Sex Trafficking and Modern Slavery

The Absence of Evidence

Marie Segrave, Sanja Milivojevic, Sharon Pickering

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138686762
• eBook ISBN: 9781134876006
• Edition: 2
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

The second volume of Sex Trafficking: International context and response

Human trafficking and modern slavery have captured the imagination and attention of the international community. This book builds on the authors' first volume, Sex Trafficking: International context and response. Much has changed since the first volume was published, not least the shift away from sex trafficking to modern slavery as the dominant focus in policy and advocacy. Yet, as the authors argue, little has changed with regards to how nations respond. This volume re-examines the international counter-trafficking scholarship and policy response, to offer an analysis based on original and new data. This book lays the ground for specific forms of research and inquiry that are necessary to better understand and respond to the range of exploitative practices and conditions that give rise to human trafficking.

This book offers a detailed analysis of the dominant response to human trafficking, which is framed by the criminal justice process. Examining the identification of victims, the investigation of cases, victim support, prosecutorial decisions and repatriation practices, the authors draw upon original research from Australia, Serbia and Thailand: three diverse nations that, like nations across the globe, have invested heavily in criminalisation as the dominant response to counter trafficking. They argue that exploitation sits at the nexus of global migration patterns and emphasise the importance of speaking to those directly affected by counter-trafficking policies and those directly involved in their implementation in order to produce empirical data to inform how we make sense of the numbers that are produced, the outcome of the policies and how we ought to determine success in this context.

An empirical, criminologically informed opportunity to reconsider the dominant ways of understanding and strategies of responding to human trafficking, this multi-disciplinary book will be of interest to those engaged in criminology, sociology, law, political science, public policy and gender studies.

Chapter 1

Introduction

For almost 30 years now, trafficking in people has been observed, dissected and analysed across the globe. Yet, while the eradication of human trafficking has been an international priority for quite some time, knowledge about it remains fragmented (see Weitzer 2014; Dragiewicz 2015). Since the original volume of this book was published, much of the mise en scène of trafficking has shifted – transnational organised crime has largely fallen by the wayside, and, increasingly, the term ‘human trafficking’ is beginning to be used interchangeably with ‘modern slavery’ and ‘forced labour’. After almost 20 years of the most recent international commitment to addressing human trafficking (recognising that in the early twentieth century a range of international commitments were established) and the plethora of policy commitments implemented locally, nationally, regionally and internationally to counter this form of exploitation, there remains insufficient reliable data on the state of human trafficking. Meaningful data on and analysis of the impact of counter-trafficking efforts are also largely absent; monitoring and process data is predominant and is produced to describe implementation efforts, rather than offering insight into the impact of such policies on potential and actual victims of trafficking (see Milivojevic and Segrave 2011; Shinkle 2007). Despite this, regulation and policy commitments continue to be introduced and celebrated across the globe. These responses largely fit within the parameters articulated in the United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereafter, ‘the Protocol’ or ‘the Palermo Protocol’) and the priorities emphasised by the United States (US) in the annual implementation and production of the Trafficking in Persons Report (hereafter, the ‘TIP Report’).

The theoretical and scholarly landscape has focused much attention on reportage on counter-trafficking efforts, though there is a broadening of this landscape to interrogate human trafficking as a form of ‘modern slavery’ and/or forced labour. The present work begins from a different standpoint. As critical feminist criminologists, we look beyond the human trafficking literature, to the critical mass of interdisciplinary scholarship that engages with the exercise (and performance) of state power through the border regime and the criminalisation of specific forms of mobility (see Pickering and Ham 2014; Kapur 2005; Pickering and Weber 2006; Andreas 2000; Wonders 2006). Disciplines including international relations, sociology, and development and migration studies have highlighted the urgency of recognising the human insecurity (characterised by a range of forms of violence, risk, fear and exploitation) created by national security efforts that target ‘high-risk’ groups of migrants (see Pickering and Ham 2014; Edwards and Ferstman 2010). Specifically, within criminology this burgeoning scholarship is focused on the convergence of immigration and criminal law and the practices of ‘crimmigration’ (Stumpf 2006; Aas 2011). The contribution of scholars in this field has been to document how the ‘discursive and political coupling of migration and crime is creating a specific dynamic of social exclusion which transforms traditional social boundaries’ (Aas 2011, p. 337), producing both an immobilised and illegalised global underclass (Aas 2011; Pickering and Weber 2006). This scholarship recognises that the ‘underside’ of the pursuit of a globalised political economy of capital and liberal values is the creation of ‘undesired categories’ of people, which include unlawful migrant workers (Segrave 2009), trafficked persons (Segrave et al. 2009), rejected asylum seekers (Pickering 2005), ‘flawed consumers’ and ‘suspect citizens’ (Weber and Bowling 2004). Within this context, the ‘coupling of migration and criminalisation’ that Aas (2011, p. 78) refers to is being compounded not only by non-citizenship, but by the addition of victimisation. As a consequence, we can identify that at times there is some overlap between the desired and the undesired non-citizen: for instance, victims of human trafficking may become ‘desired’, even in cases where they are unlawful migrants. The exploration of this, and the point at which victims become ‘undesirable’ again, is central to this second volume.

