Trafficking in women for sexual exploitation
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Trafficking in human beings is large-scale and growing. It is a human rights abuse as well as a crime crossing international, national and regional jurisdictions. Trafficking is used for a wide variety of purposes, such as domestic, agricultural or sweatshop labour, marriage and prostitution. Australia is a destination country for victims of trafficking, and evidence suggests the majority are women trafficked into debt-bonded prostitution. Recent years have seen many changes in international and national responses to, and legislation on, trafficking in persons. In this paper we review some of the theoretical approaches to trafficking for the purposes of sexual exploitation, as well as examine the current legislative, policy and service responses. We aim to provide an overview of recent developments and navigate the varied and often opposing modes of analysis surrounding the issue. Overall, ACSSA intends this paper to serve as an informative resource for services, policy makers and researchers on the subject of trafficking in women for sexual exploitation in Australia.
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Trafficking in persons is, in itself, a human rights violation, and one which can result in a series of further abuses, involving debt-bondage, forced labour and slavery-like conditions, as well as rape, torture, imprisonment and even murder. The treatment of human beings as commodities, or products to be bought and sold, is considered a violation of their most basic rights to freedom, autonomy and human dignity by the United Nations (UN) and international human rights groups (Amnesty International and Anti-Slavery International 2004; Human Rights Watch 2004; United Nations Office on Drugs and Crime 2005).
The UN Office on Drugs and Crime notes that "over the past decade, trafficking in human beings has reached epidemic proportions. No country is immune" (2005). They estimate that 700,000 people worldwide are trafficked into forced labour and prostitution each year, and a more recent United States (US) government estimate of 600,000 to 800,000 supports this figure (US State Department 2004a: 6). This latter report also estimates that "80 per cent of the victims trafficked across international borders are female and 70 per cent of those females are trafficked for sexual exploitation" (2004a: 23).
Trafficking in persons is also an international crime: one that is highly profitable for offenders, with relatively low risk. The United Nations estimates that trafficking in persons generates $US 7 to 10 billion annually for traffickers. At the time of writing this paper, the US Justice Department's senior special counsel for trafficking issues and civil rights, T. March Bell, announced that "trafficking people for forced labour and sexual slavery has become the world's No. 2 most lucrative crime" (March Bell 2005), equal with the trade in weapons, and second only to the drugs trade. The profits are huge, he told reporters, citing the example of a brothel owner in Southeast Asia who typically might pay US$8,000 for a young woman. "We think that owner can make a US$200,000 profit on that US$8,000 investment" (2005).
The United States State Department notes that:
"Human cargo can often be moved across borders and past immigration officials easier than narcotics or weapons caches, which are often seized when found. Trafficking victims, even if caught [sic], can be re-trafficked. Traffickers can make additional money off victims by re-selling them to another employer after their often-inflated debt is paid. Traffickers may earn a few hundred to thousands of dollars for a trafficked child labourer and brothel owners may make a few thousand to tens of thousands of dollars for each woman forced into prostitution" (United States State Department 2003: 8).
Internationally, women, children and men are trafficked for various purposes: sexual servitude, domestic labour, marriage (as "mail-order brides"), sweatshop and agricultural labour, begging, and in the case of children, for illegal adoptions. All forms of trafficking involve an increased risk of sexual assault, due to the vulnerability and isolation of the victims and the subsequent environment of impunity for the perpetrators. Human Rights Watch has stressed the importance of this point, noting that: "while government delegates legitimately talk of the horrors of sexual violence against trafficking victims who end up in sexual slavery, they ignore the sexual violence and abuse that is rampant among victims forced into other forms of forced labour. If you talk with women and children who work in sweatshops, in domestic servitude - you will hear the stories of physical and sexual abuse - because at its core, trafficking is about the process of reducing human beings to property" (Human Rights Watch 2002: 2). Women sold into marriage are considered to be trafficked into both domestic labour and sexual servitude.1
However, for the purposes of this paper, ACSSA has decided to focus on the form of trafficking where not only is sexual assault experienced on a daily basis, it is the very purpose of the trafficking itself. In this form - trafficking of women for sexual exploitation - the trafficker profits from the rape and sexual assault of the trafficked woman. The US Government estimates that over half of all victims trafficked internationally, and 70 per cent of all trafficked women, are trafficked for sexual exploitation (United States State Department 2004a). While adult men are certainly trafficked internationally into various forms of labour (particularly agricultural), 98 per cent of those trafficked into sexual exploitation are women and girls (International Labour Organisation 2005: 15). In order to reflect this fact, we use the terms "women" and "she" when referring to victims of trafficking for sexual exploitation.2 Also, in line with ACSSA's focus on the sexual assault of women and girls over fifteen years of age, our emphasis in this paper is on the trafficking of adult women. It should be noted, however, that children are also trafficked in large numbers into sexual exploitation.
In Australia, evidence suggests that trafficking of women into debt-bonded prostitution is the major form of trafficking, accounting for the majority of victims within our borders (Commonwealth Attorney-General's Department 2005; Project Respect 2004). Debt bondage is recognised as a form of slavery under the Australian Criminal Code and international law (see boxed text "Definitions"). Interview-based and documentary research by Project Respect, an Australian non-government organisation working to challenge the various dimensions of exploitation and violence against women in the sex industry, shows that currently these "debts" tend to be between $40,000 to $50,000:
"That means they are doing eighteen, twenty jobs of prostitution a day. They are often having to have sex without condoms. They are often exposed to really intense forms of violence. They're beaten, they're raped, they're threatened. If they run away, they are beaten, they're starved" (Maltzahn 2003a).
Project Respect's research (2004) estimates the number of women and children in this situation in Australia to be about one thousand at any one time. ACSSA will examine how trafficking works in Australia in further detail, later in the paper. But first we think it is important to establish the international context in which trafficking takes place, and the recent debates surrounding the issue. Theorisations of, and attitudes toward, trafficking for the purpose of sexual exploitation often run parallel to those surrounding sexual assault. Issues of "consent" and false distinctions between "deserving" and "undeserving" victims abound, and those working to end sexual assault will be familiar with such arguments.
1 The United Nations Working Group on Contemporary Forms of Slavery reported that through "the phenomenon of women, in particular from Russia, offering themselves over the Internet as mail-order brides . . . such women [were often] abused by their new "husband", who sometimes even used them for pornographic purposes and prostitution. Men involved in such cases were rarely prosecuted" (United Nations Office for the High Commissioner On Human Rights 2001: item 78). A Melbourne free-distribution newspaper recently carried an advertisement for an information seminar entitled "Russian Brides How To", accompanied by a cartoon drawing of a woman's head and upper torso in a delivery box (in MX, Friday November 19 2004, p.6).
2 Further notes on the use of language: Consistent with accepted international human rights terminology, we employ the term "victim" for someone who has been trafficked. This, of course, does not mean that we see that person's identity as being solely defined by the fact that she is a victim of the human rights abuse of trafficking, but it serves to acknowledge that such an abuse has occurred.
Similarly, ACSSA's mandate of addressing sexual assault means that we are concerned with the harm and violence (sexual, physical and psychological) done to women in prostitution, whether trafficked or not. In this paper, ACSSA employs the terms "trafficked women" instead of "migrant sex workers", and similarly "women in prostitution/the sex industry" instead of "sex workers". The reasons for this are as follows. The extremely high levels of rape and physical violence of women in prostitution have been well documented and theorised by a number of researchers: see Baldwin 1993; Chesler 1993; De Meis and De Vasconcellos 1992; Dworkin 1981; Farley et al. 1998; Giobbe 1993; Goodwin 1993; Green et al. 1993; Hawkesworth 1984; Hunter 1994; Jeffreys 1997; Karim et al. 1995; MacKinnon 1993; McKeganey and Barnard 1996; Miller 1995; Miller and Schwartz 1995; Parriott 1994; Silbert and Pines 1981, 1982a, 1982b, 1983; Silbert, Pines, and Lynch 1982; Vanwesenbeeck 1994; and Weisberg 1985. The high incidence of post-traumatic stress syndrome, symptoms of dissociation and depression of women in prostitution, often irrespective of whether they have suffered "incidental" violence, has been documented by Belton 1998; Farley et al. 1998; Giobbe 1991, 1992; Hoigard and Finstad 1986; and Vanwesenbeeck 1994. Also well documented is an increased risk, for women in prostitution, of physical health problems such as sexually transmitted diseases (Kaul et al. 1997), particularly HIV/AIDS (Karim et al. 1995; Kreis et al. 1992), as well as cervical cancer and chronic hepatitis (Chattopadhyay et al. 1994; Nakashima et al. 1996; Pelzer et al. 1992). One study found the death rate of those in prostitution to be 40 times higher than that of the general population (Special Committee on Pornography and Prostitution 1985, cited in Baldwin 1992).
In the face of such evidence, the practice of prostitution (including, but not limited to, sex trafficking) seems far from fulfilling accepted conditions or definitions of "work". We acknowledge the debates surrounding such choice of language, with some theorists arguing that the term "sex worker" is more appropriate as it acknowledges agency and personhood. Many of these theorists also favour the term "migrant sex worker" for trafficked women. We do not deny the agency of women in prostitution, and indeed of all women, but note that individual agency is limited by structural social, economic and political inequalities, and that agency, above all, does not protect against abuse. Therefore, we believe naming the practice of prostitution as "sex work" would have the effect of obscuring the abusive nature of the practice. This would appear to be a more serious linguistic omission than that of obscuring agency, and one with more farreaching consequences, and so is not adopted here.
Before looking at what trafficking is, it is important to define what it isn't. A common confusion is between "trafficking" and "smuggling". Smuggling is the receipt of some form of payment to transfer a person from one country to another illegally. It is not for the purpose of exploiting that person once they arrive in their destination country. Importantly, particularly in the Australian context, the payment made to the smuggler is final. In the case of trafficking, not only is the person transferred to another country illegally, they are then exploited once they arrive, usually through debt-bondage. That is, the payment made to the trafficker(s) is not only inflated relative to the "services" being paid for, but also ongoing, ill-defined, and able to be increased at any time by the trafficker(s). Debt-bondage is a recognised form of slavery, for which consent is irrelevant, under national and international law. By definition, any "unlawful non-citizen" in Australia who is in a condition of debt-bondage has been trafficked, not smuggled. As such, the person is not an illegal migrant, but a victim of a human rights violation on Australian soil, to whom Australia therefore has obligations under international law. A recent Parliamentary Briefing paper on the issue noted that "trafficking is confused with smuggling when viewed simply as an illegal immigration issue or threat to national security and not as a human rights violation" (Carrington and Hearn 2003: 3).
"Trafficking" is also frequently conflated with "migration for work" in some contemporary discussions. "Migration" is defined as the movement of a person from one country to another, whether by legal or illegal means. It is often assumed that "migration" is voluntary and "trafficking" involuntary. However, migration can also be involuntary or "without consent", such as when people are displaced because of war or famine. Trafficking is always involuntary, in that while a trafficked person may have consented to being moved across borders, the UN Trafficking Protocol (examined below) states that the use of coercive means and the subsequent exploitation of that person nullifies the notion of consent. That is, people who voluntarily migrate can end up being trafficked. It is the coercive nature of the means used to get that person across borders, and their exploitation once they arrive, that distinguishes trafficking from migration.
