Jamaica Gleaner

Hu­man-traf­fick­ing tragedy – US needs to give Ja­maica its due

- Shena Stubbs is an at­tor­ney-at-law and le­gal com­men­ta­tor. Send feed­back to: Email: shena.stubbs@glean­erjm.co, Twit­ter:@shenas­tubbs. Crime · Justice · Law · United States of America · Jamaica · U.S. State Department · Danish People's Party · United Kingdom Monarchy · Supreme Court of India · India · Ministry of Justice (Ukraine)

THIS PAST week, we were greeted with the news that Min­is­ter of Jus­tice Mark Gold­ing was dis­heart­ened with as­pects of the 2015 Traf­fick­ing in Per­sons Re­port of the United States State Depart­ment (re­leased on Mon­day, July 27, 2015).

Gold­ing was par­tic­u­larly peeved with the con­tin­u­a­tion of the Tier 2 Watch List rank­ing which Ja­maica re­ceived last year for its at­tempts to deal with traf­fick­ing in per­sons.

The US re­port stated that, “Ja­maica does not com­ply with the min­i­mum stan­dards for the elim­i­na­tion of traf­fick­ing; how­ever, it is mak­ing sig­nif­i­cant ef­forts to do so.” The re­port also stated that Ja­maica’s rat­ing re­mained un­changed over last year’s be­cause, “the Gov­ern­ment did not demon­strate ev­i­dence of over­all in­creas­ing anti-traf­fick­ing ef­forts com­pared to the pre­vi­ous pe­riod”.

A Tier 2 Watch List rank­ing has im­pli­ca­tions for the fund­ing which Ja­maica can ac­cess on the in­ter­na­tional cir­cuit. Tier 2 Watch List rank­ing is as­signed to coun­tries whose gov­ern­ments do not fully com­ply with the min­i­mum stan­dards of the Traf­fick­ing Vic­tims’ Pro­tec­tion Act but are mak­ing sig­nif­i­cant ef­forts to be­come com­pli­ant.

How­ever, this could im­pact Ja­maica’s abil­ity to ac­cess fund­ing as the coun­tries deemed not fully com­pli­ant with ef­forts to pre­vent traf­fick­ing can be banned from some fi­nan­cial pro­grammes.

From where I sit, there seems to have been a tremen­dous flurry of sen­si­ti­sa­tion pro­grammes and public-aware­ness cam­paigns around traf­fick­ing in per­sons over the past year; more train­ing of judges, pros­e­cu­tors at all lev­els of the sys­tem, the po­lice, and more cam­paigns on lo­cal tele­vi­sion and ra­dio.

The at­tempts have been con­stant and in your face and, there­fore, I do feel some sym­pa­thy for the jus­tice min­is­ter, the chief jus­tice and the di­rec­tor of public pros­e­cu­tions (DPP) who have been key fig­ures in ramp­ing up the ante in this area.

A TRAF­FICKER

But who is a traf­ficker? The an­swer to this is to be found in Sec­tion 4 of the fairly re­cent Traf­fick­ing in Per­sons (Preven­tion, Sup­pres­sion and Pun­ish­ment) Act.

4 –(1) A per­son com­mits the of­fence of traf­fick­ing in per­sons where, for the pur­pose of ex­ploita­tion, he –

(a) Re­cruits, trans­ports, trans­fers, har­bours or re­ceives another per­son within Ja­maica;

(b) Re­cruits, trans­ports or trans­fers another per­son from Ja­maica to another coun­try; or

(c) Re­cruits, trans­ports, trans­fers, or re­ceives another per­son from another coun­try into Ja­maica.

To safe­guard against bona fide cases of re­cruit­ing, em­pha­sis is placed on the ‘means’ used to com­mit the of­fence. Ac­cord­ing t o sub­sec­tion 2, there­fore, for the of­fence to be es­tab­lished, the ac­tions listed above must have been car­ried out through any of the fol­low­ing ‘means’:

(a) Threat or use of force or other form of co­er­cion; (b) Ab­duc­tion; (c) De­cep­tion or fraud; (d) The abuse of (i) power; or (ii) a po­si­tion of vul­ner­a­bil­ity; (e) The giv­ing or re­ceiv­ing of a ben­e­fit in or­der to ob­tain the con­sent of a per­son who has con­trol over another per­son.

