Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy
Abstract
In the decade since it became a priority on the United States' national agenda, the issue of human trafficking has spawned enduring controversy. New legal definitions of “trafficking” were codified in international and U.S. law in 2000, but what conduct qualifies as “trafficking” remains hotly contested. Despite shared moral outrage over the plight of trafficked persons, debates over whether trafficking encompasses voluntary prostitution continue to rend the anti-trafficking advocacy community - and are as intractable as debates over abortion and other similarly contentious social issues. Attempts to equate trafficking with slavery invite both disdain and favor: they are often rejected for their insensitive and legally inaccurate conflation with transatlantic slavery yet simultaneously embraced for capturing the moral urgency of addressing this human rights problem. The anti-trafficking movement itself has been attacked by those who believe it is built on specious statistics concerning the problem's magnitude and by others who think it undermines human rights goals by drawing attention away from migrants' rights and efforts to combat slavery in all its contemporary forms. U.S. law and policy have fueled controversy over anti-trafficking strategies, both at home and abroad. In 2000, the United States led negotiations over a new international law on trafficking, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the U.N. Trafficking Protocol). At the same time, the United States enacted a comprehensive domestic law on trafficking, the Trafficking Victims Protection Act of 2000 (TVPA). Both instruments define trafficking as the movement or recruitment of men, women, or children, using force, fraud, or coercion, for the purpose of subjecting them to involuntary servitude or slavery in one or more of a wide variety of sectors (for example, agriculture, construction, or commercial sex). These legal definitions reflect a concerted effort to move away from traditional perspectives that narrowly defined trafficking as the movement or recruitment of women or girls into the sex sector and toward a broader understanding of the problem as also involving the exploitation of women, men, and children in non-sex sectors. Although trafficking into non-sex sectors arguably accounts for the larger proportion of trafficking activity, anti-trafficking laws and policies - both within the United States and abroad - have nonetheless remained focused on sex-sector trafficking and prostitution. This focus reflects the potent influence of prostitution-reform debates on the anti-trafficking movement. Those debates have embroiled anti-trafficking advocates and policymakers in a struggle over whether prostitution is inherently coercive, and therefore a form of trafficking, or whether the trafficking label should be applied only to instances of forced prostitution. The Bush Administration adopted the former position, marking the increasing influence of the “neo-abolitionists” - an unlikely alliance of feminists, conservatives, and evangelical Christians who have used the anti-trafficking movement to pursue abolition of prostitution around the globe. This Article examines the prostitution-reform debates on U.S. anti-trafficking policy and assesses their effects in the international arena. Part I describes the prostitution-reform debates and their influence on efforts to develop international and U.S. anti-trafficking laws and policies. The discussion spotlights how the prostitution-reform debates have impeded broader efforts by anti-trafficking advocates to prioritize protection of trafficked persons' human rights in the face of the United States' emphasis on an aggressive criminal justice response to trafficking. Part II describes the ways in which the neo-abolitionists have gained dominance during the formative years of global anti-trafficking law and policy development, largely transforming the anti-trafficking movement into an anti-prostitution campaign. The discussion traces how the neo-abolitionists have successfully promoted their anti-prostitution agenda worldwide through targeted legal reforms that condition U.S. financial assistance to governments, NGOs, and government contractors on the recipients' commitment to an anti-prostitution stance. The discussion further illustrates how the neo-abolitionists have shaped common understandings of the problem of human trafficking by deploying a reductive narrative of trafficking that simplistically depicts trafficking as involving women and girls forced into “sexual slavery” by social deviants. This Article argues that this control over the meaning of trafficking has been perhaps the greatest of the neo-abolitionists' gains because it has significantly influenced how anti-trafficking interventions are constructed and implemented on the ground. Part III assesses the consequences of the neo-abolitionists' rise to power in the trafficking field. The discussion highlights how neo-abolitionist legal reforms and the reductive narrative have promoted criminal justice responses that target prostitution and leave unquestioned the exploitative labor practices and migrant abuse that characterize the majority of trafficking cases. Such responses neglect to address the pervasive labor-migration problem resulting from globalization trends that drive lower-income women and men into patterns of risky migration and exploitative informal-sector employment. Moreover, by invoking comparisons to slavery and stereotypes of innocent, naïve Third World women, neo-abolitionist discursive practices sustain a crusader impulse that resists a self-critical evaluation and assessment of the effects of neo-abolitionist policymaking on its target populations. In turn, this impulse has allowed ideology to overshadow social science data--both qualitative and quantitative - that call into question the effectiveness of neo-abolitionist strategies in combating prostitution, much less trafficking. This Article does not aim to provide authoritative solutions to the trafficking problem. Nor does it seek to resolve debates over prostitution reform. I share a commitment to ending human trafficking but am suspicious of simple solutions and anti-trafficking policies not supported by empirical evidence. This perspective leaves me at times at odds with both those who believe that all prostitution is necessarily forced and those who believe that prostitution is just like any other form of work. In my view, both perspectives lack an empirical basis and neither provides a solid foundation for effective anti-trafficking policy. Trafficking is a complicated problem, requiring nuanced solutions that will vary depending on context. This Article instead offers a historical account and critical assessment of the prostitution-reform debates' considerable influence on anti-trafficking law and policy development over the last decade. It does so to expose the difficulties of translating ideology - understood here as closely held moral and ethical beliefs - into effective governance strategies. There is an urgent need to adopt and emphasize policies that are guided foremost by a pragmatic, evidence-based approach that grapples with the real-world complexities of human trafficking. This empirical approach requires us to set aside our narrow ideological commitments and to objectively evaluate the actual impact that “anti-trafficking” interventions have both on those they purport to help and on the vulnerable populations they collaterally affect.