Produced by: Child Protection Section UNICEF Regional Office for Latin America and the Caribbean

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2 Produced by: Child Protection Section UNICEF Regional Office for Latin America and the Caribbean City of Knowledge, Building 131 P.O. Box Panama, Republic of Panama Tel.: (507) Fax: (507) Web: ISBN-13: ISBN-10: All rights reserved The statements in this publication are the views of the author(s) and do not necessarily reflect the policies or the views of UNICEF. The pictures used in this publication portray children and adolescents in a variety of settings and are not intended to illustrate specific programmes for child victims of commercial sexual exploitation and/or trafficking. Cover illustration: The drawing No más nudos en la garganta - No more lumps in the throat - is the result of work with children and adolescents carried out by the Mary Barreda Association in Nicaragua.

3 Meeting of Legislators of Central America, Mexico and Belize against Commercial Sexual Exploitation and Trafficking of Children and Adolescents

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5 INDEX INTRODUCTION 1 THE ROLE OF LEGISLATORS 3 The Role of Legislators in the Struggle against Commercial Sexual Exploitation, Trafficking 5 and Smuggling of Children and Adolescents Beatriz Paredes, Mexican Legislator and Member of the Consultative Council of the Latin American Parliament (PARLATINO) LEGAL AND INSTITUTIONAL REFORMS ON COMMERCIAL SEXUAL EXPLOITATION OF 11 CHILDREN AND ADOLESCENTS Reflections on the Legislative and Political Framework of the Fight against Commercial 13 Sexual Exploitation of Children and Adolescents Milena Grillo, Director of Paniamor and Regional Coordinator of ECPAT International Project Commercial Sexual Exploitation of Children and Adolescents: Key Concepts and Regional 17 Overview Bente Sorensen, Principal Technical Advisor and Sub-Regional Co-ordinator for the Commercial Sexual Exploitation Project, International Programme on the Elimination of Child Labour of the International Labour Organization (ILO/IPEC) The Protection of Child and Adolescent Victims in Penal Procedures 22 Maria Jesús Conde Zabala, Regional Adviser for Child Protection, UNICEF Regional Office for Latin America and the Caribbean LEGAL AND INSTITUTIONAL REFORMS ON TRAFFICKING AND SMUGGLING OF 29 CHILDREN AND ADOLESCENTS The Trafficking and Smuggling of Children and Adolescents from the Perspective of the 31 Special Rapporteur of the United Nations on the Human Rights of Migrants Gabriela Rodríguez Pizarro, Special Rapporteur of the United Nations on the Human Rights of Migrants Trafficking and Smuggling of Children and Adolescents: Current Situation and Guidelines 34 to Combat it Águeda Marín, Programme Specialist, Focal Point on Trafficking in Persons, International Organization for Migration THE PROFILE OF THE SEXUAL EXPLOITERS 39 Who are the Exploiters? Presentation of the Study Commercial Sexual Exploitation and 41 Masculinity José Manuel Salas, Consultant for the International Programme on the Elimination of Child Labour of the International Labour Organization (ILO/IPEC)

6 TOURISM AND PREVENTION OF COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN 47 AND ADOLESCENTS Results of the Meeting Prevention of Commercial Sexual Exploitation of Children and 49 Adolescents: Contributing to a Sustainable Tourism in Central America Luis G. Cardenal, Minister of Tourism, El Salvador and President Pro Tempore of the Central American Council of Tourism CONCLUSIONS 53 ANNEXES 57 Agenda of the Meeting 59 List of Participants 61 Press Release 64 International Instruments Related to Commercial Sexual Exploitation of Children and 66 Adolescents

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8 UNICEF HQ /Alejandro Balaguer Three girls dance to the rhythms of a percussion band during a performance in La Paz, a poor neighbourhood in Salvador, capital of the eastern state of Bahia, Brazil. The performance is sponsored by a local NGO, the Dom Avelar Brandao Vilela Foundation, with assistance from the Catholic Church and UNICEF, to promote Afro-Brazilian heritage while also promoting HIV/AIDS awareness and prevention.

