You are visiting the ISWFACE website: Issue of Trafficking and Sex Slavery
Female Migrants, Prostitution, and State Control
by Kerwin Kaye
Over the past twenty-five years, trafficking has grown from a topic which concerned only a small group of feminist activists to one receiving significant attention from state policy-makers at both the national and international levels. During this time, immigration to the formerly imperial nations, including the United States, has reached peaks not seen since the beginning of the twentieth century, when an earlier wave of concern about trafficking (then referred to under the racially-specific rubric of “white slavery”) swept through colonizing countries in the West. In both cases, apprehensions regarding the future of the nation have been articulated through discourses focusing upon the sexual activities of young women. While laws generated in both periods have been presented as if they are for the benefit of migrating women forced into prostitution, the statutes also serve to conjoin issues of national definition and female sexual propriety. In this respect, laws opposed to trafficking echo long-standing desires to keep prostitute women out of the national body, a desire first expressed in relation to Asian women with the Page Act of 1875. While regulations designed to eliminate forced prostitution might seem to be unrelated to others designed to prevent “immoral” women from entering the United States, in fact the two sets of laws share a great deal of functional similarity: both seek to expel prostitution from the national body and both direct state attention toward the sexual behaviors of migrant women in order to do so. Furthermore, both sets of laws have been closely associated with attempts to exclude non-white male laborers, often enacting legislation against men in the same act outlawing the immigration or trafficking of prostitutes. By detailing the material and ideological parallels between anti-prostitution and anti-trafficking immigration policies, I hope to interrogate the manner in which sexualized racial identities are created through the implementation of immigration policy, and the way in which these identities serve to construct and enforce a (sexed and raced) national identity for the United States.
Although my primary focus is upon contemporary anti-trafficking laws, I first reference the history of the Page Act in order to contextualize and highlight present-day trends. I choose to focus upon the Page Act rather than upon the later white slavery laws because it has been a virtually unacknowledged forerunner for contemporary anti-trafficking efforts. Furthermore, while the effects of the campaign against white slavery are sharply contested, the oppressive nature of the Page Act and its close association with the Chinese Exclusion Act (also sponsored by Sen. Horace Page) makes it a comparatively unambiguous example highlighting the potential dangers of current laws. Subsequent to this, I discuss the recent passage of the Trafficking Victims Protection Act (TVPA), which was signed into law by President Clinton in 2000, as well as making briefer comments upon similar anti-trafficking laws in other countries and at the international level.
The Page Law of 1875
In the years running up to the Chinese Exclusion Act of 1882, Congress unanimously passed the Page Act in 1875. The Page Act was the first federal immigration control law, and marked the ascension of federal management of immigration over state management. The Act excluded three classes of immigrants, the first to ever be prohibited entry to the United States
: prostitutes, convicts, and contract laborers from Asia (the Page Law invoked the categories of “prostitute” and “convict” without reference to national origin, however in practice all enforcement mechanisms were directed against Asians, particularly Chinese). Notably, the Act did not merely exclude would-be migrants, but also punished those who contracted for their labor or arranged for their transportation (i.e. “smugglers” and “traffickers”). Unlike contemporary laws, no attempt was made to justify the act in terms of the protection it might offer Asian migrants; instead, the statute straightforwardly directed inspection officers to ascertain if any such “obnoxious persons” were attempting to enter the US.
In excluding “cooly” labor [Chinese men working as indentured servants], convicts, and women entering the United States for “lewd and immoral purposes,” the law brought together three categories of migrants deemed threatening to the stability of white, heterosexual patriarchy in the United States. Chinese men were deemed a threat as laborers because they undermined the ability of white men to compete on the labor market. While business owners, particularly those which employed Chinese laborers, often supported the entry of Chinese men, white-dominated labor unions did not. A mere four years after the passage of the Page Act, the Workingman's Party successfully changed the constitution of the state of California, amending it to outlaw the employment of Chinese laborers under any circumstances (Article 19). In the campaign leading up to this change, Dennis Kearney, president of the Workingmen's Party, decried the “Chinese coolie” as “the meanest slave on earth” and suggested that they “degrade white labor.” Notably, these claims were promulgated in terms which directly referenced a man's patriarchal authority:
The father of a family is met by them at every turn. Would he get work for himself? Ah! A stout Chinaman does it cheaper. Will he get a place for his oldest boy? He can not. His girl? Why, the Chinaman is in her place too! Every door is closed. He can only go to crime or suicide, his wife and daughter to prostitution, and his boys to hoodlumism and the penitentiary….We are men, and propose to live like men in this free land, without the contamination of slave labor, or die like men, if need be, in asserting the rights of our race, our country, and our families.
Race, nation, “freedom,” and familial/sexual propriety are all linked within this framing, narratives which effected the passage of the earlier Page Act as well.
While the California Constitution targeted employers, the Page Act was primarily directed at migrants and those who transported them.
The Page Act also placed an emphasis upon prostitution, in a way in which the constitutional amendment did not. As with Chinese migrant men, the presence of Chinese prostitutes evoked ambivalent reactions from the white majority. While some argued that the presence of Chinese prostitutes gave Chinese men a sexual outlet and thereby protected white women from sexual assault (e.g. see Luibhéid: 35), others expressed concern that white men were themselves visiting Chinese prostitutes, a situation most whites saw as much less acceptable. As increasing numbers of Chinese prostitutes arrived, it became more and more difficult for the white majority to keep them segregated, a fact which heightened the perception of white clientage and tipped the scales more heavily in favor of those who wished to outlaw the arrival of Chinese prostitutes, or Chinese women more generally (Scully: 84). Middle-class Protestant women expressed particular concern about “being thrown into proximity with this district” and asked authorities to remove Chinese prostitutes from streets more inhabited by whites (Tong: 111). President Grant echoed up this sentiment, saying that Chinese prostitutes were “a disgrace [to] the communities where [they] settled” (in Tong: 133).
