From the program “Prevention and awareness of gender violence” we consider that the visibility and detection of situations of labor exploitation is one of the fundamental actions to work on its prevention. Therefore, we want to offer concise information about the concept, the way in which it specifically affects women, analyze its consequences and propose solutions, it is essential for its prevention and detection.
Trafficking in human beings
The crime of trafficking in human beings –art. 177 bis of the Penal Code– consists of a series of conducts related to human trafficking: recruitment, transportation, transfer, harboring or reception, including the exchange or transfer of control; with the purpose of being exploited or forced. Its punishment represents an advance of the penal barriers justified by the fight against one of the most serious current violations of human rights. The victims of this crime are usually vulnerable people, especially women, minors and men in delicate physical or economic conditions, accustomed to discrimination and who do not put up much resistance.
The crime of trafficking is an intentional crime that requires, in addition to intent, the pursuit of one of the typical purposes: the imposition of forced labor or services, slavery or practices similar to slavery, servitude or begging, sexual exploitation of the victim; exploitation for criminal activities; the extraction of the victim’s bodily organs; or, finally, the celebration of forced marriages. It is also characterized for being a permanent crime, as would be a kidnapping or breaking and entering, since it continues to be consummated until the vulnerability, threat or intimidation of the victim has not ended. The legal property protected by this crime is twofold: human dignity and freedom.
Likewise, the crime of trafficking in human beings expressly requires the use of some means of commission that infringes on the victim’s freedom, invalidating her consent, such as violence, intimidation or deception, or abuse of a situation of superiority, necessity or vulnerability of the victim, unless the victim is a minor.
The effective exploitation or forcing subsequent to trafficking, which will be punished by means of a concurrence with the corresponding crime, will attack other legal assets, such as: the rights of workers, freedom, sexual freedom, physical integrity, etc. This leads us to differentiate, on the one hand, trafficking in persons as a previous and autonomous crime, whose consummation only requires the purpose of exploitation or forcing, and, on the other hand, the subsequent criminal conducts of exploitation or forcing. Trafficking can be considered as preparatory acts of such conducts expressly typified.
Labor exploitation as a purpose of trafficking in human beings?
Labor exploitation is not included in the catalog of purposes of Article 177 bis of the Penal Code. The International Labor Organization emphasizes that the fundamental differences with forced labor, with which it sometimes maintains a borderline relationship, is that the latter is achieved through the use of forms of coercion and threats to retain the worker, who loses his or her freedom in an absolute or relative manner, while a situation of labor exploitation only implies that services are provided under conditions that violate labor legislation (art. 2.1.A Resolution of December 20, 2021, of the Secretary of State for Employment and Social Economy, publishing the Agreement of the Council of Ministers of December 10, 2021, approving the National Action Plan against Forced Labor: compulsory labor relations and other forced human activities).
Sometimes, terminological confusion has reached the point of considering labor exploitation as a common category that contains all the purposes already mentioned: forced labor or services, slavery or similar practices, servitude or begging. However, it would be correct to consider that this is a less serious, independent conduct, and that it would fit, where appropriate, in the crimes against the rights of workers, which occur when unlawful working conditions are imposed. However, it will always, but not only, be present when there is forced labor, servitude or slavery. In other words, these purposes include labor exploitation, although they go much further, being distinguished from each other by the degree of infringement of freedom; or, if you will, they are the most serious forms of labor exploitation that also involve deprivation of liberty to some degree.
In itself, the typical purposes of trafficking have a worse fit in the current articles of the Criminal Code. There is the paradox that one can be a victim of a crime of trafficking for the purpose of slavery, servitude or forced labor, but one cannot be a victim of a crime of slavery, servitude or forced labor as such.
Since certain forms of labor exploitation are criminalized, such as the imposition by the employer by means of deception or abuse of the workers’ situation of need, of working or safety conditions that harm, suppress or restrict their recognized rights, or the imposition of illegal conditions, if a situation of forced labor were to occur after another of trafficking, it would result that the penalty for the prior conduct would be much more severe than the actual subsequent exploitation.
In these cases it does not matter what type of work is performed, whether it is legal or not, or whether it is recognized as an economic activity, since, in any case, the existence of conditions of labor exploitation or forced labor is determined by the relationship between the “employer” and the person who performs the activity.