We also draw on the ever-growing field of critical modern slavery studies and aligned research, which refuses the dominant rhetoric of human trafficking and modern slavery as a contemporary global scourge (see, for example, O’Connell Davidson 2015; Chuang 2014; Quirk 2011). This work has brought to the fore the importance of recognising and understanding the historical precedent (and antecedent) to contemporary forms of human exploitation. So, too, there have been some important and convincing critiques of the global stage as embodying, quite literally, the performance of political leaders, celebrities and celebrated ‘former victims’ – where truth is less important than a good story, and where those exposed as having told the story that we ‘wanted’ to hear are vilified and expunged (cf. Haynes 2014; Kempadoo 2015). For example, Somaly Mam, who made grand claims around rescuing victims of sex trafficking and who was lauded globally for her counter-trafficking efforts, was then publicly shamed when she was exposed as having fabricated much of the evidence, including scripting stories of sexual exploitation and servitude for young women to retell to the media (for an account of this story, see Marks 2014). In fact, we argue that in the exposure of the untruth of claims to victimisation, what is revealed is the narrative with which we are most comfortable: the narrative of extreme victimisation. The international audience did not doubt Somaly Mam’s story: this is the image of human trafficking that makes sense and that, in some respects, appeals to a global audience. Such a narrative of extreme exploitation goes hand in hand with narratives of extreme offending and enables the requisite response to be clear: to rescue victims, and to punish offenders. Yet, the reality is rarely so black and white. As critical feminist criminologists, we recognise that across all areas of social and political life victimisation is most readily acknowledged when it takes the form that is most rare: for example, we see this in the literature on sexual assault. Despite decades of work to challenge this, the persistent community and criminal justice system response is most reactive and sympathetic to the rarest of sexual assaults: those committed by strangers when victims are doing something innocent, rather than the more common scenario, for example, of the perpetrator being a family member or current or past sexual partner, and the victim and offender being under the influence of alcohol (Lievore 2005; for the review of recent literature see van der Bruggen and Grubb 2014; Hohl and Stanko 2015). In human trafficking, the same dilemma is made manifest: the messy reality of trafficking experiences is less easily moulded into the narrative of crime and justice, good and evil. We argue that the consequences of this may be that we are undertaking efforts that make much of the global community ‘feel good’ about doing something about trafficking, but which have a limited impact and, at worst, produce the collateral damage of misplaced interventions, responses that effectively silence victims and enable ignorance to the full impact of entrenching the difference between citizens and non-citizens, ‘skilled’ and ‘low- or unskilled’ labourers. During the research for the first volume, and in our diverse research since that time, we have interrogated the complexities of the intersections of borders, regulation, exploitation, gender, migration and citizenship, recognising that it is in this intersection that the majority of exploitation occurs and that the rare, exceptional stories of extreme exploitation can misguide us if they are the starting point and litmus test for our response.

For this updated volume, drawing on our original and recent independent qualitative inquiry across Australia, Thailand and Serbia, we aim to provide a unique contribution to the field that draws on original, empirical, transnational research to document the development, implementation and impact of counter-trafficking strategies in these diverse, local contexts. While our focus more broadly is the intersection of regulation, border control, citizenship, migration and exploitation, we take the specific response to human trafficking and its implementation as our core study, as it is by examining the implementation of counter-trafficking efforts that, we argue, the real tensions and priorities underpinning counter-trafficking strategies are best revealed. It is in where we draw the line, for example, on what is or is not trafficking, on what is or is not made available to victims, and what is or is not counted or measured as ‘success’ that we can pinpoint what is both good and bad with contemporary counter-trafficking interventions. This volume draws on research conducted in three continents (Australia, Southeast Asia and Europe) to offer an important evidence-based critique of counter-trafficking strategies. The original volume sought to challenge the reliance and focus on sex trafficking within counter-trafficking interventions. Since its publication, as we have just indicated, the field of scholarship and research has expanded, and while this publication remains unique, there is an opportunity, as the signing of the Protocol nears two decades, to offer an updated examination of international counter-trafficking scholarship and policy that has developed to date. The continued salience of the original findings of the research that partially forms the substance of this volume foregrounds some of the emerging concerns with which the international community are grappling.

