If someone tells you that they're a slave, why do you doubt them?

Because such a situation is impossible -- in Australia, in 2008?

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An anecdote. -- A friend mentions that he's sex mad, and that he frequents strip clubs. -- Has he ever encountered any slavery at such places? -- Why yes. The situation was this.

It was a club in New Mexico. Girls would apply to be dancers or escorts, and they were well paid for the work. They had perfect freedom of movement; some of the strippers attended university. However, if a girl was good at her job, it was made clear to her that leaving the club would not be in her interests.

Is such a thing "slavery"? Well, depends on your definition, and whether you're using the word in a precise legal way, or a more everyday way.

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A cluster of related words here -- like "slavery", "servitude", "peonage", "human trafficking", "debt bondage", and "forced labour"... though of course "[t]hose who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy": Gleeson CJ, R v Tang [2008] HCA 39 (29 August 2008) at [29].

"Trafficking in persons", as a legal concept, is usually broader than migrant smuggling. The definition in the relevant UN Protocol goes: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation." (And what "exploitation" in turn means is undefined; and what arrangements people count as "exploitative" vary considerably between cultures -- normal working conditions in Thailand are different from normal working conditions in Australia.)

In the Australian context, a key piece of legislation for "slavery" is Division 270 of the Commonwealth Criminal Code ("the Code"), first introduced in 1999. "For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person."

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The Canadian Department of Justice says at its website:

Identifying victims of trafficking can be difficult... Those involved in prostitution may appear to be willing participants. Victims may be too terrified to contact the police. Victims may not be able to ask for help because many may not speak either English or French. Traffickers often control their victims by threatening to harm them or their families in their countries of origin should victims attempt to flee or contact authorities in Canada.

I suppose I mention this to reiterate the points that: (a) slavery (at least legally speaking) isn't simply a matter of chains and locks and keys; and (b) it isn't that difficult for slavery (in some sense) to happen in a civilized, industrialized country -- it can be as simple as one person threatening another.

The Australian Department of Families, Housing, Community Services and Indigenous Affairs discusses a number of problems that face prosecution of trafficking offences. For instance:

Prosecutors noted that it is challenging to convince a court or a jury that a situation involves "slavery" or "sexual servitude" when the situations do not match community stereotypes of what these situations should "look like". In particular, while some Australian cases have involved the alleged victim being literally locked inside a room, or physically restrained, this has not always been the case. In several cases, the alleged victim has also had an apparent degree of freedom. For example, they may have had access to a mobile telephone. In most cases, restraint has involved less visible factors, such as debt, fear of violence, psychological coercion and control.

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Presumably the New Mexico situation was illegal in that state. Even if it didn't count as "slavery" or "trafficking" as such, there must have been any number of areas of law that could have been applicable, including contract law, employment law, and laws relating to organised crime, proceeds of crime, instruments of crime, forced prostitution, sexual servitude, deceptive recruiting, detaining for advantage, blackmail, threat, intimidation, assault...

In R v Tang, on the other hand, the difficulties were less a matter of detection than of definition. After all, many working conditions are in some sense "exploitative". And not all exploitative working conditions count as "slavery" for the purposes of the Code, although "[m]aking the distinction between harsh, unconscionable and oppressive employment and 'slavery' may sometimes be difficult": Kirby J at [81].

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Some background to R v Tang...

The "complainants" were recruited in Thailand, had worked in the Thai sex industry, and agreed to a contract. There seems to be little suggestion that the agreement was other than voluntary. The women were not always aware of the contract's precise terms, but they generally knew they would be sent to Australia, and would have to work in a brothel until they paid off a "debt". On discharging the debt, they would be able to remain in Australia and to earn their own money.

The debt in each case was around $45,000, which was calculated on the basis of (among other things) travel costs, living expenses, a profit margin for the Australian organizers, and $20,000 paid to recruiters in Thailand. In one case the amount was reduced by negotiation between a complainant and the brothel owner.

In addition to the debt, there were certain demands placed on the women. For instance, each woman was required to work 10- to 12-hour shifts, six days a week. For each client, the debt would be reduced by $50 (a total of 900 clients for a $45,000 debt). If a woman chose to work a seventh day, she could keep $50 from each client that day.

The women were generally restricted to the brothel premises and to accomodation organized by the brothel owner. Their passports were kept by the brothel owner. They were basically well looked after, and had their medical requirements attended to, although arrangements were not luxurious (they slept on mattresses on the floor, up to four people sharing a room at a time). There was no evidence of rape or violence. They were not locked up, but (a) were in fear of detection by immigration officers; and (b) were only on rare occasions, and usually under supervision, permitted outside brothel or residence. In the case of some of the women, controls were relaxed as they neared the end of their contracts.

Two women completed their contracts within around six months and had their passports returned to them. They were then free to move as they wished, and in fact elected to return to the brothel to work.

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About trafficking in general:

Key debates... coalesce around issues including the realities of transnational migration for work, the difficulties of defining (and proving) key concepts such as exploitation and sexual violence, and the challenges of giving due respect to the agency of individuals in situations where choice is heavily constrained. [emphasis added]

-- Australian Government Office for Women, "Trafficking of women for sexual purposes", 1 August 2008

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If the complainants had wanted to leave, how could they?

