Recently, the U.S. Commission on Civil Rights issued a new report titled Sex Trafficking: A Gender Based Violation of Civil Rights (also available here) which describes trafficking in persons as a modern or twenty-first century form of slavery. There are indeed genuine examples of women coerced into sex work– such as the horrific ordeal that Amanda Berry, Georgina DeJesus and Michelle Knight went through – for which the modern-day slavery label is appropriate.
But in the course of trying to root out such coercion, is genuine sex slavery being conflated with ordinary prostitution between consenting adults, and should policymakers respond to both in the same way? Though a majority of the Commission voted in favor of recommendations calling for an increased governmental response to sex trafficking, commissioner Gail Heriot* in dissent questioned whether the prevalence of sex trafficking has been overestimated and whether a more aggressive federal response truly is necessary.
Heriot notes that an important part of the problem here may be loose use of terminology: “Not all prostitution is slavery; indeed, it may be that only a small sliver of commercial sex can be usefully analogized to slavery. Given that large numbers of prostitutes operate independently without panderers, it would be difficult to characterize prostitution as inherently rooted in subjugation. The promiscuous use of the word ‘slavery’ will only water down our commitment to deal with actual slavery. And terms like ‘sex trafficking’ and ‘human trafficking’ tend to obscure more than they enlighten, because there is little agreement on what they mean.”
Another problem is that recent estimates of sex trafficking’s prevalence appear to be overstated. During hearings on the Trafficking Victims Prevention Act (“TVPA”), a State Department representative told Congress that 50,000 women and children were being trafficked into the United States each year. It later turned out the Department of State had gotten that 50,000 estimate from a CIA analyst, who in turn had estimated the number mainly by reviewing clippings from foreign newspapers. But typically only a few hundred visas have been distributed to trafficking victims each year since the TVPA’s passage. While some gap is to be expected, the size of this particular discrepancy does raise questions about the original estimate’s accuracy.
Some state legislatures may also have been too eager to respond to a phantom problem. At the Commission on Civil Rights’s briefing, Indiana Attorney General Greg Zoeller testified about anti-trafficking laws that were rushed through the legislature in 2012 to prevent trafficking at the Super Bowl in Indianapolis. But claims that the Super Bowl is a magnet for sex traffickers appear to be more myth than fact.
The current furore over sex trafficking is not the only example in recorded history of unwarranted moral panic regarding forced prostitution. In the late 19th century, Great Britain was also swept by a wave of hysteria over “white slavery.” In time, the panic spread to the United States, where Congress responded by passing the Mann Act in 1910 – which made it illegal to transport a woman over state lines for any immoral purpose (see also this classic bad pun.) This loose language encompassed conduct – such as lovers’ consensual trysts that involved interstate travel – quite different from the sex slavery that Congress originally sought to eradicate. Prosecutors soon embraced this vague language and began bringing charges against unmarried lovers who crossed state lines together.
Unfortunately, it appears that more recent hysteria over sex and labor trafficking may have led to similarly sloppily drafted criminal laws. In a recent Sixth Circuit case, U.S. v. Toviave, defendant Toviave was accused of violating 18 U.S.C. 1589, the federal statute making forced labor a crime, for making four young relatives of his from Togo cook, clean, do laundry, and babysit for his girlfriend and relatives. Toviave was also accused of physically abusing these children if they did not complete their chores – deplorable conduct that makes these children’s situation very different from that of children in happy, loving households where parents use more appropriate disciplinary methods to make sure that housework gets done. Nonetheless, this case illustrates the problem with sloppy statutory drafting.
Finally, the Heriot dissent decries the tendency to view the complexities of so-called “international labor trafficking” as something inherently sinister, noting that this is a tricky area. There is plenty of opportunity for fraudulent or coercive behavior in these transactions. But there is also opportunity for gain by the most vulnerable of the world’s people, trapped in poverty. If we make it too difficult for labor brokers to function in various places around the world, we will have inflicted serious harm on those we are seeking to protect. Take, for example, the experiences of the Filipina hostesses working in Japan as described in University of Southern California sociologist Rhacel Parreñas’s testimony to the Commission.
The Heriot dissent concludes: “[M]y overall impression is that the core case of slavery, sexual or otherwise, is uncontroversial among Americans: We oppose it without reservation. A large number of human beings have selflessly dedicated themselves to eliminating slavery. They have enlisted the help of long-established organizations and formed new ones. Individuals, foundations and governments have funded these efforts. And their work has been successful in some instances.
Our unanimity in supporting these efforts, however, is part of the problem. No organized groups see it as their role to urge us to avoid exaggerating the prevalence of slavery. There is (mercifully) no “pro-slavery lobby” in this country. Our unanimity has thus led to mission creep. We are geared up to fight the dragons of slavery. When too few dragons show up for the battle, we use our dragon slaying equipment to fight entirely different beasts. But if we are going to be successful, we need to use the right weapons for the right battle. I urge greater caution.”
Finally, for those readers who prefer to watch their policy analyses onscreen, I recommend this video of “Passion and Prudence in the Political Process: The Debate over Federal Civil Rights Policy,” a panel discussion sponsored by the Federalist Society.
*Disclosure: I am Gail Heriot’s special assistant and counsel at the U.S. Commission on Civil Rights. This post does not necessarily reflect the views of either Gail Heriot or the Commission (although it is safe to assume that the verbatim quotations from the Heriot dissent accurately represent Gail Heriot’s views.)