Sex Slavery and Juvenile Justice

On Tuesday, June 19, 2012, Secretary of State Hillary Clinton presided over the release of the 12th Annual U.S.  State Department Trafficking in Persons (TIP) Report.  This annual accounting assesses and evaluates how nations around the world work to fight human trafficking and slavery. 

The theme of this year's report is "The Promise of Freedom."  According to the report's introduction, it is to "mark the 150th anniversary of the date Abraham Lincoln gave notice of the Emancipation Proclamation.  That document and the 13th Amendment to the United States Constitution, following three years later, represent more than policies written on paper.  They represent the promise of freedom."

The focus of the report is on victim protection, one of the three Ps in the paradigm first established in the Trafficking Victims Protection Act of 2000 (TVPA) -- protection, prevention, and prosecution.  It is interesting to note, though, that the TIP Report, which would not exist without the initial passage of the TVPA 2000, relies heavily on the United Nations Protocol to Prevent, Suppress & Punish Trafficking in Persons (Palermo Protocol) for guidance on how to handle victims.  While this may be appropriate for other countries, the United States has its own laws dealing with this: the TVPA and its subsequent Reauthorizations in 2003, 2005, and 2008.

There is an ongoing debate in the United States within the anti-trafficking community as to whether or not decriminalization of prostitution for minors should be instituted.  It seems the TIP Report is making veiled commentary about that argument when it states (page 14):

Unfortunately, the arrest, incarceration, and/or deportation of trafficking victims occurs far too often.  These actions undermine the goals of a victim-centered response and constrain law enforcement efforts to bring traffickers to justice.  Research reveals, for example, that a considerable number of prostituted minors and other trafficking victims are arrested every year in many countries, including the United States.  According to the Palermo Protocol, however, all prostituted minors are considered victims of trafficking in persons.  Without domestic laws consistent with this international standard nor proper efforts to screen for victims -- such as training the law enforcement and justice officials likely to encounter these individuals -- they can be swept into a system that views all persons in prostitution or undocumented immigrants as criminals and treats them accordingly.

Frequently, victim statements will note that they would still be involved in prostitution if it hadn't been for an arrest and subsequently receiving treatment and rehabilitation.  Arrest does not automatically mean that victims will be incarcerated.  It is often a way to separate them from their exploiters.  Many prostitution victims will not self-identify as victims and seek help; arrest is often the first step to enabling them to seek a new and better life.  The TIP Report fleetingly recognizes the importance of judicial discretion in the process (page 42): "Moreover, vigorous victim identification mechanisms and use of prosecutorial discretion can identify and protect arrestees who may have committed crimes, as a result of having been trafficked."

In the country narrative about the United States, though, the Report states (page 364), "By December 2011, only eight states had passed laws that prevent charging children with prostitution, although under the TVPA minors induced to perform commercial sex acts regardless of force, fraud, or coercion are considered victims of trafficking."  How egregious is the effort to arrest minors found in prostitution?  "In 2010, the most recent year for which data are available, 112 males and 542 females under 18 years of age -- some of whom were likely trafficking victims -- were reported to the FBI as having been arrested for prostitution and commercialized vice, a decrease from 167 males and 624 females in 2009."

Those state laws represent the decriminalization of prostitution for minors.  Not all minors arrested for prostitution have pimps or traffickers.  In other words, they were not induced to perform commercial sex acts.  In addition, some of those minors arrested may have been pimps.

The Report also sees secure shelters as doing more harm than good.  One lengthy passage equates the shelter experience to being trafficked (page 22):

The essence of the trafficking experience is the denial of freedom -- including the freedom to choose where and how you live, the freedom to work or choose not to work, the freedom from threats, and the freedom of bodily integrity.  Unless carefully crafted and adopted with flexibility, victim assistance programs can sometimes replicate the trafficking experience by removing victims' prerogative from questions of housing, employment, residency, and disclosure.  For example, in order to stay in many government shelters throughout the world, victims surrender their right of movement -- they are restricted to the shelter grounds or may only leave with the permission of shelter staff.  In some countries, the disclosure of victims' identities by government authorities results in victims' stories and name being revealed to the press or to their families.  A fundamental premise of victim assistance programs should be to place choices back into the hands of the trafficking victims. 

