Japan’s Fight against Modern-Day Slavery (Part II)

Scott Hansen
Second Secretary, Political Section
U.S. Embassy Tokyo

In the last issue of American View, I described how I first came into contact with the terrible crime of human trafficking. When a Filipina lady told me her story of being tricked into coming to Japan and the terrible things that happened to her here, I was shocked to know that such a barbaric crime could be occurring right under my nose. Now that I am the U.S. Embassy Political Officer responsible for monitoring trafficking in persons, I am sad to report that trafficking in persons is a crime that is growing throughout the world. Now more than ever we must join together to interrupt the slavery of human beings.

In last issue’s article, I explained how the Trafficking Victims Protection Act (TVPA) defined the three P’s of anti-human-trafficking policy: Prevention (of human trafficking), Protection (and rehabilitation of victims), and Prosecution (of traffickers following a vigorous investigation). I also wrote about the fact that the TVPA mandates that the Department of State annually measure, evaluate, and report on foreign governments’ efforts to eliminate severe forms of trafficking in persons, comparing the prevention, protection, and prosecution policies and the implementation of those policies in each country with the “minimum standards” as defined by the TVPA, and giving each country a "grade." Although Japan’s efforts to combat human trafficking merited an upgrade to Tier 2 in 2005, it still fell short of compliance with the minimum standards as set forth in the Trafficking Victims Protection Act in the 2006 and 2007 Reports. Following are some of the areas that Japan will need to address in order to receive a Tier 1 ranking in the TIP Report.

Child Pornography

No government is praiseworthy in its fight against trafficking in persons without strong policies suppressing child pornography. The fact that it is legal to purchase and possess child pornography in Japan contributes to the global demand for production of these images, which often depict the brutal sexual assault of children, the very worst form of human trafficking.

Child pornography is a violent crime affecting small children. According to U.S. investigators, collectors of child pornography almost always possess images of children who have not yet reached puberty. According to their research, 83% of collectors possessed images of children between the ages of six and twelve; 39% of the cases involved images of three- to five-year-old children; and 19% involved images of toddlers or infants younger than age three. U.S. researchers found that 21% of child pornography cases involved images depicting violence, such as bondage, rape, or torture, and most of those involved images of children who were gagged, bound, blindfolded, or otherwise enduring sadistic sex. Some 80% of cases involved pictures showing the sexual penetration of a child, including oral sex.

Children in northern Thailand play at a day school where U.S. government funding helps protect girls at risk of being trafficked. (Kay Chernush for the U.S. State Department)

The nightmare of child pornography does not end when the abuse stops. Child victims of rape and sexual abuse often have terrible injuries including genital bruising, lacerations, or have been exposed to sexually transmitted diseases. The psychological trauma is also overwhelming. Victims struggle with depression, withdrawal, and other disorders for the rest of their lives. In addition, the permanent photographic or video record of the abuse will haunt a victim forever. Even when a child has escaped from an abuser, he or she can never escape from the horror of knowing that other pedophiles are stimulating themselves while looking at a picture or watching a video of the victimization.

In addition, there is mounting evidence that child pornography crimes lead to the sexual abuse of real children. A 2007 U.S. government study has shown that more than 85% of persons convicted of child pornography crimes admitted to sexually abusing children. Those who trade in child pornography participate in networks (chat rooms, file servers, news groups, bulletin boards, websites, etc.) of like-minded individuals, which serve as support groups. These individuals can easily find, identify with, correspond with, and trade child pornography with each other, giving them comfort in the fact that they are not alone and validating their offending behavior. They feel they are part of a vast network of like-minded people who believe it is acceptable to engage in sexual fantasies about children, thus lowering their inhibitions about acting on their fantasies and increasing the likelihood that they will actually molest children. A growing array of psychological experts from around the world, including the FBI’s Behavioral Analysis Unit, have established this link in relevant work with child sex offenders. The information obtained from the offenders themselves leaves no doubt that child pornography drives some consumers of child pornography to live out their fantasies on real children.

