Trafficking in Persons in Guyana is governed by the Combating of Trafficking in Persons Act 2005 and came into effect on 7th April 2005. The Act provides for offences the major one of which is Trafficking in Persons, section 3 of the Combating of Trafficking in Persons Act 2005. Trafficking in Persons includes engaging in, or assisting another person to engage in or organizing or directing other persons to engage in trafficking in persons.
Trafficking means recruitment, transportation, transfer, harbouring or receiving a person by means of threat or the use of force or other means of coercion, or by abduction, fraud, deception, abuse of power or of a position of vulnerability, or by giving or receiving payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation.
Exploitation means keeping a person in a state of slavery, subjecting a person to practices similar to slavery, compelling or causing a person to provide forced labour or services, keeping a person in a state of servitude, including sexual servitude, exploitation of prostitution of another, engaging in any form of commercial sexual exploitation, including but not limited pimping, pandering procuring, profiting from prostitution, maintaining a brothel, child pornography., illicit removal of human organs.
The offence consists of three elements:
- The recruitment, transportation, transfer, harbouring or receiving a person;
- by means of threat or the use of force or other means of coercion, or by abduction, fraud, deception, abuse of power or of a position of vulnerability, or by giving or receiving payments or benefits to achieve the consent of a person having control over another person;
- for purposes of exploitation.
The charges are both summary and indictable.
Summary Charges
Mandatory Imprisonment
The summary offences carry a mandatory penalty of imprisonment for a minimum sentence of not less than three years and a maximum sentence of not more than five years.
Forfeiture
Persons found guilty can also have their property forfeited. The property includes but is not limited to money, valuables and other movable and immovable property which was used or intended to be used or was obtained in the course of the crime, or benefits gained from the proceeds of the crime. The property includes overseas assets and is forfeited to the State.
Restitution
Courts can also order the persons convicted to pay full restitution to the trafficked persons.
Restitution shall compensate the victim for costs of medical and psychological treatment, physical and occupational therapy and rehabilitation, necessary transportation, temporary housing and child care, lost income, attorney’s fees, compensation for emotional distress, pain and suffering and any other losses suffered by the victim. The restitution is paid promptly to the victim upon conviction of the defendant with the proceeds from the property forfeited applied first to payment of restitution.
Indictable Charges
In the case of an indictable charge there is also a mandatory penalty of imprisonment to a minimum sentence of not less than five years and a maximum sentence of life imprisonment.
Children
There is special provision for Trafficking in persons who are children. The recruitment, transportation, transfer, harbouring or receiving of a child or the giving of payments or benefits to obtain the consent of a person having control of a child for the purpose of exploitation shall constitute trafficking in Persons, regardless of whether it has been established that it was done by means of threat or the use of force or other means of coercion, or by abduction, fraud, deception, abuse of power or of a position of vulnerability, or by giving or receiving payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. In other words all that is needed to be established is the first element.
Other Offences
There are also other offences provided for in the Act such as Unlawful Withholding of Identification Papers which is a strictly summary offence and also carries mandatory imprisonment for not more than five years together with a fine for one million dollars. This is where a person for the purpose of trafficking in persons knowingly procures, destroys, conceals, removes, confiscates, or possesses any passport, immigration document or other government identification document, whether actual or purported, belonging to another.
Another offence is Transporting a Person for the Purpose of Exploiting such person’s prostitution. Whoever knowingly transports or Conspires to transport or attempts to transport or assists another person engaged in transporting any person in Guyana or across an international border for the purpose of exploiting that person’s prostitution commits an offence. This offence is summary and the penalty is imprisonment for not more than 3 years and a fine of not less than five hundred thousand dollars and not more than one million dollars. [no mandatory imprisonment]. Aggravating circumstances attract a higher sentence of up to a maximum of five years together with forfeiture of the conveyance used for conveying the victim. Aggravating circumstances are transporting two or more persons or children at the same time, permanent or life-threatening bodily injury to a person transported, or transporting as part of the activity of an organized criminal group.
Consent
The alleged consent of a victim is irrelevant. Also irrelevant is the victim’s past sexual behavior for the purpose of providing that the victim engaged in other sexual behavior or to prove the victim’s predisposition.
Age of Consent
Age of consent to sex or legal age of marriage shall not be used as a defence.
Victim Immunity
Victims of human trafficking are immune from being criminally charged for any migration-related offence, prostitution, or any other criminal offence that was a direct result from being trafficked.
Assistance
Assistance is provided for victims in the legislation under Part III including protection for victims from being recaptured by traffickers, security for the victim and their family from threats, reprisals or intimidation by the traffickers and their associates. Victims are also eligible for witness protection.
In Camera hearings
All hearings for these offences shall be held in camera and the identity of the victim must not be published. Any person who exposes the identity of the victim and the victim’s family commits a summary offence and liable to a fine of one hundred thousand dollars.
Sentencing
Sentencing Guidelines are provided for in the Act in section 8.
This is a modern piece of legislation by the government of Guyana and makes provision for many things not provided for in other criminal offences and hearings.
Shalimar Ali-Hack
Director of Public Prosecutions
14th February 2012.