But while white, working-class men created a racially exclusive notion of patriarchal nationhood, middle-class white women who were interested in the issue developed a slightly different rhetoric, one which emphasized the maintenance of familial propriety. These middle-class women portrayed Chinese prostitutes as threats to the (white) family, but also as victims in need of assistance. Utilizing women's supposed attributes of compassion and empathy to justify their participation in the public sphere, these women attempted to form “rescue” societies for Chinese women (Tong: 177-8). But while middle-class women saw Chinese prostitutes as victims, their political allies - medical doctors concerned about the spread of venereal disease, church leaders concerned with the propriety of the white community - tended to focus upon the alleged racial depravity of Chinese women. Said one campaigner, a doctor:
I am satisfied, from my experience, that nearly all the boys who have venereal disease contracted it in Chinatown. They have no difficulty there for the prices are so low that they can go whenever they please. The women do not care how old the boys are, whether five years old or more, so long as they have money (quoted in Luibhéid: 35).
As a rule, men with such opinions held more power than their female counterparts, and even women's efforts to “rescue” Chinese women were hampered by the fact that male church leaders had little interest in bringing these “immoral foreigners” into their congregations (Tong: 177-8).
Anti-prostitution campaigners who emphasized familial propriety also made overtures to the maintenance of working-class patriarchy, speaking of the need to protect “Our white laborers [who] are, as a rule, married, and fathers and heads of households” (in Luibhéid: 34). While those organizing against the immigration of Chinese men could dispense with protest concerning Chinese prostitutes, these appeals to white patriarchy were commonly found within the language of anti-prostitution reformers, and was apparently essential to the success of their efforts. Thus, the efforts of white, middle-class anti-prostitution campaigners, both male and female, were apparently more readily assimilated at the political level only to the extent that they dovetailed with the racist efforts of white male laborers to maintain a privileged labor market.
With the passage of the Page Act, migrant Chinese women came under particular scrutiny. Although Senator Page (CA) was initially unable to convince the rest of Congress to ban Chinese immigration in toto, he pressed for the fullest utilization of the Page Law, promising San Francisco citizenry that “extra care would be taken to prevent further emigration there” (Tong: 48). The year following the passage of the Page Act witnessed a 33% drop in female migrants, followed by an 80% drop the next year (Tong: 48). Under the Act, immigrant officials were to ascertain if any Chinese woman attempting to enter the US had “entered into an agreement with any person or persons for a term of service within the United States for lewd and immoral purposes.” All Chinese women were thus scrutinized in relation to the (morally implicating) possibility of their being trafficked. As Luibhéid argues, it was not merely an “overly harsh” implementation of the law which conflated prostitute and non-prostitute women, but a construction of Chinese women as being particularly likely to be prostitutes. As President Grant said in 1874, “The great proportion of the Chinese immigrants who come to our shores do not come voluntarily…but come under contracts with headmen who own them almost absolutely. In worse form does this apply to Chinese women” (cited in Luibhéid: 36).
The portrayal of Chinese men and women as “unfree” clearly did not work to their advantage, but rather was cited in multiple ways as reasons to exclude their “tainting” influence. Rather than assist Chinese women in their struggle against (alleged) bondage, the Page Act subjected women to much greater levels of control, consisting of multiple sessions of interrogation (both before and after landing, with answers being cross-checked), the creation of a photographic record and a system of bodily measurement (including, for the first time, fingerprinting), and requirements for investigation and approval from both the British colonial government in Hong Kong and from the Tung Wah Hospital Committee (an association of prominent Chinese businessmen). The interrogation procedure itself included multiple questions regarding the woman's sexual history, the respectability of her family, the stature of her husband (if any), as well as questions designed to determine if she was telling the truth more generally regarding her history. As Luibhéid notes, a case history was thus created, establishing a system of discipline which subjectified Chinese women along particular sexualized, gendered, classed, and racialized axes. This system of questioning and documentation, the forerunner of the modern passport (Torpey, 2000), established a new disciplinary system regime which, as Foucault pointed out (1977), constituted “individuation” as a means of control.
Contemporary Anti-Trafficking Laws
At first glance, it may appear that contemporary anti-trafficking laws have nothing to do with older laws such as the Page Act. As Secretary of State Colin Powell puts it, contemporary anti-trafficking laws are aimed at stopping nothing less than “a modern form of slavery.” He continues:
Traffickers prey on the most vulnerable members of our human family, violating their most basic rights, subjecting them to degradation and misery. Every year, an estimated 700,000 to 4 million people around the world are victimized by traffickers through fraud, coercion, and outright kidnapping. The overwhelming majority of victims are women and children. Traffickers often force them into pornography and prostitution, subjecting them to terrible mental and physical abuse, and putting them at risk from devastating diseases such as HIV/AIDS.
President Bush offered a similar commentary in February of 2002 when he established an interagency task force, headed by Colin Powell, in order “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims” (Executive Order 13257). Powell and Bush's remarks defining trafficking as a modern form of slavery are fully in accord with international NGO and governmental discourse, which handles questions of trafficking in the UN Working Group on Contemporary Forms of Slavery, among other committee bodies.
Yet while the contemporary framing of trafficking appears to focus solely upon issues of force, coercion, and slavery, and to cast no aspersion upon victims, a careful analysis of the actual functioning of the laws reveals numerous parallels to earlier exclusionary legislation. To be sure, the Trafficking Victims Protection Act (TVPA), passed in 2000 with the sponsorship of liberal Senator Paul Wellstone (D-MN) and conservative Senator Sam Brownback (R-KS), is not intended as a new Page Law. Both the late Senator Wellstone and Senator Brownback have supported relatively liberal immigration policies, and the TVPA was not drafted as a means to foreclose all opportunity for immigration to the US. Yet the operative use of the TVPA reveals more of a concern with eliminating illegal forms of immigration than with protecting victims.
