The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack

doi: 10.5102/rdi.v18i1.7129 The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack* A nova Lei Brasileira de Combate ao Tráfico: desafios e oportunidades para suprir a lacuna normativa Waldimeiry Correa da Silva** Abstract This study is based on the assumption that Brazilian counter-trafficking in persons law enforcement has given rise to a complex, deficient, confusing anti-trafficking system that presents legal obstacles. Derived from this lack of harmonization in the Brazilian context, there were different ways of interpreting what trafficking was, which has also generated a confusing framework regarding the interpretation of the concept itself. Hence, the new anti-trafficking law in Brazil (13.344/2016) was approved in order to cover this normative vacuum and to act as a useful and proactive instrument in tackling human trafficking in Brazil that would comply with the due diligence. The purpose of the article is to analyse whether the irrelevance of consent to crimes of trafficking in persons in the new anti-trafficking law in Brazil complies with the requirements of international law on the matter. For these purposes, we apply a descriptive qualitative methodology, consisting of the review and analysis of the legal regulations, jurisprudence, doctrine and legal bibliography. The procedure to access the information from secondary sources has been carried out through the following search engines and bibliographic databases: Web of Science, Scopus and Google Scholar. In turn, the various Brazilian and United Nations repositories, databases and specialized studies on the subject were used. The conclusions of this study contribute to the area in that they show that, to comply with the due diligence, it is necessary to meet the requirement of the international standard on the irrelevance of consent. Thus, favouring a multidirectional action that safeguards the human rights of victims-survivors. Key Words: Trafficking in persons. Brazilian law enforcement. Dual Diligence. Human Rights. Irrelevance of consent. Resumo Este estudo se fundamenta no pressuposto de que o combate ao tráfico de pessoas no Brasil deu origem a um regime antitráfico complexo, deficiente, impreciso, e que apresenta obstáculos legais. Derivado dessa falta de harmonização com o normativo internacional havia diferentes formas de inter- * Recebido em 14/09/2020 Aprovado em 19/06/2021 ** Profesora do Depto. Derecho Internacional Público y Relaciones Internacionales da Universidad de Sevilla. Email: [email protected] SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 244 pretar o que era tráfico de pessoas no contexto brasileiro, o que também gerou um quadro ambíguo quanto à interpretação do próprio conceito. Assim, a nova lei antitráfico no Brasil (13.344/2016), foi aprovada com o objetivo de cobrir esse vazio normativo, atuar como um instrumento útil e proativo no enfrentamento ao tráfico de pessoas no Brasil e como consequência cumprir a devida diligência. O objetivo do artigo é analisar si a irrelevância do consentimento nos crimes de tráfico de pessoas na nova lei antitráfico no Brasil cumpre com as exigências do direito internacional sobre a matéria. A estes efeitos se utiliza uma metodologia qualitativa, que consiste na revisão e análise de normas jurídicas, jurisprudência, doutrina e literatura jurídica. O procedimento de acesso à informação de fontes secundárias foi realizado através dos seguintes motores de busca e bases de dados bibliográficas: Web of Science, Scopus e Google acadêmico. Por sua vez, foram utilizados os diversos repositórios e bases de dados brasileira e das Nações Unidas e estudos especializados sobre o tema. As conclusões deste estudo contribuem à área na medida em que mostram que para o cumprimento da devida diligência é necessário atender a exigência da norma internacional sobre a irrelevância do consentimento, para conduzir uma ação multidirecional e que resguarde os direitos humanos das vítimas-sobreviventes. Palavras-chave: Tráfico de pessoas. Aplicação da lei brasileira. Devida diligência. Direitos Humanos. Irrelevância do consentimento. 1 The internalization of international law: The Multifaceted and Confused Brazilian Structure in the Confrontation of Human Trafficking Trafficking in persons (TP) is internationally defined by the Palermo Protocol (20001), which typifies it as a 1 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000. Article 3. Use of terms. For the purposes of this Protocol: ”(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person havcomplex and dynamic crime derived from the conjunction of three interrelated constituent elements: an action; the media; and the purpose of direct or indirect exploitation of the person. This definition externalizes trafficking as a process that includes a movement of people in contexts of vulnerability for the purpose of exploitation. Human mobility generally occurs in contexts of migration (regular or irregular), thus leading to the confusion with other legal categories, such as irregular migration, human trafficking or international refugee2. The concept of human trafficking provided by the Palermo Protocol is not exempt from criticism, both for its complexity, derived from the understanding of trafficking as a process composed of three constituent and related elements, and its wide scope. The Palermo Protocol does not include the behaviors that constitute the modality of trafficking, leaving to the discretion of the States the delimitation and classification of internal behaviors that define trafficking. Even with its lights and shadows, the international legal benchmark has consolidated the structuring of a global regime to confront trafficking in persons that is related to different legal categories (irregular migration, refugee, asylum and trafficking), public and private actors and different approaches ( public order / criminal policy, gender and human rights). The diversity of actors, types of regulations, institutions and different legal categories related to trafficking conform a complex international regime3. For these purposes, the United Nations recognize trafficking as a massive violation of Human Rights and its negative synergy with other forms of human rights violations (slavery, servitude, forced labor, violence against women, torture, treatment inhuman and degrading, international illicit and human trafficking). The recognition of trafficking in persons as a violation of Human Rights generates a commitment to the states-parties of the Palermo Protocol to develop measures aimed at: preventing and educating about traing control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation”. 2 SILVA, W. C. da. Regime Internacional de Enfrentamento ao Tráfico de Pessoas. Avanços e desafios para a proteção dos direitos humanos. Rio de Janeiro: Lumen Juris, 2018. 3 ALTER K. J.; RAUSTIALA, K. The Rise of International Regime Complexity. Annual Review of Law and Social Science, v. 14, n. 1, p. 329- 349, 2018; GÓMEZ-MERA, Laura. Regime complexity and global governance: The case of trafficking in persons. European Journal Of International Relations, 2016. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 245 fficking, protecting and assisting victims of trafficking, and repressing and prosecuting the crime and punish offenders (Article 2 of the Palermo Protocol). The due diligence of the States aims to protect the victims / survivors of trafficking from human rights abuses by private agents. In this direction, the States must undertake reasonable measures to modify the result and mitigate the damage. As stated by the Inter-American Court (2018)4, the States have the obligation and responsibility to guarantee the victims the right to reparation and the exercise of due diligence. The Inter-American Court noted both the existence of due diligence regarding the situation of vulnerability of the trafficking victims5 and argued that this special rule applies in the cases in which the integrity of the person is at stake. In this sense, this rule implies a positive obligation to investigate and penalize any act aimed at maintaining a situation analogous to slavery, servitude, forced labor as exploratory behaviors rooted in trafficking in persons. Brazil was one of the 178 countries that signed (2000) and ratified (2004) the United Nations Convention against Transnational Organized Crime (Palermo Convention)6 and the Palermo Protocol.7 Since that ratification, the country has been adapting its internal legislation and promoting public policies to address the objectives established in the regulations for the counter- -trafficking. An example of this was the successive modifications to the 1940 Penal regarding human trafficking, 2005, 2009 and 2016 reforms. However, an analysis of the legislation has revealed the need for comprehensive modifications that provide effective legal measures to protect trafficking victims and accomplish the dual diligence about this issue. In particular, the ones referred to the protection of human rights and the achievement of human rights standards relevant to the activity of justice 4 CORTE IHR. Caso Trabajadores de la Hacienda Brasil Verde c. Brasil. Case de 20 October 2016, párr. 364. 5 EUROPEAN COURT OF HUMAN RIGHTS (ECHR): Siliadin vs. France, no. 73316/01. [TEDH, Section II], 26 de July de 2005; Rantsev vs. Cyprus and Russia, no. 25965/04. [ECHR, Section I], 7 January 2010; C.N. and V. vs. France, no. 67724/09. [ECHR, Section V], 11 October 2012; C.N. vs. United Kingdom, no. 4239/08. [ECHR, Section IV], 13 de November 2012. 6 BRAZIL. Decree No. 5.015, dated March 12, 2004. 