1. osce.org
Office of the Special Representative and Co-ordinator on Combating Trafficking in Human Beings • Aimée Comrie, Adviser • July 2011
Expert Seminar on the Prosecution of THB: Best Practices for Vulnerable Victim-Witnesses
FIRST OF ALL, LET ME TAKE THIS OPPORTUNIT Y TO THANK THE UN SPECIAL RAPPORTEUR FOR HER EXCELLENT WORK ON THB AND FOR BRINGING US ALL TOGETHER IN THIS FORUM. I ONLY WISH THAT WE HAD MORE TIME TOGETHER TO DEVELOP THE EXCELLENT IDEAS THAT HAVE BEEN PUT FORWARD ALREADY TODAY.
I ALSO KNOW THAT IT HAS BEEN A VERY INTENSE DAY AND YOU ALL MAY BE TIRED AND SO I WILL ENDEAVOUR TO LIMIT MY PRESENTATION TO THE VERY CORE POINTS, AND HOPEFULLY HAVE AN OPPORTUNITY TO DISCUSS WITH YOU THE BROADER CONTEXT AT A LATER STAGE.

2. At the core of trafficking is exploitation
Exploited persons tend to be vulnerable:
May be traumatized and susceptible to re-traumatization
Require particular attention and focus from investigator and prosecutor
May be reluctant to cooperate for various reasons
May be reluctant to discuss explicit details of their ordeal
May be challenged in providing linear narratives which can meet the burden of proof
Benefit from multidisciplinary human rights approach including psycho-social, medical, legal counselling
Benefit from joint investigation teams
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WE ALL KNOW THAT WHAT REALLY DISTINGUISHES TRAFFICKING FROM OTHER CRIMES IS THE KEY ELEMENT OF EXPLOITATION. EXPLOITED PERSONS TEND ALSO TO BE VULNERABLE PERSONS, THAT IS THE FOCUS OF MY PRESENTATION TODAY. HOW CAN WE CONDUCT BETTER INVESTIGATIONS WHERE VULNERABLE VICTIMS ARE INVOLVED?

3. Modern Slavery: What does it look like?
Subtle forms of coercion Equally pernicious Equally exploitative Harder to prove at trial than physical chains Need to identify factual indicators
AT THE OFFICE OF THE SR OF THE OSCE, A KEY FEATURE OF THE MODERN SLAVE TRADE THAT WE ARE REPORTING ON, AS ARE MANY OF YOU, IS HOW MANY SITUATIONS OF THB NOW REFLECT MORE SUBTLE FORMS OF COERCION.
THESE FORMS ARE EQUALLY PERNICIOUS, EQUALLY EXPLOITATIVE WHETHER THB FOR SEXUAL, LABOUR OR CHILD TRAFFICKING OR TRAFFICKING FOR THE REMOVAL OF ORGANS. THE KEY DIFFERENCE THOUGH IS THAT THEY ARE HARDER TO PROVE IN COURT THAN PHYSICAL CHAINS.
THE CORE ISSUE IS VULNERABILITY AND VULNERABILITY EXPRESSES ITSELF IN DISTINCT FACTUAL FORMS WHICH SOMETIMES FAIL TO GET REGISTERED IN WITNESS STATEMENTS AND EVIDENCE COLLECTED BY INVESTIGATORS.
IF THE INTERVIEWER DOES NOT CATCH THESE IN ALL OF THEIR MANIFESTATIONS, THERE IS A RISK THAT THEY WILL NOT MEET THE BURDEN OF PROOF.