Definitions and interpretations of trafficking are complex and highlypoliticised. Prior to 2000, there was no internationally agreed-upon definition of trafficking, making discussion of the issue fraught with misunderstanding and malleable to political agendas. In December 2000 the United Nations adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (known as the "Trafficking Protocol"). The Trafficking Protocol became the international standard and supplied the first-ever agreed upon international definition of trafficking in persons. Misunderstandings have not disappeared, but the definition provides a benchmark to which commentators, legislators and policy makers can refer. The definition is in three parts. According to the first part:
"Trafficking in persons means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, or deception, of the abuse of power or of a position of vulnerability or of 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,3 forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs" (United Nations General Assembly 2000: Article 3a ).
Many references to the definition stop at this, ignoring the important second part dealing with the notion of consent:
"The consent of a victim of trafficking in persons to the intended exploitation... shall be irrelevant where any of [these] means are used" (United Nations General Assembly 2000: Article 3b).
Finally, the third part of the definition limits the requirements with regards to children:
"The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of [these] means" (United Nations General Assembly 2000: Article 3c).
The clear suggestion here is that, for children, the trafficking does not necessarily involve threat, coercion, or use of force. The recruitment, transport, harbouring or receipt of children for the purpose of exploiting them is automatically "trafficking".
Commentators have often interpreted this definition as being composed of three "core elements" (Anderson and Rogaly 2005; Gallagher 2004):
- movement of a person;
- with deception or coercion;
- into a situation of forced labour, servitude or slavery-like practices.
However, reference to this interpretation of the definition has tended to limit rather than clarify the dimensions of trafficking that are acknowledged in the Protocol itself. Most importantly, in terms of reparation to victims and effective criminal justice responses, this interpretation ignores the part of the definition dealing with consent. It is also arbitrary and selective in its interpretation of the first part of the definition. "Movement" is by no means essential to the definition, which gives equal emphasis to "recruitment", "transfer", "harbouring" and "receipt", as it does to "transportation". Furthermore, reducing the list of "means", by which trafficking is said to take place, to "deception and coercion", loses the important notions of "abuse of power or a position of vulnerability", essential to understandings of trafficking as an issue of sex, race and class. Finally, citing only "forced labour, servitude or slavery-like practices" in the third "core element", overlooks what the drafters of the Protocol saw fit to place first on the list of exploitative practices: "the exploitation of the prostitution of others".
The Protocol acknowledges that much trafficking is for the purpose of prostitution, and that the exploitation of prostitution and trafficking cannot be separated. It was internationally agreed that the exploitation of the prostitution of others was not the same thing as "forced labour" because the harms to the victim were of a different nature. One reason for not specifying the exploitation of prostitution as a "core element" could be that whilst "forced labour, slavery and servitude" are defined in international law, the phrase "exploitation of the prostitution of others or other forms of sexual exploitation" is not.4 As a result, there is much debate as to the interpretation of this last phrase (centring on the issue of which elements of prostitution constitute exploitation).
Other interpretations of the definition suggest that "the key element in the trafficking process is its exploitative purpose, rather than the movement across a border" (Raymond 2001: 5). In its most recent Trafficking in Persons Report, the United States State Department notes that: "Many nations misunderstand [the Trafficking Protocol] definition, overlooking internal trafficking or characterizing any irregular migration as trafficking" (United States State Department 2004a: 9). With regards to the interpretation of "movement" as a core part of the definition, the United States Trafficking Victims Protection Act does not "require that a trafficking victim be physically transported from one location to another. [The definitions used in the Act] plainly apply to the recruitment, harbouring, provision, or obtaining of a person for the enumerate purposes" (2004a: 9).
The second part of the definition, dealing with consent, is important because prior to the establishment of the Trafficking Protocol, there was much debate on the issue of whether or not women trafficked into prostitution were "witting" or "unwitting" about the type of "work" they would do. Under the legal systems of most modern liberal democracies, however, it has never made a difference "whether or not the victim initially knew or agreed to perform the labour voluntarily. A person cannot consent to enslavement or forced labour of any kind" (O'Neill 1999: vi). A person cannot, therefore, consent to debt-bondage, the most common modern form of slavery. This part of the Protocol definition simply confirms what has been legal practice since the abolition (in law) of slavery. Nevertheless, many commentators and legislators continue to misunderstand the fact that abusive practices such as trafficking make the notion of consent irrelevant, a misunderstanding that seems particularly widespread in discussions of trafficking for sexual exploitation.
The notion of "deception" is another frequently misunderstood aspect of the definition. The drafters of the Protocol made clear that "deception", according to this definition, is not only with regard to the type of work the victim will be doing, but can also be deception with regard to the conditions of that work. That is, a woman may understand that she is being "recruited" into prostitution, but not that she will be denied freedom of movement, have her passport confiscated and be debt-bonded. This deception is enough to constitute trafficking under the Protocol.
In this light, it seems the recent Parliamentary Joint Committee report shows a limited understanding of these particular aspects of the Trafficking Protocol definition - in particular, the concepts of "consent" and "deception" - when it states that:
"Many of the trafficked women who are detected by DIMIA [Department of Immigration, Multicultural and Indigenous Affairs] or Police, have voluntarily come to Australia with the intention of working in the sex industry, and cannot be considered victims of sexual servitude"(Parliamentary Joint Committee on the Australian Crime Commission 2004).
This illustrates the kind of confusion that currently exists surrounding definitions of trafficking and servitude, in this case leading to a clear contradiction in terms. If a woman is trafficked into the sex industry, then, according to the above UN definition, she is in a condition of sexual servitude, no matter what her "intention" may have been. Either the Parliamentary Joint Committee is conflating "trafficked" with "smuggled", or they are assuming that if a woman knew she would be prostituted then she cannot be in servitude (which is contrary to international law and the Australian Criminal Code - "Definitions" on p.7). In their Briefing Paper, Carrington and Hearn note that:
"The Commonwealth offence of sexual servitude may be committed regardless of whether women who migrate to work [sic] in the sex industry consent to do so. Yet it appears that those who do consent have been pre-judged and automatically disqualified as legitimate victims of these offences" (Carrington and Hearn 2003: 7).
According to Carrington and Hearn, then, misreadings serve both to cloud understandings of what trafficking is, and to underestimate its incidence. They suggest, for example, that the "consent" of trafficked women is often used in defence of Australia's poor prosecutions record of traffickers, and has led to a situation where trafficked women are sometimes being treated as criminals or illegal immigrants (instead of victims of a human rights abuse).
Similarly, some organisations have been reluctant to acknowledge debt-bonded women in prostitution as being trafficked. Scarlet Alliance, for example, the national "peak body for Sex Worker Organisations/Projects/Groups/Networks", prefers the term "contract-worker" or "migrant sex worker", and uses a definition of trafficking much narrower than that provided by the Trafficking Protocol. In its Submission to the Parliamentary Joint Committee on the Australian Crime Commission, Inquiry into Trafficking in Women for Sexual Servitude, the organisation implies that women who have consented to come to Australia to do prostitution cannot be trafficked or in sexual servitude, regardless of their debt-bonded status (Scarlet Alliance 2003). This position appears to derive from concerns that any attempts to end trafficking will result in an over-policing of women in prostitution generally and the deportation of trafficked women, as articulated in the organisation's objections to the introduction of new antitrafficking legislation (Scarlet Alliance 2004). While these concerns are certainly legitimate, the problem here lies in the adequacy and fairness (or otherwise) of criminal justice and immigration responses. A failure to recognise the extent to which trafficking exists does nothing to improve such responses,5 and clouds the distinction between trafficking and migration.
Trafficking in persons: "The recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, or deception, of the abuse of power or of a position of vulnerability or of 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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs. The consent of a victim of trafficking in persons to the intended exploitation . . . shall be irrelevant where any of [these] means are used" (United Nations General Assembly 2000).
Smuggling in migrants: "The procurement, in order to obtain directly or indirectly a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident" (United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air).
Debt bondage: "The status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined" (United Nations General Assembly 1957: Article 1).
"Contract girl/worker": Euphemism used by some organisations (including Scarlet Alliance and the Network of Sex Work Projects) for women trafficked into debt-bonded prostitution or sexual servitude (see Scarlet Alliance 2003, 2004). The "contracts" referred to are not only illegal, but constitute slavery under national and international law (Criminal Code section 270(1), United Nations General Assembly 1957: Article 1).
Slavery: "[T]he status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised " (League of Nations 1927: Article 1) "The condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person" (Criminal Code section 270(1)). Person of servile status "A person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention" [including debt-bonded] (United Nations General Assembly 1957: Article 3).
Sexual servitude: "The condition of a person who provides sexual services and who, because of the use of force or threats is not free to cease providing sexual services; or is not free to leave the place or area where the person provides sexual services", Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, adding to the offences set out in Division 270 of the Code.
3 The terms "exploitation of the prostitution of others" and "sexual exploitation" were left undefined as governments delegates could not reach agreement as to their definitions, and have different legal regimes on prostitution.
4 The 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others was the first time the phrase was used in international law, but the State Parties did not see it necessary to define it. The drafters considered that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person".
5 International human rights law does not allow for the criminalisation of women in prostitution, and the Trafficking Protocol recommends that trafficked women be allowed to remain in their destination country (if they wish) once "detected" by authorities. ACSSA believes that any advocacy to end harassment of women in prostitution, and deportation of trafficked women, gains legitimacy by taking international law as its framework, rather than by misinterpreting international definitions for strategic reasons.
Different theorists attribute different factors to the causes of trafficking depending on their theoretical approach to the issue of trafficking itself. A migration-based approach, for example, will focus on such issues as policies on migration and migrant labour, availability of work opportunities in various countries, globalisation of the economy and development strategies. A criminaljustice based approach focuses on legislation and its implementation, policing strategies, impediments to prosecution, and the involvement of organised crime. A human-rights based approach acknowledges the importance of criminal justice, but will situate the causes of trafficking in issues such as the abuse of power, corruption of authorities, discrimination, and state failure to protect civil, political, economic and social rights. Most feminist analyses encompass elements of all these approaches but situate inequalities of sex, race and class, and the power this gives some to abuse others, as central to any detailed analysis of the causes of trafficking. In this analysis trafficking is viewed in terms of exploitation of women and the harm it causes them. Feminist theorists in particular tend to situate male demand as the primary cause of trafficking (Jeffreys 2003; Leidholdt 2003; Raymond, Hughes and Gomez 2001).
The United States State Department has carried out some of the most extensive research into the efforts of governments to combat severe forms of trafficking in persons. In their view, trafficking in persons is a global market:
"Victims constitute the supply, and abusive employers or sexual exploiters represent the demand. The supply of victims is encouraged by many factors including poverty, the attraction of a perceived higher standard of living elsewhere, weak social and economic structures, a lack of employment opportunities, organized crime, violence against women and children, discrimination against women, government corruption, political instability, armed conflict, and cultural traditions such as traditional slavery . . . On the demand side, factors driving trafficking in persons include the sex industry, and the growing demand for exploitable labour. Sex tourism and child pornography have become worldwide industries, facilitated by technologies such as the Internet, which vastly expand choices available to consumers and permit instant and nearly undetectable transactions" (United States State Department 2004a: 19-20).
