Human Trafficking Around the World (56 page)

The INM directive requires immigration officials to offer foreign victims the option to stay in the country, independent of any decision to testify against their traffickers. There is no official policy, Kuhner said, but the directive offers nonimmigrant status to victims of crimes or those eligible for humanitarian status. “Over 100 trafficking victims thus far have been able to regularize their immigration status. The theory is that they should be able to continue to renew their status every year for 10 years, and then become a permanent resident if they decide to remain in Mexico.” Despite the directive, nongovernmental agencies and international organizations state that, in practice, legal alternatives to deportation are not often provided. Instead, officials sometimes hand over identified trafficking victims to INM for deportation because of their lack of legal status. Also, unidentified victims are often housed in detention centers and subsequently deported (U.S. Department of State, 2012).

WHAT HAPPENS TO TRAFFICKERS

The 2007 federal anti-trafficking law stipulated 6 to 12 years’ imprisonment or 9 to 18 years’ imprisonment if the victim was a child or lacked mental capacity. The penalty increased by half if the trafficker was a public official. In addition to imprisonment, the minimum sanctions against those found guilty of trafficking offenses included a fine of 500 to 1,500 days of the federal minimum wage, or between $2,462 and $7,386. Legal entities faced additional penalties such as dissolution and suspension. The 2012 anti-trafficking law increases penalties to up to 40 years’ imprisonment, which can be increased to 60 years for violent crimes (EFE, 2012). Traffickers can face further charges under the Federal Criminal Code and state criminal codes that address trafficking-related crimes such as rape, murder, false imprisonment, and assault (ABA, 2009; U.S. Department of State, 2009, 2010).

The 2007 federal anti-trafficking law was sufficiently stringent, but implementation was not adequate, making evident the possible hurdles in the implementation of the 2012 anti-trafficking law. In some states, despite the fact that federal jurisdiction is invoked in organized-crime cases, traffickers are prosecuted as pimps under the individual state’s criminal code. This is a less grave offense than trafficking, which under the federal law is a felony (ABA, 2009). Classifying trafficking cases as pimping can also significantly hinder the collection of accurate trafficking statistics. “Because trafficking cases typically utilize other offenses (such as pimping or smuggling) instead of anti-trafficking law, we have no way to know which of these cases are associated with trafficking,” Kuhner said.

Like the U.S. anti-trafficking law, Mexico’s federal anti-trafficking law covers only cases in which it is possible to prove federal jurisdiction. “This has caused problems for federal prosecutors,” Kuhner said. “What prosecutors would like is for human trafficking to be a federal crime much like smuggling or organized crime.” This hope was realized in 2011 when the government amended the constitution and established human trafficking as a serious crime (Government of Mexico, 2012b). Eighteen states have passed their own trafficking laws, helping to strengthen criminal codes and establishing state regulations for trafficking prevention, and all 31 states and the Federal District have added some sort of anti-trafficking penal code reforms, but not all the reforms outlaw every form of human trafficking. As a result, inconsistencies among state penal codes and laws on human trafficking cause confusion among law enforcement and problems in inter-state prosecutions (U.S. Department of State, 2011, 2012).

One hurdle in the nation’s anti-trafficking efforts, according to Kuhner, is that local law enforcement, prosecutors, and judges are fearful of trying trafficking cases in areas where human trafficking is prevalent and organized crime is strong. Kuhner explained:

They are fearful of prosecuting people that they know—friends, family, and neighbors. In some areas, such as Tenancingo, Tlaxcala, forcing women into prostitution has occurred for generations. It took place before the modern concept of trafficking. When it began, families initially forced women into prostitution within Tlaxcala. As the network expanded, women were sent to other areas in Mexico such as Tijuana. Over time this merged into an international trafficking network that occurs within migration networks.

Law-enforcement officials are also wary of investigating and prosecuting trafficking cases for fear of retribution (ABA, 2009). This fear is not unwarranted; activists and political figures involved in trying to bring an end to organized crime in Mexico at times have been met with retribution. One such case is the brutal murder of José Nemesio Lugo Félix, general coordinator of information at the National Center for Planning and Analysis to Combat Organized Crime. Lugo Félix was murdered in 2007 in Mexico City (U.S. Embassy in Mexico, 2007). “Nemesio Lugo Félix was heading up the anti-trafficking initiative,” Kuhner said. “No one knows who murdered him—there was never any conclusion to the investigation. He had told a reporter here in Mexico that there was corruption within the government agencies. He had too much information and was pushing in the wrong places.”