Fifteen-plus years of the Protocol: a review

Academics from a range of disciplines, together with practitioners, activists and policy-makers, have been trying to make sense of ‘the tsunami of counter-trafficking policy and legislation that followed in the wake of key international commitments in the 2000s’ (Segrave and Milivojevic 2015, p. 132). This international commitment to eradicating trafficking has been well documented in the literature, so it is not our intention here to repeat what we (and many others) have written on the development of the international anti-trafficking policy framework.¹ Rather, this section will examine the key elements of these counter-trafficking efforts and the shifts in the international anti-trafficking discourse since the Protocol was adopted and open for signature by the United Nations (UN) General Assembly in 2000. We will do so by briefly outlining the development of key international and regional agreements, including the breadth of human rights and international law instruments such as the Protocol, the TIP Report, and the European Union (EU) counter-trafficking policy framework.² The focus will also be on recent developments in the counter-trafficking landscape as, we have noted elsewhere, ‘the urgency of counter-trafficking efforts continues apace, with an ever-expanding network of counter-trafficking efforts operating independently and collaboratively across national and regional borders’ (Segrave and Milivojevic 2015, p. 32). Trafficking in relation to other issues of national or regional significance, and the assessment of ‘success’ in combating trafficking, will also be explored. This discussion will foreground the book chapters to follow.

The international anti-trafficking policy landscape: 2000–2017

Since human trafficking came to the focus in the international arena in the 1990s, the key framework through which this phenomenon has been conceptualised defines trafficking as a crime that mostly involves crossing borders. For a long time, trafficking was considered to be transnational and, in particular, a transnational organised crime (Altink 1995; Skrobanek et al. 1997; Williams 1999; Bruinsma and Meershoek 1999; Hughes 2001; Shelley 2001; Truong 2001; Bruggeman 2002; Carrington and Hearn 2003; Oberloher 2003; Rijken 2003; Farr 2005). This link emerged from the broader international policy framework within which trafficking was located in the early 2000s. As Rijken (2003, p. 86) noted at the time, ‘[t]he fact that a special protocol on trafficking in persons is attached to the UN Convention against Transnational Organized Crime indicates that this crime must be considered as generally committed by organized crime groups’. Another key focus at the turn of this century was the understanding that victims of trafficking were to be found mostly in the sex industry, and often in the context of undocumented migration (Segrave and Milivojevic 2015; Doezema 2010; Andrijasevic 2010). As we will map out in this and upcoming chapters, the trafficking landscape has changed somewhat: after researchers and practitioners in the field repeatedly challenged the trafficking–organised crime nexus (see Goodey 2008; Milivojevic and Pickering 2013; Weitzer 2014; Andreas 2010), this narrative arguably lost significant traction (although not everywhere, as we will demonstrate later in the context of the EU policy framework). The notion that sex trafficking is the predominant form of human trafficking has also diminished as labour trafficking outside of the sex industry and other forms of exploitation came to the forefront of human trafficking campaigning. Importantly, however, as Weitzer (2014) and Chuang (2014) point out, trafficking has recently been increasingly conflated with slavery, in a bid to supposedly acknowledge other forms of exploitation missed or neglected by the international counter-trafficking policy regime. This change has been driven in part by the administration of former US President Barack Obama and the rise of the philanthropy–celebrity anti-trafficking movement (see Haynes 2014). As we will explore in this chapter and later in the volume, this shift in the global counter-trafficking focus appears to be having a significant impact on our understanding of trafficking, the impact and effectiveness of existing and future anti-trafficking interventions, and the lives and experiences of trafficking victims.

Despite the move away from the sex trafficking–organised crime nexus that was a central pillar of our critique in the first volume, the security–crime narrative that was also pertinent to our original analysis remains an overarching framework within which trafficking is conceptualised and dealt with in the international arena. The Protocol remains the backbone of the international framework through which trafficking is defined and addressed. Indeed, it has been said that the Protocol offers ‘a universal definition’ which ‘arguably promotes international standardisation and accountability’ (Baer 2015, p. 168, see also Bhabha 2015; Gallagher 2015). Although the Protocol was the first international document that, to a certain extent, reached a compromise over the definition of trafficking (Rijken 2003, p. 66), interpretations of trafficking remain diverse. As Chuang (2014, p. 610) notes, this ‘definitional muddle has resulted in indiscriminate conflation of legal concepts, heated battles over how best to address the problem, and an expanding crowd of actors fervently seeking to abolish any conduct deemed “trafficking” ’.