Child molesters also use child pornography to seduce children. Sexual predators routinely send images of child pornography to undercover agents posing as children as part of the grooming process to increase the likelihood of a sexual encounter. Offenders attempt to desensitize the children and lower their inhibitions by showing them images that appear to depict other children enjoying sexual activities with adults, in the hope that convincing a child that the activity is fun and acceptable will encourage the child to engage in a sexual relationship.

The risks associated with child pornography appear to be the same whether the image is real or a cartoon. Having struggled with these issues in our courts, the United States recognizes that there is a difference between drawings and images of real children, but it is the U.S. position that trade in cartoon and comic child pornography should be criminalized. Child molesters use fabricated images depicting the sexual abuse of children, including manga and anime, in the same manner that they use images of real child victims: to fuel their fantasies, to whet their appetites for real children, and to groom real and vulnerable children for sexual encounters by lowering their inhibitions, desensitizing them to the sexual acts, and convincing them that the behavior is acceptable and fun. This is particularly true of composite or computer-generated depictions that are indistinguishable from depictions of real children. When viewed by individuals who have a predisposed sexual interest in children, even manga and anime depicting the sexual abuse of a child can validate that interest and encourage their sexual fantasies about children and help them rationalize this behavior. This increases the risk that these individuals will act out their fantasies by sexually molesting children. Any image of a child engaging in explicit sexual conduct is dangerous, whether that image involves a real child who has already been victimized or is a created image that is used to entice innocent and vulnerable children into becoming real victims themselves. At a minimum, the easy availability of such material contributes to the sexualization of children and the promotion of pedophilic interests in our societies.

The Development and Education Program for Daughters and Communities (DEPDC) works with teachers and local leaders to keep children from becoming the victims of human trafficking. (Kay Chernush for the U.S. State Department)

The failure to prohibit computer-generated or cartoon child pornography by some statutory means is not only problematic because of the link to sexual abuse; it also undermines the ability to enforce laws against other types of child pornography. Moreover, in the absence of appropriate legislation outlawing the simple possession of this material, we face the risk that the growing sexualization of our children will make them permanently acceptable commodities for pedophilic interests in our societies.

Child pornography in Japan affects the rest of the world, too. The growth in Internet use has led to an explosion in the number of persons obtaining, trading, and distributing child pornography, unconstrained by international borders. Additionally, the immense market for child pornography that exists today is growing larger and much more extreme in content, and this market is being fed by the insatiable demand of child pornography possessors. Worse, this demand is only satisfied by the new and actual sexual abuse of more and more children in ever more extreme ways. No country is untouched by this crime, and it will take a concerted effort from governments, law enforcement agencies, and civil society to ensure that the world’s children are protected.

The United States also has a serious child pornography problem, but our legal framework gives law enforcement authorities the tools they need to effectively investigate and prosecute child pornography offenders. In Japan, the absence of a law criminalizing simple possession often prevents police from proactively investigating child pornography crimes. Japanese Internet service providers acknowledge that law enforcement authorities have been unable to keep up with the massive growth in Japanese e-groups, newsgroups, and bulletin boards dedicated to the exchange and proliferation of child pornography. According to the National Police Agency, it is almost impossible for local investigators to obtain search warrants to confiscate or search suspects’ computers, because simple possession of child pornography is not illegal. Child pornography prosecutions today almost always involve images contained on computer hard drives or start with an Internet protocol (IP) address that is known to have accessed child pornography material. The fact that Japanese courts cannot grant search warrants based on IP address information prevents Japan’s police from effectively combating the trade in child pornography.

