In May 2009, two teenage girls offered commercial sex to an undercover police officer. After their arrest, the girls provided information leading to the arrest of their pimp and to the recovery of two other girls.[1] In his indictment, the pimp, Shelby S. Lewis of Temple Hills, Maryland, was charged with five counts of Sex Trafficking of Children, which carries a maximum penalty of life imprisonment.[2] In exerting control over the girls, Lewis had employed violence, threats, and exploited the girls’ dependency; at least one of the girls had been placed in his home by the foster care system.[3] Rather than face trial, Lewis pled guilty to Interstate Transportation of Minors for Purposes of Prostitution, and faces 15 to 20 years imprisonment.[4]
These
girls resemble the hypothetical victims of human trafficking described by
President Bush in his address to the UN General Assembly in 2003, on the subject of human trafficking:
“Each
year an estimated 800,000 to 900,000 human beings are bought, sold, or forced
across the world's borders [2003 U.S. State Department estimate]. Among them are hundreds of thousands of teenage girls, and
others as young as 5, who fall victim to the sex trade. There's a special evil in the abuse and
exploitation of the most innocent and vulnerable. The victims of [the] sex
trade see little of life before they see the very worst of life, an underground
of brutality and lonely fear.”[5]
There
is no reason to dispute the President’s facts or his reasoning or to temper our
moral outrage at the abuse of children.
But there is, nevertheless, a need to expand, if not our outrage, then
at least our law, to better to protect those other victims who, living in the
same “underground of brutality and lonely fear,” are judged to be not so
innocent, and thus should expect to endure some level of exploitation or abuse.[6] For instance Jerome Todd’s career as a pimp
began when he convinced his then-girlfriend to begin offering commercial sex as
a step toward establishing the couple’s financial stability.[7] Soon, Todd began confiscating all of his
girlfriend’s earnings, “maintained his rules” through psychological and
physical abuse, and used her to recruit other women to work for him.[8] Sex
trafficking often begins with the voluntary recruitment of “profit-seeking
individuals,”[9] some of whom know or may
guess they are being recruited for sex work.[10]
This leads to the “public sentiment that these women came here and deserve
this.”[11] For many, the crucial element in establishing
the crime of human trafficking is that of consent.[12] But how does one define consent? The important observation, made by the Special
Rapporteur on Violence Against Women, that “trafficking is never
consensual,”[13] can be interpreted in two contradictory
ways: 1) that evidence of consent is a defense against a trafficking charge or
2) that evidence of the relevant forms of exploitation makes the consent
inquiry irrelevant. Indeed, the Special
Rapporteur’s February 2000 report includes statements supporting both of these
interpretations. For instance, the
report’s observation that “[a]s in rape cases, women who are trafficked for sexual
labour may be forced to prove they did not consent to sex work,”[14]
would seem to recommend that the “consent” element is a harmful
distraction. Nevertheless, the report
later chides countries that “fail
to distinguish been consensual and non-consensual movement”[15] in the context of
prostitution, and uses a definition of trafficking that hinges on consent.[16]
Because
of the confusion and controversy surrounding the issue of consent, “[t]rafficking
has become an arena in which long standing debates about prostitution and the
sex industry have been re-visited.”[17] This paper hopes to side-step these debates,
to avoid analyzing trafficking laws according to what they seem to say about women in general or in the
abstract, and to instead properly consider how such laws can better protect
real victims of trafficking. For the
sake of narrowing its scope, this paper considers the problem in U.S. context;
among many other strategies for better protecting victims of trafficking, this
paper recommends reform of the Trafficking Victims Protections Act to establish
a prosecutable form of sex trafficking in which the presence of “force, fraud,
or coercion” is not a required element.[18] In its current form, the TVPA does not do
enough to protect victim or to deter trafficking.[19]
This paper disputes the assertion
that removing the “consent” requirement from the U.S. anti-trafficking law
would lead to the “federalization of prostitution laws.”[20] Before discussing why this assertion is wrong
or misleading, it’s useful to examine the text of the current U.S.
anti-trafficking law and the proposed reform legislation of 2007. The Trafficking Victims Protection Act (TVPA)[21] provides for the
prosecution of “severe forms of trafficking in persons” as follows:
(8) Severe forms of trafficking in persons. The term
"severe forms of trafficking in persons" means--
(A) sex trafficking in which a commercial sex
act is induced by force, fraud, or coercion, or in which the person induced to
perform such act has not attained 18 years of age; or
(B) the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.[22]
There’s
something odd about this definition of “severe” trafficking that’s not
noticeable except in the context of the entire law, and even then is only
noticeable as something that’s missing.
The recognition of “severe” forms of trafficking implies the existence
of some other, unqualified, less severe form of trafficking, a milder violation
of another person’s rights that carries a less severe punishment. But the TVPA does not recognize any other
form of trafficking. Or, to be more
precise, the TVPA only prescribes punishment for those trafficking crimes that
meet its definition of “severe.”[23] This semantic oddity obscures a substantive
omission; the law, as written, excludes from prosecution those trafficking
activities that are, due to a lack of obvious “force, fraud, or coercion,”
implicitly consensual. Courts, while
recognizing this “hole
in the statute,” have refused to fill it.[24] Subsequent attempts to
amend the law in order to punish anyone who “persuades, induces, or entices any
individual to engage in prostitution,”[25] and thus eliminate
“consent” as an absolute defense have been unsuccessful.[26] The repeated choice to leave a space for
consensual trafficking reflects the larger, international debate about “the
subcategory of commercial sex work and whether to distinguish between
consenting and non-consenting victims.”[27] And it might be that those who proposed, in
House Resolution 3887, that the reauthorized TVPA should include a definition
for a prosecutable crime of “sex trafficking” without a “force fraud or
coercion” requirement[28] are among those who “wish to see the sex industry die
out completely.”[29] But regardless of what the law’s effects
might have been on the sex industry,
examination of the proposed law makes clear that it does not call for the
prosecution of those whose bodies[30] are employed in
commercial sex work:
(f)
SEX TRAFFICKING.—
(1) NEW OFFENSE.—Chapter 117 of title
18,
United States Code, is amended by inserting at
the
end the following:
‘‘§
2430. Sex trafficking
‘‘Whoever knowingly, in or affecting
interstate or for
eign
commerce, within the special maritime and territorial
jurisdiction of the United States, or in any
territory or
possession of the United States, persuades,
induces, or en-
tices
any individual to engage in prostitution for which
any person can be charged with an offense, or
attempts
to do so, shall be fined under this title or
imprisoned not
more than 10 years, or both’’.[31]
The Department of Justice, in its
comments on the bill, suggested that it “would make all pimping, pandering, and
other prostitution-related offenses federal crimes.”[32] How?
The part about “pimping” and “pandering” are easy to understand as the
activities of a person who “persuades, induces, or entices.” But how would the law affect “other
prostitution-related offenses”? What are
“other prostitution-related offenses”?
