Rescuing Trafficking from Ideological Capture: Prostitution Reform and

Excellent article written by Janie A. Chuang.

Janie A. Chuang
American University – Washington College of Law

University of Pennsylvania Law Review, Vol. 158, 2010

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.

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