Inconsistent Penalties: Various Countries

An important factor in the effective prevention of child trafficking is the actual punishment imposed on the perpetrators of child trafficking. A table comparing the penalties imposed on perpetrators of child trafficking by national laws in various individual States is given below.

Table: Penalties in various individual States

State Offence Penalty

Thailand Trafficking of children between the age of 15 to 18 Three to 15 years of imprisonment and a fine241 Trafficking of children under the age of 15 Five to 20 years of imprisonment

and a fine242

Whoever prepares to commit an offence of trafficking One-third of the stipulated penalty243

Whoever, from two persons upwards, conspires to One-half of the stipulated

240

Refer to Annex 2 Table 13 for more comprehensive information.

241 _{1997 Prevention and Suppression of Trafficking in Women and Children Act.} 242

1997 Prevention and Suppression of Trafficking in Women and Children Act.

243

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commit an offence of trafficking penalty244

India Trafficking in persons (i) First conviction

(ii) Second or subsequent conviction

Not less than seven years imprisonment

Life imprisonment245 Attempts to commit or abets trafficking in persons Same as the offence for

trafficking in persons246

United States

Trafficking in persons Up to 20 years imprisonment and/or a fine247

Involving death or kidnapping, aggravated sexual abuse or an attempt to kill

Possibility of life imprisonment248 Sex trafficking in children under 14 years old or use

force, fraud, or coercion for sex trafficking

Possibility of life imprisonment249 Sex trafficking in children 14-18 years old without using

force, fraud, or coercion

Up to 40 years in prison and/or fines250

Anyone knowingly in control of a victim's official or forged documentation

Fines and/or up to five years in prison251

Australia Trafficking of children into and out from Australia Up to 25 years imprisonment252

Cambodia Trafficking in persons under the age of 15 15-20 years imprisonment253 Trafficking in persons over the age of 15 10-14 years imprisonment254

Bangladesh Trafficking in children for immoral or illegal purposes Death penalty or life imprisonment255

China Forced prostitution, abduction and commercial sexual exploitation of girls under the age of 14

From life imprisonment to death penalty256

244

Section 9 of The Anti-Trafficking in Persons Act B.E 2551 (2008).

245 _{Section 5B(1) of the Immoral Traffic (Prevention) Act 1956} 246 _{Section 5B(2) of the Immoral Traffic (Prevention) Act 1956} 247

Chapter 77 of the United State's Code Title 18

248

Chapter 77 of the United State's Code Title 18

249 _{Chapter 77 of the United State's Code Title 18} 250

Chapter 77 of the United State's Code Title 18

251

Chapter 77 of the United State's Code Title 18

252 _{Section 271.4 and 271.7, Division 271 of the Commonwealth Criminal Code (1995).} 253

1996 Law on Suppression of Kidnapping, Trafficking and Exploitation of Humans.

254

1996 Law on Suppression of Kidnapping, Trafficking and Exploitation of Humans.

255 _{Bangladesh, Country Reports on Human Rights Practices, Bureau of Democracy, Human Rights and}

Labor, 2003 <http://www.state.gov/g/drl/rls/hrrpt/2003/27944.htm> accessed at 29 April 2011.

256

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Forced labour Three years imprisonment and a fine257

Abducting and trafficking children From five years imprisonment and a fine to the death penalty258

Vietnam Trafficking of children From three years to life

imprisonment259

Mongolia Human trafficking 10-15 years imprisonment260

This table shows that there is neither a standardization of the severity of penalties imposed on perpetrators, nor a standardization of the age of victims for the purposes of determining the penalties to be imposed. Therefore when there are inconsistencies between national laws amongst various individual States in the severity of punishment for those convicted of child trafficking, there are problems which arise. Some penalties may be too severe, such as the death penalty in Bangladesh and China, leaving judges and juries reluctant to convict those involved in child trafficking, and some penalties are not severe enough, consequently failing to serve as a deterrent for these perpetrators.

Thus, there should be a standardization of the severity of punishment based on the degree of involvement of perpetrators and the age of victims. This standardization can come in the form of a new provision for the criminalization of child trafficking, stipulating the range of penalties that ought to be imposed. Although some may argue that this would interfere with the sovereignty and power of individual States to self-govern, it must be remembered that child trafficking is a global phenomenon and needs a united global approach.

In sum, the national implementation of Article 5 of the Trafficking Protocol shows that the inadequacies of the definition of trafficking in Article 3 of the Trafficking Protocol and its neutrality towards prostitution diminish the effective prosecution and punishment of perpetrators of child trafficking. Moreover, the inconsistent national laws between various

257

Article 244 of the Criminal Law of the People’s Republic of China (1997).

258 _{Article 240 of the Criminal Law of the People’s Republic of China (1997).} 259

2007 US Department of State Trafficking in Persons Report.

260

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individual States regarding penalties imposed upon perpetrators results in a lack of a united global approach in preventing child trafficking through the prosecution and punishment of perpetrators.

Another weakness in the framework of international law pertaining to child trafficking is that there are idealistic principles which are difficult to realize; the effects of this weakness is shown clearly through the national implementation of the best interests of the child principle

encapsulated in Article 3 of the CRC. The following discussion focuses on this particular principle because without making the best interests of the child central, any efforts against child trafficking will potentially be adverse or ineffective. For instance, if efforts against child trafficking are made from the sole perspective of an adult and with the interests of the parents or guardian of the child primarily in mind, it is detrimental towards children who are at risk of, are now or have been victims of trafficking.