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Clients' strict liability towards victims of sex-trafficking

Published online by Cambridge University Press:  02 January 2018

Tsachi Keren-Paz  and
Nomi Levenkron
Tsachi Keren-Paz
Affiliation:
Colman Law School, Keele Law School;[email protected]
Nomi Levenkron
Affiliation:
The Law and Society Clinical Center, The College of Management Academic Studies;[email protected]
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Abstract

In this paper, we argue that clients who purchase commercial sex from victims of forced prostitution should be strictly liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. Fairness and equality demand that clients would compensate victims, even if one refuses to acknowledge that purchasing sex from a prostitute who might be a victim is a faulty behaviour. Clients profit from the activity of purchasing commercial sex, so fairness demands they will bear the costs they impose on victims who are unable to refuse the contact. Strict liability will bring about desirable distributive results along the lines of sex, class and race. Imposing strict liability will ensure consistency of the English law of trespass and it is supported by several instrumental considerations.

Such strict liability could be grounded in battery, despite the appearance of apparent consent by the victim to sell sexual services to the client. This is so for two main reasons. First, the extreme coercion operated on the victim renders her consent void so that an innocent third party cannot rely on the appearance of consent. Secondly, the client should be considered as having constructive notice with respect to the trafficker's coercion. Our argument is supported by – but does not hinge upon accepting – the insight that the client's behaviour is ultimately faulty.

Type
Research Article
Information
Legal Studies , Volume 29 , Issue 3 , September 2009 , pp. 438 - 463
Copyright
Copyright © Society of Legal Scholars 2009

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References

1 A Travis and A Sparrow New Law to Criminalise Men who Pay for Sex with Trafficked Women, available at http://www.guardian.co.uk/society/2008/nov/16/prostitution-women-lapdancing. According to the proposal, a man who knowingly purchases sex from a trafficked woman could face a charge of rape. As an aside, we believe that such behaviour is already covered by ss 1(1)(c), (1)(d), 3(1)(d), 4(1)(d), 1(2), 2(2), 3(2) and 4(2) of the Sexual Offences Act 2003. These sections go as far as determining that an honest yet unreasonable mistake with respect to the existence of the claimant's consent to the sexual contact is not a defence and that ‘Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents’.

2 Swedish Criminal Code, Ch 6, s 11.

3 See, eg, Council of Europe Convention on Action against Trafficking in Human Beings 2005, Art 6.

4 It has been promptly attacked on several grounds, including that it ignores the interests of prostitutes themselves. See, eg, C Stephens Propose Less, Listen More, available at http://www.guardian.co.uk/commentisfree/2008/nov/19/prostitution-humantrafficking.

5 For civil liability of traffickers see ‘Note: remedying the injustices of human trafficking through tort law’ (2006) 119 Harv L Rev 2574 Google Scholar; T Keren-Paz ‘An essay on banalization of slavery, devaluation of sex-workers’ labor and deprivation of victims of trafficking' in , forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980075; T Keren-Paz ‘AT v Dulghieru– compensation for victims of trafficking, but where is the restitution?’ (2009) Torts Law Journal (forthcoming) (Keren-Paz, AT); (in Hebrew).

6 For the blurred boundaries between the two categories, see pt 1 below.

7 In AT v Dulghieru [2009] EWHC 225 (QB), the defendants, who trafficked the four claimants for purposes of sexual exploitation, were liable – based on unlawful conspiracy – to pay £601,000 in damages. The period of enslavement was between 1 and 2 months and the award was based on pain and suffering, aggravated damages and (meagre) exemplary damages. For evaluation see Keren-Paz, AT, above n 5. For the Israeli experience, see LaA 480/05 Ben-Ami v M (8 July 2008), aff'm La (Be'er She'va) 4634/03; M v Salsrevski, Tak-Av 2005 (3) 97 (2005) (minimum wage and non-pecuniary damages awarded in the labour court); CC (Tel Aviv) 2191/02 K v Jaack, Tak-Meh 2006 (1) 7885 (2006), aff'd in 3806/06 Jaack v K (26 May 2009, Supreme Court) (damages award to a victim of trafficking based, inter alia, on battery). While these decisions are not without their problems, they are a step in the right direction. Victims, though, still face problems of recovering the awards.