7 BRAZIL. Decree No. 5.017, dated March 12, 2004. Retrivied from: https://treaties.un.org/pages/View Details.aspx?src=TREATY&mtdsg_no=XVIII-12- a&chapter=18&clang=_en operators and procedural standards, as dictated by the ICIR (2016)8 and ECHR (2005, 2010 y 2012)9. In Brazil, the meaning of human trafficking is rather ambiguous, and its understanding is quite heterogeneous. This is because the discussion was basically directed at trafficking for the purpose of sexual exploitation. But over the last fifteen years (2004-2018), different demands on the agenda of Human Rights in Brazil made them use the language of human trafficking. Until December of 2016, the multiplicity in the ways of understanding the HT is also due to the existence of two legal instruments that served as a framework, but that also generated ambiguity and disagreement among the different actors. The first instrument, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol, 2000) 10 and the second, the Brazilian Penal Code (BCP). Public debates and public awareness campaigns have shown the trafficking as a political-legal problem, following the Palermo Protocol. Nevertheless, the administrative practices that regulate the trafficking, in the country, follow the Brazilian Penal Code. Hence, the result is a heterogeneous understanding of the same process. This demonstrates both an “uncertain environment” and “institutional barriers”11 in the counter trafficking in Brazil. This structure has generated, on the one hand, a complex regime12 of counter human trafficking. Its complexity stems from a diverse, interdependent structure that mixes both a disruptive, reactive and proactive approach counter to human trafficking13. On the other 8 CORTE IHR. Caso Trabajadores de la Hacienda Brasil Verde c. Brasil. Case de 20 October 2016 9 European Court of Human Rights (ECHR): Siliadin vs. France, no. 73316/01, 26 de July de 2005; Rantsev vs. Cyprus and Russia, no. 25965/04, 7 January 2010; C.N. and V. vs. France, no. 67724/09, 11 October 2012; C.N. vs. United Kingdom, no. 4239/08, 13 November 2012. 10 Decree No. 5.017, dated 03/12/2004. 11 FARRELL, A.; OWENS, C.; MCDEVITT, J. New laws but few cases: Understanding the challenges to the investigation and prosecution of human trafficking cases. Crime Law & Social Change, p. 1–13, 2014; MATOS, M.; GONÇALVES, M. & MAIA, A. Understanding the criminal justice process in human trafficking cases in Portugal: factors associated with successful prosecutions. Crime, Law and Social Change. 2019. https://doi.org/10.1007/s10611-019- 09834-9. 12 ALTER K. J.; RAUSTIALA, K. The Rise of International Regime Complexity. Annual Review of Law and Social Science, v. 14, n. 1, p. 329-349, 2018. p. 331. 13 VERHOEVEN, M.; BARBRA, G, Human trafficking and criminal investigation strategies in the Amsterdam Red Light District. Trends in Organized Crime. 14. 2011148-164. 10.1007/s12117-011- SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 246 hand, this institutional regime has created the aforementioned “uncertain legal environment” and “institutional barriers” that makes it difficult to advance on the subject. The new anti-trafficking law is important as a tool to overcome the different perceptions of what trafficking means, only if all actors are involved in specialized training courses from a common framework. The new law draws from a human rights approach to protect the trafficked victims. This measure also intends to overcome the negative attitudes in relation to trafficking victims. The last part of this article analyses the irrelevance of the victims’ consent as a means to guarantee the protection of their rights under this new Brazilian anti-trafficking law. The evolution of this complex understanding of human trafficking in Brazil has developed in six different stages between 2004 and 2016. The first step was the 2004 signing and ratification of the (Palermo Protocol), a process prompted more by external, supranational and international demands than by local ones.14 The second phase began with the National Policy for Combatting Human Trafficking (the National Policy) in 2006,15 guided by the triple objective of the Palermo Protocol. The National Policy establishes principles, guidelines and actions that seek to prevent and suppress human trafficking and care for victims to ensure compliance with international anti-trafficking policies based on instruments to protect and promote human rights. A third stage (2008 and 2013) began in 2008 with the approval of Parts I of the National Plan to Combat Human Trafficking (Plano Nacional de Enfrentamento ao Tráfico de Pessoas - PNETP)16 and in February 2013, with the approval 9126-00; UNODC (2008). Toolk it to Combat Trafficking in Persons. New York/Geneva. https://www.unodc.org/documents/ human-trafficking/Toolkit-files/08-58296_tool_5-2.pdf 14 The first impetus came from the United Nations Office on Drugs and Crime (UNODC), the Organization of American States (OAS), the International Labor Organization (ILO) and the United States government. 15 BRASIL. “Política Nacional de Enfrentamento ao Tráfico de Pessoas”: Decree No. 5.948, dated 10/26/2006. 16 BRASIL. “I Plano Nacional de Enfrentamento ao Tráfico de Pessoas.” Approved by Decree No. 6.347, dated January 8, which established 100 (one hundred) goals aligned with several priorities. PNETP I sought to respond to the problem of human trafficking in three main areas: prevention, crime suppression and the accountability of its perpetrators, and comprehensive care for victims. According to the report by the Ministry of Justice (Secretaria Nacional de Justicia/ SNJ [2012]), the PNETP I step enabled collaboration between civil society and various government agencies and international institutions (ILO, UNODC, IOM) for preventive action and helped in the attempt to provide comprehensive care for trafficking victims. This of PNETP II. And, in July 2018 approval of III PNETP17. The fourth stage comprised the formation of the National Network on Human Trafficking (Rede Nacional de ETP),18 a process of public expression with the participation of different actors from civilian society established by the creation of 15 Centers to Combat Human Trafficking19 and 9 Advance attention post20. A fifth stage was initiated by the creation of the National Committee to Combat Human Trafficking (Comitê Nacional de Enfrentamento ao Tráfico de Pessoas - CONATRAP),21 which sought to monitor the National Policy and promote the involvement of public and private agencies and entities in the fight against human trafficking (Enfrentamento ao Tráfico de Pessoas - ETP). The sixth stage (2005, 2009 and 2016) refers to the legislative changes affecting Brazilian criminal law. The focus of this article is on the sixth stage and the goal is to respond to that gap in the structure of the Brazilian regime to counter human trafficking. This breach compromises the Brazilian due diligence on the matter. The general purpose of the article is to show that a proactive confrontation to trafficking22 demand a collaboration between civil society, international organizations and various governmental spheres enabled the development of PNETP II, with broad societal participation for defining its battle plans. 17 BRASIL. Decree No. 7.901, dated February 4, 2013; Decree No. 9.440, DOU, dated July 03, 2018. Initiated the development of PNETP III (2018-2021). 18 The group of institutions and organizations were named the National Network on Human Trafficking (Rede Nacional de ETP - RETP) and included representatives from the federal government and the Ministry of Justice responsible for the Coordinated Combat against Human Trafficking led by the Centers to Combat Human Trafficking and Specialized Centers. The RETP also included the participation of social support and assistance entities such as CRAS and CREAS and other bodies such as the Ministry of Justice and Public Security, the Ministry of Public Health, foreign embassies and nongovernmental organizations (Brazil: SNJ, 2012). 19 In portuguese: Núcleos de Enfrentamento ao Tráfico de Personas – NETP. Retrieved from https://www.justica.gov.br/suaprotecao/trafico-de-pessoas/redes-de-enfrentamento/nucleos-de- enfrentamento 20 In portuguese: “Postos avançados de Atendimento Humanizado aos Migrantes”. Retrieved from https://www.justica.gov.br/suaprotecao/trafico-de-pessoas/redes-de-enfrentamento/postos-avan- cad https://www.justica.gov.br/sua-protecao/trafico-de-pessoas/ redes-de-enfrentamento/postos-avancadosos 21 Decree No. 7.901, dated February 4, 2013 designated 26 members, 7 government representatives, 7 civilian representatives or human trafficking specialists, 1 representative from the NETP and Centers, 1 representative from state committees, and 1 representative from each of the 10 National Councils for Public Policy. 22 FARRELL, A.; OWENS, C.; MCDEVITT, J. New laws but few cases: Understanding the challenges to the investigation and prosecution of human trafficking cases. Crime Law & Social Change, 2014. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 247 multidirectional action: one that recognizes the problem, prevents it, trains and educates the responsible actors. This concentration should offer a system that recognizes the role of the victim in the process of trafficking, and from a Human Rights approach, that revalidates the irrelevance of their consent in the criminal proceedings. Thus, ensuring the protection of their rights and that is endowed with specific funds for these purposes. Regarding the considerations above, this article presents the following key questions: how does this multifaceted vision impact the understanding of human trafficking in Brazil? In other words, how is trafficking in persons understood in the Brazilian context? How is the Brazilian counter trafficking persons regime structured? Does the Brazilian State comply with human rights standards relevant to the activity of justice operators to guarantee protection, reparation and assistance to trafficking victims? To reply these questions, this research is structured in four parts. The introduction to the Brazilian context against trafficking, followed by a second section that examines the lexical-normative structure of Law No. 13.344/2016, the most recent legal instrument addressing human trafficking. The third part offers a technical-legal analysis of the new anti-trafficking law (dated October 6, 2016), leading to the third section, which defends the hypothesis that consent arguments are irrelevant in Human Trafficking crimes. The final section examines the irrelevance of the consent argument in Human Trafficking crimes. A thematic qualitative text analysis approach was adopted to identify and analyse the changes in the Brazilian system of counter-trafficking. Thereby, the methodology aims to identify actors involved within Brazilian ETP, as well as the content and meaning of the new Brazilian anti-trafficking law. In this sense, this paper is based on a traditional literature review of the results from a bibliographic, doctrinal revision, and a documentary survey of the laws dedicated to the subject. 