9 INTRODUCTION During recent years the countries of Central America, Mexico and Belize, have advanced significantly in the ratification of the international juridical instruments that criminalise commercial sexual exploitation, trafficking and smuggling of children and adolescents. 1 This obligates them to protect all persons under the age of 18 from these crimes. The principal task now faced by the countries is the effective application of the international regulations. To this end, they are working on two main fronts: legal reform and institutional reform. Through the ratification of international treaties the countries commit themselves to adapt their domestic legislation to international standards. Immediately after this it is essential to advance in institutional reform and develop the capacities needed for effective application of the new laws. To contribute to the action the region is undertaking to combat commercial sexual exploitation, trafficking and smuggling of children and adolescents, the UNICEF Regional Office for Latin America and the Caribbean organised the Meeting of Legislators of Central America, Mexico and Belize against Commercial Sexual Exploitation, Trafficking and Smuggling of Children and Adolescents in Panama City, Panama, on November, Legislators are key actors in the advocacy for the development and approval of new legislation adapted to the international legal framework by national legislative bodies. The objectives of the meeting were: 1) to review and analyse the penal code reforms already carried out or in progress to define all of the conducts and forms of participation that can constitute commercial sexual exploitation, trafficking and smuggling of persons under the age of 18, and 2) to agree on criteria for harmonising the definitions of these crimes among the countries to ensure that they all classify the same kinds of conduct as crimes, establish similar punishments and guarantee protection and assistance to victims. This will also prevent that some countries with more permissive or less effective legislation project internationally an image of being paradises for the commercial sexual exploitation of children and adolescents. The meeting was organised with the support of the Italian Co-operation in the context of the project A Strategy to Combat Abuse, Sexual Exploitation and Trafficking of Children and Adolescents in the Central American Isthmus and forms part of the effort that UNICEF, together with other international organisations such as the International Labor Organization, the International Organization for Migration and ECPAT International, is carrying out to support the countries of the region in their efforts to reform and harmonise their penal codes in relation to the above-mentioned crimes. During the two days of the meeting, specialists presented from different perspectives the problems related to the crimes of commercial sexual exploitation, trafficking and smuggling of children and adolescents. At the same time, the legislators 2 discussed and analysed the penal code reforms already carried out and in progress, as well as the basic content that should form part of the laws against commercial sexual exploitation, trafficking and smuggling of persons under the age of 18. This document is a systematisation of the speeches, discussions and results of the meeting. 3 Given the key position of national legislative bodies in advocacy for legal reform and the fight against these crimes, the meeting became a milestone carrying out joint analysis of the regional situation and exchanging experiences. We hope that this report will guide not only the formulation of new laws in the countries in which this is still pending but also the review of existing laws with the aim that all the countries of the region have adequate legal frameworks for protecting children and adolescents from commercial sexual exploitation and trafficking. 1 All of the countries of Central America, Mexico and Belize, have ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; the United Nations Convention against Transnational Organized Crime and the ILO Convention 182 on the worst forms of child labour. Honduras has not ratified the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, which supplements the United Nations Convention against Transnational Organized Crime. Guatemala and Honduras have not ratified the Inter-American Convention on International Traffic in Minors; Mexico has signed the Convention, but has not ratified it legislators from Mexico, Belize, Guatemala, Honduras, El Salvador, Nicaragua, Costa Rica and Panama participated in the meeting. 3 The analysis of the regional situation with regard to the fight against commercial sexual exploitation and trafficking of children and adolescents reflects the situation existing at the time of the meeting. The changes that have taken place since then have not been included in this report. 1

10 UNICEF Bolivia/Fernando Cuellar/2003 Adolescent girl from the indigenous community of Tsiman, in the Bolivian Amazon. In Bolivia, as in the rest of Latin America and the Caribbean, UNICEF promotes the creation and development of national policies and programmes for children, with special attention to those most excluded.

11 Chapter 1 THE ROLE OF LEGISLATORS

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13 THE ROLE OF LEGISLATORS IN THE STRUGGLE AGAINST COMMERCIAL SEXUAL EXPLOITATION, TRAFFICKING AND SMUGGLING OF CHILDREN AND ADOLESCENTS Beatriz Paredes, Mexican Legislator and Member of the Consultative Council of the Latin American Parliament (PARLATINO) THE ROLE OF LEGISLATORS National legislators play multiple roles in the fight against commercial sexual exploitation, trafficking and smuggling of children and adolescents. The most evident role involves their participation in law creation. But beyond that, they also play two very important roles, namely, the role of denouncing the problem and the role of ensuring government compliance with international treaties in the area of children s and adolescents rights. Law creation With respect to the legislative function, two concrete proposals are offered: a model code for sexual exploitation, trafficking and smuggling of children and adolescents and the creation of legislation concerning child pornography on the Internet. A model code for sexual exploitation, trafficking and smuggling of children and adolescents It is necessary to have a model code for sexual exploitation, trafficking and smuggling of children and adolescents as a reference for orienting legislative reforms throughout Latin America. Such a model code should contain a set of concrete suggestions about legal norms related to the above-mentioned topics that should figure into penal legislation, legislation that governs penal procedures and helps regulate all that is related to organised delinquency as well as human rights. A model code could contribute to identify those juridical elements that ought to be present in distinct bodies of national laws and that should be harmonised within it. In the majority of countries in the region it is critical to initiate this work of legal harmonisation in order to ensure a high level of punitive efficacy on the part of laws dealing with violations of the rights of children and adolescents. In federal regimes, it is likewise necessary to harmonise the legislation of the federal level with that of the state level. In the case of Mexico, for example, many of the crimes related to commercial sexual exploitation fall under state jurisdiction. At times, it has happened that a legal advance in the federal sphere becomes diluted at the state level due to the lack of an adequate harmonisation of legal norms at these two levels. A model legal code on commercial sexual exploitation, trafficking and smuggling of children and adolescents should be based on a study that establishes all those legal elements that should be common to Latin American countries in these areas. When preparing such a study and the proposed legal code, UNICEF could provide an important contribution. The Latin American Parliament (PARLATINO) is recommended as an adequate institutional setting to become pivotal to the process. From there, a code could be submitted for consultation and consideration before the Congresses of the countries across the region. Legislation on child pornography on the Internet This is a new topic of discussion in the region. In Mexico, for example, there is no effective legislation in place concerning this issue. In 2002, a law was approved aimed at prohibiting and repressing this type of pornography but its procedural regulation has not yet been devised nor do the instruments for putting it into practise exist. In order to advance in this field, it could be useful to solicit the support of the World Telecommunications Organization to prevent child pornography from circulating on the Internet. Bear in mind that this type of pornography forms part of a vicious circle of abuse and sexual exploitation of children and adolescents: the exaltation of perverse attitudes by a communications medium as powerful as the Internet has vast 5

