Commentary on Cambodia Anti-Trafficking Law
Article 1
This Article explains the general objective of this Law. It calls
for the implementation of the United Nations Protocol to Prevent, Suppress,
and Punish Trafficking in Persons, Especially Women and Children(hereafter, “Protocol”), supplementing the United Nations Convention
against Transnational Organized Crime (“Convention”). The Protocol was
first adopted by the United Nations in Palermo, Italy in 2000 and later
entered into force in December, 2003. Cambodia signed the Protocol on
December 25, 2003 to become one of the 117 signatories. By implementing
this Law, Cambodia has vowed to implement the Protocol.
One reason that Cambodia’s 1996 anti-trafficking law (the Law on
Suppression of Kidnapping, Trafficking and Exportation of Human Persons,hereinafter “LSKTEHP”) was widely criticized was that the law and otherrelated laws (especially immigration laws) were used to punish victims of
trafficking rather than perpetrators. It has been frequently reported that
Cambodian authorities raid brothels under anti-trafficking and exploitation
legislations, only to later imprison sex workers for entering the country
illegally.1
The Protocol, which this Law intends to implement, indicates at theoutset that one of its primary purposes is “to protect and assist thevictims of such trafficking, with full respect for their human rights”(Article 2, Provision (b)). Moreover, it dedicates Article 6, 7 and 8 toaddressing in detail how victims of trafficking should be protected indifferent circumstances. Thus, by implementing the Protocol, it is crucial

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In one instance, the government raided a Phnom Penh brothel and rescued 14

Vietnamese sex slaves. A local NGO took them in and began providing them with medical,
psychological, and legal services, promising them a safe shelter and recourse throughCambodia’s justice system. A few days later they were imprisoned under immigration laws.
The judge refused to drop the charges in spite of evidence that they were traffickedagainst their wills.
In another instance, only two months after the LSHTSE was promulgated, three men
giving humanitarian relief to Mantagnards (an ethnic group indigenous to the mountains ofVietnam and Cambodia) fleeing persecution in Vietnam were sentenced to six months inprison under anti-trafficking legislation. It is clear that the purpose of the LSHTSE is
not to deter granting relief to asylum seekers.

1that, with the exception of extraordinary cases, victims of trafficking andexploitation are not punished for any offences or activities related totheir having been trafficked. This includes prostitution and immigration
related violations.
This Article also refers to “other international instruments oragreements with regard to human trafficking that the Kingdom of Cambodia
has ratified or signed.” These international instruments or agreements, as
far as they are relevant for the present purpose, include, but are notlimited to, the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (the Convention against Torture), theConvention on the Elimination of All Forms of Discrimination against Women(the Convention for Women), and the Convention on the Rights of the Child(the Convention for Children). Cambodia is also a party to the Memorandumof Understanding on Cooperation against Trafficking in Persons in the
Greater Mekong Sub-Region to which China, Lao, Myanmar, Thailand, andVietnam are also parties.
In July of 2007, Cambodia’s Constitutional Council ruled thatinternational human rights treaties to which Cambodia is party areincorporated into Cambodian domestic law and hence are directly applicable
to domestic court proceedings. Thus, when enforcing this Law, the Cambodian
Government should take the aforementioned treaties into account, insofar as
those treaties are relevant and contribute to the prevention andsuppression of any kind of human trafficking and the protection of
trafficking victims.
The scope of human trafficking is discussed in the following
articles. In addition, the definition found in Article 3(a) of the Protocol
should be consulted, where human trafficking is defined as “therecruitment, transportation, transfer, harboring or receipt of persons, bymeans 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 positionof vulnerability or of the giving or receiving of payments or benefits toachieve the consent of a person having control over another person, for the
purpose of exploitation.”

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The scope of “exploitation” is discussed in the following articles.
In addition, the definition found in Article 3(a) of the Protocol should be
consulted. There “exploitation” is meant to include “at a minimum, theexploitation of the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery or practices similar toslavery, servitude or the removal of organs.”
The definitions provided by the Protocol are not exhaustive. All theactivities addressed in this Law (regardless of whether they are includedin the Protocol’s definitions of trafficking or exploitation) should be
regarded as trafficking and exploitation.

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Article 2 and Article 3
These Articles address jurisdictional issues. The language of these
Articles, for the most part, is directly derived from the jurisdictional
directives of the Convention (Article 15 of the Convention). Thus, inapplicable cases, courts should consult the relevant commentaries on theConvention. This shows the Law’s commitment to correspond to theinternational standard in combating trafficking and exploitation andstrengthen the enforcement of anti-trafficking actions by adopting abroader jurisdictional boundary. This Law’s predecessor, the LSKTEHP, did
not address jurisdictional issues in these broad terms, limiting theCambodian Government’s ability to address wide-spread trafficking-related
problems inside and across the country’s border.
This Law, however, does not adopt all the jurisdictional directives
suggested by the Convention. Article 15 of the Convention states that “aState party [to the Convention] may also establish its jurisdiction over…
such offense” when the offense involves an organized criminal group and acertain form of transnational money laundering. Such language does notappear in this Law.
Instead, this Law has a different provision in Article 2, whichstates that “an offense shall be considered to be committed…in Cambodia
from the moment when one of the constituent acts (elements) takes place
within the territory of…Cambodia.” For example, Article 10 of this Law
prescribes punishment for a person who unlawfully removes another for the
purpose of profit making. Because “purpose” is an element of the crime
under Article 10, per Article 2 of this Law, if A unlawfully removes B from
Vietnam for the purpose of profit making in Cambodia, Cambodian courts
shall have jurisdiction over A, because the “purpose” is to “profit”
within the territory of Cambodia. This provision is intended to broaden thejurisdictional scope of the Law while attempting to avoid potential
conflicts involving state sovereignty of other countries.

Article 44This Article addresses the issue of attempt and complicity. Both theProtocol and the Convention, in their criminalization provisions (Article 5of the Protocol and the Convention), call for punishment for attempt andcomplicity.
This Article mandates that both attempt and complicity “shall bepunished and liable to the same punishment.” Such an approach places anemphasis on subjective mental culpability. Thus, even if a person’s action
did not result in a successful commission of a trafficking or exploitationrelated crime, the person should be punished as though the crime was
successfully committed if the person intended to commit the crime.
In considering the actor’s subjective mental culpability at the timeof attempt, courts should look at why the action in question did not
ultimately result in the successful commission of the crime. If the actor
voluntarily and completely renounced his plan to commit the crime before
any substantial step to the commission of the crime has been taken, he may
be presumed not to have the same mental culpability as someone who althoughintending to carry out the plan to its successful commission, was prevented
from doing so by some circumstance. If the actor could not carry out his
criminal plan due to external circumstances that made the successfulcommission of the crime impossible or more difficult, or if the actor did
not carry out his criminal plan but rather decided to wait for a “better
time,” it should not be presumed that his mental culpability is any lessthan the successful commissioner.
The focus should be on subjective mental culpability in cases
involving complicity as well. Courts should consider whether an alleged
accomplice or instigator had a purpose to aid a principal in the commissionof a crime or knowledge that his action would likely aid the principal incommitting the crime. If the alleged accomplice had neither purpose nor
knowledge, it may be presumed that he did not have the required mental
culpability to be an accomplice or instigator. Additionally, courts should
not consider whether a principal is aware of aid from an alleged accompliceor instigator, neither should they consider whether the aid resulted in a
successful commission. The focus should be on the alleged accomplice’s
mental state at the moment of aid.

