Double Victimisation: How the Law Re-traumatises Child Trafficking Victims

By Amy Okletey and Anna Balboa

What is Child Trafficking for Forced Criminality?

Child trafficking is among the most reprehensible forms of human trafficking as it involves the abuse of society’s weakest and most vulnerable: children. For the purpose of this blogpost, and in line with the UN Convention on the Rights of the Child (UNCRC), a child is defined as any person under the age of 18.

Child trafficking was first defined in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (hereinafter Palermo Protocol) as the recruitment, moving or reception of a child for the purpose of exploitation, regardless of the means of coercion as children are seen as lacking the capacity to consent. While this definition was widely adopted among international and regional frameworks, the Palermo Protocol notably omitted forced criminality from its list of resulting exploitations. Child trafficking for forced criminality (CTFC) in which children are exploited ‘to commit, inter alia, pickpocketing, shoplifting, drug trafficking and other similar activities which are subject to penalties’, thus remains one of the most insidious forms of modern exploitation, especially due to its underrepresentation in legal frameworks and academic discourse. And yet, CTFC is a growing phenomenon with the United Nations Office on Drugs and Crime’s (UNODC) noting a 31% increase in child victims since 2019, a trend further highlighted by UK Home Office statistics which identified children as the primary victims of criminal exploitation. Children’s ‘particular vulnerability’ and perceived profitability, as they are easier to control, manipulate, less likely to resist or escape and more inconspicuous when committing crimes, make them ideal targets for Europe’s criminal networks. In the UK, British and foreign children, particularly boys, are increasingly exploited in ‘county lines’ operations where gangs groom and violently exploit young children, coercing them into distributing and cultivating drugs, as well as commit violent crimes.

The Non-Punishment Principle in International Law

Such rising evidence led to a growing recognition of CTFC with international and regional instruments evolving accordingly. Article 26 of the Council of Europe’s Anti-Trafficking Convention introduced the non-punishment principle (NPP) protecting trafficking victims from punishment for ‘unlawful activities’ they were compelled to commit back in 2005. This was later reinforced by Article 8 of the EU Anti-Trafficking Directive which explicitly required states to protect these victims and prevent their prosecution for offences committed as a direct consequence of their trafficking situation.

The NPP is thus especially crucial in CTFC cases where traffickers force children into committing illegal activities, subsequently weaponizing the threat of prosecution to maintain control over the victims. Nonetheless, despite this non-punishment obligation, in practice, many national systems fail to implement the NPP adequately, frequently defaulting to criminalisation. This impedes the administration of justice by shifting accountability away from the traffickers and onto the exploited, thus obstructing states’ trafficking investigations ‘and the promise of accountability’. Moreover, it undermines their obligation to effectively protect and assist victims, ultimately weakening states’ effort to combat trafficking.

How the UK is Falling Short

As a signatory to the Anti-Trafficking Convention, the UK is bound by its Article 26. This obligation, as clarified by the Group of Experts on Action against Trafficking (GRETA), does not grant states discretion to punish, but rather gives them a choice in how to operationalise this obligation. Therefore, the UK must apply the NPP as a binding obligation, not merely as a discretionary policy. However, although it is the UK as a state which bears the international obligation to implement the NPP, this must be incorporated by each domestic law separately. In England and Wales, it is Section 45 of the Modern Slavery Act (MSA) 2015 which provides a statutory non-punishment defence for offences committed by trafficking victims as a result of exploitation. In practice however, the UK’s application of the NPP remains inconsistent. Narrowly framed, Section 45’s effectiveness is largely undermined by the ‘reasonable person test’ placing a significant burden on children to demonstrate not only their victimhood but that ‘a reasonable person in the same situation […] and having the person’s relevant characteristics would do that act’. Additionally, Schedule 4’s broad exclusion of a range of offences leads to situations where CTFC victims are still prosecuted for acts committed under coercion and suffer unjust punishment. This explains why research by La Strada International Working Group found that two out of three UK cases, failed to apply the NPP. Section 45 thus remains strongly criticised by GRETA and other children’s rights defenders as incompatible with international standards and inefficient in upholding the UK’s non-punishment obligation, leaving many children exposed to prosecution. This is particularly troubling given UK’s growing problem of CTFC cases, especially within county lines drug networks. Furthermore, this problem is aggravated by the UK’s low age of criminal responsibility, which in England and Wales is set at only 10 years old, one of the lowest across the world. By allowing the prosecution of extremely young children, the UK normalises their criminalisation and prosecution instead of recognising their need of protection.