Even at the federal level, judges prefer to hear lesser criminal charges against traffickers—such as the charge of pimping—and have been reluctant to hear trafficking cases that use the federal anti-trafficking law (ABA, 2009). “Prosecutors report that judges often reject trafficking charges,” Kuhner said. “They are told to use a different criminal charge, like pimping. This is likely in part because the concept of anti-trafficking law is new and judges are not familiar with it, but it is also likely in part because the judges are fearful around the topic of trafficking because of its association with organized-crime groups.”

Despite these challenges, investigations, prosecutions, and some convictions do occur. In 2008 FEVIMTRA opened 24 trafficking investigations; 13 cases involved commercial sexual exploitation while 11 involved labor exploitation. In the same year FEVIMTRA filed a prosecution in a forced-labor case in the state of Chiapas. The Office of the Attorney General has prosecuted three cases involving the trafficking of women for commercial sexual exploitation. At least 10 state-level cases, 1 in Michoacán and 9 in Chihuahua, have utilized the charge of trafficking in persons (ABA, 2009; U.S. Department of State, 2009). The first conviction under the 2007 anti-trafficking law took place in December 2009, when a federal judge convicted five people. The offenders were convicted for trafficking Mexican women and girls to the United States for commercial sexual exploitation. Also in 2009 Mexico City’s special prosecutor for trafficking sentenced a trafficker to 10 years’ imprisonment (U.S. Department of State, 2010). In 2010 Mexico City’s Attorney General’s Office convicted four trafficking offenders. Sentences ranged from 4 to 17 years’ imprisonment. In the same year the federal government, through FEVIMTRA, also attained its first conviction and sentence for forced labor. The trafficker, who was sentenced to 9 years’ imprisonment, has appealed his sentence. In 2011 Mexican authorities at the federal and state levels convicted 14 traffickers. All of the convicted offenders were sex traffickers; there were no known convictions of forced-labor traffickers. Sentences ranged from 6 to 16½ years’ imprisonment (U.S. Department of State, 2012). In March 2011 Jean Succar Kuri, a prominent Cancún businessman who forced children into prostitution, was convicted of child pornography and corruption of minors. He was sentenced to 13 years’ imprisonment and ordered to pay $6,585.93 in fines and $26,854.08 to each of the victims. A federal court increased his sentence to 112.5 years in August 2011, though under the Federal Criminal Code Succar Kuri faces a maximum of 60 years’ imprisonment (Alcocer, 2011; Mosso, 2011).

INTERNAL EFFORTS TO DECREASE TRAFFICKING

Although the former federal anti-trafficking law was passed in 2007, the regulations to the law were not issued until February 27, 2009 (ABA, 2009). The long-term impact of the 2011 and 2012 regulations remains to be seen. The lack of formal procedures among most states for identifying trafficking victims in vulnerable populations—such as migrant workers and people in prostitution—remains an issue. Still, there is some progress. The government does periodically raid brothels in order to identify victims of commercial sexual exploitation. For instance, in 2011 authorities in Ciudad Juarez raided two dozen bars, hotels, and boarding houses. In the raids they arrested 1,030 persons (500 men and 530 women) suspected of human trafficking and sexual exploitation (U.S. Department of State, 2010; CNN, 2011a). Also, Mexican immigration agents have implemented a system for identifying potential trafficking victims—particularly children—entering or exiting Mexico, and referring these victims to care providers. In 2009, 1,333 migration officers received anti-trafficking training that focused on identifying and interviewing trafficking victims. Government-sponsored training on identifying human trafficking does take place, but NGOs report that many state and local public officials do not differentiate between human trafficking offenses and smuggling (U.S. Department of State, 2010, 2012). Additionally, training of judges on federal anti-trafficking law has been inadequate (ABA, 2009). “There has not been systematic and ongoing training of judges,” Kuhner said. “Additionally, it is difficult to convince the judges to change and accept prosecutors classifying the crimes as trafficking.”

NGOs also report that a number of public officials, local law enforcement, and immigration personnel are corrupt. These officials help traffickers to falsify documents, discourage victims from reporting crimes, ignore trafficking activity, and accept bribes and sexual services in exchange for their collusion (U.S. Department of State, 2009, 2010, 2012). Kuhner said that bribery is extremely prevalent:

People pay off witnesses, judges, and prosecutors. To a trafficker everything is negotiable. There are obviously exceptions, but Mexico is still extremely weak in terms of corruption within the criminal justice system. Public opinion of the system is that politicians and persons in power [operate with] impunity. Currently, criminal cases are closed to the public. The secretive nature of the process makes it easy to see how corruption would occur.

Still, on rare occasions some corrupt officials do face investigations, prosecution, and conviction. For instance, in 2007 two immigration officials were arrested for their leadership in a crime syndicate that included human trafficking. In December 2010 the officials were convicted and received sentences of 12 and 8 years’ imprisonment, respectively. In 2009 a high-level immigration official was investigated for suspected involvement in human trafficking, but was officially cleared by a federal judge in 2010. In 2011 there were no reported prosecutions or convictions of public officials for trafficking offenses (U.S. Department of State, 2011, 2012).