8 [1993] Fam Law 65.

9 See below n 129 and accompanying text.

10 Ibid. The actor Hugh Grant and former New York Governor Eliot Spitzer are but two examples of celebrities who purchased sex (although apparently not from forced prostitutes).

11 Prostituted women have usually no social or legal power, they know neither the law nor their rights, and they hesitate before they would try to assert their rights even if they are raped, beaten or robbed. They see the police as an enemy rather than a place where they can get help.

12 Davidson, J O'Connell Prostitution, Power and Freedom (Oxford: Polity Press, 1998) p 210.Google Scholar

13 For the English experience, see AT v Dulghieru, above n 7, at [1]–[40]; R v Maka [2005] EWCA Crim 3365 at [3]–[5]; Home Office and Scottish Executive, UK Action Plan on Tackling Human Trafficking (2007) pp 14–15, available at http://www.homeoffice.gov.uk/documents/human-traffick-action-plan?view=Binary (p 14: ‘Once in the UK their personal freedom is severely curtailed and they are often controlled through the removal of their documentation, unrealistic debt-bonds, threats of violence against them or their families and physical, sexual and/or emotional abuse’); S Dickson, The POPPY Project When Women are Trafficked: Quantifying the Gendered Experience of Trafficking in the UK (2004); R Kotak, The Anti Trafficking Legal Project Coordinator, email correspondence with author, 25 November 2008 (‘re the amount women get paid, I think it greatly varies – the majority I have represented have been paid nothing throughout their entire time, sometimes a couple of years’). For the Israeli experience, see text accompanying cases cited in nn 23–25 below; Parliamentary Inquiry Committee Trafficking in Persons: Intermediate Report (2002), available at http://www.knesset.gov.il/committees/heb/docs/sachar15-4.htm#1 (in Hebrew); Parliamentary Inquiry Committee Trafficking in Persons: Final Report (2005), available at http://www.knesset.gov.il/committees/heb/docs/sachar_final2005.htm (Parliamentary Report) (in Hebrew); Y Dahan and N Levenkron Women as Commodities: Trafficking in Women in Israel (Hotline for Migrant Workers, Isha L'Isha – Haifa Feminist Center, Adva Cente, 2003), available at http://www.hotline.org.il/english/pdf/Women_as_Commodities_Trafficking_in_women_in_Israel_2003_Eng.pdf; Levenkron, above n 5; Keren-Paz, above n 5.

14 Sexual Offences Act 2003, s 74. See the discussion in pt 3(d) below.

15 See Chuang, J ‘Redirecting the debate over trafficking in women: definitions, paradigms, and contexts’ (1998) 11 Harv Hum Rts J 65 Google Scholar at 80–84; at 91–92.

16 About the difficulties in this kind of research, see Brenan, D Methodological challenges in research with trafficked persons: tales from the field’ in Laczko, F and Gozdziak, E (eds) Data and Research on Human Trafficking: A Global Survey, Special Issue of International Migration (New York: United Nations, 2005).Google Scholar

17 See, eg, the TIP report, published by the US State Department every year, available at http://www.state.gov/g/tip/rls/tiprpt. For a critique of this phenomenon in which ‘[N]umbers take on a life of their own, gaining acceptance through repetition, often with little inquiry into their derivations’, see J Sanghera, Office of the High Commissioner for Human Rights Churning out Numbers: Trafficking and Statistics, Working Paper No 16, http://www.unece.org/stats/documents/2004/10/gender/wp.16.e.pdf.