One of the most conspicuous omissions within the concept of “trafficking,” for example, has to do with the way it focuses attention upon “transport” rather than “slavery” per se. The UN protocol on trafficking - for which the US acted as a lead negotiator - is itself very careful to specify that it covers only cases that are “transnational” in nature. Given the prior existence of anti-slavery treaties which did not include such a limitation (such as the 1926 Slavery Convention passed by the League of Nations, and the 1956 Supplementary Convention on Slavery passed by the UN), such a selective framing cannot be explained as being merely the result of the international system of treaty law. Furthermore, most of the anti-trafficking laws which have been passed around the world in association with the UN protocol (117 countries have signed the document) similarly address themselves only to cases which involve cross-border “traffic.” While the US TVPA does include domestic incidents of coerced labor, many other countries, including most EU countries, define “trafficking” in such a way as to exclude national citizens who might face slavery-like conditions. Perhaps the most appropriate gloss for the worldwide use of the term “trafficking” is thus that given by the UK-based NGO Anti-Slavery International: “a form of slavery occurring as part of migration” (Pearson, 2002: 31).
In and of themselves, however, contemporary slavery and slave-like practices are decidedly not limited to situations which involve transport across state borders. In his book Disposable People, for example, Kevin Bales estimates that there are some 27 million slaves in the world, approximately two-thirds of whom work in their home communities as agricultural laborers in situations of debt bondage (1999: 9, 23).
The emphasis upon “trafficking” as opposed to “slavery” per se excludes these millions from its purview and thus introduces an unnecessarily narrow purview, one which requires explanation.
While prior anti-slavery treaties might have usefully undergone modification in order to broaden their definition of “slavery” to include all manner of forced labor (rather than only those instances involving formal “rights of ownership”), it is not at all clear why an entirely new protocol was required to do this. And, as the older treaties banned not only slavery but the slave-trade as well, one might well ask why “trafficking” - that “modern” form of slavery - is now targeted only in transnational cases.
Of relevance to this point is the fact that the protocol against trafficking was attached to another: the Protocol against the Smuggling of Migrants by Land, Sea, and Air. Unlike the protocol against trafficking, the protocol against smuggling does not directly concern itself with possible violations of human rights. While the document specifies that such violations are to be considered “aggravating circumstances,” there is not even a requirement that a state punish life-threatening acts any differently than it punishes more benign forms of “smuggling.” Both the protocol against trafficking and the protocol against smuggling come as modifications to the United Nations Convention against Transnational Organized Crime, and are handled through the UN's Office for Drug Control and Crime Prevention; that is to say, neither treaty is conceived of as a human rights instrument, but rather as a international agreement aimed at taking better police measures against “organized crime.” But whereas the definition of “trafficking” (as cross-border coerced labor) renders it a necessarily reprehensible practice, “smuggling” can take numerous benign forms. Increased restrictions on immigration have, for example, forced many refugees to pay smugglers in order to enter a country and apply for asylum. In such cases, “smugglers” often take great risks in order to rescue people from life-threatening situations, generating comparisons with those who assisted runaway slaves through the Underground Railroad (Kyle and Koslowski, 2001: 14) and those who helped Jews to escape from Nazi Germany (Avebury, 2002: column 269). In other instances, “smugglers” act more like travel agents than mafiosas, or are simply family members helping their kin across the border (Kyle and Koslowski, 2001: 2). Most commentators agree that while organized crime has some involvement in international smuggling operations, most smuggling across borders is not performed by mafia-like syndicates (Hebenton and Spencer, 1998; Kyle and Koslowski, 2001: 16-7; Kyle and Dale, 2001: 47; Finckenauer, 2001; Chin, 2001).
No matter the circumstance, however, “smuggling” is subject to penalties nearly as great as those merited by trafficking. While the new TVPA specifies an incarceration period of up to twenty years for trafficking, smuggling for profit earns up to ten years, transporting an illegal alien within the US subjects a person to an additional five years, and concealing or harboring an illegal alien merits an additional five (INA 274[a]); in other words, the typical actions taken in a trafficking case - smuggling, in-country transportation, and “harboring” - all performed without force, could subject someone to the same twenty year penalty they might receive if they had used force. The law also specifies that any person importing or employing another for any “immoral purpose” (particularly, according to the law, prostitution) is subject to a ten year penalty, even if entry into the US was itself legal and irrespective of the treatment received by the prostitute/sex worker (INA 278). Given the combined failure of most anti-trafficking laws to address slave-like practices which do not involve cross-border migration, and the degree of punishment allotted for simple smuggling, or prostitution, one wonders what exactly trafficking laws are intended to punish.
The general focus upon law enforcement rather than human rights has concerned some commentators, who note that neither protocol guarantees that victims will be given more rights or more power to impact their situation (Gallagher, 2001: 4; Coomaraswamy 2000: 7, 16; Wijers and Lap-Chew, 1999: 194, 195). The anti-trafficking protocol, for example, mandates that states must take strong police action against traffickers, but makes protections for victims a voluntary option, thus allowing a person who was kidnapped, physically abused, and forced to prostitute to be incarcerated and eventually deported (Gallagher, 2001: 2; Jordan, 2002: 4). As argued by John Morrison and Beth Crosland, two staff members of the UN's commission on refugees (UNHCR): “If the fundamental human rights of migrants, regular or irregular, are not merited as important enough to mention in a legal instrument, the chances of them being followed in practice are even slimmer (2001: 62).