2 Breach of Due Diligence: The Lack in the Normative Structure of Antitrafficking Law Human trafficking has been codified in the Brazilian legal system since the 1890 Penal Code of the Republic, as follows: “To induce women to prostitution, whether by abusing their weakness or misery, or by intimidating or threatening them” (Article 278, 1890).23 However, this article was modified by Law No. 2.992, dated September 25, 1915, which increased the prison sentence for this crime from 1 to 3 years and made an explicit statement on the issue of consent, considered unnecessary only for minors. In 1940, the current Penal Code was drafted, which incorporated the crime of human trafficking in Article 231 and which persisted until the enactment of Law No. 11.106 in 2005. As such, we can see that from 1890 to 1940, the Brazilian penal codes limited legal protection to the female sex. Brazil was one of the 178 countries that signed (2000) and ratified (2004) the United Nations Convention against Transnational Organized Crime (Palermo Convention)24 and the Palermo Protocol.25 Since that ratification, the country has been adapting its internal legislation and promoting public policies to address the objectives established in the regulations for the fight against human trafficking. An example of this was the successive modifications to the 1940 Penal Code and the 2005, 2009 and 2016 reforms regarding human trafficking. However, an analysis of the legislation has revealed the need for comprehensive modifications that provide effective legal measures to protect trafficking victims and hold traffickers accountable. 2.1 The legal concept of trafficking in persons until 2016 Before October 2016, trafficking was defined in Article 231 of the Brazilian Penal Code as “promoting, brokering or facilitating the involvement of persons in prostitution within national borders or the departure of persons to practice prostitution in foreign countries.”26 Article 231 was amended by Law No. 11.106 in 2005, expanding the definition to all genders and ages, and Article 231-A was also added, which further defined domestic human trafficking. In this manner, the definition 23 Chapter III – “Pimping,” Article 278. BRAZIL. Penal Code. Decree of Law No. 847, dated October 11, 1890. 24 BRASIL. Decree No. 5.015, dated March 12, 2004 25 BRASIL. Decree No. 5.017, dated March 12, 2004 26 Law No. 11.106, dated March 28, 2005: “that amends articles 148, 215, 216, 226, 227, 231 and adds article 231-A to Decree of Law No. 2.848 dated December 7, 1940 – Penal Code and includes other measures.” SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 248 was expanded to cover all persons and areas but continued to be limited to the issue of sexual exploitation.27 A second amendment to the penal code was enacted by Law No. 12.015 in 2009,28 which modified the wording of the definition of human trafficking by including the following purposes: “international human trafficking for the purpose of sexual exploitation” (Article 231) and “domestic human trafficking for the purpose of sexual exploitation” (Article 231-A). This was added in §1 and §2 of the previous Article 231 of the Penal Code: §1 The same penalty shall be imposed on the person who recruits, entices or buys the trafficked person, as well as having knowledge of that condition, transports, transfers or hosts the trafficked person. §2 The penalty shall be increased by half if: I. the victim is under 18 (eighteen) years of age; II. the victim, due to illness or mental disability, does not have the necessary discernment for the practice of the act; III. if the agent is a parent, stepfather, stepmother, brother, stepchild, spouse, companion, tutor or caretaker, teacher or employer of the victim, or assumed, by law or otherwise, an obligation of care, protection or surveillance of the victim; or IV. there is violence, serious threat or fraud. Despite criticism of the failure to extend the protected legal right, since the definition of criminal conduct was limited to human trafficking for sexual exploitation purposes, it can be said that the inclusion of the above- 27 Other updates that are also relevant to combatting organized transnational crime are the update to the crime of money laundering (Law No. 12.683/2012), the concept of a criminal organization (Law No. 12.850/2013), the definition and suppression of terrorism (Law No. 13.260/2016), and expanding the modalities and protection of the Human Trafficking Crime (Law No. 13.344/2016). 28 BRASIL. Law No. 12.015 dated August 7, 2009 “amends Title VI of the Special Section of Decree of Law No. 2.848, dated December 7, 1940 - Penal Code, and Article 1 of Law No. 8.072, dated July 25, 1990, which addresses heinous crimes under the terms of item XLIII of Article 5 of the Federal Constitution and repeals Law No. 2.252 dated July 1, 1954, which addresses the corruption of minors.” This modification resulted from actions by a Joint Parliamentary Committee of Inquiry (JPCI) (JPCI on Sexual Exploitation) commissioned in 2003 and concluded in 2005. All of the information on the activities conducted by this JPCI was found in BRASIL: National Congress. Joint Parliamentary Commission of Inquiry created to investigate situations of violence and networks of sexual exploitation of children and adolescents in Brazil (Comissão Parlamentar Mista de Inquérito criada com a finalidade de investigar as situações de violência e redes de exploração sexual de crianças e adolescentes no Brasil). 2005. Rapporteur: Representative Maria do Rosário. Available at: http://www2.senado.leg.br/bdsf/handle/id/84599. -mentioned paragraphs represented a small but nevertheless elementary step forward in the accountability of those involved in this type of trafficking. When the Penal Code equated the conduct of the agent, defrauder or buyer with that of the person who transports, transfers or provides housing to the victim, the severity of the criminal conduct increased as soon as the perpetrator became aware of the trafficking victim’s condition. This provision holds all persons who in some way contributed to the perpetration of the crime criminally responsible, even as a participant. NUCCI29 understood that there was a mistake in the definition of this crime because the act of selling the trafficked person was omitted, a situation that was foreseen in Article 231-A, §1. There was already a legal provision for applying financial penalties as well as incarceration for crimes of international and domestic trafficking committed for the purpose of sexual exploitation and motivated by profit or economic advantage. Therefore, it is important to highlight some of the characteristics of this crime. The heading (caput) of Article 231 indicates two actions: promote or facilitate the entry or departure of someone who comes to practice prostitution or some other form of sexual exploitation within or outside of national borders. GRECO30 alleged that the act of promotion is broadly defined and can even encompass facilitation. The idea of organization evolves from there in the sense of doing everything necessary for (a) a foreigner to enter Brazilian territory or for (b) a Brazilian citizen to enter foreign territory, both for sexual exploitation purposes. The agent, therefore, truly acts as an administrator of the business of sex, of prostitution, in charge of transportation, obtaining a passport visa, finding placement in brothels, in short, doing everything necessary for a victim to pass through the borders of the countries in which she or he will work as a prostitute or will be sexually exploited31. Concerning the consummation of the crime of international human trafficking for the purpose of sexual exploitation, there is a doctrinal controversy; some 29 NUCCI, G. Código Penal Comentado. São Paulo: Forense, 2013. p.1022. Retrieved from http://www.guilhermenucci.com.br/livros/ codigo-penal-comentado 30 GRECO, R. Código Penal Comentado. Niterói. Retrieved from https://www.impetus.com.br/ produto/21754/codigo-penal-comen- tado---rogerio-greco---2019_rogerio-greco (p. 738). 31 GRECO, R. Código Penal Comentado. Niterói. Retrieved from https://www.impetus.com.br/ produto/21754/codigo-penal-comen- tado---rogerio-greco---2019_rogerio-greco SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 249 authors, such as Luiz Regis PRADO32 (2001, p. 292), contended that the crime is formal. In other words, the crime is consummated by the simple act of territorial entry or departure, regardless of whether sexual exploitation occurred. Rogério GRECO33 and Guilherme NUCCI34 took the opposite view, contending that the crime is material. This implies an indispensable and meticulous verification of events after entering or leaving the territory because the crime entails the effective exercise of prostitution or some other form of sexual exploitation. The position of the body of law on this is also controversial. In view of the foregoing, it is notable that before October 2016, the legal concept of Human Trafficking that guided the Brazilian criminal justice system was associated exclusively with the intermediation or facilitation of international and domestic movement for the purpose of prostitution or other forms of prostitution or other forms of sexual exploitation (Articles 231 and 231-A of the Penal Code). Here, coercion does not define the crime35. 2.1.1 Phatic-normative gaps and the need to adjust to international regulations For a comparative interpretation of the international guidelines on the subject, we should refer to other types of crimes that we can deem corollaries or subsidiaries to human trafficking, in the sense that they are committed in parallel or as a means of achieving the ultimate goal of human trafficking and exploitation. We emphasize that trafficking is not a “medium” crime; it is an autonomous crime, and according to NUCCI36, Common crime (can be perpetrated by anyone); material (requires a naturalistic result, consisting of the effective occurrence of prostitution or some other form of sexual exploitation); free form (can 32 PRADO, L. R. Curso de Direito Penal Brasileiro: parte especial. São Paulo: RT, 2011. p. 292. Retrieved from https://www.saraiva. com.br/curso-de-direito-penal-brasileiro-vol-3-parte-especial-arts- 250-a-359-h--7-ed-3380805.html. 33 GRECO, R. Código Penal Comentado. Niterói. Retrieved from https://www.impetus.com.br/ produto/21754/codigo-penal-comen- tado---rogerio-greco---2019_rogerio-greco. 