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This Article specifically indicates that complicity includes “theform of organizing or directing another to commit any of the felonies or
misdemeanors stipulated in this law.” Consistent with the Convention,“organizing” should be interpreted as putting together a group of threeor more persons for a period of time with the intent to act in concert tocommit a crime or offence established in accordance with this Law.
For the purpose of this Article, complicity is limited to an act ofaiding or abetting before or at the moment of a crime. An act of aiding or
abetting after a crime has been committed, e.g. harboring a victim, should
be distinguished.
The last provision of this Article enables law enforcement to punishand deter impersonal legal entities, e.g. corporations, who are involved intrafficking-related crimes. This is necessary since a guilty corporation
cannot be punished by imprisonment, hence imposing fines is necessary toachieve suppression and prevention of trafficking-related crimes among
impersonal legal entities.
Article 5
The purpose of this provision is to establish the court’s discretionin cases where an offense is punishable by both imprisonment and fine. In
all such cases, the court may choose to apply a sentence of only
imprisonment, only fine, or a combination of both. For further explanationand example of concurrence, see the commentary on Article 6 below.

Article 6
Concurrence of offenses implies the option of multiple punishments
for the same criminal act. Concurrent sentencing occurs when multiple
sentences are applied simultaneously. If the same act can be attributed
multiple punishments (e.g. through multiple statutes addressing the act or
through multiple sections of the same law) then the court should apply
concurrent sentencing and imposes the greatest of the multiple punishments.
However, if the one act contains multiple punishable offences, each penalty
may be imposed, given that these penalties are not of the same nature.

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Multiple penalties for multiple criminal acts committed by the same
principal does not constitute concurrent offenses.
Under this provision, it is possible to serve a prison sentence andpay a fine for the same crime, since the nature of these penalties is not
the same. However offending persons may not serve the same type of sentenceconsecutively for a single offense. For example, if A is fined 100,000
riels and 200,000 riels for the same offense, he should pay 200,000, not300,000. Alternatively, if A is sentenced to 2 years and 3 years for thesame offense, he should serve 3 years, not 5. However, if A is fined
100,000 riels and sentenced to 2 years’ incarceration, he may be subject
to both penalties.
Consecutive sentencing, in contrast to concurrent sentencing, is when
multiple sentences are applied one after the other. Whether sentences areapplied concurrently or consecutively depends on the nature of theoffenses, the applicable laws, and the court’s discretion. For the purposeof this statute, “several penalties of the same nature” (e.g., multiple
incarcerations or multiple fines) may not be pronounced consecutively forthe same offense.

Article 7This Article shows a substantial difference from the LSKTEHP’s usageof compounded sentencing for minors. Whereas the LSKTEHP heightened
sentences when the offence was committed against children fifteen years andyounger, this Law raises the threshold age to eighteen, in accordance with
its obligations under the Convention for Children. This clearly
demonstrates Cambodia’s commitment to enforcing its international
obligations and to expanding protections for minors. Courts should be
mindful of these implications in their rulings.
Courts should also pay special attention to this Article’s“reasonableness” requirement. The Article states that if a person“reasonably” believes the minor’s age to be eighteen years or more, thenthat person is not necessarily presumed to know the minor’s true age. In
interpreting what constitutes a “reasonable belief,” it is recommended

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that courts apply the “objective” approach. That is, the actor’s own
opinion in regards to the reasonableness of his judgment does not exempt
him from heavier punishment if the victim does not reasonably appear to beeighteen or over to an average person with average judgment in the actor’ssituation. This approach reduces the chance of fraud and abuse of
discretion. Also, in considering whether such a belief is reasonable,
courts should look at a variety of factors, including (but not limited to)the apparent age of the victim, representations of age made verbally and by
documentation, etc.

Article 8This Article adopts the term “unlawful removal,” which differsfrom the LSKTEHP’s “kidnapping” language. The intent is to cast a
broader net by adopting a more open-ended term. This, of course, isconsistent with other changes adopted in this Law that express the
Cambodian Government’s resolution to fight trafficking and exploitationrelated crimes more strenuously.
Courts must be careful, however, not to apply this Article either inan overinclusive or underinclusive fashion. The Article uses many broad,unqualified terms such as “force” or “abuse of power,” and these terms
need to be more clearly defined for the appropriate application of the Law.
When interpreting these terms, courts may refer to the case law of Cambodia
and base their interpretation on it in such a way that enables courts toretain consistency and coherency throughout Cambodia’s criminal law
jurisprudence. The following is a guideline that courts may refer to.
Because provision 1 of the Article only mentions “current place ofresidence,” this underinclusive language might provide a loophole foroffenders. The American Model Penal Code’s definition of “kidnapping,”
addresses not only the victim’s “current place of residence,” but also
the victim’s “place of…business, substantial vicinity from the vicinity
where he or she is found.” Where, for instance, if a minor is removed fromhis school for hours before he is returned home later that day, a strictreading of this Article may fail to provide a basis for punishing such an
offense; however, the American Model Penal Code would definitely provide a8basis for punishment. In this context, courts should interpret the word
“place of residence” broadly to realize the spirit of the Law.
The word “force” has a danger of being interpreted bothoverinclusively and underinclusively. For example, courts should interpret“force” to exclude mental, psychological, or intellectual force at leastin cases involving adult victims. To interpret “force” too broadly as toinclude these kinds of forces would make the law vulnerable to attempts at
fraud and arbitrary line-drawing. On the other hand, when such forces areused against minor victims, courts may take a more flexible approach, sinceminors are more vulnerable to such forces. Doing so will be consistent withthe spirit of the law and the international standard urged by theConvention for Children. Thus, courts must be always mindful of theparticular context of each case and apply the law flexibly in a way thatbest achieves the overall purpose of the Law.
Another factor to consider in defining the term “force” is whether
resistance by a victim is required. In some jurisdictions, crimes requiring
an element of force (most notably rape) also require resistance by a victim
to prove that there was a use of force; in other jurisdictions, the trend
is to eliminate such a requirement based on empirical studies that somevictims “freeze” when offenders apply force. In the current context of“unlawful removal,” resistance should not be required to prove use offorce by the offender, since the purpose of this Law is to place strict
burdens on traffickers.
As for threat and deception, courts should consider it immaterial
whether a threat or deception by an actor is threatening or deceiving
enough to average persons. That is, as long as the actor intended to use
such a threat or deception to commit the action of unlawful removal or had
knowledge that his threat or deception would be highly likely to beeffective against the intended victim, the actor should be punished as hepossesses the requisite subjective mental culpability. Thus, for example,
if A threatens B, a mentally ill individual, by telling B that he is goingto do X to B, and if B is unlawfully removed as a result of the threat, it
is immaterial whether an average person thinks being done X onto himself isthreatening or not, as long as A knew that the threat is going to have aneffect on B.

