In my first contribution to Rewire, I tried to disentangle the subjects of trafficking and sex work.
Understanding this distinction is crucial, because Congress is poised
to re-authorize the federal law against human trafficking with new
provisions that will both increase penalties for sex workers and
effectively decrease our ability to aid genuine victims of trafficking.

The Department of Justice, which is responsible
for enforcing the bill’s provisions, is opposing these misguided
changes — and so should anyone else who is concerned about human
trafficking in its many forms.

It
is already sadly evident that the U.S. government’s anti-trafficking
program has devolved into a global campaign against sex work and is not
working to halt trafficking. In a 2006 report critical of the program, the Government Accountability Office found that
"the U.S. government has not developed a coordinated strategy to combat
trafficking in persons abroad…or evaluated its programs to determine
whether projects are achieving the desired outcomes."

Now comes a plan to further ratify this failure. The Trafficking Victims’ Protection Reauthorization Act addresses the crime of trafficking in persons, which is recognized in U.S law as cases that involve force, fraud or coercion, which includes threats, intimidation, and psychological abuse.
The law offers protection to workers who are most vulnerable to abuse —
immigrants, people in forced labor, and minors who exchange sex for
cash or goods. The bill currently before Congress, however, would
expand the definition of "sex trafficking" to include cases in which no
elements of force, fraud or coercion were involved.

Specifically, the House version of the TVPRA would expand U.S. laws against prostitution by re-defining most prostitution-related activities, regardless of consent, as trafficking. Human
trafficking is a complex issue, but there is widespread agreement about
its key distinguishing features, namely the use of force, fraud or coercion. HR 3887 throws out these cornerstones and threatens to re-define all prostitution, arguably even all sex work, as trafficking. And it would require the involvement of federal law enforcement through a broad new provision that covers
actions "affecting" interstate commerce (rather than actual activities
that involve the crossing of state lines, the standard trigger for
bringing in the feds). Therefore, most prostitution-related activities defined as sex trafficking would fall under federal law even if no interstate commerce was involved.

The
immediate consequences of this definitional sleight-of-hand are bad
enough: the use of federal resources to prosecute state-level offenses
involving consenting adults who may not see themselves as victims of a
crime. But turning the DOJ into the prostitution police is not the
worst of it. By shifting the focus of the law from genuine cases of
trafficking to prostitution as a whole, the bill threatens to divert
resources from those most in need: the real victims of trafficking.

The
Department of Justice has written to members of Congress to express its
opposition to the proposed reauthorization bills, saying that the
changes would remove their focus from genuinely abusive situations that
involve force, fraud or coercion and place it instead on the over 100,000 prostitution-related arrests annually.

The DOJ’s resistance to the changes stem also from the fact that addressing each prostitution case as a potential trafficking case would significantly increase their caseload
while reducing the likelihood of convictions. Trafficking cases require
an identifiable victim. Contrary to popular mythology, most sex workers
are not in coercive situations. If they do not choose to self-identify
as victims or otherwise participate in the prosecution of their
associates, the case may collapse.

The
dangers of laws that are both overly general and backed by heavy
penalties should be familiar to any student of U.S. history. The 1910
White Slave Traffic Act, better known as the Mann Act, criminalized
interstate travel for "immoral acts," which at that time referred
fairly generally to (female) promiscuity and interracial sexual
activity. In practice, the application of the law was often
distinguished by racism or political bias. High-profile victims of
racist prosecutions under the Mann Act included Chuck Berry and Jack Johnson, while Charlie Chaplin and Frank Lloyd Wright, suspected of Communist sympathies, were subject to politically motivated Mann Act prosecutions.

Above
all else, however, application of the Mann Act was sexist. The law
purported to protect women, yet the overwhelming majority of those
charged under the Act were women. Women were tried and jailed for
crossing state lines to visit men, often men that they would later
marry. It seems inconceivable to us today that simply visiting a
romantic partner in another state could be grounds for conspiracy
charges, yet this is exactly what happened.

In
1986, the scope of the Mann Act was amended to cover only acts that
were crimes in the location where they were committed. When the Act was
conceived in 1909, prostitution was not a crime in any state of the
Union. But within twenty years, every state had passed
laws criminalizing prostitution. Today, almost a hundred years from its
conception, the Mann Act remains on the books as a law enforcement tool
targeting prostitution. This little-known law got its
moment in the spotlight recently when four people involved with the
Emperors Club VIP, whose best-known client was New York governor Eliot Spitzer, were charged with Mann Act offenses.

Just
as the Mann Act, ostensibly created to protect women, was used largely
to prosecute them, the targets of the re-authorized TVPRA will not be
international traffickers. They are more likely to be prostitutes
(including, once again, many women), charged with trafficking offenses
that exist only on paper.

If
no "victims" or "traffickers" can be found, some will have to be
created. The threat of additional charges or the promise of immunity
can be used to persuade some of those charged to testify against their
colleagues. During
the initial period of the TVPRA, despite lavish spending on raids and on
services for victims of trafficking, there was an embarrassing lack of
migrants coming forward to take advantage of the protection offered by
the law and to cooperate in the prosecution of their traffickers. The
expanded definition of trafficking provided by HR 3887
should make up the shortfall in trafficking victims, but only by
spuriously applying trafficking charges to cases that do not involve
force, fraud or coercion.

There is something deeply
wrong with our government when the answer to the desperate problem of
human trafficking is to change the definition of the crime so we can
claim we’re doing something about it. It’s a tactic that is misguided
at best and at worst, downright cynical.

Equating
prostitution and trafficking simultaneously denies the agency of sex
workers and trivializes the experiences of people in genuinely abusive
situations. Enshrining this wrongheaded equation in law delivers a
double whammy. On the one hand, it undercuts the ability of government
agencies to provide services to those who desperately need them. On the
other it opens the door to the same kind of abuses seen with the Mann
Act, creating "victims" where none exist and bringing the full force of
anti-trafficking law to bear on a group that is already stigmatized and
marginalized by society. By any standards, this would be a gross
miscarriage of justice.

Related Posts

• Melissa Ditmore, Sex Work, Trafficking: Understanding the Difference