What’s Wrong with the US Federal Response to “Sex Trafficking”?
By Jennifer Suchland | January 11, 2023
Over the last decade, I stopped using the term “sex trafficking.” In practice, “sex trafficking” reflects an approach to anti-trafficking that conflates trafficking with sex work. Standard US and global responses to sex trafficking systematically promote the potential rights of victims at the expense of vulnerable workers in and out of the sex trades. We will need to do more than change our terminology to fix what is wrong with the US federal response to sex trafficking.
There is a profound human rights deficit at the core of US federal anti-trafficking policy. This deficit is experienced by many people ensnarled in the anti-trafficking apparatus, including victims. Current responses to trafficking are embedded in international policy norms that prioritize the prosecution of a crime. This carceral approach to human trafficking has weakened the rights of impacted communities, including survivors, sex workers, migrants, and marginalized workers.
The fundamental rights of survivors and all workers requires a divestment from the criminal legal system and a (re)investment in social justice work.
International Anti-Sex Trafficking Policy
It is important to understand the recent history of international and US sex trafficking policy because current norms were not inevitable. If we can see the underlying investments in the public policy debates, we can see that there were and are alternatives.
Sex trafficking emerged as an international policy concern in the wake of the Cold War when US and European governments feared the rise of migration. The demise of state socialism in East Europe brought unprecedented economic hardship pushing many to seek employment beyond the borders of the Iron Curtain. Increased migration and heightened border patrolling across Europe hastened a shadow market in migration papers, illegitimate employment firms, and smugglers. Exploitation was common in this context created primarily by government migration and economic policies. In response, the European Union invested in border policing and restrictive immigration.
In the 1990s, international attention became increasingly focused on sex trafficking. The problem of “sex trafficking” was encapsulated with the figure of post-Soviet “Natasha.” Media, international agencies such as the International Organization for Migration, and feminist groups circulated a sensationalized image of a post-Soviet woman duped into sex trafficking. Natasha was not cast as an economic agent navigating the neoliberal banditry orchestrated by global financial and political elites. Rather, Natasha was cast as a naïve, sexualized, and “white” victim of criminals (not governments). The “Natasha Trade” discourse elevated anti-sex trafficking to the level of international criminal enforcement.
International panic over sex trafficking helped build consensus for the passage of the UN Convention against Transnational Organized Crime (2000), and with it, the Optional Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children. The Palermo Protocol is foundational for anti-trafficking policy around the world. It established a crime control agenda because it focuses on combatting organized crime. The Protocol calls for greater inter-governmental police cooperation and established a broad definition of human trafficking that requires proof of force, fraud, or coercion (Article 3).
US Federal Sex Trafficking Policy
The United States passed similar polices that same year, namely the Trafficking Victims Protection Act (TVPA). The original TVPA empowered the US State Department to produce an annual report ranking countries response to trafficking in a 4-tier system. Reflecting the carceral logic of global anti-trafficking, the system is primarily based on whether nations criminalize trafficking and rates of arrest and prosecution.
Altering the global socio-economic context that produces migrants’ vulnerability to exploitation is not a priority item within Palermo or the TVPA.
Human Costs of Carceral Anti-Trafficking Policy
In the wake of TVPA, US federal anti-trafficking policy has emphasized prosecution as part of its’ “4P” paradigm (prosecution, protection, prevention, and partnerships). The emphasis on prosecution tethers the allocation of rights and resources to an individual’s compliance with prosecution. For instance, survivors can be required to become plaintiffs in an anti-trafficking case as a condition of survivor benefits.
In addition to the expansion of law enforcement operations, the health professions are now part of the anti-trafficking apparatus. Anti-trafficking training in caring fields extends the reach of the carceral legal system. Professions traditionally aligned with care, such as social work, participate in law enforcement operations such as diversion programs or criminal courts. Requiring victims to participate in criminal processing is potentially traumatizing for survivors and restricts their access to help if there are other violations, such as with work visas or drug charges.
In practice, anti-sex trafficking policy means greater criminalization and surveillance of people engaged in sexual economies. People trading sex already face police harassment, extortion, and abuse. This vulnerability is made much worse by the fact that the policing of sexual economies has exponentially increased due to anti-trafficking. The vital alliance between survivors and sex workers is undermined when survivors are placed in opposition to sex workers.
The carceral human rights approach also undermines efforts to fight labor exploitation more broadly. Farms, fishing boats, and construction sites are not just potential sites of human trafficking but are industries that rely upon exploitable labor.
Because victims of trafficking are most likely identified through policing practices, many undocumented or migrant workers are harmed in the process of finding potential victims. The adoption of a carceral approach to human trafficking means greater surveillance of sectors that tend to employ immigrant, Black, and other communities of color.
Harsh penalties for human trafficking are necessary to a broad anti-trafficking strategy. However, prosecution-centered approaches fail to prevent trafficking and compromise care. The carceral approach directs government resources away from longstanding organizations focused on structural inequities in housing, healthcare, and education or enforcement of labor standards.
Human Rights Solutions
Important solutions to trafficking already exist.
The legacies of colonialism and slavery are present in US labor law, such as the National Labor Relations Act, which originally excluded agricultural and domestic employees. This exclusion targeted African American and migrant workers who dominated those labor sectors. Combatting trafficking and exploitation requires an investment in the value and rights of laborers long devalued in the law and market.
For example, self-organized labor movements in farm and food work and domestic care point to minimum wage and fair work standards as well as health and safety as urgent needs. The Coalition for Immokalee Workers has pushed a Fair Food Program that partners farmers, farmworkers, and retail food companies to secure better wages and working conditions. For instance, fast food companies such as Chipotle and Burger King agreed to pay a fair food premium on tomatoes, which is passed down the supply chain to workers.
Similarly, the criminalization of sex work is rooted in the racialized and gendered policing of urban spaces . Now, legislation that aims to shutdown virtual spaces, such as Fight Online Sex Trafficking Act (FOSTA), compromises the safety of people engaged in sexual labor. Policymakers should move toward decriminalizing sex work as part of an anti-trafficking response. For example, the SAFE SEX Workers Study Act is an important step to understand the negative consequences of anti-trafficking and the criminalization of sex work.
These solutions center human rights as the remedy for exploitation.