Human trafficking and labor migration: the dichotomous law and complex realities of Filipina entertainers in South Korea and suggestions for integrated and contextualized legal responses.

• Author: Shin, Yoon Jin
• Position: IV. Analysis of Current Legal Responses B. Judicial Practice in Korea in the Context of Human Trafficking: Denial of Victimhood through VI. Conclusion, with footnotes, p. 787-812

2. Judicial Practice in Korea in the Context of Human Trafficking: Denial of Victimhood

   1. Judicial Practice

      The Korean government does not collect official data on human trafficking and has not officially admitted the existence of transborder trafficking cases in Korea. Since the start of its work in July 2009, My Sister's Home has assisted more than twenty Filipina entertainer clients in filing criminal accusations against their employers under charges of human trafficking and coercion of prostitution. Since My Sister's Home is the only NGO of its kind in Korea to which the police and other NGOs refer their relevant cases, it has assisted in most judicial cases regarding Filipina entertainers in Korea for the last five years. However, none of these efforts has been successful, with each case being dropped by prosecutors. Only two club owners were prosecuted and convicted under a minor charge of "arranging voluntary prostitution," which resulted in minimal sentences with probation.

      The following section examines the actual decisions and rationales of the prosecutors and courts in Korea that acquitted the employers of the entertainers. The analysis hopes to shed light on the problems that are not uncommon in other jurisdictions as well.

      1. Fictional Dichotomy and "Misuse of Agency"

         In most cases, the police and prosecutors fail from the very beginning to treat an individual entertainer's accusations as a human trafficking case. In fact, Filipina entertainers often do not seem to fit into the typical image of trafficking victims. They have migrated through the regular visa system without force or coercion. They were free to make phone calls, and they could sometimes leave the premises on their own. In all the cases in which My Sister's Home has assisted, prosecutors and courts acquitted promoters and club owners from the charges of human trafficking and coercion of prostitution, basically for the reason that the entertainers did not look like "victims." Their rationales include the following: (129)

         (1) "The entertainer has worked in two foreigner-only clubs for quite a long time. There were opportunities for her to run away when she went out for 'bar fine' with customers or when she was moved to the second club. But she did not escape at those times. It suggests she worked there out of her own will."

         (2) "The entertainer worked in Club A, then moved to Club B after two months and moved back to Club A. The Court does not understand how she could move back to Club A if there was prostitution in that club and she did not like it." (130)

         (3) "There is lack of evidence that the club owner locked the victim's dormitory from the outside." "The victim stated she did not try to go outside of her dormitory because she did not know Korean and did not have any money." (131)

         (4) "Although there was a juice quota system at the club, the owner only yelled at her occasionally, and did not beat her."

         (5) "The entertainer's allegation about coercion of prostitution at her club is suspicious because the club owner does not speak English." (132)

         (6) "The entertainer had received a couple of presents from GIs such as a cell phone and a necklace while she was working in the club."

         (7) "The entertainer seems to have led a relatively free life, writing a message on her Facebook and meeting GIs outside the club." (133)

         (8) "The promoter stated that the entertainer had begged him to help her go to Korea and that he had told her she would have to entertain customers by ways other than singing. Thus, she cannot be regarded as 'deceived' in the course of her migration."

         (9) "It seems that she voluntarily chose bar fine because of the juice quota system [in order to earn more points to get a bonus]."

         These examples demonstrate how a narrow perspective on human trafficking and the stereotype of trafficking victims actually affect judicial practice. As rationales (1), (2), (3) and (4) indicate, if an entertainer was not locked inside the premises, did not try to escape, or was not physically assaulted, she is most likely viewed as a voluntary prostitute or hostess by law enforcement authorities. Important circumstantial factors such as passport confiscation, subordinated immigration status, the threats of debts and penalties, restriction in daily life and freedom, abusive juice quota and bar fine systems, and the use of an entertainer's unfamiliarity with Korea are not considered elements of coercion. Rationales (5) and (9) also reveal unsophisticated views of coercion, disregarding circumstantial constraining factors. As rationales (6) and (7) show, a sign of intimate relationships with GI customers or of freedom in daily life is another major ground for prosecutors and courts to deny an entertainer's victimhood and to reject the credibility of their statements. In other words, the entertainers do not seem helpless enough to be victims. Rationale (8) is the only case in which a prosecutor mentioned an element of human trafficking--deception--even briefly. To the prosecutor, the fact that the entertainer was allegedly informed that she would engage in works other than singing signaled she was not innocent enough. Her vague expectation of working beyond the scope of her visa was sufficient to disqualify her for a status as a victim, even though she was not informed of important job conditions and actually experienced abuse and exploitation.

