Most Americans don’t take slavery in America seriously, except as a matter of history. It’s something to recall, not something to witness with our own eyes. But if it ever really disappeared at all, slavery has certainly made a comeback. In fact, today more people are sold into slavery each year than at the height of the transatlantic slave trade, as New York Times columnist Nicholas Kristof stated in his book Half the Sky: Turning Oppression into Opportunity for Women Worldwide (Vintage, 2010). It’s not chattel slavery, wherein legally one human being could own another. But it functions similarly.
Thankfully there is growing awareness of modern slavery, as witnessed by the increased presence it has played in political discourse and policy over the past ten years. In 2000, Congress enacted the Trafficking Victims Protection Act (TVPA), the first “comprehensive Federal law…to protect victims of trafficking [and] to prosecute their traffickers.” The next year the State Department commenced publishing an annual Trafficking in Persons Report (TIP), which is a summary of the status of trafficking in persons worldwide, and “serves as the primary diplomatic tool through which the U.S. Government encourages other countries to help fight all forms of modern slavery.” In it, countries are assigned a tier ranking from 1 to 3, based on the extent of their efforts to combat and address human trafficking. This year, for the first time, the United States appeared in the TIP rankings. And even though they were given a Tier 1 ranking (the best, indicating full compliance with the minimum standards for the elimination of trafficking), the TIP itself stresses that such a ranking “does not mean that a country has no human trafficking problem.”
So what exactly is human trafficking? It occurs when persons are compelled into commercial sex acts or forced labor through fraud, coercion, or physical force. The TVPA details human trafficking as having three parts: actions, purposes, and means. The actions are the recruitment, transportation, transfer, harboring, receiving, or obtaining of persons for the purposes of sexual exploitation, involuntary servitude, peonage, debt bondage, or slavery, accomplished through the means of force, fraud, or coercion.
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Just how bad is the problem? While precise figures remain difficult to obtain given human trafficking’s underworld existence, in 2002 USAID estimated that between 700,000 and 4 million persons are trafficked each year into slavery. That number does not include cases of trafficking within a country’s borders, only across them. Furthermore, not only is human trafficking the fastest-growing criminal industry, it is tied with the illegal arms industry as being the second-largest global criminal industry.
Finally, the American government seems to be paying attention. At Hillary Clinton’s confirmation hearing as Secretary of State, she stated, “I take very seriously the function of the State Department to lead the U.S. government through the Office on Human Trafficking to do all that we can to end this modern form of slavery.” And in the 2010 TIP report’s introduction she reiterates, “Ending this global scourge is an important policy priority for the United States.” But if the U.S. is serious about this, it must recognize that the biggest impediments are a failure to link sex trafficking to the larger commercial sex industry, and the underreporting and limited prosecution of sex trafficking stemming from a deficient legal definition of that term.
One of the most significant and persistent barriers to combating human trafficking is widespread insistence on distinguishing between sexual trafficking and prostitution. While linking the two is about as easy as connecting smoking to lung cancer, we continue to decouple trafficking from branches of the commercial sex industry like prostitution and pornography. Of course most of us want to end sexual slavery, but the commercial sex industry—which is the very lifeblood of trafficking—is increasingly tolerated. Prostitution is seen by plenty as a legitimate, if suboptimal, form of “work,” and pornography is taken to be harmless. And yet the commercial sex market and sex trafficking are symbiotically related; the latter simply would not exist without the former. Women and girls are trafficked into brothels, strip clubs, and massage parlors. They’re photographed and filmed servicing men. Customers—including men who simply click on free porn on the web—do not and cannot distinguish between trafficked women, prostitutes, and porn stars.
Those who draw a bright line between sex trafficking and prostitution often argue for legalizing prostitution. After all, they say, if prostitution were legalized, then the government would be poised to regulate it and curb harms experienced by prostitutes. In fact, the State Department’s 2010 TIP Report even claimed that countries that had legalized prostitution were making efforts to eliminate sexual trafficking.