34 NUCCI, G. Código Penal Comentado. São Paulo: Forense, 2013. p. 1021. 35 “Tribunal Regional Federal da 1ª. Região - Criminal Appeal N° 2005.35.00.023131-6 – GO; “5ª Vara da Seção Judiciária do Estado de Goiás”: Case 2009.35.00018434-2. 36 NUCCI, G. Código Penal Comentado. São Paulo: Forense, 2013. p. 1021. be committed in any manner); crime of commission (the verbs indicate actions); instantaneous (the moment of consummation happens at a specific moment in time) although there is an element of habitual action leading to consummation; single perpetrator (can be committed by a single person); multiple incidents (requires several acts). Does not admit intent because it is a conditional crime (depends on prostitution or exploitation).37 However, the 2009 modifications left at least four phatic-normative gaps that were foreseen in the Penal Code as corollary crimes: (i) conduct related to trafficking for the purpose of sexual exploitation; (ii) conduct related to the exploitation, organization and protection of work, especially work occurring in conditions analogous to slavery; (iii) conduct related to the exploitation of minors; and (iv) conduct linked to the removal of human organs and tissues. In fact, the reforms instigated by Law 12.015/2009 did not consider all the exploitation hypotheses identified by the Palermo Protocol. Faced with the lack of such provisions in Articles 231 and 231-A of the Brazilian Penal Code (BPC), a comprehensive reading and a systematic interpretation of the BPC were necessary to identify other possible forms of exploitation pertaining to the crime of trafficking. For this, an extended reading should be made of other devices that allow framing this behavior within other crimes.38 In this regard, we refer to the provisions regarding behaviors such as involvement in lascivious behaviors toward others (Article 227, BPC), practicing prostitution or other forms of sexual exploitation (Article 228, BPC), brothels (Article 229, BPC) and pimping (Article 230, BPC). A second omission was the failure to foresee the second most well-known form of trafficking, the exploitation of labor,39 which in Brazil is related to forced and/or slave labor. The Brazilian legal system considers the crime of subjugation to be analogous to slavery, which, according to the provisions of Article 149 of the BPC, comprises 37 Free translation. 38 Brazilian legislation related to/associated with the crime of Human Trafficking (see the Palermo definition and note the types of crime not explicitly recognized but implicitly present): (1) aiding and abetting sexual exploitation, (2) work-related, (3) related to illegal adoption – minors, (4) removal of human organs and tissues. 39 There is a possibility of significant overlap between the behaviors described in Article 149 and that of article 231 of the BPC because the former crime would be consummated by the movement of the victim and the latter crime by the effective use of the victim for the for-profit exploitation of their work. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 250 […] reducing someone to a condition analogous to slavery, either by subjecting him to forced labor, or an exhaustive work day, or to degrading work conditions, or restricting, by any means, his mobility due to debt owed to the employer or imposed.40 This modality has been fleshed out by the inclusion of crimes related to labor organizations, such as recruitment for emigration purposes (Article 206, BPC); preparing workers in one location to work in another within the country (Article 207, BPC); deprivation of rights ensured by labor law (209, caput, BPC); and attacking the freedom to work (Article 197, I, BPC). The third area of neglect is related to the purposes of the exploitation of children and adolescents, which can occur for the purpose of illegal adoption in two cases: first, the crime of giving over a minor child to unsavory people (Article 245, BPC) and, second, the crime of sending a child or adolescent abroad for the purpose of obtaining profit or without complying with legal requirements (Article 239, Statute on Children and Adolescence). Likewise, criminal conduct related to the sexual exploitation of minors, as passive subjects, is covered in the ECA section on subjecting children or adolescents to sexual exploitation (Article 244 -A, ECA). The fourth area of neglect by the legislature in 2009 is related to the criminal act of the removal of organs, tissues or parts of the human body for the following purposes: (1) to receive payment or for another terrible reason (Article 14, §1, Law No. 9.434/1997); (2) purchase or sale of tissues, organs or human body parts (Article 15, Law No. 9.434/1997) and (3) act of collecting, transporting, storing or distributing tissues, organs or human body parts knowing that they have been obtained illegally (Article 17, Law No. 9.434/1997). 2.1.2 The parliamentary contribution for the normative reviewing of trafficking in persons the Brazilian context In view of the aforementioned areas of neglect hindering a comprehensive attack on human trafficking in Brazil, in 2011, the Congress of Representatives requested a Parliamentary Investigative Commission (PIC, RCP No. 3/2011) with the objective of “investigating human trafficking in Brazil, its causes, consequences and 40 Free translation of the text of Article 149 of Law No. 10.803 dated December 11, 2003. those responsible from 2002 to 2011.”41 The PIC of the Congressional Representatives confirmed that Brazilian laws do not effectively address the triple objective defined by the Palermo Protocol (Article 2): the prevention of crime, protection of and assistance to victims, and the detention and punishment of offenders. In addition, the law was remiss in limiting the purposes of trafficking to sexual exploitation only. The Parliamentary Investigative Commission also noted that Brazil should review its legislation and define the base form of the crime of trafficking, with subtypes that vary according to the purpose of the exploitation and not according to the type of victim, thus conforming to the Palermo Protocol (proposed Law No. 6.934/2013). The Federal Senate also presented an Institutional Requirement (RQS, No. 226/2011) to establish a CPITRAFPE to investigate domestic and international human trafficking in Brazil.42 In December 2012, after twenty months of work, the final report of the Senate Parliamentary Investigative Commission was approved, which highlighted the different forms of trafficking within Brazilian borders and the international trafficking of Brazilians. This led to the conclusion that changes were needed in legislation addressing criminal human trafficking to meet, at a minimum, the modalities in Article 3 of the Palermo Protocol. The final report also included proposed Law No. 7.370/2014,43 which modified the Brazilian Penal Code by revoking Articles 231 and 231-A and creating a new article defining all of the forms of the crime of human trafficking.44 41 Available at: http://www.camara.gov.br/proposicoesWeb/prop_ mostrarintegra?codteor=849397&filename=RCP+3/2011 42 The PCI on “Domestic and International Human Trafficking in Brazil” (CPITRAFPE, its acronym in Portuguese) undertook the investigation of allegations of human trafficking as well as further research on the subject and in the end, presented recommendations for reducing the incidence of this crime. See BRASIL. Senado Federal. Comissão Parlamentar de Inquérito destinada a investigar o tráfico nacional e internacional de pessoas no Brasil, suas causas, consequências, rotas e responsáveis, no período de 2003 e 2011, compreendido na vigência da Convenção de Palermo: relatório final. Available at: http://www12.senado.gov.br/ noticias/materias/infograficos/2012/12/info-trafico-de-pessoas. 43 BRASIL. Senado Federal. Projeto de Lei n. 7.370 (Draft of Law No. 7.370), dated April 4, 2014. Available at: http://www.camara.gov. br/proposicoesWeb/prop_mostrarintegra?codteor=1242133&filen ame=PL+7370/20 14. 44 BRASIL. Câmara dos Deputados. Projeto de Lei n. 6.934 (Draft of Law No. 6.934), dated December 11, 2013. Available at: http://www. camara.gov.br/proposicoesWeb/prop_mostrarintegra?codteor =1208864&filename=PL+6934/20 13. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 251 According to the rapporteur of the draft Parliamentary Investigative Commission, the classification of the crime would be equivalent to drug and arms trafficking. In addition, human trafficking would be considered a crime against the dignity of a person, not just against sexual dignity. The draft legislation resulting from the respective reports of the Parliamentary Investigative Commission of the Congressional Representatives (No. 6,934/2013) and the Federal Senate (No. 7,370/2014) were processed jointly to comprise proposed legislation for stricter anti-trafficking laws in Brazil. This lexical-normative update, which also affects Brazilian criminal law, goes hand-in-hand with Law 13.344/2016, dated October 6, 2016, which presented at least six innovative points: (1) added an article to the Brazilian Penal Code to include human trafficking modalities classified by purpose of exploitation, as suggested by Article 3 of the Palermo Protocol; (2) conferred more power to judiciary police and the Ministry of Justice, enabling them to obtain information from victims or suspects from public entities or private companies; (3) created a comprehensive policy of protection for victims, Brazilian or foreign, with legal, social, labor, employment and health care assistance; (4) allowed the granting of a visa for foreign victims to stay in the country, with the possibility of extension for the entire family; (5) created a national database with unified data collection procedures; and (6) allowed for the advance seizure of assets belonging to the defendant or accused. The publication of Law No. 13.344, dated October 6, 2016 (effective as of November 21, 2016) extended criminal coverage by prescribing penalties for the different forms of human trafficking (such as organ removal, modern slavery, irregular adoption, and forced marriage) and by modifying the Penal Code’s Criminal Procedure Regulation within the Statute on Foreigners, aimed at supporting the combat of human trafficking through the internal legal system and meeting the international commitments that Brazil assumed with the signing and ratification of the Palermo Convention and its additional protocols. 