Sally Moyle, director of the Sex Discrimination Unit of the Human Rights and Equal Opportunity Commission, outlined some of the complexities of pinpointing "causes" to trafficking at a recent conference. She spoke of the power imbalances that allow dehumanisation and "commodification" of others, and noted that "we will be likely to have trafficked, tricked and exploited women to service [the sex industry] so long as rich men think it is OK to continue exploiting young women" (Moyle 2002). While most theorists would agree that power inequalities of race, class and gender are contributing factors to trafficking, there is less said about how each factor operates in different ways. Moyle, however, dissects each one:
"Race issues are certainly embedded in any consideration of trafficking. However, these issues are flexible - they can change with opportunity. Look at the monstrous increase in trafficking of women from Eastern Europe over the last decade while those who exploit those trafficked women are able to "racialise" them - to use their race or culture to disadvantage them" (Moyle 2002).
Moyle argues that while women's ethnic identities are certainly "exoticised" and sexualised in trafficking, this results from a largely opportunistic exploitation of the economic disadvantage of certain groups of women. Not that economic disadvantage alone can be considered the sole "push factor" of trafficking, as "not all equally poor people are equally vulnerable to trafficking" (2002). So, while acknowledging that different forms of discrimination and inequalities intersect in the case of trafficking, Moyle comes to the conclusion that sex discrimination is the one constant factor behind trafficking for sexual exploitation:
"I contend that even if we addressed the worst of these economic inequalities (somehow), while we might see the problem of trafficking recede,we would still see sexual slavery, servitude and trafficking in women, so long as we failed to address the gender inequalities that lie at its heart... People are vulnerable to being trafficked because often they lack education; they more often have limited job opportunities; they are, and consider their lives to be, subject to the direction of their families; they often lack self-esteem; and because they are able to be viewed as commodities - by themselves, their communities and those along the trafficking chain, and throughout the world, who would exploit them. These are generally characteristics that apply to women. I believe trafficking is a gender issue" (Moyle 2002).
Trafficking is increasingly being examined, particularly in the field of development studies, as a consequence of the globalisation of markets and labour (see for example, Global Alliance Against Trafficking in Women and International Labor Organisation research and newsletters). It is undeniable that the scale of trafficking in women for sexual exploitation appears to have increased dramatically over the last two decades in the wake of globalisation of the economy, increased international migration and the feminisation of poverty (United Nations Office on Drugs and Crime 2005). However, research by Kathleen Barry for her book Female Sexual Slavery, as early as 1979, and that of her contemporaries, indicates that large-scale trafficking in women clearly existed prior to current levels of market and labour globalisation. This would suggest that situating the causes of trafficking solely in terms of economic or migration issues cannot account for why the majority of those trafficked are women and girls, nor why they are most often trafficked into sexual exploitation (United States State Department 2004a).
UN instruments and feminist responses
Among the earliest international conventions applicable to trafficking are the two slavery conventions: the League of Nations Slavery Convention of 1927, and the United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1957. Under these conventions State Parties are required to prohibit slavery and slavery-like practices, including debt-bondage, forced marriage and the "transfer" of women by members of their family for "value received" (United Nations General Assembly 1957, Article 1). These conventions did not specifically define or prohibit "trafficking", but they cover some aspects of it and remain valid.
Before the 2000 Trafficking Protocol, the only international treaty on trafficking was the United Nations 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (hereinafter referred to as the 1949 Convention), which consolidated several earlier treaties adopted by the League of Nations. The drafters of the 1949 Convention did not explicitly define trafficking because they saw it as "a cross-border practice of 'the exploitation of the prostitution of others'" (Leidholdt 2003: 175). "Trafficking in persons and the exploitation of the prostitution of others" encompassed the activities of an increasingly global sex industry whose activities were "incompatible with the dignity and worth of the human person" (Marcovich 2002, citing United Nations General Assembly 1949). Under Article 1 of the 1949 Convention, State Parties agree to punish any person who:
- procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person;
- exploits the prostitution of another person, even with the consent of that person (United Nations General Assembly 1949).
That is: traffickers are to be prosecuted (along with other "third-party profiteers" such as pimps and brothel owners), but trafficked and prostituted women are not.6 In limiting its scope to trafficking for the purpose of sexual exploitation, and in drawing no real distinction between the terms "trafficking" and "exploitation of the prostitution of others", the 1949 Convention has provoked different reactions from theorists, depending upon their views on prostitution. In many respects the 1949 Convention reflects the view, held by many feminists and women's human rights activists, of prostitution as a form of violence against women for which the perpetrators should be punished and not the victims (Barry 1979; Jeffreys 2003; Leidholdt 2003). Australia has not signed this convention.
Article 6 of the United Nations 1979 Convention on the Elimination of All Forms of Discrimination against Women uses the same wording as the 1949 Convention, calling on State Parties to: "take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women" (United Nations 1979). In both documents, "exploitation of prostitution" refers to third-party profit from prostitution. In both documents, prostitution is considered inextricably linked to trafficking, which indicates that, until 1979 at least, there was a general consensus in feminist and international politics that prostitution and trafficking could not be considered separate issues (Jeffreys 2003). Kathleen Barry's milestone book of the same year, Female Sexual Slavery, contained methodicallyresearched evidence of violence against women in prostitution, trafficked or not, and its wider links to all forms of sexual violence.
Dorchen Leidholdt notes that the "perceived need to define trafficking and to distinguish it from prostitution came only much later, in the 1980s (2003: 175) and attributes this to lobbying by the sex industry to "confine both the scope of domestic and international laws addressing the sex industry and activism against it" (2003: 175):
"Ignoring or denying the harm of the sex industry was not an option, for that harm was well documented. A more pragmatic approach was to focus on the most brutal and extreme practices of the sex industry - transporting women from poor countries to rich countries using tactics of debt bondage and overt force - while legitimising its other activities in the name of workers' rights. The old dichotomy of Madonna-whore was replaced by a new dichotomy: sex worker-trafficked woman. In order to defend prostitution as sex work, trafficking was articulated as gender-neutral, with labour trafficking and sex trafficking collapsed under the same rubric as 'trafficking in persons.' Otherwise it would be too evident that the ultimate harm of sex trafficking is the decidedly gendered condition into which the trafficking victim is transported - prostitution. "Prostitution" was stricken from the lexicon and replaced by "sex work". Similarly, "pimp", "procurer" and "brothel owner" were replaced by "business owners" and "third-party managers" (Leidholdt 2003: 175-6).
This quote from Leidholdt refers to the division that has appeared over the last decade over whether prostitution should be viewed as violence against women per se, or as an area of legitimate work (in which women might choose to be employed) where violence is seen as "accidental" rather than "inherent". Some organisations, such as Scarlet Alliance in Australia, and the Network of Sex Work Projects internationally, take this latter view and have lobbied extensively for legalisation of prostitution and its recognition as legitimate work. They argue that this will reduce the harm done to women in the sex industry. Other organisations of ex-prostituted women hold the opposite view (for example, WHISPER: Women Hurt in Systems of Prostitution Engaged in Revolt, and SAGE: Standing Against Global Exploitation). These organisations claim that legalisation, instead of decreasing the harm of prostitution, simply serves to portray prostitution as harmless, thereby legitimising men's use of prostitutes and increasing demand.7
The debate is highly relevant to the issue of trafficking in women for sexual exploitation, with governments and policy commentators in the United States and Sweden linking legalisation of prostitution with an increase in this form of trafficking (Ekberg 2001; US State Department 2004b). Independent researchers such as Victor Malarek, in his book The Natashas: Inside the New Global Sex Trade also argue that legalisation serves to empower traffickers as victimization of women in prostitution becomes legally sanctioned (Malarek 2004). A dearth of primary research on the topic means that there is little evidence to either support or contradict the link, making it difficult for debate on the issue to move forward. This has further implications for addressing the demand side of trafficking, as will be discussed later in the paper.
International human rights responses:
International human rights organisations such as Amnesty International and Human Rights Watch consider the trafficking of women for sexual exploitation to be a widespread and systematic violation of the human rights of women (Amnesty International 2004). Amnesty International stresses that while this form of trafficking is an abuse "not least [of] the right to physical and mental integrity [it also] violates the rights of women and girls to liberty and security of person, and may even violate their right to life. It exposes women and girls to a series of human rights abuses at the hands of traffickers, and of those who buy their services. It also renders them vulnerable to violations by governments which fail to protect the human rights of trafficked women" (2004: 1).
Human Rights Watch outlines how a human rights-based approach to trafficking differs from treating trafficking solely as a criminal justice or migration issue:
"Any program must first and foremost return control to the victims. It is only when we have created the space for the trafficking victim to see her or himself again as a person, not an object, whose agency we respect and whose value is inherent, that she or he becomes a survivor. Sometimes, in a rush to accomplish other goals, such as prosecuting the traffickers, states focus on victims for the information they can provide or their usefulness to the criminal justice system. The danger is that states treat the victims as merely a pawn in a struggle between the state and the trafficker, not as a human being in need of services and deserving of respect" (Human Rights Watch 2002: 2).
Trafficking in persons is also recognised as a human rights abuse by the United Nations, analysed and commented on by the Working Group on Contemporary Forms of Slavery, within the Office of the High Commissioner on Human Rights (OHCHR). The Working Group monitors state compliance to the relevant treaties and conventions (the two slavery conventions, the 1949 Convention and the 2000 Trafficking Protocol). It also reports every year via the OHCHR to the UN Economic and Social Council, giving recommendations for member states to combat the abuse. In their latest Report, the section on the "Traffic in Persons and Exploitation of the Prostitution of Others" makes the following recommendations to states:
- Calls upon states to recognise that human trafficking is a gross violation of human rights and fundamental freedoms and, hence, to criminalise it in all its forms and to condemn and penalise traffickers and intermediaries;
- Urges states to ensure that their policies and laws do not legitimise prostitution as the victims' choice of work, or promote the legalisation or regulation of prostitution; Urges governments that have not yet done so to sign and ratify the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1949, the Convention to Eliminate All Forms of Discrimination against Women and the United Nations Convention against Transnational Organized Crime, including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children;
- Calls upon states to ensure that the protection and support provided to the victims are at the centre of any anti-trafficking policy and to provide protection, assistance and temporary residence permits to victims that are not contingent on their cooperation with the prosecution of their exploiters, as articulated in Articles 6, 7 and 8 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime;
- Urges states to allocate resources for comprehensive programmes designed to provide assistance to, protection for, and healing reintegration into society and rehabilitation of victims;
- Also urges states to devise, enforce and strengthen effective measures at the national, regional and international levels to prevent, combat and eliminate all forms of trafficking through comprehensive anti-trafficking strategies which include legislative measures, prevention campaigns and information exchange. (United Nations Office for the High Commissioner On Human Rights 2003: 22).
Most of these recommendations go beyond the binding Trafficking Protocol, which, like many UN protocols, is limited in its requirements in order to maximise the number of states willing to ratify and be bound by it. These recommendations represent, essentially, an outline of international best practice, as recognised and developed by the experts in the Working Group, to combat trafficking as a human rights abuse, rather than simply a crime or migration issue. The extent to which Australia has engaged with these recommendations will be explored in the section entitled "The Situation in Australia".
