The issue of Consent in sex trafficking prosecution

 

            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 13^th 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  5^th 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).

[45] Blocker v. United States, 288 F.2d 853 (D.C. Cir. 1961).

[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.

[96] People v. Evans, 85 Misc. 2d 1088 (N.Y. Sup. Ct. 1975).

[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).