Moreover, central to the NPP’s failure in CTFC cases is the misidentification of victims as offenders, allowing the real offenders to continue to operate with impunity while blaming exploited victims for their traffickers’ crime. Not only does this constitute a serious denial of justice but it exacerbates the young victim’s trauma by compounding their exploitation with criminal punishment. Victims are thus doubly victimised. Research shows that this denial of justice arises in part because authorities responsible for processing victims through the criminal justice system are rarely the same ones investigating trafficking cases, lacking awareness of trafficking features. Trafficking indicators are therefore often overlooked or ignored, resulting in prosecutions which undermine the Section 45 protection. This was exemplified in R v L.E. (2012), where a trafficked child was convicted for cannabis cultivation despite clear trafficking indicators. Similarly, although Crown Prosecution Service (CPS) guidance recognised that children found on cannabis farms are often victims of trafficking, and that prosecutors should be alert to this possibility, this had a minimal practical effect as children continued to be arrested and prosecuted. Subsequently, this demonstrates public authorities blatant disregard for the NPP and a broader failure to see trafficked children as victims, not offenders.

Nonetheless, UK courts have gradually tried to accept and implement the NPP. First recognised in R v O [2008], and later in L, H.V.N, T.H.N v R [2013], the courts accepted that trafficking can remove or ‘significantly diminish’ a victim’s culpability, as their exploitation left them with no other choice ‘but to comply with the dominant force of another individual, or group of individuals’. As such, there should be a level of ‘protection from prosecution or punishment for trafficked persons compelled to commit a criminal offences’, which for child trafficking victims is always the case.

Yet, NPP application remains discretionary as prosecutors may still pursue cases on grounds of ‘public interest’, undermining the binding nature of the NPP and leaving victims exposed to further harm. Such inconsistent NPP application is partially explained by the UK’s National Referral Mechanism’s (NRM) failings to identify and support trafficking victims, directly contributing to the denial of a Section 45 defence, compounding the child’s victimisation.

As a result, children are still arrested, prosecuted, and even imprisoned for offences they were forced to commit. Despite strong criticism and judgements like V.C.L and A.N. v UK (2021) by the European Court of Human Rights which found the UK in breach of its obligation to actively identify trafficking victims and protect them from prosecution, the UK continues to fail its international obligation. By routinely prosecuting trafficked child victims, the UK breaches not only the NPP but also the UNCRC, particularly the fundamental principle to prioritise a child’s best interest, and to protect their physical and psychological well-being.

The mental health effects of being trafficked

Throughout all phases of trafficking, children are subjected to inhumane, violent, and stressful conditions (Clay-Warner et al., 2021; Zimmerman et al., 2008). For instance, a study by Ottisova et al. (2018) found a high prevalence of physical violence (53%) and sexual violence (49%) among a sample of 51 treatment-seeking trafficked children. Such abuse can cause profound damage to their normal development (Rafferty, 2008). Due to repeated exposure to traumatic events and psychological distress, trafficked minors display a higher prevalence of mental health issues—the three most common being post-traumatic stress disorder (PTSD), depressive disorder, and anxiety disorder symptoms—and they are often experienced simultaneously (Hopper, 2016; Kiss et al., 2015; Hossain et al., 2010; Zimmerman et al., 2008). Furthermore, suicidal and self-harming behaviours are observed among survivors of child trafficking.

Many child victims may thus feel an accompanying sense of powerlessness, hopelessness, disorientation, isolation, loss of trust, low self-esteem, and difficulties in socially connecting and integrating with others (Every Child Protected Against Trafficking (ECPAT UK), No date). Many child victims of active sexual, psychological, and physical abuse may also exhibit emotional attachments to their traffickers, known as trauma-coerced attachment (TCA) or trauma bonding (Casassa et al., 2022; Reid et al., 2013), and the former tend to develop feelings of loyalty and dependency towards the latter and may return to the trafficking environment once they have escaped (Chambers et al., 2022). Thus, trafficked children are prosecuted rather than protected, they are denied their rights and protection, while also enduring deep, long-lasting psychological and developmental harm, underscoring the need to examine the broader mental health effects of such treatment.

The mental health effects of prosecution on child victims

According to Mullan-Feroze & Dorling (2022), detention is often an unacceptable environment for survivors of human trafficking. Research has highlighted the severe harm that prosecuting and incarcerating young victims of trafficking causes, further traumatising these individuals, painting them as actionable agents in their trafficking experiences, penalising them with an offender status and criminal record, which can make integration into society much harder (Zabresky, 2013). When children are trafficked, they may be deprived of their liberty and right to be free from exploitation and abuse (ECPAT UK, No date). The environments that these minors might be exposed to due to the prosecution and incarceration process—and the accompanying fears they may experience within them—can be a triggering reminder of their trafficking, worsening their psychological distress (ECPAT UK).