International criminal law
Theorists have noted that international criminal law is yet to become a viable legal system capable of dealing with all international crimes, and that its development in this direction is "hindered by the shield of state sovereignty and its attendant ramifications" (Kittichaisaree 2001: 4). This, combined with certain historical circumstances outlined below, means that the application of international criminal law tends to be limited to cases where international aspects of national criminal law converge with international humanitarian law protecting victims of armed conflict, such as in the tribunals established in response to the conflicts in Rwanda and the former Yugoslavia (Kittichaisaree 2001). State sovereignty was sidelined in the case of these tribunals because the UN Security Council could exercise enforcement power under Chapter VII of the UN Charter, which covered "action with respect to threats to the peace, breaches of the peace, and acts of aggression" (United Nations 1945).8
The longest-standing permanent international court is the International Court of Justice, the principal judicial organ of the United Nations. Its role is to settle, in accordance with international law, the legal disputes submitted to it by states, and therefore only states (not individuals) may apply to and appear before the Court. This might happen when parties to an international treaty or protocol (such as the Trafficking Protocol) disagree over its interpretation or application.
The Court has existed since 1946 and has delivered judgments on such issues as border disputes, territorial sovereignty, the non-use of force, the right of asylum, and economic rights. The Court is not, therefore, a criminal court: it does not exist to try individuals (such as traffickers), nor to try states for failing in their obligations under international law (for example, in not introducing antitrafficking legislation), but simply to hear disputes as to the interpretation and application of international law (International Court of Justice 2005). The only case, therefore, where the Court might be an organ of justice with regards to trafficking in persons would be if a certain State Party to the Trafficking Protocol claimed to be fulfilling the requirements of the Protocol and another state disagreed. Both states would then have to agree to take the matter before the Court and abide by its decisions, and the Court could then decide whether the first state was fulfilling its international obligations or not.
In the 1980s, the idea of establishing a permanent international criminal court was floated as a "last resort to prosecute international drug traffickers" (Kittichaisaree 2001: 27).9 Such a court, set up to deal with illegal international trades, could have had wide-reaching significance for the prosecution of traffickers in people. However, before a statute for such a court was drafted, the conflicts in the former Yugoslavia and Rwanda necessitated the rapid establishment of ad hoc tribunals (in 1993 and 1994 respectively) to deal with the crimes committed in these conflict situations. The subsequent drafting of the statute for the permanent International Criminal Court (ICC)10 in the late nineties was, as a result, greatly influenced by the statutes of these ad hoc tribunals. Consequently, the statute for the ICC (referred to as the "Rome Statute", and entered into force on 1 July 2002) focuses on crimes relating to conflict situations, rather than on illegal international trades. This has important implications for the adequacy (or otherwise) of the court to deal with international crimes perpetrated in "peacetime", such as trafficking in women. The court has jurisdiction over four specific crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Whilst article 7(1)(g) of the International Criminal Court Statute defines rape, sexual slavery and enforced prostitution as crimes against humanity, it has not heard cases of such crimes committed in non-conflict situations.
Although the Court is relatively young, it is doubtful whether it will hear such cases for two major reasons. First, the Court "will only investigate and prosecute if a state is unwilling or unable to genuinely prosecute. This will be determined by the judges" (International Criminal Court 2004). Second, its jurisdiction is limited to those states who are party to the Statute. Australia is a party to the Statue (having signed it on 9 December 1998 and ratified it on 1 July 2002). A declaration made by the Australian Government upon ratification stressed the primacy of Australian criminal jurisdiction and affirmed that "the offences in Article 6 [relating to genocide], Article 7 [relating to crimes against humanity] and Article 8 [relating to war crimes] will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law" (Australian Government 1998). Thailand, believed to be the country of origin of many trafficked women, has signed but not ratified the Statute, and therefore is not a party to it and its nationals cannot be tried. So though the Court exists to "ensure that the gravest international crimes do not go unpunished" (International Criminal Court 2004), it is unlikely, in the face of the above factors, that it will hear cases of trafficking in women to Australia.
South-East Asia regional responses
Whether or not the International Criminal Court would extend its jurisdiction to include hearing cases of trafficking may prove incidental given that Australia is soon to bring in its own domestic laws against trafficking (outlined in the next section). However, the international nature of the crime means that Australia's laws cannot, on their own, adequately address the problem. Carrington and Hearn outline the limitations of national law when it comes to addressing trafficking:
"The globalisation of the world economy has provided new and lucrative opportunities for criminal entrepreneurs to be relatively free from detection and prosecution. With the compression of time and distance, alongside the rapid development of information technologies, criminal syndicates operate in a global village criss-crossing national borders. Yet the majority of policy and legislative instruments and resources for responding, prosecuting and preventing crime tend to be limited by the boundaries of nation states" (2003: 2).
According to the Global Alliance Against Traffic in Women group, there are two basic types of trafficking systems, each feeding into or using the services of the other. The first is localised crime structures and individual "recruiters":
"It seems that very often the trafficker is someone the victim knows, often someone from within the family. One of our research projects, in Cambodia, shows that 85 per cent of the victims interviewed were trafficked by someone close to them, someone from within the family, a friend of the family, a neighbour or a boyfriend. These people are not professionals but get involved in trafficking when they see a profit to be made. Their work is of course made easier because of the relationship with the potential victim (Global Alliance Against Traffic in Women 2005).
These local recruiters then "feed" victims to transnational or nationallyoperating organised crime syndicates. Some of these might be large syndicates, but some are made up of just three or four traffickers. They are "usually involved in drugs and arms as well as human smuggling" (2005).
It is suspected that traffickers use particular routes within any one region - the apparent flow of trafficking victims from Burma (Myanmar) to Thailand to Australia being a case in point. Regional cooperation is therefore essential in order to "map out the routes employed by traffickers that require international cooperation, so as to assess the interdependence between the traffic and other crimes, and thereby improve the strategies currently being employed" (Pomodoro 2001: 242). Research has been identified as essential at both regional and international levels: "We have to develop and activate centralised instruments that can constantly monitor and verify what is happening, and bring the data together in order to understand the phenomenon. This calls for coordination and an indispensable fund of data on which to base countermeasures" (2001: 242).
Recently there has been an increasing recognition by governments that an effective response to trafficking requires regional and international cooperation. Australia has signed bilateral agreements with Thailand, Cambodia, Lao PDR and Burma (Myanmar) as part of the Asia Regional Cooperation to Prevent People Trafficking (ARCPPT) Project, to provide aid and strengthen "national capacities to apprehend and prosecute traffickers" (Commonwealth Attorney- General's Department 2003a). A "mobile strike force" of regional police investigators to "strengthen the capacity to actively target and investigate trafficking syndicates" (Commonwealth Attorney General's Department 2003a) has also been set up as part of the national Action Plan to Eradicate Trafficking in Persons.
Human rights commentators (Amnesty International and Anti-Slavery International 2004; Human Rights Watch 2002; Pomodoro 2001) have noted that, unlike the trades in narcotics and arms, the act of trading in people is, in itself, a human rights abuse and not simply a crime. This necessitates a human rights-based response that supports and empowers the victim, as well as a criminal justice response that investigates and punishes the perpetrators. International legislation beyond criminal justice and anti-migration responses is essential. The need is:
"to create and activate a global system that will include serious penalties, but avoid a situation where women and children are simply avenged (even if this does not occur in 90 per cent of the cases) and is able to give assistance to the victims" (Pomodoro 2001: 241).
The 2000 Trafficking Protocol goes some way towards achieving this, although according to Pomodoro, such international agreements are a first step, and first step only, in the creation in public opinion of "a serious cultural movement to combat and reject such forms of exploitation" (2001: 241).
Application of the Trafficking Protocol
The Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Trafficking Protocol) requires the countries ratifying it to adopt basic criminal offences for trafficking in persons, and to establish a framework for international cooperation, including various forms of assistance in the conduct of investigations and prosecutions, and provisions for the extradition of offenders. The Trafficking Protocol also asks governments to establish human rights protections for victims of trafficking, including medical and psychological care, appropriate shelter, legal assistance, protection and safety, temporary residence and safe repatriation.
Australia signed the Protocol on 11 December 2002, but has yet to ratify it. However, the Australian Government has indicated its intention to do so once legislation and policy have been brought into accordance with the Protocol's requirements (Commonwealth Attorney General's Department 2004: 86). According to the US State Department, Australia is "a destination country for Chinese and Southeast Asian women trafficked for the purpose of forced prostitution. Many of these women travel to Australia voluntarily to work both in legal and illegal brothels but are deceived or coerced into debt bondage or sexual servitude" (US State Department 2004a: 86). Project Respect's research, interviewing trafficked women in Australia, suggests that the majority of trafficked women in Australia enter the country on Thai passports, although it is believed many may have already been trafficked to Thailand from Myanmar (Burma) (Project Respect 2004).11 Thailand signed the Protocol in December 2001, but has not ratified it. Myanmar ratified it in March 2004 (although with reservations regarding the referral of disputes to the International Court of Justice). The Philippines ratified the Protocol in May 2002. Indonesia signed in December 2000, but has not ratified it. Malaysia, China and Vietnam have neither signed nor ratified the Protocol.
|Summary: UN Protocol to Prevent, Suppress and Punish Trafficking in Persons|
Part I - Purpose, scope and criminal sanctions (Articles 1-3)
Articles 1 and 2 set out the basic purpose and scope of the Protocol. Essentially, the Protocol is intended to "prevent and combat" trafficking in persons and facilitate international cooperation against such trafficking. It provides for criminal offences, control and cooperation measures against traffickers. It also provides some measures to protect and assist the victims. "Trafficking in persons" is intended to include a range of cases where human beings are exploited by organised crime groups, where there is an element of duress involved and a transnational aspect, such as the movement of people across borders or their exploitation within a country by a transnational organised crime group. Trafficking is the ". . . recruitment, transportation, transfer, harbouring or receipt of persons. . . " by improper means, such as force, abduction, fraud or coercion, for an improper purpose, like forced or coerced labour, servitude, slavery or sexual exploitation. Countries that ratify the Protocol are obliged to enact domestic laws making these activities criminal offences, if such laws are not already in place (Article 3).
|Part II - Protection of trafficked persons (Articles 4-6)
In addition to taking action against traffickers, the Protocol requires states that ratify it to take some steps to protect and assist trafficked persons. Trafficked persons would be entitled to confidentiality and have some protection against offenders, in general and when they provide evidence or assistance to law enforcement or appear as witnesses in prosecutions or similar proceedings. Some social benefits, such as housing, medical care and legal or other counselling are also provided for. The legal status of trafficked persons and whether they would eventually be returned to their countries of origin has been the subject of extensive negotiations. Generally, developed countries to which persons are often trafficked have taken the position that there should not be a right to remain in their countries as this would provide an incentive both for trafficking and illegal migration. Countries whose nationals were more likely to be trafficked wanted as much protection and legal status for trafficked persons as possible. The negotiations are still ongoing, but the text presently requires states "to consider" laws which would allow trafficked persons to remain, temporarily or permanently, "in appropriate cases" (Article 5). States would also agree to accept and facilitate the repatriation of their own nationals (Article 6).