Will “just being a sex worker” provide grounds for federal prosecution
under the new law? This seems to be
Department’s conclusion, at least according to those who cite the position
paper in defending their own opposition to the proposed reform.[33] The Department does not, however, cite to any
part of H.R. 3887 that would provide penalties for the act of engaging in sex
on a commercial basis.[34] Nor does it argue that the law could be
misapplied in this way.[35] Its letter to the House Judiciary Committee
on H.R. 3887 approaches the problem even more obliquely when it states that “to
the extent that this expansion of the Mann Act would federalize the criminal prosecution
of pandering, pimping, and prostitution-related offenses, it is unnecessary and
a diversion from Federal law enforcement's core anti-trafficking mission.”[36] The letter’s insinuation that the bill
federalizes, in a general way, all “prostitution-related offenses,” when so
qualified (“to the extent that”) becomes functionally meaningless. One commentator attempts to fill in the gaps
in the Department’s analysis by relying on the variance in meaning of the
near-synonyms “prostitution” and “commercial sex,”[37] and suggests that a sex
worker who attempts to entice clients into engaging in commercial sex, could be
convicted of trafficking her clients.[38] The argument fails most significantly because,
despite the observation that “in other parts of the United States Code,
"prostitution" has been replaced with the phrase "commercial
sex,"”[39]
the drafters of H.R. 3887 used the older and, in this case, more precise
word. The use of the word “prostitution”
restricts the scope of punishment to those who entice others to become sources,
and not consumers, of commercial sex. More
practically speaking, and as pointed out by one former State Department
official, all “federalization” arguments fail because they ignore the
Department’s discretion in deciding which cases to investigate.[40] The Department of Justice criticizes H.R.
3887 in a way that indirectly refers to the “consent” question when it asserts
that it “would equate every instance of adult prostitution with the worst forms
of labor and sexual exploitation, the ones often called "modern-day
slavery."”[41] Besides its overly-simplistic logic (Is federal income tax evasion equivalent to
“modern-day slavery”?) this statement deserves censure for its pitting of one
class of victims against another. While
traffickers successfully use the same methods of exploitation against people
from all walks of life, the fetishization of “innocence” and “consent” ensure
that “women who worked as sex workers prior to
being trafficked may be denied protection,”[42]
and that every victim of trafficking will find an additional hurdle between
herself and justice.[43] As noted by the UN High
Commission for Human Rights in the Beijing Declaration and the Platform for
Action, “strengthening existing legislation” in order to more effectively
punish perpetrators will serve to counteract the “external factors that
encourage trafficking in women and girls for prostitution and other forms of
commercialized sex.”[44]
The seemingly irresolvable questions regarding
the nature of “consent”, the meaning of “choice,” and the uncertainty of the
freedom of the will continues to complicate human attempts to codify their law,[45] perhaps especially in the
area of feminist legalism.[46] Robin West, in her article on “The Difference
in Women’s Hedonic Lives” suggests that liberal feminism and radical feminism,
as the two dominant strands of legal feminism are, at their roots “diametrically
opposed,” and that this opposition stems from different understandings of “consensual
choice.”[47] While liberal feminism emphasizes the
importance of removing artificial barriers to a woman’s exercise of her
autonomy,[48]
radical feminism suggests that because of the power imbalance between the
sexes, a woman’s autonomy may be of little worth when constantly threatened by
men’s structural power.[49] Again, in this paper, I hope to avoid taking
sides in philosophical debates on such issues as whether free will exists,
whether choice or empowerment better correlates with women’s happiness[50] and whether commercial
sex is best understood as a choice or as exploitation. Following West’s suggestion that feminist
legalism has been limited by the theoretical concerns of both liberal and
radical legalism,[51] this paper continues
under the idea that women’s happiness can be promoted more directly and more
pragmatically, “by focusing our attention on the harm we want to eradicate,
rather than on the classification or description of the thing we want to
prohibit.”[52] Specifically, the harm caused by trafficking
and the “force, fraud, or coercion” element of the current TVPA can be better
appreciated through the application of feminist scholarship on other types of
gendered violence.
Returning
to the case of United States v. Todd,[53] we should consider how
the defendant’s actions exploitation of his girlfriend and other women caused
harm to those women and how this harm relates to his legal culpability. Todd used the money from Kirschman to impress
other women, and after first establishing a romantic relationship and providing
housing with these women, he steered them into commercial sex work.[54] As with Kirschman, he confiscated their
earnings and used beatings or the threat of beatings to maintain control.[55] The jury convicted Todd under the TVPA, but
because they did not find that the offenses “were "effected by fraud,
force or coercion," as required by § 1591(b)(1),” Todd’s sentence was vacated on appeal.[56] The opinion hints at the two reasons for the
omission— simple forgetfulness, or the jury’s bifurcation of Todd’s modus
operandi.[57] Strictly speaking, Todd did not use force to
coerce women into prostitution; rather, the beatings and confiscation of
earnings began only after the women had first, tempted by Todd’s wealth and his
provision of housing, engaged in commercial sex work of their own free will.[58]
Although
outsiders can only speculate as to how the jurors arrived at a verdict and why
they neglected to respond to the “fraud, force, or coercion” question, the 47
on-line comments posted in response to a newspaper story about this case
provide some indication of local public opinion, albeit skewed because several
of the posters know the defendant or the women involved.[59] About one-quarter of the comments (with the
exact number depending on how one counts multiple comments by the same poster) condemned
the women, with most comments in this category suggesting that the women “deserve
to be pimped” either because they were “very stupid” or, conversely, because
“they knew what they were getting themselves into” and are thus “just as
guilty.”[60] Several posters suggested that the women
“will return to prostitution,”[61]
with one recommending that any woman arrested should be forced to forfeit to
the state her share of the defendant’s $68,500 restitution payment.[62] Even the trial judge resisted the
prosecutor’s motion for restitution, arguing “You're telling me that these
women who engaged in prostitution, which is against the law, get restitution
for acts of prostitution.”[63] Taken together, the comments about Todd’s
victims resemble the comments often made about victims of rape, especially in
cases where the victim knew her attacker or there was no weapon involved.[64] The point of this observation is not to argue
that every act of commercial sex is equivalent to rape, but rather to
acknowledge the familiar nexus of sex, an imbalance of power, and uncertain
consent— with the intention that on-going legislative reform in the area of
sexual violence can guide efforts to improve the efficacy of anti-trafficking
laws.[65]
According
to Professor Richard Klein, “rape
laws in this country had, up until the 1970s, made it quite difficult to
convict even the guilty for the crime of rape.”[66] Acknowledging this fact, despite his
contention that subsequent reform has resulted “steady erosion of the due
process rights,”[67]
Klein cautiously attributes this difficulty to jurors’ “stereotypical and
sexist views about the validity of a rape charge.”[68] Despite their ancient origins,[69]
these stereotypes have kept up with the times; in 1952, Yale Law Journal
published article explaining that women’s motivation for lying about sexual
violence could be understood through the study of Freud’s theories on rape
fantasies.[70] More recently, they have influenced
university responses to sexual assault charges.[71] In her book Real Rape, Susan Estrich emphasizes that
these stereotypical and sexist views, not only affect the decisions of jurors,
but those of police, prosecutors, and judges.[72] She confronts the reluctance of both society
and the judiciary to recognize that what the law terms “simple rape” causes the
same essential harm to a person as “aggravated rape.”[73] She traces this reluctance to distrust of the
rape victim, especially when the attacker is someone the woman knows or when
there is limited evidence of a serious, even life-risking physical struggle. Estrich analyzes such thinking in the
context of legal proceedings in the U.S. with an ultimate view of how the legal
system can better serve victims of rape and especially “acquaintance rape” or
“simple rape.” Estrich’s analysis of
rape law provides a mode for understanding the harm that results from the “force,
fraud, or coercion” of the current U.S. anti-trafficking law.
