* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
A longer version of this article first appeared in the Anti-Trafficking Review, issue 6.
Protection of victims and prosecution of traffickers are two central pillars in the anti-trafficking response. Within European policy victims are offered a so-called ‘reflection period’ during which they need to decide whether or not to cooperate with the police, generally followed by temporary residence permits at least for the duration of investigations and/or trials. This policy aims to address both protection and prosecution, by providing an incentive for victims to come forward and offering protection when they do so.
While this model is often framed as a mutual advantage for both protection and prosecution, it is important to understand how the focus on prosecution influences the protection of victims and how residence permits/protection following cooperation are understood in the prosecution system. Can, in fact, two birds be killed with one stone?
Based on our research in Norway with victims of trafficking, prosecutors, investigators and lawyers we argue that the linking of protection and prosecution brings with it a number of practical complications for victims and their protection, as well as for the prosecution of traffickers. The basic features of the reflection period in Norway is that (possible) victims of trafficking are eligible for a six-month reflection period with a low threshold, one-year renewable residence permits if they cooperate with the authorities, and permanent residence if they testify against traffickers in court.
For victims, there are three central problems that arise with this type of policy. Firstly, it creates a substantial pressure to cooperate with the authorities, even when it may not be in their best interest. Secondly, it creates unequal access to assistance, depending on whether they have useful information about traffickers, as well as on the police capacity to investigate. Thirdly, the decision about cooperation can generally not be informed (as set forth in several policy documents) and is not always in the best interest of victims, given the highly unpredictable outcomes of criminal justice processes, which have great bearing on the actual final outcomes for victims.
What is often less discussed is that conditional protection of victims can also have adverse effects on the prosecution of traffickers: it can undermine victims’ credibility as witnesses when they are ‘rewarded’ with residence permits. There have been specific court decisions where the evidentiary value of victims’ testimonies was considered as diminished due to their eligibility for residence permits. Another issue is that this type of conditional assistance, when organised the way it is in Norway, can cause delays in sharing information that is central to investigation and prosecution: cooperation is not a prerequisite at the initial stage (the six-month reflection period), and victims typically only report traffickers as the reflection period is about to expire. By that time, technical evidence and witnesses that can corroborate the testimony have disappeared, substantially diminishing the chances that the case will ever go to a trial.
Policy discussions and documents tend to frame victims primarily as trauma patients in need of time, recovery and trust building, and give less consideration to other aspects of their decision making. For many victims identified in Norway a residence permit is extremely highly valued. Furthermore, it is not in the best interest of all victims to cooperate with the authorities, let alone to testify in trials. It is useful to contextualise the legal focus in discussions of trafficking, and the gendered aspects of anti-trafficking policy. International, European and Norwegian debates on human trafficking link it to prostitution and sexual violence. This means that trafficking for the purpose of prostitution and sexual exploitation historically has come to stand for the whole phenomenon. This is relevant to how it is prosecuted and how victims are protected.
It has been argued that legal strategies towards various forms of sexual and sexualised violence in general have been prioritised to such a degree that it is affecting victims’ access to rights and assistance. The appeal of legal strategies is not difficult to understand, as law has such great definitional and practical consequences. As legal strategies are important instruments in battles for justice and recognition, low conviction rates are read as evidence of political and cultural failures. However, this further justifies increasing pressures on victims to come forward and testify.
There is a broad literature on how victims/witnesses in cases of sexual or sexualised violence face challenges in legal proceedings and how it is necessary for victims to live up to the standard of ‘ideal’, ‘iconic’ or ‘culturally approved’ victimhood to appear credible in court. In order to be a credible victim, she needs to live up to respectability standards and be seen as someone who has not contributed towards her own victimisation. When the standards of the criminal justice system become the precondition for social assistance, this means that this limited understanding also comes to determine who receives protection, excluding those with more complicated lives and ambivalent roles. As such, conditional assistance is a clear privileging of prosecution over protection, although in reality both goals suffer.
Anette Brunovskis is a sociologist and researcher at Fafo, an independent research institute in Oslo, Norway. She has conducted many studies on human trafficking, with a particular focus on assistance provision and anti-trafficking responses, in Norway, Eastern Europe and the Balkans.
May-Len Skilbrei is a Professor of Criminology at the University of Oslo. Her research focusses on human trafficking, prostitution, migration, gender and globalisation.