4. Need for witness evidence that tells the full story.
WHY IS INVESTIGATING AND PROSECUTING THB SO HARD NOW?
RELUCTANCE TO RECOGNIZE OTHER KINDS OF COERCION – FOR EXAMPLE, LAW ENFORCEMENT DISCOVERS LABOURERS BEING EXPLOITED IN SEVERE HARDSHIP, IN SITUATION OF DEBT BONDAGE AND CONFISCATION OF SALARY – BUT INVESTIGATORS OR LAW ENFORCEMENT MAY SAY, THEY CONSENTED TO IT, THEY KNEW THEY CAME IN ILLEGALLY AND SO WERE NOT COERCED.
LACK OF UNDERSTANDING/CONSCIOUSNESS OF COERCION – CONSENT IS OFTEN IRRELEVANT IF COERCION HAS VITIATED IT.
AND YET PRECISE CONCRETE DETAILS MUST BE PROVEN
GAP BETWEEN THE EVIDENTIARY DEMANDS OF BURDEN OF PROOF AND THE RIGOURS OF TRIAL, VS. BEST INTERESTS OF WITNESS HEALTH AND WELL BEING

5. How can we strengthen victim-witness evidence?
By relying less on victim-witness evidence, through strategic investigation planning which aims at a full array of corroborative evidence.
Better interview techniques – victim led and full, informed consent obtained throughout the process.
Using an array of victim and witness protection strategies even in resource-challenged states which cannot always afford relocation programs.
I’M GOING TO FOCUS ON THREE SIMPLE POINTS FOR IMPROVEMENT TODAY:
STRATEGIC INVESTIGATION PLANNING
BETTER INTERVIEW TECHNIQUES
BETTER WITNESS AND VICTIM PROTECTION THROUGHOUT THE INVESTIGATION

6. What is a strategic investigation plan?
Building a global view of the transaction into the collection:
Specialized unit, multidisciplinary team, gender perspective
Trained, neutral, sensitive, professional interpreters
Devoted crime analysis including crime pattern analysis
Network analysis, modes of liability, chain of command
Identify key partners for first contact
Use of covert assets or intermediaries if appropriate
STRATEGIC INVESTIGATION PLANNING
FROM THE MOMENT A VICTIM IS IDENTIFIED, STATES HAVE AN OBLIGATION TO INVESTIGATE. WHERE ARE THEY GOING WRONG? MISSING THE BIG PICTURE. THEY FAIL TO CONNECT THE TRANSACTIONAL DOTS BETWEEN SMUGGLING, FORGERY OF DOCUMENTATION, PROSTITUTION, LABOUR VIOLATIONS.
WHAT IS NEEDED IS A STRATEGIC VISION – IDEALLY A SPECIALIZED UNIT FOCUSING ON TRAFFICKING WITH A MULTIDISCIPLINARY TEAM – MY OWN EXPERIENCE THIS WORKS WELL – PSYCHO SOCIAL, MEDICAL, GENDER CONSIDERATIONS
PROFESSIONAL, NEUTRAL INTERPRETERS PROPERLY TRAINED
STAFF DEVOTED TO CRIME ANALYSIS – NOT ONLY COLLECTION – TO IDENTIFY EMERGING CRIME PATTERNS, MODES OF LIABILITY – IS THIS INDIVIDUAL WORKING AS PART OF A LARGER ORGANIZED CRIMINAL GROUP AND IS THIS GROUP CONNECTED TO A LARGER NETWORK? IS THERE A DIVISION OF LABOUR? WHO IS RECRUITING, WHO IS MANAGING THE MONEY, WHO IS GIVING ORDERS? WHO IS TRANSPORTING? WHO MAKES THE CALLS?
FOCUS ON BUILDING LONG TERM PARTNERSHIPS WITH NGOS – THIS IS THE KEY TO GETTING GOOD EVIDENCE – THERE IS MUTUAL DISTRUST IN MANY COUNTRIES AND THIS TAKES YEARS OF PATIENT RAPPORT BUILDING – NEED TO SHOW THAT YOU CAN TREAT VICTIMS SAFELY AND IN THEIR BEST INTERESTS BEFORE THEY WILL GIVE YOU OVER THE NAMES AND LOCATIONS OF VICTIMS. THEY OFTEN ARE BETTER AT PUTTING INTO PRACTICE THE MODEL OF DO NO HARM.
CONSIDER HIRING INTERMEDIARIES – OR COVERT ASSETS – SOMEONE WHO HAS A COVER STORY - SELECTED NGO STAFF NORMALLY – WHO CAN HELP MAKE FIRST CONTACT WITH VICTIMS IF REGULAR CONTACT WOULD RAISE THE PROFILE OF THE VICTIM