14 repercussions in the subsequent abuse of children and adolescents. Denunciation of the problem Legislators have a privileged access to the communications media in making their denunciations public. By exercising this function, legislators can substantially contribute to the fight against commercial sexual exploitation, trafficking and smuggling of children and adolescents. With respect to this function, proposals focus on two issues: the elimination of tolerance in political discourse with respect to the violation of the rights of children and adolescents throughout the region, and the promotion of a national alliance in order to eradicate all forms of violations of these rights. Modifying the prevalent political discourse To change the prevailing level of tolerance for violations of the rights of children and adolescents part of the Latin American culture, it is very important that the region s Congresses send clear signals to the public deploring and repudiating such practices. The predominant political discourse of Latin American countries should end its apparent neutrality or indifference with respect to abuse, commercial sexual exploitation, trafficking or smuggling of children and adolescents, and should instead assume a clear position of total intransigence opposing these crimes. Those who violate the integrity of children should be subjected to a real risk of becoming the object of accusation and repudiation in the court of public opinion. UNICEF could work with groups of selected legislators who have a respectable profile for denouncing violations of the rights of children and adolescents. A national alliance in defence of children and adolescents The denunciation role assumed by legislators can best be capitalised upon by society in the context of an alliance among institutions concerned about the protection of children, working together with UNICEF and the legislators. UNICEF is positioned to promote the development of such an alliance. It needs to be kept in mind that lurking behind the abuse, exploitation, trafficking and smuggling of children and adolescents are organised bands of criminals. It is evident that those who assume an accusatory role against these crimes will have to eventually confront the interests of organised crime. It is therefore ideal that those parliamentarians have a base of solidarity and protection embedded in the Congress, various national institutions, and public opinion at both the national and international levels. Supervision of Government compliance with international treaties It is a fact that Latin American countries do not comply with many of the commitments assumed via approval of various international treaties concerning the rights of children and adolescents. Among the issues regulated through these treaties are commercial sexual exploitation, trafficking and smuggling of children and adolescents. National legislative bodies not only have the power to approve these treaties but also have the jurisdiction and legal obligation to demand information from the executive branch concerning their implementation and compliance. With respect to this area there are three important tasks: a) the systematic follow-up of compliance with obligations currently in force, b) the executive branch must be accountable for the submission of information concerning policies designed to ensure compliance, and c) the creation of an oversight agency to monitor compliance with all international treaties related to the protection of the rights of children and adolescents. Legislative follow-up of international treaties It would be opportune to establish the practise where groups of legislators of every Congress systematise those commitments that come into force when a country ratifies every treaty, as well as follow-up on the compliance with these commitments. Such follow-up activities should be strengthened with a set of indicators to measure compliance. To facilitate these processes, UNICEF could develop a guide on how to evaluate the implementation of the commitments undertaken by the Governments through the ratification of these international treaties. 6

