking it if the prostitute is under 14, as in that case another, much graver criminal offence (sexual acts with a minor, set out in Article 609-quater), applies, and not that of child prostitution.187 At the same time we cannot find this limitation in Hungarian law, which does not apply different liabil-ity rules according to the child’s age.188

As mentioned above, in all five states involved in the study there is an age limit below which sexual acts with a child (even without paying for it) is likened to rape. Strict liability rules apply under this age limit in the UK, the Netherlands, and Italy, while negligence applies in Sweden for all sexual crimes against children. In Sweden there is thus no strict liability for purchase of sex from children, regardless of the age of the victim, but the probability of conviction is higher the younger a child is, as the physical underdevelopment of the child is a decisive factor in proving that the suspect should have suspected the age of the seller. Moreover, crimes against younger children are more often committed

Judgment of 20 October 1970, commented by Bonifacio in Giustizia penale (1971), p. 593 et seq. This means that if the purchaser ignored the age of the victim, he can be convicted only if the seller is under 14 and for sexual act with a minor (Article 609-quater), likened to rape, instead of for child prostitution (Article 600-bis). While if the seller is a minor 14 years or over, the purchaser will not be convicted. The presumption of knowledge of the child’s age does not apply because child prostitu-tion is not among the crimes against personal liberty which are covered by the liability rule set out in Article 609-sexies. Purchase of sexual services from a child is a crime against individual personal-ity (like reduction to slavery and human trafficking). To these crimes the general rules of liability apply, in particular Article 47 regarding mistake of fact.186) Article 47 of the Italian Penal Code establishes that a negligent mistake does not exclude responsibility if the crime is punishable also by way of negligence (culpa). However, this is not the case for crimes against individual liberty, as they all require mens rea. See Ariolli, CP 2008, p. 30. Similarly in Hungarian criminal law. See supra fn. 181.187) The reason behind the presumption of knowledge of the age of the victim is the intent to give a stronger protection to the “sexual intangibility” of children under 14, who are considered unable of a conscious self-determination and are especially exposed to abuse. See the reasoning of the Constitutional Court in Decision no. 322 of 24 July 2007. The criminal offence of child prostitution for purchase of sexual services from a minor is being applied in a proceeding against the former Prime Minister, Silvio Berlusconi, in the famous “Ruby-case”. See, e.g., ‘Silvio Berlusconi underage sex trial begins’, The Guardian (6 April) 2011, available online at: http://www.guardian.co.uk/world/2011/apr/06/silvio-berlusconi-sex-trial-begins (accessed 13 August 2013).188) See supra fn. 181.

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by persons close to the child, which means that it is usually not difficult to satisfy the requirement of negligence regarding age. The older a child, the more unsupervised contact and the more access of unknown persons who have less basis for knowing their age.189 Most cases in Sweden required that the child was active and expressive in its communication in order for liability to be found on the buyer’s side. The only cases where suspects were found to be negligent regarding low age and where the children had not expressed something clear about their age were where the children were physically undeveloped, thus under 15 years of age.190 In cases where the suspect had asked the child about its age and the child had responded that it was 18 or older, this was interpreted in favour of the suspect. The suspect could thus rely on the child’s verbal denial that it was under-age.191 The high threshold of negligence regarding the child’s age has led to few prosecu-tions for the crime of purchasing sexual acts from a child in Sweden, and no convictions for purchasing sex from minors in human trafficking cases so far. With the present application of the negligence standard, purchasers who buy sexual acts from children are more often than not prosecuted for the purchase of sexual services, and primarily risk fines if they are convicted.192 Even if they are prosecuted for the crime of purchasing sexual acts from a child, they run little risk of having their freedom restricted, as convictions rarely involve longer prison sentences.193

189) Cases where suspected customers were prosecuted for having purchased sexual acts from a child were of the kind where there had been a fair amount of contact between the child and the buyer before the sex purchase in order to establish the contact. This would explain why there have been few such prosecutions in human trafficking cases where there has been little previous direct contact between the child and the sex purchaser — such as cases where the purchaser has been in contact with a link to the child (a procurer) rather than negotiating with the child itself. See Johansson (fn. 110), p. 243. Convictions generally required that the suspect could be shown to have known the child’s age, or that child had said something about its age or the class that it attended, or where internet records or cell phone messages provided evidence that the suspect had information about the child’s age, or should have picked up on the immaturity of the child’s communication. Ibid, p. 245 et seq. Out of thirteen prosecutions in the study there were eight convictions. In five cases the prosecutor was able to show that the suspect knew the child’s age, and in three cases the prosecutor satisfied the court that the suspect had been sufficiently negligent.190) Ibid. In one case the girls were under 15 years old; in the other the girl was 15. However, lack of physical development was not the sole indicator that led to criminal liability. The courts also took into account the girls’ immature communication, and their having given varying accounts of their age to customers.191) Ibid., pp. 243–244, 246 et seq. The threshold of negligence did not require caution on the part of suspect, but only that the suspect react if the child informed them of something, acted immaturely, or was physically undeveloped.192) See Johansson (fn. 110), p. 256–257.193) See supra Section 4.2.1.