The lack of a law criminalizing simple possession also prevents Japan from participating in many international child pornography investigations. The National Police Agency in Japan enjoys an excellent reputation in the international law enforcement community and cooperates extensively in international investigations of various kinds. Unfortunately, because Japan does not criminalize possession, the NPA cannot participate in the most frequently conducted international child pornography investigations, which target massive customer lists from commercial websites and other Internet communities that traffick in child pornography. In these cases the only available evidence upon which law enforcement can obtain legal process to act is the fact that the targets possessed child pornography on personal computers. In these international investigations, the evidence that is shared from one country to another leads to search warrants and the seizure of personal computers when there is cause to believe that child pornography is possessed. These seizures typically result in the initial arrest of the target based on possession charges, but in many of these cases investigators find the very worst offenders, people who not only possess the material, but produce it by violating children.

I strongly disagree with opponents of criminalizing possession who argue that it would give police too much investigative power. A law criminalizing the possession of child pornography addresses a significant threat against children and in and of itself bestows no additional powers on police. In order to enforce a possession law by searching a private computer, a police officer must first apply to a judge for a search warrant. A judge will not grant a warrant unless he or she finds that there is sufficient probable cause to believe that the computer contains evidence of a crime. A corrupt police officer willing to conduct an illegal search or seizure without a court order does not need a law criminalizing possession of child pornography to do so. If this kind of corruption exists it must be dealt with directly and not by declining to pass criminal laws meant to address critical issues of child protection. Most importantly, we must recognize that the rights of children are being violated today. Working to stop the daily victimization of children must be our first priority.

The laws of a civil democratic society provide for and secure the healthy growth of children into adult citizens. Privacy and free expression are important rights, but they are not unlimited. In the US, for example, our courts have long held that obscenity and child pornography are not entitled to protection. In recognition of this and the grave risk presented by sexually abusive images of children, our Congress has passed tough laws against child pornography, finding that the essential interest of protecting children outweighs any infringement on the rights to privacy and free speech. Governments have a compelling interest in protecting children from those who would sexually exploit them, including both child molesters and child pornographers. This interest extends to stamping out the exchange of child pornography at all levels in the distribution chain, including the use of this material through simple possession.

Japan has an extraordinary opportunity to contribute to the global protection of children.

The Law Punishing Acts Related to Child Prostitution and Child Pornography is overdue for its three-year review this year. Among the members of the G-8, Japan and Russia are the only two that do not criminalize the possession of child pornography. The United States welcomes the recent remarks in the Diet by the prime minister and justice minister calling for the criminalization of possession, as well as moves by several political parties to review the legislation. We hope that the Diet will revise this law to criminalize and punish the advertising, access, purchase, and possession of child pornography. This revision would significantly improve the protection of children throughout the world by allowing Japanese law enforcement officials to contribute their expertise in the international fight against this terrible crime.

The International Center for Missing and Exploited Children has also identified another best-practice law that does not exist in Japan: mandating that Internet service providers report child-pornography-related activity to law enforcement authorities. We hope that the Diet will also consider adopting this useful legislation.

Victim Identification

The U.S. government has received reports of women otherwise classifiable as victims of human trafficking being deported by Japanese authorities. Because Japan does not have formal victim identification procedures, the government cannot guarantee that victims of human trafficking are not being deported as criminals.

Victims of trafficking rarely self-identify. There are many reasons why victims may not want to talk about what has happened to them, especially during their first interviews. Traffickers almost always threaten to assault victims if they talk to authorities. Victims are also warned that their families will be harmed if they reveal anything to police. Also, victims are unlikely to trust someone that they do not know, especially if that person is of a different nationality or does not speak their language. This is even more true when the interviewer is a police officer. Victims often come from societies with corrupt authorities. Because of their distrust of police in their home countries, trafficking survivors usually fear law enforcement agents in the country where they are being exploited, as well. Victims are also lied to by traffickers about police brutality and deportation, causing them to believe that authorities will treat them as criminals, incarcerate them, or deport them. In other cases, victims might have personal relationships with their traffickers. For example, the use of spouse visas to traffic women is increasing worldwide. Even though victims are enduring abuse at the hands of their so-called spouses, they may feel reluctant to turn their spouses over to police.

