Is the Legalization of Prostitution the Solution to Sex Trafficking?

Thousands gathered in Toronto to mark International Women Day IWD with a protest march demanding improvements in many social issues. rmnoa357 / Shutterstock.com

Human trafficking for sexual exploitation occurs in nearly every country in the world, with victims found in 124 countries—a subject highlighted during last week’s United Nations Commission on the Status of Women.

The problem is widespread, but law enforcement of the crime is low. The complex interplay between country borders, labor rights, violence against women, drug trafficking, lack of sufficient awareness, and data gaps hinder prosecution of criminals, and it is further complicated by prostitution and the legalization of sex work.

Regulating the sector can afford sex workers more legal protections against exploitation and violence, but some question whether it will actually help separate exploited victims from consensual sex workers given the nature of trafficking, lack of policing of prostitution and the exploitation of poverty. The key, however, could be in providing proper victim support services.

According to Ilias Chatzis, Chief of the Human Trafficking and Migrant Smuggling Section of Organized Crime and Illicit Trafficking Branch, United Nations Office of Drugs and Crime (UNODC), human trafficking is defined under the UN’s Trafficking in Persons Protocol and requires three elements. There first needs to be an ‘act’ of recruitment, transportation, transfer, or harboring of persons, Chatzis says. Second is the ‘means’ in which people are trafficked, such as threats of force, coercion, kidnapping, fraud or abuse of power. Lastly, for a crime to qualify as human trafficking under the generally accepted global definition the ‘purpose’ needs to be sexual exploitation, forced labor or slavery, or similar practices.

He explains that trafficking for sexual exploitation is the most widely detected type, with approximately 53 percent of all trafficking victims being sexually exploited.

However, Chatzis notes that human trafficking is also a “complicated crime to prosecute because it requires a higher threshold of proof” of all the three elements unlike most other crimes. He says 40 percent of UN Member States say they have less than ten yearly convictions and 15 percent say there are no convictions at all despite evidence that suggests trafficking is a problem in their country.

Several factors account for the grim statistics on bring traffickers to justice, but prostitution is one of the more recognizable ones.

This is according to both Chatzis and Lovisa Lloyd, Residential Director of FAIR Girls, a trafficking victims support organization. Chatzis says the UN has a neutral stance on the legalization or decriminalization of prostitution, instead leaving that as a national preference for each country. In the U.S., prostitution is only legal in 11 counties in Nevada.

Lloyd notes that the ‘Nordic Model’ differs, however. She says that in Sweden, laws decriminalize the selling of sex while heavily penalizing the buying of sex. Lloyd says “the idea is to punish the ‘John’ for participating in the sexual transaction, while sparing the prostitute.” However, this can create just as harmful a market in which a prostitute operates because she/he is dealing with a buyer that is knowingly and willingly breaking the law, explains Lloyd. She says this system is “scarcely better for the prostitute.”

“We can do better than the ‘Nordic model,’” notes Lloyd, because even the customer is no better off in that system. They still have no way of telling whether the prostitute is a victim of trafficking, under 18, or under duress.  According to Lloyd, even if the customer recognizes signs of a trafficking operation or victim, they do not report it in Sweden for fear of being arrested for buying sex.

Though FAIR Girls remains neutral on the subject, Lloyd in personal capacity thinks “legalizing consensual sex work is necessary,” it is a “wholly insufficient step” to combating trafficking. Lloyd also says that victim support groups and NGOs are fairly split on the legalizing sex work, with opinions running the gamut.  There are some former prostitutes though that say “legalization has spurred traffickers to recruit children and marginalized women to meet demand.”

Mary Katherine Burke, human rights attorney in Washington, D.C., cautions that perhaps legalizing or decriminalizing prostitution can provide consensual sex workers with the legal protection and ability to report crimes of exploitation, rape, and violence just like any other laborer in any other field, but “this assumes that by permitting [it]…that the societal mindset will immediately shift to that of acceptance and eventual normalization of sex work.”

Much of the problem lies in two key areas: poverty and victim support.
Lloyd uses D.C. as an example, but according Chatzis this applies to many developing countries as well and even incredibly poor areas of countries on the rise economically like India and China. Both say the majority of trafficking victims come from poor backgrounds and often from a minority group whether that is race, nationality, immigrant status, or sexual orientation. They are on the margins of their society and traffickers exploit their need to get out of poverty.

With promises of well-paying jobs, traffickers coerce victims into forced labor or slavery which often puts victims at a much higher risk of sexual exploitation as well. Chatzis says data on the initial reasons for trafficking is not reliable since victims can be exposed to multiple forms of exploitation at any given time.

