On their behalf

Last week, I briefly discussed the development of our adversarial system of government and the way that its emphasis on confrontation, while usually protective of our rights as citizens, can prove harmful to victims who have gone through major trauma. This includes those who were victims of rape, violent assault, domestic abuse and trafficking in persons. It is the latter that I wish to write about today, due to alarming incidents that I have become privy to because of my work with the Inter-Agency Council Against Trafficking (IACAT).

Prosecuting human trafficking cases can be notoriously difficult. This is made even more so because it is common for the victims of such crimes to be unwilling to take the stand against their abusers. I mentioned last week how the adversarial nature of our trials – which are exhausting even for those without trauma – risks retraumatizing victims who involve themselves in the prosecution of their case. There could be many other valid reasons as well: the abusers might be a relative or a family friend – as in many cases of on-line sexual exploitation of children, fear of retribution from associates of the accused or fear of publicity that will lead to being ostracized from their community.

The State, in pursuing justice, should not and need not add to the suffering of those already in so much pain. After all, there are other ways of building a strong case against an alleged trafficker: chat logs and phone records, email communication, money transfers or first-hand accounts from police surveillance. Law enforcement officers that specialize in these kinds of cases can, should be and are being trained to investigate trafficking crimes under the assumption that the victims will not be available to testify. But all that preparation will be futile if trial court judges take the stance that the presentation of the victim in a trafficking case is always required.

This position has been taken in several recent trial court decisions which saw the acquittal of the accused, primarily due to the failure of the prosecution to present the trafficking victim as a witness in the case. At least two of these cases cited the Supreme Court decision in People vs. Rodriguez y Hermosa (G.R. No. 211721, Sept. 20, 2017), a case involving qualified trafficking in persons. But a closer examination of the case does not, in fact, show that the Supreme Court had any intention of making the presentation of a trafficking victim mandatory for the successful prosecution of a trafficking case.

In Rodriguez, the prosecution only presented a single witness, one of the arresting officers. The officer testified that during an undercover anti-prostitution operation, his car was flagged down by the accused and he was offered the sexual services of three pick-up girls. He paid the accused with a pre-marked bill and then gave the signal to arrest the accused. The accused, meanwhile, stated that he had not offered any prostitutes and that he had instead been selling cigarettes.

The use of Rodriguez to justify the position that the presentation of trafficking victims is mandatory in these cases, lies in the Court’s statement that:

“It is grossly erroneous to say that ‘the non-presentation of the three women is not fatal to the prosecution.’ Their testimonies that they were sexually exploited against their will through force, threat or other means of coercion are material to the cause of the prosecution. These women would be in the best position to say that Rodriguez had recruited or used these women by giving them payments or benefits in exchange for sexual exploitation.”

These words, however, must be read with the proper context. The statement comes immediately after the Court discusses the insufficiency of the testimony of the prosecution’s sole witness. The Court said that in the officer’s direct testimony, “there was no mention about how Rodriguez allegedly called on the three pick-up girls and offered them for sexual purposes.” Even when further details came to light in the cross-examination of the officer, the Court pointed out that “his testimony is bare to the fact that the offer of women was explicitly for sexual purposes.”

It is clear therefore that the reason that the prosecution in Rodriguez failed is because it did not prove the essential elements of the crime, as only one witness was presented and his testimony was grossly insufficient. It is only because of this that the Court brings up the potential support that could have been offered by the victims. The Court stated: “Apart from the deficient testimony of PO1 Escober, the prosecution did not bother to present the testimonies of the alleged victims.” It is only because the sole evidence of the prosecution was insufficient that the Court found the non-presentation of the victims to be fatal to the prosecution. To be more precise, the weakness of its evidence meant that the case was already dead, and it was a gross error for the prosecution to believe that in this case they did not need the testimonies of other witnesses, in this case, the victims.

It is true, as the Court states in this case, that the victims of trafficking are in the best position to pin the crime on the accused. This is why their testimonies will always be “material” to the prosecution of trafficking cases. But neither “best” testimony nor “material” testimony is synonymous with “mandatory” testimony. Had the Court wished to take the position that the testimony of the victims of trafficking is always necessary in trafficking cases, then it would not have needed to discuss the officer’s testimony. In pointing to the deficiency of his testimony first, what the Court means is clear: that what matters is the sufficiency of the testimony to prove the elements of the crime, not the source of the testimony.

The duty of the State is to protect its citizens. When it can best do this through facilitating their quest for justice, then that is what it must do. But when it is better for the victims that they be given the time and space to heal, where it is possible for the State to establish the crimes committed through some other means, then that becomes its duty: to refuse to add to the burdens of its citizens while it seeks justice on their behalf.