Perils of Mismatching Human Trafficking for Sexual Exploitation and Sex Work: In the Shade of Definitional Perplexities of the Trafficking Protocol
İnsan Ti̇careti̇ ve Seks İşçi̇li̇ği̇ Kavramlarinin Eşdeğer Kullaniminin Tehli̇keleri̇: İnsan Ti̇careti̇ Protokolü’nün Tanimsal Karişikliği Gölgesi̇nde Bi̇r Değerlendirme
Ekin Deniz UZUN
This paper argues that the international legal definition of human trafficking provided by the 2000 UN Trafficking Protocol is inadequate to distinguish sex trafficking from the phenomenon of sex work. It thus explains why and how there is such definitional perplexities under international law pertaining to these two phenomena. Indeed, philosophically there are similarities that may result in a possible mismatch in certain scenarios, leading to misidentification of sex trafficking victims and sex workers. For instance, prejudices, myths, stereotypes and discrimination cause both sex workers and trafficked victims to face difficulties, when it comes to defining their legal status. As is discussed, although the Trafficking Protocol is a true breakthrough, components of its human trafficking definition -namely exploitation, deception and coercion- have a potential breadth that can leave room for different interpretations. This paper explains that it is not correct to interpret this intricacy of international legal regulation on the definition of human trafficking as suggesting that sex trafficking is sex work. In fact, there is no evidence to clearly imply that international law indeed uses the term sex trafficking interchangeably with sex work. Reasons for this, along with the perils of mismatching these two phenomena are explained.
Trafficking Protocol, Sex Work, Sex Trafficking, Victim Identification, States’ Obligation to Protect and Identify the Victims.
Bu çalışma, 2000 BM İnsan Ticareti Protokolü’nün getirmiş olduğu insan ticareti tanımının, seks ticareti ve seks işçiliği olgularının ayırt edilmesi açısından yetersiz olduğunu savunmaktadır. Dolayısıyla, uluslararası hukuk kapsamında bu iki fenomenle ilgili olarak -neden ve nasıl- tanımsal çıkmaz sorunsalının ortaya çıkmış olduğunu açıklar. Gerçekten de, felsefi olarak, seks ticareti mağdurlarının ve seks işçilerinin yasal statülerinin yanlış tanımlanmasına yol açabilecek bir takım senaryoları örneklendirmek mümkündür. Örneğin, önyargılar, mitler, klişeler ve ayrımcılık, yasal durumlarını tanımlamak söz konusu olduğunda hem seks işçilerinin hem de insan ticareti mağdurlarının zorluklarla karşılaşmasına neden olmaktadırlar. Tartışıldığı gibi, İnsan Ticareti Protokolü önemli bir uluslararası hukuk düzenlemesi olmasına rağmen, insan ticareti tanımının bileşenleri - istismar, yanıltma ve zorlama - farklı yorumlara yer bırakabilecek potansiyelde geniş tutulmuş kavramlardır. Bu makale, insan ticaretinin İnsan Ticareti Protokolü düzlemindeki tanımsal karmaşıklığına ve seks ticaretinin seks işçiliği ile birbirinin yerine geçer nitelikte neden kullanılmaması gerektiğine ışık tutmaktadır. Kaldı ki, uluslararası hukukun seks ticareti kavramını seks işçiliği ile yer değiştirir nitelikte kullandığını gösterir bir kanıt da yoktur. Bunun nedenleri, bu iki kavramın birbiri yerine kullanılması tehlikeleriyle birlikte açıklanmaktadır.
İnsan Ticareti Protokolü, Sex Işçiliği, Sex Ticareti, Mağdurların Tespiti, Devletlerin Koruma ve Mağdurları Tespit Etme Zorunluluğu.
This paper sets out to investigate one overarching question: whether the international legal framework defining human trafficking for sexual exploitation is appropriate to deal with the modern-day phenomenon of trafficking in comparison to sex work. Definitional issue around sex trafficking and sex work stands as a central challenge. In order to achieve this objective, following topic is addressed too: how scholars, media and international judgements interpret international law definitions of sex trafficking and sex work particularly considering the resemblance between these acts.
This article proceeds as follows:
Part I gives a background of sex trafficking and sex work. Part II walks the readers through definitional debates pertaining to sex trafficking and sex work, showing them both the variety in definitions/understandings, and the efforts toward a unified view of trafficking, at least in a legal context. Part III charts the international legal framework applicable to human trafficking. The goal is to define and understand what human trafficking for the purpose of sexual exploitation is in comparison to sex work. This part thus formulates the definition of human trafficking for sexual exploitation in light of the Trafficking Protocol. It is particularly noted that even though a nexus of international legal rules manages human trafficking, before the Trafficking Protocol, human trafficking was not the focus of any one specific treaty. In addition, the discussion illustrates that, with the adoption of the Trafficking Protocol in 2000,1 this phenomenon was defined and addressed explicitly. Due to the treaty’s importance, the analysis looks at how the Protocol regulates human trafficking.
This paper, thus, sets forth that albeit the Trafficking Protocol is significant in defining human trafficking, there is an ongoing debate over the meaning of sex trafficking in comparison to sex work. In this regard, the aim is to understand how/whether international law has been developed in ways that would help us to differentiate these two phenomena.