3 Analysis of New Brazilian Antitrafficking Law trough the Palermo Protocol Following the guidelines provided by the Palermo Protocol (Article 2), Law No. 13.344, dated October 6, 2016, incorporated both the demands of civilian society (based on the monitoring and evaluation of the national ETP policy) and Brazil’s international obligations on the matter. Thus, the law was structured around the following axis points: (I) Principles of Human Rights, (II) Prevention of Trafficking, (III) Suppression of the Crime, (IV) Protection of and Assistance to Victims, (V) Procedural Regulations and (VI) Measures to Raise Awareness of ETP (Chapters I to VI). The law established new and important principles for public policies such as the mainstreaming of gender, sexual orientation, ethnic or social origin, place of origin, race, age group, and no discrimination for any reason. Articles 231 and 231-A of the BPC were explicitly repealed by Article 16 of Law No. 13.344, and their content was incorporated into a new article, 149-A, thus avoiding the retroactive vacating of any prior convictions (abolito criminis). This is an incidence of the principle of normative-typical continuity because the behavior remains defined as a crime although there was a feature change in the type of crime. The new legal instrument innovates in at least four ways: first, it expands the modalities of criminal behavior to conform to the Palermo Protocol guidelines but at the same time limits these to five specific types; second, it confirms the scope of application to all events, regardless of location; third, it acknowledges all victims regardless of nationality45; and fourth, it includes the needs of civilian society by providing in Article 6 for various forms of protection, personal attention and assistance (legal, social, labor and employment, and health care).46 45 Recognition of the foreigner’s rights to a large part of the protections that the Brazilian state confers on its citizens to guarantee the principle of human dignity. 46 “Article 6 Protection and care for the direct or indirect victim of human trafficking includes: I. legal, social, work and employment and health care assistance; II. shelter and temporary shelter; III. attention to their personal needs, especially regarding gender, sexual orientation, ethnic or social origin, place of origin, nationality, race, religion, age group, immigration status, professional activity, cultural diversity, language, social and family ties or other status; IV. protection of privacy and identity; SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 258 telecommunication and/or telematics service providers to make available the appropriate technical means for accessing telephone or telematics data to locate victims and/or suspects of the crime.77 Another measure established was to give members of the Public Prosecutor’s Office and Judicial Police Inspectors the power to require any public or private entity to deliver within 24 hours any data and demographic information78 on victims and suspects (Article 13- A79). This enables the provision of data to information systems, the development of an investigative network and its availability for use in future investigations. The new Article 13-B of the Code of Criminal Procedure allows investigative bodies to request telecommunication and telematics service providers, through court order or prior notification in the event of court inertia, to immediately make available appropriate technical measures for locating victims and suspects (Article 13-B, §1). As provided in paragraph §4 of Article 13-B, “There being no court action within a period of 12 (twelve) hours, the appropriate authority shall requisition the telecommunication/telematics service companies to immediately provide the appropriate technical means - signals, information and other - that enable the location of the victim or suspects of the current crime, with immediate communication to the judge.” It 77 This change has caused certain legal controversy related to the unconstitutionality of the flexibility of such an institute because the surrender of telematics or telephone data to locate crime victims or suspects contravenes a person’s right to privacy and the privacy of personal information. Therefore, Law 13.344 is currently subject to a Direct Action of Unconstitutionality (ADI No. 5642, dated January 17, 2017), which has been filed by the National Association of Mobile Operators-ACEL (its acronym in Portuguese) and because of its impact, has been provoking debates on the inviolability of the secrecy of and access to demographic data of users of all types of communication media. 78 Of note is that obtaining demographic data related to investigations already has legal support through the provisions of Article 15 of the “Law on Organized Crime” (Law 12.850/2013) and through Article 17-A of Law 9.613/1998, “Law on Money Laundering.” 79 According to Article 13-A , “In the crimes foreseen in Articles 148, 149 and 149-A, in Paragraph 3 of Article 158 and in Article 159 of Decree of Law No. 2.848, dated December 7, 1940 (Criminal Code), and in Article 239 of Law No. 8.069, dated July 13, 1990 (Statute on Children and Adolescents), a member of the Public Prosecutor’s Office or the chief police officer may request from any public or private entity data and information on the victim or suspects (Law No. 13.344/2016, sole paragraph). The request, which will be answered within 24 (twenty-four) hours, will contain: I. the name of the requesting authority; II. the number of the police case; and III. identification of the police unit responsible for the investigation.” is a temporary jurisdiction reserve clause because the measure is initially posited to the court, and only in the case of a failure by the court to act quickly is the request for information sent directly to the telephony operator. Another fact that draws attention to the procedural provisions of Law No. 13.344/2016 is Article 9,80 which allows the subsidiary use of the provisions of Law No. 12.850/2013 for human trafficking cases. This indicates the possibility of using the normative provisions of one law in another in cases of unintended gaps in the law, that is, when one provision has been omitted and another is compatible. Thus, it can be intuited that procedural rules pertaining to the Law on Organized Crime is used, including for extraordinary methods of obtaining evidence.81 This practice facilitates criminal investigations by relying on the support of the most agile legal mechanisms. If a criminal organization is involved (Article 1, §1 of Law 12.850/2013),82 the use of new mechanisms for obtaining evidence is essential to render investigations feasible and even to enable addressing the structure of the criminal network83. The use of methods for obtaining evidence, as provided in Article 9, has caused controversy by revealing a nationwide lack of basis, structure and/or instruction. In this regard, it is essential to remember that because not all cases of trafficking occur 80 Article 9: “The provisions of Law No. 12.850, dated August 2, 2013, shall apply in subsidiary form, as applicable.” 81 Law No. 12.850, dated August 2, 2013 (defines a criminal organization and includes provisions on criminal investigations, the means of obtaining evidence, corollary criminal offenses and criminal procedure). Article 3: “At any stage of the criminal prosecution, the following means of obtaining evidence will be allowed, without prejudice to others already provided for by law: I. judicial collaboration; II. environmental capture of electromagnetic, optical or acoustic signals; III. controlled action; IV. access to telephone and telematics records, to demographic data contained in public or private databases and to electoral or commercial information; V. interception of telephone and telematics communications, in accordance with specific legislation; VI. suspension of financial, banking and fiscal secrecy, in accordance with specific legislation; VII. infiltration by police for investigations, as permitted by Article 11; VIII. cooperation between federal, district, state and municipal institutions and agencies in the search for evidence and information of interest in criminal investigations or procedures.” 82 Article 11 see footnote on page 46. 83 Therefore, the need to also develop all the necessary mechanisms for the implementation of international cooperation on the matter as one of the commitments of the States. See: MACHADO, Bruno Amaral; VIEIRA, Priscilla Brito Silva. “O controle penal do tráfico de pessoas: construção jurídica, interações organizacionais e cooperação internacional”. Revista de Direito Internacional, Brasília, v. 13, n. 3, p. 484-503, 2016. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 259 through a “criminal organization,” one cannot always employ the same methods of obtaining evidence. That could lead to the elimination of the fundamental rights of the alleged criminal. 