15 Submission of information on compliance by the executive branch Legislators can call upon representatives of the executive branch to attest to the extent of progress in compliance with international treaties. This process of soliciting progress reports can contribute to translate the contents of treaties to viable public policies, thereby accelerating the implementation of these policies. Creation of an oversight agency to monitor compliance with international treaties It cannot be denied that the implementation of international treaties concerning the rights of children and adolescents is a very difficult task in countries like those in Latin America. This is due to the persistence of deeply shared cultural elements that make it appear as though discrimination and violence against children and adolescents are somehow a natural occurrence. To modify these cultural traits, it is necessary to confront them in a convincing manner and challenge traditional held beliefs in the eyes of public opinion. One way to encourage this could consist in creating oversight groups for monitoring the rights of children and adolescents, so called citizen observatories. Part of the work of these oversight groups could be dedicated to monitoring the implementation of international treaties, with the help of follow-up instruments devised by legislators as mentioned earlier. The collaboration of these monitoring groups with prestigious public figures in a given national context can facilitate their influence in decision-making. Moreover, the links of these monitoring groups with the mass media, assisted by UNICEF, could help put the issues of commercial sexual exploitation, trafficking and smuggling of children and adolescents right into the public eye. These kinds of actions taken within civil society can be very important in supporting the initiatives that are developed by the legislative, executive and judicial branches with respect to children and adolescents. International agencies and especially UNICEF can offer critical support for these monitoring groups/citizens observatories. SUGGESTIONS FOR UNICEF TO FACILITATE MORE EFFECTIVE WORK WITH LEGISLATORS Although some of the recommendations mentioned above involved UNICEF, the three proposals that follow are aimed at making the contributions of UNICEF and other institutions working to combat commercial sexual exploitation, trafficking and smuggling of children and adolescents as substantial and effective as possible. Broaden the links of UNICEF to all Congressional members and commissions It would be ideal for UNICEF country offices to establish a broader relationship with the Congresses of the region, over and beyond the specialised legislative commissions that deal with children and family matters. At times, these commissions lack sufficient weight for promoting legislation relevant to the defence of the rights of children and adolescents. Experience demonstrates that decision-making regarding national legislation aimed at combating commercial sexual exploitation, trafficking and smuggling of children and adolescents tends to happen beyond the scope of the commissions on children and family, and are typically more centred in those involved with constitutional issues, justice and governance, among others. Although the commission on children and family promotes the rights of children and adolescents within the Congress, their margin of manoeuvrability is generally quite limited. It would therefore be opportune for the UNICEF country offices to work in establishing contacts with each of the legislators that make up the national legislative bodies of the region. To strengthen their contact with Congresses, it would be useful if UNICEF could prepare dossiers containing key basic information so that all legislators can have access independent of whether or not they serve on the commissions on children and family. Promote the creation of a specialised sub-commission on justice regarding children and adolescents It would very useful to encourage the creation of a sub-commission on justice in the area of children and adolescents, either within the legislative commissions associated with children or within those that specialise in the area of justice administration. The members and advisors of the legislative commissions on justice are generally jurists, magistrates, and legal personalities. Many of these professionals lack specialised knowledge and have not previously prioritised the legal issues related to problems of children and adolescents such as protection, 7

16 rehabilitation, etc. For that reason, it would be very opportune to have the support of the commissions on children and family that could form a specialised sub-commission dedicated to issues regarding justice for children and adolescents, within the commissions on justice. Creation of databases on the rights of children within the Congresses It would be very significant if the parliamentary commissions on children and family would systematise information about the situation of the country and the region regarding compliance with the rights of children, including issues related to the commercial sexual exploitation of children and adolescents. Perhaps it would be possible for UNICEF to provide technical advice to the commissions on children and family so they could launch an Internet site with access to the database. All Congresses have possibilities and access to resources that could support this Internet site. What they would need is technical assistance for design and a system for periodic updating of information. Such websites could share a link with UNICEF s Internet site in such a way that UNICEF could supply the commissions on children and family on a regular basis with the latest research they have conducted. 8

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18 UNICEF HQ /Shehzad Noorani A boy juggles in the yard at Lakou, a UNICEF-supported centre for abandoned or abused children in Port-au-Prince, Haiti. Lakou supports children who live or work on the streets by providing them with shelter where they can rest, play, learn to read and write, bathe and receive medical treatment.