Indeed, US anti-trafficking law offers far fewer protections and benefits than might at first be apparent. While the TVPA offers victims participation in the Witness Protection Program, and temporary visas enabling them to stay and work in the US (and to bring certain family members to the US as well), these provisions are available only to a person who "is willing to assist in every reasonable way in the investigation and prosecution of severe forms of trafficking in persons" (Section 107). The right to stay in the US during a criminal investigation, however, had been previously granted to illegal immigrants in 1994 through the Violent Crime Control and Law Enforcement Act (VCCLEA). Furthermore, prior to 1994 illegal immigrants assisting with criminal cases were often “paroled in” or granted a status of “deferred action,” thereby allowing them to stay in the US via bureaucratic procedure rather than through statutory grant (Pearson, 2002: 121). While the TVPA raised the number of visas which could be granted from VCCLEA's 100 to 15,000, and does not require that victims report to the Attorney General every three months (as does the VCCLEA), it has other restrictions which make it far less preferable to the earlier law. For example, while the VCCLEA enables a witness to bring their spouse, children, and parents to the US, the TVPA permits only victims under 21 to do so, allowing those over 21 to bring only their spouse and children. Perhaps even more significantly, visas granted under the TVPA are temporary, and last "only for so long as the Attorney General determines that the continued presence of such person is necessary to effectuate prosecution of traffickers in persons." Visas granted under the VCCLEA, meanwhile, enable a person to stay and work in the US for three years. Lastly, while it is possible for a person utilizing the TVPA to become a permanent resident, this is to be granted only if it is decided that they "would suffer extreme hardship involving unusual and severe harm upon removal." Those who apply for a visa under the VCCLEA, meanwhile, are allowed to become permanent residents if it is merely determined that they "substantially contributed to the success of an authorized criminal investigation or the prosecution."
The TVPA thus adds very little to the small modicum of rights already granted to irregular migrants (Chapkis, forthcoming). Indeed, a victim may fare better through the use of the older VCCLEA than through the use of the law specifically designed for him or her. The emphasis upon the new TVPA - which includes government-sponsored informational brochures for NGOs who deal with trafficking - may lead some individuals to apply for a visa as a "cooperating victim" through the TVPA, when in fact they would have received significantly greater benefits as a simple "witness" through the VCCLEA. Furthermore, given that in either case these benefits are available only if a victim assists law enforcement - i.e. they are the "carrot" - they must be seen in relation to the "stick" applied to those who refuse to cooperate: deportation. While the TVPA condemns coercion, the bill itself, and the VCCLEA before it, effectively pressure trafficking victims to testify in order to achieve a state aim that may not be in accord with a victim's needs (Wijers, 1998: 78). The limited benefits granted to victims might thus be seen as a simple shift in governmental focus, away from the prosecution of individual illegal migrants and toward those who facilitate their entry. Indeed, as Nora Demleitner notes, it had been becoming increasingly clear to many observers that the immediate deportation of trafficking victims impeded the prosecution of traffickers (2001: 258; see also Richards' report for the CIA, which makes a similar observation, 1999: 32). During the negotiations for the UN protocol, several countries expressed this view directly, saying that trafficking victims were valuable as witnesses, but should be deported immediately after trial (Human Rights Caucus, 2000). Even so, acquisition of a visa through the TVPA can take nearly six months, time during which a victim has no ability to legally work, and no access to government-sponsored shelters (as these are non-existent); most victims are therefore dependent during this time upon the assistance of NGOs and even private individuals (Pearson, 2002: 132). The lack of a systematic package of assistance for victims speaks directly to the issue of governmental priorities.
In practice, even the limited and conditional benefits offered to those who assist in governmental prosecutions have been rarities as state agents have often failed to distinguish between trafficking victims and illegal immigrants. As Elaine Pearson of the international NGO Anti-Slavery International points out, it is often not easy to determine the line between “trafficking” and other forms of economic exploitation experienced by illegal migrants (2002: 31; see also Richards, 1999: 25, 31, 36; Robinson, 2002: 4). This point is important as under the two UN protocols states have fewer financial obligations in handling those who are smuggled, thereby providing them an economic incentive to identify illegal migrants as being “smuggled” rather than “trafficked” (Gallagher, 2001: 27). Both in the US (Richards, 1999: 31) and in other countries (Pearson, 2002: 32, 40-1) victims frequently fail to be given the rights which they have granted on paper. As strongly commented upon by the UN's Special Rapporteur on Violence Against Women, victims are instead often treated as illegal migrants, that is, they are frequently arrested, detained for a time, and then deported (Coomaraswamy, 2000: 17, 23, 28, 29-30; see also Richards, 1999: 39; Wijers and Lap-Chew, 1999: 174, 177; Pearson, 2002: 32, 38, 175, 182).
Enforcement of anti-trafficking laws is particularly tentative in cases involving women who are engaged in prostitution as such women are subject to anti-whore stigma and presumed to be “guilty.” In most cases, this distinction is a matter of practice rather than law, however some countries specifically rule out providing protection to female trafficking victims unless they display certain qualities: “virtue” in Canada and Uganda, “honesty” in Colombia, and “chastity” in Brazil and Japan (Wijers and Lap-Chew, 1999: 241; see also 149, 183-4). Rather than being a form of “modern slavery” per se, “trafficking” in these countries becomes narrowly defined as the act of using coercive means to bring a woman into prostitution (183). This legal caveat, whether formal or informal, is important because most women who are trafficked for prostitution are aware of the nature of their future work, though they are unaware of their exact working conditions (which sometimes prove to be coercive and abusive; Wijers and Lap-Chew, 1999: 112-3, 235).
The sexual stigma associated with prostitution puts female victims in the position of needing to prove their “innocence” by demonstrating their sexual respectability, a situation which has been compared with what has happened during court trials for sexual assault, in which the victim was (and sometimes still is) forced to establish her sexual propriety in order to convince a court that she was violated (Doezema, 1998: 36; Coomaraswamy, 2000: 27; Demleitner, 2001: 272-8; Chapkis, forthcoming).