By
its nature, rape, especially without aggravating circumstances, is a difficult
crime to prove.[74] It usually takes place without a third-party
witness and, unlike murder or theft, can be committed without creating physical
evidence.[75] Without fully acknowledging this
prosecutorial difficulty, proponents of the “cautionary rule” emphasize the
danger to defendants posed by its corollary: because a rape can be committed
without creating evidence, a rape charge can be made without presenting
evidence.[76] Only recently have judges questioned why
these two sources of uncertainty shouldn’t cancel each other out.[77] Estrich identifies Sir Matthew Hale, a
seventeenth-century English jurist, as the first identifiable spokesman for the
propositions that first, woman often make false accusations of rape,[78]
and
following this, that the “cautionary rule”[79]
requires
a higher “standard of careful scrutiny . . . before proof beyond a reasonable
doubt could be held to have been established,”[80] and sometimes requiring
“corroboration of the complainant’s evidence.”[81] As Estrich discusses throughout her
book, the cautionary rule reflects more than epistemological concern for, in
the words of the Model Penal Code of 1962, the “difficulty in determining the
truth.”[82] The rule reflects a distrust of women
based on, again the 1962 Model Penal Code, their “emotional involvement.”[83] And thus a rape trial may turn on an inquiry
into the mental state of the victim. In
the common law tradition, the raped woman has been required to prove that her
attacker’s actions were “entirely against her wishes.”[84] Despite reform of sexual offenses law
in the U.S. and other common law countries, and repudiation of the “cautionary
rule” in the majority of states,[85] aspects of the suspicion that
duplicitous women regularly “cry rape,” for vindictive, mercenary, or
self-delusionary reasons[86] persists in the minds of
both judges and juries.[87]
Consider now the parallels to sex
trafficking. Like coerced sex and
consensual non-commercial sex, most commercial sex takes place without
witnesses and with limited physical evidence, making the crucial question of
consent very difficult to answer.[88] And when the victim has engaged in commercial
sex as in Todd, and has entered a
country illegally in a case of international trafficking, the suspicion arises
that she is not a victim, but a duplicitous woman “crying trafficking” when she
would have once “cried rape.” Without
disputing the contention that the stigma attached to commercial sex contributes
to distrust of commercial sex workers in the legal context[89], decriminalization alone
is unlikely to fix the problem, because of deeper, institutionalized distrust
of women who are victims of sexual violence.[90] The baseline assumption regarding women’s
sexuality is not that women are chaste, but that most are sexually indiscriminate
and easily corruptible.[91]
The
most likely way for a woman to show a lack of consent, in the context of either
rape or trafficking is to show the use of force, supported with evidence of her
own physical injuries.[92] A 1966 Stanford
Law Review article discusses “The Resistance Standard in Rape Legislation”
in view of protecting men from women who consent to sex (albeit with
“ambivalence or unconscious compliance”) and then make false accusations of
rape resulting from later “moralistic afterthoughts.”[93] The article suggests that a woman
must manifest her lack of consent through physical struggle, even to the point
that “death or serious bodily injury” are a possible, though “unlikely outcome
of the event.”[94] While thinking that would require women to
risk their lives in order to preserve grounds for a rape charge appears
outdated, how else can a victim of trafficking, without the benefit of
corroborating witnesses, maintain that her “consent” was accomplished through
the use force, except by the evidence of visible physical injury? Estrich observes that while the presence of a
weapon has generally made conviction much easier in aggravated rape cases,
society has been reluctant to regard a single, unarmed attacker as a credible
threat.[95] And when force is not directly threatened,
but implied, U.S. courts continue to hold a high standard for non-consent.[96] In People
v. Evans, the New York Supreme Court, referred to the victim as “gullible,
trusting, and naïve,”[97] in overturning the
conviction of a man, apparently unarmed, who nevertheless threatened, “I could
kill you.”[98] As Estrich suggests, such reasoning betrays
not only distrust of the victim, but a belief that men have a right of sexual
access to women who do not adequately protect themselves.
Distrust
of the victim of sexual violence manifests itself also in the “prompt
complaint” requirement, which a 13th century legal scholar explained
as follows:
When
therefore a virgin has been so deflowered and overpowered ... forthwith and
whilst the act is fresh, she ought repair with hue and cry to the neighbouring
vills, and there display to honest men the injury done to her, the blood and
her dress stained with blood, and the tearing of her dress, and so she ought to
go to the provost of the hundred and to the serjeant of the lord the King, and
to the coroners and to the viscount and make her appeal at the first county
court.[99]
As
with the “utmost resistance,” standard, the “prompt complaint” requirement
sounds antiquated, but again, as Michelle Anderson points out in her article on
the subject, its legacy persists, with the support of the Model Penal Code:[100]
Prompt
Complaint. No prosecution may be instituted or maintained under this Article
[for sexual offenses] unless the alleged offense was brought to the notice of
public authority within [3] months of its occurrence ... .[101]
According to Anderson, “no other
crime in the Model Penal Code requires a similar prompt complaint.”[102] Sex traffickers often use rape as a tool of
intimidation, especially when introducing newly-trafficked women to commercial
sex.[103] When a trafficker successfully intimidates a
trafficking victim so that she no longer challenges his orders and does not
resist each particular commercial sex act, the immediate role of aggravated
rape moves into the background.[104] While sex continues to be unwanted for the
woman,[105]
it may appear consensual to a trafficker or pimp, his clients, even to the
woman herself, and thus to a jury taught to judge unwanted sex by this
standard.[106]
Just as it may be difficult to prove
how an act of violence affected a subsequent, seemingly “consensual” series of
exploitative events, so can our evaluation of a violent act be colored by the
precedent relationship.[107] For instance in Todd, each victim initial contact with the defendant was in the context
of a “romantic” relationship.[108] In other trafficking situations, the
relationship may be friendly or professional.[109] In the case of rape, juries are less likely
to convict when a woman knows her assailant, and especially when she has known
him for a long time.[110] Estrich suggests this is because acquaintance
rape differs from the stranger rape in that jury members regard strangers as
the most likely threat to themselves or to the women they care about.[111] This suggests yet another way that a
trafficker’s success in controlling a trafficked woman will not only enhance
his ability to profitably exploit her, but will also protect him from
prosecution by creating an illusion of consent.[112]
From a discussion of a rape victim’s
relationship with the defendant, courts frequently expand to the subject of her
general sexual history.[113] In Todd,
the opinion reported, that one of the complainants was “the unmarried mother of a young
child,” and that after leaving the defendant she had “continued to work as a
prostitute on her own.” [114] One of the other complainants “was living
with a boyfriend, and had been working for a week as a prostitute” when she met
the defendant.[115] And a third “had previously engaged in four
or five acts of prostitution.”[116] The court reports these facts without
comment or analysis, so it is impossible to know how the women’s histories
contributed to the holding, but one clear implication is that the women are
less credible and Todd less culpable because these women were already “fallen.” One scholar relies on such thinking to
suggest that “the image of the ‘trafficking’ victim turns out to be a figment
of neo-Victorian imaginations” not because women are not being trafficked, but
because “slave-like conditions in sex work are primarily problems for those
already working in the sex trade.”[117] Another scholar questions the usefulness of
State Department statistics reporting the number of trafficking victims on the
basis that “the majority of these women are already
employed as prostitutes before they are trafficked.”[118] These critics miss what should be the real
point of anti-trafficking efforts, but they have their counterparts among
anti-trafficking activists whose arguably disproportionate concern for women
“forced into prostitution,”[119] may be interpreted as
callous indifference to women who consider their engagement in commercial sex at
least semi-voluntary, but have also been exploited by traffickers. Trafficking, like rape, is criminal primarily
because it violates a woman’s right to physical integrity[120] and not because it robs
a woman of a quasi-property right in virginity or chastity. While “sexually innocent” victims are many, an
effective anti-trafficking law should protect all people from
exploitation. Inquiries into the
identity and sexual history of the victim and the harmful “force, fraud, or
coercion” requirement mutually sustain and reinforce each other. Both should be eradicated from our
trafficking law.
