Page:Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007.pdf/43

84 No. 30599

Act No. 32, 2007 “commercial carrier” includes a company, or the owner, operator or master of any means of transport, that engages in the transportation of goods or people for commercial gain; and

“trafficking” includes the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic, by means of—

a threat of harm;

the threat or use of force, intimidation or other forms of coercion;

abduction;

fraud;

deception or false pretences;

the abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act; or

the giving or receiving of payments, compensation, rewards, benefits or any other advantage,

for the purpose of any form or manner of exploitation, grooming or abuse of a sexual nature of such person, including the commission of any sexual offence or any offence of a sexual nature in any other law against such person or performing any sexual act with such person, whether committed in or outside the borders of the Republic, and “trafficks” and “trafficked” have a corresponding meaning.

Trafficking in persons for sexual purposes

71. (1) A person (“A”) who traflicks any person (“B”), without the consent of B, is guilty of the offence of trafficking in persons for sexual purposes.

(2) A person who—

orders, commands, organises, supervises, controls or directs trafficking;

performs any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking; or

incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participate in trafficking,

is guilty of an offence of involvement in trafficking in persons for sexual purposes.

(3) For the purpose of subsection (1), “consent” means voluntary or uncoerced agreement.

(4) Circumstances in which B does not voluntarily or without coercion agree to being trafficked, as contemplated in subsection (3), include, but are not limited to, the following—

where B submits or is subjected to such an act as a result of any one or more of the means or circumstances contemplated in subparagraphs (i) to (vii) of the definition of trafficking having been used or being present; or

where B is incapable in law of appreciating the nature of the act, including where B is, at the time of the commission of such act—

asleep;

unconscious;

in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that B's consciousness or judgement is adversely affected;

a child below the age of 12 years; or

a person who is mentally disabled.

(5) A person who has been trafficked is not liable to stand trial for any criminal offence, including any migration-related offence, which was committed as a direct result of being trafficked.