A question posed by Justice McInerney at trial is worth quoting (R v Tang [2006] VCC 637): "How could they run away when they had no money, they had no passport or ticket, they entered on an illegally obtained visa, albeit legal on its face, they had limited English language, they had no friends, they were told to avoid Immigration, they had come to Australia consensually to earn income and were aware of the need to work particularly hard in order to pay off a debt of approximately $45,000 before they were able to earn income for themselves?"

It's also worth mentioning that, in many sexual servitude situations, victims may have other debts to pay off, children to take care of, family in their home countries that they're assisting, or they may have particular moral or cultural beliefs that oblige them to complete a debt-bondage contract.

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There is some dispute over the facts in R v Tang, including the women's freedom of movement, and including the brothel owner's beliefs and intentions. But if one accepts the facts as stated, and puts aside questions of intention, the question remains -- is this slavery or is this not slavery (within the meaning of the Code)?

In this case, the jury found, basically, that it was slavery. (Whether now they would so find is an open question; new offences of "sexual servitude", "deceptive recruiting for sexual servitude", "trafficking" and "debt bondage" have since been introduced, all of which are separate from "slavery", and which carry lesser punishments.)

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A general point I want to draw is that when applying modern legal definitions of "slavery", you'll probably have to consider the whole of the circumstances. Does the arrangement as a whole amount to "slavery", and are the people concerned in effect slaves? Well, you'll have to take into account a number of factors, and make judgments about the degree of each, relative to some benchmark of normal working conditions.

What factors?

The UN Secretary-General, in a 1953 Memorandum, mentions:

-- the capacity to make a person an object of purchase;
-- the capacity to use a person and a person's labour in a substantially unrestricted manner;
-- an entitlement to the fruits of the person's labour without compensation commensurate to the value of the labour.

The Trial Chamber for the International Criminal Tribunal for the Former Yugoslavia, in a 2001 case, Prosecutor v Kunarac, mentions:

-- lack of consent;
-- ability to buy and sell a person
-- control of movement;
-- control of physical environment;
-- psychological control;
-- measures taken to prevent or deter escape;
-- force, threat of force or coercion;
-- duration;
-- assertion of exclusivity;
-- subjection to cruel treatment and abuse;
-- control of sexuality;
-- forced labour.

In R v Tang, Gummow J speaks more broadly (at [139]) of "dominion over" a person and "deprived of freedom of choice".

He also references case law on the American Thirteenth Amendment, which is a provision against slavery and involuntary servitude. For instance, in United States vs Musray 726 F 2d 1448 (1984), the prosecution alleged:

[the defendants] knowingly placed [the Indonesian servants] in a strange country where [they] had no friends, had nowhere to go, did not speak English, had no work permit, social security card, or identification, no passport or return airline ticket to return to Indonesia, [were] here as ... illegal alien[s], with no means by which to seek other employment, and with insufficient funds to break [their] contract[s] by paying back to defendant[s] the alleged expenses incurred in getting ... here.

The court in that case found that this conduct, if proved, was sufficient to constitute "involuntary servitude", though there was no threat or force involved, and though the employment was consensual. What is required is that one person "coerces another into his service by improper or wrongful conduct".

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Some further comments from R v Tang:

* Gleeson CJ at [35]: "[C]onsent is not inconsistent with slavery. In some societies where slavery was lawful, a person could sell himself into slavery. Peonage could be voluntary as well as involuntary, the difference affecting the origin, but not the character, of the servitude. Consent may be factually relevant in a given case, although it may be necessary to make a closer examination of the circumstances and extent of the consent relied upon, but absence of consent is not a necessary element of the offence."

* Kirby J at [81]: "Particular employment arrangements, including in Australia, can sometimes seem oppressive to those engaged in conventional employment. Relevant here, however, was the work that the complainants had agreed to perform; the regime of effective discipline governing the complainants' place of employment and accommodation; their sleeping arrangements; the long hours of service; and the effective contemplation of a seven-day week. These factors combine to portray a level of oppression having few analogies in contemporary consensual Australian employment conditions."

* Kirby J at [81]: "Allowing for the existence of some kind of agreement with the complainants before they left Thailand, the fact is that the agreement was not in writing; its terms were in some respects unclear and disputed; and the 'fees' payable to the Thai 'recruiters' and to Ms Tang were never fully explained or justified to the complainants. At the very least, the complainants were economically vulnerable in Thailand. They were particularly vulnerable once they arrived in Australia. In this country, they found themselves in an alien culture; were exposed to the possibility of sudden immigration expulsion; had severe practical restrictions affecting their movements, work and accommodation; had little skill in the English language; and had few, if any, local friends or acquaintances outside the brothel, its personnel and customers".

* Gummow J at [141]: "[W]hat the alleged offender has done must... be measured against a factual construct: the powers that an owner would have over a person if, contrary to the fact, the law recognised the right to own another person".

* Gummow at [167]: "There was no evidence at trial about the circumstances in which the transactions were made. In particular, there was no evidence of how it came about that the 'vendor' asserted the right to make the sales that were made. Exploration of those matters would very likely have cut down, even eliminated altogether, the notion that the women came to Australia voluntarily. Not least is that so because it is possible, even probable, that examination of those matters would reveal not just great disparities of knowledge and power as between the 'vendor' and each of the women concerned, but other circumstances touching the reality of the assent which it was accepted each had expressed."

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Notes