The reason for building the initial analysis on the above-mentioned steps - anatomy of human trafficking, setting forth the legal framework of sex trafficking with links to definitional analysis - is to underline another major issue pertaining to sex trafficking and sex work in overall sense, as the following step in Part IV: the obligation of protection, which mainly looks at the importance of identification of trafficked victims and sex workers. This issue is explained on the grounds of ‘layers of victimisation’ and its consequences. It looks at the misperception attached to both sexually exploited victims and sex workers in order to capture whether any absolute profile of victims exists not only in the cases of human trafficking but also considering the incidences in which sex workers are raped, abused and mistreated, and so victimised. For instance, it is a possibility to avoid that victims are further hurt/victimised by certain misconceptions and thought practices around the concept of trafficking whereby people/institutions blame them for being trafficked, or for particular things they did/had to do while they were being trafficked. This stresses the idea of a doubled suffering, or compounded suffering, where the suffering of being trafficked is made worse/more complicated by the suffering caused by people’s perceptions of or reactions to that crime/suffering.
This paper employs an approach of unfolding sequential layers pertaining to one major issue, namely the definitional quagmire pertaining to sex trafficking and sex work. It considers alignment of international human trafficking law and asks whether, based on the findings, international law defining human trafficking -particularly sex trafficking- is adequate for facing modern-day challenges. It also sets forth where current approaches are/are not in alignment with international law and what could/should be done to improve the situation. Thus, this paper aims to analyse whether the Trafficking Protocol’s human trafficking definition manipulates the understanding of human trafficking for sexual exploitation, resulting in a possible mismatch with sex work. In other words, it seeks to examine how the law deals with disentangling the phenomenon of sex trafficking in comparison to sex work, and whether it is done in a satisfactory way.
This paper, in order to address the issues given above and resolve the ensuing research question, adopts a methodology which includes:
A critical analysis of the current international legal rules pertaining to the definition of human trafficking;
A desk review of relevant literature, including scholars’ approaches and international jurisprudence in relation to sex trafficking and sex work;
A survey of significant ongoing issues affecting sex trafficking practices and sex work.
The paper represents a legal analysis on sex trafficking and sex work, employing comparative and socio-legal methods, and considering both law and practice as necessary.
II. DEFINING THE BORDERS OF SEX TRAFFICKING
Human trafficking is a pervasive contemporary phenomenon. This term describes the process of moving people within and between countries for the express purpose of exploiting them.2 Human trafficking comes in many forms, including forced labour, migrant workers’ debt bondage, forced child labour and sex trafficking, which is why it is enmeshed with a host of other transnational movements and criminal activities. Even though the borders of human trafficking extend to many other forms of non-sexual exploitation, this paper only deals with one dimension of human trafficking, namely human trafficking for sexual exploitation, in other words sex trafficking.
Since human trafficking is mostly a hidden crime with a complex nature, identification and non-criminalisation of human trafficking victims are not easy tasks to determine in practice and in law. Human trafficking victims are often ‘captured’ in situations mostly due to ‘consequential offences’ such as prostitution. This sentence emphasises ‘captured’ in its analysis, because trafficked victims are usually afraid of going to the police either due to threats made by their traffickers or because they do not trust officials.3 Therefore, in most cases they encounter public officials because of the crimes they have committed/been forced to commit related to their status, e.g., victims may be treated as criminals due to their involvement in prostitution or their status as illegal immigrants. As a result, they may unjustly suffer prosecution. Realistically, systematic identification would only work well if there was no threat of prosecution for status crimes. Note that this possibility is very unrealistic, if states have a desire to be tougher on such crimes. It is also important to add that people who are trafficked internally are also at great risk of suffering from the consequences of misidentification or non- identification of their status. Thus, the analysis in this paper refers not only to individuals trafficked transnationally but also those trafficked internally.
It is at core crucial to understand why definitional quagmire exists when it comes to defining the borders of specific issues in relation to human trafficking crimes. Particularly this paper explains the challenges resulting in definitional obstacles of human trafficking for the purpose of sexual exploitation. In that victims of sex trafficking are mostly misidentified as sex workers. The reasons of misidentification of trafficked victims are explained both from legal perspective and sociological aspect of the problem. For instance, sex trafficking victims are ‘confused’ as workers ‘selling’ sex due to the product of certain misconceptions: “the whore/Madonna division within prostitution and the idea that the non-innocent sex worker gets what she deserves”.4 This idea also produces that ‘whores’ sacrifice their rights to social protection through their degraded behaviour.5 In the ‘whore and the goddess’ split, our mothers and sisters are perceived to be pure, while the women of the ‘other’ community, who enjoy sex or participate as workers in sex industry, are looked upon as bitch-like.6 In such conceptualisation, and similar to what is faced by human trafficking victims, stereotyping, prejudices, myths exist and there is a failure to appreciate the complexity and diversity of sex work and its social contexts.7 This approach/terminology rests on the idea that this kind of discourse is about acknowledging vs. denying women’s ability to make choices, and that some women are forced into certain choices. E.g., one former sex worker, who is transgender, told Amnesty International that ‘[w]e didn’t have any real access to health care services because whenever we went to hospitals we were laughed at or the last ones to be attended to by doctors’.8 It is thus important to define and understand the concept of sex worker and sex trafficking victim; as such ignorance and an arrogant attitude towards these people and/or groups can cause infringement on the rights of sex workers and silence anti-trafficking campaigns and trafficked victims.
It remains essential to identify such practices, i.e., whether they constitute trafficking, in order to better assist and protect victims, because entitlements owned to the trafficked individual in a given case would be substantial. In this regard, following parts will look at the meaning and understanding on sex work and sex trafficking both conceptually and legally.