7. Aggressive evidence acquisition
Eases the burden on victims and witnesses Forensic Documentary Material, Video, Photographic Expert, pattern and overview Financial Intercept Suspect, insider or collaborator
OTHER KINDS OF EVIDENCE BESIDES TESTIMONIAL EVIDENCE OF VW? BE AGGRESSIVE IN EVIDENCE ACQUISITION TO EASE THE BURDEN ON YOUR WITNESSES
FORENSIC EVIDENCE – PETITION MEDICAL INSTITUTIONS ONCE CONSENT GIVEN
DOCUMENTS, MATERIAL OBJECTS SEIZED THROUGH SEARCH AND SEIZURE OPERATIONS
PHOTOGRAPHIC OR VIDEO EVIDENCE COLLECTED BY MEDIA OR CIVIL SOCIETY
EXPERT, OVERVIEW, AND PATTERN EVIDENCE
FINANCIAL INVESTIGATIONS
FOLLOW THE MONEY!
DOES NOT NEED TO BE COMPLICATED – BUT IT IS PAINSTAKING – COLLECTING RECEIPTS AND TRANSACTION HISTORIES FROM VISA, MASTERCARD.
IDENTIFY FREQUENTLY USED INTERNATIONAL MONEY TRANSFER AGENCIES – THE USUAL CULPRITS WESTERN UNION AND MONEYGRAM ARE OFTEN USED BY TRAFFICKERS
REQUEST INFORMATION FROM ALL SOURCES WHERE WARRANTED – BANKS, AIRLINES, HOTELS
INTERCEPT EVIDENCE
THE KEY! IF TECHNOLOGICALLY AND LEGALLY PERMISSIBLE, AMAZING OPPORTUNITY TO CORROBORRATE VICTIMS TESTIMONY
LANDLINE, MOBILES AND INTERNET SERVERS AND PROVIDERS
HOTMAIL, YAHOO ARE REGULARLY REQUESTED TO GIVE THIS INFO TO LAW ENFORCEMENT AND IT CAN BE VERY SUCCESSFUL
PHYSICAL SURVEILLANCE TO RECORD MOVEMENTS, MEETINGS, TO HELP ESTABLISH INNER DECISION MAKING CIRCLE, MEETING TIMES
CALL FREQUENCY CHARTS
HELP ESTABLISH THE KEY LINKS BETWEEN COUNTRIES OF ORIGIN TRANSIT AND DESTINATION
THE INSIDER OR SUSPECT INTERVIEW - CAN BE SMALL TIME COLLABORATOR TO MAJOR CO-PERPETRATOR
TAKES MONTHS TO IDENTIFY WHO COULD BE APPROACHED BASED ON THEIR PROFILE – WHO HOLDS A GRUDGE, WHO NEEDS AN OUT
BUT THIS LIST MAY SEEM LIKE A WISH LIST TO MANY NATIONAL LAW ENFORCEMENT AGENCIES, WHO DO NOT HAVE SUFFICIENT VICTIM AND WITNESS PROTECTION SYSTEMS IF AT ALL, WHOSE SLOW BUREAUCRACIES CAN STIFLE REQUESTS FOR MUTUAL LEGAL ASSISTANCE, OR WHOSE CORRUPT POLITICAL STATES CAN THREATEN TO BLOCK FINANCIAL INVESTIGATIONS.
AND SO MANY TRAFFICKING INVESTIGATIONS STILL UNFORTUNATELY RELY MUCH TOO HEAVILY ON TESTIMONY OF VICTIMS AND WITNESSES. FROM A PROSECUTOR’S PERSPECTIVE, THIS IS A HUGE RISK FOR SEVERAL REASONS NOT LEAST OF WHICH IS WITNESS INTIMIDATION OR FATIGUE.
WHAT DOES WITNESS INTIMIDATION LOOK LIKE IN PRACTICE? OFTEN PERPETRATORS TARGET THE VICTIM-WITNESS’ FAMILY MEMBERS AND IT CAN HAVE A DEVASTATING EFFECT ON THE WITNESS, AND THE TRIAL PROSPECTS.

