The Illusion of Help

How the United States’ anti-trafficking and anti-prostitution laws promote law enforcement and border control.

Sex work, or prostitution, is a high-risk profession that encompasses personal and professional challenges from legal, socioeconomic, and psychological perspectives. It largely consists of selling sexual services for consideration, and is highly stigmatized. Advocates consider sex work and prostitution to be consensual work; workers willingly engage in the activity without coercion[1]. The legalities surrounding it vary considerably across jurisdictions, and these laws are thought to play a significant role in the well-being and safety of sex workers worldwide[2]. In the United States, prostitution is fully prohibited under state laws, with the exception of several counties in Nevada, and until 2009, Rhode Island[3]. This prohibition targets sex workers, their clients, advertisers, staff in sex related industries, and those who could materially benefit from prostitution income. Interestingly, until the late 19th century, prostitution was viewed as something that provided sexual and social services; it was the intersection of morality and economics that created an environment where the public denounced prostitution[4], and by 1925 sex work was outlawed in every state in America[5].

Photo by Nitish Meena on Unsplash

Since then, prostitution has largely been conflated with sex trafficking and human trafficking[6], further bolstered by ideologies of radical feminism and social morality[7]. Until 2000, sex work’s association with human trafficking was all but non-existent. It was in that year that the Bush administration enacted the Trafficking Victims Protection Act[8], establishing laws designed to protect trafficked persons, prosecute those involved in trafficking, and prevent further trafficking from occurring. According to the United States government, “human trafficking” encompasses a range of activities involving “recruiting, harbouring, transporting, providing, or obtaining a person for compelled labour or commercial use through the use of force, fraud or coercion.”[9] It can involve sex trafficking, commercial sex, child slavery, forced labour, and debt bondage, among other things.

Irregular migration is considered to be “movement that takes place outside the regulatory norms of the sending, transit, and receiving country,”[10] and may involve persons who enter a country with false documents or without, who reside in a country in violation of residency permits or entry visas, or who may be employed without appropriate work permits or other documentation[11]. Colloquially, irregular migration may refer to the act of smuggling individuals into a country without following traditional regulatory protocols. The distinction between irregular migration and human trafficking lies in the formal consideration of lack of coercion of the former versus the latter. Yet many irregular migrants may knowingly consent to some forms of their irregular migration into a foreign state, but oppose other circumstances that may befall them once they arrive in that country[12]. For example, irregular migrants may willingly engage in unlawful activities to ensure their arrival in a foreign state (e.g. hiring third parties to procure documents and transport), only to later find themselves in situations where they are subject to some form of trafficking-like activities, such as debt bondage[13]. This crossover between irregular migration and human trafficking lends itself to considerable difficulties in providing individuals with assistance under definition of the TVPA, as will be discussed below.

To further complicate matters, human trafficking, sex trafficking, and prostitution are often conflated[14] through various federal acts; the 2005 and 2008 Trafficking Victims Protection Reauthorization acts[15] explicitly name prostitution as a form of sex trafficking, essentially framing it as the ‘poster child’ of human trafficking[16]. Prostitution and human trafficking are also linked under section 201 of the Act that outlines a research program and statistical review to end demand for commercial sex in the United States[17], and in the form of grants and aid supplied to countries who adopt an anti-prostitution stance[18].

Because of the overlap in official definitions of prostitution, sex trafficking, and human trafficking, victims are often unable to take advantage of any protection that may be available. What then occurs is a scenario where individuals who voluntarily, though irregularly, migrate to the United states, may be victims of some form of coercion along their journey. Though not meeting strict criteria for a “severely trafficked person”[19], they nonetheless have experienced exploitation in some capacity[20].

This paper will discuss Trafficking in Persons (TIP) annual reports from 2015–2018, with a focus on examining the discrepancies in human trafficking data cited by the US in support of its abolitionist policies, and will argue that current US laws are more focused on border control and law enforcement than on protecting vulnerable individuals and human rights.

The TVPA and the Annual Report

The TVPA was lauded by prostitution abolitionist[21] groups for its broad approach to the termination of human trafficking, its provision for increased prosecution and punishment of traffickers, and the granting of restitution and government assistance for victims[22], but has been heavily criticized by researchers and various human rights organizations[23]. Since its inception, an annual report is released that outlines global efforts for combat human trafficking (the Trafficking in Persons report). Under the Act, severely trafficked victims are entitled to restitution, government assistance, and the ability to apply for immigration status in the United States[24]. But the conditions that must be met in order to avail of these benefits is often onerous to migrants. In order to qualify, individuals must be considered a “severe victim”[25] of trafficking, or be “certified”[26] by the state. Because the situation of irregular migrants often encompasses elements of consent and coercion, they often do not meet criteria for aid[27].