In 2008 the constitution was reformed to transform the criminal judicial system from an inquisitorial to an adversarial one. Kuhner believes this should change the way investigations are handled. “The basic presumption of innocent until proven guilty should be implemented,” Kuhner said. “There will be more open trials where lawyers are able to present their cases orally instead of through filing documents with the judge. This will change how evidence is produced and presented. Additionally, the trials will be more open—the public will be allowed to observe.”
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The criminal justice system of Mexico does not include juries; thus the judge alone considers witness testimony and how much weight, if any, should be given to it. Part of the reform is the inclusion of a
juez de control
, a judge in charge of ensuring due process for the person under investigation and the effective application of criminal law (Hernández, 2008; Justice in Mexico Project, 2009). The introduction of the due process judge creates separation of powers in the judiciary, as the judge who determines whether a suspect is indictable is not the same person who will make a final determination of guilt. The due process judge will ensure that a criminal case is properly handled during the investigation, preliminary hearing, and indictment, and is responsible for determining whether a suspect’s rights should be limited during the trial phase (such as by a restraining order, detention, or house arrest) and whether he should be released on bail or on his own recognizance until a verdict is delivered. The due process judge will issue the final sentence in cases in which the defendant accepts a plea bargain, and will oversee alternate dispute resolution processes, such as the use of mediation (Shirk, 2010). Theoretically, the due process judge will be a safeguard against corruption and ensure the proper use of the investigative process. Thus far, implementation of comprehensive reform of the criminal justice system has been slow. Only a handful of states have made substantive changes (HRW, 2012). Because of lack of efficiency and transparency in the criminal justice system, less than 25 percent of crimes are reported, and only 1 percent to 2 percent of crimes result in sentencing (Shirk, 2010).

In 2011 then-president Felipe Calderón approved several changes to Mexico’s constitution aimed at cracking down on human trafficking. The decree amends Articles 19, 20, and 73 of the Federal Constitution. Article 19 was amended to add human trafficking to the list of crimes for which a judge will order the preventative detention of an alleged offender, meaning that those accused of human trafficking will be imprisoned during trials. Article 73 was amended to empower the Federal Congress to issue federal laws on human trafficking. Article 20 was amended to include a guarantee to protect victim identity and personal data in compliance with the minimum safety measures required in criminal proceedings (CNN, 2011a; Gutierrez, 2011). “It is important that they [victims] can give their testimony to the authorities and to society without being at risk,” then-president Calderón said (CNN, 2011b).

The former president gave Mexico’s Congress 180 days from the date of the decree, July 14, 2011, to approve a new nationwide human-trafficking law that would reform and streamline how authorities handle such cases across the country. “There are thousands and thousands of cases, in a society that is still unaware of the seriousness of this crime,” he said. “We have to break through this curtain … that is hiding from the Mexicans a criminal reality that is in front of us” (CNN, 2011a). In August 2012 Mexico’s lower house of Congress passed an anti–human-trafficking bill that establishes preventative and punitive measures and provides aid to victims. Signed into law by then-president Calderón in June 2012, the new law includes sentences of up to 40 years for offenders convicted of sexual exploitation and abuse, which can be increased to 60 years. It also creates a fund to provide care to victims. The law targets not just the traffickers themselves but also the entire chain of exploitation, ranging from persons who entrap victims, to those who exploit them, to those who hold them against their will, to the clients who pay for sexual services with the victims (EFE, 2012; Government of Mexico, 2012a; Mexico Institute, 2012). The new law sets out to improve coordination for the prevention, prosecution, and punishment of human trafficking among the federal, state, and municipal levels of government. It also grants additional tools to investigators, such as tracking people and cooperating with informants. Repatriation of victims is examined more holistically, and victims in danger of retribution in their country of origin are not to be deported. Also, the law mandates reparations to victims in a comprehensive manner and the creation of a Fund for Protection and Assistance to Victims of Trafficking in Persons Crimes, which will include the confiscated property of offenders. In addition to the above reforms, Calderón also amended the Penal Code to criminalize femicide—the killing of a woman because of gender—punishable by 40 to 60 years’ imprisonment. In September 2012 a coordination center for the investigation and prosecution of crimes on trafficking in persons was created to improve the coordination of trafficking cases. Part of the Attorney General’s Office, the agency is tasked with investigating and prosecuting trafficking offenses when committed by organized crime, and with establishing emergency mechanisms to assist victims of crime. The agency can receive complaints and has the power to order arrests of alleged perpetrators (CNN, 2012a, 2012b; EFE, 2012; Government of Mexico, 2012a, 2012b).