8. Don’t forget
Victims and witnesses in trafficking case are often overlooked as a source of vital linkage evidence. They often are privy to intimate knowledge of the planning and execution of crimes, of the means of communication and the key decision makers in an organized criminal group.
EXAMPLE: GENEVIEVE

9. Interviewing vulnerable victims and witnesses
Selection of possible witnesses based on availability and profile Overcoming reluctance of the investigators Overcoming reluctance of the victim/witness to participate Overcoming reluctance to speak about certain acts
INTERVIEWING VULNERABLE VICTIMS AND WITNESSES
WHAT I HAVE SEEN IN PRACTICE IS A TENDANCY AMONG INVESTIGATORS THEMSELVES TO AVOID DOING THE VERY HARD INTERVIEWS OF VICTIMS OF SEXUAL SLAVERY, CHILD TRAFFICKING OR OTHER SEVERE FORMS OF TRAFFICKING. THERE TENDS TO BE A HIERARCHY AMONG INVESTIGATORS AND THOSE WORKING ON SUSPECT OR INSIDER INTERVIEWS TEND TO BE SEEN FOR SOME REASON AS MORE GLAMOUROUS. THIS ALSO STEMS FROM SEVERAL REASONS WHICH COLLEAGUES DESCRIBED TO ME:
MEN RELUCTANT TO FACE DETAILS OF SEXUAL SLAVERY AND CRIMES COMMITTED AGAINST CHILDREN BECAUSE OF A FEELING THAT THEY ARE NOT SUFFICIENTLY TRAINED EVEN THOUGH THEY HAVE ATTENDED AND TAKEN PART IN EXTENSIVE TRAINING OR BECAUSE THEY CAN’T TAKE PROFESSIONAL DISTANCE FROM THE ISSUE RELATING IT TO THEIR OWN WIVES OR CHILDREN
MEN AND WOMEN RELUCTANT TO FACE THE FACTS OF THESE CRIMES DUE TO THEIR OWN CULTURAL OR RELIGIOUS TABOOS
AS SOMETIMES EXPRESSED, CRIME BASE EVIDENCE IS EASIER TO COLLECT THAN SUSPECT EVIDENCE – A KIND OF PROFESSIONAL CHAUVINISM
WELL INTENTIONED FEAR OF RE-TRAUMATIZING THE VICTIM BECAUSE OWN PROFESSIONAL EXPERIENCE HAS REVEALED SERIOUS FAILURE OF THE CRIMINAL JUSTICE SYSTEM TOWARDS THE VICTIMS
SO OFTEN YOU HAVE INVESTIGATORS WHO ARE RELUCTANT TO DO THESE INTERVIEWS.
AND THE VICTIMS OF COURSE ARE A LOT MORE RELUCTANT:
FEELINGS OF RELUCTANCE OF VICTIMS AND WITNESSES – HOW TO DEAL WITH:
Identify and deal with reasons for reluctance (safety, misunderstanding of interviewer’s mandate, fear of reprisal on family or relatives in country of origin, etc.)
Refer the victim for other services where needed (psycho-social, housing, medical)
Identify all persons present and their mandate
Ask questions designed to elicit the reasons for the reluctance and actively listen to what is said and not said
Take time to discuss the benefits of cooperation in criminal justice process – but make no promises re protection! Do not raise expectations of international relocation but explain all protective measures available and take time for those to sink in.
Be frank about the long dire nature of most criminal trials.
Be creative BUT sober, truthful, respectful
Use tools to assist you
Create support team where appropriate
Maintain contact if appropriate
Take extra care with all possible incentives for cooperation – so WV is not vulnerable on cross
Do not make threats, promises or inducements
Do not instill fears that were already there
Be cautious not to replicate offender strategies to have the victim do what you would like her to do as a witness

