PART 2.3 • imposed for a prolonged, unspecified or indefinite period; • unjust, unpredictable and/or disproportionate; • not subject to judicial or administrative review to confirm its legality and to confirm that it continues to be necessary in the circumstances, with the possibility of release where no grounds for its continuation exist. DETENTION, THE OBLIGATION OF PROTECTION AND THE PROHIBITION ON SEX-BASED DISCRIMINATION Could detention be a necessary aspect of protecting victims from further harm? In exploring this question, it is important to acknowledge that trafficking is generally only made possible by and sustained through fear, violence and intimidation. Unlike with many other crimes, the threat to a victim does not end once she or he has escaped or been rescued from exploitation. In some cases, particularly where the victim is in contact with the criminal justice system, freedom from a trafficking situation can actually exacerbate the risks to that person’s safety and well-being.282 Children may also face additional risks. The obligation on States to protect victims of trafficking must not be discharged in a manner that violates other rights. In this connection it is relevant to note that the practice of victim detention is often highly gendered. For example, the overwhelming majority of the trafficked persons detained in welfare shelters are female. One reason for this is that women and girls are more likely to be identified through official channels as trafficked and, therefore, are more likely than men and boys to enter both formal and informal protection systems. Male victims are commonly misidentified as irregular migrants, transferred to immigration detention facilities and eventually deported. Even when See further United Nations Office on Drugs and Crime, Toolkit to Combat Trafficking in Persons (United Nations publication, Sales No. E.08.V.14), pp. 224-240. 282 136 correctly identified as having been trafficked, adult males are often ineligible for public or private shelter and protection. Often the arguments advanced in favour of victim detention, particularly shelter or welfare detention, are also highly gendered. As noted above, protection from further harm is one of the most commonly cited justifications for detaining trafficked persons against their will. Female victims of trafficking are widely considered to need this protection much more than their male counterparts. Females, both women and girls, are also perceived as being less competent to make decisions about their own safety. As noted in the discussion under Principle 1 and related Guidelines, equal treatment and non-discrimination on the basis of sex is a fundamental human right, firmly enshrined in the major international and regional instruments.283 In the present context, a determination that a situation of victim detention: (i) negatively affects the rights of the individual involved, and (ii) is overwhelmingly directed at and affects predominantly women and girls, should be sufficient to support a claim of unlawful discrimination on the basis of sex. In addition, as noted directly above, a finding that detention laws or practices discriminate unlawfully against women and girls would also be sufficient to support a claim of unlawful deprivation of liberty and/or arbitrary detention. THE SPECIAL SITUATION OF DETAINED CHILD VICTIMS In relation to the issue of shelter detention, it is important to recognize some fundamental differences between children and adults. A critical source of vulnerability for children lies in their lack of full standing – as a matter of 283 See further part 1, section 4.1. RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING