International Law

They Can’t Have it Both Ways: Why States Cannot Fight Sex Trafficking While Simultaneously Legalizing Prostitution

 The following is an excerpt from a law student note by Chelsea Swanson, 2015 J.D. candidate at the University of Georgia. Footnotes have been omitted. A .pdf version of the entire note, including footnotes, can be downloaded from the link below the post.

I. Introduction

They would not call it slavery, but some other name   . . . . It has been called by a great many names, and it will call itself by yet another name; and you and I and all of us had better wait and see what new form this old monster will assume, in what new skin this old snake will come forth. [- Frederick Douglass]

Frederick Douglass was correct in predicting the “old snake” of slavery would assume a new skin; today’s modern form of slavery is known as human trafficking. Human trafficking has become one of the most lucrative organized crimes in the world, second only to the drug trade and it is estimated to generate thirty-nine billion dollars a year.  Since 2006 it has been the fastest growing underground criminal activity source of income.  As if that growth does not already claim attention, human trafficking is a worldwide epidemic that permeates today’s culture far deeper than most imagine, affecting virtually every nation and population.

In Part II, this Note describes domestic and international responses to sex trafficking. In evaluating these responses, this Note will argue the necessity of curbing demand before any lasting impact can be made to combat this global epidemic. In addition, Part II will discuss the sex market in Amsterdam to suggest the impact that legalized prostitution has on sex trafficking.

Part III of this Note provides an analysis of the aforementioned measures against global sex trafficking.  It will assert that governments who seek to curb demand likely cannot do so effectively while simultaneously permitting legalized prostitution, because prostitution and sex trafficking are so intertwined.  For this reason, Part III argues that the Trafficking In Person’s Report tier-placement for States needs to be re-evaluated. Contrasting laws on the legality of prostitution, illustrated by using the United States and Italy as examples, show different perspectives on how states view fulfilling the requirement to curb demand and how prostitution impacts demand deterrence. Part III concludes with a suggestion for curbing demand that has proved effective in Sweden, but has not yet been attempted in the United States or Italy.

For the purposes of this Note, the jobs victims are made to do through “sex trafficking” will refer to any kind of commercial sexual exploitative activity: forced prostitution, pornography, adult entertainment dancing, and similar activities.

II. Background 

1. Overview of Human Trafficking in the Sex Industry

Every country in the world is involved in this modern-day slavery, whether as a source-, transit-, and/or destination-country. Victims have been identified from over 127 countries, and the crimes against those victims have taken place in 137 countries to date. No nationality, ethnicity, socio-economic class, gender, or religion is exempt. Twenty-seven million people are estimated to be modern day slaves of human trafficking, though a recent study indicates the number may be closer to thirty million.

Human trafficking is distinct from smuggling, though the two crimes do overlap. Often victims of international human trafficking are women, children, or men who try to leave desperate circumstances in their native state in search of a better life abroad. The difficulty of gaining legal admission to other countries, often caused by those countries’ harsh immigration restrictions, causes many to turn to illegal methods such as smuggling to leave their native countries. This is one reason why the supply of trafficking victims is practically infinite, though a significant number of trafficking victims are domestic in origin.

Collecting data on human trafficking in general is extremely difficult. As with many organized crimes, the perpetrators’ activities are clandestine and the numbers of those affected are only estimates. While this secrecy and other factors mean that there is no definite way to determine specific numbers, the majority of human trafficking victims are suspected to be laboring in the sex industry. Victims of sex trafficking have been estimated to make up seventy-nine percent of the population of human trafficking victims. Eighty-two percent of the human trafficking cases opened from January 2008 to June 2010 in the United States turned out to be sex trafficking cases. There is a concern that the number of labor-trafficked victims is underreported, but nonetheless, sex trafficking is an enormous problem in the modern world.

Additionally, because child pornography is intertwined with child prostitution, it is also related to child sex trafficking. Both child pornography and child prostitution are part of an illicit commercial sex market, for children under eighteen are not legally able to consent to any pornographic, prostitution, or trafficking activity. While children are universally protected from the sex market (by international law), they are still common victims because of their particular vulnerability.

Another element to these heinous activities is sex tourism.  When speaking of the defendant charged with sexual exploitation of children, a court in Pennsylvania stated: “his crimes represent a global problem whereby individuals from developed nations travel to less-developed nations to prey on young children from impoverished communities.” This type of trafficking has grown as the cost to travel internationally decrease, especially since the risk of prosecution in the supply countries is low. Historically Asia has been the continent of greatest concern, but Africa, South America, and Central America are also sex tourist destinations. Because sex tourism also encompasses sexual exploitation of trafficking victims, for the purposes of this Note it is included in the broad term “sex trafficking.”

Victims forced in to prostitution may be subject to up to thirty clients a night. They are also exposed to violent conditions and abuse-by their pimps when they are not working, and sometimes by clients when they are. Pimps work to erode any feeling of self-worth or value so the girls will be more accommodating. Traffickers also use drug addiction as a tactic to keep their “stable,” the term used by pimps to refer to the girls they “own,” from running away. Basically, victims are lured into and kept in bondage through deception, fear, lies, threats, drug addiction, abuse, debt bondage, and other controlling or manipulative techniques. Even those in legal prostitution markets face harsh conditions.

The full version of this article can be downloaded from the link below.

 Chelsea Swanson is a 2015 J.D. candidate at the University of Georgia. She received her B.B.A. cum laude in economics from the University of Georgia in 2011 and minored in history.

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Swanson-Why States Cannot Fight Sex Trafficking While Simultaneously Legalizing Prostitution.pdf