English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
Article 67 of the Marriage and Family Law strictly forbids the abuse of child adoption for
labour exploitation, sexual abuse, trafficking in children and other purposes. Article 105 of the
Marriage and Family Law also states that this prohibition applies to child adoption involving a
foreign element. The Decree No. 68/2002/ND-CP of July 20, 2002 on Marriage and Family
Relationships with Foreign Elements prohibits the use of marriage and adoption as covers for
the trafficking in, exploitation and sexual abuse of women and children for material gain. There
are no specific provisions prohibiting a mail-order bride system.
Indeed, many aspects of trafficking are covered by Vietnamese laws already. However,
in many cases, these offences may be committed outside of the country’s jurisdiction, so prosecution
is difficult; for example, crimes against Vietnamese women and children relating to
prostitution, murder, ill-treatment and sexual assault as mostly committed abroad. A clear definition
of the offence of ‘trafficking’ will ensure that all acts that may be part of the process of
trafficking are covered, prohibited and penalized by Vietnamese law; and, hence, allow interventions
to be more reflective of the real situation of trafficking.
Recommendation: It is recommended that a definition of ‘trafficking’ be provided
in law. The definition must be consistent with Article 3 of the Trafficking Protocol. In
particular, the definition must include the various acts that may constitute trafficking
(that is, recruitment, transportation, transfer, harbouring and receipt), the means used
(that is, threats, use of force, coercion, abduction, fraud, deception, or abuse of power
or position of vulnerability) and the various forms of exploitation (for example, the
exploitation of prostitution of others or other forms of sexual exploitation, forced labour
or services, slavery or practices similar to slavery, servitude, or the removal of organs).
In relation to Article 119 of the Penal Code, the definition of ‘trafficking’ recommended
above is sufficient. However, as to Article 120 of the Penal Code, an additional
provision on trafficking in children is necessary as the provision does not encompass
‘trafficking in children’.
Consideration should also be given to supplementing the circumstances that
aggravate trafficking in women and children. Among the circumstances that must
aggravate it are when: (a) trafficking is effected through adoption; (b) the offender is an
ascendant, descendant, parent, sibling, guardian or a person exercising authority over
the victim; (c) the trafficking victim dies or is severely injured; (d) when the trafficking
victim becomes infected with HIV.
It is also recommended that explicit stipulation must be made that the police, border
guards, medical practitioners, procurators, the courts, social workers and other
personnel who deal with trafficked victims, especially in key localities, must receive
specialized training and assistance in handling trafficking cases and its victims.
153
Indicator 38
Are trafficked women penalized
Under Vietnamese laws, trafficked persons are generally treated as victims rather than
as criminals. Those who are involved in certain violations as a direct consequence of their situation
as trafficked persons may be subject to certain liabilities, but this is mainly to ensure
their reintegration into the society rather than to punish them. 316 Nevertheless, the absence of
Trafficking and exploitation of prostitution (Article 6 of CEDAW)