18 Action Plan, above n 13, p 14.

19 Violence against Women estimates the number of trafficked women to be 10,000: Kotak, above n 13.

20 Travis and Sparrow, above n 1. This might be based, however, on a more relaxed definition of trafficking.

21 R v Tang [2008] HCA 39.

22 Criminal Code (Cth), s 270.3(1)(a).

23 BS (Haifa) 4891/00 State of Israel v Rabi'ee (1 January 2001).

24 SCrC1210/01 State of Israel v Yosef (15 January 2003).

25 See eg, M v Salsrevski, above n 7, at paras 6–49; K v Jaack, above n 7, para 2. See above n 13 and accompanying text.

26 See R v Maka, above n 13. For the experience of other victims, see AT v Dulghieru, above n 7; Dickson, above n 13.

27 Pateman, Contrast C The Sexual Contract (Oxford: Polity Press, 1988);Google Scholar with X Hollander The Happy Hooker (Tandem, 1975);

28 Contrast with the argument that clients' liability towards forced prostitutes should be based on objective fault: T Keren-Paz and N Levenkron ‘Clients' fault-based liability for purchasing sex from forced prostitutes’, draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1115331. The fault argument is partially based on the assumption that the consumption of commercial sex in general has low social value. The recent proposal by the Home Office Minister and the Swedish model are based on such an assumption.

29 See below n 72.

30 B Anderson and J O'Connell Davidson Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study IOM Migrant Research Series No 15 (2003).

31 Ibid, p 21.

32 Ibid, p 25.

33 Ibid, p 24. There is no doubt that in this kind of questions there will always be some gap between the statement the client makes during an interview and the way he would behave if this situation really happened. And, of course, a client might not tell about some of his sexual habits that might be considered deviant, such as paedophilia.

34 The Health Risks and Consequences of Trafficking in Women and Adolescents London School of Hygiene and Tropical Medicine (2003), available at: http://www.lshtm.ac.uk/hpu/docs/traffickingfinal.pdf; Migration, Trafficking and Right to Health Alliance News, Issue 23, July 2005, available at http://www.gaatw.net/index2.php?option=com_content&do_pdf=1&id=108; The IOM Handbook of Direct Assistance for Victims of Trafficking 2007, available at http://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/published_docs/books/CT%20handbook.pdf, pp 181–270; Stolen Smiles: The Physical and Psychological Health Consequences of Women and Adolescents Trafficked in Europe London School of Hygiene and Tropical Medicine (2006), available at: http://www.lshtm.ac.uk/hpu/docs/Stolen%20Smiles%20-%20Trafficking%20and%20Health%20(2006).pdf.

35 Keren-Paz and Levenkron, above n 28.

36 The first argument might be viewed as a general and abstract corrective justice justification for strict liability for battery, while the next two arguments as more context dependent and as distributive justice justifications for strict liability towards victims. The last justification could be explained as based on either distributive or efficiency considerations. Endorsing this corrective/distributive classification is not essential for the argument.

37 See, eg, Cane, P The Anatomy of Tort Law (Oxford: Hart Publishing, 1997).Google Scholar

38 Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007) p 102.CrossRefGoogle Scholar

39 See Epstein, R ‘A theory of strict liability’ (1973) 2 J Leg Stud 151 CrossRefGoogle Scholar.

40 See Perry, S ‘The impossibility of general strict liability’ (1988) 1 Can J L Jur 147 Google Scholar.

41 Moreover, the quintessential experience of victims of trafficking is that they are treated as property. As one of us argues elsewhere, this justifies strict liability towards them which is grounded in the tort of conversion. See T Keren-Paz ‘Poetic justice: why should sex-slaves be allowed to sue ignorant clients in conversion’, to be presented at the SLS Annual Conference, Keele 2009).

42 Cf Adjin-Tettey, E ‘Protecting the dignity and autonomy of women: rethinking the place of constructive consent in the tort of sexual battery’ (2006) 39 UBC L Rev 3 Google Scholar.

43 See nn 79–91 below and accompanying text.

44 (1681) 3 Lev 37 (CP).