Indicative of the outcome of the inability to meet criteria is the annual number of T-Visas issued by the US Department of State Consular Affairs. T-Visas were established following the Act’s legislation to provide trafficking victims and their relatives with a way to gain legal entry to the United States[28]. The Annual Trafficking in Persons report lists a number of statistics relating to visas issued, yet these numbers conflict with those published annually by the Department of State’s Consular Affairs bureau (see Table 1). Because the TIP report doesn’t provide source information for their statistics, their origin is uncertain. Nonetheless, the trend is telling; the United States, through its policies, regularly prevents victims of trafficking from seeking immigration status promised to them, individuals they are supposedly determined to help[29].

Table 1: FY=Fiscal Year; a) T1 Visas are issued to persons considered to be severe victims of trafficking. T2-T6 Visas are issued to relatives of persons of severe victims of trafficking; b) The US Department of State’s statistics on Non-Immigrant Visa issuance can be found at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html; cAnnual Trafficking in Persons reports can be found at https://www.state.gov/j/tip/rls/tiprpt/; see sections entitled “United States” in each report for further details on this data.

The number of US T-visas issued annually is in stark contrast to the number of victims purportedly trafficked into and around the United States every year. In some reports, victims are said to be in the tens of thousands[30], yet accurately counting the true number of trafficked persons is considerably challenging, given the clandestine and illegal nature of the activity[31]. This gives rise to a wide range of statistics being thrown around, without being rooted in fact, which are then picked up by human rights and other organizations in support of their various mandates[32]. For example, in 2018 Airline Ambassadors International reported 68,000 victims were trafficked daily on a global basis in an American Way advertisement[33], yet these statistics were found to be based on gross overestimation and inaccurate handling of statistics[34]. Data pulled from the Counter Trafficking Data Collaborative lists a total of 91,416 cases, 5,806 of which list the United States as the country of exploitation[35]. Weitzer’s report gives multiple examples of erroneous interpretations of trafficking statistics, particularly those that are framed by abolitionist and criminal narratives[36]. Yet there appears to be a substantial discrepancy between victims cited and visas issued.

The statistics are further marred by the US’s reports on prosecutions and convictions, and in estimations of labour trafficking versus sex trafficking, in their annual reports[37]. Table 2 provides data compiled from these reports that lists the total prosecutions, convictions, and defendants per fiscal year, along with the percentages of cases due to sex trafficking. A disproportionate number of prosecution efforts are geared towards sex trafficking, yet reports cite roughly 75–76% of trafficking victims are through non-sexual forced labour[38]. This again points to a prejudice against sex trafficking-related cases.

Table 2: FY=Fiscal Year; data pulled from the 2015–2018 Trafficking in Persons annual at https://www.state.gov/j/tip/rls/tiprpt/; see sections entitled “United States” in each report for further details on this data.

With the considerable variation in available statistics on human trafficking, coupled with the highly asymmetric litigation emphasis on sex trafficking versus labour trafficking in the TIP annual reports, one is left to contemplate the real agenda of the United States as it boasts effective prevention of human trafficking and assistance to victims. Moreover, where are the other thousands of supposed trafficking victims?

Sex Work vs Sex Trafficking

The United States considers all forms of prostitution as sex trafficking, yet arrest rates for “prostitution and commercial vice” crimes are dramatically different from “human trafficking” crimes[39]. This is likely because sex work does not have the privilege of being considered a valid form of labour and is instead criminalized instead of condoled; to consider sex work as valid labour would void the abolitionist argument that sex work can be consensual[40]. Not only is sex work considered trafficking, the distinction between trafficked persons and irregular migrants is often blurred; annual TIP reports make no clarifications on the number of irregular migrants versus trafficked persons, as the TVPA insists commercial sex activities are inherently void of consent[41]. Therefore, irregular migrants engaging in sex work can find themselves in a catch-22 scenario, where they actively participate in their travel to a foreign state[42], removing the coercion requirement of the TVPA. They then consent to engage in sex work, but then find themselves in situations where their personal freedom is questionable, and are now subject to debt bondage or other coercive methods[43]. Because they’ve engaged in criminalized activity, they are at an increased likelihood of being prosecuted and deported[44]. The TVPA indicates individuals are permitted to reside in the country if they are assisting with prosecuting their traffickers[45]; if they’ve been arrested, they may face expedited deportation, through the Border Security and Immigration Enforcement Improvements (BSIEE), an executive order signed by US President Donald Trump that gives expedited removal procedures for illegal aliens arrested in the US, though not yet convicted[46].

