Too often, courts punish human trafficking victims for the unlawful conduct that perpetrators compel them to engage in.
The non-punishment principle holds that victims of trafficking “should not be inappropriately penalized for unlawful acts they committed as a direct result of being trafficked.” This framework ensures judicial and legal protection for victims of trafficking from wrongful punishment and further victimization.
Governments have an obligation to “identify, protect, and assist victims of trafficking in persons and to prosecute traffickers.” This year, the Association of Southeast Asian Nations (ASEAN) published its Guideline on the Implementation of the Non-Punishment Principle for Protection of Victims of Trafficking in Persons, providing a framework and collection of victim-centered best practices to give States a path forward. Here are three key takeaways to consider to protect victims from wrongful prosecution while holding actual perpetrators accountable:
1. The Non-Punishment Principle is Victim-Centered
Practitioners are not doing victims a favour by identifying them as victims of trafficking. Rather, they are fulfilling their legal duties and obligations.”—ASEAN Guideline, page 48
The ASEAN Guideline requires States to reconsider traditional notions of protecting victims of trafficking (such as duress and necessity defenses). These reactive legal defenses mean the victim is already charged or put on trial. The non-punishment principle is a human trafficking victim-centered approach because it creates proactive measures for victims to avoid wrongly receiving an indictment or reaching a courtroom. The ASEAN Guideline puts forward several innovative, victim-oriented strategies to support States in implementing the non-punishment principle:
- States could consider expanding the definition of “trafficking in persons” to “explicitly include criminal activities as a form of exploitation in the definition of trafficking.” European Union countries have found that the inclusion of criminal activities in its definition of trafficking in persons has benefited the implementation of the non-punishment principle. ASEAN suggests that even if legislators outline a range of trafficking offenses, the list should be emphasized as non-exhaustive.
- States could consider enacting legislative changes that put the burden of proof on the State to prove defenses to human trafficking charges do not apply. Having a victim-defendant prove their victimization in court is difficult. The United Nations Convention against Transnational Organized Crime provides a useful framework on shifting the burden of proof to the State.
2. Building Human Trafficking Coalitions Helps Identify Victims Early
The use of multi-disciplinary teams to support screening and identification processes can be an effective way of ensuring that the non-punishment principle is applied to presumed victims of trafficking across the stages of the identification process.”—ASEAN Guideline, page 60
Early identification of victims may prevent governments from improperly criminalizing innocent people. Building multi-disciplinary coalitions to identify and screen victims is critical to the success of the non-punishment principle. The Guideline describes several unique ways stakeholders can contribute:
- Training frontline officials, such as labor inspectors or immigration officers, to recognize common signs of victims of trafficking in labor practices and detention centers.
- Enabling civil society organizations, non-governmental organizations, and international organizations to share research findings and best practices.
- Empowering social services, health care providers, and civil society organizations to provide critical care when frontline officials suspect someone is a human trafficking victim.
3. Quelling Blanket Immunity Concerns
Allowing broad application of the principle does not result in a general prohibition on prosecution of victims, but rather informs the standard of enquiry.”—ASEAN Guideline, page 39
The ASEAN Guideline makes an important clarification: the non-punishment principle is not an absolute prohibition on prosecuting suspected trafficking participants. Instead, it clarifies the standard of inquiry. When there is a clear nexus between the victim’s unlawful activity and their trafficking, the frontline officials and the law can then consider not punishing the person.
The former Special Rapporteur on Trafficking in Persons explains that these safeguards for victims are “far from entailing a sort of ‘blanket immunity.’” Instead, the non-punishment principle:
- Promotes investigating human trafficking crimes to discover and prosecute the true perpetrators of the unlawful activity.
- Allows victims to be redirected to more protective pathways.
Blanket immunity concerns can also arise when traffickers falsely claim victimhood to avoid detection or accountability. The non-punishment principle is a framework to protect actual victims of trafficking, and governments must actively work to ensure against its abuse through proper identification.
Conclusion
The non-punishment principle is a powerful tool for nations to create a more just criminal justice system and uphold human rights. This principle informs, trains, strengthens, and empowers stakeholders at all levels to protect victims and hold perpetrators accountable. With a global estimate of 27.6 million victims,“[t]rafficking in persons remains one of the most pressing challenges of our time.”
The non-punishment principle and the ASEAN Guideline give States a path forward to meet the moment.
Davis Donaldson is a second-year law student at Duke University School of Law, where he serves on the Duke Journal of Constitutional Law and Public Policy and volunteers as a guardian ad litem. Prior to law school, Davis received a Master of Science in Education from Johns Hopkins University and served as a Teach For America Corps Member and middle school teacher in Hawai’i. He spent four years teaching Exploratory Video Production & Media at Ewa Makai Middle School and a year of coaching high school basketball. Davis is passionate about advancing educational equity, fostering cultural exchange, and empowering adolescents.