45 See Hunter v Canary Wharf [1997] AC 655; Transco v Stockport Metropolitan BC [2003] UKHL 61, [2004] 2 AC 1.

46 See, eg, Transco, ibid, at [43] (per Lord Hoffmann).

47 Keating, GC ‘Distributive and corrective justice in the tort law of accidents’ (2000) 74 S Cal L Rev 193 Google Scholar.

48 Ibid, at 217–218.

49 Escola v Coca-Cola Bottling Co 150 P.2d. 436, 441 (1944) (Traynor J concurring); Stapleton, J Product Liability (London: Butterworths, 1994)Google Scholar ch 8; .

50 Bamford v Turnley 3 B&S 66 (1862 Exc, Ch) (Bramwell B).

51 Atiyah, P Vicarious Liability in the Law of Torts (London: Butterworths, 1967) pp 17–18 Google Scholar; Brodie, above n 49. Atiyah no longer finds this argument convincing, and other commentators question its ability to justify the expansion of employers' liability: ; ; Cf . However, recent case-law in England and other commonwealth jurisdictions clearly endorses fairness as a major justification for vicarious liability: Lister v Hesley Hall[2002] 1 AC 215 at 243; Dubai Aluminium v Salaam[2003] 2 AC 366 at 395; Bernard v A-G[2005] IRLR 398 at 402; Majrowski v Guy's and St Thomas's NHS Trust[2007] 1 AC 224 at [9]; Bazley v Curry (1999) DLR 174 (4th) 45 at 60. See Brodie, ibid, at 496–497. More Generally, the fact that fairness ‘would justify the imposition of strict liability in a wide range of situations in which it is currently not imposed’ (Cane, above n 37, p 46) is not a reason to oppose clients' strict liability for the following reasons. First, as we argue below, fairness justifies a major feature of tort liability: strict liability of proprietary torts. Secondly, in other contexts strict liability might be inappropriate due to the difficulty to allocate the costs to one of two incompatible activities; such problem does not exist in our context. Thirdly, clients' strict liability – similarly to vicarious liability – could be justified due to the combined effect of several policy considerations which might supplement fairness (equality and deterrence) or supplant it (protected interest). Finally, it might be that indeed other interactions, which currently are not governed by a strict liability rule, should; this is hardly a reason not to adopt one step in the right direction.

52 Keating, above n 47, at 215–216.

53 Kneebone, S Tort Liability of Public Authorities (Sydney: Law Book Co of Australasia, 1998) p 41.Google Scholar

54 See Dagan, H and Heller, M ‘The liberal commons’ (2001) 110 Yale LJ 549 CrossRefGoogle Scholar at 611–613; cf Restatement (First) Restitution (1937), s 105. For the unduly narrow English approach, see Leigh v Dickeson[1884–1885] 15 QB 60 (CA).

55 Fletcher, GP ‘Fairness and utility in tort theory’ (1972) 85 Harv L Rev 537 CrossRefGoogle Scholar at 544–550.

56 LR 3 HL 330 (1868); Transco v Stockpot Metropolitan BC, above n 45. For the American version see Restatement (Second) of Torts (1965), s 519.

57 Vincent v Lake Erie Transportation 124 NW 221 (Minn, 1910). The English position seems to absolve the defendant from the duty to compensate, although the interpretation of the cases is disputed. See Romney Marsh v Trinity House Corp (1870) LR 5 Ex 204; Cope v Sharpe [1912] 1 KB 496. See JF Clerk and WHB Lindsell Clerk and Lindsell on Torts (London: Sweet & Maxwell, 19th edn, 2006) p 1140, n 91 (‘...necessity is not favoured by the courts, especially where the defendant acted to protect private... interest’).

