Consent: The Israeli Experience
I. Introduction
On October 8th 2014, UNODC launched an issue paper on "The Role of Consent in
the Trafficking in Persons Protocol". The added value of the Issue Paper is that not
only does it describe the legislation and case law in the various countries surveyed,
but it also addresses how the issue is actually dealt with in practice by police,
prosecutors and courts. Moreover, it reveals the policy issues at the base of various
approaches.
The Israeli approach to consent in trafficking and slavery cases supports the basic
conclusions of the issue paper and may be used as a case study to illustrate the
contending values and practices.
II. Consent as a Value Laden Subject
In Israeli criminal law sometimes the consent of the victim is the linchpin of a
prosecution for a crime. An example is rape. With some exceptions – the victims
consent negates the crime. Another example is simple assault. Here too, the
victim's consent negates the crime.
On the other hand, there are crimes in which the victim's consent is irrelevant to
the crime. In general, these are crimes which reflect fundamental values of the
legal system. Examples are grievous injury, reflecting the value of bodily
wholeness, murder, reflecting the value of life and slavery and trafficking in
persons reflecting the value of freedom and autonomy. In these kinds of crimes,
the criminal law makes a value laden statement that these values are so central,
that people cannot consent to their violation – this, even though, in other crimes
and other frameworks, the essence of autonomy is to allow someone to make
choices, even if these choices are bad choices.
Another reason that the victim's consent is irrelevant in these crimes is that we
suspect that such consent cannot be genuine, in view of the seriousness of the
violation.
Both these reasons are given for deeming consent irrelevant in Israeli case law on
trafficking in persons.
III. Practical and Policy Considerations
Over and beyond the discussion around values, there are practical and policy
considerations at the base of the discourse on consent. These considerations
include the fear that allowing the victim's consent to be relevant in cases of
trafficking might impede prosecutions and convictions to a great extent. This is so
because it is a characteristic of trafficking and slavery cases that often victims
seemingly consent to their exploitation. This may emanate from an array of
circumstances, but the central reason is the victims' vulnerability which gives
them low expectations, and may make them more susceptible to traffickers'
blandishments. Thus, in one case, the victim maintained that the trafficker was her
best friend because, for the first time in her life, she had been given her own room
and television.
However, another practical consideration, expressed in one case, is the fear that
widening the crime too much and deeming all consent irrelevant may water down
the trafficking crime, and thus impose stringent sentences on defendants who do
not merit this and widen the net of victim protections beyond what is reasonable.
Thus, in a recent case decided in Israel's Tel Aviv District Court, the court
exonerated a defendant who gathered around him a harem of women and children
and controlled every aspect of their lives - from a charge of slavery under the
assumption that his conviction would widen the net of trafficking offences to
absurdity – including family frameworks.
IV. Despite Clear Case Law Cases still Revolve around Consent
Israeli case law also supports the issue paper's contention that whatever the
national law, consent will still tend to be a central focus of trials. Israeli case law
clearly states that consent is irrelevant in cases of trafficking in persons and
slavery. This is a particularly strong statement in view of the fact that Israeli law
does not require "means" in order to convict on trafficking or slavery. Even in
cases without violence, fraud, abuse of position of vulnerability, the court can
convict.
However, despite this clear case law, Israeli courts, like courts worldwide do
address consent consistently and do not make due with a statement that it is
irrelevant. Often a case will even hinge on the victim's apparent consent to the
abuse. This supports the issue paper's thesis that despite what is said in law or case
law, cases still revolve around consent.
Perhaps this is because, especially for criminal justice practitioners, it is counter
intuitive to bar consent from the equation, given the many crimes in which it
makes the difference between conviction and exoneration.
V. The Subtexts Underlying Consent
Three recent slavery cases illustrate the welter of values and policy considerations
at the basis of consent and reveal the subtexts underlying differing approaches of
courts towards victim consent.
The first, State of Israel v. G. concerns a young foreign worker from the
Philippines who was employed doing domestic work, though she had been
promised work in nursing care. She worked 7 days a week, with no vacations and
during many hours each day. As a rule, she was supervised when she left the
house, though she was permitted to go out for short periods of time and for
specific purposes. She was isolated by various means: the constant supervision,
the warnings of her employers not to go out alone lest she be arrested and her lack
of knowledge of the language and location. She was paid a pittance rather than the
sum she was promised. On occasion she was locked in the house. Her passport
was detained. However, her employers did not exercise violence or abuse against
her and treated her with respect. The defendants were convicted of holding a
person under conditions of slavery in that they had severely limited her freedom.
