Trafficking Truth and Lies: It's Time to Decriminalize

Published: November 17, 2011

Recent revelations by the Four Corner expose on alleged “trafficking” for sex work in the backyard of Australia has brought attention again to the seemingly unsurmountable issue of human trafficking

While there is a pressing need to deliver human rights to migrant sex workers in the region, the debate and policy response must consider the complex issues at the heart of the problem of human trafficking and not simply reduce it – as is too often the case – to the need for stronger enforcement.

Part of the solution must deal with the fact that difficult conditions that sex workers have abroad in Asia makes Australia highly attractive as a destination to pursue sex work. As we saw from footage of the Four Corner episode and alleged by Scarlet Alliance, Australian Sex Workers Association, and other sex worker groups in Asia and the Pacific, the desire to work in developed countries may have the unintended consequences of leaving sex workers from developing countries vulnerable to the crime of people trafficking. However, this does not mean that all migrant sex workers in Australia are trafficked but in fact there is mounting evidence that it is in fact the lack of access to safe migration pathways that makes sex workers vulnerable to trafficking.

Adverse impacts of criminalizing sex work

Sex workers are highly mobile populations, moving both within and across national boundaries, as either documented or undocumented labour. However labour laws rarely, if ever, offer protection and benefits to local or migrant sex workers. Due to government perceptions of sex work, sex workers are usually prohibited from using legal channels to migrate for work. Sex workers are often prevented from entering certain countries, even as tourists for short visits.

In almost all countries some or all activities associated with sex work are illegal. As a result of the criminalization of sex work, sex work takes place in a criminal environment, affected by large scale police corruption and extortion by local authorities. This environment negatively impacts on the health, safety, and human rights of sex workers and has an impact on peoples’ access to justice, and therefore a persons’ vulnerability to people trafficking. Migration and mobility are factors that can significantly increase the vulnerability of sex workers to HIV and sexually transmitted infections; this is due in a large part to a person’s undocumented status which leads to a lack of work permits; poor working conditions in some cases; lack of access to health care; occupational health and safety standards; lack of knowledge of human rights; and lack of access to forms of labour protection.

Feeding into wider debates about sex, immigration, labour rights and gender relations, female sex work itself is increasingly conflated with human trafficking generally, while the mobility of men as employers, customers and sex workers is largely excluded from the analysis. When customers are included, they are frequently demonized and, in an increasing number of countries, criminalized. This, in turn, hurts sex workers who need clients to earn a living.

Problems with trafficking definitions

A controversial issue in the human trafficking debate is whether trafficking necessarily involves coercion. Definitions of trafficking are contested by sex worker organizations because of concerns regarding the conflation of voluntary adult sex work with coerced human trafficking and sexual exploitation of minors. Prostitution describes the sale of sex but by no means implies it is without consent.

Trafficking tend to fall into one of two frameworks: those within the “victim paradigm” and those who try to reflect the agency (and empowerment) of women in trafficking. This in turn has led to polarization between those arguing for policy responses to trafficking implemented primarily by law enforcement authorities, as evidenced in the Victorian state Government response to the Four Corners reporting, and those arguing for a more nuanced community-led response to trafficking.

The forced participation of women in sex work has long been a legal concern. However, contemporary laws that address trafficking are increasingly worded to include all, or most, female sex workers. The confusion between migrant sex workers and victims of trafficking has also resulted in poorly crafted anti-trafficking laws across the region, which are being used to justify raids on sex work venues, resulting in detention, deportation and enforcement of sanctions against migrant sex workers resulting in substantial abuses of sex workers’ human rights and erosion of HIV prevention and care programmes. The UN Office of the High Commissioner for Human Rights has provided guidance on the Palermo Protocol. The guidance emphasizes that anti-trafficking measures should not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked. The appropriate role for the police in enforcing laws against trafficking is to target traffickers rather than sex workers, and to ensure that enforcement of laws occur in ways that protect the human rights of sex workers.

No victim of trafficking should ever be forced to return home. Indeed, such policies, where they have been tried, typically lead to a cycle where women quickly agree to be trafficked again rather than face the hostility and even violence in home communities when they return.

A way forward

Decriminalization has been adopted as the preferred model in New Zealand and the state of New South Wales, Australia. Decriminalization enables occupational health and safety issues to be addressed through existing general employment laws. Under this model, sex work is treated as a legitimate form of work, and the sex industry is subject to the same general laws related to workplace health and safety as other industries. These laws may enable specific guidelines on workplace health to be developed for the sex industry as they have in New South Wales.

Sex worker-led models to address empowerment of migrant sex workers, respect for human rights, reducing HIV, trafficking and the commercial sexual exploitation of children should be examined and replicated. If Australia indeed wants to reduce the incidence of sexual slavery, it should pressure other States to start the necessary steps to remove laws and policies that prevent sex workers from accessing safe places to live and work and reduce their access to health services, justice and labour rights.

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