58 Restatement (Second) of Torts (1965), s 520A.

59 Marfani v Midland Bank [1968] 1 WLR 956 at 970–971 (Lord Diplock). For an application of this rationale see Keren-Paz, above n 41 (basing clients' strict liability on conversion). Conversion protects both possession and the immediate right to possess and is found on property, while trespass merely protects (and is found on) possession: Ward v Macauley (1791) 4 TR 489, at 490. This does not affect the conclusion of the analysis. At most (but we do not explore this point), one can conclude that a victim has a right to immediate possession of herself but no actual possession and therefore she can sue in conversion but not in trespass.

60 Cf Mautner, M ‘“the eternal triangles of the law”: toward a theory of priorities in conflicts involving remote parties’ (1991) 90 Mich L Rev 95 CrossRefGoogle Scholar.

61 See nn 1–3 and accompanying text and Keren-Paz and Levenkron, above n 28.

62 Ibid, pt 5.A6. Recall that according to the estimation of the Metropolitian police, 70% of the prostitutes in England and Wales are trafficked: n 20 above and accompanying text. Even according to the more conservative estimation (4000 out of 88,000), still almost 5% of prostitutes are victims.

63 Cf Calabresi, G and Hirschoff, JT ‘Toward a test for strict liability in tort’ (1972) 81 Yale LJ 1055 CrossRefGoogle Scholar (strict liability theory which is based on accident-prevention capacity).

64 In an ideal world, there would not be victims of trafficking, and prostitution.

65 See, eg, Schroeder, CH ‘Corrective justice and liability for increasing risks’ (1990) 37 UCLA L Rev 439 Google Scholar; Barker v Corus[2006] UKHL 20, [2006] 2 AC 572.

66 If clients' liability for direct contact is established, difficult questions of apportioning liability among clients, and between clients and traffickers, arise. These questions are similar to those raised in the text. Our argument is not that clients should be liable in lieu of traffickers but rather that both should be liable.

67 Keren-Paz and Levenkron, above n 28.

68 T Keren-Paz Torts, Egalitariansim and Distributive Justice (Aldershot: Ashgate, 2007).

69 Paris v Stepney Borough Council [1951] 1 All ER 32 (HL); Keren-Paz, ibid, pp 127–28.

70 Cf Keren-Paz, ibid, pp 71–72, 175.

71 See Saskia, S ‘Women's burden: countergeographies of globalization and the feminization of survival’ (2000) 53 Journal of International Affairs 503 Google Scholar; .

72 See, eg, A-M Martila Consuming Sex – Finnish Male Clients and Russian and Baltic Prostitution (2003), available at http://www.iiav.nl/epublications/2003/Gender_and_power/5thfeminist/abstract_111.pdf; MA Kennedy et.al Men Who Solicit Prostitutes: A Demographic Profile of Participation in the Vancouver Police Department's Prostitution Offender Program (2004), available at http://www.jhslmbc.ca/pdf; C Ward et.al ‘Who pays for sex? Analysis of the increasing prevalence of female commercial sex contacts among men in Britain’ (2005) 81 Sex Transmitted Infections 467.

73 See the Introduction and pt 1 above and Keren-Paz and Levenkron, above n 28. In addition, deterrence depends on clients' knowledge of the legal rule and their belief about the likelihood of enforcement.

74 The second requirement is not easy to meet, but is not insurmountable. Issues of apportioning the client's liability to the cumulative harm from being enslaved are another hurdle victims would have to face.

75 See T Keren-Paz ‘Liability regimes, reputation loss and defensive medicine’ (work in progress).

76 Ibid.

77 Keren-Paz and Levenkron, above n 28.

78 See Kahan, DM ‘Gentle nudges vs. hard shoves: solving the sticky norms problem’ (2000) 67 U Chi L Rev 607 CrossRefGoogle Scholar.

79 See Latter v Braddell (1881) 44 LT 369.

80 For a more elaborate discussion, including of the question whether the client's mistake might ever be considered reasonable, see Keren-Paz and Levenkron, above n 28, pts 2–5B.