19 Chapter 2 LEGAL AND INSTITUTIONAL REFORMS ON COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS

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21 REFLECTIONS ON THE LEGISLATIVE AND POLITICAL FRAMEWORK OF THE FIGHT AGAINST COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS Milena Grillo, Director of Paniamor and Regional Coordinator of ECPAT International Project THE FOUR DIMENSIONS OF COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS With respect to the fight against commercial sexual exploitation of children and adolescents that the region s governments and civil society organisations are confronting, four dimensions need to be considered: In the first place, commercial sexual exploitation of children and adolescents constitutes a systematic violation of the human rights of children and adolescents, and should be understood and confronted within a human rights framework. Secondly, the activity constitutes a manifestation of sexual abuse with very specific characteristics. Its specificity should lead to treating commercial sexual exploitation in a different manner from situations of sexual abuse within the home. Although the two phenomena may have structural roots in common, it must be recognised that commercial sexual exploitation has a particular characteristic of provoking a double victimisation of children: it turns them into sexual objects as well as commercial objects. This does not revolve around parental aggressors or cases of incest. Instead, it is based in an illicit business of immense proportions. In fact, commercial sex is regarded as the third most lucrative illicit business in the world, after drugs and arms. It is estimated that commercial sex generates close to US$12 billion per year. Any discussion of commercial sexual exploitation of children and adolescents is to speak of organised crime that operates in sophisticated networks of illegal activities, led by criminal organisations that work across national borders. For this reason, the actors and organisations that participate in these criminal networks are very distinct in their composition and dynamic than those actors that come into play in cases of intra-family violence or sexual abuse. From the policy point of view, it therefore becomes necessary to apply special and distinct strategies in the fight against such activities. Third, commercial sexual exploitation is a modern form of slavery. The children and adolescents that are involved in these activities do not do so freely, but are trapped by the criminal networks that exist behind this industry. Clarity concerning this dimension helps us to avoid any kind of analysis that treats commercial sexual exploitation as a type of work. Work is a social relation that dignifies people and while it may contain exploitative aspects, once they are eliminated, its dignifying aspect can be restored. Commercial sexual exploitation, in contrast, can never be dignified because it is essentially a form of slavery and as such constitutes a violation of human rights. From the policy point of view, this perspective leads us to think in terms of protection programmes for victims and witnesses as well as specific legislation. Fourth, these activities constitute a form of generating income for those who benefit from the business of sexual exploitation. This income is being derived through the harmful and forcible use of its enslaved victims who are children and adolescents. From the policy point of view, there is a need to further investigate the flows of capital generated by this activity to more effectively combat it and to hold those responsible for this activity accountable on two very sensitive aspects: by obtaining judicial evidence about their operations and by confiscating the profits obtained. THE INTERNATIONAL LEGAL FRAMEWORK FOR THE FIGHT AGAINST COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS There are a wide range of international legal instruments that together make up a rich and extremely useful, international frame of reference for justifying and sustaining national laws for the prevention and fight against commercial sexual exploitation of children and adolescents. Depending upon the thematic emphasis of each one of those legal instruments, they can be classified within one of the four dimensions mentioned in the previous section. 13

22 Various legal instruments conceptualise the commercial sexual exploitation of children and adolescents as a human rights violation. Among them are the following: a) The American Convention on Human Rights (1969) b) The Convention on the Elimination of All Forms of Discrimination against Women (1979) c) The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) d) The Convention on the Rights of the Child (1989) e) The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Belem Do Para Convention (1994) f) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000) The perspective of commercial sexual exploitation of children and adolescents as a form of sexual abuse is treated, among others, by two instruments: a) The Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications (1923) b) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000) Among the international legal instruments that treat commercial sexual exploitation of children and adolescents as a modern form of slavery are the following: a) The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) b) The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956) c) The Inter-American Convention on International Traffic in Minors of the Organization of American States (1994) d) The Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (2000) The ILO Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour from 1999 corresponds to a view of commercial sexual exploitation of children and adolescents as a harmful and forced type of income-generating activity. Some Latin American countries have not yet ratified all of the international legal instruments mentioned above. It is essential that the organisations that fight against commercial sexual exploitation of children and adolescents continue to lobby the legislative bodies of those countries to promote their prompt ratification. In this way, Latin American societies will have ever more adequate and uniform legal frameworks for protecting children, adolescents and women from the consequences of sexual exploitation taking place within their countries. It must be remembered that once these international legal instruments are ratified by a country, they attain a constitutional stature. For that reason, it can be said that international conventions or treaties offer a solid legal frame of reference to sustain legal reforms in the area of interest here. In reality, that legal framework not only makes such reforms possible but essentially obligates States to implement them. POLITICAL COMMITMENTS CONTRACTED BY STATES During the last ten years, the issues of commercial sexual exploitation, smuggling of migrants and the trafficking in persons have got increased attention around the world, including in Central America. The growth in importance of these issues is due in large part to the international and regional meetings that have been convened to discuss them. The government authorities of the Central American countries that have participated in these meetings have made commitments on behalf of their respective governments to fight against commercial sexual exploitation, trafficking in persons and smuggling of migrants. Some of the political commitments made by governments are at the ministerial level and others rest at the presidential level. Such dispositions do not have a binding character from the legal point of view, but constitute formal points of reference of a political sort and can be drawn upon to sustain legal reforms or proposed public policies in the areas of commercial sexual exploitation of children and adolescents. The First World Congress against Commercial Sexual Exploitation of Children took place in Stockholm, 14