Part III - Prevention, cooperation and other measures (Articles 7-11)
Law enforcement agencies of countries that ratify the Protocol would be required to cooperate with such things as the identification of offenders and trafficked persons, sharing information about the methods of offenders and the training of investigators, enforcement and victim support personnel (Article 7). Countries would also be required to implement security and border controls to detect and prevent trafficking. These include strengthening their own border controls, imposing requirements on commercial carriers to check passports and visas (Article 8), setting standards for the technical quality of passports and other travel documents (Article 9) and cooperation in establishing the validity of their own documents when used abroad (Article 6, paragraph (3)). Cooperation between states who ratify is generally mandatory. Cooperation with states who are not parties to the Protocol is not required but is encouraged (Article 11). Social methods of prevention, such as research, advertising and social or economic support are also provided for, both by governments and in collaboration with non-governmental organisations (Article 10).
6 So while international law demands the criminalisation of those who exploit women in prostitution (trafficked or otherwise), it does not allow for the criminalisation of those who are trafficked or otherwise prostituted.
7 The current state of research both in Australia (Jeffreys 2002) and internationally (Farley et al. 1998) seems to indicate that levels of physical and sexual violence against women in prostitution are the same regardless of legal status of prostitution. Melissa Farley's research is the most extensive international evidence-based research to date, and indicates not only an extremely high incidence of violence and rape of women in prostitution, but also extremely high levels of post-traumatic stress syndrome. This is the case even if they have not been subjected to "incidental" violence, indicating that the "harm" done may be inherent to prostitution itself.
8 Interestingly, state sovereignty is far less of an obstacle in international trade law where the World Trade Organisation has the power to force member states to change domestic laws when they are perceived to be obstacles to those agreements (Drahos and Braithwaite 2002). State sovereignty does not take precedence over issues such as tariffs, but it does over penalisation of crimes against humanity (especially committed in peacetime).
9 The proposal was put to the UN General Assembly by Latin American States, led by Trinidad and Tobago (letter dated 21 August 1989 from the Permanent Representative of Trinidad and Tobago to the UN Secretary General, UN GAOR, 47th Session, Annex 44, Agenda Item 152, UN Doc. A/ 44/ 195, 1989).
10 Adopted at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the "Rome Conference"), on 17 July 1998.
11 At the recent Australian Women's Health Conference 2005, the Director of Project Respect, Kathleen Maltzahn, suggested in her presentation that there has recently been an increase in trafficked women identifying as South Korean, and a decrease in the numbers identifying as Thai.
Trends: 1980s to the present
Comprehensive research on trafficking in women for sexual exploitation to, or within, Australia is lacking, but a rough picture has been drawn over the last decade by various non-government organisations (NGOs) and academics. A 1994 study indicated that significant numbers of Asian women (mostly Thai) started entering the Sydney sex industry in the mid-1980s (Brockett and Murray 1994). The same research estimated that over 90 per cent of these women were trafficked, arriving debt-bonded, with "debts" having increased greatly over the previous few years. A Thai woman, Jane, described how, in 1989, her "debt" had been for $12,000, but that just three years later she knew other Thai women being forced to have sex with "clients" to pay back "debts" of $25,000-$30,000 (Brockett and Murray 1994: 191-2). In 1995, the head of the Australian Federal Police (AFP) investigation into sex trafficking, Chris Payne, estimated that there were up to 500 trafficked women in debt-bonded prostitution in Sydney at any one time (Sullivan and Jeffreys 2002: 1145). Anti-trafficking NGO Project Respect's more recent research indicates that this figure is now far higher, and that the "debt" continues to increase, with women currently arriving in Australia with "debts" of up to $50,000 (Project Respect 2004).
Up until the late 1990s there was very little research to indicate the scale of trafficking in Australia, apart for the Immigration Compliance records of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA). In 1998-1999, 243 people (237 women) were deported having been located in brothels; this is up from 56 in 1996-1997 (Maltzahn 2002a, cited in DIMIA 2000, Chapter 4). Immigration officials were not, at that stage, required to question the women to ascertain if they had been trafficked before deporting them. While these figures suggest an increase in the number of women being trafficked into prostitution in the late nineties, they cannot be said to represent exact numbers of women being trafficked, for two reasons. The first is that it cannot be assumed, according to sex industry representatives, that all foreigners without visas located in brothels had originally been trafficked (Scarlet Alliance 2003). Secondly, international research indicates that approximately 90 per cent of trafficked women go undetected by immigration authorities (Maltzahn 2002a, cited in Dillon 2000).
One source of information on how trafficking was operating in Australia in the late 1990s was the trial of Melbourne trafficker Gary Glazner. Glazner was tried for, and found guilty of, violations of the Victorian Prostitution Control Act for the period 1997-1998 (the federal slavery and sexual servitude legislation had not been introduced at that stage). Glazner had bought Thai women from agents in Thailand for between $15,000 and $18,000, and they had knowingly come to Australia to work as prostitutes (McKinney 2001). Evidence was presented at an initial committal hearing showing that the women feared Glazner and that he withheld their passports, restricted their movements, and kept them in debt bondage (Police vs Gary Galzner and Paul Donato Marino 1999).
One of the women, "Michelle" told the committal hearing the conditions of the debt-bondage "contract" presented to her:
"First condition was 500 jobs, after I finish 500 jobs I would receive $40 or $50, and that within a year. Second condition 700 or 800 jobs. After that I could do whatever I want. Third condition I need to pay ... $36,000 or $37,000. He [Mr Chang, Michelle's 'owner' in Thailand] told me when I met the boss [Glazner] the boss would tell me which option" (Police vs Gary Galzner and Paul Donato Marino 1999: 31-33).
Detective Senior Sergeant Ivan McKinney outlined the evidence presented (at the committal hearing and trial) at a public forum in 2001. He said Glazner chose to enforce the "contract" under the first condition of 500 "free jobs", each job being a half hour of sex for which the buyers paid $100-$110. This equalled approximately $32,000 in profit for Glazner from each woman, after deduction of their "purchase costs" (McKinney 2001). At least 40 women were proven to be connected to Glazner through DIMIA records, meaning Glazner made at least $1.2 million from these women alone. Investigators suspected four to five times this many women were involved. The women were generally prostituted for 12-hour shifts, seven days a week,12 using a "work book" to keep track of the number of jobs they had done. Glazner prostituted the women first out of the Clifton Hotel in Kew, then, when he ran out of space, out of a rented house in South Melbourne, then out of two legal brothels in South Melbourne (McKinney 2001).
That the women were kept in conditions of sexual slavery, through debtbondage, was evidenced by testimonies at the trial, which illustrated Glazner's "ownership" of them:
Crown: "Who was it that owned you in Thailand?"
Michelle: "Chang ... He sent me to Bart [Glazner], then I belonged to Bart.."
Crown: "What was he [Chang] getting out of it?"
Michelle: "So he would get some money from Bart because he sold me to him."
Crown: "Did you think if you didn't perform your contract you would be in trouble?"
Michelle: "I would, I would be in trouble."
(Queen vs Gary Glazner 2000, vol. 1: pp. 227-228).
McKinney detailed the conditions of sexual servitude under which the women were kept upon arrival in Australia. Their living conditions at the Kew hotel where they were housed were extremely cramped and they were locked in. Glazner had installed a large locked iron gate and bars on the stairwells, and sealed the windows. Glazner or an associate drove them to and picked them up from the brothel where they were prostituted (McKinney 2001). Journalist Mark Forbes, reporting on the trial for the Age newspaper, wrote that Glazner had verbally abused and intimidated the women, and kept a loaded gun in clear view of the women at the hotel (Forbes 1999).
The women feared for their lives and of reprisals against themselves or their families back in Thailand. As "Michelle's" translator stated for her at the trial: "She said if she is here, maybe she will die. If she goes back to Thailand, she will die" (Police vs Gary Galzner and Paul Donato Marino 1999: 48). Another trafficked woman, "Honey" testified that her Thai "owner", Chang, had a pornographic picture of her which she feared he would use to "take my child away" (Police vs Gary Galzner and Paul Donato Marino 1999: 65). The jury found Glazner guilty, of all seven charges for which he was tried, within two hours. In her case study of the Glazner trial, Victoria University researcher Marnie Ford noted that "although the offences carried maximum sentences of four and five years, Glazner only received a penalty of 18 months imprisonment (fully suspended for two years) and a $31,000 fine" (Ford 2001: 24).13
Until this time there was also very little in Australian legislation or policy directly addressing the issue of trafficking in women for sexual exploitation. In 1999, federal legislation was introduced in the form of the Criminal Code Amendment (Slavery and Sexual Servitude) Act, which repealed old Imperial Acts relating to slavery and introduced the new offences of slavery and sexual servitude. The Act defines "slavery" as "the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person" (Criminal Code section 270(1)); and "sexual servitude" as "the condition of a person who provides sexual services and who, because of the use of force or threats is not free to cease providing sexual services; or is not free to leave the place or area where the person provides sexual services", (Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, adding to the offences set out in Division 270 of the Code). The situation of the women in the Glazner case would appear to fall into both categories. As stated earlier in this paper, under this Act, "original consent is irrelevant to whether or not an offence of sexual servitude has been committed" (Carrington and Hearn 2003: 1). However, Ford notes that even if Glazner had been prosecuted under the new Act, he may not have received a heavier sentence, because:
"Deception and consent are leading elements within the legislation, therefore trafficked women such as "Honey" and "Michelle" will fall outside the provision unless they can prove a situation of slavery. If the onus of proof cannot be met, such cases will not be covered by the [Criminal Code Amendment (Slavery and Sexual Servitude) Act]" (Ford 2001: 25-6).
There were no prosecutions under these new laws for the five years following their introduction. This was because, until 2003, there existed no provision for treating victims of trafficking as anything other than illegal immigrants, or to offer them any support or protections (Carrington and Hearn 2003). Victims going to the police were likely to face immediate deportation. As Carrington and Hearn note "the successful prosecution of traffickers relies on the cooperation of victims of traffickers, who, without mandated support, protection, or means of redress are unlikely to cooperate with law enforcement agencies" (2003: 1).
In 2003, following media reports of the Glazner case and lobbying by nongovernment organisations, various policy and legislative initiatives were developed at a federal level. In May 2003, a Parliamentary Current Issues Brief examined the lack of any prosecutions of traffickers under existing Commonwealth laws and came to the conclusion that "Australia's emphasis on border control is working against the prosecution of traffickers and the human rights of trafficking victims" (Carrington and Hearn 2003). In June 2003 a Parliamentary Joint Committee (PJC) to examine the Australian Crime Commission's response to trafficking in women for sexual servitude was established. It received 39 submissions from individuals, non-government organisations, police and the health sector on the adequacy of the current legislative framework, and held public hearings in Sydney, Melbourne and Canberra. In July the Australasian Police Ministers' Council meeting called for the development of a National Action Plan on trafficking, and agreed to undertake a review of legislation, operational arrangements with DIMIA, and to work towards greater cooperation of law enforcement agencies on the issue. Subsequently, in October 2003 the Australian Government announced a package of $20 million over four years to combat people trafficking. Details of these and later initiatives can be found in the table of major Australian responses to trafficking on pp. 32-33.
For a calendar of major Australian responses to trafficking, see pp. 32-33.