81 R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19.

82 Hepburn v Chief Constable of Thames Valley Police [2002] EWCA Civ 1841 at [24].

83 Clerk and Lindsell, above n 57, at 15-08; Stevens above n 38, p 101; NJ McBride and R Bagshaw Tort Law (London: Longman, 2nd edn, 2005) p 248. But see WVH Rogers Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 7th edn, 2006) at 25-3 (reasonable mistake, albeit in the context of apparent consent is effective).

84 Ashley v CC Sussex Police [2006] EWCA Civ 1085 (CA).

85 [2008] UKHL 25, [2008] AC 962 at [20].

86 Ibid, at [55], [89]–[90].

87 Ibid, at [76].

88 Ibid, at [3].

89 Non-Marine Underwriters, Lloyd's of London v Scalera [2000] 1 SCR 551 (Can) paras [24] and [29].

90 Adjin-Tettey, above n 42. Adjin-Tettey's critique parallels ours with respect to the importance of the protected interest of sexual autonomy, and the existence of distributive considerations about women's status in society. Her paradigmatic case of non-commercial sex is different, however, from ours, and several possible conclusions might follow. First, it is less clear that in the context of non-commercial sex, it is just to shoulder the costs of the mistake on men. While we have no objection to such a rule, which could be supported by some of the arguments we present, we think there are stronger justifications for imposing strict (or fault-based) liability on clients. One obvious difference is that the social value of non-commercial sex is much higher to men and consenting women, than the social value of commercial sex. See Keren-Paz and Levenkron, above n 28. Another important difference is that the power gap between men and women in the non-commercial sex context is less significant than in our context. On the other hand, our context raises the difficulty of apparent consent to trade sex for money, which is not necessarily raised in the general context. Next, our suggestion elsewhere to ground strict liability in the tort of conversion is not open in the general context. See Keren-Paz, above n 41. Finally, Adjin-Tettey does not consider the possibility of imposing liability in negligence, rather than in battery, and, of course, the factors for deciding whether fault is involved in both contexts are different. See Keren-Paz and Levenkron, above n 28.

91 See Simons, KW ‘A restatement (third) of intentional torts?’ (2006) 48 Ariz L Rev 1061 Google Scholar at 1066–1070.

92 See, e.g, Paal Wilson & Co v Partnereederei Hannah Blumenthal [1983] AC 854 (HL).

93 Cf Stevens, above n 38, p 248.

94 28 NE 266 (Mass, 1891).

95 McBride and Bagshaw, above n 83, pp 247–248.

96 Clerk and Lindsell, above n 57, p 942, at 15-102.

97 Rogers, above n 83, p 1059, at 25-3.

98 Friedmann, D ‘The objective principle and mistake and involuntariness in contract and restitution’ (2003) 119 LQR 74 Google Scholar at 91.

99 Ibid, at 81. See section (b) below.

100 Ibid, at 91.

101 Cf Adjin-Tettey, above n 42.

102 Keren-Paz and Levenkron, above n 28, pt 5.A3.

103 See pt 1(a) above.

104 Cf Friedmann, above n 98, at 82.

105 Lynch v DPP of Northern Island [1975] AC 653 at 680 and 695.

106 Ibid, at 695.

107 See Pao On v Lau Yiu Long [1980] AC 614 at 634–635. Cf H Beale Chitty on Contracts vol 1 (London: Sweet & Maxwell, 30th edn, 2008) at 7-003; however, the scope for a void transaction allowed for by Chitty is normatively too narrow and doctrinally not supported by the authorities. See below nn 108–109 and accompanying text.

108 Barton v Amstrong [1976] AC 104 at 120 (PC). Some commentators stress that the point was not argued before the Privy Council and that the result is as compatible with the contract being voidable as with it being void. See, eg, B Haecker ‘Proprietary restitution after impaired consent transfers: a generalised power model’ (2009) 68 Camb LJ 324 at 327.

109 Friedeberg-Seeley v Klass (1957) 101 SJ 275. Cf Duke de Cadaval v Collins (1836) 111 ER 1006 at 1009; Grainger v Hill (1838) 132 ER 769.