9“Abuse of power” generally involves situations in which government
officials use their positions of authority inappropriately. The Law, readas a whole, displays a clear purpose to eradicate government corruption in
Cambodia related to human trafficking. Thus, courts should interpret theterm “abuse of power” broadly when government officials are involved intrafficking-related crimes.
“Enticement” is defined as “the act or an instance of wrongfully
soliciting or luring a person to do something.” Judges should use
discretion, according to the particular context of each case, indistinguishing legitimate offers for commercial opportunities from“wrongful” solicitation or allure combined with illegitimate purposes.
For instance, if A, an employer, offers B a legitimate job overseas, thisshould not be considered as a “wrongful removal by enticement” even if B
is removed by his place of residence by A’s solicitation, because A’s
solicitation is not “wrongful.”
The second provision deals with “taking a minor or a person undergeneral custody or curatorship or legal custody away from the legal custodyof the parents, care taker or guardian.” As a general principle ofcriminal law, the offender must have knowledge of the victim’s age to be
charged under this Provision. Here, the “reasonableness test” should
apply as in Article 7 – if a reasonable person in the actor’s circumstancewould believe that the victim was not a minor, courts should take this into
consideration. It should be noted that courts may deem consent obtained
from a minor or mentally incompetent person to be legally void. When thishappens, such consent cannot be used as a legal justification.
Note that this Article only serves a basis for crimes that combine
unlawful removal with other illegitimate purposes targeted below. This
Article does not prescribe any specific punishment against the offense of
unlawful removal itself.

Article 9This Article sets the baseline for punishment of unlawful removal
specified in the second provision of Article 8, and allows for mitigation10

or remittal of this punishment under specific circumstances and at the
court’s discretion. All three mitigating factors should be satisfied
before mitigation or remittal can be considered.
Among the three mitigating factors, the third mitigating factor
requires a special attention. It should be interpreted to mean that theoffender should not have any purpose to commit the offense of unlawful
removal itself, not some other trafficking-related activity done after
unlawful removal. For example, if A honestly believed that he was a legal
custodian of B, a minor, and thus took B under his custody away from C, whois the actual legal custodian of B, A may be deemed to satisfy thismitigating factor. However, the fact that an actor simply did not know thatunlawful removal was a crime (ignorance of law) should not mitigate thepunishment for the current Article’s purpose.
Mitigation or remission should be done with the intent to balance
justice, proportionality, and deterrence. Additionally, mitigation orremission is only available when the victim is not less than 15 years ofage (see Article 9, section 1). This shows the Law’s commitment tostringently punish those who target the young and vulnerable.

Article 10
This Article imposes sharply increased punishment for unlawful
removal done for the purpose of committing trafficking-related crimes. The
list of trafficking-related crimes is quite comprehensive, which shows
Cambodia’s commitment to fight human trafficking across the board. Under
this article, unlawful removal with the purpose to commit the crime issufficient to show guilt (i.e. the trafficking-related crimes listed do notneed to actually occur to punish the offender under this Article). Since
the punishment called for under this Article is severe, the term
“purpose” should be narrowly construed. To act with “purpose” thusmeans to act with “specific intent” to commit that crime.
For the definitions of the terms used in this Article, courts should
first refer to other provisions of this law, and if they are not foundwithin this law, to the definitions promulgated by relevant international

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organizations and conventions. If the specific activity that the actor
purported to commit does not fall directly in one of the categories
described in the Article, courts should exercise their discretion to decide
whether punishing the actor under this Article serves the overall policy
goal of suppressing human trafficking and sexual exploitation.
Also note that the list of actions that appears in the Article todescribe the terms “any form of exploitation” is not comprehensive. If
the actor had the purpose to exploit the victim in some other way that is
not listed, courts still may punish him under this Article when doing sofurthers the general policy of suppressing human trafficking.
The Trafficking Victims Protection Act of the United States contains
some useful definitions that courts may refer to. In the Act, the term“commercial sex act” is defined as “any sex act on account of whichanything of value is given to or received by any person;” “debt bondage”
as “the status or condition of a debtor arising from a pledge by the
debtor of his or her personal services or of those of a person under his or
her control as a security for debt, if the value of those services asreasonably assessed is not applied toward the liquidation of the debt or
the length and nature of those services are not respectively limited anddefined;” “Involuntary Servitude” as “a condition of servitude inducedby means of 1) any scheme, plan, or pattern intended to cause a person tobelieve that, if the person did not enter into or continue in suchcondition, that person or another person would suffer serious harm or
physical restraint; or 2) the abuse or threatened abuse of the legal
process.
This Article also describes three aggravating circumstances: thevictim is a minor; the offence is committed by a public official who abuses
his/her authority over the victim; or the offence is committed by anorganized group. More severe punishment is administered if any one of thesethree factors is satisfied. The list clearly indicates that the Law isdesigned with a focus on children, government corruption and organizedcrimes, according to international treaties to which Cambodia has committed
itself. The previous anti-trafficking law did not include government
corruption or organized crime as an aggravating circumstance. Also,
although the previous law designated an offense against a minor as one of12the aggravating circumstances, the threshold age was fifteen, rather thaneighteen as in this Law.
For the purpose of this Law, the term “government officials”
includes police officers and any other government employee using the power
or influence of their employment to further human trafficking and sexual
exploitation. Government officials are presumed to have abused theirauthority over the victim when they are complicit to the crime.
An “organized group” is defined in accordance with the United
Nations Convention Against Transnational Organized Crimes (UNTOC) Article
2(a) to mean “a structured group of three or more persons, existing for aperiod of time and acting in concert with the aim of committing one or more
serious crimes or offences…in order to obtain, directly or indirectly, afinancial or other material benefit.” A “serious crime” is in turndefined in accordance with Article 2(b) of UNTOC to mean “conduct
constituting an offence punishable by a maximum deprivation of liberty ofat least four years or a more serious penalty.”
Lastly, this Article addresses the issue of consent. The Article
states that “the consent of the victim to any of the intended purposes set
forth in paragraph 1 of this article shall be irrelevant where any of themeans set forth in Subparagraph (1) of Article 8 of this Law, i.e., force,threat, deception and enticement, is used. Under this Law, pursuant to
Article 8, there are two ways for a person to be a victim of unlawful
removal. This Article clearly indicates that when the victim is“unlawfully removed” due to the use of coercive or deceptive means,consent to a trafficking-related crime thereafter is irrelevant. Also, if
the consenter is a minor or mentally incompetent, courts may declare suchconsent legally irrelevant. The irrelevance of consent alludes to thesimilar provision in Article 3(b) of the Protocol.

13Article 11This Article addresses the issue of unlawful removal done with the
purpose of delivering or transferring the victim across state borders. Notethat it is intended to punish all unlawful removal with the purpose ofdelivering or transferring the victim across state borders regardless ofwhether the delivery or transfer is linked specifically with thetrafficking-related activities listed in Article 10. Note also that across-border transfer does not have to actually occur to punish theoffender under this Article – the only requirement is that the offenderunlawfully removes someone with the purpose of making a cross-bordertransfer. Thus, as in Article 10, courts may, in proper circumstances,consider the issue of renunciation by the offender.
One of the main differences of this Law from the LSKTEHP is its
focus on combating cross-border trafficking-related crimes. The rationale
for putting an emphasis on cross-border trafficking-related crimes is thatsuch crimes are much harder to combat due to its international nature andvictims are less likely to be rescued or able to practice effective selfhelp. Also, victims are likely to suffer more in an unfamiliar environment,
which provides moral justification for harsher punishment imposed on crossborder crimes as well.

