Who’s Trafficked?
This is part of a series of articles written by Melissa Ditmore for RH Reality Check about the differences between trafficking and consensual sex work. Text is below, but please check out the article at http://www.rhrealitycheck.org/blog/2008/05/16/whos-trafficked.
Who’s Trafficked?
Melissa Ditmore on May 19, 2008 – 8:00am
In my first contribution to RH Reality Check, I tried to disentangle the subjects of trafficking and sex work. Understanding this distinction is crucial, because Congress is poised to re-authorize the federal law against human trafficking with new provisions that will both increase penalties for sex workers and effectively decrease our ability to aid genuine victims of trafficking.
The Department of Justice, which is responsible for enforcing the bill’s provisions, is opposing these misguided changes — and so should anyone else who is concerned about human trafficking in its many forms.
It is already sadly evident that the U.S. government’s anti-trafficking program has devolved into a global campaign against sex work and is not working to halt trafficking. In a 2006 report critical of the program, the Government Accountability Office found that “the U.S. government has not developed a coordinated strategy to combat trafficking in persons abroad…or evaluated its programs to determine whether projects are achieving the desired outcomes.”
Now comes a plan to further ratify this failure. The Trafficking Victims’ Protection Reauthorization Act addresses the crime of trafficking in persons, which is recognized in U.S law as cases that involve force, fraud or coercion, which includes threats, intimidation, and psychological abuse. The law offers protection to workers who are most vulnerable to abuse — immigrants, people in forced labor, and minors who exchange sex for cash or goods. The bill currently before Congress, however, would expand the definition of “sex trafficking” to include cases in which no elements of force, fraud or coercion were involved.
Specifically, the House version of the TVPRA would expand U.S. laws against prostitution by re-defining most prostitution-related activities, regardless of consent, as trafficking. Human trafficking is a complex issue, but there is widespread agreement about its key distinguishing features, namely the use of force, fraud or coercion. HR 3887 throws out these cornerstones and threatens to re-define all prostitution, arguably even all sex work, as trafficking. And it would require the involvement of federal law enforcement through a broad new provision that covers actions “affecting” interstate commerce (rather than actual activities that involve the crossing of state lines, the standard trigger for bringing in the feds). Therefore, most prostitution-related activities defined as sex trafficking would fall under federal law even if no interstate commerce was involved.
The immediate consequences of this definitional sleight-of-hand are bad enough: the use of federal resources to prosecute state-level offenses involving consenting adults who may not see themselves as victims of a crime. But turning the DOJ into the prostitution police is not the worst of it. By shifting the focus of the law from genuine cases of trafficking to prostitution as a whole, the bill threatens to divert resources from those most in need: the real victims of trafficking.
The Department of Justice has written to members of Congress to express its opposition to the proposed reauthorization bills, saying that the changes would remove their focus from genuinely abusive situations that involve force, fraud or coercion and place it instead on the over 100,000 prostitution-related arrests annually.
The DOJ’s resistance to the changes stem also from the fact that addressing each prostitution case as a potential trafficking case would significantly increase their caseload while reducing the likelihood of convictions. Trafficking cases require an identifiable victim. Contrary to popular mythology, most sex workers are not in coercive situations. If they do not choose to self-identify as victims or otherwise participate in the prosecution of their associates, the case may collapse.
The dangers of laws that are both overly general and backed by heavy penalties should be familiar to any student of U.S. history. The 1910 White Slave Traffic Act, better known as the Mann Act, criminalized interstate travel for “immoral acts,” which at that time referred fairly generally to (female) promiscuity and interracial sexual activity. In practice, the application of the law was often distinguished by racism or political bias. High-profile victims of racist prosecutions under the Mann Act included Chuck Berry and Jack Johnson, while Charlie Chaplin and Frank Lloyd Wright, suspected of Communist sympathies, were subject to politically motivated Mann Act prosecutions.
Above all else, however, application of the Mann Act was sexist. The law purported to protect women, yet the overwhelming majority of those charged under the Act were women. Women were tried and jailed for crossing state lines to visit men, often men that they would later marry. It seems inconceivable to us today that simply visiting a romantic partner in another state could be grounds for conspiracy charges, yet this is exactly what happened.
In 1986, the scope of the Mann Act was amended to cover only acts that were crimes in the location where they were committed. When the Act was conceived in 1909, prostitution was not a crime in any state of the Union. But within twenty years, every state had passed laws criminalizing prostitution. Today, almost a hundred years from its conception, the Mann Act remains on the books as a law enforcement tool targeting prostitution. This little-known law got its moment in the spotlight recently when four people involved with the Emperors Club VIP, whose best-known client was New York governor Eliot Spitzer, were charged with Mann Act offenses.
Just as the Mann Act, ostensibly created to protect women, was used largely to prosecute them, the targets of the re-authorized TVPA will not be international traffickers. They are more likely to be prostitutes (including, once again, many women), charged with trafficking offenses that exist only on paper.
If no “victims” or “traffickers” can be found, some will have to be created. The threat of additional charges or the promise of immunity can be used to persuade some of those charged to testify against their colleagues. During the initial period of the TVPA, despite lavish spending on raids and on services for victims of trafficking, there was an embarrassing lack of migrants coming forward to take advantage of the protection offered by the law and to cooperate in the prosecution of their traffickers. The expanded definition of trafficking provided by HR 3887 should make up the shortfall in trafficking victims, but only by spuriously applying trafficking charges to cases that do not involve force, fraud or coercion.
There is something deeply wrong with our government when the answer to the desperate problem of human trafficking is to change the definition of the crime so we can claim we’re doing something about it. It’s a tactic that is misguided at best and at worst, downright cynical.
Equating prostitution and trafficking simultaneously denies the agency of sex workers and trivializes the experiences of people in genuinely abusive situations. Enshrining this wrongheaded equation in law delivers a double whammy. On the one hand, it undercuts the ability of government agencies to provide services to those who desperately need them. On the other it opens the door to the same kind of abuses seen with the Mann Act, creating “victims” where none exist and bringing the full force of anti-trafficking law to bear on a group that is already stigmatized and marginalized by society. By any standards, this would be a gross miscarriage of justice.
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