4 Overcoming the Legal Barrier of the Relevance of Consent and Moving Towards the Protection of Victims The notion of vulnerability is expressed in different international human rights instruments.84 The concept of vulnerability is directly related to the position of the victims and has been central to the development of the Palermo Protocol85, in which the “situation of vulnerability” becomes one of the resources used by the perpetrators to obtain consent86. This is the direction provided by Article 9.4 of the Palermo Protocol, indicating some factors that render people particularly vulnerable to trafficking, such as poverty, underdevelopment and unequal opportunity. Along the same lines, the 2019 UN Rapporteur on Trafficking in Persons87 highlights 84 The first document that clearly expressed this concept was the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on June 25, 1993. Paragraph 24 of this document stated, “Great importance must be given to the promotion and protection of the human rights of persons belonging to groups which have been rendered vulnerable, including migrant workers, the elimination of all forms of discrimination against them, and the strengthening and more effective implementation of existing human rights instruments. States have an obligation to create and maintain adequate measures at the national level, in particular in the fields of education, health and social support, for the promotion and protection of the rights of persons in vulnerable sectors of their populations and to ensure the participation of those among them who are interested in finding a solution to their own problems.” Available at: http://www.ohchr.org/Documents/Events/ OHCHR20/VDPA_booklet_Spanish.pdf 85 UNODC. An Introduction to Human Trafficking: Vulnerability, Impact and Action. UNITED NATIONS New York, 2008. Retrieved from: https://www.unodc.org/documents/human-trafficking/An_ Introduction_to_Human_Trafficking_-_Background_Paper.pdf 86 UNODC. Issue paper: The International Legal Definition of Trafficking in Persons: Consolidation of research findings and reflection on issues raised. Viena, 2018, p. 10; UNODC. An Introduction to Human Trafficking. UN. New York. 2014, p. 23; UNODC. An Introduction to Human Trafficking: Vulnerability, Impact and Action. UNITED NATIONS New York, 2008. 87 HUMAN RIGHTS COUNCIL. A/ HRC /41/46, April 23, 2019. Trafficking in persons, especially women and children Report of the Special Rapporteur on trafficking in persons, especially women and children. Retrieved from: https://documents-dds-ny. un.org/doc/UNDOC/GEN/G19/112/06/PDF/G1911206.pdf? OpenElement. that trafficking is the opposite of social exclusion, which pushes possible victims of trafficking into contexts of vulnerability. Therefore, the UN Rapporteur insisted that it is part of the obligations of the States to act proactive and promote innovative and transformative solutions. The structure of Law No. 13.344, dated October 6, 2016, demonstrates that Brazil seeks to comply with international treaties by enacting laws that safeguard people, particularly those in vulnerable situations. In this sense, Articles 6 and 7 of Law 13.344/2016 provide guidance on measures to protect and assist victims and mention the need to provide humanized assistance to these people, such as accompanying the victims and offering specialized and skilled assistance to the multiple dimensions of human trafficking and the different contexts in which it occurs. 4.1 Recognized categories in the context of vulnerability The crime-related legislation considers at least three categories or situations in which victims may find themselves vulnerable88: individuals under the age of 18, adults over the age of 60, and disabled persons. As established by the Statute on Children and Adolescents (ECA, Article 2), a child is a person under twelve years of age, and adolescents are between twelve and eighteen years old. As established by the “Statute on the Elderly,”89 these are adults over the age of 60. A person with a disability is considered to be a person with a long-term physical, mental, intellectual or sensory disability, which, when interacting with one or more obstacles, may impede their full and effective participation in 88 Although we agree with the use of the expression “people in vulnerable circumstances,” the Brazilian Penal Code defines “vulnerable persons” as “exploitation of prostitution or other type of sexual exploitation of children, adolescents or vulnerable people (wording provided in Law No. 12.978/2014, Article 218-B). Submitting, inducing or attracting to prostitution or any other form of sexual exploitation any minor under 18 (eighteen) years old, or any person who, due to infirmity or mental disability, does not have necessary judgment to the performance of the act, facilitating it or hindering or preventing from its abandonment: (Included by Law No. 12.015/2009) Penalty - imprisonment from 4 (four) to 10 (ten) years.” 89 Intended to regulate the assured rights of people 60 (sixty) years old or older. As provided for in Article 1 of Law No. 10.741, dated October 1, 2003. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 260 society as much as other people in the same conditions” (Article 2 of Law No. 13.146, dated July 6, 201590). Immigrants with irregular administrative situations must be added to the three categories of vulnerability. To this end, Law 13.344/2016 includes an unusual feature, the modification of the Statute on the Foreigner (Law No. 6.815 dated 08/19/198091). This feature introduces the granting of indefinite stay or residence rights to trafficking victims and their relatives (Article18- -A, §1) who do not remain subject to any conditions of the immigration process and exempts them from any administrative fee (Article 18-A).92 However, a certain degree of discretion is proffered when the Ministry of Justice is given the capacity to procedurally grant indefinite stays or residence to victims and their relatives without requiring legal proceedings (Article 18-B93). The objective was to provide legal support so that foreigners are not deported (Article 42-A).94 However, the question of the victim’s status and her vulnerability merits some discussion regarding consent. It should be remembered that the final Parliamentary Inquired report (2012) decided not to consider consent relevant, following the guidance of the Palermo Protocol. This reasoning was based on the understanding that consent stemming from the concept of vulnerability is irrelevant95 because there can be no consent by the victim in any trafficking situation, thus proposing that all conceptual constructs and all efforts to combat this crime should be focused on victim assistance and protection of rights. In this regard, Elliott argues that: “In stating that consent to exploitation is irrelevant where the ‘means’ have been employed, the wording of the definition clearly recognizes the potential for consensual exploitation to take place. 90 “Brazilian Law on the Inclusion of Persons with Disabilities”: Law No. 13.146, dated July 6, 2015. Available at: http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13146.htm> 91 Repealed by Law No. 13.445, dated May 24, 2017 92 Article 18 A of Law No. 13.344/2016. “Permanent residency will be granted to victims of human trafficking in the national territory, regardless of their immigration situation or their collaboration in administrative, police or judicial proceedings.” 93 Article 18 B of Law No. 13.344/2016: “Act of the Minister for Justice and Citizenship shall establish the procedures for granting permanent residence referred to in Article 18A.” 94 Article 42-A of Law No. 13.344/2016: “The foreigner shall maintain legitimate status in the country while pursuing a request of immigration normalization.” 95 UNODC. Issue paper: The International Legal Definition of Trafficking in Persons: Consolidation of research findings and reflection on issues raised. Viena, 2018. p. 9. […] an individual can consent to being exploited, and essentially argues that the ‘lack of consent’ requirement creates a false dichotomy between consent and coercion and that this, along with the effect of economic coercion, creates a grey area category of persons who fall somewhere on the spectrum between trafficked and smuggled.”96 Human Trafficking always occurs in the context of human mobility, hence the need to view trafficking as a process, in which abuse and exploitation often occur. The irrelevance of consent (Palermo Protocol) has a pivotal role to determine who is or who is not a victim of human trafficking. Consequently, the States are obliged to defend the victims’ rights and their protection. In this context, the new Brazilian legislation does not observe the flexibility of the concept of consent and the multiple forms that can be manifested in a context of vulnerability. 4.2 Consent in Brazilian legal practice Law No. 13.344/2016 has been remiss in this case because it does not directly refer to victim consent, which may have a negative effect on the suppression of this crime consistent with victim protection. Given this omission, one should consider the provisions of Decree No. 5.017 (2004) ratifying the Palermo Protocol: “the consent of the offended party is irrelevant to the composition of the crime because the protected legal right is missing and linked to the community as a whole.” Therefore, the perspective that places the victim in a leading role must be incorporated. Such a perspective views the victim as a person to be heard and respected and the focus of measures to minimize harm. This view also has conditions for reducing the effects of primary victimization, thus avoiding relegating the victim to a “peripheral position”97. Based on this approach, some scholars advocate for the exclusion of the typicity of the act in cases in which the perpetrator did not act with violence or deception, acknowledging once again the victim’s condition of 96 ELLIOTT, J. The Role of Consent in Human Trafficking. London/ New York: Routledge, 2015. 97 CASTILHO, E. W. V. de. “A criminalização do tráfico de mulheres: proteção das mulheres ou reforço da violência de gênero?”