The proportionality of the absence of punishment for the exploitation of migrant women

• In Event: Crime, Science and Politics WG Panel 1. Criminal Policy legitimation

Abstract

Could the principle of criminal proportionality be used to determine a minimum punishment for the most serious offenses? The question is posed by the situation of sexual exploitation, labor exploitation, or for the commission of offenses (situations in which migrant women are usually victimized). These crimes are not yet punishable under Spanish law (but trafficking is) despite their seriousness. The principle of proportionality between the seriousness of the offense and the severity of the punishment cannot provide an answer to this question, since, in responding to a criterion of justice, it must be open to reducing the punishment or waiving it for other reasons of justice (such as the offender's situation of need). It is concluded that the principle of proportionality in a broad sense (in particular, the necessity of punishment) is what determines this requirement of the punishment of those behaviors (not the proportionality of the punishment). These figures determine the need to punish those conducts in which criminal intervention is necessary, such as those mentioned above. Thus, the principle of proportionality in a broad sense and the principle of necessity are configured as bracket principles (Untermaßverbot), determining not only a maximum of punishment but also a minimum of punishment - the access to punishment of the conducts themselves. The clarification of the issue is decisive in order to impose on the states the obligation to establish criminal sanctions for the most serious conducts, thus resolving the issue of exploitation of human beings in Spain.

Author

• Wendy Pena-Gonzalez, University of Salamanca