The concept of human trafficking can be derived from law, from the study of internal legislation and international treaties, or from the analysis of the facts that we want to avoid. Human trafficking scholars refuse to consider legal concepts only, as we will explain further ahead. The first thing to bear in mind is that the concept of human trafficking cannot be defined by legal devices only because the real dimension of this problem exceeds the transportation of an individual from one place to another or the sexual industry. Sosinho accurately states that

Human trafficking is a complex and multidimensional phenomenon, which involves social and economic issues, particularly connected with immigration and the search for a job. Bearing in mind this complexity, building the concept of human trafficking is a difficult task, owing to the changeable nature of this crime which involves the violation of Fundamental Human Rights, both as a cause and as a consequence of the problem. (Sosinho 2011, p. 10)

Trafficking in human beings is an extremely profitable illicit activity, and it is believed to be the third-largest source of income in the world, after trafficking in drugs and weapons. Its profitability derives from its low labour costs, the easy restocking of human goods, and the low risk of punitive action it faces (Quinteiro nd). In this line of business, “the good, as an object, has a double value: a use-value and an exchange value” (Leal and Pinheiro 2007, p. 18). This process entails the transformation of the human being into a disposable object, from the moment he ceases to fulfil his primary purpose.

When we speak of human trafficking specifically for sexual exploitation, the problem goes beyond prostitution as an isolated fact. Reducing trafficking-related conflicts to the right to dispose of one’s body in order to obtain profit simply does not suffice. We can contend that trafficking in human beings goes beyond the exercise of human autonomy, to the extent that fraud is often adopted to induce people into prostitution against their own will, as well as situations of coercion, using violence and severe threats. Moreover, as explained below, the vulnerability of the victim and his family is often explored by traffickers.

In this context, it is impossible to dissociate human trafficking, a crime according to law, from a number of social and economic situations that transform people into victims. This crime as a type can only be understood if all the social, economic, and cultural variables of each community are taken into account. Globalisation, poverty, lack of work opportunities, gender discrimination, economic and political instability and civil unrest in conflict areas, domestic violence, illegal immigration, sex tourism, corruption, and faulty legal systems are usually referred to as the causes behind human trafficking (OIT 2006, pp. 15–17), and some of them directly involve the development of a relationship based on exploitation.

The single most important international document pertaining to transnational trafficking in human beings is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organised Crime. Human trafficking is, therefore, viewed by the UN as an issue pertaining to transnational organised crime. We can thus conclude that dealing with it as “any other crime” under the scope of criminal law is not enough; it requires the consideration of fundamental human rights.

According to the Protocol, “Trafficking in persons” shall mean “the recruitment, transportation, transfer, harbouring 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 having 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, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs” (UN 2000, p. 2).

Defining human trafficking requires a more in-depth analysis of the elements involved. First of all, the Protocol defines conducts: recruitment, transportation, transfer, harbouring, or receipt of persons. Recruitment encompasses enticing and selecting potential victims; transportation means driving the victims from their place of origin to a destination where prostitution is to be exercised; transfer means driving the victims from a place where they prostitute themselves to a different place where they will maintain this activity; harbouring means providing accommodation; receiving means providing shelter. The means used in the practice of human trafficking involve threats (the promise to do harm), the use of force (using violent means to reduce the ability to resist), coercion (any other means that reduce the victim’s ability to resist), abduction (deprivation of liberty), fraud (deceiving the victim into believing in a false situation and, consequently, into giving an invalid consent), deception (taking advantage of a misconception of the victim without inducing the error), abuse of authority (moral coercion based on a relationship as a superior), abuse over a position of vulnerability (exploring the fragility of a person that lacks survival opportunities or sufficient cognitive development), and paying of benefits to a person with authority over the victim (usually taking advantage of a situation of misery).

Moreover, the purpose of the agent must involve profiting from the prostitution of a third party and every other form of sexual exploitation. In international law, prostitution is defined by the UN Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. From this document we conclude that prostitution involves any sexual activity performed for remuneration or any other form of contribution. Besides prostitution, the Protocol includes every other form of sexual exploitation such as engaging in sexual activities without compensation to the victim.