         The above-cited examples illustrate how actual legal practices are based on and reproduce a fictional dichotomy between human trafficking and voluntary migration. The law adheres to a mutually exclusive framework of helpless and innocent victims versus voluntary migrants and takes opposite approaches of "protecting victims" and "punishing unlawful migrants." This practice disregards the fact that individuals in both groups could commonly experience victimization resulting from abusive migration and labor conditions but, at the same time, possess the agency of pursuing their own transnational migration projects.

         The dichotomous law intervening with overlapping, ambiguous and complex realities becomes particularly dangerous when the question is not just whether a migrant is a victim or not, but whether she is a victim or criminal; and when this dichotomy is combined with a narrow and fictitious victim stereotype. (134)

         Ironically, law enforcement authorities and the judiciary in Korea are eager to search for evidence of an entertainer's subjectivity and autonomy, rather than evidence of her vulnerabilities or victimhood, when interrogating the entertainer about her migration processes and workplaces. This is not of course out of respect for her agency but in order to find grounds to deny her victimhood and the consequent legal protections. Under this framework, any indication of agency by Filipina entertainers pursuing their migratory aspirations will disqualify them from claiming victimhood and make them subject to punishment and deportation. (135)

         This practice, "misuse of agency," presents hardships for entertainers and their advocates who endeavor to achieve justice without compromising the truth. This practice works as an effective tool for governmental authorities to attribute all the negative consequences of migration to the entertainer's own decisions. (136) This rationale of incriminating victims helps destination states evade responsibility to address human and labor rights violations committed in their territories through their legal systems. (137)

      2. Prevalent Prejudice Against Filipina Entertainers

         Prejudice against Filipina entertainers as "undeserving foreign prostitutes or hostesses" is prevalent among law enforcement authorities and within the judiciary. They expect victims to be helpless and innocent and so to be "deserving" and trustworthy. (138) Judging based on the prejudice against the entertainers often results in rejecting the credibility of their overall statements. Below are a few examples:

         (1) "The Filipinas still working in the club stated that the accuser [entertainer] and some other Philippine girls ran away from the club in order to get married to GIs."

         (2) "The accused club owner stated that the accuser arbitrarily ran away from the club and then filed a false accusation in order to extend her stay in Korea."

         (3) "The statement of the Mamasan [a Korean senior woman manager] in the club seems to be the most credible one. She stated that the Filipinas tend to file false accusations, advised by the NGO, in order to stay in Korea longer, and that the NGO encouraged Filipinas to file a false accusation in order to get governmental subsidies for their shelter."

         (4) "Many Filipinas try to stay in Korea as long as possible to earn money and to get married to GIs. Although the accuser arbitrarily left the club, her deportation was postponed because she filed this suit. She also got her unpaid salary back and is still staying in Korea until this sentencing day, which shows the typical behavior of Filipinas and makes her motivations for this accusation very suspicious." (139)

         (5) "All the Filipinas who are currently working in the accused club made the same statements as the accused club owner, saying that there was no prostitution in their club."

         Rationales (1) to (4) expose how a general prejudice against Filipina entertainers damages the credibility of an individual entertainer in judicial procedures. Filipina entertainers are suspected of filing false accusations in order to stay longer in Korea or to get married to GIs. My Sister's Home is even suspected of assisting false accusations to receive governmental subsidies. The judge in rationale (4) blatantly expresses his overt bigotry toward Filipina entertainers. Although filing a criminal complaint and receiving unpaid wages are legitimate exercises of the entertainer's legal rights, the judge used this very fact as a ground to undermine her credibility.

         At the same time, as in rationales (1) and (5), the police and...