Lloyd explains though that current models of law enforcement still distinguish between labor and sex trafficking because “we do not recognize sexual labor as a valid form of labor.” This thinking is a contributing factor as to why most countries have not legalized sex work and afforded it the protections of other forms of labor rights.

Burke says that economic factors are compounded by the fact that many victims entered the trafficking ‘market’ between the ages of 12 to 14.

She says they have grown up with their pimps and traffickers and so the sexual violence and exploitation “become normalized for them.”

Without having the option of proper education or vocational training, sex work becomes the only viable way to make money and survive even if victims leave what Burke refers to as “the life.” In a way, they continue to be victims of trafficking long after release from servitude.

Chatzis says one of his office’s mandates is to “always ask Member States to [remember] that victims of human trafficking should not be criminalized for crimes committed while they were being trafficked.” Burke points out that police can be part of the problem as well in countries where prostitution and solicitation is a crime, often tied to illegal drug use and sale. Victims are wrongly arrested and incarcerated because the signs of trafficking are not recognized, according to Burke. For instance, Burke says the Washington, D.C. Metro Police Department told her it will “continue to arrest minors who are engaged in commercial sex” despite the new Safe Harbor legislation in place that recognizes these minors as victims. As Chatzis notes, nearly one in three victims worldwide is under the age of 18, so treatment of minors is a crucial part of all this.

According to Burke, law enforcement officials insist that arresting sex workers, regardless of trafficking ‘red flags,’ is “the only effective means of intervening in sex trafficking cases and the only sure way to recover the victim.” She argues though that using the arrest as “leverage for cooperation in their investigations against traffickers and pimps” is just further trauma for victims, especially young girls. Burke does say however, that good examples of proper officer training to recognize trafficking victims and appropriate policing techniques are employed in American cities like Minneapolis/St. Paul and Houston.

Though the numbers of victims reported are high in both these cities, scores of victims could exist in other American and international cities as well. One of the major challenges of determining the extent of human trafficking is unreliable data. Chatzis even notes that all the statistics provided to UNODC on convictions and victims are provided by the countries themselves, some of whom may not have the procedural knowledge or capacity for proper data collection.

Appropriate victim support can eventually lead to economic empowerment, one of the main tenets discussed during the past two weeks at the UN during the 59th Commission on The Status of Women. Lloyd warns that even though traffickers and pimps deserve prosecution for human rights violations, society must remember that these people were often victims themselves, having gone through years of laborexploitation as well.  In fact, Chatzis points out that while 72 percent of convicted traffickers are men, involvement of female traffickers “tends to be more prominent” in human trafficking than in other types of trafficking. The numbers could be more skewed given that data is only available on those convicted, not those still operating and committing the crime.

To help FAIR Girls, and other support organizations like the Polaris Project, the UN established the Trust Fund for Victims of Human Trafficking in 2010.  Recognizing that “NGOs are better placed to offer victim services” than any government or intergovernmental organizations, Chatzis says that grant money will be awarded on a case-by-case basis to those wanting to provide victim support.

NGOs can propose projects and budgets in three-year terms and Monica Belalcazar, External Relations Officer for UNODC, explains that the organizations should have one of two main priorities. First, the methods used should be direct and sustainable to provide the most relief and support for victims like: housing, food, legal aid, access to justice, psychological and social services, and medical care. Organizations could also be awarded on the basis of their financial or legal assistance provided to victims in cross-border and regional trafficking activities.

There is an emphasis on developing countries when it comes to funding prevention and victim support, but Lloyd says her message is that trafficking happens everywhere, even in American neighborhoods. Burke explains that though there is legislation like the Trafficking Victims Protection Act, it does focus heavily on foreign victims trafficked into the U.S. This is certainly a serious problem, but Burke also sees the urgent need for legislation like the Justice Victims of Trafficking Act to pass through Congress. It would, according to Burke “ameliorate the damage that criminal convictions have” and improve law enforcement strategies when it comes to prostitution and sex trafficking. She says however, that the bill is being held up by political controversy surrounding the Hyde Amendment in the Senate at the moment.

Though legalizing prostitution and sex work may allow a distinction among consensual sex workers and trafficked victims, economic, psychological, and policing strategies are still factors that make human trafficking for sexual exploitation a difficult, complicated, yet far-ranging crime to prosecute. What criteria is used to determine lawful engagement in commercial sex is also key, given the heavy burden of proof required to satisfy the global definition of human trafficking. In the meantime, there are efforts to provide more funding for effective support of victims of trafficking in order to break the vicious cycle sexual exploitation.