Article 12
This Article is designed to punish a person who induces, hires or
employs another, by the use of deception, abuse of power, confinement,
force, threat or any coercive means, so that the person who is induced,
hired or employed can be exploited. “Any form of exploitation” as definedin Article 10 may include, but is not limited to, the exploitation of theprostitution of others, pornography, commercial sex act, forced labor orservices, slavery or practices similar to slavery, debt bondage,
involuntary servitude, child labor or the removal of organs. For thepresent purpose, and for the sake of consistency, courts should also
consider sexual aggression, marriage against will of the victim and14

adoption as forms of exploitation to the extent that they are applicable toa particular given context.
Courts should be mindful that this Article intends to punish the actof exploitation only when it is done by the person who induces, hires or
employs against the person who is induced, hired or employed. That is, theperson who is induced, hired or employed should also be the person who is
exploited for this Article to be applicable. Thus, if A hires, with the useof deception, B, and A and B together exploit C, a third person, this
Article is not applicable to punish either A or B. However, if A hires,with the use of deception, B, and A subsequently exploits B, A is
punishable under this Article.
Also, such inducement, hiring or employment must be accompanied by
the use of deception, abuse of power, confinement, force, threat or any
coercive means and with the purpose to exploit in order to be punishable
under this Article Thus, if A hires B without resorting to any of theillegitimate means listed here and/or any purpose to exploit, but later
starts exploiting B, A is not punishable under this Article.
Again, note that the act of exploitation does not need to actuallyoccur to be punishable under this Article. If the actor has induced, hiredor employed the victim by a coercive or deceptive mean with purpose to
exploit the victim or knowledge that the victim will be very likely to be
exploited, the actor can be punished under this Article even if the victim
is not actually exploited.
For the purpose of this Article, courts may interpret the term“coercion” to mean, according to the Trafficking Victims Protection Act
of the United States, threats of serious harm to or physical restraint
against any person; any scheme, plan, or pattern intended to cause a person
to believe that failure to perform an act would result in serious harm toor physical restraint against any person; or the abuse or threatened abuseof the legal process.

Article 1315

This Article speaks of unlawful delivery and receipt of the control
over a person. For the purpose of this Law, it is presumed that if deliveryor receipt of the control over a person is done with force, threat,
deception or enticement, that delivery or receipt is unlawful. However,even if the delivery or receipt of the control is done without force,threat, deception or enticement, this does not necessarily mean that it islawful. For instance, if A delivers the control of B, who voluntarily
sought an opportunity to work as a prostitute and asked A to connect her toa brothel, to C, a brothel owner, for commission, this transfer may bedeemed unlawful even in the absence of any force, threat, deception or
enticement. Thus, courts should use their discretions when judging whether
a particular delivery or receipt is unlawful, taking into account theparticular context in which delivery and receipt of the control over a
person arose.
Courts should interpret the phrase “anything of value” broadly ingeneral in correspondence to the spirit of this Law, but also with a degreeof flexibility according to circumstances of a particular case. For
instance, if A, a gang member, delivers the control over B, a sex worker,
to C, a brothel owner and gets in exchange information about the police
raid scheduled in near future, the information should be considered as“something of value.” The same information, however, would not be
qualified as something of value to someone who derives no benefit from it.
The word “control” shall be, again, interpreted broadly in general
to correspond to the spirit of the Law. However, the meaning of the word
should not be extended to include, for example, “psychological” or“mental” control over a victim. At the same time, it should not belimited to cases where a physical body of a victim is manually handed overfrom A to B. For instance, if A tells B, a sex worker, to go and wait infront of the station X, and A also tells C, a brothel owner, to pick up B
at the station X, delivery and receipt of the control over a person haveoccurred. Another example of delivery and receipt of the control over a
person that does not involve a physical hand-over would be a transfer ofrights to control, e.g., a contract document. If A, the owner of brothel X,
transfers the contract document that binds B, a sex-worker, to work for A
for certain duration, to C, the owner of brothel Y, courts should use their16

discretion and consider this as delivery and receipt of the control over a
person.
For the definition of the act of “procuring”, see the commentaryfor Article 25.

Article 14
It is in fact difficult to imagine a case where a person is sold,bought, or exchanged without the purposes listed in Article 15. Thus, this
Article should be used as a “fall-back provision” of last resort, in casecourts fail to prove the purpose listed in Article 15 for whatever reason.

Article 15
The structure of Article 15 duplicates the structure of Article 10.
See the commentary for Article 10 for the guidance.

Article 16
The structure of Article 16 duplicates the structure of Article 11.
See the commentary for Article 11 for the guidance.

Article 17
Article 17 is designed to punish a person who transports, for the
purpose of profit making, sexual aggression, production of pornography,
marriage against will of the victim, adoption, or any form of exploitation,
another person who has been unlawfully removed, recruited, sold, bought,
exchanged or transported. To be punishable under this Article, thetransporter is required to have knowledge that the person or persons he or
she transports have been unlawfully removed, recruited, sold, bought,
exchanged or transported. Thus, although A, a transporter, transports B for17

the purpose of exploitation, if A has no knowledge of B being unlawfully
removed, A is not punishable under this Article.
For the correct interpretation of this Article, it is important tounderstand that the phrase “for the purpose of profit making…or any formof exploitation” modifies the verb “transport” rather than the phrase“unlawfully removed, recruited, sold, bought, exchanged or transported.”Thus, the person being transported does not have to have been unlawfully
removed, recruited, sold, bought, exchanged or transported for the purposeof profit making, sexual aggression, production of pornography, marriage
against will of the victim, adoption or any form of exploitation for this
Article to be applicable. For example, if B, a victim of a simple unlawful
removal that is not combined with the purpose to commit any further crimeis transported by A with knowledge or purpose to exploit B thereupon, A is
still punishable under this Article.
Although transporting a minor is not an aggravating circumstance inthis Article, it is recommended, according to the spirit of this Law and
the Convention on the Rights of the Children, that if a transportertransports a minor who has been unlawfully removed for any of thetrafficking-related activities listed in this Article, knowing that thevictim is a minor who has been unlawfully removed for such purposes, thetransporter shall receive the maximum sentence of fifteen years for the
non-aggravated offense. This recommendation shall apply to Article 18 as
well.

Article 18
This Article addresses the issue of cross-border transportation.
Under this Article, a transporter shall be punishable for transporting
cross-border anyone who has been unlawfully removed, recruited, sold,bought, exchanged or transported even when such unlawful activities aredone without the purpose of committing any of the trafficking-related
activities listed in Article 17. The rationale for punishing cross-bordercrimes, as mentioned in the commentary for Article 11, applies here as
well, and thus a person who is responsible for cross-border transportation18

is punished, even without the “purpose” requirement, as severely as theoffenders under Article 17.
In general, the transport provisions (Articles 11, 16, 17, and 18)
should be used to punish human traffickers and not against victims orothers seeking to assist victims or asylums. These provisions should not be
used as a mechanism for punishing illegal immigration. They should not be
construed to punish individuals who give aid to illegal immigrants, unlessthey are also guilty of trafficking and exploitation as described herein.

Article 19
This Article basically follows the structure of Article 17. However,there are two things to be noted with caution. First, although the Article
does not explicitly require an actor’s knowledge, it should be interpreted
to require an actor’s knowledge nonetheless, in a way that is consistent
with Article 17 and 18.
Second, the actor’s action of receipt, harboring or concealing must
be in furtherance of trafficking-related activities listed in this Article
to be punishable under this Article. Thus, if A receives B, a trafficking
victim, to his house and harbors B to save her from a pimp, A should not bepunished under this Article since A’s act is not in furtherance of any of
the trafficking-related activities listed in this Article. The purpose ofthis provision is to punish aiders and abettors of human trafficking andsexual exploitation. Any other application of this provision is invalid.