The Protocol is an instrument of international law that predominantly focuses on criminal justice measures – in particular, prosecution and punishment of offenders (Heinrich 2010; Baer 2015; Gallagher 2015; Segrave and Milivojevic 2015). This comes as no surprise as the Protocol was drafted by law enforcement officials as a response to ‘concerns over border security and transnational organized crime syndicates’ role in facilitating clandestine migration’ (Chuang 2014, p. 613). Thus, to combat trafficking, nation-state signatories to the Protocol were requested to adopt a range of criminal justice measures, such as to criminalise trafficking (Article 5), prosecute offenders (Article 4) and strengthen border controls ‘as may be necessary to prevent and detect trafficking in persons’ (Article 11). The criminalisation agenda the Protocol mandates has been ‘aggressively followed’ (Bhabha 2015, p. 3) ever since, as countries across the Global North and Global South have been racing to criminalise human trafficking, and further criminalise other forms of related exploitation and, more recently, slavery-like practices. At the same time, provisions for victims in the Protocol have remained ‘negligible’ (Baer 2015, p. 168; see also Chuang 2014) and, at best, protected by soft law, while the ‘real protection’ was pursued through supplementary human rights mechanisms such as the Office for the High Commissioner of Human Rights Recommended Principles and Guidelines on Human Rights and Human Trafficking, adopted in 2002. Gallagher (2015, p. 20) argues that mechanisms such as the Recommended Principles ‘grafted human rights onto the skeleton’ provided by the Protocol; however, the Protocol’s firm focus on criminal justice paved the way for a plethora of international policy documents that continued to define, measure and evaluate trafficking based (almost exclusively) on criminal justice outcomes, rather than on human rights or any other standard.

A further influential instrument is the US Department of State’s TIP Report. As we wrote in the first volume of this book, the TIP Report is based on a US-defined review process of assessment of selected nation-states by the US government, in which assessment and monitoring of counter-trafficking efforts are measured against US-defined minimum standards for the elimination of trafficking (as defined in the Trafficking Victims Protection Act – TVPA). While all the elements of the TIP Report – from the nations selected, to the investigation and review process, to the ranking system – have been the subject of increasing criticism (see, for example, Berman 2003; Chuang 2006; WCRWC 2007; Chuang 2014), the US-defined norms and standards in relation to combating trafficking have played a significant role in influencing governments to introduce anti-trafficking laws and policies (Carrington and Hearn 2003; Coomaraswamy 2003). The weight of this review and assessment process has been sustained through the economic sanctions regime established within the TPVA that can be applied to nation-states that fail to comply with the minimum standards defined by the TVPA. This authorises the withdrawal of financial assistance (excluding trade-related and humanitarian assistance) from countries that fail to comply and show no signs of addressing this failure. The minimum standards are criminalising trafficking, punishing traffickers and making ‘serious and sustained efforts to eliminate severe forms of trafficking in persons’ (22 U.S. Code § 7106 a) 1–4). Effectively, as Chuang notes (2006, p. 449), the ‘sanctions regime created a ready means for the US Government to reinvent and unilaterally define a set of anti-trafficking standards with international purchase’. For nations for whom sanctions are not a direct threat, the impact on diplomatic relations has been noted as hugely influential in pressuring nations to respond to human trafficking (Segrave 2004). To date, the TIP Report remains the ultimate carrot-stick mechanism that drives much of the counter-trafficking efforts in the Global North and Global South. Critically, while each nation in the TIP Report is assessed according to its efforts related to ‘prevention’, ‘protection’ and ‘prosecution’ of trafficking, the assessment process has been intended to encourage the development and implementation of domestic and cross-border criminal justice efforts, primarily focused on law enforcement outcomes as indicators of success. Finally, and importantly, recent changes in the TIP Report driven by the change of administration resulted in recasting ‘all forced labour as trafficking, and … all trafficking as slavery’ (Chuang 2014, p. 619). The significance of this change will be outlined later in the cha...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• List of abbreviations/acronyms
• Note on terminology
• Presentation of data
• 1 Introduction
• 2 Search and ‘rescue’
• 3 In pursuit of justice: identifying victims within the criminal justice system
• 4 In the care of the state
• 5 Prosecution
• 6 Beyond the criminal justice process: the return ‘home’
• 7 Conclusion
• References
• Index