10. Informed consent is the ethical responsibility of the investigator.
Should include professional evaluation from psycho-social perspective on capacity to consent and should be re-evaluated throughout the interview. The inherent power dynamics, made worse in THB situations, should make you lose sleep at night – has this person really consented, do they really understand? Do they know the full extent of the risks and dangers they are submitting their families to?
COMPARE THREE VICTIMS:
MARIE – VICTIM OF SEXUAL ENSLAVEMENT – SEVERELY OSTRACIZED BY HER FAMILY AND COMMUNITY, LIVING BY PROSTITUTION WITH LOW SELF ESTEEM, LIVING IN FEAR FROM HER PERSECUTORS - BECAME STAR WITNESS, SUCCESSFUL RELOCATION WITH VOCATIONAL TRAINING, ECONOMIC INDEPENDENCE, SAFETY FOR HER AND IMMEDIATE FAMILY MEMBERS.
LOUISE – VICTIM OF SEXUAL ENSLAVEMENT – WAS SUPPORTED AND WELCOMED BACK INTO HER IMMEDIATE FAMILY, WHO ENCOURAGED HER TO ATTEND ELEMENTARY SCHOOL AND LATER HIGH SCHOOL, SHE LIVES IN IMMEDIATE FAMILY WITH HER YOUNG SON CHILD OF HER ENSLAVEMENT PERIOD, WHO HER PARENTS TAKE CARE OF WHILE SHE STUDIES, SHE WOULD LIKE TO BE A DOCTOR IN THE COMMUNITY AND IS A ROLE MODEL – NOT A GOOD CANDIDATE FOR A WITNESS EVEN THOUGH SHE IS SO STABLE BECAUSE RELOCATION PROGRAM WOULD DESTROY HER LIFE, RIP HER FROM HER COMMUNITY AND SUPPORT NETWORK. YOU HAVE TO THINK ABOUT THE BEST INTERESTS OF THE VICTIM-WITNESS IN THE LONG TERM AND COME TO A MUTUAL UNDERSTANDING OF JUST WHAT IS INVOLVED WITH GIVING WITNESS TESTIMONY.
GENEVIEVE - WITNESS AND SECURITY ISSUES – REVEALED HER ULTIMATE KNOWLEDGE OF HIGH RANKING PERPS – EXAMPLE OF MULTIPLE INTERVIEWS AND NON LINEAR STATEMENT THAT WAS NONETHELESS VERY SUCCESSFUL.

11. The Step-Wise Interview
Introduction
Build rapport
Free narrative
Open questioning
Specific questions (optional)
Forensic information (optional)
Conclusion
This is an interview methodology established by a brilliant Canadian psychologist, Dr. Yiulle, for victims of sexual assault which has been adopted by US, Canadian and UK law enforcement agencies.
It is brilliant because it is simple. The most important two questions are: 1) Tell me what happened to you. And 2) Can you tell me more about X.
There is no need for 15 page outline with bullet pointed questions.
The victim leads the interview in her or his words – and the statement should ultimately reflect his or her words so it can be repeated that way in Court one day or so that they can recall it.
If there are inconsistencies there may be a need to return to them under the section entitled ‘Specific questions’.
You cannot underestimate the importance of rapport-building and this can mean a significant investment of time and sometimes over several interviews.
Before you get to the interview of course there are several other steps which need to be taken of course.
The guiding principle should be DO NO HARM.

12. You have to get to the hard stuff.
Penetration (if sexual assault) Repeated episodes Dates, time, length of enslavement Multiple perpetrators
THE WORST POSSIBLE SCENARIO (WHICH I HAVE SEEN) IS THAT A RELUCTANT WITNESS AGREES TO GIVE EVIDENCE BUT INVESTIGATORS FAILED TO GET THE CORE ELEMENTS OF THE CRIME IN HER STATEMENT – MEANING THAT THERE IS NOT SUFFICIENT EVIDENCE TO MEET THE BURDEN OF PROOF AND THE WITNESS HAS GONE THROUGH THE PROCESS FOR NOTHING.
IF DEALING WITH SEXUAL ENSLAVEMENT FOR EXAMPLE, YOU HAVE TO GET TO THE DETAILS OF THE SEXUAL ACTS.
IF DEALING WITH CHILD SOLDIERS FOR EXAMPLE, YOU HAVE TO GET TO THEIR AGE.