23 Sweden, in That was the first occasion in which the phenomenon of commercial sexual exploitation of children and adolescents was discussed in an exclusive form by the international community. As a result of that meeting, the participating governments adopted a Declaration and an Agenda for Action that contains five main strategies for combating commercial sexual exploitation of children and adolescents: 1) co-ordination and co-operation 2) prevention 3) protection 4) recovery and re-integration 5) child participation In 2001, the Second World Congress against Commercial Sexual Exploitation of Children was held in Yokohama, Japan. On that occasion, the commitments made during the First World Congress were reaffirmed and strengthened. In Latin America and the Caribbean, two regional meetings of special importance have been held on this topic. In November 2001, the Inter-American Children s Institute of the Organization of American States along with UNICEF organised a regional meeting and consultation in Montevideo, Uruguay. During this meeting the document Commitment to a Strategy against Commercial Sexual Exploitation and Other Forms of Sexual Violence against Children and Adolescents in the Latin America-Caribbean Region was adopted. This document was formally added to the Yokohama Global Commitment of 2001 and signed at the Second World Congress against Commercial Sexual Exploitation of Children. One of the commitments in the Montevideo Declaration was to organise a new regional meeting in 2004 to follow-up on the commitments made by the region s governments in Stockholm, Yokohama and Montevideo. This resulted in the Follow-up Meeting to the II World Congress against Commercial Sexual Exploitation of Children and Adolescents in San Jose, Costa Rica. This activity was organised by UNICEF in co-operation with the Inter-American Children s Institute, the International Programme on the Elimination of Child Labour - the International Labour Organization, ECPAT International, the Government of Costa Rica and the National Commission against Commercial Sexual Exploitation of Children and Adolescents of Costa Rica (CONACOES). As a result of the meeting, the Ministers of Social Affairs and of Children from Latin America and the Caribbean signed a Letter addressed to the Heads of State and Presidents of Government gathered at the XIV Latin American Summit and to the Heads of State and Presidents of Government of CARICOM countries demanding an active fight against sexual abuse, commercial sexual exploitation and the trafficking of children and adolescents. In addition, the Declaration of the Follow-up Meeting to the II World Congress against Commercial Sexual Exploitation of Children and Adolescents was adopted. Finally, there are international legal entities to which non-compliance with the international legal commitments by governments can be referred. Among these are the Committee on the Rights of the Child, seated in Geneva, as the institutional body that supervises the form in which States are complying with their commitments derived from the Convention on the Rights of the Child. Another instance is provided by the Inter-American Human Rights System, constituted by the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, where complaints can be filed regarding non-compliance with the commitments made by state-members in the area of the rights of children and adolescents. MORE LAWS OR BETTER PUBLIC POLICIES? A FALSE DILEMMA In Costa Rica, there is an ongoing discussion about whether the national fight against commercial sexual exploitation of children and adolescents could best be served by passing more laws or implementing better public policies. In reality, this is a false dilemma since both are needed. It is clear that laws in themselves cannot provide the sole answer to the prevention and combat of commercial sexual exploitation. Yet, the law offers a specific weight of its own in this struggle. On the other hand, it is clear that commercial sexual exploitation draws upon the lack of opportunities for children and their families to escape from poverty. The construction of such opportunities requires ambitious and well-designed public policies. Two types of national necessities can be discussed with respect to favouring the creation of new laws for combating commercial sexual exploitation of children and adolescents: the creation of a national political and ethical point of reference and the expansion of the range of instruments useful in combating the commercial sexual exploitation networks. 15

