The Protection Project - Sexual Coercion and Trafficking, a Legal Perspective

Sexual Coercion and Trafficking, a Legal Perspective

Speech Delivered at the Conference on Sensory Systems and Judgment in Law

Gruter Institute for Law and Behavioral Research

Dr. Mohamed Mattar, Adjunct Professor of Law, Co-Director of The Protection Project at Johns Hopkins University School of Advanced International Studies
June 14, 2003

Sexual coercion and trafficking, a Legal Perspective. That is the title, what I am supposed to discuss with you today at this wonderful conference.

As the title suggests to me, I should be addressing sex and coercion as they relate to trafficking, and in legal terms, that is trafficking for purposes of sex. In other words, sex trafficking.

That makes my life easy and my task limited, since there are too many purposes in trafficking of persons besides sex.

There is trafficking for domestic service. People being trafficked from the Philippines, Sri Lanka, and India to countries like Saudi Arabia to wash dishes and cook.
There is trafficking for adoption. A pregnant Guatemalan woman being kidnapped prior to childbirth, given drugs, and having her child taken and sold abroad.
There is trafficking for military service. Young children being taken from their homes and pressed into military service in militia and guerilla groups and forced to fight in the Democratic Republic of Congo.
There is trafficking for forced labor. People being trafficked from China and Russia to Western Europe to work fifteen hours a day in textile factories.
There is trafficking for street children. Children throughout Latin America being taken to states like Guatemala and put to work as beggars.
There is trafficking for camel jockeys. Sri Lankan children being sent to the United Arab Emirates to ride camels.

So our issue is sex trafficking, and trafficking for sex, maybe for prostitution or “exploitation of prostitution of others.”

So I would not offend the 2000 United Nations Protocol on Trafficking, it does not have a problem with prostitution. It only has a problem with the exploitation of prostitution of others.
And also, I don’t want to offend women who talked about exploitation of prostitution of others, in the 1979 Convention on Elimination of all forms of discrimination against women.

So sex trafficking is about exploitation of prostitution of others.

BUT it is also about trafficking for other illicit sexual activities.

And here, law draws distinction between commercial and non-commercial sex. We, in the anti-trafficking movement would like to believe that transportation of women for non-commercial sex should also be criminalized.

So if you are trafficking a woman from Russia to the United States to have sex with, and you’re not paying her, but you’re having sex with her to have a child, then you are trafficking for child bearing.
Also, if we are trafficking a woman, a bride from the Philippines to the United State to be married to an old man, that is a mail-order bride, which can be a form of trafficking.
Also, if you are trafficking children to have sex with Professor Hersh, and Professor Hersh is getting boys from Honduras to Florida, or Professor Hersh is traveling to Honduras to have sex with boys, that is sex tourism, and that can be a form of sex trafficking.
Also, if you are trafficking, for purpose of pornography, taking girls from Vietnam to Cambodia and selling pornographic images of them, this is sex trafficking for the purpose of pornography.

But now, coercion: is coercion required for the establishment of a crime of trafficking? Coercion is a major component of sex trafficking. It is defined in the 2000 United States Trafficking Victims Protection Act as “the use of force, violence, physical restraint, or acts or circumstances not necessarily including physical force but calculated to have the same effect, such as the credible threat of force or of the infliction of serious harm.”

The TVPA suggests that coercion can be psychological. Section 102 says “Involuntary servitude statutes are intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion.”

This stands in contrast to the decision reached in 1988 in United States v. Kozminski, that only servitude brought about through physical or legal coercion be criminalized.

The UN Protocol has a broader definition of the means of trafficking than just coercion. Article 3 states that “’Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring 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.”

So let us be careful when we define trafficking as a violent crime. Perhaps sex trafficking fits better within the category of “sexual offenses” than it does in the category of “violent crimes.”

Some legal systems even categorize trafficking as a crime against dignity, or crime against liberty. In all cases, I would like to believe that sex trafficking is a crime against the individual and not a crime against the state.

The question becomes, “what are the legal responses to these problems?” If you consider what I just talked about as problems.

WELL, legal systems are different when it comes to sex in context of trafficking.

Let me start with the Swedish. Why? Because their law is alone. I’m trying here to give attention to the Swedish Act Prohibiting the Purchase of Sexual Services as of 1 January 1999, which criminalized BEHAVIOR of the client, and I’m still trying to understand the concept of behavior and the law.

And I want to understand the concept of behavior and the law. I’m sure your institute is doing a fantastic job, and I met with some of you and discussed the behavior inheritance model and how the behavior of the heir will affect the distribution of the property of the deceased.

BUT HERE, we’re not talking about death. We are talking about having sex with a prostitute.

Swedish law provides that “a person who obtains casual sexual relations in exchange for payment shall be sentenced—unless the act is punishable under the Swedish Penal Code—for the purchase of sexual services to a fine or imprisonment for at most six months. Attempts to purchase sexual services is punishable under Chapter 23 of the Swedish Penal Code.”

Another legal system that also stands alone is the law of Macedonia. If the man buying sex has knowledge that the prostitute is being trafficked, he would be liable.

Article 418-a of the Criminal Code of Macedonia provides that “The one that uses or enables another person’s usage of sexual services from the persons for whom he knows are victims of human trafficking will be punished with from six months up to five years imprisonment.”

Traditionally, the trafficked person, that is to say the prostitute, is considered a criminal if you apprehend her, detain her, deport her.

This is now changing. A trafficked person is now considered a victim of a crime who is entitled to basic rights.

She has the right to shelters.
She has the right to medical care.
She has the right to seek residency in the country of destination. U.S. law allows for 5,000 T-visas for victims of trafficking.

This is a human rights approach, which focuses on victimization more than crime control.

This is a human rights approach that calls for the non-criminalization of the behavior of the victim of trafficking.

What are we talking about? Illegal entry or illegal crossing of borders
Or we are talking about prostitution that may be “illegal work,” and that the case in many countries.

So now, we are talking about a three phase approach to combat trafficking.

We are talking about prevention.
We are talking about protection.
We are talking about prosecution.

And that is what the 2000 United States Trafficking Victims Protection Act talks about.

And that is what Europeans are also doing, although, in most cases, they do not like to be seen as following the United States.

Other countries are still behind, but there is a movement as reflected in the Trafficking in Persons report, which was just released by the Department of State this last Wednesday, June 11, 2003.

And that means that sex trafficking is becoming an important foreign policy issue for the United States that is in addition to combating terrorism, trying to find weapons of mass destruction, and being worried about religious persecution under the International Religious Freedom Act of 1995.

Monitoring the status of severe forms of trafficking, including sex trafficking in foreign countries is another thing that the Untied States is now worried about.

But for now, I do not have to worry. I will enjoy this beautiful weather and nice crowd. Thank you so much.