But rather than eliminate sexual trafficking, the evidence has consistently revealed that legalizing prostitution fosters it. Dorchen Leidholdt, Co-Executive Director of the international NGO Coalition Against Trafficking in Women, stated:
Jurisdictions that have legalized prostitution have demonstrated just what happens when prostitution is legitimized and protected by law: the number of sex businesses grows, as does the demand for prostitution. Legalized prostitution brings sex tourists and heightens the demand among local men. Local women constitute an inadequate supply so foreign girls and women are trafficked in to meet the demand. The trafficked women are cheaper, younger, more exciting to customers, and easier to control. More trafficked women means more local demand and more sex tourism.
In other words, sexual demand is not as stable as you might think; it can be stimulated. Just consider what happened in Australia when its government decriminalized prostitution and took control of the industry: “in New South Wales where brothels were decriminalized in 1995, the number of brothels in Sydney had tripled to 400-500 by 1999, with the vast majority having no license.” In other words the illegal sector of the sex industry flourished once prostitution was legalized. The Netherlands are another excellent case study. Their brothels were legalized in 2000, but the number of reported human trafficking cases increased from 341 in 2000 to 909 in 2009. When the sex industry enjoys government protection, it thrives and demand increases. It also becomes much more difficult to identify instances of abuse and to prosecute trafficking.
What if a woman wants to become a prostitute? In her book Prostitution, Power and Freedom, Nottingham University Sociology Professor Julia O’Connell explained that this phenomenon, known as “casual prostitution,” accounts for a mere one percent of women in the sex industry (University of Michigan Press, 1999). And in a recent study of trafficking and prostitution across nine countries, researchers found that out of 785 sex workers, “89 percent…wanted to escape prostitution but did not have other options for survival.”
Free choice here is largely a myth. Catherine MacKinnon, pioneer of the legal battle against sexual harassment in the workforce, argued that “If being a sex worker were truly a free choice, why is it that women with the fewest options are the ones most apt to “choose” it?” Closely related to the issue of choice is that of consent, or the idea that prostitution is innocuous if the prostituted woman gives her consent. But the condition of consent is an unfounded criterion. Melissa Farley, director of the organization Prostitution Research and Education, explains that “it is a clinical, as well as a statistical error, to assume that most women in prostitution consent to it. In prostitution, the conditions which make genuine consent possible are absent: physical safety, equal power with customers, and real alternatives.” While no doubt some women choose this line of work freely, they remain a very small minority.
When you operate within the framework of consent and choice-based rhetoric, there will still be women who meet the requirements for victim status but remain overlooked. This is one reason why the prevalence of sexual trafficking is underreported in the US. The TVPA law currently stipulates that in order to prosecute traffickers and receive aid themselves, victims must be either under 18 years of age, or prove that their entry into the commercial sex industry was the result of force, fraud, or coercion. But what happens to women who initially agreed to come to the United States to work in the commercial sex industry (migrant sex “workers”), but would never have given their consent had they known what slave-like and abusive conditions awaited them? These women technically qualify for benefits under the TVPA, but will have a very difficult time securing them since they can’t easily prove that coercion occurred as defined by the law.
If the United States wishes to combat modern slavery, it should make exploitation, rather than force, fraud, or coercion the main consideration in possible trafficking cases. The United Nations already does this, and considers “consent” to be irrelevant in determining trafficking victim status. If the United States were to shift its emphasis away from proving force, fraud, or coercion toward establishing whether persons were being exploited for commercial sexual services, then far fewer victims would fall through our legislative cracks and it would be easier for law enforcement to prosecute sexual trafficking.
The fight for abolition is far from over. But it has at least begun. For instance, in September Craigslist shuttered its adult services section after charges that it was being used to facilitate sexual trafficking. (Unfortunately, we have no doubt that others will fill the gap.) Also, in 2010 alone more than 40 human trafficking bills were enacted with over 350 introduced, in comparison to a mere eight human trafficking bills passed into law in 2006. And over 850 people were arrested in a three-day November 2010 sweep aimed at suppressing child prostitution. Clearly our government is taking steps to combat human trafficking, but it remains hampered by underreporting, underdefining, and a continued disinterest in linking sex trafficking to the larger commercial sex industry.
Mark Regnerus is an associate professor of sociology at the University of Texas at Austin. He is the author most recently of Premarital Sex in America: How Young Americans Meet, Mate, and Think about Marrying (Oxford, 2011).