Article 20
This Article, like Article 19, also deals with the issue of
receiving, harboring or concealing a victim of unlawful removal,
recruitment, sale, buying, exchange or transportation. Note that the rangeof punishment stipulated in this Article is substantially lower compared to
Article 19. This is so because this Article only governs cases of unlawful

19

removal, recruitment, sale, buying, exchange or transportation that are not
combined with the purpose to commit trafficking-related activities.
As in Article 19, an actor should be aware that a person hereceives, harbors or conceals has been unlawfully removed. It is also
important to note that according to Article 5 and Article 6, courts have an
authority to impose both imprisonment and a fine simultaneously under this
Article. As noted in Article 4, an act of aiding or abetting after an
offense has been committed should be distinguished from an act of aiding or
abetting before or at the moment of the offense, and therefore this Article
prescribes less punishment for receiving, harboring or concealing than thepunishment for unlawful removal with purpose.
Lastly, it is recommended that if the offence described in this
Article is committed by a public official who abuses his/her authority overthe victim or by an organized group, courts imposes the maximum sentence of
5 years for the non-aggravated crime.

Article 21
Article 21 creates two separate degrees of the same crime. The
threshold time is one month, which should be defined as “calendar month,”i.e., from a certain date of one month to the same date of the next month.
When courts consider sentencing, they should consider mitigation if thevictim is returned voluntarily by the offender at a safe place with no harm
having been done. This is to promote the safe return of the victim.
.
Article 22
Article 22 prescribes
described in Article 21.

aggravating

circumstances

for

the

crime

The term “torture” of Subparagraph (1) should be interpreted inaccordance with Article 1 of the Convention against Torture to mean “anyact by which severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for such purposes as obtaining from him
20

or a third person information or a confession, punishing him for an act heor a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by orat the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does notinclude pain or suffering arising only from, inherent in or incidental tolawful sanctions.”
Courts should exert their discretions to define the term “barbarousacts.” In general, it is recommended that the term is interpreted to meanacts that undermines the basic human rights and dignity, defined consistent
with the international standard.
Death of the victim is only an aggravating circumstance when thedeath is a result of the confinement, not merely when death follows
confinement chronologically. Lastly, a “ransom” should be interpreted
broadly to include not just monetary payment, but also anything that can beof substantial value to the offender, as in Article 13.

Article 23
This Article sets forth the definition of prostitution and childprostitution. Prostitution means having sexual intercourse or other sexual
conduct of any kind with an unspecified person in exchange for anything ofvalue. “Unspecified person” in this Article applies to prostitutes aswell as police decoys.
Sexual intercourse or otherheterosexual and homosexual activities.

sexualconduct

includesboth“Other sexual conduct” in this Article and other Articles includes
but is not limited to(1) aggravated sexual conduct, which means inserting, other than fora valid medical purpose, a foreign object in the vagina, urethra, penis or
rectum of a person, thereby causing physical injury to such person;21

(2) oral sexual conduct, which means conduct between persons
consisting of contact between the mouth and the penis, the mouth and theanus, or the mouth and the vulva or vagina;(3) anal sexual conduct, which means conductconsisting of contact between the penis and anus, or

betweenpersons(4) indecent act as defined in this Commentary of Article 43.
“ Foreign object” means any instrument or article which, wheninserted in the vagina, urethra, penis or rectum, is capable of causing
physical injury.
Child prostitution means a minor’s act of having sexual intercourse
or other sexual conduct with another person in exchange for anything ofvalue.

Article 24
This Article sets forth the punishment for an actor who solicits
another in public to prostitute himself or herself. An actor has towillingly solicit another in public in order to be subjected to thepunishment. An actor willingly solicits another when he or she purposefully
and voluntarily does so. In other words, if A is forced or coerced tosolicit another person for the purpose of prostituting himself or herself,
A should not be punished under this Article. If A willingly solicitedanother in a private place for the purpose of prostituting herself, A
should not be punished under this Article.
“ Public place” in this Article and other Articles in this Law
means (a) any place to which the public or any substantial group thereof
has access, or (b) any place within the view or hearing of a person who isin a place as defined in (a).
The punishment for soliciting prostitution is punished less severely
than procurement of prostitution or management of prostitution because thelatter tends to foster sexual exploitation and human trafficking in a moreforceful way than the former does and is therefore more blameworthy.
22

A minor is exempted from punishment under this Article in order toimplement the Law’s goal to protect minors. It is consistent with thespirit of the the Convention for Children.

Article 25
This Article sets forth the definition of procuring prostitution.
For analytical clarity, Paragraph 1 divides the cases into four categories.
Subsection (1) covers the cases where the actor derives a financial
profit from the prostitution of others. In order to do so, he or she has toact other than as a prostitute receiving compensation for personallyrendered prostitution services. For example, an owner of a brothel isdrawing a financial profit from the prostitution of the brothel’s
prostitutes. An intermediary who gets a commission from the prostitute’s
prostitution service is drawing a financial profit from the prostitution ofothers. But a prostitute who gets paid by his/her client is not subjectedto the punishment in this Subsection. Financial profit means anything ofvalue to the actor who derives such profit.
In order for an actor to be covered by this Subsection, he or she
must act purposefully with regard to the prostitution of others from which
he or she draws a financial benefit. For example, a brothel’s cashier who
receives a salary from the brothel and does not have the purpose that theprostitutes in the brothel engage in prostitution should not be punishedunder this Subsection.
Subsection (2) covers the cases where the actor assists or protects
the prostitution of others. For example, if A introduced a prostitute B toa customer C for the purpose that B prostitute herself to C, A would be
assisting the prostitution of B. If a manager of a brothel hired security
guards to protect prostitutes in the brothel from harassment, the manager
would be protecting prostitution of others. If A informed a brothel ownerof an upcoming police raid so that the owner can cover up the prostitution
in the brothel, A would be protecting prostitution of others.

23This Subsection requires that actors act with the purpose of
assisting and protecting others’ prostitution. For example, the fact thata prostitute’s parents cooked meals for her by itself does not establishthat they assisted her prostitution. Similarly, the fact that a police
officer stopped a patron of a prostitute from assaulting the prostitute hepatronized by itself does not establish that the police officer protected
the prostitute’s prostitution.
Subsection (3) covers the cases where the actor recruits, induces ortrains a person with a view to practice prostitution. For example, if A
asked B to work for A’s brothel for a monthly pay of 300 dollars, A’s act
would constitute recruitment with a view to practice prostitution. If A
taught B how to work in a brothel and deal with prostitution patrons, A’s
act would constitute training with a view to practice prostitution. If A
induces B to work in A’s brothel as a prostitute by offering money to B,
A’s act of inducement is procurement of prostitution. In order to becovered by this Subsection, an actor has to have the purpose for anotherperson to practice prostitution in his or her act of recruiting, inducement
or training.
Subsection (4) covers the cases where the actor pressures a person
to become a prostitute. The nature of the pressure and the means throughwhich an actor exercises pressure should be considered in determining
whether a case is covered by this Subsection.
In order to be covered by this Subsection, a person must haveexercised pressure upon another person for the purpose of the latterbecoming a prostitute. For example, if a parent did not work to provide forhis family, his/her failure to work by itself did not constitute exercisingpressure upon his/her child to become a prostitute to support the family.
In contemplation of Article 27’s heightened punishment for violenceor coercion in the procurement of prostitution, “pressure” in this
Article means something other than physical force, pressure or restraint.
It includes financial or psychological pressure. For example, if A
threatened to withdraw support from his daughter B if B did not prostituteherself, A would have exercised pressure upon B to become a prostitute. The
court should exercise discretion and refer to the Commentary of Article 7