The anti-trafficking and abolitionist sympathizers claim that criminalizing and prohibiting prostitution will “end the demand” for cross-border sex trafficking[47], yet the TVPA regularly cites 45–66% of trafficking victims as US nationals[48], and the CTDC cites 59.1% of victims as being US nationals[49]; these figures seem to contradict statements from President Trump that the United States is being “invaded” by human traffickers[50], and are hardly cause for concern for the “immigration crisis”.

What is unlikely to be effective in preventing irregular migration and human trafficking, is increased restrictions on asylum for refugees, as it pushes individuals who need to flee their country, into the hands of smugglers[51]. These smuggled migrants are not considered victims of abuse due to their complicity in their situation, and are often criminalized and/or deported as illegal migrants[52], despite exploitative circumstances in which they find themselves.

Conclusion

Human trafficking is a practice that is rightly outlawed, yet its conflation with sex trafficking and consensual sex work by abolitionists, law makers, and radical feminists, oppresses the very population they seek to empower, by endorsing state control over bodily autonomy. Sex work is a legitimate form of labour and its removal from the discourse around labour trafficking disproportionately places vulnerable people in positions where they are criminalized. Data from the Trafficking in Persons annual report, the Department of State Consular Affairs, and the FBI annual Crime reports on arrests, demonstrate the government’s bias against sex work and prostitution, yet, based on arrest reports and visa issuances, do not provide enough assistance to victims of trafficking. The US, it seems, is more concerned with border control and law enforcement under the guise of human rights, through its anti-prostitution and anti-trafficking laws.

[1] Davina, L. (2017). Thriving in Sex Work, p. 9. The Erotic as Power Press, Oakland, CA.

[2] Amnesty International. (2016). Sex workers at risk. A research summary on human rights abuses against sex workers.

[3] Auguston, D., George, A. (2015). Prostitution and sex work, Georgetown Journal of Gender and Law, 16: 229–261.

[4]Gilfoyle, T. (1999). Prostitutes in history: From parables of pornography to metaphors of modernity. American History Review, 104: 141–141.

[5] Whitebread, C.H. (2000). Freeing Ourselves from the Prohibition Idea in the Twenty-First Century, Suffolk University Law Review, 235: 242–43.

[6] Brennen, D. (2017). Fighting human trafficking today: Moral panics, zombie data, and the seduction of rescue. Wake Forest Law Review, 52: 477–496.

[7] Wilson, M., O’Brien, E. (2016). Constructing the ideal victim in the United States of America’s annual Trafficking in Persons reports. Criminal Law and Social Change, 65: 29–45.

[8] Trafficking Victims Protection Act [TVPA] of 2000, Pub. L. №106–386, 114 Stat. 1464 (codified as amended at 22 USC 7101–7110 (2012)). This Act launched a series of anti-trafficking efforts in the United States. Congress has reauthorized the TVPA in 2003, 2006, 2008, 2013, and 2017.

[9]Definitions and Methodology, Trafficking in Persons report. Retrieved from https://www.state.gov/j/tip/rls/tiprpt/2013/210543.htm.

[10]Key Terms.” International Organization for Migration. Retrieved from https://www.iom.int/key-migration-terms

[11]Types of Migration: Irregular Migration.” Migration Data Portal. https://migrationdataportal.org/themes/irregular-migration#definition

[12] Izcara-Palacios, S.P., Ortega Brena, M. (2017). Prostitution and migrant smuggling networks operating between Central America, Mexico, and the United States. Latin American Perspectives, 44:31–49.

[13] Above, note 10.

[14] Above, note 5.

[15] Trafficking Victims Protection Reauthorization Act of 2005, H.R. 972; William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 22 USC 7101, H.R. 7311.

[16] Above, note 7.

[17] Trafficking Victims Protection Reauthorization Act of 2005, H.R. 972, Sec 201 (a)(1)(2).

[18] Deady, G.M. (2011). The girl next door: A comparative approach to prostitution laws and sex trafficking victim identification within the prostitution industry. Washington and Lee Journal of Civil Rights and Social Justice, 17: 515–555.

[19] Under the 2000 TVPA, a “severely trafficked” person meets criteria as follows: “(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, harbouring, transportation, provision, or obtaining of a person for labour or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” Further, “sex trafficking” is defined as the “recruitment, harbouring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.” See above note 8.