. Cadernos Pagu, v. 31, p. 101–123, 2008. https://doi.org/10.1590/ S0104-83332008000200006 SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 261 having rights98. Thus, the need to analyze the behavior of the victim in the alleged criminal act is established because in cases of people who freely and spontaneously agree with their trafficking, the valid consent of the offended will prevent the de facto inclusion of the crime type discussed here. However, Renato SILVEIRA99 contended that consent is considered valid as long as it does not exceed the parameters of criminal protection based on the principle of human dignity. It is understood that the victim’s consent does not nullify the responsibility of the perpetrator because the protected legal right - individual freedom as an element of human dignity - is missing. As seen, the new law contains some ambiguity100. A question that may arise is whether the crime type can be applied to cases in which there is consent by the alleged victim. The Brazilian legal system adopted the thesis that consent is valid if there is no serious threat, violence, coercion, deception, or abuse of authority.101 Nor is the consent valid if the offended party who consents is vulnerable or if this act is performed for some form of remuneration. Another uncertainty arises regarding the interpretation of vulnerability, which increases the risk of becoming a trafficking victim, although the lessons learned in combatting trafficking support strengthening the concept of vulnerable subjects in this type of crime. This situation recalls Article 5 of the Brazilian Constitution, which establishes that “the penal code will not retreat except to benefit the accused” (Federal Constitution, 1988). In this domain, any leeway regarding consent proffered by Law No. 13.344/2016 benefits the 98 See: DOEZEMA, J. “Who gets to choose? Coercion, consent and the UN Trafficking Protocol”. Gender and Development, v. 10, n. 1, 2002; ABRAMSON. K. “Beyond Consent, Toward Safeguarding Human Rights: Implementing the United Nations Trafficking Protocol”. Harvard International Law Journal, p. 44-473, 2003; BALOS. B. “The Wrong Way to Equality: Privileging Consent in the Trafficking of Women for Sexual Exploitation”. Harvard Women’s Law Journal, p. 27-137, 2004. 99 SILVEIRA, R. de M. et al. Crimes sexuais: bases críticas para a reforma do direito penal sexual. Rio de Janeiro: Quartier Latin, 2008. p. 224. 100 See: Habeas Corpus nº 0005382-97.2015.4.04.0000/RS; Apelação Criminal nº 5004784-67.2016.4.04.7002/PR. 101 In this regard, SILVEIRA explained that in the event that the alleged victim acquiesces to the act of the aggressor, the act becomes acceptable and tolerable and outside of the ambit of criminal law. It is thus an atypical behavior. As such, consent must be demonstrated or be part of the type structure, or the type must mention the need for consent or dissent SILVEIRA, R. de M. et al. Crimes sexuais: bases críticas para a reforma do direito penal sexual. Rio de Janeiro: Quartier Latin, 2008. p. 223-227. accused, rendering it advantageous to reverse course to fulfill past events. Law No. 13.344/2016 omits vacating the issue as one of the hypotheses for invalidating consent. This may cause diverging interpretations and become a point of weakness for the new legal instrument by not directly recognizing the condition of vulnerability of the offended and by granting the state the right to challenge the issue in an authoritarian manner, thus criminalizing the victims themselves. Consequently, consent incapacitates people in trafficking situations, denying them the right to citizenship in addition to promoting a lack of harmony between official institutions and civilian society. It is true that the interpretation of the concept “situation of vulnerability” can be somewhat complex because of the potential elasticity of the term. However, it is argued that we cannot consent to actions that violate human dignity. Consent could be effective for excluding typicity only for those crimes in which the legal right involved is available to its owner102. The crime of human trafficking cannot be one of these crimes because the protected legal right here is personal freedom. Trafficking is a qualified violation because it specifically affects human dignity, which in a trafficking situation is reduced to an object or instrument. Freedom, in its the fullest sense, is choosing a life plan in which the person continues to be a consideration and sanctioning actions that lead to exploitation and/or situations analogous to slavery. In this context, it cannot mean an option that abolishes one’s freedom or limits it to extents not tolerated by the Rule of Law103. This is the understanding of UNODC’s Human Trafficking and Migrant Smuggling Section (2014). In 2010, UNODC initiated a series of “thematic documents” to clarify some problematic concepts (“abuse of a situation of vulnerability,” “consent,” “exploitation”) regarding the definition of “trafficking” in the Trafficking in Persons Protocol, which may elicit broad or limited concepts. In this regard, the UNODC (2014) determined that the Trafficking in Persons Protocol stipulated that consent given by the trafficking victim for a planned exploitation will not be considered when obtaining 102 JESCHECK, H.; WEIGEND, E. Tratado de Derecho Penal: Parte General. 2003 Retrieved from http://hdl.handle.net/11858/00- 001M-0000-002E-4DE5-C. p. 337-338. 103 DECAUX, E. Les formes contemporaines de l’esclavage. Collected courses of The Hague Academy of International Law. (Tome 336). Leiden/Boston: Martinus Nijhoff Publishers, 2009. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 262 such consent involves any of the stated “means.” The UNODC therefore definitively declared the irrelevance of consent when any of these means have been used: The Trafficking in Persons Protocol statement is clear: consent is always irrelevant to determining whether the crime of human trafficking has occurred. In the case of adult trafficking, consent is irrelevant, whether means like force or abduction are used, or whether more subtle means such as “abuse of a position of vulnerability” are used. In the case of children, consent is irrelevant regardless of whether any means were used. However, in practice, considerations regarding consent can nevertheless assume a role, as seen in the country surveys conducted. […] The Trafficking in Persons Protocol unequivocally rejects the relevance of consent to the offence of trafficking in children. Trafficking in children is established by the fact of an “act” and exploitative “purpose,” without “means” required as an element of the offense104. Despite the hermeneutical fissures of the various local jurisdictions consulted by the UNODC (2014), the interpretation of the consent argument within the framework of the Trafficking in Persons Protocol and within the Brazilian context must be based on two assertions that comprise the hypothesis for its irrelevance. (1) The consent argument in cases of adult trafficking is irrelevant when “means” are used. In other words, the argument is irrelevant if that acquiescence was obtained and continues as soon as there was threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, a situation of vulnerability or submission, receipt of payment or benefits to obtain the consent of a person who has authority over another. (2) Consent is always irrelevant in cases of child trafficking. This hypothesis must be adopted because of the legal scope of the Palermo Protocol, which in the Brazilian constitutional system has a supralegal and infra-constitutional nature. According to the Supreme Federal Court, because it is an International Treaty on Human Rights and therefore subordinate to the Constitution but superior to domestic legislation, the infra-constitutional legislation that adjoins the Palermo Protocol is inapplicable, either before or after its accession by Brazil.105 In the Brazilian 104 UNODC. Issue Paper: The Role Of ‘Consent’in The Trafficking In Persons Protocol. UN. Viena. 2014. 105 RE 466.343, rel. min. Cezar Peluso, voto do min. Gilmar Mendes, j. 3-12-2008, P, DJE de 5-6-2009: “[...] since the unconditional ratification by Brazil in 1992 of the International Covenant on Civil context, there are two divergent positions in the Federal Supreme Court (STF) regarding the Treaties as a formal source of non-Brazilian criminal law. On the one hand, the favorable position of international conventions as an immediate formal source of criminal law106. On the other, the opposite position to consider the Treaties as an immediate formal source107. Since the predominant position is the second, the Treaties cannot be immediate formal sources of law. Thus, the need for the norm to be reproduced in the text of the law, in the case of the anti-trafficking law, as a sanctioning norm endowed with a secondary precept. The anti-trafficking law of 2016 clarifies the international obligation in matters of trafficking and provides content and specificity. In addition, it cannot confer less protection on the protected object than that provided in the Palermo Protocol and convention. On the contrary, it would imply a reductionist behavior and would be subject to conventionality control. In this line of interpretation of the new Article 149-A of the CPB, the term “abuse” should be understood in a broad sense in order to avoid any possibility of reducing the protection of the victim. Any interpretation that does not consider the “abuse of vulnerability” in a broad sense, can be seen as suppressing valid consent. In this regard, the TRF 1ª Região ruled on considering that the initial consent given by the victim does not exclude the guilt of the exploiter108. Until October 2016, the law did not contain an express element on the consent of the victim for the clas- and Political Rights (Article 11) and the American Convention on Human Rights - Pact of San José, Costa Rica (Article 7, p.7), there is no longer any legal basis for civil arrest of the negligent bailee, since the special nature of these international human rights instruments enjoy a specific place in the legal system, being subordinate to the Constitution, but superior to domestic legislation. The supralegal normative status of the international human rights treaties ratified by Brazil, in this way, renders inapplicable any conflicting infra-con- stitutional legislation, be it before or after the act of ratification.” This occurred with Article 1.287 of the 1916 CC and DL 911/1969, as well as Article 652 of the new CC (Law No. 10.406/2002). 106 STF, Inq. 2786, RJ. Relator Min. RICARDO LEWANDOWSKI. 9 de Junho de 2011. DJe-113 Divulgaçao 13/06/2011, publicação 14/06/2011. 107 STF – HC: 96007 SP, Relator: Min. Marco Aurélio, Data de Julgamento: 12/06/2012, Primeira Turma: ACÓRDÃO ELETRÔNICO DJe-027 DIVULG 07-02-2013 Publicaçao 08-02-2013. 108 Tribunal Regional Federal (TRF) 1ª. Região, Apelação Criminal n° 2005.35.00.023131-6 – GO. Julgamento 3 de Abril de 2007. 