As numerous sex worker advocates have pointed out, people engaged in prostitution, whether coerced or not, are frequently presumed to be “guilty” and therefore undeserving of protection. Several of these commentators have noted that laws existing prior to the TVPA could easily be used to protect individuals from kidnapping, forced labor, sexual assault, and other forms of abuse, and questioned the efficacy of a new law at a time when the political will has generally been lacking to enforce the old ones (Bindman, 1998: 66; Wijers and Lap-Chew, 1999: 165-6, 183, 244; Coomaraswamy, 2000: 26; Adams, 2003: 138).
Given the disparity between anti-trafficking rhetoric and prosecutorial reality, some advocates (including the UN Special Rappateur for Violence Against Women) expressed concern during the negotiations leading to the creation of the UN protocols that any new anti-trafficking laws would be used against migrant sex workers (Coomaraswamy, 2000: 7). As Wijers and Lap-Chew, from the Dutch Foundation Against Trafficking in Women (STV) and the Thailand-based Global Alliance Against Traffic in Women (GAATW), argued:
[S]ince 'anti-trafficking' policies and legislation invariably appear to result in State actions against women - predominantly immigrants and prostitutes - instead of actions against migrants and abuse, serious doubts are raised as to the appropriateness of the existing anti-trafficking framework (Wijers and Lap-Chew, 1999: 208; see also 109, 185; Saunders, 2000; Gallagher, 2001: 4; IOM, 2000: 1, 2).
Given the momentum behind the creation of a new anti-trafficking treaty, however, NGOs who had questions regarding the entire trafficking framework decided to limit their struggle to lobbying for a definition of the practice which did not automatically include all prostitution, including non-coerced forms (Lap-Chew, personal communication, 2000). This latter all-inclusive definition was promoted by the Philippines, Belgium, the Vatican, and the several NGOs who form the Coalition Against Trafficking in Women (CATW). These groups collectively argued that all forms of prostitution are coerced, by economic conditions if by nothing else. NGOs fighting against the CATW position were able to win support for a compromise position which condemned any manner of “sexual exploitation,” a term that was carefully left undefined but which did not explicitly criminalize all forms of prostitution (Human Rights Caucus, 2000).
Nevertheless, there have been a number of incidents in several countries in which actions taken in the name of “anti-trafficking” have confirmed the fears of sex worker advocates. In 2001, for example, police in London raided 50 flats used by immigrant women from various countries who were prostituting. While the police first claimed that they were “protecting under-age children,” they were unable to produce a child victim when the story was challenged and soon made the alternate claim that they were “liberating victims of trafficking.” While the 60 women involved were migrants from other countries, they were operating independently and were not “being trafficked.” As a result of the arrests, many of the women were quickly deported (within a matter of days) including a number who had filed for asylum (Adams, 2001, 2003). Police in several other nations, including the US, have similarly used “trafficking prevention” as an excuse to arrest migrant sex workers who are in fact working independently or in brothels of their choosing.
Several nations, including Japan, India, Vietnam, Burma, and Thailand, have likewise constructed “rehabilitation centers” for unrepentant prostitutes, including those who have been “trafficked internally” (i.e. those who have been victims of trafficking schemes within their countries of origin; those who cross national borders are generally deported or, in the words of the UN anti-trafficking protocol, “repatriated”; Doezema, 1998: 46; Wijers and Lap-Chew, 1999: 142, 174, 186; Coomaraswamy, 2000: 26-7).
While the campaign against trafficking seems designed to challenge the treatment of sex workers as criminals, the emphasis upon extreme cases in much of the literature - young children who are auctioned off as virgins, the forceful kidnapping of young women - serves to create an image of “innocence” which applies to a very few. The more typical person who initially consents to prostitution continues to be treated as a criminal, even when they have in fact been the victim of serious abuse and “trafficking.”
But while anti-trafficking laws can give governments an excuse to crack down on migrant prostitutes - a concern since Page law - perhaps the more significant manner in which they can act is to justify and facilitate anti-immigrant measures on a broader scale. The UN anti-trafficking protocol specifically requires states to strengthen their border controls in order to “prevent and detect” trafficking (Article 11). The protocol further stipulates that governments must take greater actions to ensure the quality of their travel and identity documents (Article 12). Prior to the terrorist attacks on the World Trade Center and Pentagon, the issue of trafficking was thus being utilized as a primary justification for increasing biometric controls over immigration. While in the West, this has related to advances such as iris scans (now in trial use in the UK and in Holland), the protocol also effectively requires the under-developed neo-colonies to make their systems more efficient and reliable. Although the “prevention of terrorism” has now become the primary narrative surrounding immigration control in the West (the “Enhanced Border Security and Visa Entry Reform Act of 2002,” for example, focused entirely upon the issue of terrorism and did not even mention the issue of trafficking), “anti-trafficking” remains an important rhetorical element as indicated by the high degree of attention accorded to the issue even after the 2001 attacks. While some of this activity may result from simple institutional momentum that had been built prior to September 11th, testimony from conservative NGOs in front of Congress has specifically praised the Bush administration for not allowing anti-trafficking initiatives to be completely overshadowed by the issue of terrorism (see Linda Smith's testimony in US-CIR, 2002). Perhaps not unlike the Drug War, the “War Against Human Trafficking” (as it was called by Chairman Hyde during Congressional hearings; US-CIR, 2002) still serves its purposes, even as the “War Against Terror” assumes primacy as a rationalizing ideology.
