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Second Chapter: Legal dispositions

International law:


National Law:

Following the implementation of the Supplementary Protocol to Prevent, Suppress and Punish the Trafficking in Persons especially Women and Children, the Justice system applies not only the Penal Law 1977 amendment 2000 but also other existing laws such as the Law for Combating Criminal Organizations and the Prohibition on Money Laundering Law (see those laws at the end of the coming paragraph).

Existing laws:

Penal Law 1977 amendment 2000

The following is an informal translation by attorney Rachel Gershony - legal adviser in the Ministry of Justice of the paragraphs Trafficking in persons for prostitution purposes in the penal law:

Main paragraphs:

203A

  1. "Selling or purchasing of a person in order to engage him in prostitution or serving as a middleman in the selling or purchasing of a person for this purpose is punishable by a term of imprisonment of 16 years; for the purposes of this paragraph, "selling" or "purchasing" includes consideration in the form of money, value, services or any other interests"

  2. "Causing a person to leave the state in which he lives in order to engage in prostitution, is punishable by a term of imprisonment of 10 years."



203B

  1. If an offence according to paragraphs 199 ( pimping), 201 ( causing a person to commit an act of prostitution), 202 ( causing a person to engage in prostitution), 203 ( causing a person to commit an act of prostitution or engage in prostitution under aggravating circumstances) or 203A ( trafficking for the purpose of engaging in prostitution) is committed with a minor of the age of 14 or over, it is punishable by:

    1. If the offence is punishable by a 5 year prison term - 7 years of imprisonment.

    2. If the offence is punishable by a 7 year prison term - 10 years of imprisonment;

    3. If the offence is punishable by a 10 year prison term - 15 years of imprisonment;

    4. If the offence is punishable by a 16 year prison term - 20 years of imprisonment

  2. If an offence according to the above paragraphs (see (a)) is committed with a minor under the age of 14 or by a person responsible for a minor who has reached the age of 14, it is punishable by double the regular punishment, but no more than 20 years of imprisonment.

  3. In this paragraph, " a person responsible for a minor" - as defined in paragraph 368a of the criminal law.



203C

Receipt of a service rendered by an act of prostitution of a minor is punishable by a term of imprisonment of 3 years.

203D

The burden of proof regarding a claim of ignorance as to the age of the person connected to an offence under this section - rests on the person who so claims. This paragraph does not apply to a crime according to paragraph 214(b3) (Possession of a pornographic publication, which includes the picture of a minor even if the possessor has acted in good faith and by chance).

New amendments to the Penal Law 1977 that passed in 2003:



The following criminal laws are used for TIP offences:

Prohibition on Money Laundering law 5760-2000

Combating Criminal Organizations law 5763-2003

For further details of these laws see the link below:
http://www.justice.gov.il/MOJEng/HalbanatHon/Legislation/

A new law passed in 2005 regarding Places of prostitution:

Closing places Law [called : Limitation of the use of a place where offences are carried on law, Hatashsa - 2005 (i.p. as per articles 199,202, 203a, 204, 205 of the penal law)]. ( Laws book 1998, 11.4.2005) http://www.knesset.gov.il/Laws/Data/law/1998/1998.pdf

This law is probably based and the distortion of the Law proposal (p/1316) which was handed to the Knesset on 28/7/2003 and was called:

Penal Law amendment (Closing places where offences of procuring and Trafficking in persons occur) addition of article 214c.

Two other law proposals are still pending:





Legislation for the Protection of Children from Commercial Sexual Exploitation ( since 1998)

Following the Stockholm Conference's Declaration and the "Stockholm Agenda for Action" in 1996, the State of Israel has taken a number of legislative steps in order to expand and diversify the legal instruments at the disposal of State authorities in its fight against the commercial sexual exploitation of children.

Following is recapitulation of the changes made to the relevant parts of the Criminal Act of 1977 and the Law on the Rights of Victims of Crimes.

  1. Changes in the Criminal Law : see above 203B,203C,203D



    The general attitude of the State of Israel is to refrain from interfering in the consensual activities of adults and therefore no ban exists on receiving services from a prostitute, unless such an activity involves violence or the exploitation of a person's weaknesses. With regards to minors, the legislator sees itself as having all rights to interfere in order to protect minors against all those who might prevent their proper development.

    It is considered a crime to publish or transmit information concerning the provision of prostitution services by minors. This prohibition concerns all such services, whether in Israel or outside of Israel, and whether or not it is specified that the provider of services is a minor. The purpose of this provision is - amongst others - to fights against the phenomenon of sexual tourism. (art. 205)

    It is an offense to be involved in any way in the publication (including the dissemination, distribution, production, etc.) of pornographic material, which involves a child, including artificial image of a child- the perpetrator is liable for up to 7 years imprisonment.