After
the first reforms of sexual offences laws, the consent question shifted from
one of “utmost resistance” to effective notice, by which the law inquires into
whether an attacker knew his victim did
not consent.[121] The most notorious example of this thinking
is found in the English case Director of
Public Prosecutions v. Morgan, in which a woman is raped by four men rape
who “mistakenly believed” her husband’s assurances that she enjoyed forced sex.[122] Although these men were convicted according
to the thinking that the men’s belief was not reasonable, the case gave
specific words to the so-called “rapist’s charter,” which finds a defendant’s
guilt not in a victim’s lack of consent but in his reasonable knowledge of her
refusal.[123]
While
this rule is not recognized in U.S. statute or common law, the thinking behind
it does affect how juries evaluate a woman’s efforts to prove her effective
non-consent.[124]
And its relevance to the current
anti-trafficking law can seen by turning once more to Todd, which considers the question of defendant Todd’s knowledge to
be the “crux” of the government’s case:
“Could
Todd have known when he soft-soaked Whitney T., Whitney E., and Jamelle L. to
go to work for him that later "force, fraud, or coercion would be
used" to cause each of them to engage in commercial sex? How does anyone
"know" the future?”[125]
Here
the question of knowledge is further attenuated from the question of consent
than under Morgan. By separating the act of “enticement” (whether
“the defendant knowingly did recruit, entice, harbor, transport, provide, or
obtain a person”[126]) from the act of
“coercion”( Whether “the
defendant did so knowing that force, fraud, or coercion would be used to cause
[Whitney T]. to engage in a commercial sex act.”[127]), the opinion frames the
question in terms of the defendant’s state of mind at a point in time when the
victim’s involvement was still consensual, and before he had found a need to
use force to accomplish his ends. Removing the “force, fraud or coercion,”
would eliminate questions as to when a victim effectively manifested intent and
re-focus on traffickers’ actions as a coordinated sequence efforts without
discrete purposes to either entice or coerce, but a general motivation to
exploit.[128] This holistic approach is especially valuable
when trafficking is accomplished not by an individual or a formal conspiracy,
but by a collection of loosely-organized actors who are not fully aware of each
others’ actions or motivations. Consider
the following case from Surinam, reported by the International Office on
Migration:
This case involves
the story of a 15 year old Guyanese girl. . . . .She came to Suriname with her
aunt. Her family told her that living in Suriname with her aunt is better then
living in Guyana, and that she would be helping her aunt, selling goods. . . .
.Now she has no other income than what she receives from providing sex
services. She works at two locations (commercial sex) did not sign a contract
and helps her aunt take care of the family. . . . . If she goes on the street
with her aunt she gives the money to her aunt’s friend. She has no contact with
her family in Guyana, but she wants to go back to her grandmother. She came through backtrack[129] and did not use a visa.
She has no documents and is dependent on the people who brought her to Suriname
through backtrack. If she wants to leave the country, she has to leave in the
same way. During the transportation she was treated well and was not concerned
about her safety as so many people take backtrack. . . . . She is not aware of
the interaction among officials, but when she arrived in Paramaribo a woman had
arranged everything. And now she also has to work in that woman’s house. . . .
. In the morning she can sleep late a little bit, but she has to help her aunt
with housekeeping and at seven o’clock she has to go on the street and
prostitute herself. She also works in two clubs. She does not have much contact
with others. Her aunt tells her that clients do not like it when she knows a
lot of people. She has no access to the health services; she has only taken a
test regarding HIV/ AIDS. She is not being hit. She knows that if the police
know that she came to Suriname through backtrack, she will be locked up in
prison. She can go everywhere, but her nephew or her aunt’s friend always
escorts her, because she does not know Suriname well enough.[130]
If
this were a U.S. case, because it involves a 15-year old would be decided
without reference to the consent question.[131] Nevertheless, because it is, according to
IOM, “representative of the recruiting methods used in trafficking persons for
the purpose of sexual exploitation,”[132] it is useful in
suggesting how the questions of “knowledge” and of “coercion” complicate
prosecution efforts. If this case is
“representative” of trafficking, then who are the traffickers? The most likely perpetrator is the aunt, but
does the aunt have “knowledge” of “coercion?”
The aunt might contend that she requires only that the girl help with
housekeeping in return for room and board.
The prostitution is voluntary and the aunt does not receive the money;
the money goes to the “aunt’s friend.”
Did the “aunt’s friend” apply “force fraud or coercion?” No, the aunt’s friend passively follows the
aunt’s instructions to receive money and distribute it to others. Does the family in Guyana receive some of the
money? Yes, but they were told it was to
pay for the girl’s work in the store. Do
the police, the backtrackers who treated her well, the officials, and the woman
who “had arranged everything,” receive some of the money? Yes, yes, but they never knew anything was happening to the girl without her consent. What about the health workers whose medical
care consists only of frequent HIV tests, what did they know? What did the owners of the clubs know? Maybe they knew or suspected that something
irregular was going on, and that the girl was working as a prostitute, but they
didn’t know there was coercion, or trafficking.
Likewise, the clients knew nothing and the nephew honestly and perhaps
reasonably believed that he was escorting her for her own safety, and not to
prevent her flight.
