Law enforcement versus victims’ rights – a balancing act

During the last few months, I have had the opportunity to make some minor inputs to the process of finalising the draft bill on countering human trafficking in Laos.

One of the issues that the drafting committee has had to grapple with is victim identification. This has proven to be a walk on a tightrope between (a) the duty of law enforcement agencies to pursue perpetrators and (b) the understandable wish of many victims to not be part of any criminal investigation. In countries where it is difficult to offer reliable witness and victim protection, it may even be dangerous for victims of human trafficking to be perceived as providing information to the police.

Policy makers appear to be faced with a difficult choice.

Option one is to separate the identification process from law enforcement. This would allow a victim to be recognised as a victim, receive the medical, psychosocial and material support that he or she is entitled to, and to then decide whether or not to report the matter to the police. The anticipated drawback with this option is that many victims may not report what they have experienced to the police. This would create a situation in which the state has to recognise a potentially large number of victims of this very serious crime, but is left unable to take any action against the perpetrators.

Option two is to let the police manage victim identification or to have some other system whereby the police is notified of all instances in which victims seek help from the state. The anticipated drawback with this option is of course that many victims might decide to forfeit the offer of medical, psychosocial and material help for fear that their perceived cooperation with the police could trigger retaliation by the syndicates that orchestrate the trade.

While policy makers in Laos are doing what they can to find some middle ground between these two options, it is reassuring to know that they aren’t the only ones struggling with this dilemma. As I was doing my research, I stumbled across a UK Home Office Memorandum addressed to the Joint Select Committee of the Modern Slavery Bill. The memorandum was a response to a set of questions around ‘the duty to notify’ in clause 35 of the draft Modern Slavery Bill. The Committee was concerned that this legal duty to report all suspected victims of human trafficking to the police would deter victims from coming forward.

In the UK, they now appear to have landed in a compromise. Service providers have a duty to report cases to the police, however, there are two crucial safeguards to ensure a victim-centric approach and to avoid discouraging victims from seeking help:
(1) Adult victims will always have the choice to remain anonymous and so can request that their personal details are not provided to the police.
(2) The legal duty to notify does not apply to Non-Governmental Organisations (NGOs). In the words of the Home Office: ‘Whilst we would like NGOs to have an excellent relationship with law enforcement and share information on victims – to protect them and tackle those exploiting them – we will not use this Bill to compel them to provide information.’

As Laos continues to find its own solutions, perhaps the last sentence in the Home Office reply is worth recalling. ‘We will not use this Bill to compel them [the victims] to provide information.’ This is not only a matter of respecting victims’ rights. It is also a question of ensuring the quality of evidence. Victims who are compelled to report to the police, and who do so only because it is a condition for accessing other kinds of desperately needed help, may not be the best sources of information. If things other than a desire to hold the perpetrators accountable motivate victims’ cooperation, there is a risk that they will try to give as little information as possible, or worse, that they will mislead investigators so as to avoid retribution. In short, law enforcement might not get much to work with, even if victims were compelled to provide information. 

There are many causes of human trafficking in Laos. Many argue that the economic differences in the Sub-Mekong region encourage people to migrate to relatively wealthier neighboring countries like Thailand. An ILO supported study by the Lao Government found that nearly seven percent of households in three border provinces had family members working in Thailand. With more than half of the population under the age of 20, young Lao migrate to fill unskilled jobs and become vulnerable to trafficking.

There are many causes of human trafficking in Laos. Many argue that the economic differences in the Sub-Mekong region encourage people to migrate to relatively wealthier neighboring countries like Thailand. An ILO supported study by the Lao Government found that nearly seven percent of households in three border provinces had family members working in Thailand. With more than half of the population under the age of 20, young Lao migrate to fill unskilled jobs and become vulnerable to trafficking.

Marcus Baltzer