However, the real concept of human trafficking is only partly addressed by the Protocol, that is, only a small portion of the chain is considered. The definition provided by the Protocol, according to Kara (2010), focuses more on the movement as opposed to the exploitation. In reality, the trafficking in human beings goes well beyond the movement of the victims: it includes the “slavery” that surrounds them. This faulty definition leads to the implementation of ineffective policies. Bearing this in mind, the author proposes two definitions to reinforce the measures adopted to abolish sex trafficking. On one hand, slave trade is the acquisition, recruitment, harbouring, receipt, or transportation of an individual by multiple means and through long distances as a slave or in a similar position. Slavery, on the other hand, involves coercive labour or any service provided by captives, including the exploitation of their bodies or parts of their bodies (Kara 2010, pp. 4–5).

Similarly, Santos perceives human trafficking as a twenty-first century form of slavery, stating that “nowadays, the prominence of trafficking in human beings tells us that the abolition of slavery did not put an end to the scourge of human trafficking or its role in modern economic and migratory routes” (Santos et al. 2009, p. 71). The chain of human trafficking has a beginning and an ending that surpass its legal definition, starting with the increasing fragility of the victim and ending with the unknown, because this vulnerability is exacerbated.

In Brazilian Criminal Law, trafficking in human beings was termed “women trafficking” until the amendment of Decree Law 11.106/2005. This criminal offence was limited to the female condition, and the change was long called for, since men can also be the victims of sexual exploitation, especially in homosexual prostitution. Nowadays, trafficking in people is provided for in two criminal offences: art. 231 and 231-A in the Criminal Code. While art. 231 provides for international human trafficking, art. 231-A defines domestic human trafficking (within the national territory).¹

Brazilian Law has adopted the recommendations given by the Protocol by disregarding the victim’s consent. Crimes of human trafficking are qualified by the use of violence, severe threat, and fraud, which means that the offences are committed with the victim’s consent. This leads us to one of the guidelines included in the Protocol, provided for in art. 3, subparagraph b: “The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used” (UN 2000, p. 2).

Complementing subparagraph b, we stress that subparagraph a predicts the means used for the trafficking in human beings: threat, use of force or other forms of coercion, abduction, fraud, deceit, abuse of authority or abuse of a situation of vulnerability, and the delivery or acceptance of any payment or benefits to obtain the aforementioned consent. By a process of elimination, trafficking in humans beings can only be considered legal when the victim gives his full consent and is not in a situation of vulnerability. The biggest problem here is setting a clear limit on the degree of vulnerability that weakens the resistance of the victim.

Therefore, we need to consider the concepts of consent and vulnerability in further detail, since the legitimacy of criminalising human trafficking involving fraud, severe threat, or any other type of coercion does not seem to offer any doubt. When fraud is involved, the victim’s consent would be different if he knew the truth of the facts; under violence or severe threat, the victim is aware of the facts but is unable to offer any resistance. The greatest challenge in criminal law is to legitimise the criminalisation of human trafficking when the given consent is free of fraud or coercion, since the offended party is, apparently, exercising his autonomy. The question here is: to what extent does the consent free of fraud or coercion represent a real exercise of autonomy?

An autonomous individual is free to act without interference or control by means of coercion, persuasion, or manipulation. It is a human trait: what the person chooses as a reference to his thoughts, actions, and intentions, and this decision-making autonomy defines, to a great extent, who that person really is (Colt 2006, p. 76). An autonomous individual is able to lead his life according to his own precepts, conscience, and will (Martinelli 2010, p. 186). One of the characteristics of this autonomy is the ability to reflect about one’s decisions, motives, desires, and so forth. Personal autonomy is connected with an independent life, from rational and from emotional points of view. The individual thinks for himself and acts without being subject to an external influence (Dworkin 1976, p. 25).

The autonomous individual possesses two qualities that ensure his liberty. He is “not subject to any determination” and “his goals are his own” (Colt 2006, p. 76). This means that the individual is not moved by any deterministic force. Determination is conceived as the condition that precedes the act, that is, the individual does what he wants freely and not because he was conditioned. The concept of autonomy, on the other hand, involves situations where the person is free to choose something he had access to yet did not know until then. For instance, a woman that has never prostituted herself might decide to develop this activity as a source of income. Even if the woman leads a sexually active life, prostitution might not have been tried yet.