This paper does not recommend that,
if this were a U.S. case and the victim an adult woman, that all the
individuals noted above should be prosecuted.
Nor would an alternate definition of sex trafficking in the TVPA without
the element of “force, fraud, or coercion,” require such a dragnet
approach. Rather, removing the “force,
fraud, or coercion” element, opens up new routes for trafficking investigation
through the rebuttable presumption that a woman providing commercial sex is
being exploited by a third party. Such a
presumption would not promote the arrest of sex workers any more than rape law
reform has promoted the arrest of rape victims.
Instead it would counteract the assumptions that sex without active and
constant resistance is by definition sex with consent and that sex with such
consent by default is equivalent to wanted sex.
Because, like rape, trafficking is
most successful when its perpetrators make it feel to their victims like
“seduction,”[133]
and because the laws have been written to carve out a space for “seduction,
whether sinister or benign”[134] and to protect the “male
right of sexual access,”[135] the “consent question”
poses a significant hurdle to effective prosecution of both crimes. As I have discussed above, public thinking
has moved beyond the conception of rape as a crime against a woman’s virginity[136] in which any honest and
pure-minded woman would resist to the utmost, and thus sustain the severe
physical injuries needed to sustain her claim.
Nevertheless, the thinking persists that men, and their “seduction interests”
need to be protected from women who lie, or change their minds, who are too
trusting, or who allow men to believe they are freely available. Such beliefs persists despite studies that
false allegations of rape are no more common than false allegations of other
crimes[137]—
and for which the Model Penal Code does not prescribe an additional level of
caution.[138] Such beliefs persist despite that the number
of visas issued to trafficking victims since — while capped at 5,000 per year due
to fear of fraud[139]— has barely exceeded
1,000 summed over all years.[140] But “beliefs” by themselves, as I have
emphasized through this paper, are not the issue. The issue is the effect of these
beliefs. When prosecutors believe that a
“technical rape” cannot be successfully prosecuted and drop charges, rape
victims learn to believe that the legal system cannot protect them and rapists
learn to believe they can assault women with impunity.[141] Similarly, when trafficking crimes cannot be
effectively prosecuted due to the common uncertainty about exactly where in a
chain of events and actors, there was “force, fraud, or coercion,” victims
learns to believe that official attention will lead not to relief but to more
danger, and survival instincts reinforce their misplaced trust in their
traffickers.[142] Unlike rape, trafficking is a crime that
cross state and national boundaries, and thus requires attention by federal and
international law. For this reason, if
the Department of Justice continues to oppose reform of the TVPA that would
allow prosecution of “sex trafficking,[143] without evidence of
“force, fraud, or coercion,” it should better explain what why a particular level
of resistance on the part of a trafficking victim entitles her to federal
protection. Anyone who explains the
distinction between the Federal crime of “severe forms of trafficking in
persons” and the un-prosecutable activity of “sex trafficking,” by referring to
“consent,” should re-consider their position in light of that doctrine’s
harmful effects in the area of rape. The
United States has responsibility to not only prosecute criminals, but to deter
exploitation,[144]
by making it “more risky and less profitable.”[145] To do this the TVPA should be reformed so as
not to accommodate traffickers’ manipulative skills, and give proper attention
to traffickers intention to exploit and to the resulting harm. The prosecution of Shelby Lewis for
exploiting his foster daughter resulted from the willingness of law enforcement
officials to investigate child prostitution as evidence of a larger crime in
which the visible perpetrator is a quasi-consenting agent being exploited by
others. This paper has shown that adults
can also be exploited by traffickers, often most successfully without obvious
coercion, and therefore recommends that law enforcement officials show a
similar willingness to investigate the subtleties of adults sex work. Rather than leading to the “federalization of
prostitution,” or a new way to punish women who offer themselves for commercial
sex, this recommendation entails better protection— an exhortation to look
behind the individual sex worker for evidence of exploitation and trafficking.
[1]
Press Release, Federal Bureau of Investigation
Washington Field Office, Maryland Pimp Federally Indicted for Trafficking Four
Juveniles, Including One 12-Year-Old, into the District of Columbia for
Prostitution (September 1, 2009) available
at http://washingtondc.fbi.gov/dojpressrel/pressrel09/wfo090109a.htm.
[2] Id.
[3]
Freeman Klopott, Judge: Pimp was child
prostitute's foster father, The Washington
Examiner, Oct.. 25, 2009, available
at http://www.washingtonexaminer.com/local/crime/Judge_-Pimp-was-child-prostitute_s-foster-father-8430191-65840457.html.
[4]
Summary of Recent Court Cases, The Court
Report 5th Police District
(U.S. Attorney’s Office District of Columbia), Jan. 2010, at 1 available at http://www.justice.gov/usao/dc/Community_Prosecution/Court_Reports/JAN10/5D_Final_%20January_Court_%20Report.pdf.
[5]
U.S. Department of Justice, Child Exploitation and Obscenity Section, Trafficking and Sex Tourism, http://www.justice.gov/criminal/ceos/trafficking.html
(quoting Former President Bush, addressing the U.N. General Assembly, September
23, 2003).
[6]
Calvin C. Cheung, Protecting Sex
Trafficking Victims: Establishing the Persecution Element, 14 Asian Am. L.J. 31, 33 (2007).
[7] United States v. Todd, 584 F.3d 788, 789
(9th Cir. Wash. 2009).
[8] Id.
[9] Cheung,
supra note 6, at 50.
[10] Tala
Hartsough, Asylum for Trafficked Women:
Escape Strategies Beyond the T Visa, 13
Hastings Women's L.J. 77, 84-85 (2002).
My own interest in writing this paper is motivated in part my own
fact-finding trip to Guyana in 2009. In
one interview, I was told that small mining operations often recruit young
women and girls from Amerindian villages to work as cooks at their camps in the
jungle. Because of such women’s
isolation, absolute dependence on their employers, threats of rape, and lack of
police protection, they often engage in commercial sex with their employers: “They
don’t say I want you to work as a prostitute. It is a very subtle way. You come
into work, you might work a day or two or a week and gradually you are weaned
into this. So you draw a wage as a cook but you turn to accepting money for
other services as well.” Interview with Jean LaRose, Program Administrator,
Amerindian People’s Association, in Georgetown, Guyana (March, 2009). Such accounts may prompt even a sympathetic
audience to ask, “Wasn’t she suspicious when half-a-dozen gold prospectors came
out of the jungle looking for a woman to be their ‘cook’?” Should suspicion approximate consent? It’s hard to provide a nuanced answer to
these questions based on a 10-day trip, and this paper generally limits itself
to my native country, the United States.
