1. What is Trafficking in Women?

Contents:

Finding a Common Definition for Trafficking

The problem of trafficking in women has been addressed at the international, regional and national levels. Before the creation of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, in October 2000, international treaties referred to trafficking without defining or clarifying whether trafficking includes all forms of sex work. For example, Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women states "All Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women."

There was little agreement in the international community about how trafficking should be defined. In early treaties, trafficking was often synonymous with the trade in women for prostitution. Later, the term "trafficking" was also used to describe the smuggling of male and female migrants over borders for economic gain. In the late 1990's, the Organization for Security and Cooperation in Europe (OSCE) pointed out that

From Trafficking in Human Beings: Implications for the OSCE, ODIHR Background paper, 1999/3.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children is the first modern consensus definition of the problem. The Protocol defines "trafficking in persons" as "the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal or organs." The Protocol also explains that "the consent of a victim of trafficking in persons to the intended exploitation . . . shall be irrelevant where any of the means set forth [above] are established."

The Interpretive Notes (Travaux Préparatories) to the Protocol clarify that a person in a "position of vulnerability" refers to "any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved." The Protocol also explains that there will be no defense of "consent" when a vulnerable person is exploited through trafficking.

Finally, the Interpretive Notes are explicit that the Protocol deliberately does not define the terms "'exploitation of the prostitution of others" or "other forms of sexual exploitation," leaving individual State Parties to define these terms according to national law. During the drafting stage, much debate surrounded how the Protocol would address the issue of work in the commercial sex industry, and the language in the document represents a consensus that enabled the Protocol to be widely ratified.

While the United Nations definition of trafficking is widely used, there is still disagreement over the actions that constitute trafficking in women. To be enforceable on a national level, laws must include a clear definition of the prohibited behavior. On the other hand, NGOs that engage in preventive and rehabilitative work with women, children and communities do not necessarily need such a precise definition.

Amnesty International has identified several common characteristics of trafficking, which may be useful to advocates who are working to address the problem:

From the PDF version, Human rights abuses of women trafficked from countries of the former Soviet Union into Israel's sex industry, Amnesty International, 18 May 2000, AI Index: MDE 15/17/00.

Why is there Debate over the Definition?

The debate over the definition of trafficking centers on the meaning of the term "consent" in the context of commercial sex work. The draft version of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons originally contained two options for defining "trafficking in persons." The first option defined trafficking as an act requiring some level of force and/or coercive action and drew a distinction between consenting victims and those who do not consent. Under this definition, trafficking was equated with forcible action against a woman for either "sexual exploitation" or "forced labor." If there were no coercion, threats or physical force used, the situation would be considered voluntary migration.

Human rights activists argued that when any form of coercion exists, the person who has been trafficked could not possibly have consented. Thus, human rights groups pushed strongly to have the phrase "with or without consent" eliminated from the final version of the Protocol.

The issues of coercion and consent were especially controversial in the context of sex work. At its core, the debate concerns whether adult prostitution, when not coerced, should be accepted as a legitimate form of work, as any other form of labor

On one side, a group of conservative religious and feminist organizations argued that all forms of prostitution, in essence, exploit women. Thus, a definition that would only outlaw "forced prostitution" implies that some forms of prostitution are legitimate and it gives sex traffickers a defense to prosecution if they can prove the victim consented to become a prostitute. Other advocacy groups defend sex work as a legitimate profession that some women chose freely.

Another group of national governments and NGOs submitted a second option for defining trafficking. They advocated for a definition of trafficking that included coercion as a necessary element for trafficking for labor purposes, but would define migration for sex work as "trafficking," without regard to whether the sex worker was coerced and even if she voluntarily chose this form of work. This definition made clear that prostitution, even with the consent of the woman, would be considered trafficking. The burden of proof would therefore be shifted from the victim who no longer would have to prove she was forced or coerced into the activity.

In order to establish the Protocol, a compromise was ultimately reached in which the consent of the victim is not relevant to whether the person was trafficked. The Protocol, however, uses the phrase "sexual exploitation" without a precise definition, leaving national laws on sex work, which may permit regulated prostitution, to prevail.