Given the emphasis upon border control, it is not surprising that anti-trafficking measures have been used to justify the same type of gender, race, and nationality-based profiling which characterized the Page Act. Germany now institutes special visa requirements for women from the Philippines or Thailand, for example (Coomaraswamy, 2000: 27). Canada has more generally stated that “the selective use of visitor visas remains a primary means of preventing illegal entry” (30). The UK has likewise posted border guards at its own ports of entry, specifically in order to look for individuals who may be prostitutes (a policy praised by the EU; Wijers and Lap-Chew, 1999: 177-8). Australia has taken the innovative approach of placing immigration agents in the airports or several South-East Asian countries (IOM, 1999-2000b: 6), instituting screening procedures which make it easy for a woman from Canada or the UK to enter, but nearly impossible for a women from Thailand to do so (Murray, 1998: 57-8; Canada has adopted this practice as well; DoS, 2003: 46). Meanwhile, a report prepared for the CIA in the US notes that consular officers in Thailand “try” not to deny visas to all women between the ages of 15 and 30 in their attempts to exclude possible trafficking victims (Richards, 1999: 36). Murray indicates that in the Australian case, the screening procedure is sharply class-biased, allowing only rich Thai women to enter, and it seems likely that a class bias may be operative in all of these cases (as was seen with the Page Act). Even in European countries where prostitution has been legalized, such as Australia, Germany, and Holland, migrants (or non-EU citizens, in the case of Germany and Holland) are not allowed to work as prostitutes (Wijers and Lap-Chew, 1999: 178; Alexander, 2000: 1). In the Dutch case, prostitutes are in fact required to carry special identity cards while working, the only occupational group required to do so (Bernstein, forthcoming). In these respects, developed nations have more or less taken the narrow position that the “prevention of trafficking” means only “to prevent the entry of possible victims,” a policy explicitly suggested in a 1996 report from the EU (cited in Wijers and Lap-Chew, 1999: 197).
Actions taken at points of destination reveal only a small part of the actions taken in the name of anti-trafficking. As noted by the UN's Special Rapporteur for violence against women: “Increasingly, and often justified as a response to trafficking, policies that restrict the movement of women are being instituted in countries of origin” (Coomaraswamy, 2000: 22). Oftentimes these actions occur as the result of decisions made by local elites, but generally they happen with the encouragement of more powerful countries, and sometimes at their direct behest. The International Organization of Migration,
for example, praised the establishment of 4096 kilometers of fencing along the Indo-Bangladeshi border as an “anti-smuggling” and “anti-trafficking” measure (IOM, 1999-2000c: 3). Similarly, it praised the “clean-up” operation of Pakistani officials against “illegal Afghans” living in that country (idem), and highlighted China's “rescue” of 123,000 women from Vietnam and Cambodia who were attempting to enter that country illegally in 2000 (IOM, 2001b: 2).
Other actions taken in the underdeveloped world seem like more openly oppressive versions of actions taken by Western countries. Hong Kong officials, for example, stop and question all Thai women between the ages of 18 and 40 with regard to their possible involvement in prostitution (Coomaraswamy, 2000: 27). Poland and Myanmar, have - as an anti-trafficking measure - made it a crime to leave their respective countries without permission, thereby subjecting those who migrate illegally to further punishment upon return to their countries, even if they were in fact subject to extreme abuse while away (ibid: 22). Other countries (e.g. Romania and Nepal) utilize informal profiling techniques such as those used by Western countries to identify potential trafficking victims and deny them permission to leave (ibid: 17). Several countries (the Philippines, Bangladesh, Indonesia, Ethiopia, Thailand) have placed restrictions of various sorts on citizens who wish to work in other countries, and the Philippines has gone so far as to utilize special stamps to validate the passports of those who work as either domestics or as prostitutes (ibid: 29).
Thailand's procedure has been particularly well documented in a report from Human Rights Watch (2000). Under the Thai Prevention and Suppression of Prostitution Act of 1996, women between the ages of fourteen and thirty-six who apply for passports are investigated by the Thai Department of Public Welfare (DPW). An official from the DPW explains the way in which investigations are conducted:
Women apply for passports with the following reasons: most to travel as a tourist, some to marry, and some to work. If they are suspicious of a woman's reasons, the Ministry of Foreign Affairs sends the names of the women here [to the DPW]. To see if the woman should be approved for a passport, we ask the provincial officer to visit her home, look at the status of her family, and talk with her mother, father, and other family members. If the woman has said that she wants to go abroad to marry someone, we ask her about the occupation of her proposed husband, how high a salary he makes, how long they've known each other, and whether he visits her there. We recommend approval for about half of the cases and rejection for the other half, but the final decision is up to the Ministry of Foreign Affairs. Reasons for rejection include: she doesn't have work in Thailand; her family doesn't have enough money to give her to travel; her documents, such as her marriage license, aren't valid; the address she gave for her boyfriend - if she says she is going abroad to marry - isn't correct (2000).
Beyond constituting a degree of state case-management over its citizenry which was heretofore alien to the underdeveloped world, restrictions such as these violate an individual's right to exit a country, a long-established right that was first guaranteed in the Magna Carter and has more recently been affirmed in the UN Universal Declaration of Human Rights. This right to exit was highlighted by the US during the Cold War when Eastern Bloc countries were heavily criticized for not allowing its citizens to emigrate. With the end of the Cold War, however, the US-dominated IOM now praises such restrictions. Given the prior Cold War propaganda, it is ironic indeed that the IOM has even praised Russian efforts to intercept women leaving that country without valid documentation, even while acknowledging that these women are not necessarily being trafficked (IOM, 2001c: 5).
