Fighting Prostitution at the Expense of Slavery: The 2007 Federal Law

By Melynda H. Barnhart

Feminist debates about sex work, prostitution, and sex trafficking raged long before the debate was enshrined in federal law through the Trafficking Victims Protection Act in 2000 — referred to as TVPA.

When “trafficking” is at issue, feminists tend to fall into two camps. Anti-slavery feminists focus on the human rights abuses inherent when women are overwhelmingly targeted to perform labor or services against their will. Because traffickers only care about making the most money they can by exploiting a person, 21st century slavery laws have focused on methods rather than the end services someone is forced to perform.

Anti-prostitution feminists claim that all prostitution is trafficking because it involves the “buying and selling” of the victim’s body, and reject the legal or moral possibility that women could consent to commercial sexual activity. The transformation of prostitution into human trafficking sweeps victims of actual slavery under the rug in the rush to co-opt the first successful human rights movement of this century.

Forced Labor versus Prostitution

The TVPA created the first federal definition of trafficking, and contained a key compromise: all forms of forced or coerced labor and services, including forced commercial sexual activity, were criminalized, but voluntary activities were not. To placate the anti-prostitution activists, a dormant definition of “sex trafficking” was created, including all of the same activities of trafficking for commercial sexual purposes, but without any requirement of force, fraud or coercion.

This sex trafficking definition has remained as a wedge that anti-prostitution advocates have repeatedly used to expand the role of the federal government in their anti-prostitution crusade through subsequent reauthorizations of the TVPA. In the most recent reauthorization of 2005, these advocates won the inclusion of the End Demand for Sex Trafficking Act, specifically linking “sex trafficking” to the “demand” for commercial sex generally.

Anti-prostitution activists are now using their wedge to break apart the landmark anti-slavery laws. A recently-passed House bill would make the dormant clause fully active, essentially federalizing pimping and pandering crimes. This bill also would permanently divide slavery cases into different sections of the federal laws, based upon what labor or services the victims are forced to perform, even though the crimes are essentially the same. So far, the Senate version of the legislation has resisted this change, following outcry from federal, state and local law enforcement and anti-slavery advocates.

Doesn’t Help the Women

Watering down the definition of trafficking will do little to help abused women – whether they are abused by traffickers or in the sex industry. The federal government’s enforcement already focuses on sex trafficking – over 70 percent of all trafficking cases prosecuted by the Justice Department were sex trafficking, although the majority of trafficking involves labor trafficking. Women victimized by labor trafficking schemes will see their cases triaged right off the desk of federal prosecutors if the House version becomes law.

This definitional fight is really a fight over numbers and funding. The U.S. government rightly has been called to task for the lack of trafficking victims served since the TVPA went into effect. Redefining trafficking would alleviate the numbers problem, a far easier task than educating the nation’s law enforcement infrastructure to identify this crime. Recast the 100,000 annual arrests for prostitution as 100,000 trafficking cases, and suddenly increasing funding for anti-prostitution programs at the expense of trafficking services, becomes a no-brainer.

Anti-prostitution advocates are correct that women are exploited and victimized by the commercial sex industry every day. This does not mean that all women in the commercial sex industry are exploited, or that all prostitution is trafficking. The exploitation of women in the sex industry should be ended, but it should not occur on the backs of slaves.

September 18, 2008

Melynda Barnhart is an Abraham J. Freedman Fellow at Temple University’s Beasley School of Law in Philadelphia.


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