24 The creation of an ethical and political point of reference at the national level Legislation is needed to construct a national and formally legitimated point of reference that establishes ethical and political principles that orient society in the fight against commercial sexual exploitation of children and adolescents. This orienting function that legislation can offer is especially important in Central America since the region is host to a prevalence of cultural patterns that justify, tolerate and promote the commercial sexual exploitation of children and adolescents. In this regard, the accumulated experience gained through a project directed towards preventing commercial sexual exploitation of children and adolescents in the travel and tourism sector in Costa Rica could be useful to take into account. The professionals that participated in that project found that the tourism industry is fully committed to fight commercial sexual exploitation related to girls, while great ambivalence persists concerning the commercial sexual exploitation of adolescents. Many times it is argued that adolescent girls participate freely in such activities as a means of earning income and that this is not so criminal since in their view, the prevailing cultural values of the society come into play. It is evident that in our societies, patriarchal values persist in justifying power relations between adults and their children and adolescents. In this context, it is essential to establish a clear legal frame of reference that orients society as to the ethical, political and legal principles guiding the State in order to comply with the rights of children and adolescents. Opening better options for fighting commercial sexual exploitation The legal framework should offer the State a range of instruments and possibilities for action in combating the networks of commercial sexual exploitation from the most advantageous position possible. In this regard, it is worth remembering that commercial sexual exploitation requires three basic conditions to prosper: clandestinity, impunity and anonymity. It is therefore necessary to develop legislation that can contribute to breaking up these favourable conditions for commercial sexual exploitation. This task is a difficult one resembling a highly complex puzzle. The legal areas in which useful legislation is required to combat commercial sexual exploitation of children and adolescents are very diverse. Moreover, the need for new legal norms varies across time because the context in which the business of sexual exploitation operates is a dynamic one. For example, some of the areas that merit new legislation which have been mentioned include: budgetary laws that define the funding of state programmes involved in the prevention or eradication of commercial sexual exploitation of children and adolescents; laws of protection for children and adolescents; norms governing the criminal penalties within the penal code and procedures; laws on the social policies that regulate the protection of the victims of sexual exploitation; norms within legislation on migration that can avoid the escape of exploiters or stop the capacity of sexual exploitation networks to transfer children trapped in these activities across national borders; norms that can reduce the vulnerability of a country to commercial sexual exploitation of children and adolescents in the travel and tourism sector; and norms that can facilitate co-operation among institutional entities fighting against drug trafficking and the smuggling and trafficking of children and adolescents. Studies show that close ties exist between these two criminal activities. It can definitively be affirmed that legislation concerning commercial sexual exploitation of children and adolescents can always be more finely honed in its effectiveness. It is a process involving a highly unequal struggle against powerful criminal organisations. Knowledge about the most effective strategies for carrying out such efforts remains incomplete and must be constantly renewed. It is important to continually revise and creatively seek to perfect the national legal frameworks that currently exist in order to create greater areas of action in the unequal fight against this crime that is violating the rights of the children and adolescents of our countries. 16

25 COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS: KEY CONCEPTS AND REGIONAL OVERVIEW Bente Sorensen, Principal Technical Advisor and Sub-Regional Co-ordinator for the Commercial Sexual Exploitation Project, International Programme on the Elimination of Child Labour of the International Labour Organization (ILO/IPEC) THE COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN AND ADOLESCENTS: KEY CONCEPTS Commercial sexual exploitation of children and adolescents is a global, regional, national and local problem, which consists of three basic types of activity: a) remunerated sexual activities, b) the production of pornography, and c) pornographic shows. These activities can take place in many different forms: among these are commercial sexual exploitation of children and adolescents in the travel and tourism sector, national and local businesses of commercial sexual exploitation, trafficking of children and adolescents with the purpose of sexual exploitation and the distribution of pornography through the Internet and other media. Clients who exploit these services may be nationals or foreigners. From the point of view of the damage caused to society and to children and adolescents in particular, this activity can be viewed from four different perspectives: a) It is a violation of the human rights of children and adolescents. b) It is a type of economic exploitation similar to slavery and forced labour. c) It is a form of sexual violence. d) It is a criminal activity. For the purposes of analysis and policy making, it is important to distinguish between commercial sexual exploitation and trafficking of children and adolescents. Trafficking happens when a person is recruited, transported, transferred, sheltered or received for the purposes of submitting them to different types of exploitation (sexual, economic and labour exploitation, the extraction of organs and forced marriages). The transportation of children and adolescents is classified as trafficking when the purpose is for their exploitation, even when there has been no deception, threat, use of force or other type of coercion. Commercial sexual exploitation of children and adolescents on the other hand, does not imply the transportation of persons and is aimed specifically at the use of children and adolescents for commercial sexual activities. Both concepts are linked because there are instances where children and adolescents are trafficked for commercial sexual exploitation, and cases of commercial sexual exploitation of people who have also been victims of trafficking for other purposes. THE CURRENT SITUATION The general situation In Central America and the Dominican Republic commercial sexual exploitation of children and adolescents displays the following characteristics: a) Many adults pay for sex with children and adolescents in streets, parks, beaches, brothels, nightclubs, bars and hotels in full view of society. b) There are highly developed networks of sexual exploitation, and organised networks that traffic persons for the purpose of commercial sexual exploitation and other purposes, specialising in children and adolescents. c) There is production of child pornography. d) The use of the Internet for the distribution of child pornography and the promotion of commercial sexual exploitation in the travel and tourism sector is growing. e) The situations already mentioned take place in a context of tolerance towards sexual exploitation in which both nationals and foreigners participate, 17

