Testimony Submitted to the Hearings on Trafficking, Sub-Committee on International Operations and Human Rights

Janice G. Raymond July 25, 2003 United States

To be Entered Into the Congressional Record

Three anti-trafficking bills are currently in congressional committees (H.R. 1356 submitted by Representatives Smith/Kaptur and S.600 submitted by Senator Paul Wellstone and a companion bill introduced by Congresswoman Louise Slaughter in the House). Although these bills differ in scope and penalties, each proposes a similar definition of trafficking.

We applaud the intent of all these bills which, in different ways, attempt to combat the international trafficking of women and children for sexual exploitation and forced labor. However, each bill contains a definition of trafficking which is premised on the trafficking being "forced" in some way, or restricted to force-like conditions. A definition of trafficking that is limited to fraud, force, coercion, deception, kidnapping, and abuse of authority will not protect a large number of victims of trafficking and will allow the traffickers to use consent as a defense against prosecution. 

Proposed anti-trafficking legislation also poses serious contradictions to current U.S. federal and state prostitution legislation that penalizes procurers and pimps, regardless of whether the woman in prostitution consented to commercial sexual acts. The consent exemption potentially allows international traffickers and profiteers to escape prosecution for bringing a foreign woman into the United States for commercial sexual acts, at the same time that domestic prostitution law disallows a consent exemption by holding domestic traffickers and profiteers legally accountable for promoting a U.S. woman into commercial sex acts with or without her consent.

Since these hearings are being held to consider the substantive issues relating to trafficking, we offer these "Elements for Anti-Trafficking Legislation."

ELEMENTS FOR ANTI-TRAFFICKING LEGISLATION

Any definition and scope of trafficking should include the element, with or without the consent of the person trafficked. At the very least, any definition of trafficking which includes the use of force, coercion, fraud, debt bondage, or deceit should also include "the use of other means in cases of commercial sexual exploitation."

Rationale: Consent of the victim should be irrelevant to any proposed definition and scope of trafficking. Many victims initially consent to trafficking for prostitution, for example, having no idea of what they will be subjected to upon arrival. Many are propelled into the sex industry by poverty, past abuse, and by powerful social inequities. Any legislation that allows traffickers to use consent as a defense would not protect most victims of trafficking. Because the traffickers control the trafficking, they also control the evidence. Many traffickers require women and children to feign consent. 

Regardless of how women and children enter the sex industry, victims of sex trafficking suffer enormous harm, violence and human rights abuses. Regardless of how women and children enter the sex industry, most cannot exit without social support, legal protection, and economic alternatives. Thus, exploitation, rather than coercion, should be the operative concept in any definition and scope of trafficking. 

The focus on "kidnapping, force, fraud, deception and coercion" is too narrow, will not protect large numbers of trafficked victims, and allows most traffickers and perpetrators to escape prosecution.

Rationale:

1) Prosecutors will be gravely hampered by any definition and scope of trafficking limited to "kidnapping, force, fraud, deception and coercion." Such a restrictive definition and scope would unnecessarily burden victims and prosecutors at the same time that it would protect traffickers. Those who traffic, pimp, procure and profit from trafficking and sexual exploitation would be shielded from prosecution and accountability while the victims would be denied human rights remedies and the protection of law. 

2) Even those women who are forced, deceived and coerced would not be protected and their abusers held accountable unless the force and deceit could be proven. Traffickers and sex industry profiteers can easily manufacture evidence of consent, e.g., by making their victims pose smilingly for pornography.

3) The net effect of limiting the definition and scope of trafficking to force and coercion, or other force-like conditions, is that the burden of proof is placed on the exploited rather than the exploiters.

Proposed anti-sex trafficking legislation, premised on a definition of trafficking that is based on force, fraud, coercion, deceit, or abuse of authority, presents serious contradictions to current federal and state prostitution legislation. Current U.S. legislation does not simply make "forced prostitution" illegal. It does not restrict the definition of prostitution to force, fraud, coercion, deceit, or abuse of authority. It obligates authorities to prosecute and punish pimps and procurers, regardless of whether the victim consented to commercial sexual acts. Consent to prostitution is irrelevant. 

Proposed anti-trafficking bills currently in committee effectively will allow profiteers who bring foreign women into the United States for purposes of commercial sexual exploitation to use a woman?s alleged consent as a defense against prosecution. These bills unwittingly provide a legal loophole for domestic traffickers, or those who promote and procure U.S. women for prostitution, who can then challenge the inconsistency of international trafficking vs. domestic prostitution legislation. 

The law cannot turn a blind eye to these contradictions between proposed anti-trafficking legislation and domestic anti-prostitution law, effectively allowing prostitution to be exported into the United States if it is supposedly voluntary. Nor can it potentially allow international traffickers, pimps, procurers and profiteers to use consent as a defense against prosecution when it rightly does not allow this same consent exemption to be used by domestic traffickers, pimps, and profiteers.

Gender-specific language of women and children should be retained which signals that women and children are the ones most vulnerable to trafficking, especially sex trafficking. A provision could be added that states: "Everything that is herein said about the trafficking in women and children applies to male victims in situations of trafficking." All documents of past UN conferences on women have called for the explicit disaggregation of human rights violations by gender.

No proposed anti-trafficking legislation holds the buyers, or so-called customers, accountable. It is clear that supply is driven by demand, and that those who engage in the buying of women and children for sex are responsible for the huge escalation in trafficking worldwide. Any proposed anti-trafficking legislation should penalize the buying of what Sweden has called "sexual services." We recommend that drafters of anti-trafficking legislation consider legislation passed by the government of Sweden (Law Prohibiting the Purchase of Sexual Services, Government Bill 1997/98:55; Violence Against Women) which criminalizes the purchasing of sex. In wording its law in this way, Sweden has truly revolutionized legislation against commercial sexual exploitation by decriminalizing the victims and penalizing those who perpetuate the crime, thus focusing on the buying rather than the selling of commercial sex.