Returning to the conducts and purposes listed in art. 177 bis of the Criminal Code, the subjection of a person to situations of slavery, servitude or forced labor requires the imposition of a personal condition: that of slave, servant or worker; and with this, the person is controlled and different vital spheres of the person are affected, not only labor (Regulation and legal-penal treatment of contemporary forms of slavery, Ana Belén Valverde Cano). The failure to prosecute these conducts outside the crime of trafficking results in the absence of a comprehensive protection mechanism for the victims, since it is not possible to create a policy for the prevention of forced labor, servitude or slavery if they are not considered as autonomous and independent crimes.
The seriousness of this situation is not legally ignored, so in 2017 a commitment was announced to draft a Law on Trafficking. This law, if the text included in the Preliminary Draft of the Comprehensive Organic Law against Trafficking and Exploitation of Human Beings (2023) is finally approved, will introduce greater proportionality and bring the regulation more in line with international standards. Likewise, two chapters are created within Title VII bis of the Criminal Code, which now contains only art. 177 bis, and will be renamed “On trafficking in human beings and subjection to forced labor or services, servitude or slavery” in which human trafficking and forced labor and services, servitude or slavery will be divided. This is an important first step towards closing the regulatory gap by making all forms of forced exploitation separate crimes from trafficking in human beings.
Labor exploitation from a gender perspective
Focusing on the causes that originate these behaviors of trafficking and exploitation or forced labor, although the background is always the same: poverty; we must not forget that there is another major cause that has not changed since the beginning of trafficking, as it is, in a way, timeless: the domination, subjugation, dependence, objectification and deprivation of control of women by men. Violence against women is a consequence of the patriarchal structures that have persisted throughout history, which encourage and justify subordination to men. Therefore, we must be aware that the sex of the victims plays a fundamental role in these situations and not only for sexual exploitation or forced marriage. Sex can be the reason why this person is victimized or the reason why she or he is more likely to be victimized, since being a woman often becomes a form of vulnerability, in the same way as poverty or social exclusion. This is why the United Nations General Assembly itself has deemed it necessary to address this special situation of vulnerability by incorporating a gender perspective, especially in the strengthening of laws to combat gender-based violence, including human trafficking (Declaration of the High-Level Dialogue on International Migration and Development).
In short, if we combine capitalism and patriarchy, we see subjects in which economic and gender discrimination concur, or, in other words, the feminization of poverty. Labor exploitation does not affect men and women equally. An example of this is the case of migration, in which men are considered a social threat to jobs because they are defined as “cheap labor”, while women come to perform jobs that, on the one hand, are not as in demand as those jobs that are more “masculinized” and, on the other, are often in the shadows. It is not the same for work in the field, where the conditions in which it is performed can be observed, as it is for work in a private home, where the conditions are more intimate and difficult to define.
For this reason, women are often exploited in the performance of domestic tasks and services, outside the public sphere, being an almost invisible form of exploitation, which adds to the difficulties that the victim may already suffer, such as social isolation. If it is already difficult to detect these behaviors, it seems almost impossible if they occur within a labor sector that lacks comprehensive regulation (Decent work for domestic workers, International Labour Organization).
Immigration, labor exploitation and trafficking
If, in addition to the above, we add the migratory factor, the risk of being exploited is much greater. The political and economic instability existing in the countries of origin and the situations of social inequality place these women in a position of special vulnerability and discrimination. This, added to the impossibility of having sufficient economic resources, results in the feminization of migratory movements and, on many occasions, in the trafficking of immigrant women. All of this makes immigrant women the holders of a double status: victims of trafficking and foreigners in an irregular administrative situation. In addition, their own characteristics, such as economic vulnerability, must be taken into account.
In these cases, the “employer”, in addition to the power to recruit his victims, has the capacity and the appropriate position to instill in them the fear of denouncing these irregular situations, fear of being denounced, which adds to the previous situation of need and increases exponentially the risk of being exploited.
All in all, it is important to conclude with a final reflection that seeks, mainly, the detection and prevention of situations of labor exploitation of women, as well as the recovery work to be done with them from a social and economic perspective that allows a real inclusion in the labor market and the necessary economic, labor, social and emotional autonomy of women who may find themselves in contexts of trafficking for labor exploitation.
More information and other articles of interest:
Violence Prevention Channel
Information pill on economic violence