26 and impunity enjoyed by those engaged in sexual exploitation, whether they are nationals, residents or tourists. The victims Among the exploited children and adolescents interviewed in the research of the International Programme on the Elimination of Child Labour of the International Labour Organization (ILO/IPEC) in Central America and the Dominican Republic, were victims aged from 10 to 17 years old; 85% of these were between 15 and 17 years of age at the time of being interviewed. When asked about their age when they were first paid for having sex, 27% were not yet 13 years old and 79% were 15 or younger. The vulnerability of children and adolescents to becoming victims of commercial sexual exploitation is determined by the social and economic environment. Among these environmental factors are economic crisis, the weakness of universal and selective public policies, gaps in laws relating to criminal acts, deficiencies in the application of the law and the lack of tradition ensuring compliance with human rights. Among the vulnerability factors affecting children and adolescents are extreme poverty, domestic violence, sexual abuse prior to commercial sexual exploitation, drug addiction, school drop-out, and the failure of families, communities and public institutions to provide protection. The exploiters Research carried out in Central America has gathered some basic data on sexual exploiters who operate in the region. Two aspects deserve special attention: what are the factors that create and sustain the demand and who are the sexual exploiters. Among the factors that sustain demand, the following stand out: a) The existence in all social classes and nationalities of adults who are disposed to sexually abuse children and adolescents. b) A culture which legitimises the purchase of sex, and the purchase of people for this purpose. c) The existence of intermediaries, businesses and networks that profit from exploitation. d) The development of a tourism sector, which has taken few precautions to prevent the commercial sexual exploitation of children and adolescents. e) The fact that the penal laws of Central America impose penalties less severe than in countries elsewhere in the world. f) The impunity that benefit the exploiters in the region. g) The anonymity enjoyed by those who use the Internet for distributing child pornography and to promote commercial sexual exploitation in the travel and tourism sector. The sexual exploiters who operate in Central America, in other words those who use, recruit or offer for sale persons under 18 years of age for sexual exploitation, have been classified into the following categories: a) clients -national exploiters; b) clients -tourist exploiters; c) producers of child pornography; d) pimps and e) those that traffic people for the purposes of sexual exploitation. National or foreign exploiting clients are of all ages, come from all social classes and are most commonly male; they have in common that they are all irresponsible in the way they manage their sexuality. As far as pimps are concerned they can be of both sexes. THE CAPACITY OF THE STATE RESPONSE The extent to which the international legal framework has been ratified The international legal framework to which countries in the region can have recourse in order to support the fight against commercial sexual exploitation of children and adolescents is mainly defined in the following six international legal instruments: a) The ILO Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour b) The Convention on the Rights of the Child c) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 18

27 d) The Inter-American Convention on International Traffic in Minors of the Organization of American States e) The United Nations Convention against Transnational Organized Crime f) The Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime All countries of Central America have ratified the Convention on the Rights of the Child and the ILO Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. The Inter-American Convention on International Traffic in Minors has been ratified by Panama and Costa Rica, 4 and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, as well as the United Nations Convention against Transnational Organized Crime have been ratified by all the region s countries except by the Dominican Republic. Honduras has also not yet ratified the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime. Legislative reform and national plans of action Three Central American countries have specific legislation, which defines and sanctions the commercial sexual exploitation of persons under 18 years old: Costa Rica, El Salvador and Panama. 5 These laws have been enacted recently; Costa Rica in 1999, El Salvador in 2003 and Panama in Honduras, Guatemala and Nicaragua have draft laws that are in the process of approval, which were presented to their respective Congresses in Almost all the countries of Central America and the Dominican Republic have national plans for the fight against commercial sexual exploitation of children and adolescents. In the two countries where these plans are not yet in place Honduras and Panama they are in the process of being drawn up. Institutional capacity for the care of victims The ILO/IPEC research reveals that in the countries of Central America and the Dominican Republic, institutional care for the children and adolescents victims of commercial sexual exploitation is deficient in a number of respects: a) Institutional attention for the victims is seen as the first line of help, rather than trying to help them to re-integrate into their families and society, thereby failing to respect their rights to family life. b) When psychological support is given to victims, the victims are often treated as if they were responsible for the exploitative situation. c) Little help is given to victims families and even less follow-up is carried out. d) In the education sector, no attempt is made to work with children who might be at risk of sexual exploitation or who are already victims. e) In the health sector no attempt is made to put victims in touch with other institutions that may also be able to help. In general it is clear that the sort of care given to victims is aimed more towards dealing with the consequences of exploitation rather than the causes. PENAL CODE REFORMS: JUSTIFICATION, PRINCIPLES AND CONTENT The need to carry out penal code reforms All countries of the region share the need to carry out penal code reform in the area of commercial sexual exploitation of children and adolescents. One must not lose sight of the fact that it is about combating powerful organised criminal networks, which often have international connections. The State must therefore increase its capacity to confront this activity. Nevertheless the sexual exploiters continue to enjoy a high level of impunity, and the consequences for the victims continue to be devastating. 4 At the time of the publication of this report, September 2005, the countries which had not ratified the Inter-American Convention on International Traffic in Minors were Guatemala, Honduras and Mexico. 5 Honduras passed a reform to the Penal Code in September 2005 on crimes against physical, psychological and sexual liberty, and commercial sexual exploitation. 6 See previous footnote. 19