Victims should not be detained in shelters in any form.  Victims should be allowed to leave the shelter at will and without chaperones.  Staying in a shelter should be an option; many victims may have access to other accommodation and should be allowed to choose those alternatives.

Another passage states (page 29), "Trafficking victims' rights can also be compromised by shelters that lock up victims in order to ensure they will testify during trials or to protect them from their traffickers.  While victim testimony and security from re-trafficking and retribution are important, detention of victims in shelters amounts to a deprivation of liberty, which is a hallmark of the trafficking experience."

Secure shelters that prevent trafficking victims from leaving to run back to their pimps and traffickers are bad?  Keeping trafficking victims safe from the violence and exploitation perpetrated against them by thugs is replicating the trafficking experience?

Even countries that try to prevent their citizens from becoming victims come under fire in the TIP Report (page 24):

Some source country governments, alarmed by the growing number of their citizens ending up as trafficking victims in the labor export business, have taken steps that seek to prevent additional exploitation.  Since the last TIP Report, the Philippine government began implementing its 2010 Migrant Labor Law, which requires that a labor market (destination country) be certified as providing minimum protections for foreign workers.  The Indonesian government imposed restrictions on Indonesian women seeking to migrate to Saudi Arabia, Jordan, and Malaysia to work in domestic service given unacceptable levels of abuse already documented in these countries.  Although well-intentioned, such efforts may drive migration to illegal channels, making those who migrate more vulnerable to exploitation and abuse.  Moreover, such efforts can be thwarted by competing business interests, or competing labor exporting countries can quickly fill any need for exploitable workers.

This is the argument proponents of legalized prostitution employ.  They say if prostitution is legalized, prostitutes will be protected, and the illegal part of the trade will disappear.

That leads us to two Tier 1-ranked countries that consistently make the top of the list even though they have legalized prostitution: Germany and Australia.  For many years, anti-trafficking activists have complained that these two countries do nothing to meet the minimum standard in the TVPRA of 2008 regarding demand-reduction actions.  On page 390 of the Report, the final criterion of the Minimum Standards for the Elimination of Trafficking in Persons states, "Whether the government of the country has made serious and sustained efforts to reduce the demand for (A) commercial sex acts; and (B) participation in international sex tourism by nationals of the country."

According the country narratives for Germany and Australia, they are not meeting this standard.  For Germany, it states (page 167): "The government did not take specific measures to reduce the demand for commercial sex acts or focus public awareness on potential clients in some of Germany's best known red light districts."  For Australia, it states (page 75): "The government did not take significant steps to reduce the demand for commercial sex acts or forced labor during the reporting period."

One bright note is the improvement of the Netherlands (Tier 1)' effort to go after demand.  For several years now, the government has recognized that legalizing prostitution did not have the intended positive effects on decreasing trafficking, and as such, they are moving towards making the sex industry smaller.  The TIP Report praises the efforts of the Netherlands for one such effort (page 264): "Furthermore, in August 2011, national police conducted an Internet chat session to inform young adults about the practice of local pimps seducing young women and then coercing them into sex trafficking and forced prostitution in the Netherlands."  A culture shift is a necessary step toward ending demand.

While the TIP Report is a comprehensive document and has the potential to be a powerful tool to help countries work towards the abolition of slavery, it can also be an arena for social policy experimentation.  This year's report seems to promote the idea of decriminalization of prostitution for minors as well as ending any type of secure shelters for victims.  While no one wants to see human trafficking victims punished for crimes they were forced to undertake while in slavery, pretending that judicial discretion and the protection of secured facilities are similar to the actions exploiters perpetrate against their victims is, at best, a misguided idea and, at worst, a tool for traffickers to exploit.

Janice Shaw Crouse, Ph.D. is internationally recognized for her abolitionist work and received an Abolitionist award from the U.S. State Department in 2008.  She serves on the steering committee for the Demand Abolition coalition.  Brenda Zurita is recognized as a foremost authority on anti-trafficking legislation and authored the "Zurita Amendment" in the TVPRA requiring the Department of Justice to identify anti-trafficking arrests as pimps, customers or victims.  Both Crouse and Zurita serve at Concerned Women for America's Beverly LaHaye Institute.