News & Insights

Supporting victims and their right to justice through victim-sensitive courts

Lao PDR, training prosecutors to handle victims of trafficking sensitively and respectfully

This article was originally published on aseanact.org

Many victims of human trafficking do not have the information they need to know about their rights to justice and access to remedies. They may feel helpless and cut off from the rest of society. They may experience complex feelings, such as shame and anger, as a result of trauma and abuse. And when trafficked victims have been involved in illegal activity – as many have been as a consequence of being trafficked – they are even less likely to come forward for fear of criminalisation.

The International Labour Organisation estimates there are more than 40 million victims of human trafficking globally each year, yet only 50,000 victims were detected and reported in 2018. In the ASEAN region, there is an estimated 4 million victims of modern slavery. However, only a fraction of these cases – less than one percent - come to trial. There are many reasons why the detected numbers are so small, but one reason may be linked to the treatment of trafficked victims in the criminal justice system.

To effectively investigate and prosecute traffickers, sometimes the only evidence is the testimony of victims. Their cooperation is crucial, however appearing before a court can be a very difficult experience for victims, especially when required to testify about traumatic events. Courts can be intimidating, and victims often feel vulnerable and overwhelmed. The way victims experience the criminal justice system affects their perceptions of the legal process and it has a significant impact on whether other victims are willing to come forward.

International research suggests victims are more likely to engage in the court process if they are treated with fairness and respect. Recognising the role of judges and court officials in empowering and supporting victims, is fundamental to their re-integration and long-term recovery. The challenge however for justice officials is to balance the diverse characteristics, experiences and needs of victims with legal and institutional requirements.

Victim Sensitive Courts Indicators

To improve the way victims are treated in the criminal justice system, the Australian Government through the ASEAN-Australia Counter Trafficking program (ASEAN-ACT), together with target ASEAN countries, developed eight key indicators to encourage victim-centred practices in courts. The indicators serve as a framework and reference point to assist the formal justice sector, in particular courts, to protect the rights of trafficked persons.

The eight indicators include:

  1. Victim safety and privacy – to ensure victims are protected from further harm, threats or intimidation by traffickers and their associates.
  2. Evidence and proceedings – to ensure measures are in place and utilised to support and protect victims during the criminal process, particularly when they give evidence.
  3. Justice sector personnel – development of service standards and operating procedures focused on a victim-centric and trauma-informed approach for all judges and justice personnel.
  4. Information and services – provision of information and material in non-legal terms to trafficked victims about their right to services and remedies available to them.
  5. Physical, psychological, and social recovery of victims – development of inter-agency protocols for coordinated ‘wrap-around’ services for trafficked victims including counselling, medical, housing, education and training, legal advice and broader social protection programs.
  6. Medical and forensic services – training conducted and protocols in place to ensure medical and forensic evidence is collected to the highest standards and in a manner that does not cause re-victimisation.
  7. Special provisions for children – the justice process and support services are adapted specifically for child victims and witnesses and are sensitive to the child’s age and special needs.
  8. Special provisions for people living with a disability – the justice process and support services are adapted to meet the specific needs of victims and witnesses living with a disability.

The eight indicators developed to support a victim-sensitive court

Many of the ASEAN partners have begun to implement some changes in practice including Lao PDR where curtains have been used to create a barrier between the victim and the accused; the introduction of video conferencing and virtual testimonies to lodge and hear trafficking cases in the Philippines; and in Thailand, hearing applications for victim compensation at the conclusion of the criminal trial and implementing a ‘Digital Court System’ to better utilise electronic evidence and engage witnesses online. 

Data collection to improve services for victims of trafficking

Implementation of the ASEAN Convention on Trafficking in Persons relies on the collection, analysis and sharing of national trafficking in persons data. Publishing this data is even more valuable as it allows government and civil society to consider how their efforts may be contributing to outcomes positively or negatively.

Without data it is difficult to tell whether government funds allocated to the investigation and prosecution of traffickers are having an impact, or whether the patterns of human trafficking cases are changing across the country/region, and what counter-trafficking efforts might be needed to respond to these emerging trends.

These gaps are compounded by the fact that some legislation, policies, procedures, and practices may not be adequate to safeguard the rights of victims and prevent re-victimisation or re-traumatisation. Of equal challenge and importance, is the collection, monitoring and analysis of trafficking-in-persons data on a regular basis that can help gauge whether protective measures are in place and effectively implemented.

Four key data indicators have also been created for the region, with the support of ASEAN-ACT, as a tool to enable the collection and publishing of information that could support trafficked victims in making an informed decision about participating in legal proceedings. This information is captured in a ‘data dashboard’ and includes standard case management information, as well as data that is more relevant for victims such as: the average duration of a trafficking case; the percentage of cases that lead to conviction; the number of cases where the victim was able to record their evidence in advance of the court hearing; the number of cases where compensation was awarded to the trafficked victims; and the percentage of victims that received support services throughout the criminal justice process.

Example of a Dashboard with figures obtained from the Thailand TIP Country Progress Report 2020

Not only do these indicators encourage victim-centred practices and procedures, but they address significant data gaps, especially on how to handle victims sensitively as they go through the criminal justice process - which most ASEAN member states have identified as a priority.

By working with the courts to ensure that the rights of the victim are central to the justice process, and by implementing the victim sensitive court indicators, we can send a message to victims of trafficking (and victims of other crimes) that the justice system, the courts, and judges are trustworthy, fair, and take the rights of victims seriously.