The second case, State of Israel v. A. concerns a man who gathered around him a
number of women by means of his purported religious powers and insights. He
gradually exercised more and more control over them- isolating them from their
families and friends; having them go out daily to beg and requiring them to bring
back large sums of money each day; controlling the most basic life functions such
as going to the bathroom, eating, drinking, making any purchase, no matter how
trivial ;punishing them in sadistic ways, purportedly for their spiritual good;
manipulating them to feel guilt and self- hatred, thus prompting them to punish
themselves and to participate in the punishment of others. The women did not
leave because they were afraid of the defendant – not only physically, but
spiritually since they believed in his powers. The defendant was convicted of
holding a person under conditions of slavery.
The third case, State of Israel v. G.R. involves similar facts to the second. Once
again a man gathered around him a harem of women and children under the guise
of possessing spiritual powers. He controlled every aspect of their lives including
what kind of work they were permitted to do (limited to menial domestic tasks),
had them consult him before they could buy the simplest product including a
bottle of water; wrote a long list of rules the violation of which involved fines,
some of which were substantial; did not allow the women to talk freely with one
another; encouraged them to change their names to names connected to his;
encouraged them to tattoo his picture on their bodies; controlled how they dressed;
isolated them from their families. He did not exercise violence to effect this
control, though he was convicted of a number of sexual offences against women
and children in the group. The only overt form of pressure was his threat that if
the women left him, he had the cosmic power to harm them. Though this case
closely resembles the second case, the Court exonerated the defendant.
VI. The Subtexts Underlying Consent
The rulings in these cases reveal subtexts underlying the issue of consent. In each
case, though Israeli case law does not require lack of consent of the victim, this issue
was addressed by the Courts at length and was a central consideration in the final
ruling. The seeming consent of the victim was expressed by his or her not escaping
his or her situation despite opportunities to do so; returning to the abusive situation
seemingly voluntarily; lack of consistent opposition to abusive conditions and in the
last two cases, even initiating practices which strengthened the defendant’s control
over them. Given this common ground, what subtexts influenced the courts’ rulings?
1. The Classic Vulnerable Victim: Vulnerability of the victim is an important
subtext, though Israeli law does not require any “means”, including “abuse of
a position of vulnerability” which appears in the Trafficking in Persons
Protocol. The first case, G, involves a classic victim – a vulnerable foreign
young woman who is deceived and who is isolated by the very fact of her
foreignness and lack of familiarity with the country of destination. Thus it is
understandable why she does not escape her condition. On the opposite end of
the spectrum, the third case, G.R., involves native Israeli women who came
from normative home environments with access to information and support
systems. While the second case, A, too, involves native Israeli women, some
of whom are described as articulate, the Court explicitly describes them as lost
souls with a certain connection to religion who are searching for a path in life.
They are also described as people with problematic pasts, some of whom
underwent abuse before joining the defendant’s group.
Thus, courts are more likely to override consent when the alleged victims
are seen as vulnerable, thus reflecting the strong connection between
consent and the issues surrounding "abuse of a position of vulnerability"
which is one of the "means" which appears in the Trafficking in Persons
Protocol, though not in Israeli law..
2. Violence or Fraud as Contrasted with Subtle “Means”: When “means” like
violence or fraud are used, Courts are more likely to override the consent of
the victims or understand it, despite the fact that Israeli law does not require
use of a “means”. Thus in the first two cases which included such “means” the
defendants were convicted, whereas in the third case which did not include
overt violence, the court was reluctant to convict and thus override the value
of autonomy. While recognizing the manipulative nature of the defendant’s
actions in this third case the Court stated:
All the complainants passed their childhoods in a normative social
environment and were aware of the difference between ordinary life and
life with the defendant. They were not denied access to information which
demonstrated that it is possible to lead a normal life without the
defendant. No pressure was exercised against them systematically except
threats of punishment by threats of “fantastic means” or by the defendant
preferring one woman over another…”
On the other hand, the use of subtle means, which are mainly psychological,
does not always suffice to support a conviction. Thus while in the first two
cases, the courts explicitly recognize manipulation by psychological means
(which may include isolation, restriction of freedom of movement, fostering
beliefs which give the defendants control), in the third case the Court states:
There was no action, not of a psychological nature, which presented the
alleged victims with an obstacle which prevented them from leaving the
defendant.