24

regarding the definition of “force” in judging what constitutes pressurein this Article.
It does not require that an actor who exercises pressure either knowor believe the person who is pressured was not a prostitute before. Whether
or not the person who was pressured yielded or consented to that pressure
should be immaterial to the charge of procurement of prostitution under
this Subsection. The mental culpability of the actor who exercised pressureis the key to the offense set forth in this Subsection. (CA Law)
Paragraph 2 sets forth three types of acts that are equivalent tothe act of procuring prostitution.
Subsection (1) covers the cases where the actor serves as anintermediary. In order to be covered by this Subsection, the person who
serves as an intermediary must have a purpose that his actions as anintermediary would promote or facilitate prostitution as a result of theassociation between the person who engages in prostitution and the person
who exploits or remunerates the prostitution of others.
For example, if A introduces B to C for the purpose that B pay C toengage in sexual activities, A’s act of introduction is covered by thisSubsection. If B is a prostitute, C runs a brothel, and A introduces B to C
in the hope that B can work at C’s brothel, A’s act of introduction iscovered by this Subsection because C is a person who exploits or
remunerates the prostitutions of others. If B is a prostitute, C runs abrothel and A introduces B to C knowing that C might be willing to hire B
as C’s babysitter, A’s act as intermediary is not covered by thisSubsection.
Subsection (2) covers the cases where the actor covers up or
facilitates the covering up of resources knowing that such resources wereobtained from procurement of prostitution.
A person facilitates or covers up resources knowing that such
resources were obtained from procurement of prostitution when:
1. Knowing that the property involved in one or more financialtransactions represents the proceeds of procurement of prostitution,25

he or she conducts one or more such financial transactions which infact involve the proceeds of specified procurement of prostitution:a) With intent to promote the carrying on of procurement of
prostitution; orb) Knowing that the transaction or transactions in whole or inpart are designed to conceal or disguise the nature, thelocation, the source, the ownership or the control of theproceeds of procurement of prostitution; or
2. Knowing that one or more monetary instruments represent the proceeds
of procurement of prostitution, he or she transports, transmits, ortransfers or attempts to transport, transmit or transfer, on one ormore occasions monetary instruments which in fact represent theproceeds of specified procurement of prostitution from a place toanothera) With intent to promote the carrying on of procurement of
prostitution; orb) Knowing that such transportation, transmittal or transfer isdesigned in whole or in part to conceal or disguise the nature,
the location, the source, the ownership, or the control of theproceeds of procurement of prostitution
3. He or she conducts one or more financial transactions involving
property represented to be the proceeds of specified procurement of
prostitution, or represented to be property used to conduct or
facilitate specified procurement of prostitution with intent toa) Promote the carrying on of specified procurement of
prostitution; orb) Conceal or disguise the nature, the location, the source, theownership or the control of property believed to be theproceeds of specified criminal conduct.
Proceeds of procurement of prostitution are not limited to cash ormoney, but includes anything that results or accrues from the procurement.
“ Monetary instrument” in this Article means coin and currency of
Cambodia or of any other country; personal checks; bank checks; traveler's
checks; money orders; and investment securities and negotiable instruments,
in bearer form or otherwise, in such form that title thereto passes on

26

delivery, except that “monetary instrument” shall not include payments to
attorneys for legal services. (NY Penal Law 470)
“ Financial transaction” in this Article means a transaction
involving:(a) the movement of funds by wire or other means; or(b) one or more monetary instruments; or(c) the transfer of title to any real property, vehicle, vessel oraircraft; or(d) the use of a financial institution.
“Represented” in this Article means any representation made by alaw enforcement officer, or by another person at the direction of, or withthe approval of, such law enforcement officer.
“Law enforcement officer” in this Article means any public servant
who is authorized to conduct an investigation, prosecute or make an arrestfor a criminal offense.
This Subsection echoes Article 6 of United Nations Convention
against Transnational Organized Crime (UNTOC), which urges the party statesto criminalize the laundering of proceeds of crime. Subsection 1a(ii) of
UNTOC Article 6 covers concealment and disguise of the proceeds from crime.
Similarly, this Subsection covers the cases where the actor covers up
resources knowing that such resources were obtained from procurement.
Subsection (3) covers the cases where the actor hinders the effort
of a public agency or a private organization for the benefit of persons
engaging in prostitution or being in danger of prostitution. Such effort is
specified as the act of prevention, assistance or re-education.
In order to be covered by this Subsection, a person who hinders theeffort of a public agency or a private organization has to have the purpose
to facilitate or promote prostitution. Any act that incidentally hinders
the act of prevention, assistance or re-education for the benefit of
persons engaging in prostitution or being in danger of prostitution by27

itself, without the requisite mental state, does not constitute procurementof prostitution under this Subsection.

Article 26
This Article sets forth the punishment for a person who commits
procurement of prostitution as defined in Article 25.

Article 27
The Article sets forth heightened punishment for five types ofaggravated procurement of prostitution. A person who commits one of thefive types of aggravated procurement of prostitution shall be punished withimprisonment for 5 to 10 years rather than 2 to 5 years as set forth in
Article 26.
Subsection (1) covers the cases where the actor procuresprostitution of his or her ascendant or descendant.
It is immaterial
whether the procurer is a legitimate or illegitimate, natural or adoptive
ascendant or descendant of the prostitute.
Subsection (2) further specifies that a procurer who abuses his or
her authority over the prostitute commits aggravated procurement of
prostitution. It applies to the cases where government officials abuse
their authority over prostitution victims.
Subsection (3) heightens the punishment for a procurer of
prostitution who uses violence or coercion against the prostitute. For
example, if A as a brothel owner beats up prostitutes who work for his
brothel if they are not willing to serve certain clients, A’s use ofviolence will be covered by this Subsection. If A as a brothel ownerthreatens to rape or kill prostitutes working for his brothel if they do
not comply with A’s orders, A’s coercion against the prostitutes iscovered under this Subsection.

28

In contemplation of Article 25 which punishes actors who induce or
exercise pressure upon another person to practice prostitution, coercion inthis Subsection means a threat, express or implied, which places a person
in reasonable fear of immediate death, physical injury or rape to himself,
herself or another person, or in reasonable fear that he, she or anotherperson will immediately be kidnapped. (NY Penal Law 130.05) Economic or
mental pressure alone do not constitute coercion. For example, if a brothel
owner A threatened to imprison a prostitute if the prostitute does notserve certain clients, A would be using coercion against the prostitute.
Subsection (4) and (5) heightens the punishment for procurement of
prostitution that is committed by an organized group or by several persons.
They echo the purpose of UNTOC to prevent and combat transnationalorganized crime. In order to be covered by Subsection (4) and (5), an
organized group or several persons have to have a common purpose or
knowledge in procuring prostitution. Mere involvement of more than one
person in procurement of prostitution without the requisite mental state is
not within contemplation of Subsection (4) or (5). For example, if A wrote
a letter to ask B to work for A’s brothel, and C delivered the letter to B
without knowledge of the letter’s content, the recruitment of B wascommitted by A himself rather than several persons.