[20] Above, note 11.

[21] Abolitionists, or neo-abolitionists, are those who oppose sex work, citing its inherent violence against women that prevents them from providing any form of consent, and seeing it as a form of slavery and therefore unqualified to be legal or regulated (see above, note 12). The presumption that migrant women are victims of sex trafficking is critical to the abolitionist discourse [see Alpes, M.J. (2008). The traffic in voices: Contrasting experiences if migrant women in prostitution with the paradigm of “human trafficking.” Human Security Journal, 6: 34–45.]

[22] O’Brien, E. (2015). Prostitution ideology and trafficking policy: The impact of political approaches to domestic sex work on human trafficking policy in Australia and the United States. Journal of Women, Politics & Policy, 36: 191–212.

[23] Rieger, A. (2007). Missing the mark: Why the Tafficking Victims Protection Act fails to protect sex trafficking victims in the United States. Harvard Journal of Law and Gender, 30: 231–256.

[24] Above, note 8, section 107 (a), (b).

[25] Above, note 8, section 103 (8) (a), (b): A “severe trafficking victim” must meet the following criteria: 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.

[26] Above note 8. Section 107 (E). To attain certification, he person referred to as a “severe victim” must also be willing to assist in “every reasonable way” in the investigation and prosecution of their traffickers, has made an application for a visa that has not been denied, or whose continued presence in the United States is necessary for effective prosecution and conviction of a trafficker.

[27] Above, note 22.

[28] Above, note 8, section 107 (e) (2) (n) (2).

[29] Weitzer, R. (2012). Sex trafficking and the sex industry: The need for evidence-based theory and legislation. The Journal of Criminal Law and Criminology, 101: 1337–1369.

[30]“Are 68,000 people a day ‘trafficked right in front of our eyes’? Nope.” Keissler, G. Washington Post

[31] Above note 28.

[32] Above, note 6.

[33] American Way magazine, October 2018, pp. 124. Published by Ink, Dallas, TX.

[34] Above, note 29. The figure was estimated by the President of Airline Ambassadors International, who derived her number from using a figure from the International Labour Organization (24.9 million people), and dividing it by 365 to come up with the daily total. As Keissler points out, this is a highly inaccurate estimation.

[35] “Global Data Hub on Human Trafficking.” The Counter Trafficking Data Collaborative. Retrieved from https://www.ctdatacollaborative.org/map.

[36] Above, note 28.

[37] U.S. Department of State Trafficking in Persons Report. Retrieved from https://www.state.gov/j/tip/rls/tiprpt/ .

[38] See Annual Report from years 2015–2018, U.S. Department of State Trafficking in Persons Report. Retrieved from https://www.state.gov/j/tip/rls/tiprpt/ .

[39] The FBI publishes annual statistics on crime in the United States, available at https://ucr.fbi.gov/crime-in-the-u.s/. Arrests for prostitution-related offences numbers in the tens of thousands, while those of human trafficking amounts to a few hundred.

[40] Above, note 12.

[41] Wharton, R.L. (2010). A new paradigm for human trafficking: Shifting the focus from prostitution to exploitation in the Trafficking Victims Protection Act. William and Mary Journal of Race, Gender, and Social Justice, 16: 753–780.

[42] Note on using legal methods to gain entry yet still considered illegal

[43] Carling, J., Gallagher, A.T., Horwood, C. (2015). Beyond definitions. Global migration and the smuggling-trafficking nexus. Regional Mixed Migration Secretariat, November: 1–12.

[44] Izcara-Palacios, S.P., Andrade-Rubio, K.L. (2016). The deportation of Central American women victims of trafficking. Population Papers, 90: 173–195.

[45] See above, note 8, section 107 (2) (e). Protection from removal is granted for certain crime victims, namely those meeting the “severe trafficking” criteria.

[46] Martin, P.L. (2017). President Trump and US migration after 100 days. Migration Letters, 14:319–328.

[47] Above, note 29.

[48] The TVPA reported 45%, 51%, 66% and 66% of victims were US nationals in FY2014, 2015, 2016, and 2017, respectively. Data pulled from the 2015–2018 Trafficking in Persons annual at https://www.state.gov/j/tip/rls/tiprpt/; see sections entitled “United States” in each report for further details on this data.

[49] “Global Data Hub on Human Trafficking.” The Counter Trafficking Data Collaborative. Retrieved from https://www.ctdatacollaborative.org/map.

[50] “President Trump’s fantastical human-trafficking claims.” Kessler, G. Washington Post.

[51] Above, note 43.

[52] Above, note 23.