Another cru­cial el­e­ment of the of­fence is the “ex­ploita­tion” re­quire­ment. For the of­fence to be es­tab­lished, it must be shown that the re­cruit­ing, har­bour­ing, etc, was for the pur­pose of ex­ploita­tion. How then is “ex­ploita­tion” de­fined? The def­i­ni­tion sec­tion of the act pro­vides the an­swer: “Ex­ploita­tion” in­cludes(a) The ex­ploita­tion of the pros­ti­tu­tion of a per­son;

(b) Com­pelling or caus­ing a per­son to pro­vide forced labour;

(c) Keep­ing a per­son in a state of slav­ery or servi­tude;

(d) En­gag­ing in any form of sex­ual ex­ploita­tion;

(e) Il­licit re­moval of or­gans.

THE ACT OF TRAF­FICK­ING

To con­nect the dots, there­fore, the act of traf­fick­ing is com­mit­ted when one re­cruits or har­bours a per­son for the pur­pose of caus­ing that per­son to pro­vide forced labour ... and achieves this pur­pose through the use of threat or use of force.

A case in point is the re­cent case of the Crown against Ra­jesh Gu­runani heard in the Supreme Court be­fore Jus­tice Court­ney Daye. Gu­runani was or­dered to pay $4.5 mil­lion in dam­ages and fines af­ter be­ing found guilty of hu­man traf­fick­ing.

The pros­e­cu­tion led ev­i­dence in the case that Gu­runani traf­ficked na­tion­als from In­dia be­tween Au­gust 2009 and March 2011 and held them un­der “an en­vi­ron­ment of en­forced con­trol”. The court was also told that the three vic­tims in the case — who were re­cruited from In­dia to work with Gu­runani — were not paid their cor­rect wages and that two of them suf­fered phys­i­cal and emo­tional abuse from Gu­runani.

At the end of the trial, Gu­runani was con­victed of three counts of traf­fick­ing in per­son, three counts of with­hold­ing travel doc­u­ments, three counts of fa­cil­i­tat­ing traf­fick­ing in per­sons, and t hough Gu­runani avoided a term of im­pris­on­ment, the Of­fice of the DPP was happy with the con­vic­tion.

Se­nior Deputy Di­rec­tor of Public Pros­e­cu­tions Lisa Palmer-Hamil­ton said that the con­vic­tion sent a mes­sage that the Ja­maican author­i­ties are se­ri­ous about pros­e­cut­ing the crime.

Alas, this 2015 traf­fick­ing re­port would seem to sug­gest (al­beit the re­port hav­ing been pre­pared be­fore the con­vic­tions were handed down) that our Amer­i­can al­lies do not share Palmer-Hamil­ton’s view that the Ja­maican author­i­ties are se­ri­ous about pros­e­cut­ing the crime.

Maybe it would help, though, if the po­lice gave the pros­e­cu­tors more work to do in this area. All those sex shops mas­querad­ing as mas­sage par­lours across the Cor­po­rate Area and mak­ing a night­mare of the lives of nearby res­i­dents should pro­vide fer­tile ground for charges and con­vic­tions.

 ?? FILE ?? Deputy Su­per­in­ten­dent of Po­lice Carl Berry (left), head of the Ja­maica Con­stab­u­lary Force’s Anti-Traf­fick­ing in Per­sons Unit, and Se­nior Deputy Di­rec­tor of Pros­e­cu­tions Lisa Palmer-Hamil­ton (right) in pri­vate dis­cus­sion dur­ing a fo­rum hosted by The Na­tional Task Force Against Traf­fick­ing in Per­sons.
FILE Deputy Su­per­in­ten­dent of Po­lice Carl Berry (left), head of the Ja­maica Con­stab­u­lary Force’s Anti-Traf­fick­ing in Per­sons Unit, and Se­nior Deputy Di­rec­tor of Pros­e­cu­tions Lisa Palmer-Hamil­ton (right) in pri­vate dis­cus­sion dur­ing a fo­rum hosted by The Na­tional Task Force Against Traf­fick­ing in Per­sons.
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