A/HRC/44/45 of consent, and thus are reluctant to apply the non-punishment principle, even in situations in which the “means” relevant to trafficking in persons can be established. 34. Third, some trafficking instruments and domestic legislation explicitly limit application of the non-punishment principle to certain offences. However, it should be stressed that any restrictions regarding the scope of application of the non-punishment principle based on the severity of crimes or on a closed list of crimes is not allowed by any binding or non-binding international instrument. 35. Fourth, in practice, authorities continue to convict trafficked persons for offences, such as prostitution/sex work or illegal status, that are linked to their situation as trafficked persons. For example, in States that criminalize prostitution/sex work, this can result in criminalizing trafficking victims involved with this. Other States have broadly applicable non-punishment provisions, yet have a strong political inclination towards criminalizing and prosecuting irregular migrants that could cause criminalization of trafficked persons. 57 36. In order to implement correctly the non-punishment principle, it should be clear that it does not imply a previous formal identification by immigration or law enforcement authorities. It is also important to correctly identify the threshold for applicability of the non-punishment principle, which should not require clear evidence, but rather reasonable grounds to believe that trafficking is taking place. Furthermore, a causational model should be preferred, in which the implementation of the non-punishment principle is not based on the use of force or coercion but on the link between the trafficking process and the commission of crime or unlawful activity. Even in legislations in which the nexus linking the illegal activity with trafficking is one of “compulsion”, such a notion should be interpreted in the light of the definition of trafficking, including among illicit means, not only violence, threat or coercion, but also abuse of a position of vulnerability. The nonpunishment principle also implies that criminal proceedings should not be initiated or should be terminated at an early stage, or otherwise as soon as indications of trafficking have been identified. For this purpose, clear guidance should be addressed to prosecutors and investigative judges. 37. Another widespread gap in national legislation is related to the fact that, despite the non-punishment principle, victims might have been convicted for crimes related to their situation of trafficked persons and have a criminal record. This hampers, among other things, their social inclusion. In such cases, their criminal records should be immediately vacated. C. Moving from victimhood to agency, with a focus on gender and childsensitive responses, including in conflict and post-conflict settings 38. A cultural shift is necessary in order to see trafficked persons not solely as victims but also as agents of their own life project. Trafficked persons have the ability to regain control of their lives and make decisions based on their own interests and life projects, if adequately supported in the recovery phase and correctly informed. As regards trafficking for labour exploitation, such cases have often been discovered as a consequence of unionization or other forms of workers’ solidarity and concerted action. Many women and girls subjected to sexual exploitation, when they have been helped to regain control of their bodies and lives, often through meaningful relationships with other women, have undertaken a successful process leading to their social inclusion. 39. The Special Rapporteur has specifically investigated trafficked persons’ agency throughout her research on trafficking in conflict and post-conflict settings, especially highlighting the important role of women, including survivors of trafficking, in prevention, protection, participation and relief and recovery, which are also the four main pillars of the women and peace and security agenda of the Security Council. The Special Rapporteur has found that trafficking is not just occasionally linked with conflict, but is a systematic consequence of it. People, including children, kidnapped or recruited to be child soldiers or 57 10 See also CTOC/COP/WG.4/2010/4, para. 4.