How trafficking works in Australia
In early 2004, in response to growing national interest in the issue and to the lack of information on the numbers of trafficked women and their experiences, Project Respect undertook a case-based research project. The definition of trafficking used by the researchers was that of the UN 2000 Trafficking Protocol,14 and therefore covered trafficking for forced labour and other slaverylike practices as well as trafficking for sexual exploitation, though the latter made up the majority of cases. Researchers spoke directly to trafficked women and men and checked interview data against official documents such as DIMIA files. Over a period of six weeks, approximately 300 cases of victims of trafficking were uncovered and documented, between 272 and 274 of which were women trafficked for sexual exploitation.15 The criminal nature of trafficking means that there are certain methodological difficulties to carrying out such research, and the researchers noted three main obstacles:
"First, victims were fearful of both immigration authorities and traffickers and are therefore often reluctant to tell their stories. Second, we received little information from official sources and relied instead on our contacts in the sex industry and legal profession and our research of publicly available reported legal decisions involving trafficked women. Third, cultural and language barriers and difficulties accessing brothels made it difficult to access places where we suspect trafficked women to be" (Project Respect 2004: 3).
Despite these obstacles, Project Respect had little difficulty in uncovering an average of 50 trafficking victims in each week of their research, which helps to indicate the extent to which trafficking exists in Australia. Extrapolating from these figures, they estimate approximately 1,000 women are trafficked to Australia for prostitution each year. As such, Project Respect's work in the area is particularly useful. However, their research remains the most extensive, evidence-based primary research on the subject at a national level, and there is an urgent need for further and better-resourced studies in order to fully understand and respond to trafficking in Australia.
The Project Respect report indicated that most victims of trafficking for sexual exploitation entered the country on a Thai passport, though many may have been previously trafficked to Thailand from Burma (Myanmar). There were also victims from China, Indonesia, Malaysia, and Vietnam, as well as from Colombia and the former Soviet Republic. The following trends were noted:
"Women trafficked to Australia for prostitution are deceived to believe that they will be working in hospitality or as air-hostesses or they are deceived about the nature of the prostitution they will do and the conditions they will be working and living under. These women are usually accompanied on the plane by a trafficking courier, who may or may not sit next to the victim on the plane. The women are usually recruited by, or via, someone they know. Victims trafficked to Australia experience a range of abuse and coercion, ranging from threats to inform Immigration, to deprivation of food, to physical and sexual assault and rape. The women are prostituted for long hours, seven days a week, and often regardless of their health or menstrual cycle. Women trafficked for prostitution usually wish to earn enough money to send home to family in their country of origin; instead, they earn little or no money in Australia. Only a small proportion of trafficked women contact the authorities for help" (Project Respect 2004: 4)
Over these next few pages, we draw heavily on the case-based research documented by Project Respect in detailing the experiences of the women who spoke to them about their experiences of being trafficked and the pathways through which they were hijacked into sexual servitude.
According to Project Respect,16 the women they spoke to tended to describe five main "stages" to the trafficking process in Australia - recruitment, transport, "breaking in", debt-bonded prostitution, post-"contract"
The "recruitment stage", as described by Project Respect, largely relies on the trafficker gaining the victim's trust, often through contacts such as families or "friends of friends". Women are often used as "recruiters" as they may seem more trustworthy (and some traffickers are in fact women). They convince the victim that they can earn money in Australia, and will organise visas and passports for them. Some victims have children to support and few employment prospects in their home countries, and some, as Project Respect's 2004 report showed, may be victims of domestic violence or ongoing sexual assault from members of their families and use the "contract" as an opportunity to escape. Some are told they will be doing different "work" in Australia, such as waitressing, some believe they will be "working" in the sex industry as, for example, table-top dancers. Some know they will be doing prostitution, but are deceived as to the nature and conditions of the work. They might believe, for example, that they will be working in a bar and will be able to pick and choose who they have sex with and how often. Most women will be told that they will have a "debt" to pay off to the traffickers, but will be deceived as to the size of the "debt" and how long it will take to pay it off. If a woman tries to "pull out" of the "deal" at any stage during the "recruitment", she is made to feel guilty by the trafficker, in being, for example, led to believe that the trafficker has gone to a great deal of trouble or spent a lot of money on her behalf. While some women trafficked to Australia are actually abducted, most are victims of the kind of coercion and deception described above, by people they know and have placed their trust in. This has implications for how the victims may later relate to service providers or officials: they have had their trust abused to such a degree that they may find it difficult to let down their guard with anyone afterwards.
The "transport stage" involves the trafficker arranging passports and visas (sometimes forged). Some women have reported having their bankbooks or other documents retained by traffickers from this stage onwards. The victims are often accompanied by "mules": traffickers or their assistants posing as boyfriends or family members, or who survey the victim but sit separately to her on the plane and don't speak to her until they are through immigration. This may or may not be the same person who initially "recruited" her (women are frequently "sold" or otherwise "transferred" from person to person throughout the five stages of the trafficking process, so the "trafficker" of the "transport" stage might not be the same person as the "trafficker" of the "breaking-in" or "debt-bonded" stage). The victim may believe she is travelling to Australia legally, or may be "primed" to tell stories when passing through immigration. In the latter case, she will be very reluctant to go to the authorities later, and threats to report her to immigration authorities can be used by her traffickers. escort agencies and street prostitution, as well as informally "bought/sold" or "rented" between groups of men. Kathleen Maltzahn of Project Respect points out that:
"Violence continues during this period and is an important method of control. Seemingly arbitrary violence can be paralysing, and traffickers use both the violence of customers and their own strategic violence to control women. Women report being sent back to violent customers if they leave the room ... Women are hunted down and beaten and locked up if they run away. Women are also subjected to arbitrary and unpredictable violence from traffickers, simply because the trafficker is angry, tired, loses at gambling - this serves to increase the sense of the trafficker's power" (Maltzahn 2004).
Psychological violence is also used: in addition to taking women's passports, traffickers withhold information about where they are (women frequently don't know the address of where they are held, or even the suburb), how to get around and where to go to buy basic essentials. Traffickers control the women's money, food and medicine. They often tell women that they have paid off Immigration and that the police are corrupt and won't help them. They blackmail women with pornographic images taken of them, which they threaten to send to the women's families or children. They encourage gambling and drug dependency, and in the latter case maintain the women's dependency on them as the sole suppliers of the drug. But as Project Respect found in their interviews with victims of trafficking, one of the traffickers' most effective tactics, is:
"Kindness, that old strategy from perpetrators of domestic violence. In between the violence [traffickers] are at times kind and considerate, and when the violence decreases, women begin to hope that it was all just a terrible nightmare that will now go away. Lower level violence may continue, but in contrast to what has gone before, this may feel bearable. This is coupled with giving women a greater sense of being able to move around" (Maltzahn 2004).
Ironically, it may also be the case that the traffickers represent the only people the women know on a personal level in Australia, and may be the only people who speak the women's language. This means women's dependency on their traffickers, combined with the above, imposed isolation, is incredibly intense.
Project Respect spoke of three "sub-stages" of the debt-bonded period that was particularly obvious in one brothel the organisation knew of, where three different buildings were being used for this end. The first "sub-stage" is when women have only just realised the conditions of their "contract" and are subjected to intense violence, rape and threats to break resistance and establish the trafficker's control. The women are not allowed to leave the brothel or house where they are kept. The second "sub-stage" is when the trafficker's control has been established and the women live in such fear that psychological violence is enough. Physical and sexual violence decreases and traffickers may show "kindness" to the woman to make her feel that things are getting better. The women may be allowed out on escorted trips to the shops or the cinema. The final "sub stage" looks, from the outside, like "freedom":
"By the end of the contract, many women will have no physical constraints on them at all. There are a number of reasons for this. Firstly,women have learnt that they will be punished if they run away, and are scared that traffickers will hunt them down even if they return home. Secondly,women hope to pay off their "debt" and then be able to make some money for themselves and their families. Thirdly, women have learnt that there is little support for women who run away and are told that they will be deported if they contact the Australian authorities. Finally,women at the end of their contracts are less "valuable" to traffickers, as profit has been extracted from them and they are no longer "new faces" (Maltzahn 2004).
Common ideas of sexual servitude relate most to the first sub-stage, where the victim cannot leave and is subjected to physical and sexual violence. Nevertheless, women at this last sub-stage continue to live in fear of violence, and the traffickers may have also made threats to the woman's children and family: their enslavement has become psychological. This will be obvious to those who work with victim/survivors of intimate partner violence and sexual assault, who will be aware of the similarities in how control is exercised, with women seeing no way out of their situation and even believing the violence is somehow "their fault". However, if this cycle of self-blame and its resultant fear of disclosure is not well understood by legislators, magistrates and judges, the new "sexual servitude" definition could risk being conservatively interpreted.17 Some of those theorising "sex work" as legitimate or freely-chosen work also tend to minimise the impact of past violence, threats and other controlling behaviours, and may view a woman at this stage, not as a trafficked woman who has been beaten and threatened into submission, but as simply a "migrant sex worker" (see, for example, Agustin 2002; Scarlet Alliance 2003). Project Respect notes how it is important for traffickers to give the appearance of trafficked women being "free", in order to avoid possible prosecution now that the victim has become less valuable to them and can be "let go".
Some women do not reach the "post-contract" stage as they may be "detected" by DIMIA and deported before they have "paid off" their "debts" (the introduction of new visas, explained below, has stopped some, but not all, deportations of trafficked women). When deported women are back in their country of origin, they are usually in no better situation than when they left, and are often worse-off, particularly if their families or communities learn they have been prostituted. They are also likely to be traumatised by their experience and unlikely to have access to any support services. They are extremely vulnerable to being re-trafficked. In the past, traffickers have reported women approaching the end of their "contract" to DIMIA themselves, to avoid the risk of the woman going to the police, and, if they think the woman will continue in prostitution, to eliminate competition. Some women manage to escape the "contract", but their options are likely to remain limited:
"At times [escape] is achieved by establishing a relationship with an Australian citizen who will either provide refuge to the woman or attempt to pay off the "contract". Sometimes, trafficked women marry Australian citizens. A woman who escapes traffickers is unlikely to understand her migration rights and other legal rights. At times, a women's migration status is made worse by traffickers who have applied for protection visas for women and then cancelled the application when the woman ran away. This means that the woman cannot make another on-shore application for a visa (for example a spouse visa) and so is vulnerable to removal" (Maltzahn 2004).
For women who make it to the end of their "contract", some simply want to leave Australia and do so of their own accord. Some women attempt to make some of their own money by doing further prostitution.
The Australian Government launched its Action Plan to Eradicate Trafficking in Persons in June 2004. It incorporated certain measures announced earlier, as part of a $20 million package to combat trafficking. It also introduced new measures, such as new visas for victims of trafficking: the "Bridging F" and "Witness Protection (Trafficking) Visas". The introduction of the visas is a requirement of the UN Trafficking Protocol, and is positive in that it recognises trafficked women as victims of a crime rather than simply illegal immigrants who must be deported. The "Bridging F" visa is a 30-day visa that allows trafficked women "to reflect on whether they wish to further assist the AFP [Australian Federal Police], State or Territory police" (DIMIA 2005). Some trafficked women may decide not to do so, often out of fear for their own safety, or that of their families, following threats from their traffickers (Project Respect 2004). In this case they can apply for other visas, and their eligibility is assed on a case-by-case basis. Trafficked women who are willing to assist police, and who police believe can assist in prosecution may be eligible for Criminal Justice Stay Visas (CJSVs) "for as long as they are required for law enforcement purposes" (2005). Since January 2004, women on CJSVs who "have significantly contributed to the prosecution or investigation of people trafficking matters, and who may be in danger if they return to their home country as a result of the assistance they have provided, may be invited to apply for a Witness Protection (Trafficking) Visa" (2005). This visa is initially for two years, and, if the woman continues "to meet the criteria" (2005), can be upgraded to a permanent visa.