[11] Cheung,
supra note 6, at 33
[12]
Elizabeth Kaigh, Whores and Other Sex
Slaves: Why the Equation of Prostitution with Sex Trafficking in the William
Wilberforce Reauthorization Act of 2008 Promotes Gender Discrimination 12 Scholar 139 , 141(Arguing for a
brightline distinction between prostitution and sex trafficking: “In actuality,
the two are distinguished by one fundamental difference: consent of the woman
having sex.”); Hartsough, supra note 10,
at 85, n.85 (“Women that are both informed and in control of their own
movements are not considered trafficked persons.”); Susan E. Thompson, Prostitution-A Choice Ignored 21 Women's Rights L. Rep. 217, 233 (“The
major criticism of the radical feminist approach is its inability to
acknowledge the difference between voluntary prostitution and involuntary
prostitution.”).
[13] Report of the Special Rapporteur on Violence Against Women,
Its Causes and Consequences, U.N. ESCOR,
Hum. Rts. Comm., 56th Sess., Agenda Item 12(a), U.N. Doc. E/CN.4/2000/68 para.
12 (Feb. 29, 2000) [hereinafter 2000 Report of Special Rapporteur], available
at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/e29d45a105cd8143802568be0051fcfb/$FILE/G0011334.pdf.
[14] Id., para. 85.
[15] Id., para. 90 (italics added).
[16] Id., para. 12.
[17]
Liz Kelly, The Wrong Debate: Reflections
on Why Force is Not the Key Issue with Respect to Trafficking in Women for
Sexual Exploitation, 73 Feminist Review 139, 142 (2003) available at http://www.palgrave-journals.com/fr/journal/v73/n1/pdf/9400086a.pdf.
[18]
Arguably the U.N. Protocol provides broader protection, by criminalizing
“sexual exploitation and declaring a victim’s consent “irrelevant.” See
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention Against
Transnational Organized Crime, G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess.,
Supp. No. 49, at 60. U.N. Doc. A/45/49 (Vol. I), Art. 3(a)-(b) (2001)
[hereinafter 2001 Trafficking Protocol].
These articles acknowledge that a woman’s environment “may give rise to
fully coercive dynamics.” Janet Halley, Prabha Kotiswaran, Hila Shamir &
Chantal Thomas, From the International to
the Local in Feminist Legal Responses To Rape, Prostitution/Sex Work, and Sex
Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335, 359
(2006). On the other hand, the protocol
seems to leave open the possibility of sex work without exploitation. Id.
(The Protocol's travaux preparatoires make clear that the Protocol was without
prejudice to national legal systems on prostitution.).
[19] Susan
W. Tiefenbrun, Sex Slavery in the United
States and the Law Enacted to Sop it Here and Abroad, 11 Wm. & Mary J. of Women & L. 317,
328-329 (2005) (“Moreover, the TVPA requires a show of force, fraud, and
coercion to prove a case of trafficking. This requirement often makes it
difficult to prosecute cases in which trafficked victims are not coerced into
prostitution.”)
[20]
Kaigh, supra note 12, at 151.
[21]
Trafficking Victims Protection Act of 2000,
Pub. L. No. 106-386 2A, 114
Stat. 1464 (2000) [hereinafter
TVPA], as supplemented by the Trafficking Victims Protection Reauthorization
Act of 2003, Pub. L. No. 108-193, 117
Stat. 2875 [hereinafter
2003 TVPRA], the Trafficking Victims Protection Reauthorization Act of 2005,
Pub. L. No. 109-164, 119
Stat. 3558 (2006) [hereinafter
2005 TVPRA], and the ‘‘William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008)
[hereinafter 2008 TVPRA] (codified at 22
U.S.C. 7101).
[22] 22
USCS § 7102.
[23] Janie
Chuang, The United States as Global
Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 Mich. J. Int'l L.
437, 450 (“[T]he TVPA includes "sex trafficking" as a defined
term, it limits the application of its operational terms to "severe forms
of trafficking in persons" - i.e., trafficking involving force, fraud, or
coercion in the inducement of a commercial sex act or other end purpose of the
trafficking.”) (citations
omitted).
[24] United States v. Todd, 584 F.3d 788, 793
(9th Cir. Wash. 2009).
[25]
H.R. 3887, 110th Cong. (1st. Sess. 2007) TVPRA § 222(a)(1).
[26]
The 2008 TVPRA, as enacted, does not include an operationalized definition of
sex trafficking. See Kaigh, supra note 12, at 143.
[27] Erin
Elizabeth Chafin, Regulation or
Proscription?: Comparing American and Philippine Proposals to Solve Problems
Related to the International Marriage Broker Industry, 23 Penn St.
Int'l L. Rev. 701 (2005).
[28]
HR 3887, §221(f)(1).
[29] Kaigh,
supra note 12, at 141.
[30] A
problem with the broad term “commercial sex worker” is that it could apply not
only to a person whose involvement with the work is directly supplying the sex,
but to those whose involvement is strictly in the areas or management,
marketing, distribution, collections etc. See
10 Geo. J. Gender & L. 433, 436 (“Considered broadly, the sex industry
includes legal and illegal activities. Certain forms of sex work, such as child
pornography, pimping, pandering, and exchanging sexual acts for pay, are
prohibited in most states.”).
[31] HR
3887, §221(f)(1).
[32] Press
Release, U.S. Dep't of Justice, H.R. 3887 The William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2007 as Passed by the House of
Representatives on December 4, 2007 (Dec. 4, 2007), available at
http://www.usdoj.gov/olp/pdf/doj-position-on-hr3887.pdf [hereinafter DOJ
Position Paper].
[33] Letter
from Alexandria House et al. to U.S. Senate Regarding Sexual Trafficking and
Federalization of Prostitution (Jan. 23, 2008) available at http://multiracial.com/site/content/view/1582/49/;
Resisting The Repression: When The Alliance of Progressives, Christian and
Feminist Fundamentalists Attempt to Make Prostitution a Federal Crime, http://www.bayswan.org/traffick/HR3887.html; Brian W. Walsh
& Andrew M. Grossman, Human
Trafficking Reauthorization Would Undermine Existing Anti-Trafficking Efforts
and Constitutional Federalism, Legal Memorandum #21, The Heritage Foundation, Feb. 14, 2008, http://www.heritage.org/Research/LegalIssues/upload/lm
21.pdf (“Fighting crimes as common as prostitution, pimping, and
pandering would place significant demands on the Federal Bureau of
Investigation.”); Kaigh, supra note
12, at 144 (Asserting that H.R. 3887 would “federalize a crime that many do not
agree should be punished.”).
[34] DOJ
Position Paper supra note 32.
[35] Id.
[36]
Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney General,
Department of Justice to John Conyers, Jr, Chairman, Committee on the
Judiciary, U.S. House of Representatives (Nov. 9, 2007) available at http://www.justice.gov/olp/pdf/dept-view-letter-hjc-on-hr3887.pdf.
[37] Kaigh,
supra note 12, at 172 n.96.
[38] Id. at 153-54.
[39] Id. at 153.
[40] John
R. Miller, The Justice Department, Blind
to Slavery, The New York Times,
July 11, 2008. (“After all, the Justice
Department knows that it will prosecute only the biggest pimps just as it goes
after only the biggest drug dealers.”).
[41] DOJ
Position Paper, supra note 32.
