Add United Nations Secretary-General Ban Ki-moon to the list of people who understand that arresting and punishing sex workers is counter-productive in the battle against HIV/AIDS. And take the government of Cambodia off that list.
The Global Working Group on HIV and Sex Work Policy wrote to Ban in June to applaud his statement commending the findings of a March report that favored decriminalizing sex work. The Report of the Commission on AIDS in Asia noted that sex workers are part of the solution to preventing the spread of HIV, and advised countries to "avoid programs that accentuate AIDS-related stigma and can be counterproductive. Such programs may include ‘crack-downs' on red-light areas and arrest of sex workers."
To express their gratitude for this understanding, sex workers and advocates circulated a statement at the June 11-12 UN High-Level Meeting on HIV/AIDS as Ban spoke to the gathering in New York. "Sex workers thank [Ban] for his support of their efforts to combat the HIV/AIDS epidemic," the statement said.
The March report strongly advised countries to enlist sex workers in the effort to prevent the spread of HIV. It included firm recommendations against punitive measures targeting sex work and other frowned-upon behaviors, on the grounds that such approaches have proven counter-productive. The UN Secretary-General supported these recommendations in his statement and sex workers everywhere are grateful.
Unfortunately, some governments continue to deny reality.
Under pressure from the United States, Cambodia outlawed prostitution in February. The government's promotion of a "no condoms, no sex" program in legal brothels there had succeeded in reducing HIV infection rates, but now those brothels have closed or gone underground, along with bars, karaoke clubs and street areas. Hundreds of women have been arrested, jailed or displaced, while dozens have been raped and beaten by police and prison guards. The HIV prevention and care programs that were working have collapsed.
The new law, ironically named the Suppression of Human Trafficking and Sexual Exploitation Law, is a failure in every way. It encourages trafficking and exploitation because it makes sex workers easier prey: the workers can no longer seek clients in public and must depend upon others to introduce them. Worse, police now use condoms as evidence of prostitution, so sex workers can no longer use them. We can expect to see HIV rates rise as a result.
The U.S. ambassador to Cambodia acknowledged in an article in The International Herald Tribune that U.S. influence played a part in the passage of this dangerous law. The annual U.S. Trafficking In Persons Report ranks countries on their efforts to end the practice according to U.S. perception, with those low on the list risking economic sanctions.
By passing the law, Cambodia moved up from the "Tier 2 watch list" to "Tier 2" and thus evaded sanctions. But is U.S. aid worth the cost in sex workers' lives and in lost ground against HIV/AIDS?
Sex workers in Cambodia protested the new law on June 4, calling for repeal and an end to raids. "Don't be fooled by talk of rescuing ‘sex slaves' until you have heard our testimonials and seen video evidence of the brutality and misery this new law is causing," their statement said (watch the video below).
Sex
workers and their allies also protested the new law at the Cambodian
Mission to the United Nations in New York on June 11, during the
High-Level Meeting on AIDS. Further demonstrations are planned in the
United Kingdom and Australia.
Cambodian sex workers call for a repeal of the trafficking law passed by the Cambodian government under pressure from the US government.
UPDATE at 10:54am: Detained sex workers in Cambodia were released on June 24, 2008
Sex workers documented human rights abuses and sought local and international support in their campaign against these violations. Supporters have been invaluable. The next steps include continued support for changing the law that led to these abuses, as well as immediate care and assistance for those who were abused in detention. ]]>
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 TVPRA 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 TVPRA, 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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The tendency to treat trafficking and prostitution as if they were the same thing has a long and problematic history. Legislation and social discussion have often blurred or denied any difference, but that has always made things worse rather than better for those involved.
The trafficking of women and children into sexual slavery is undeniably a gross abuse of human rights. Like all trafficking, it involves coercion or trickery or both. Sex trafficking is an odious forms of trafficking, but it is far from the only one. Men, women and children are also -- and more commonly -- trafficked routinely for purposes of household and farm labor as well as sweatshop manufacturing. Their lives may be less media-genic than those of sex trafficking victims, but they are no less brutal, dangerous and degraded.
A narrow focus on the single aspect of sex trafficking is often fueled by sensationalistic and sometimes salacious accounts of sexual abuse. It leads us to ignore these other forms of trafficking, and so denies help and protection to all the men, women and children forced into and trapped in abusive working situations in other industries.
By the same token, treating sex work as if it is the same as sex trafficking both ignores the realities of sex work and endangers those engaged in it. Sex workers include men and women and transgendered persons who offer sexual services in exchange for money. The services may include prostitution (sexual intercourse) and other services such as phone sex. Sex workers engage in this for many reasons, but the key distinction here is that they do it voluntarily. They are not coerced or tricked into staying in the business but have chosen this from among the options available to them.
A key goal of sex worker activists is to improve sex-working conditions, but self-organization is impossible when sex work is regarded as merely another form of slavery. Then authorities and laws trying to stop true slavery -- trafficking -- get misapplied to sex workers, clients and others involved in the sex industry. Law enforcement raids in the U.S. and abroad, for example, have led to little success identifying trafficked persons but instead have driven sex work underground. This exposes sex workers to an increased risk of violence and denies them any protection of laws against assault or access to medical, legal and educational services. It denies them their human rights.
A national anti-trafficking law enacted in 2000 recognizes "severe forms of trafficking" as a modern form of slavery that involves a broad spectrum of workers and industries. In this interpretation, trafficking is clearly distinguished from voluntary sex work and thus avoids the absurdity of equating the fear and suffering of a trafficked person with the typical working conditions of voluntary sex workers. These conditions are often far from ideal, but nevertheless they are far removed from debt bondage or enslavement.
It is regrettable that despite the obvious reality of this perspective, the popular imagination of sex work tends to return to images of young girls forced into sexual slavery. Perhaps people would rather read such stories than hear about more prosaic struggles for workers' rights -- to organize, to be free from harassment, to get decent health care. But their preferences should not be allowed to dictate policy about either human trafficking or sex work.
Traditional standards of morality have been a major influence on legislation aimed at trafficking, and on the ways that trafficking legislation changes the legal treatment of prostitution. But the ‘moral' position opposing sex work is actually a specific political and ideological position, and its net effect is typically to limit women's autonomy.
Sex law is often a front for ideology that constrains rather than liberates women. What most appalls me about the recent conflation of trafficking and sex work in law and policy is that some feminists support the confusion. These women would normally never dream of telling other women how to behave, because they have fought against imposed constraints in their own lives. Yet they seem to think it is acceptable to tell sex workers what is best for them, and they are prepared to use dubious political alliances to advance their moral agenda.
Women's studies professor Donna Hughes even told the National Review that George W. Bush is the president who has done the most for women on the strength of his policies aimed against sex work. The fact that these policies do nothing to halt human trafficking and in fact may be counter-productive seems to be irrelevant. So does the worse fact that President Bush has presided over a deliberate reduction in access to reproductive health care for women in the United States and around the world.
Women are not the only victims when trafficking is conflated with sex work. The confusion squanders opportunities to address real victimization and to assist people in real situations of abuse. Resources, time and energy that might actually help trafficking victims are wasted in sensational "rescues" that are also ineffective and often counterproductive.
There is a clear need to formulate public policy that is less emotionally driven and better able to recognize the real causes, nature and effects of trafficking in persons. People concerned about the health and rights of migrants should choose to talk in terms of migration and mobility and workers' rights - including sex workers' rights - rather than confusing matters by using the term "trafficking" with all its attendant baggage. That should help clear the debating field for useful and separate discussions of both.
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