This woman used in prostitution in Western Europe is forced through threats and intimidation to give all earnings to her trafficker. Wealthy European countries are magnets for sex trafficking. (Kay Chernush for the U.S. State Department)

Law enforcement officials must be specifically trained to recognize victims of human trafficking. The dominant mission of law enforcement agents in any country is to ensure public safety by identifying criminal activity and arresting criminals. A police officer’s priority when interviewing potential victims is to build a criminal case. This leads police to ask questions that may not be appropriate for the proper identification of a victim of trafficking in persons. Without specific procedures for identifying victims of trafficking in persons, police and immigration officers are less likely to recognize the signs that a person has been trafficked. Prior to establishing victim identification procedures in the United States, police who had been trained to arrest women for violating anti-prostitution laws were finding it difficult to differentiate between trafficking victims and prostitution-law violators. Immigration officers who had been trained to determine whether someone was in the United States legally were regarding victims of trafficking as illegal immigrants, undocumented workers, or prostitutes. Assigning such criminal identities leads to the incarceration and deportation of innocent victims.

Police and immigration officers, especially those who have frequent contact with sex workers (and laborers), must be trained in a formal questioning strategy to elicit information about captivity, forced work, coerced sexual acts, and abuse by perpetrators. Although the NPA organizes regular conferences for police that include information about victim identification, these measures are not an adequate substitute for formal training. Proper screening begins with an assessment of indicators that can be evaluated before interviewing an individual.

The following indicators can flag potential victims:

• The age of the potential victim;
• The nature of the victim’s job (bar hostess, escort, factory worker, etc.);
• Evidence of being controlled;
• Bruises or other signs of physical abuse;
• Fear or depression;
• The potential victim not speaking for him or herself or not speaking the local language; or
• No passport or other forms of identification or documentation.

If one or more of these indicators is present, the interviewer should pursue questions that will help identify the key elements of a trafficking scenario:

• What type of work do you do?
• How did you learn about this job? How did you apply?
• Did you pay your recruiter? Who paid for your travel expenses?
• How did you enter Japan?
• Has your identification or documentation been taken from you?
• Where is your passport?
• Are you doing the job you expected to do?
• How soon after arriving in Japan did you start working?
• Are you being paid? How much? Did you get to keep the money yourself?
• Did you have to repay a debt?
• Can you leave your job if you want to?
• Can you come and go as you please?
• Have you or your family been threatened?
• What are your working and living conditions like?
• Where do you sleep and eat?
• Do you have to ask permission to eat/sleep/go to the bathroom?
• Are there locks on your doors/windows so you cannot get out?

Early victim identification is vital to effective investigation and prosecution. Actions taken at the beginning of a trafficking investigation are critical. An international survey of trafficking cases brought to court show that the early identification of victims and the subsequent responses of investigators determine the speed, ease, and success of prosecuting traffickers. Ultimately, the most successful results involve first-response agents with formal training in victim identification procedures. Such investigators show more sensitivity to the needs of the victims, know how best to handle them, and are aware of superior sources of information to corroborate evidence. The fact that local police have been instructed to contact the National Police Agency’s Consumer and Environmental Protection Division to report a suspected case of trafficking is an important initial step. We hope the Japanese government will continue to promote this valuable procedure in addition to adopting victim identification procedures.

Protection

Some of our biggest concerns about the Japanese government’s policies on human trafficking regard the protection of victims. At present, counseling for victims in their native language is not provided at Women’s Consulting Centers, there are no formal policies or programs to encourage victim testimony, WCC personnel are not receiving sufficient training in the specific needs of trafficking victims, and assessment of the consequences of repatriation is conducted too late to be able to provide an alternative if a victim will face hardship or retribution in his or her home country.

A safe and rehabilitative environment is the foundation of protection and is a precondition for encouraging victims’ participation in investigations and prosecutions. Native language counseling for victims is critical to creating a safe environment and essential to the rehabilitation of victims, some of whom have experienced violent trauma. Although funding is provided for WCCs to procure interpretation services (usually used for interviews with law enforcement officials), we have heard from WCC staff that these interpreters are not trained in victim counseling. There are reports of interpreters using the same interrogative interviewing techniques with victims that they use with criminals, adding to the victims’ psychological trauma.