[42] 2000
Report of Special Rapporteur, supra note
13.
[43]
April Rieger, Missing the Mark: Why the
Trafficking Victims Protection Act Fails to Protect Sex Trafficking Victims in
the United States 30 Harv. J.L. &
Gender 231, 249 (Describing difficulties for both victims and
prosecutors in qualifying victims of trafficking: “This kind of essentialism of
what it means to be a sex trafficking victim is harmful because it defines the
average victim in such a manner that it necessarily makes all women who choose
sex work "bad" prostitutes who are not worthy of protection. “).
[44] U.N.
High Commissioner for Human Rights, Sub-Commission on Human Rights, Traffic in
Women and Girls, Res. 2002/51, at 5, U.N. Doc. E/2002/23 (Apr. 23, 2002).
[46] Daniel
A. Farber, William N. Eskridge, Jr. & Philip P. Frickey,
Constitutional
Law: Themes for the Constitution's
Third Century 361-63 (2nd ed. 1998).
[47] Robin L. West, The Difference
in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal
Theory, 15 Wis. Women's L.J. 149, 180 (2000).
[48] Id. at 160 (Finding the root of feminist
legal liberalism in the belief that “women as well as men create value by
satiating their subjective desires through consensual choices, ” and that “the
way to deal with women's suffering is to increase women's sphere of consensual
freedom.”)
[49] Id. at 180.
[50] See id. 181-82.
[51] Id. at 196 (Arguing that the “dismissal
of women's internal lives as a criterion of value in favor of an objective
political agenda has at least three costs.”).
[52] Id. at 205.
[53] United States v. Todd 584 F.3d 788, 789 (9th Cir. Wash. 2009).
[54] Id., 789-90.
[55] Id.
[56] Id., 792.
[57] Id., 793.
[58]
See id., 790 (“Todd told Whitney that
if she too worked as a prostitute for a couple of years she could have nice
cars and a nice house.”).
[59]
Paul Shukovsky, Man gets 26 years as sex
trafficker, Seattle
Post-Intelligencer Sept. 29, 2008, http://www.seattlepi.com/local/381048_sextrafficking30.html [hereinafter
Shukovsky] ; postings of multiple contributors to SoundOff, http://www.seattlepi.com/soundoff/comment.asp?articleID=381048 [hereinafter
SoundOff].
[60] Id.
[61]
Indeed, according to the circuit court, at least one of the women has
“continued to work as a prostitute on her own.” Todd 584 F.3d at 791.
[62]
SoundOff, supra note 59.
[63] Shukovsky,
supra note 59.
[64]
Susan Estrich, Real Rape 4-5
(1987).
[65]
Intimate partner violence might provide an even better model of analysis since
it confronts the question of “Why didn’t she just run away?” most
directly. See Kelly, supra note 17
(“We do not deny women’s victimisation in situations of domestic violence when
they exercise agency and return to violent men, yet a different logic seems to
apply to trafficked women (and women in prostitution more widely) – that if
they can be said to exercise any agency, then they are not victims/victimised.”).
[66] Richard
Klein, An Analysis of Thirty-Five Years
of Rape Reform: A Frustrating Search for Fundamental Fairness 41 Akron L. Rev. 981, 983 (2008).
[67] Id. at 982.
[68] Id. at 983.
[69]
Michelle Anderson, The Legacy of the Prompt Complaint Requirement,
Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault
84 B.U.L. Rev. 945 (2004).
[70]
Note, Forcible and Statutory Rape: An
Exploration of the Operation and Objectives of the Consent Standard, 62
Yale L. J. 55 (1952)(as cited by Estrich.).
[71]
Anderson, supra note 69 at 950.
[72]
Estrich, supra note 64 at 15.
[73] Id. at 7.
[74]
Klein, supra note 66 at 986.
[75] See Estrich, supra note 64 at 21.
[76] Klein,
supra note 66 at 985.
[77] Id. at 983 (“To be sure, the rape laws in this
country had, up until the 1970s, made it quite difficult to convict even the
guilty for the crime of rape.”).
[78]
Estrich, supra note 64 at 5 n.6.
[79] Id.
[80]
Rex v. W 1949 (3) SA 772, 783.
[81] See Rex v. W at 780.
[82]
Estrich, 54 (citing Model Penal Code § 213.6(5) (Official Draft 1962)).
[83] Id.
[84] Estrich,
supra note 64 at 36.
[85] Anderson,
supra note 69 at 977.
For a non-U.S.
perspective, consider the rejection of the cautionary rule by courts in
southern Africa. S
v Katamba 1999 NR 348 (SC); S v
Jackson 1998 (2) SA 984.
[86] Klein,
supra note 66 at 984.
[87] Estrich,
supra note 64 at 79.
[88] Amnesty
Int'l, Living in the Shadows: A Primer on
the Human Rights of Migrants, AI Index POL 33/006/2006, Sept. 2006.
[89]
Thompson supra note 12 at 240.
[90] Daniel P. Whitmore , Enforcing
the Equal Protection Clause on Behalf of Domestic Violence Victims: The Impact
of Doe v. Calumet City 45
DePaul L. Rev. 123, 155 (1995).
[91] Laurie Shrage, Moral Dilemmas of Feminism
117 (1994).
[92] Brown v. State, 106 N.W. 536, 538 (Wis.
1906)(“Not only must there be entire absence of mental consent or assent, but
there must be the most vehement exercise of every physical means or faculty
within the woman's power to resist the penetration of her person, and this must
be shown to persist until the offense is consummated.”).
[93] Estrich,
supra note 64 at 38, citing Note,
“The Resistance Standard in Rape Legislation,” 18 Stanford Law Review 682
(February 1966).
[94] Id.
[95] Id at 4.
[97] Id. at 1091.
[98] Id. at 1093.
[99] Anderson,
supra note 69 at 947 (citing Henrici
De Bracton, 2 De Legibus et Consuetudinibus Angilae 483 (Sir Travers Twiss
trans., 1879)).
[100]
Id.
[101]
Model Penal Code 213.6(4) (1980).
[102]
Anderson, supra note 69 at 948.
[103]
Kelly E. Hyland, Protecting Human Victims
of Trafficking: An American Framework 16
Berkeley Women's L.J. 29, 41(2001) (“Upon arrival at their destination,
women are often initiated into prostitution through gang rapes to teach them
what they can expect from their new life.”); Elizabeth Hopper & Jose
Hidalgo, Invisible Chains: Psychological
Coercion of Human Trafficking Victims 1 Intercultural
Hum. Rts. L. Rev. 185, 196-96 (2006) (“In some situations of sex
trafficking, traffickers gang rape their victims, a form of initiation that
involves breaking down the will to resist.”).
[104]
Id. at 200-201 (Describing “how
traffickers are able to break down victims' survival responses in order to
control them without the use of physical force.”).
[105]
For insights into the harms of unwanted, but legally consensual sex, see Robin
West’s article on the 2006 rape allegations against Duke Lacrosse players and
Tom Wolfe’s novel, I am Charlotte Simmons. Robin West , Literature, Culture, and Law – at Duke University in Teaching Law and Literature (Catherine
Frank & Matthew Anderson eds., forthcoming).
