What if the victim consents? Can children consent?
Victims often consent to the initial stage of trafficking because they are misled or deceived by traffickers.
Trafficking prosecutions are sometimes lost, though, because the evidence needed to establish the true nature of the consent is not available. At the same time, constitutional and other human rights protections in many countries require that those accused of trafficking must be able to raise the possibility of consent as a defence. The Protocol, therefore, states that, if any of the improper means set out in the definition (i.e. coercion, fraud, deception) have been used, any alleged consent to the subsequent exploitation is irrelevant.
Children under 18 cannot give valid consent, and any recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation is a form of trafficking regardless of the means used.
How is “trafficking in persons” different from the smuggling of migrants?
In some respects, trafficking in persons resembles the smuggling of migrants, which is the subject of a further Protocol (Protocol against the Smuggling of Migrants by Land, Sea and Air), but there are several important differences.
The smuggling of migrants, while often undertaken in dangerous or degrading conditions, involves migrants who have consented to the smuggling. Trafficking victims, on the other hand, have either never consented or, if they initially consented, that consent has been rendered meaningless by the coercive, deceptive or abusive actions of the traffickers.
Another major difference is that smuggling ends with the arrival of the migrants at their destination, whereas trafficking involves the ongoing exploitation of the victims in some manner to generate illicit profits for the traffickers. From a practical standpoint, victims of trafficking also tend to be more severely affected and in greater need of protection from re-victimization and other forms of further abuse than are smuggled migrants.
Finally, smuggling is always transnational, whereas trafficking may not be. Trafficking can occur regardless of whether victims are taken to another country or only moved from one place to another within the same country.