Article 28
This Article sets forth the punishment
prostitution when the prostitute is a minor.

for

procurementof

Article 29
This Article heightens the punishment for procurement of prostitution when
the procurer used torture or barbarous act to commit such offense. Tortureand barbarous act is defined in Article 1 of the Convention against Torture
as explained in Article 22 of this commentary.

29

Article 30
This Article covers the cases where the actor is directly or throughan intermediary involved in the management, exploitation, operation or
financing of an establishment of prostitution. Actors covered under this
Article will be punished with imprisonment for 2 to 5 years.
For example, if A lets his brother B run a brothel for A, both A and
B are involved in the management of an establishment of prostitution. If A
uses part of the proceeds from a brothel to fund his real estate business,he will be exploiting an establishment of prostitution. If A makes loans toa brothel, A will be financing an establishment of prostitution.

Article 31
This Article sets forth the punishment for an actor who manages anestablishment and accepts or tolerates prostitution associated with theestablishment or its annexes. Subsection (1) covers the cases where theactor who manages an establishment accepts or tolerates another person’s
prostitution inside the establishment or its annexes. Subsection (2) covers
the case where the actor who manages an establishment accepts or tolerates
that another person seeks clients with a view to do prostitution inside theestablishment or its annexes.
To be subjected to punishment under this Article, the actor must
know that the other person 1) engages in prostitution or seeks clients witha view to do prostitution 2) inside the establishment or its annexes 3)that is under the actor’s management. For example, if a landlord A does
not know his tenant B engages in prostitution in A’s building, A is not
subject to punishment under this Article.

Article 32
This Article sets forth the punishment for an actor who sells or
makes available to another person premises not utilized by the public withthe knowledge that that person will use such premises for prostitution. For30

example, if A sells or rents an apartment to B, knowing that B is a
prostitute and will practice prostitution inside the apartment, A will bepunished by imprisonment of 2 to 5 years under this Article.
Article 33
This Article heightens the punishment for the acts covered under
Article 30, 31 and 32 when they are committed with regard to childprostitution. The definition of child prostitution is provided in Article
23. For example, if A manages an establishment of prostitution where childprostitution is practiced, A’s act of management comes under this Article.
If A as a landlord tolerates child prostitution in his apartment, his actof toleration will also be covered by this Article.

Article 34
This Article sets forth the punishment for purchase of childprostitution.
Paragraph 1 defines the purchase of child prostitution as the act of
having sexual intercourse or other sexual conduct with a minor who is 15
years of age or above by providing, or promising to provide anything ofvalue to the minor, an intermediary, a parent, a guardian or any otherperson who keeps the child under his or her supervision or control.
For example, if A had sex with a minor by paying an intermediary B
who had supervision or control over the minor, A would have committed thepurchase of child prostitution. If A had sex with a minor by promising to
pay the minor’s guardian, A would have committed the purchase of childprostitution. If A committed an indecent act with a minor by promising towork for the minor’s parents for a week, A would have committed purchaseof child prostitution because he provided something of value to theminor’s guardians.
Paragraph 2 heightens the punishment for the actor who commits
purchase of child prostitution by having sexual intercourse or other sexual
conduct with a minor under the age of 15 years.

31This Article along with Article 28 and Article 33 evidences thisLaw’s strong commitment to suppressing child prostitution and enforcing
the Protocol.

Article 35
This Article covers the cases where the actor solicits another forchild prostitution or advertises child prostitution, for the purpose ofacting as intermediary of the child prostitution. For example, if A
solicits B for child prostitution in order to act as the intermediary of
B’s prostitution, A’s act of solicitation is covered under this Article.
Paragraph 2 heightens punishment for the actor who commits theoffense set forth in Paragraph 1 as a business. An actor solicits anotherfor child prostitution or advertises as a business when he or she does sowith the purpose to derive benefit from such solicitation or advertising ina recurring pattern. For example, if A solicits B for child prostitution
and holds himself out as an agency that specializes in the business of
being an intermediary for prostitution, A shall be punished withimprisonment for 5 to 10 years.

Article 36
This Article sets forth punishment for the actor who provides amoney loan or anything of value to another person on the condition that aminor engage in child prostitution. “Anything of value” should beinterpreted broadly in order to cover all forms of conditional payment oroffering in connection with child prostitution.2 For example, if A provides
a television to B on the condition that B’s minor daughter prostituteherself, A will be punished with imprisonment for 5 to 10 years. If A
offers to work for B for a month on the condition that B’s minor daughter
prostitute herself, A is also covered under this Article and should be
imprisoned for 5 to 10 years. It is immaterial whether the minor actuallyengaged in child prostitution as a result of the actor’s loan or payment.
2

See Article 13, Infra.
32

It is also immaterial whether the person who was provided with money loan
or anything of value accepted the loan or the thing of value.
Paragraph 2 complements Paragraph 1 by covering cases where theactor provides something of value to a minor on the condition that theminor engages in prostitution. For example, if A provides candy to a minor
on the condition that the minor prostitute himself or herself, A’s act
will be covered by this Paragraph.

Article 37
Paragraph 1 covers the cases where the actor makes a contract,
verbal or written, with another in which a minor is obliged to engage inchild prostitution business. Paragraph 2 covers the cases where the actor
makes a contract with a minor in which the minor is obliged to engage inchild prostitution business. For example, if A makes a contract with B in
which B’s minor daughters are obliged to engage in prostitution business,
A and B should be punished with imprisonment for 5 years to 10 years underParagraph 1. If A makes a contract with C, who is a minor, for C to engage
in prostitution business, A will be punished with imprisonment for 5 to 10
years under Paragraph 2.
The “contracts” mentioned here and in Article 45 are contracts inname only. Any agreement, verbal or written, to commit an illegal activity(including any form of human trafficking or sexual exploitation) is invalid
and unenforceable per se.

Article 38
This Article sets forth the definition of pornography. A piece ofmaterial is pornography if (a) a reasonable person, applying contemporarycommunity standards, would find that considered as a whole, its predominantappeal is to the prurient interest in sex, and (b) it depicts or describes
actual or simulated: sexual intercourse, sexual bestiality, masturbation,sadism, masochism, excretion, lewd exhibition of the genitals and other33

sexual act or performance, and (c) considered as a whole, it lacks serious
literary, artistic, political, and scientific value. Material means
anything tangible which is capable of being used or adapted to arouseprurient interest through the medium of reading or observation.

Article 39
The purpose of this article is to shield the public from unwanted
displays of offensive pornographic images.
This Article sets forth punishment for the actor who distributes orpromotes pornography in a public place.
Paragraph 1 sets forth the punishment for the actor who distributes,
sells, leases, displays, projects or presents pornography in a public
place.
In order to be covered by this Article, the actor has to haveknowledge that 1) the material he distributes, sells, leases, displays,
projects or presents is pornography and 2) the place where such acts takeplace is a public place, or a reasonable person in the actor’s position
should have acquired such knowledge.
For example, if a vendor sells a magazine on the street without
knowledge that it contains one page of pornography, he or she is not
subjected to punishment under this Paragraph.
An actor sells or leases pornography in a public place when he or
she sells or leases pornography in such a way that the public or asubstantial group thereof will be or should be reasonably aware of the saleor lease or can take advantage of the sale or lease as a service. For
example, if A exchanged pornography with B for money in a public place in astealthy way without letting anyone around them know about it, A’s sale ofpornography is not covered by this Paragraph. If A opens a pornography
video store on Main Street to which the public has access, he is selling
pornography in a public place.