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It seems that Hungary has the most lenient regime as regards liability rules, because it requires proven knowledge of the age of the child, and even a negligent mistake excludes liability. However, perhaps in practice judges follow similar cri-teria as their Swedish colleagues. How difficult is it for Hungarian prosecutors to give evidence of knowledge of age? Is a negligent mistake accepted even if the child is obviously physically underdeveloped? Unfortunately, in absence of pub-lished cases that apply and interpret these provisions it is difficult to give an answer.

The strict liability rule has been challenged on grounds of fundamental princi-ples both in Italy and concerning the UK (England and Wales), where it resulted in litigation before the ECtHR. However, both the ECtHR and the Italian Constitutional Court have rejected the claim. The Italian Constitutional Court affirmed that strict liability is not absolute, as an interpretation in conformity with the Constitution has to lead to the exclusion of criminal liability in the case of an inevitable mistake about the victim’s age.194 The ECtHR declared an application about strict liability regarding age inadmissible ratione materiae, as the issue of strict liability regard-ing age was not considered to fall within the scope of ECHR Article 6 on fair trial and the presumption of innocence.195 Thus states are free to maintain effective protection by prohibiting sexual access to young children, regardless of their appearance or actions. Though several of the examined countries have adopted this approach, the same protection is not afforded in all states. Effective protec-tion is not only withheld from children where there is a restrictive approach to responsibility through the negligence regime, such as in Sweden and Hungary. Even in several of the states where strict liability applies, such as the UK and the Netherlands, the age under which there is such liability does not correspond with the age of consent. The age and strict liability only correspond in Italy. There is thus a gap of a few years where sexual activity with a child is considered to be a crime, but suspects still have the defence of negligence regarding age. With respect to purchasing sex from children, where there is higher likelihood of limited contact and less knowledge about the child’s age, effective protection in countries with negligence regimes is thus before puberty — not the age of

194) The strict liability rule contained in Article 609-sexies of the Penal code was challenged before the Italian Constitutional Court on three occasions, but the Court did not find it unconstitutional. The last time in 2007. See decision no. 322 of 24 July 2007 of the Italian Constitutional Court. See also G. Ariolli, ‘L’ignoranza dell’età della vittima nell’ambito dei delitti contro la libertà individuale’, Cassazione penale (CP) 2008, p. 30 et seq.195) ECtHR decision of 30 August 2011 in the case of G. v. UK (Application no. 37334/08). In the case, knowledge of age was not part of the elements of the crime. The ECtHR stated that it was not required under the principle of the presumption of innocence to require a blameworthy mind as an element of an offence, or that a particular defence should be made available (margin nos 27–30).

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consent. As the age of consent and strict liability in Italy is 14, the protection is not much wider. Though states are free to choose their liability rules, the international requirement on them to afford effective protection against sexual exploitation by purchasers does pose requirements that the states in this study do not seem to fulfil.

5. Conclusion

The legislation on trafficking in human beings has been relatively harmonised by the states in the study, although differences do remain.196 In viewing the practice of states it is apparent that their primary focus is on traffickers, and not on com-bating the demand for the services of trafficked persons. All available domestic reports focus on traffickers and procurers, and information on purchasers is very limited. This is true even for Sweden, despite its general ban on the purchase of sexual services. Moreover, purchase of sexual acts from a trafficked person consti-tutes a crime in only two of the states in the study: Sweden and the UK.197 The lack of prosecutions and convictions nevertheless indicate that the states might not view the application of their regulations as an effective tool to combat demand for the services of trafficked persons. In the Netherlands the absence of criminalisa-tion is a policy choice, as the Dutch lawmakers believe that criminalisation of cli-ents would drive prostitution underground. It also explains why the criminal offence of purchase of sex from children does not seem to be applied in prac-tice.198 Despite its tough policy on trafficking, as evidenced in their use of the traf-ficking crime in cases of youth prostitution,199 the focus is on procurers — not on reducing the market. While Sweden and the UK (E and W and N.I.) have criminal-ised the use of sexual acts from trafficked persons, it is not clear that the remain-ing states have so far seriously considered such criminalisation and providing sanctions, in accordance with EU Directive 2011/36/EU.200 It should be noted that this duty is not restricted to sexual exploitation, but covers all forms of trafficking.

What is common to all five examined states is the criminalisation of purchase from children, which today constitutes a global and regional obligation.201

196) See supra Section 3.1.197) The UK here refers to E, W and N.I. See supra Section 4.1.198) See supra Section 4.2.1.199) See supra Section 3.4.200) See also other treaties requiring states to take measures to reduce the market. See supra Sections 2.1 and 2.2.201) See supra Sections 2.1 and 2.2.

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Thus children who are trafficked for sexual purposes are covered by regulations not available for trafficked adults. States could use this legislation to combat the market for sexual acts from children, including trafficked ones. The practice of states is nevertheless not encouraging. The liability rules requiring negligence, or reasonable belief, to be shown regarding knowledge of age pose challenges for prosecutors in four countries, and in the only country that has strict liability for purchases of children aged 16-18, the Netherlands, the regulation does not seem to be applied. Sweden’s restrictive interpretation of the negligence standard makes it even more difficult to apply the crime in cases of foreign trafficked children than national ones. Granting effective protection against exploitation in line with the requirements under the ECHR and the 2007 COE Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse,202 by ensuring that the purchase of a child is effectively investigated and prosecuted and that effective and dissuasive penalties are applied, remains a task for states to take on.

202) See supra Section 2.2.1.