[106]
Catharine A. MacKinnon, Women's Lives -
Men's Laws 158 (2005) (Suggesting that a belief in power-based male
entitlement makes the "coercion of women into and within prostitution has
been invisible because prostitution is considered sex and sex is what women are
for.").
[107]
Estrich, supra note 64 at 14.
[108]
United States v. Todd 584 F.3d 788, 789 (9th Cir. Wash. 2009).
[109]
Florida State University Center for the Advancement of Human Rights, Florida Responds to Human Trafficking 42
(2003), available at
http://www.cahr.fsu.edu/sub_category/thereport.pdf. This study describes the Cadena case in which trafficked women
were promised jobs as waitresses and later forced into prostitution: “The
specter of a sinister male trafficking recruiter was absent from their stories
- almost invariably it was a woman who had recruited them.” Even while forcing the women to work as
prostitutes, some traffickers professed love for certain women, “resulting in
the women benefiting from small favors such as extra food,” and in the
establishment of a hierarchy among the women that entrenched the traffickers’
control.
[110]
See David P. Bryden & Sonja
Lengnick, Criminal Law: Rape in the
Criminal Justice System 87 J. Crim.
L. & Criminology 1194, 1266 (1997) (Summarizing a study that
concluded that if "any relationship is known to exist between the victim
and the accused, no matter how casual, the proportion of those who consider the
event rape drops to less than 50 percent.").
[111]
Estrich, supra note 64 at 31.
[112]
Hopper & Hidalgo supra note 103,
at 205 (“after trafficking victims have been indoctrinated through severe
psychological coercion, they may remain in an exploitative situation with
minimal controls because they have lost their belief in their ability to
resist”).
[113]
Estrich, supra note 64 at 51-53.
[114]
Todd
584 F.3d 790.
[115]
Id.
[116]
Id.
[117]
Jo Doezema, Forced to Choose: Beyond the Voluntary v. Forced Prostitution
Dichotomy in Kamala Kempadoo
& Jo Doezema, eds., Global Sex Workers: Rights, Resistance, and Redefinition 45 (1998).
[118]
Mikela French, Plying the Trade Freely:
Prostitution and European Union Trade Agreements in The Case of Aldona
Malgorzata Jany and Others 45 Alberta
L. Rev. 457, 459 n.14. (italics added)
[119]
In her article on how the consent debates seems to distract from more pressing
issues, anti-trafficking activist Liz Kelly struggles with the sensationalist
aspect of her field. See Kelly, supra note 17 at 139. (“But
just as with domestic violence and child sexual abuse most trafficking is more
mundane, involving everyday, routine power and control relationships. That
said, however, there has to be a space in which one can cite the worst cases,
because they are real, they happened, and are happening, to real women, without
being accused of over dramatisation.”).
[120]
International Covenant on Civil and
Political Rights art. 8, Dec. 16, 1966, S.Treaty Doc. No. 05-20, 999 U.N.T.S.
171, 6 I.L.M. 368. (1967).
[121]
Estrich, supra note 64 at 92-94.
[122]
2 All E.R. 347 (1975)(as cited by Estrich, supra
note 64).
[123]
Dolly F. Alexander, Twenty Years of
Morgan: A Criticism of the Subjectivist View of mens rea and Rape in Great
Britain 7 Pace Int'l L. Rev. 207
n.115 (1995).
[124]
Estrich, supra note 64 at 92-94.
[125]
United States v. Todd, 584 F.3d 788,
792 (9th Cir. Wash. 2009).
[126]
Id. at 791.
[127]
Id. at 792.
[128]
United Nations Commission on the Status of Women, Eliminating Demand for
Trafficked Women and Girls for All Forms of Exploitation. E.S.C. Res. 49/2,
U.N. ESCOR Commission on the Status of Women, 49th Sess., Supp. No. 7, at 13,
U.N. Doc. E/CN.6/2005/11 (2005).
[129]
Slang for illegal border crossing.
[130]
International Office on Migration, Exploratory
Assessment of Trafficking in Persons in the Caribbean Region 137 (2005)
(citing Key informant interview, Suriname.).
[131]
The term "severe forms of trafficking in persons" means-- sex
trafficking in which a commercial sex act is induced by force, fraud, or
coercion, or in which the person induced to perform such act has not attained
18 years of age. 22 USCS § 7102 (8)(A).
[132]
International Office on Migration, Exploratory
Assessment of Trafficking in Persons in the Caribbean Region 136 (2005).
[133]
Estrich, supra note 64 at 70.
[134]
Commonwealth v. Mlinarich, 345 Pa.
Super. 269 (Pa. Super. Ct. 1985)(Taking a position analogous to the Department
of Justice regarding H.R. 3887, the court warns of the danger that broader
protection might “trivialize the plight of the helpless victim of a violent
rape.”).
[135]
Estrich, supra note 64 at 71.
[136]
Anderson, supra note 99.
[137]
Anderson, supra note 69 at 985
(citing the Department of Justice Office for Victims of Crime, U.S. Dept. of
Justice, First Response to Victims of
Crime 2001 10 (2001). But see Edward Greer, The Truth Behind
Legal Dominance Feminism's "Two Percent False Rape Claim" Figure, 33
Loy. L.A. L. Rev. 947, 949-51 (2000) (“As far as can be ascertained, no study
has ever been published which sets forth an evidentiary basis for the "two
percent false rape complaint" thesis.”).
[138]
Estrich, supra note 64 at 40.
[139]
Jennifer M. Wetmore, The New T Visa: Is
the Higher Extreme Hardship Standard Too High for Bona Fide Trafficking
Victims? 9 New Eng. J. Int’l &
Comp. L 159, 167.
[140]
Christal Morehouse Combating human trafficking: policy gaps and hidden
political agendas in the USA and Germany 117 (2009).
[141]
Estrich, supra note 64 at 24.
[142]
Hopper & Hidalgo supra note 103,
at 198.
[143]
The crime is defined in the currently defined as
follows: “SEX TRAFFICKING.—The term
‘‘sex trafficking’’ means the recruitment, harboring, transportation,
provision, or obtaining of a person for the purpose of a commercial sex act.” 22
USCS § 7102. The problem is that only
“SEVERE FORMS OF TRAFFICKING IN PERSONS” are punished by law. Chuang supra
note 23.
[144]
United Nations Commission on the Status of Women, Eliminating Demand for
Trafficked Women and Girls for All Forms of Exploitation. E.S.C. Res. 49/2,
U.N. ESCOR Commission on the Status of Women, 49th Sess., Supp. No. 7, at 13,
U.N. Doc. E/CN.6/2005/11 (2005).
[145]
Nicholas D. Kristof, Striking the
Brothels’ Bottom Line, The New York
Times, Jan. 10, 2009 (Describing how increased law enforcement efforts
in Cambodia have forced many brothels out of business).