“Japan’s Action Plan of Measures to Combat Trafficking in Persons” does not mention encouraging TIP victims to assist in investigations and prosecutions. If government officials do not place a high priority on obtaining assistance from victims, police and WCC personnel will be less likely to encourage victims to assist. Staff working at WCCs acknowledge that they discourage victims from participating in investigations because the longer length of stay necessary when victims participate drains WCCs’ limited resources. In one case, we heard from WCC staff that they told a victim that they could not contact a lawyer on the victim’s behalf because they did not have any instructions from the government. In addition, an emotionally safe environment is a prerequisite for encouraging victims to participate in investigations and prosecutions. Without access to native-language counseling, victims do not feel emotionally safe, and they often reportedly choose to repatriate before any court proceedings.

The Ministry of Health, Labor, and Welfare’s “Manual for Assisting Trafficking Victims in Women’s Consulting Centers” directs WCCs to “coordinate with police and other agencies” but does not give any clear procedures for assisting victims in filing criminal or civil complaints against their alleged traffickers. The guidelines only apply “if a victim wants to prosecute,” but do not give any instructions for encouraging victims to do so.

Victims of human trafficking require different services and care than victims of domestic violence. Counseling must be tailored to the unique trauma that trafficking victims experience, and counselors must have language skills and cultural sensitivity. Although the government organizes annual conferences for the WCCs and has distributed the “Manual for Assisting Trafficking Victims in Women’s Consulting Centers” to all of them, these measures are not an adequate substitute for formal training. WCC personnel openly say that they do not have adequate training, human resources, funding, or guidance from the government to effectively treat victims of human trafficking. By not ensuring that WCC staff members are trained to facilitate the specific needs of human trafficking victims, the government cannot adequately protect the victims.

Best-practice policy is for governments to provide victims with legal alternatives to their removal to countries in which they would face retribution or hardship. The Japanese government automatically sends identified victims of human trafficking to WCCs, which are currently only being used as repatriation centers. Victims have no choice but to remain in these shelters because the residential status authorized by Japanese law for victims of human trafficking prohibits them from operating businesses or engaging in activities for which they receive payment. Because the victims cannot support themselves financially and do not qualify for social welfare, they have no legal alternative to their removal.

In addition, it is no longer possible for the government to provide a legal alternative to removal once it has been determined that a victim will face hardship or retribution upon repatriation. Currently, the International Organization for Migration conducts Japan’s only assessment of the consequences of repatriation. Because IOM’s involvement in a case indicates by definition that the victim will be repatriated, the assessment is not conducted within the context of providing alternatives to repatriation in cases where hardship or retribution is likely.

Conclusion

Japan is not alone in its fight against human trafficking. Many countries around the world stand to learn a lot from Japan’s experience, and it is extremely helpful that the government is actively engaging the global community in the fight against this crime. The United States looks forward to continued cooperation with Japan in creating a world of greater hope.

What can we do?

• Teach people that trafficking in persons exists in Japan. Global awareness of this terrible crime is a relatively recent phenomenon. Help get the word out. Tell people that even though the victims may have come to Japan voluntarily, even though there is a chance that a victim might return home with some money, these people have been deceived, they have no freedom, and they are victims of a crime.
• Remember that there is a strong link between prostitution and human trafficking. Allowing red-light districts to prosper creates fertile ground for the exploitation of victims. Consumers of sexual services create the demand for a sex industry, creating an opportunity for traffickers.
• Write articles and papers about trafficking in persons and child pornography and get them published.
• Tell the police if you know about a business with exploitative conditions.
• Donate your time and resources to NGOs and other organizations assisting victims.

I would like to close with a quote from former Secretary of State Colin Powell:

"We fight trafficking in persons not just for the sake of victims and potential victims of these crimes; we do it for ourselves, because we can't fully embrace our own dignity as human beings unless we champion the dignity of others."