34

Paragraph 2 sets forth the punishment for an actor who possesses,
transports, imports, or exports pornography for the purpose of use incommission of the offense set forth in Paragraph 1. In order for an actor
to be punished under this Paragraph, he or she must know or should have
known that what he possesses, transports, imports or exports is pornography
and will be used in the manner described in paragraph 1.
An actor who possesses pornography for the purpose of use incommission of the offense set forth in Paragraph 1 in another jurisdiction,even if such act as set forth in Paragraph 1 is not an offense in thatjurisdiction, is punishable under this Paragraph. Similarly, one who
possesses pornography in another jurisdiction for the purpose of use in thecommission of the offense set forth in Paragraph 1 in this jurisdiction ispunishable under this Paragraph.
Paragraph 3 heightens the punishment of an actor who produces
pornography for the purpose of use in the commission of any offense
stipulated in Paragraphs 1 and 2. An actor produces pornography if he or
she is primarily responsible for the production of pornography.
The penalties ascribed in paragraph 1 apply even if the pornography
is distributed free of charge.

Article 40
This Article sets forth the definition of child pornography. Child
pornography is a piece of material that 1) is within the definition of
Article 38 and 2) has a minor as one of the participants in the act ofsexual intercourse, sexual bestiality, masturbation, sadism, masochism,
excretion, lewd exhibition of the genitals and other sexual acts or
performances.
Article 41
This Article parallels the structure of Article 39, except that
Paragraph 3 sets forth the punishment for an actor who produces childpornography. In order to be covered by this Paragraph, an actor must have35the knowledge that what he distributes, sells, leases, displays, projects,presents, possesses, transports, imports, exports or produces is childpornography. For example, if a person accidentally inserts a picture ofchild pornography into his or her book, he or she is not producing
pornography. It is not necessary for an actor to be covered by thisParagraph that he or she has the purpose to commit an offense in Paragraph
1 and 2.

Article 42
This Article sets forth the punishment for an actor who has sexualintercourse with another person of the age of less than fifteen years.
Sexual intercourse in this Article means(1) sexual intercourse in its ordinary meaning, which occurs on any
penetration;(2) anal sexual conduct, oral sexual conduct and aggravated sexual
conduct as discussed in the commentary for Article 23.

Article 43
This Article stipulates that an actor who commits an indecent act
against another person of the age of less than 15 years shall be punishedwith imprisonment for 1 to 3 years and a fine of 2,000,000 to 6,000,000
riels.
“ Sexual part” in this Article means intimate part of a person’s
body. “Touching” in this Article includes both direct touching andtouching through clothing.
This article doubles the penalty for repeat offenders, i.e. if aperson convicted under this provision is later convicted under the sameprovision (or if one is convicted of multiple counts under the sameprovision), that person should be punished with imprisonment for 2 to 6
years and a fine of 4,000,000 to 12,000,000 riels.
36Article 44
This Article exempts a person under the age of 15 years frompunishment of the offenses stipulated in Article 42 and 43.

Article 45
This article nullifies any agreement to traffic or exploit persons
for forced labor, sexual servitude, or any other purpose. The language inthis article is intentionally broad and is meant to invalidate any
agreement across the spectrum of trafficking, including every offense
mentioned in the entirety of this statute. Any agreement purposed to commit
any of these offenses is null, void, and unenforceable by any party to theagreement.
The second paragraph of this article stipulates that a loan made inconnection with trafficking and exploitation is unenforceable. Any loan
made in connection with these offenses is invalid per se, regardless ofwhether the lender was a private individual or a financial institution. The
purpose of this provision is to encourage lenders to verify that loans theydisperse are not used to finance trafficking or sexual exploitation.
The “contracts” mentioned here and in Article 37 should beinterpreted broadly. Any agreement, verbal or written, to commit an illegal
activity (including any form of human trafficking or sexual exploitation)is invalid and unenforceable per se.

Article 46
This article attempts to prevent individuals from profiting fromhuman trafficking and sexual exploitation. It requires full restitution ofany enrichment derived from sexual exploitation or human trafficking. It is
designed to remove financial incentives to human trafficking andexploitation and as such this provision requires anyone who knowingly
profits from human trafficking or sexual exploitation (other than victimsof those crimes) to restore all profits to the victims. Accrued interests
37

should be calculated by the court, and should be adjusted for inflation.
This article does not cover cases where one is enriched but is unaware of
the source of the enrichment.
The third paragraph of this article explains that if one agrees toloan money for the purpose of furthering human trafficking or sexual
exploitation, that person may not legally enforce repayment of the loan.
The purpose of this provision is to discourage lenders from funding
trafficking and exploitation.
This provision should not be used to deprive victims of trafficking
and exploitation of any funds they receive from their victimization.
Article 47
This article gives victims the right to claim property confiscatedin connection with their victimization as compensation and restitution. The
purpose of this provision is to provide a mechanism for partiallycompensating victims.
The term “property” shall be defined in accordance with Article
2(d) of the UNTOC to mean “assets of every kind, whether corporeal orincorporeal, movable or immovable, tangible or intangible, and legal
documents or instruments evidencing title to, or interest in, such
assets.”For the purposes of this statute, “confiscation” shall be definedin accordance with Article 2(g) of the UNTOC to mean “the permanent
deprivation of property by order of a court or other competent authority”
and to “include forfeiture where applicable.”

Article 48
The purpose of this provision is to provide courts with more tools
to deter human trafficking and sexual exploitation. This article allows forconfiscation of property related to offenses covered in this Law, forced
closures of implicated businesses, restriction of civil rights, andrestrictions on mobility. These penalties should be used at the court’s
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discretion and should only be applied to perpetrators of these crimes, andnot their victims. This provision is not intended to be used to confiscate
property not belonging to the perpetrators of the crimes.
This article differs from the confiscation provisions of the
LSKTEHP, which stated that any property used in connection with the offense
would be confiscated for the government. The purpose of the change is topoint out that confiscation is optional (a tool used at the court’s
discretion to enhance justice and equity) and articles confiscated do notnecessarily become government property (e.g., they may be returned torightful owners, or used to compensate victims as per Article 47 of thisstatute).
The additional penalty mentioned in section 6 is not intended to be
used against victims of trafficking or exploitation.

Article 49
The purpose of this article is to shield victims of trafficking andexploitation from unnecessary embarrassment and ostracization and toencourage them to cooperate with investigations and prosecutions against
perpetrators of human trafficking and sexual exploitation.
This Article provides that mass media shall not publish, broadcast
or disseminate any information which can lead to public knowledge ofidentities of victims in the offenses stipulated in this Law. This Article
is consistent with the Law’s overall objective to protect victims of sex
exploitation and human trafficking offenses. In order not to suppress
press’ freedom to publish or disseminate legitimate information, only
information that can reasonably lead to public knowledge of identities ofvictims shall not be published, broadcasted or disseminated.

Article 50

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If provisions of this statute conflict with a treaty or convention,
the latter shall prevail, as per Cambodia’s Constitutional Council’s July
2007 decision.

Article 51:
This provision refers to the penal code that is currently (as ofJuly 15, 2008) being drafted, and not the provisional penal code that wasin place at the time of this Law’s promulgation.

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