    Furthermore, it is an offense to have in one's possession any type of pornographic material involving minors - the perpetrator is liable for up to 1 year imprisonment. .

    As mentioned above, in the name of the defense of minors the provision goes as far as forbidding the private possession and use of pornographic material involving minors but does not punish chance or bona fides possession of such material. (art. 214)

    All of the above crimes carry an obligation to report, when the perpetrator of the crime is directly responsible for the minor. According to this obligation, anyone that has reasonable ground to think that a crime has been committed involving a minor must report to the welfare services or the police. Failing to report, as expected above, makes one liable for up to 3 months imprisonment. All those to whom information relating to the exploitation of minors is provided within the context of their professional occupation (such as doctors, educational professionals, psychologists, police officers, etc.) bear the obligation of reporting the aforementioned information - as soon as possible - to the welfare services or the police. Failing to report, as expected above, makes one liable for up to 6 months imprisonment.

    Public persons also carry the obligation to report a crime involving minor when the activity takes place in the near past.

    The reporting is aimed not only for prevention but also for the treatment and the rehabilitation of the victims by the health and social services. (art. 368d(h))

    Following the recommendations of the Stockholm Convention, the condition of "double criminality" was qualified so that the crime of prostitution or pornography involving minors can be prosecuted in Israel even if such an act is not considered criminal in the country in which it was committed. The Israeli courts have extraterritorial jurisdiction over citizens and inhabitants of Israel who commit offences of commercial sexual and pornography exploitation abroad. (art. 15)

  2. Changes in the Rules of Evidence

    In Israel there is a special procedure for the testimony of children up to14 of age. The goal of this procedure is to give maximum protection to children who were victims of severe crimes. A special interrogator who went through psychological training interrogates these children. The interrogation is recorded by a video camera in case the interrogator decides the child is incapable of testifying. In such a case the recording is submitted to the court instead of the live testimony of the child. If the child does end up testifying, he can do so under special conditions, such as: Testifying without the presence of the accused, testifying outside the courtroom (in such a case the testimony is broadcast to the courtroom on a closed circuit television), etc.

    Directives:

    Directives of the Public Prosecution:

    Since 1994 the Public Prosecution has published directives regarding the cases in which a penal file will be opened concerning felonies connected with prostitution and places used for the purpose of prostitution (Prosecution Directives 2.2):

    These directives were changed and replaced by new directives in January 2002. As can be seen, the new directive treats specifically cases of trafficking in women and its purpose is to initiate direction and a guideline for the Prosecution and the police that work with this issue. The directive deals with the different stages of the trafficking felony - from the stage of the investigation of the felony, through the stage of the testimony of the victims including the stage of requests from the court to rule indemnity for the victims regarding the suffering and harm caused to them. The directives of 1994 can still be found though in article 5 of the new directive and are source for confusion. Following, is the translation of the Directives:

    2.2 Investigation and prosecution policy in felonies of prostitution and trafficking in persons for prostitution purposes:


    1. Managing massage parlors and escort agencies' as a cover for prostitution is a widespread phenomenon. More often than not, in the frame of operating a massage parlor, felonies of the worst kind are taking place, such as trafficking in human beings, drug trafficking, extortion, money laundering etc. Our aim is to abolish these phenomena that the industry of prostitution promotes, on the grounds of the acknowledgement of human dignity and based on the founding principles of the Israeli legal system. Nothing that is said in this directive will diminish our aim and purpose to abolish the entire phenomenon of prostitution - phenomenon which is in itself a harm to human dignity of the woman - and even if this mission will take long years we are urging to obtain it.

    2. The increase of crime in the area of trafficking in women and turning Israel into a destination country for trafficking in women demands special notice to the implementation of the law in this area. For this reason the legislator added the article 203 a in the penal code 1977 that is forbidding specifically the trafficking of human beings for prostitution purposes.

    3. That is why, while deciding to investigate and to prosecute in this field it is elementary to check and relate to the cases where there is suspicion of a trafficking felony, in addition to felonies that are linked to prostitution.

    4. Investigation regarding a felony of "trafficking in human beings for the purpose of prostitution" will be opened with special attention to the following points:

      1. When in the place of prostitution there are women that are not Israeli residents - a complete check of their stay in Israel should be conducted, including checking that their passports are in their possession, that the passports are not forged and the way the women entered Israel.

      2. The consent of the women to prostitute shall be irrelevant in view of the rational behind the prohibition of trafficking in persons (see Ruling Rabinai vs. State of Israel, not yet published)

      3. When there is suspicion that the women entered Israel by means of trafficking , the managers of the place should be interrogated as suspects, and also every one of the workers of this place who is involved in the felony or who could contribute to the investigation, in addition to the felony of managing and keeping a place for prostitution purposes.

      4. The felony of trafficking does not prevent to take into account other felonies (such as rape, internment, passport withholding, money laundering etc.), that should be investigated if necessary.