But while the IOM may represent the will of the more powerful nations, it does not have any power of enforcement over individual states. The US, having taken a leading role in negotiating the UN anti-trafficking protocol, has additionally taken it upon itself to provide enforcement for the treaty. The TVPA directs the State Department to write an annual report classifying states in relation to their anti-trafficking efforts. States which fail to meet minimum standards are subject to sanctions from the US: the withholding of non-humanitarian, non-trade assistance, and possible opposition to similar aid from the World Bank and IMF (fifteen countries potentially face such sanctions following the 2003 report). The TVPA thus marks the first instance in which the US has sought to systematically classify and punish other nations for their failure to address a “human rights” concern. Those familiar with the long and dismal record of US foreign policy in relation to human rights will no doubt be gladdened that the issue has suddenly taken on such dramatic importance.
While Secretary of State Powell hails the report as “an important diplomatic tool” in the struggle to “end modern day slavery” (US-DoS, 2003: 1), one of the means to achieve this alleged end relies upon border control initiatives which are in fact extremely detrimental to migrants. The TVPA makes border control an explicit criteria for evaluating national anti-trafficking efforts, and the State Department's report strongly reflects this emphasis, praising no fewer than 23 countries for either their adequate controls or improvement in this area, and identifying at least 20 others whose border control procedures require further development (US-DoS, 2003). In the case of Honduras, for example, the report notes that “Honduran Frontier Police have worked with U.S. officials to construct a border control inspection facility that can be used against traffickers [and others], but more steps need to be taken to control the country's borders” (ibid: 76). In another instance, the report specifies that Venezuela needs to tighten its controls, arguing that “Because of its lax border controls, illegal migrants transit Venezuela; some of these migrants may be trafficked” (ibid: 161). The State Department also praises Malaysia for more stringently scrutinizing visa applicants to that country (ibid: 103), and positively cites Canada's posting of immigration agents in the airports of “key source countries” in order to look for possible trafficking victims (ibid: 46).
While in some instances anti-trafficking measures cited by the State Department may indeed be helpful to migrants - Bahrain, for example, changed its work sponsorship rules to allow migrants to change jobs without permission from their employers (ibid: 27) - in many other cases, the focus on anti-trafficking merely provides cover for measures designed to control rather than to assist immigrants. The report specifically highlights the actions of Colombia and Nepal, for example, in identifying potential victims and preventing them from leaving the country (ibid: 20; it remains silent on similar practices in other countries). Likewise, while the State Department follows the TVPA mandate in making border control a primary evaluative criteria, it equally follows the TVPA in failing to make the treatment of victims of prime concern. While praising Malaysia's border controls, for example, it notes that “foreign trafficking victims…are generally treated as immigration offenders [and are] often detained and held for several months before deportation…operationally, officials continue to define trafficking narrowly and treat victims as accessories” (US DoS, 2003: 103; as noted by Human Rights Watch, 2003). Nevertheless, Malaysia is placed into a middle-tier and not threatened with sanctions for its actions.
Given the emphasis granted to victim protection in the lengthy rhetorical preamble of the TVPA, it is perhaps surprising to realize that the law's greatest impact may have to do with strengthened border enforcement. While the prosecution of traffickers in the US initially rose threefold with the passage of the TVPA, this nevertheless resulted in a total of only 79 prosecutions over a two-year period (FYs 2001 and 2002; US-DoS, 2003: 170). More recently, prosecutions have declined to a mere 11 during the first six months of FY2003 as the Department of Justice has focused more of its resources on issues surrounding terrorism (idem). But while few people have benefited from the law, many have felt the effects from the tightened borders that the TVPA promotes. Not only have these policies forced migrants (including asylum seekers) to resort to smugglers, as noted above, but it thereby renders them more vulnerable to trafficking-schemes, essentially pushing people into the hands of smugglers and possible traffickers (Wijers, 1998; cited in Chapkis, forthcoming).
Most generally then, while the TVPA officially classifies migrant women who have been trafficked as “victims,” this has served to disguise the function of legislation that is essentially punitive in nature (Saunders and Soderlund, forthcoming). While the harsher penalties mandated for traffickers and the visas granted under the TVPA are not necessarily threats to migrant women, the focus upon trafficking justifies greater restrictions on migration in general and greater enforcement efforts against migrant women from identified “source countries” in particular. “Anti-trafficking” has also acted as a cover for police actions against migrant sex workers who have not been trafficked, . though in a less all-encompassing and more haphazard basis. Given these problematics, Wendy Chapkis has characterized the legislation is “a soft glove covering a punishing fist” and argues that it acts as “good cop to anti-immigration policies' bad cop” (forthcoming). With the UN protocol requiring that countries offer “repatriation” as a benefit granted to victims - the more apt term in most cases being “deportation” - the anti-trafficking program moves beyond even these levels of deception into new realms of 1984-ish double-speak.
The Page Act of 1875 and the TVPA of 2000: Contrasts, Continuities, and Context
While the Page Act and the TVPA utilize different rhetorics - one focusing upon the danger posed by prostitutes and the other upon their victimization - they accomplish many of the same ends. Each law established a set of procedures in both “sending” and “receiving” countries which effectively screened out all but the richest women from entry. While the Page Act relied upon established business organizations in the colonized world to investigate would-be migrant women, contemporary anti-trafficking law enlists the comparatively independent third world state to accomplish the same goal. Several other differences - the fact that the Page Act makes explicit reference to race, sex, and nationality while the TVPA does not - have not in any way diminished the new law's ability to target specific groups for exclusion; a surreptitious (and not entirely unreal) understanding of who is likely to become a trafficking victim enables the state to apply a “benevolent” form of scrutiny to those who fit within certain demographic profiles. A further difference whose significance is less than is at first apparent has to do with the way in which the Page Act was designed to regulate the male labor supply while the TVPA seems not to; in practice, however, the TVPA facilitates border control measures that impact men as well as women (though its primary impact, via screening procedures, is upon women). While some differences exist, however, what is most striking about the two laws, particularly given their historical separation by over a century, is their functional similarity.