25/04/2007 DJ p.17. https://trf-1.jusbrasil.com.br/jurisprudencia/2211542/apelacao-criminal-acr-23131-go-20053500023131-6/ inteiro-teor-100720107?ref=juris-tabs SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 263 sification of the crime. In other words, to configure the crime, it was enough to carry out the actions with the purpose of exploitation (sexual until 2009). The vice of consent did not influence the classification of the crime, it was considered an aggravating cause of the penalty. In this sense, until the anti-trafficking law (Law N. 13.344 / 2016), the consent of the victim was not sought. As of the entry into force of the Anti-trafficking Law, located in the CPB Title “Crimes against individual liberty”, Section I “Crimes against Personal liberty”, the aspect of individual liberty and the individual’s capacity for self-determination prevails over more subjective aspects. What is inferred in the new law is that the consent of the victim is considered relevant, and thus, it withdraws from the sphere of the Criminal Law the conducts with the described purposes, provided that they are the result of a valid choice, not flawed109. However, for the figures that punish the direct explorer, the consent of the victim remains irrelevant, as in the crimes of ruffianism (art. 230 CPB), in favor of prostitution or another form of sexual exploitation (Art. 228 CPB ), and in the case of reduction to a condition analogous to slavery (Art. 149). Therefore, there is a fundamental contradiction in the set of provisions of the Brazilian law, in that it admits that the explored individual consists of the practice of prohibited figures for the explorer, and that, on the other hand, punishes the explorer for promoting activities that are said to be legal110. The law No. 13.334 / 2016 circumscribed the important elements “fraud, coercion, threat or abuse” that implies the necessary criminal investigation to determine consent and characterize the typicality of the conduct. The legal controversy arises because the new law excludes the crime in the hypotheses in which a valid consent of the passive subject is verified. Based on this understanding, the wording of the international standard, the Palermo Protocol, is reduced. And therefore, it can lead to a breach of due diligence in matters of human rights. In addition to may constitute a barrier 109 TRIBUNAL REGIONAL FEDERAL (TRF) 1ª. Região, Apelação Criminal n° 2005.35.00.023131-6 – GO. Julgamento 3 de Abril de 2007. 25/04/2007 DJ p.17. 110 TRIBUNAL REGIONAL FEDERAL (TRF) 3ª Regiao, São Paulo - Criminal, SP. (GUARDIA, M. A. Operação Garina). Processo nº 0003031-36.2013.4.03.6181. 8ª Vara Federal Criminal de São Paulo. Sentença, 15 jan. 2018. to safeguarding the rights of victims and an obstacle to effective prosecutions against the crime and traffickers. However, this legislative reform should be accompanied by measures, such as the training and education of the actors involved in the ETP, since the “negative attitudes” towards the victim credibility111 are still a reality, as shown by the last diagnostic on HT in Brazil (2017), which shows that the system is prejudiced against the victim. 5 Closing remarks Given the above, progress on anti-trafficking in Brazil is clear. The internalization (Decree No. 5.017 dated 12/03/2004) of the Palermo Protocol initiated a normative deployment on the matter, with important political, legal and social consequences. All this has led to the structuring of a national counter-trafficking regimen through the development of a National ETP Policy (2006), the three National counter-trafficking Plans (2008, 2013 and 2018), the creation of a National Counter-trafficking Committee (2014) and the structuring of a National Counter-trafficking Network comprising complex regimen with public and private institutions. This organization has rendered it possible to advance in the fight against trafficking, creating public policies and promoting a series of coordinated actions aimed at preventing the crime, protecting and assisting victims, and prosecuting and punishing criminals. For the harmonization of criminal law with the Palermo Protocol, the Brazilian State has made various attempts at internally recognizing the crime of human trafficking. Upon facing internal demands and to live up to its international commitments, more extensive changes have been observed, both regarding the modalities (purposes of trafficking, caput 149-A) and regarding the legal rights pertaining to individual freedom that are protected. In typifying these behaviors, the intention of the legislature has been to protect the freedom of self- -determination - the exercise, the will and the right to freely come and go with the intention of ensuring the full manifestation of the right to freedom. In this sense, 111 FARRELL, A., OWENS, C., and MCDEVITT, J. New laws but few cases: Understanding the challenges to the investigation and prosecution of human trafficking cases. Crime Law & Social Change, p.159, 2014. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. Revista de Direito Internacional, Brasília, v. 18, n. 1, p. 242-268, 2021 264 it is considered that novel anti trafficking law promoted significant progress in the treatment of crime. However, it compromises the protection of the victims’ human rights when considering the relevance of consent. These advances open the possibility of overcoming a great challenge for Brazil: the harmonization of the definition of human trafficking for the different actors involved in the Counter-trafficking. As explained, actors in the criminal justice institutions apply the concepts of the Penal Code while the society’s civic institutions that assist and protect victims follow the concepts of the National Policy (which are identical to those in the Palermo Protocol). Furthermore, inspectors from the Ministry of Labor use a definition of work analogous to slavery (Article 149) even though many cases are of trafficking for the purpose of labor exploitation. In this regard, it is essential to conduct training on the new legal framework that modified the definition of trafficking and expanded the forms of exploitation and procedural provisions. Trafficking in persons affects freedom, integrity and dignity, but it also emerges from a context of vulnerability generated by social exclusion. Hence, the Palermo Protocol starts from the concern of a minimum that is to consider the consent irrelevant, which takes into consideration the context of vulnerability. In this regard, the new Brazilian law does not correspond with the international standard. The article has exposed the legal controversy of the changes in the Brazilian context, the advances and shortcomings, in order to offer a legal type that complies with international obligations on the matter. Despite the progress and progressive signs of the new anti-trafficking law, it also presents challenges. The first of them is directly related to the context of its entry into force: a moment of crisis (political, economic, social and legal) that connects it in a political context of fiscal and economic adjustment, followed by a dismantling of public policies112. This leads to a second obstacle to compliance with public policies oriented to the objectives of the anti-trafficking law, which directly im- 112 Adoption of: 1. EMENDA CONSTITUCIONAL Nº 95, de 15 de dezembro de 2016. Retrieved from: http://www.planalto.gov.br/ ccivil_03/constituicao/emendas/emc/emc95.htm); DECRETO Nº 9.759, de 11 de abril de 2019. Retrieved from http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D9759.htm; and systematic clipping in public education, including research (56% in 4 years). pacts two objectives of the Law: crime prevention and comprehensive care for victims (art. 4º). The absence of material provisions, including budgetary and institutional, also prevents the new law enforcement. Likewise, the application of the anti-trafficking law suggests a mobilization of criminal control that tends to generate selective actions that affect the guarantee of protection of the rights of people in the context of trafficking. For this reason, the political reality is far from the precepts of both the PNETP and the internationally assumed commitments on the matter.113 Following the argument set forth by UNODC’s (2014), the interpretation of consent within the Trafficking in Persons Protocol must be based on two principles that establish the irrelevancy of the argument of consent. (1) The consent argument in cases of adult trafficking will be irrelevant when “means” are used. In other words, the argument is irrelevant if that acquiescence was obtained and continued as soon as there was threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, a situation of vulnerability or submission, or receipt of payments or benefits to obtain the consent of a person who has authority over another. This is because use of such means negates the consent of the person or suspends their autonomy. (2) Consent is always irrelevant in cases of child trafficking. This hypothesis must be adopted because of the legal scope of the Palermo Protocol, which in the Brazilian constitutional system has a supra- -legal and infra-constitutional nature. Thereby, the contributions of the new anti-traffi- cking law have not been followed with policy measures. Since the adoption of this new framework (October/2016), Brazil has been suffering a step backwards in terms of Human Rights and other social rights, with the reduction of budget allocation and other cuts that affect the development of the measures foreseen in the framework of the III PNETP114 (2018). Based on the analysis presented in this paper, we conclude that to safeguard the values of justice and equality, in the context of Brazil’s new Anti-Trafficking Law, it is essential to protect the moral imperative of respecting human dignity to allow people to determine their own course 113 Article 7 of Decree 9.440, 3 july 2018, which establishes the III National Plan to Combat Trafficking in Persons. 114 BRAZIL. Política Nacional de Enfrentamento ao Tráfico de Pessoas (PNETP). Decree 9.440, 3 july 2018. SILVA, Waldimeiry Correa da. The new brazilian anti-trafficking law: challenges and opportunities to cover the normative lack. 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