The introduction of the visas has entailed certain procedural changes for DIMIA officers: trafficking victims "detected" by DIMIA would now be referred on to the Australian Federal Police (AFP) instead of deported. Following referral from DIMIA, the AFP's Transnational Sexual Exploitation and Trafficking Team, a 23- person unit dedicated to investigating trafficking cases, is now charged with determining whether a person is a trafficking victim. The AFP or other agencies might also locate trafficked women themselves through anti-trafficking operations initiated under the new package to combat people trafficking.
Trafficking victims on these visas are eligible for the Victim Support Program (VSP), which is managed through the Australian Government Office for Women (OfW) and case-managed since 2004 by Southern Edge Training (SET). Between January 2004 and January 2005, 30 women entered the program, and 22 were still receiving support at the time of writing. The support services offered include access to Medicare, accommodation assistance, social support (such as counselling), training, and (if eligibility requirements are met) Special Benefit and Rent Assistance. Legal assistance to women in the Victim Support Program is to a maximum of three funded appointments with independent advisors, in which context they can seek immigration advice from a registered migration agent or lawyer. Outside these three sessions, the Director for Public Prosecutions provides all other information about court procedures and legal rights, and advice about migration status is provided by DIMIA. Individual SET case managers are responsible for ensuring the appropriate delivery of these support services for their clients.18
The recent changes outlined above have led to an increase in prosecutions, and enabled some trafficked women to be provided with the support they need to re-gain independence. The Government's commitment to better address the prevalence and human costs of trafficking through the allocation of significant funding and the design and intent of the Action Plan has been thoroughly welcomed. There remain, however, two areas that anti-trafficking organisations such as Project Respect and the Coalition Against Trafficking in Women Australia (CATWA)19 are keen to have reviewed. The first relates to service provision for victims, where the view of Project Respect and CATWA is that services should be provided by an organisation with specialist experience in responding to women who have been victims of violence. Project Respect and CATWA argue that an in-depth knowledge of the impact of violence on women would allow for more effective support and advocacy for victims of trafficking.
A further concern is that a balance between a prosecution-based criminal justice response to trafficking and one that takes greater account of the needs of the victims has not yet adequately been struck. Representatives from several nongovernment organisations have noted that there are still no protections for victims who are no longer contributing to a police investigation as they are either too afraid of their traffickers, or do not have enough information to assist police with a prosecution (Costello 2004; Maltzahn 2004; Mazzone 2004). Victims must "make a significant contribution to, and cooperate closely with, the prosecution or investigation of a person who has trafficked others" (DIMIA 2005). As trafficking is not, in itself, considered a form of persecution under refugee laws, women who do not have adequate information, or who cannot cooperate for fear for their own or their family's safety, face deportation unless they can prove they are at risk of violence or other forms of persecution in their countries of origin. Following deportation, women may face the danger of being re-trafficked, or retributions from traffickers if they are even perceived as having cooperated with police.
The UN Working Group on Contemporary Forms of Slavery "calls upon states to ensure that the protection and support provided to the victims are at the centre of any anti-trafficking policy and to provide protection, assistance and temporary residence permits to victims that are not contingent on their cooperation with the prosecution of their exploiters, as articulated in Articles 6, 7 and 8 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children" (United Nations Office for the High Commissioner On Human Rights 2003: 22). According to Project Respect (2004), a prosecution-based criminal justice response also presents some of the same difficulties for victims of trafficking as it does for victims of sexual assault in local jurisdictions, especially in terms of discouraging others to come forward, or to seek support, and in potentially exposing them to a system of justice that has often ended up blaming the victim (2004).
As outlined above, over the last few years in Australia we have seen a great increase in migration-based responses to trafficking (focusing on regional cooperation, aid programs and issues of immigration), as well as criminal-justice based responses, focussing on legislative improvements and the provision of support for trafficking victims who participate in prosecutions). These are important steps, but, in addition to concerns about service responses raised above, feminist and human rights activists have also noted that these responses focus largely on the "supply" side of the equation. There is a growing insistence upon addressing the often invisibilised "demand" side: the men who buy trafficked women.
Article 9 of the Trafficking Protocol deals with the measures states should take to prevent trafficking. This focuses on addressing "root causes" of trafficking, including "demand". There have been two major interpretations of this word. The more conservative interpretation is that states should educate men who use prostitutes to distinguish between those who have been trafficked and those who have not, and to prosecute those buyers who knowingly use trafficked women. This approach is currently being undertaken in Britain. The second interpretation is that states should target demand for prostitution itself, as the same demand fuels supply of both trafficked and non-trafficked prostitutes, and that the men who use them are unable (and/or unwilling) to distinguish between them. The US State Department is of this view, and link causally the legalisation of prostitution to demand for sex trafficking: "Legalisation of prostitution expands the market for commercial sex, opening markets for criminal enterprises and creating a safe haven for criminals who traffic people into prostitution ... Legalisation simply makes it easier for them to blend in with a purportedly regulated sex sector and makes it more difficult for prosecutors to identify and punish those who are trafficking people." They also claim that "where prostitution has been legalised or tolerated, there is an increase in the demand for sex slaves and the number of victimised foreign women - many likely victims of human trafficking." (US State Department 2004b: 2).
This interpretation is supported by the UN Working Group on Contemporary Forms of Slavery, which "urges states to ensure that their policies and laws do not legitimise prostitution as the victims' choice of work, or promote the legalisation or regulation of prostitution" (United Nations Office for the High Commissioner On Human Rights 2003: 22), and is in line with the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. This approach has been taken up in Sweden, where prostitution is seen as a form of violence against women. Government-funded support services and exit programs are available to women in prostitution, and buyers are criminalised. The result, according to Gunilla Eckberg, Special Adviser to the Swedish Government on human trafficking, has been a decrease in trafficking for sexual exploitation (Eckberg 2001). In Australia, prostitution is regulated at the State/Territory level, and there is a growing tendency towards legalisation, which could be argued as undermining the possibility of addressing demand according to the latter interpretation. As mentioned earlier in this paper, the lack of further evidence-based research examining the effect of legalisation of prostitution on demand for trafficked women could be said to hamper theoretical and policy developments along this line.
More recently, the UN Commission on the Status of Women (CSW) at its Review and Appraisal of the Beijing Platform for Action (28 February-11 March 2005) noted that it is "convinced that eliminating demand for all forms of exploitation, including for sexual exploitation, is a key element to combating trafficking in women and girls" (CSW 2005: PP10), and calls upon governments to "undertake research on best practices, methods and strategies, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in women and girls, in particular to eliminate demand" (CSW 2005: OP2c). While the Commission does not provide a clear interpretation of how to address demand, it reflects an emerging trend to look at trafficking not just through the options (or lack thereof) available to trafficked women, but rather through the options available to the men who buy them, without whom trafficking would not exist.
Project Respect, in Australia, and the Coalition Against Trafficking in Women (CATW), internationally, have noted the need for women's services to work more closely with women in the sex industry generally, as "women in the sex industry sustain the same kind of injuries as women who are battered, raped and sexually assaulted" (Raymond, Hughes and Gomez 2001: 78). The most extensive international study of violence in prostitution to date has shown extremely high levels of physical violence (73 per cent) and rape (62 per cent) of women in prostitution, with 66 per cent suffering post-traumatic stress syndrome (regardless of nationality, place of prostitution, legality of prostitution or level of violence) (Farley, Baral, Kiremire and Sezgin 1998). It can safely be assumed that the levels of violence trafficked women experience will be even greater.
"Non-trafficked women in the sex industry have a real role to play in supporting trafficked women. Often they will be the only people trafficked women are in contact with who do not have a vested interest in maintaining their exploitation" (Maltzahn 2002a: 65). Yet all women in the sex industry suffer increased levels of rape and violence and are in need of support services. Research by the Prostitutes Collective of Victoria showed that respondents felt "out of touch with reality" and "different from other people, especially other women", with 64.2 per cent of women wanting to leave the industry (Noske and Deacon 1996: 11). According to Maltzahn, this means that, regardless of differing positions on prostitution, there is a need for greater outreach by services to women in the sex industry (Maltzahn 2002a).
Janice Raymond of Coalition Against Trafficking in Women believes that:
"Battered women's and rape crisis services need to expand their mission to include victims of the sex industry. Adequate resources from [US] Local, State and Federal Government need to be allocated for these additional programs and services" (Raymond, Hughes and Gomez 2001: 96).
Women in sex industries have long felt targeted and over-surveilled by law enforcement agencies, and some have raised concerns that anti-trafficking laws will increase this surveillance (Scarlet Alliance 2004). A recommendation that has wide support among all groups, again regardless of differing positions of prostitution, is that law enforcement should not target women, who have been trafficked and prostituted, as offenders. In their research on trafficking of women in the United States, Raymond and colleagues also outlined several legal issues equally applicable to trafficking here in Australia:
"Law enforcement and social service providers reported that the burden of proof needs to be shifted to the traffickers. Legislation must not allow traffickers to use the consent of the victim as a defence against trafficking. Law enforcement should be sensitive to the lack of options that women have who are trafficked" (Raymond, Hughes and Gomez 2001: 96).