Another noticeable continuity has to do with the rhetorical centrality of prostitution is efforts to control immigration more generally. Though the Page Act identified the Asian prostitute woman as a direct threat to the white family, and the TVPA focuses upon a threat to the third-world woman's ability to establish her own proper femininity (in the form of the traffickers), the power of prostitution in disrupting normative gendered structures remains. Beyond establishing a rationale for the regulation of (female) labor, then, the focus upon prostitution operates at a discursive level, intervening in other discussions regarding femininity, the family, and the identity of the national community. A concern with prostitution and trafficking thus takes on symbolic as well as material functions (Saunders and Soderlund, forthcoming).
While the use of prostitution as a means of regulating women - most obviously through the virgin-whore dichotomy - has been commented upon at some length (beginning perhaps with Millett, 1969), the issue of national identity and its relationship to gender has only become a topic of concern more recently. Historically, women have been “excluded from the fraternal imaginings that constitute a citizenry,” as Donna Guy puts it (1992: 201; see also Pateman, 1988). The legal construction of European citizenship, in fact, was altered in order to allow states to regulate the behavior of white women who ventured to the colonies and began to prostitute. Such behavior was felt to constitute an embarrassment to the white race and to threaten the racial hierarchy that underpinned the colonial order (Guy, 1992; Scully, 2001). European law had originally made women's citizenship dependent upon her husband's nationality, and as many of the prostituting women married local men, they were no longer considered European citizens. Women who migrated to nations such as Argentina were thus placed beyond the regulatory domain of their originating countries, much to the consternation of the European governing authorities. Unable to prevent women from leaving the country, European nations altered their laws of citizenship, reconstituting them in such a way that women would retain their citizenship upon marriage to foreign nationals, just as did men (Guy, 1992: 211-2). The scandal which surrounded this issue at the time constituted an important sub-theme within the panic surrounding “white slavery” (i.e. the alleged forced prostitution of white women). That is, a fear of “white slavery” rose not only in response to the increase in prostitution in the West (as is documented by several scholars; see Walkowitz, 1980; Rosen, 1982; Hobson, 1987), but also in relation to fears about the stability of the racialized colonial order. White women thus gained the right to citizenship independent of their husbands not because of a movement for equality, but in order to better regulate a group that had become increasingly mobile and disorderly.
Prostitution's ability to provoke “elite concerns to define the effective boundaries of nationality and citizenship” (Guy, 1991: 44; cited in Scully, 2001: 82) might seem counter-intuitive, given that women are not seen as full members of the nation. Yet while women have long been defined as non-members of the national community, they have nevertheless been seen as its most important possession (Scully, 2001: 77; Pateman, 1988). Women's position in society, and specifically the treatment of women at the hands of those who possess them (i.e. men), has therefore served not only as a symbol for the future of the nation, but also as a focal point for discursive struggle between male-identified communities (among others, see McClintock, 1995; Stoler, 1995). For example, the “superior” treatment received by white women has been a symbol of white/Western superiority more generally, both during the colonial era (Doezema, 2001: 25) and in the contemporary period (Mohanty, 1991).
It is interesting to note, in this context, the way in which contemporary trafficking debates portray third-world men as dangerously patriarchal, even as they construct third-world women as non-threatening victims in and of themselves. The protective rhetoric which Western nations assume toward third world women thus ironically reinforces negative imagery associated with non-Western/non-white men, the idea being that women in the underdeveloped world are victimized by the “backwardness” of their society (or, more specifically, by the “backwardness” of their men; Lyons, 1999; Doezema, 2001: 30-1). Lyons provides one example of this type of discourse in contemporary anti-trafficking narratives, and comments upon one of its consequences:
An advertisement for the Dale and Keith Foundation, which claims to support “local missionaries” in Thailand, is a case in point: it…emphasizes the difference between Asian and American morals. “Imagine a parent in the United States that sells their daughter of 12 to an individual for a life of prostitution for less than $500. That parent would be thrown in jail. This is legal in South East Asia.” While this sort of rhetoric might bring a donation for rescue efforts, it would not, for example, raise much concern for the health of the stigmatized parents (1999).
Just as the late-nineteenth century concern with prostitution portrayed Chinese men as particularly callous and brutal, so the contemporary focus on trafficking draws upon a similar discursive repertory, even as it elevates third-world women into a more privileged status.
As Wendy Brown suggests, codes of protection link femininity with privileged races and classes (1995: 165; cited in Doezema, 2001: 21). The positioning of third-world women as victims of trafficking, rather than as threatening prostitutes, suggests that they are now presumed to be capable of achieving - or expected to achieve - the normative patterns proper to respectable (i.e. middle- or upper-class) feminine life. In practice, however, the benefits resulting from this promotion are, as shown above, quite slender, and more generally it has also resulted in the greater policing of third-world women whose lives do not replicate such standards. While Asian prostitute women were shunned during the era of the Page Act, contemporary anti-trafficking discourse assures “us” that “we” have compassion for “her.” In doing so, however, it artificially separates the prostitute woman from her social environment, leaving us with concern for the young victimized woman, but scorn for her family or community. While “we” are thereby constituted as a caring nation, “they” are once again made into the backward Other, “their” women in need of our rescue. The responsibility of Western men in causing trafficking, whether as consumers (both in the West and within undeveloped nations) or as agents of destabilizing development projects, is unaddressed. While seeming to offer third-world women protection from male abuse, anti-trafficking law and discourse instead offers increased policing for third-world migrants (especially women) and increased demonization for third-world men. While trafficking indeed remains a grave concern for those who confront the reality of forced labor, “anti-trafficking” as thus far developed does not provide much of a solution to the problem and instead worsens the difficulties experienced by migrants and the communities from which they originate.
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