Compare this with the Court’s rulings in the second case, A, by which slavery
does not require severely violent behavior, but rather it is possible to
implement it in sly and sophisticated ways.
Another issue which arises in these cases is the place of threats which seem
ridiculous to the average person. In both the second and third cases, the
defendants threatened the alleged victims that should they leave, harm would
follow as a result of their spiritual powers. However, while the Court in the
second case recognizes that the victims believed in the defendant’s capacity to
harm them by means of his spiritual powers, and is able to understand their
inability to leave on this basis, in the third case, the Court dismissed the
defendant’s threats to harm the victims by means of his cosmic powers as
“fantastic’ and consequently not to be taken seriously by anyone, including the
victims.
3. Physical Restrictions of Freedom:
Where he defendants physically restrict the alleged victims’ freedom, Courts
will override seeming consent more easily. This, though most Courts explicitly
state that there is no requirement of physical restrictions in order to constitute
slavery. Thus, in the second case ,A, besides the manipulations of the
defendant, he physically restricted the victims’ freedom to leave by pulling
them back to the house or by punishing those who fled. On the other hand, in
the third case, G.R., there was no such physical restriction of freedom.
4. Conceptions about Typical Forms of Slavery: In the first case, the Court
was presented with a case involving a foreign worker, which fit into accepted
conceptions of the typical kind of case addressed by the slavery section in
Israeli legislation. On the other hand, in the second and third cases, the Court
was presented with the atypical framework of a pseudo family. While in the
second case, the Court was willing to extend the slavery section to encompass
any severe restriction of freedom, whatever the framework, in the third case
the Court was unwilling to do so. Its considerations reveal a fear lest widening
the ambit of the slavery section might lead to absurdities such as indictments
against authoritarian heads of families. On the other hand, the second Court
met this concern head on, when it firmly distinguished between the facts of the
case and the case of a patriarchal family in which the head of the family
assumes a dominant position vis a vis the other family members.
5. Stages of Consent: In all the cases, but particularly in the second and third,
control was exercised gradually and progressively, with the defendant’s
actions growing more extreme as time passed and he saw he could act with
impunity. Thus in the second case, the Court describes two main stages,
during the first of which the defendant would persuade the woman to join the
group by behaving in a fatherly and pleasant way. However, once she had
joined, his actions became more and more extreme. By the same token, the
Court distinguishes between situations where the women agreed or at least
passively consented to the abuse and those in which they resisted. It
emphasized that at least in the last class of cases – there was no consent
whatsoever.
VII.
Conclusion:
The issue of consent presents a complexity over and beyond other issues in
trafficking cases. Values around consent may be contradictory as are practical and
policy considerations which play a role.
Though Israeli case law explicitly states that consent is irrelevant to the crimes of
slavery and trafficking, in practice, even when courts override seeming consent,
they work hard to do so. Thus, in their analyses, courts use subtexts which do not
form part of the law explicitly in order to address the seeming consent of victims,
and for example:
1. The consider the nature of “means” used by the defendant, though the law
does not require the use of “means”;
2. They consider the vulnerability of the victim in order to understand his
seeming consent, though Israeli law makes no mention of this as a
consideration;
3. They bring into account if the limitations on the freedom of the victim were a
consequence of physical restrictions, though the law does not explicitly
require this.
4. They sometimes harbor conceptions about what constitutes typical forms of
slavery, though these do not appear in the law.
5. They distinguish between different stages, where only during some of these,
did the victims seemingly consent, whereas in others they clearly resisted.
These subtexts assist courts to rule in cases of trafficking and slavery, in the face of
the seeming consent of victims, thus imbuing the legislation with elements not
explicitly required by it and illustrating the gap between theory and practice.
Rahel Gershuni
National Anti Trafficking Coordinator
Ministry of Justice
State of Israel