Major developments in Australian Responses
|1999||Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 passed, the purpose of which is to create offences of slavery and sexual servitude, provide for penalties and repeal a number of old Imperial Acts currently in force in Australia relating to slavery.|
|26 September 2001||Puongtong Simaplee, aged 27, dies in Villawood Immigration Detention Centre. A mandatory “death in custody” inquest was told that she had been trafficked from Thailand to Malaysia, into prostitution, in 1986 at the age of twelve, and later to Australia. In 2001, immigration officers found her during a raid on a (legal) brothel, following which she was taken to Villawood as an illegal immigrant. A few days later she died from heroin withdrawal, weighing only 38 kilograms. The findings from the coronial inquiry were reported widely in the media, and the case was cited as one reason for the opening of the Parliamentary Joint Committee’s Inquiry into Trafficking in Women for Sexual Servitude (see below).|
|February 2002||Australia co-hosts (with Indonesia) the first Regional Ministerial Conference on People Smuggling,Trafficking in Persons and Related Transnational Crime in Bali (initiating what became known as the "Bali Process"). Ministers from 36 countries "pledged their commitment to enhancing regional cooperation to combat people smuggling and trafficking in persons", and established two Ad Hoc Experts' Working. Group I, coordinated by New Zealand, was established to "promote regional and international cooperation". Group II, coordinated by Thailand, was established to "strengthen legislative arrangements and law enforcement practices" (Department of Foreign Affairs and Trade 2005).|
|11 December 2002||Australia signs the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Trafficking Protocol), and later agrees to ratify it "once all domestic requirements for ratification have been met" (Commonwealth Attorney-General's Department 2004b: 86).|
|April 2003||Second Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime, at which ministers from 32 countries in the Asia-Pacific region endorsed the work of the two Ad Hoc Experts' Groups focusing on regional and international cooperation, and on legislation, law enforcement cooperation and document fraud (Department of Foreign Affairs and Trade 2005).|
|13 May 2003||A Parliamentary Current Issues Brief examines the lack of any prosecutions of traffickers under existing Commonwealth laws and comes to the conclusion that "Australia's emphasis on border control is working against the prosecution of traffickers and the human rights of trafficking victims" (Carrington and Hearn 2003). It explains how existing Australian policy and law will need to change to meet the UN Trafficking Protocol standards.|
|27 June 2003||Establishment of Parliamentary Joint Committee to examine the Australian Crime Commission's response to trafficking in women for sexual servitude. The Committee's terms of reference for the inquiry placed on the Parliamentary Joint Committee's website , and submissions were invited to respond to the following terms of reference. (1) the Australian Crime Commission's work in establishing the extent of people trafficking in Australia for the purposes of sexual servitude; (2) the Australian Crime Commission's relationship with the relevant State and other Commonwealth agencies; and (3) the adequacy of the current legislative framework. Thirty-nine submissions were received (also available on the above website). During the course of the Committee's enquiry, the government announced several major initiatives (detailed below).|
|2 July 2003||Australasian Police Ministers' Council meeting agrees that all law enforcement agencies should cooperate in the development of a National Action Plan to combat trafficking in women for sexual servitude, and to undertake a review of legislation, operational arrangements with DIMIA, and intelligence and information sharing practices across all jurisdictions.|
|13 October 2003||
Australian Government announces package to combat people trafficking of $20 million over four years. A media release outlined the following measures:
|17 December 2003||Bilateral Memorandum of Understanding (MOU) between Australia and Thailand is signed, covering the Asia Regional Cooperation to Prevent People Trafficking (ARCPPT), Project which is designed to support regional collaboration and strengthen "national capacities to apprehend and prosecute traffickers" (Commonwealth Attorney-General's Department 2003b).|
|18 December 2003||Special intelligence operation into the trafficking of people for sexual exploitation announced as one of the priorities for the Australian Crime Commission (ACC). This new Determination by the ACC Board "allows the ACC to use its special 'coercive powers' to gather further intelligence on this nationally significant crime . . . The ACC special intelligence operation will complement the investigations being carried out by the Australian Federal Police strike team. The AFP is working closely with the Department of Immigration on a number of people trafficking investigations and the work conducted by the ACC will provide assistance and input into these investigations" (Commonwealth Attorney-General's Department 2003c).|
|18 December 2003||Agreement signed between Australia and Cambodia as part of the ARCPPT Project enabling "substantial Australian assistance to Cambodia to fight people trafficking". It completes a round of agreements reached with Thailand, Cambodia, Lao PDR and Myanmar (Commonwealth Attorney-General's Department 2003d).|
|1 January 2004||
Legislation change (to immigration law) establishes two new visa subclasses for "witnesses" in trafficking cases: the Witness Protection (Trafficking) visas:
|2003-2004||Public Hearings in Sydney, Melbourne and Canberra to examine Australian Crime Commission's response to trafficking in women for sexual servitude, as part of the Parliamentary Joint Committee's inquiry.|
|March 2004||Introduction of the Surveillance Devices Bill 2004, "which, among other things, would enable surveillance devices to be used as part of the investigation into people trafficking and child sex tourism offences" (Parliamentary Joint Committee on the Australian Crime Commission 2004: 3).|
|April 2004||Trafficking victim support contract awarded to Southern Edge Training, as part of Support for Victims of People Trafficking Program (VSP) coordinated by the then Office for the Status of Women, funded by $20 million package to combat people trafficking (see above, October 2003).|
|June 2004||US State Department releases 2004 Trafficking in Persons Report, listing Australia as a country of destination "for a significant number of victims of severe forms of trafficking" (100 or more victims) for the first time (United States State Department 2004: 25).
Parliamentary Joint Committee on the Australian Crime Commission releases their Inquiry into the Trafficking in Women for Sexual Servitudereport (Parliamentary Joint Committee on the Australian Crime Commission 2004).
Australian Government launches Action Plan to Eradicate Trafficking in Persons, outlining "Australia's efforts in the four key areas of prevention, detection and investigation, criminal prosecution and victim support" (Commonwealth Attorney-General's Department 2004a). The Plan elaborates past measures announced with the $20 million package (see Oct 2003), such as the AFP "strike force" victim support program and the new visas for victims able to give evidence leading to prosecution (see 1 Jan 2004). One new measure is the development (in process) of an "Australian Policing Strategy to Combat Trafficking in Women for Sexual Servitude" by Commonwealth State and Territory police services.
An "exposure draft" of an amendment to the Criminal Code is publicly released for comment on the Attorney-General's department website. The purpose of the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 "is to comprehensively criminalise every aspect of trafficking in persons and to fulfil Australia's obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The Bill would amend the existing Division 270 of the Criminal Code, which criminalises slavery, sexual servitude and deceptive recruiting for sexual services. The Bill would also insert new Division 271, into the Criminal Code, which will specifically cover trafficking persons into and within Australia and debt bondage. The principal features of the Bill are as follows:
12 Katheleen Maltzahn clarified that: "In theory, these women were only compelled to work six days. Without income, however, they needed to earn money for their day-to-day needs somehow, and, as Glazner was prepared to pay them for the seventh day, the women worked this day. Once they had worked off the 500 jobs, they remained under contract for a further 12 months" (Maltzahn 2002a: 63).
13 She also pointed out that: "Furthermore, the judge 'joked' about free passes that had been seized and tendered as evidence (offering men a free service with the 'lady of their choice' - that is Glazner's trafficked 'contract girls'), stating that 'there are eight gentlemen of the jury - do we have eight freebies for them?'" (2001: 25). Marnie Ford's research, Sex Slaves and Legal Loopholes: Exploring the Legal Framework and Federal Responses to the Trafficking of Thai "Contract Girls" to Melbourne, Australia is an important resource on the prosecution of Glazner and its legislative implications.
14 Personal communication with Kathleen Maltzahn of Project Respect, 23 March 2005..
15 The approximate nature of these figures takes into account possible overlaps between cases (see Project Respect 2004 for further detail).
16 Project Respect describes these processes in the training program they developed to resource workers, policy makers and researchers about the experiences of trafficked women.
17 At the time of writing, 14 people have been charged under the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, and the cases are still before the courts. There have not yet been any verdicts for the interpretation of the legislation to be tested.
18 Personal communication with Libby Quinn, of the Office for Women, 9 March 2005.
19 Personal communication with Kathleen Maltzahn of Project Respect, 23 March 2005, and Sheila Jeffreys of CATWA, 30 March 2005.
The last decade has seen enormous growth in the trafficking of people, mostly in women, for the purposes of sexual exploitation. During the writing of this report, trafficking in people passed from third-largest to second-largest international crime with profits estimated to equal the trade in weapons (March Bell 2005). The United States Justice Department's senior special counsel for trafficking issues and civil rights has recently called it the number one human rights issue today (March Bell 2005). As the world tries to come to terms with the scale of trafficking, different, and sometimes conflicting, modes of analysis are being used to examine, understand and attempt to address it. Feminist analyses like that of Kathleen Barry's in her 1979 book Female Sexual Slavery were instrumental in exposing the extent of modern trafficking for sexual exploitation. Barry and other feminists framed this form of trafficking as a gendered issue of male violence against women long before current levels of economic globalisation and international migration led some analysts to search for explanations in these phenomena. Migration- and globalisation-based analyses add to our understanding of how international economic patterns have contributed to the increase in trafficking generally, but cannot alone explain why the majority of victims continue to be women, nor why prostitution is the "work" they are most often trafficked into.
Human rights groups have been slow to address trafficking as a human rights abuse, just as they have been more generally to recognise violence against women perpetrated by "private" individuals, such as intimate partner rape or domestic violence. However, a human-rights based analysis is now key to our understanding trafficking in terms of a violation of human dignity, autonomy and freedom, as well as an abuse of power. Along with feminist analyses, it enables an examination of the intersections of sex, race and class that make some people more vulnerable to abuse than others.
The United Nations Trafficking Protocol of 2000 supplied an internationally agreed-upon definition of trafficking for the first time, amid arguments over issues of "consent" which the drafters of the Slavery Convention eighty years ago would have found irrelevant and offensive. The idea that a person can legitimately "consent" to slavery-like conditions, and that this would mean they could not be trafficked or in servitude was repeatedly put forward particularly in reference to prostitution (this debate is indicated in, for example, the footnotes to early drafts of the Protocol, such as United Nations General Assembly 2000: 8). This indicates that the "exception" of sexual exploitation, compared to other forms of exploitation, remains strong: women are still seen as somehow implicated where sexual violations are concerned. Although the Trafficking Protocol clearly states that consent is irrelevant when various coercive means are used, this continues to be misinterpreted.
The Trafficking Protocol also gave governments a framework for addressing trafficking, requiring those who ratify it to have laws against trafficking and mechanisms for assisting victims. It also established the parameters for judicial cooperation and exchanges of information between countries. The Protocol recommends that State Parties "provide measures to provide for the physical, psychological and social recovery of victims" (United Nations 2000: Article 6.3), and that they "permit victims of trafficking in persons to remain in its territory" (2000: Article 7.1).
The Australian government is in the process of adapting domestic legislation and introducing policy to bring Australia into line with the Trafficking Protocol. An amendment to the Criminal Code to make trafficking in persons an offence is due to go before Parliament this year, and a national Action Plan has been established outlining initiatives in prevention, detection and investigation, criminal prosecution and victim support. Such efforts have been widely welcomed by non-government organisations and advocates of trafficking victims. It has been stressed that the new laws against trafficking will need to be applied in a way that does not treat women in prostitution as offenders (Scarlet Alliance 2004). A further concern raised by anti-trafficking organisations (CATWA 2003; Project Respect 2004) is that current victim support initiatives are limited to those victims of trafficking who are contributing to a police investigation. They note that, while support for all victims of violence, regardless of whether they wish to report to police or pursue prosecution, is taken as given in service responses to sexual assault and domestic violence, this is not the case for victims of trafficking. These concerns are almost universally shared by NGOs and advocates of trafficking victims, regardless of their modes of analysis of trafficking itself or of their position on prostitution (Jeffreys 2003; Maltzahn 2002b, 2003b; Scarlet Alliance 2003).
Anti-trafficking organisations consider that services, to all victims of trafficking, should be provided by established organisations with experience in responding to violence against women. They have also noted the need for both specialist services responding to sexual assault and domestic violence, as well as more generalist services such as those in the health sector, to engage more fully with women in prostitution. Finally, in addition to concentrating on the "choices" available to women victims of trafficking, there is a pressing need to look at the "choices" of the men who exploit them. Addressing demand is a basic, though often overlooked, element of the Trafficking Protocol.
As Brian Iselin, an ex-Australian Federal Police agent and now international expert on trafficking says:
"I will continue to fight for the recognition that to tackle trafficking for sexual servitude without tackling demand is a losing battle. All the expensive measures in the world will add up to nought unless there is an attitude change on the part of men to buying and selling women" (Iselin, quoted in Maltzahn 2004).
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Lara Fergus was a Research Officer with the Australian Centre for the Study of Sexual Assault at the Australian Institute of Family Studies.
Thanks to Kathleen Maltzhan from Project Respect, Libby Quinn from the Office for Women, and Sheila Jeffreys and Jennifer Oriel from the Coalition Against Trafficking in Women Australia for their time in providing information and feedback for this paper.
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