      5. When the status of the women is that of illegal residence, the women should be taken away immediately from the place where they were held by the perpetrators, their identity and their place of origin should be checked in order to send them back to their country of origin. During the identification process the women will be held according to the procedures of the police and the Interior Ministry, while any contact with their perpetrators will be prohibited.

      6. With regards to the severity of the felony the Prosecution will issue a detention order of all the suspects until the end of the investigation process (see SH.P. 1524/01, State of Israel vs. Akerman, not published yet).

      7. At the same time the prosecution will act for an early testimony process of the women to enable their expulsion to their countries of origin after giving the testimony.

      8. It should be noted that very often the representation of the women in court is financed by the perpetrators and the suspects in the Trafficking felony. In the proper cases, after consulting the district prosecutor and with his directives, the attention of the court should be addresses to this fact.

      9. With attention to the circumstances of the case, in files that are connected with trafficking in women, it is necessary to present a request to the court according to article 77 of the Penal Code 1977 so that when the suspect is convicted, the court will order him to pay the victim of the felony indemnities for the damages and sufferings caused to her. In parallel article 78 of the penal code stipulates that the charge of indemnity has the same status as a sentence and when this sentence is appealed there is a possibility to include appeal on the charge of indemnity. Therefore due to the complexity of trafficking cases and due to the fact that the plaintiffs are in most of the cases illegal residents , who will be sent back to their countries of origin as soon as possible - it is important to stress to the plaintiffs that there is possibility that the sentence will be appealed and therefore their right to indemnities is not absolute until the sentence is declared definite and they should take into consideration the fact that they will be requested to reimburse the indemnities if the appeal is granted. In this respect please see the letter of the General attorney to the District Attorneys dated 27 June 2001. On 27 June 2001 the General Attorney also wrote to Attorney Jehudith Karp, the Deputy Legal Adviser to the Government (Special projects) asking that she will examine the possibility of a legislative amendment concerning the construction of a mechanism that will allow to retain the indemnities in the name of the plaintiffs until the sentence is declared definite and that will ensure that the plaintive will receive the money when the sentence is declared definite.

      10. Coping with the phenomenon of trafficking in women in the penal level is punitive and preventive. Therefore, when there is a reason beyond doubt to believe that there was a felony of trafficking in human beings, and when objects and money linked to the felony or resulting of it are found during a search in the place where the felony was committed, it is suitable to examine, in accordance with the circumstances of the case, the possibility to activate the authority of the police to seize according to article 32 of the penal code (Detention and Searching) 1969 and request from the court to issue an order to confiscate the possessions according to article 39 of this code. When money linked to the felony is seized as they raise the suspicion of tax evasion it should be notified to the tax authorities.

    5. When the information in the hands of the police is not indicating the possibility of trafficking in women there is place to open an investigation according to the circumstances and gravity of the affair and especially if there is a suspicion that one of the following occurs:

      5.1 Cases in which minors are involved actively or in any other way.

      5.2 Cases in which there are aggravated circumstances (coercion, blackmail or violence) aggravated exploitation of the prostituted persons by the employers, and especially employers using means of coercion, blackmail and violence against those employed by them in prostitution. That is whenever it is clear that in addition to the employment in prostitution other felonies are exercised against the employed prostitutes and that their purpose is to force the continuation of the activity of prostitution while exploiting the employed.

      5.3 Cases in which in the place used for prostitution exists additional criminal activity such as trafficking in drugs

      5.4 Cases in which the place used for prostitution consists a nuisance for the neighbors

Also in these cases it is necessary to activate seizure of the possessions that are linked to the felony as written in article 4j above and to report this to the Tax authorities.

It is important to note that these directives are implemented through training and formation sessions of the prosecutors and the police units - To raise the awareness among these professionals will take time.

During 2004 a dissertation of Adv. Itai Frost, member of the Inter-ministerial committee regarding the issue of Trafficking in Women and being member of the National Prosecutor team, was published.

This outstanding work "Prostituted women concealed from view - the absent presence in the Israeli legal system" points to the historic and actual discrepancy in the Israeli legal system. The space between reality and law, between rhetoric and rulings, between the prostituted woman and her judges. The work deals with the problematic reality of how the prostituted woman is not only the victim of violence and exploitation but also is a victim of the Israeli legal system, which has done all it could to avoid hearing her voice or dealing with her as a person. It criticizes the legislator hastiness in articulating the new trafficking law and its consequences; it demonstrates how the law courts have opposed to the legislator,by interpreting the offence sensitively and not only listening to the victim`s voice but also trying to establish an innitial foundation to the concept of "human dignity" [7].

[7] The prostitutes invisibility - Absent presence in the Israeli legal system, Itai Frost, Masters issertation guided by Dr. Eyal Gross, Tel Aviv University.


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