Despite a single international definition, human rights advocates and government institutions continue to discuss what should and should not be considered trafficking. As trafficking is a complex issue, with interrelated social and economic factors, it can often be advantageous to adapt one's working definition of the problem to the specific task or project. While legislation requires a precise description of prohibited behavior, it would be useful to employ a more expansive definition when carrying out outreach or rehabilitative work.

Trafficking and Commercial Sex Work

The commercial sex industry takes many forms, and the relationship between prostitution and trafficking for sex purposes is complicated. Some women are deceived, coerced, drugged or kidnapped before being trafficked for commercial sex purposes. These women have never before worked as prostitutes and generally do not know what is happening until they find themselves being forced to take clients. Such women may be trafficked into work at strip clubs as waitresses or as dancers, which then leads to situations of forced prostitution. Some women are trafficked directly to brothels, where they are held against their will, coerced and threatened.

Other women who have never before worked as prostitutes may suspect that they will work in the sex industry if they arrange their employment with a trafficker. Women who work as prostitutes in their home countries also willingly travel to other countries because they believe they will earn more as sex workers abroad.

Regardless of how women become involved in trafficking and prostitution, the terrible conditions under which they are generally forced to work violate their fundamental human rights. Many women and girls are at the mercy of brothel owners and pimps because they cannot speak the language or are unfamiliar with local customs. Women are often trapped because they do not have the legal documents necessary to travel beyond the border. Traffickers also use threats of harm to the victim herself or to her family, physical and sexual assault and imprisonment to control women. Few women successfully escape from trafficking. If they do escape, they may be caught by the traffickers, and the resulting punishment can include severe injury or even death.

Women and girls may be trafficked into Internet pornography. Even some seemingly legitimate enterprises, such as matchmaking organizations may, in fact, sell women into a form of sexual servitude though the mail-order bride industry. Women will travel to another country, believing that they will be married and are then forced into prostitution when they arrive.

According to Vanessa von Struensee "The Internet has become a vast resource for promoting the global trafficking and sexual exploitation of women and children. The information superhighway is used to actively engage in the buying and selling of women and children. Catalogs of mail order brides, commercial sex tours, video-conferencing bringing live strip shows to the Internet: it is all there, and worse. Because there is still scant regulation of the Internet, the traffickers and promoters of sexual exploitation have virtual carte blanche." From Globalized, Wired, Sex Trafficking In Women And Children.

Factors of both supply and demand promote the growth of trafficking, in particular into commercial sex work. Male demand for the services of sex workers, combined with male perceptions about woman's societal role, lead to exploitation of women and girls. On the "supply" side, such factors as women's weaker economic position, lack of real employment and educational opportunities for women and girls, increased millitarization of specific regions after conflicts and the expansion of transnational crime push women toward work in the commercial sex industry and to situations where they are at risk of being trafficked.

Trafficking Violates Women's Rights

Apart from international law, found in the Protocol against trafficking and UN conventions that explicitly prohibit trafficking, other more general human rights norms are violated when women are trafficked.

When recruiting women, traffickers typically charge inflated prices for securing travel and employment documentation and transportation. Once they have arrived in a destination country, women are then held in a form of debt bondage while they attempt to pay these debts. In many cases, women are held in sexual servitude. They may be locked into rooms, apartments or brothels, unable to leave or contact help. If a woman resists being prostituted, the trafficker may withhold food, assault and/or rape her. Research on trafficking has even revealed cases of traffickers killing women as an example to other victims in order to exert control through terror.

Scholars and activists have identified a number of human rights violations that may occur in the context of trafficking. For example, in a trafficking case, as described above, the following civil and political rights may be violated: the right to personal liberty and autonomy, the right to bodily integrity, the right to freedom of movement and expression, freedom from torture or other cruel or inhuman treatment, the right to be free from discrimination and the right to be free from forced labor and slavery. Trafficking may also violate a woman's social, cultural and economic rights, such as health, free access to education and information, and favorable working conditions, including just compensation and reasonable working hours.

