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Transaction Costs: Prosecuting child trafficking for illegal adoption in Russia

by Lauren A. McCarthy | Global Alliance Against Traffic in Women
Sunday, 25 September 2016 06:25 GMT

School children line up during a ceremony to mark the beginning of a new academic year at school-liceum number 12 in Russia's Siberian city of Krasnoyarsk in this 2012 file photo. REUTERS/Ilya Naymushin

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Legal professionals are focusing on buying and selling, while exploitation that doesn't involve a transaction may be ignored

As a relatively new crime, human trafficking is extraordinarily difficult to uncover, identify and investigate. Law enforcement agents, prosecutors and judges often have different views of what trafficking actually is, how it presents itself and in which cases they should apply trafficking laws.

To understand when and whether law enforcement agents move forward with investigating and prosecuting a trafficking case, we must also understand how they conceptualise the crime. This is an approach that requires careful study of individual countries, their law enforcement agencies and their historical experiences with trafficking and trafficking-like crimes. Drawing on ten years of data from Russia (2003-2013), I show that legal professionals there - from detectives to judges - have coalesced on a concept of trafficking that emphasises transactions rather than exploitation. While the internationally agreed-upon definition of trafficking pinpoints exploitation as the main purpose of trafficking, Russian law retains a different understanding of trafficking that focuses on the buying and/or selling of a person. In other words, if you buy or sell a person, you will likely be prosecuted under trafficking laws, but if you exploit a person without buying or selling anyone, you may get away with it or be charged with a lesser crime. How did this happen?

For a complete view of the situation, we must start in the 1990s. During Russia’s troubled post-Soviet years, foreign adoption of Russian babies, particularly by Americans, was widespread. While people in the West saw rescuing abandoned children from dismal orphanages as a magnanimous gesture, many in Russia saw it as a tragedy of national proportions. Media coverage emphasised that the future of Russia’s gene pool was being bought by unscrupulous people who would use the babies for organs or sexual exploitation. Worse yet were the tragic deaths of several orphans who had been neglected, abused or killed by their foreign adoptive parents. This became one of the primary narratives of human trafficking in Russia, or, as it was then called in law, ‘trafficking of minors’.

The idea of buying and/or selling a person as the crux of the trafficking crime also set the stage for a significant pushback when the old law was replaced in 2003 by a law that encompassed all forms of human trafficking. Importantly, the 2003 law changed the focus of the trafficking crime to exploitation rather than transactions. But the old understandings persisted. The wording of the 2003 law made law enforcement officials believe that buying and selling of minors had been de-criminalised and they fought hard to have those provisions re-instated. They were successful in 2008 after numerous cases in which they insisted they could not prosecute people who sold infants for illegal adoption because the law did not allow it.

Looking at data, however, shows that the perceptions do not necessarily line up with reality. Most cases of child trafficking for illegal adoption in Russia are of desperate parents who have sold their children because of financial or other forms of instability. They are usually caught in the act by undercover law enforcement agents so it is impossible to know whether they would have looked for buyers abroad, but their patterns of sale suggest that this is unlikely. They generally only advertised in their own social networks and locally. While there have been some larger baby trafficking rings uncovered over the past several years, none of them have been selling babies abroad. Of course, this is data from cases that have been uncovered by law enforcement so it remains possible that there are underground baby-selling rings still in existence. But given the resources dedicated to pursuing this type of trafficking, it seems unlikely.

In all countries law enforcement has limited resources to pursue trafficking cases. Consequently, they must make decisions about what types of cases are worth it. As suggested here, these choices have a lot to do with their own understandings of what trafficking looks like. In Russia a focus on transactions elevates the importance of child trafficking at the expense of other forms of trafficking in which straightforward transactions are more the exception than the rule. In cases of sexual or labour exploitation, it is rare that people become victims through a monetary transaction. Forms of recruitment are significantly more varied and include false employment offers, force, coercion and, on rare occasions, kidnapping. But the transaction element has become so important to law enforcement that agents rarely identify any situation as trafficking if there is not an element of buying and selling. This strategy has brought Russian law enforcement great success in child trafficking cases - after 2008, almost all cases of child trafficking charged under the human trafficking laws had successful convictions, many with significant prison sentences. On the other hand, for example, between 2003 and 2013, almost all of the cases of internal trafficking for sexual exploitation that were prosecuted in Russia involved a transaction, while an equal number of cases involving very serious sexual exploitation but no transaction were instead prosecuted under other statutes.

Lauren A. McCarthy is Assistant Professor of Political Science and Legal Studies at University of Massachusetts Amherst. Her research focuses on human trafficking and policing in Russia. McCarthy is the author of Trafficking Justice: How Russian police enforce new laws, from crime to courtroom (Cornell, 2015).

A longer version of this article first appeared in the Anti-Trafficking Review, issue 6

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