Depriving these children liberty retraumatises them by reintroducing feelings of disempowerment that were present during their trafficking (Rafferty, 2018). Literature on child trafficking has, thus, shown that detention causes victims’ mental health to deteriorate further (Mullan-Feroze & Dorling, 2022). Moreover, prosecuting child survivors prevents them from receiving the mental health support needed to recover from their traumatic experiences, leaving them in continuous distress. The Helen Bamber Foundation (HBF), a UK charity which supports survivors of trafficking, has reported several cases of victims of trafficking for forced criminality whose mental health conditions—like PTSD and anxiety—are significantly worsened by their time in detention. In addition, physical health problems that go untreated are worsened, also contributing to feelings of hopelessness and mental health deterioration. According to these authors, such environmental conditions also make trafficked victims more susceptible to suicidal ideation and attempts. Even though cases like this are documented mainly for young adults (18-24), the repercussions remain the same, and the situation can even be worse for detained minors because children face more vulnerabilities due to their ongoing mental development.

What could the effects of double victimisation be?

Without proper system responses and interventions to address the underlying causes of initial victimisation, the prosecution of child victims through the criminal justice system may make them more susceptible to re-trafficking and its associated mental and physical harms (Starseed et al., 2024). Studies like Chen et al. (2023) and Nichols et al. (2022) have argued that the revictimisation of these individuals due to re-trafficking may be caused the fact that the vulnerabilities that first exposed them to being trafficked—and the subsequent vulnerabilities caused by being trafficked the first time, like trauma-coerced attachment—were not mitigated after escaping trafficking the first time. Such vulnerabilities include experiencing childhood sexual, psychological, and physical abuse, unstable legal status, running away and homelessness, and system contact (Starseed et al., 2024).

Attending to children’s needs: alternatives to prosecution

The Palermo Protocol states that each State Party must promote the necessary conditions for victims of human trafficking to have a physical, psychological, and social recovery, considering their needs (Martinho et al., 2020; United Nations, 2000). The UK Modern Slavery Act Statutory Guidance (for England and Wales) and non-statutory guidance for Scotland and Northern Ireland (2015) also emphasise the importance of prioritising the safety, protection, and support of potential victims due to their particular vulnerabilities. However, there is still a gap in protecting the rights of child victims (UNICEF, 2006), such as identifying the child victims and supporting them properly, as well as preventing secondary victimisation through prosecution and detention. According to Martinho et al. (2020), there is a need for current practices to adopt a victim-centred approach that builds trust, autonomy, and empowerment for child survivors.

For victims of child trafficking, mental health professionals recommend trauma-informed support in health care and social services, among others, that is designed to help trafficked youth address their vulnerabilities and prevent or minimise retraumatisation (Nichols et al., 2022; Rafferty, 2018). This includes short-term psychological interventions such as the use of therapy, and maintaining healthy relationships that contribute towards the psychological improvement of child victims (Levine, 2017), as well as more long-term interventions that prioritise the reintegration of survivors back into society (Pascale, 2024). Salami and colleagues (2018) proposed therapeutic approaches that reduce guilt, fear, and shame in trafficking survivors to reverse their vulnerabilities.

Concluding Remarks

Consequently, while identifying CTFC remains extremely difficult, it is important to note that CTFC constitutes a serious form of child abuse, and thus a fundamental violation of children’s rights. This harm is further compounded when victims’ are denied access to essential services and subject to criminal prosecution for crimes they were forced to commit. Such prosecution not only breaches international legal standards, including the NPP, but also results in significant re-traumatisation. Without urgent legal reform in order to effectively prevent the prosecution and dual victimisation of trafficking victims, the UK will continue to fall short of its international obligations and punish vulnerable children in need of protection. Beyond violation of the fundamental rights, this failure inflicts severe long-term damages on children’s mental and physical health, suffering significant damage at the hands of their traffickers and the state—whose punitive action and punishment exacerbates their traumatisation. The mental health issues arising from such trauma are immense not only at an individual level but also across society. The gap discussed above, and the current lack of resources in Child and Adolescent Mental Health Services (CAMHS), presents a major policy issue: without systemic reform and investment, the UK system will continue to neglect trafficked children at a crucial stage of their recovery.