13. Eliciting sexual acts
Their words first But get to technical side Use of diagrams, tools Watch out for traumatization, do no harm! Do not use suggestive photos, your or their body, do not paraphrase
FEELINGS OF RELUCTANCE RE SEXUAL PARTS OR ACTS
Separate the VW from the communication by the use of
Seating of parties
Use drawings or other tools
Have interviewee write it down if appropriate (literacy, age)
DO:
Explain why you need the detail
Determine the witness knowledge about the body parts and functions and their own vocab
Provide the WV with choices about setting, time, persons present
Ask the WV what would make it easier in terms of communication and work out a method
Use a drawing if you can’t elicit the detail without – number, date and sign all drawings and x-reference in the statement and register as evidence
Record the terms and acts precisely as the witness uses them.
DO NOT:
Interview WV alone
Assume reluctance without trying
Show pictures of a leading nature – be careful with photoboards!
Express judgment over what you hear
Have the WV use his or her body or yours to demonstrate
Paraphrase what the WV says using interviewer’s language
Teach the WV the names or functioning of body parts

14. Assessing credibility
Credibility is assessed without reference to hard fast rules and yet it has to rely on more than a hunch.
Assessing credibility is important throughout the investigative process. If you have doubts about the credibility of the victim-witness it is only fair to work through these prior to the testimony. The victim-witness will, at least in common law jurisdictions, be submitted to a rigorous cross examination. Because victims of trafficking have a higher tendency towards traumatization, there is a need for understanding the link between trauma, memory and recall.

15. How to analyze witness evidence?
Coherence Spontaneous reproduction Appropriate detail Contextual embedding Reproduction of conversation Unusual details, unexpected complications, peripheral details. Admitting lack of memory, knowledge Spontaneous corrections Expressing insecurities
These criteria for statement analysis were also developed by John Yiulle.

16. The paradox of repetition…
Contrary to popular intuition, the fact that a story is repeated in the same identical way over and over is actually not an indicator of credibility but is rather a possible indicator of fabrication. Memory is active – each time our brain recalls a memory it is freshly reproduced. This means that when we’re recalling events that actually happened to us, we are likely to recall this event in a slightly different way each time, reflecting fresh or different details than the previous time.
Try it yourself – try to describe an incident from your past in exactly the same way two or three or four times….now try that with an episode that was traumatic for you.
And yet – there is still often an expectancy that victim-witnesses need to tell the same story in Court as they did in their first statement otherwise they are not being ‘truthful’ or ‘consistent’.

17. Victim and Witness Protection
Need for full effective independent VWP schemes vs. reality
Best practices along the way in the absence of VWP:
Covert assets, partners
Confidentiality
Safe havens, empowerment
Initial response capacity
Communication
Ongoing victim care including psycho-social
Redacted identities vs. anonymous testimony
The sina qua non of serious organized crime cases is victim and witness protection especially international relocation, including the provision of a new identity with ongoing psycho-social care, vocational training, and the inclusion of immediate family members.
However – in many states battling THB today – there simply are not the resources available to put in place this kind of system.
The lack of VWP means that victims are less willing to cooperate and less THB cases are investigated and prosecuted. The lack of VWP often means that witnesses that do cooperate are often subject to intimidation or worse. What does intimidation look like in practice? Common strategy is to target immediate family members. It doesn’t take much actually to instil this fear.
So what do we do? What is the alternative? Halt all investigation and prosecution of THB until states have sufficient resources to protect victims and witnesses fully?
I suggest that in the absence of relocation programs, there are still a series of relatively inexpensive ways that law enforcement agencies can better protect victim witnesses, including enabling or empowering them to take action in their daily lives to protect themselves and their families.
Simple things – provision of a mobile phone – identification of safe havens – identification of focal point in community – importance of redactions – ongoing communication, care and checking up on victim-witnesses by the investigator and/or prosecutor.

18. osce.org