Trafficking Routes

Due to its transnational nature, at some level trafficking impacts virtually every country. Organizations that study migration patterns and trafficking classify countries as either "source," "transit" or "destination." In simple terms, the country of origin of a trafficking victim, the country where traffickers recruit women and girls, is known as a source country. Traffickers frequently move women through intermediary countries, often for extended periods when the women may be forced to work. These countries are known as transit countries. Traffickers chose transit countries based on their geographical location (near a border or a port), their weak border controls, corruption of immigration officials or their affiliation with the organized crime groups that are involved in trafficking. Transit countries generally have access to the destination country. Destination countries are those that receive trafficking victims. Destination countries are generally economically prosperous because they must be able to support the commercial sex industry.

A report by the British Home Office explains the relationship between source, transit and destination countries in this way: "Women are trafficked into countries that have existing sex industries which can absorb them, and are often trafficked from countries where there is an indigenous sex industry. They are possibly trafficked through one or more intervening 'transit' countries." From Stopping Traffic: Exploring the extent of, and responses to, trafficking in women for sexual exploitation in the UK, 2000, Liz Kelly and Linda Regan.

The classifications become complicated because many countries fit more than one category; they may serve as transit counties along a trafficking route and may also receive trafficking victims as a destination. The Protection Project, a legal human rights research institute based at the Johns Hopkins University School of Advanced International Studies in the U.S., has created a number of maps of trafficking routes that illustrate the trafficking patterns between source, transit and destination countries around the world.

It is vital that source, transit and destination countries cooperate and develop joint strategies to combat trafficking. According to the U.S. Department of State Trafficking in Persons Report for 2002, "Destination countries must work with transit and source countries to stem the flow of trafficking; source countries must work not only to prevent trafficking, but to help with the reintegration of trafficking victims back into their home societies."

Migration Issues

Trafficking violates international human rights standards and may also violate national immigration laws. Trafficking in women, forced migration, and alien smuggling are separate offenses, but all constitute illegal immigration. In destination and transit countries, it is the police and the immigration service that are most likely to come into contact with trafficking victims. Indeed, when cases of trafficking enter national legal systems, it if more often the case that the victim is charged with a violation of immigration law than for the trafficker to be criminally prosecuted.

Victims of trafficking, as well as other forms of illegal migration, are in vulnerable and insecure situations and are at risk for further exploitation. Immigration legislation should distinguish between trafficking victims and other migrants as well as provide for prosecution of individuals who aid and facilitate the trafficking of women. The Canadian Immigration and Refugee Protection Act of 2001, for example, recognizes trafficking in persons as a criminal offense and provides for a maximum penalty of $1,000,000 and life imprisonment. Immigration officials, including border guards, customs officials and adjudicators, also require specific training on the dynamics of trafficking.

Because of their illegal immigration status, most victims fear reporting any abuse to the authorities. The fear of deportation is very real. Trafficking victims often do not want to risk being returned to their home country, where they may face continued economic hardship as well as social stigmatization. Victims may also fear retaliation by the traffickers, either against themselves their families. Traffickers will frequently use threats of retaliation to control women who have been trafficked.

This situation not only represents a serious danger for the victim but also impedes the ability of law enforcement to address the problem. When victims are hidden or deported when the authorities learn of their illegal status, they are unable to cooperate in the prosecution of the criminals involved in the trafficking. The European Union, as well at national governments, have recognized the need to grant victims of trafficking special protection because of their crucial role in the investigation and prosecution of trafficking cases.

In the United States, the Victims of Trafficking and Violence Protection Act of 2000, creates two new visa categories which do not confer immigrant status but allow victims of trafficking to remain in the U.S. during criminal prosecution and to receive certain benefits and services. The T and U visas are discussed in more detail in the Trafficking: Law and Policy section.

Victims' advocates agree that in order to combat trafficking in women, victims must cooperate as witnesses in criminal processes. Women's rights activists, however, also stress that effective witness and victim protection is crucial and should not be superseded by the desire to prosecute. As in the case of other forms of violence against women, such as domestic violence, a victim's personal interests may be at odds with the interest of the state prosecutor. Women victims of violence must be allowed to make personal decisions about their own safety. Victims who are unwilling to cooperate in legal proceedings, for any reason, may be ineligible for protection and services in some countries. Much needed economic, housing and medical services for victims should not be predicated on a women's agreement to participate in investigation and prosecution of traffickers.