110 Note, however, that in Barton, above n 108, their Lordships concluded that they express no view as to what (if any) effect the result may have on the rights or obligations inter se of the other parties to the deeds.

111 Trustee Savings Bank v Balloch (1983) SLT 240.

112 United States for the Use of the Trane Company v Bond 586 A.2d 734 (Md, CA, 1990).

113 Barclays Bank v O'Brien [1993] 4 All ER 417; Royal Bank of Scotland v Etridge (No 2) [2001] 4 All ER 449.

114 Etridge, ibid, at [44] and [54]. This could be done by ensuring the wife received independent advice from a solicitor: ibid, at [56]. Compare Bond, above n 112; Post, DW ‘Spousal abuse and the doctrine of duress’ (2004) 26 Hawaii L Rev 469 Google Scholar.

115 Note that these considerations might support imposing the risk on the bank, even if it made reasonable effort to ensure that the wife's consent is free.

116 We do not oppose a solution allowing a client to sue the trafficker for contribution. The risk of failure to do so successfully, however, should lie with the client, rather than with the victim.

117 [1951] 1 All ER 1078 (HL).

118 For the conclusion that workers' interests should not prevent clients' liability towards victims, see Keren-Paz and Levenkron, above n 28, pt 5.A5.

119 La Forest, Gonthier and Cory JJ.

120 We leave aside the question whether undue influence, rather than unconscionability, better supports the court's result.

121 Norberg v Wynrib (1992) 92 DLR (4th) 449 (Can) at paras 40–45.

122 Keren-Paz and Levenkron, above n 28, pt 5.A5.

123 Despite the difference in approaches, all the justices in Norberg agreed that the physician should be liable. Sopinka J grounded liability in the physician's breach of professional duty, and McLachlin and L'Heureux-Dubé JJ grounded liability in breach of fiduciary duty.

124 Norberg, above n 121, at paras 121, 122, 127.

125 Similar rationale supports the allocation of the loss to the original owner in cases of identity mistakes. See Lords Nicholls of Birkenhead and Millet's dissenting views in Shogun Finance Ltd v Hudson [2003] UKHL 62, [2004] 1 AC 919.

126 In this respect, this approach is not incompatible with the Home Office Minister's approach that a man would be committing an offence even if he asked a prostitute whether she had been trafficked and was told that she had not been. See Travis and Sparrow, above n 1. When the client does not give the victim an option to refuse a sexual contact with him without negative consequences for her (by not meeting her quota) strict liability is still fair, at least in the context of civil liability.

127 Cf CrA 11847/05 State v Ploni (23 July 2007) (Isr).

128 Cf CrC (Be'er Sheva) 8287/06 State v Bokovza (District Court, 7 March 2007) (Isr).

129 See ‘Sport and media celebrities caught in a brothel’ (12 June 2006), available at http://news.walla.co.il/?w=/1/938650.

130 These procedures require informing the woman of her rights to shelter, a visa and legal aid. Interested victims move into a shelter. If the victim is not interested, one of the organisations which help victims of trafficking should be contacted in order to talk with the victim.

131 But fault should not be left aside: the women who provided sex services to these four powerful men were victims of trafficking. These victims are smuggled to Israel across the Egyptian border, raped, subjugated. They lose their liberty and are controlled by others. The groom and company did not purchase these women, smuggle them, and perhaps did not rape or abuse them; however, all these violations were done for clients' sake and in order to benefit them; and, in any event, they did subject these women to non-consensual sexual contact. Taking the risk of submitting victims to non-consensual sex is a faulty behaviour which should lead to liability in battery, and alternatively in negligence. See Keren-Paz and Levenkron, above n 28.

132 We do not deal here with the question whether the clients might be liable in torts for the violation of the victims' rights by the immigration police.

133 For the argument that strict liability could be grounded in conversion, see Keren-Paz, above n 41.