Act on criminalisation of the abuse of prostitutes who are victims of human trafficking has entered into force

On 1 January 2022, the Criminalisation of the Abuse of Prostitutes who are Victims of TraffickingAct came into force (Bulletin of Acts and Decrees 2021, 467).

The new law intends to criminalise the person who performs sexual acts with a sex worker while he or she knows or should reasonably suspect that the sex worker has been forced or induced to do so, in other words, is a victim of human trafficking (section 273g of the Penal Code).

The maximum prison sentence for this new offence is 4 years. If the sex worker is younger than 18, the maximum prison sentence is 6 years.

The new penal provision is part of the fight against forced prostitution and human trafficking. According to the legislator, human trafficking is a serious violation of human dignity and integrity and therefore constitutes a violation of human rights.

With the new penal provision, the legislator intends to raise a new threshold against exploitation and coercion in prostitution. According to the legislator, the prostitute (or client) who knows or should reasonably suspect that a sex worker is a victim of trafficking in human beings and nevertheless makes use of his or her sexual services, contributes to the maintenance of a network of exploitation and trafficking in human beings.

To 'know' that someone is a victim of trafficking in human beings is, for example, when the client is involved in the trafficking or has explicit knowledge of it in some other way. In most cases, the client will probably not have that explicit knowledge, but there may be other factors that lead the client to understand that he is dealing with a victim of trafficking. The new statutory provision expresses this with the term 'reasonable suspicion'. The legislator is of the opinion that a person who makes use of the sexual services of a victim of human trafficking must be punishable by law if, despite obvious signs to the average person indicating such victimisation, he does not refrain from making use of those services.

If the client is prosecuted, the question will often arise as to whether he or she should reasonably have suspected that he or she was performing sexual acts with a victim of human trafficking. What signals of victimisation were present is of great importance. These signs must be clear enough to enable anyone to conclude that sexual services are being offered as a result of being a victim of human trafficking. The legislator has in mind signals that relate to this:

• on the victim himself. This might include external signs that indicate (severe) abuse, such as bruises or stretch marks, or behavioural signs, such as expressions of fear, aversion or sadness;
• the environment in which the sexual services are offered. This includes residential situations that are hidden from view, such as garage boxes, spaces on abandoned industrial sites, or holiday homes or houses that are not permanently inhabited;
• or on the way in which clients are brought into contact with the victim in question. An example is the client who hears through a shady channel that he can purchase sexual services somewhere, for example through 'review websites' where the services of sex workers are discussed, or the client who is led to a sex worker through a link of vague intermediaries. A clear signal of trafficking is present if the sex worker is forcibly or violently presented to the client.

If one or more of these signals are present, the client must know or reasonably suspect that the person offering the sexual services is a victim of human trafficking. The signals mentioned above are not, however, an exhaustive list of the cases in which the aforementioned reasonable suspicion may apply.