A response to sex trafficking Chicago style: follow the sisters, speak out.

• Author: Hoffer, Kaethe Morris

INTRODUCTION I. THE PALERMO PROTOCOL II. PROSTITUTION IN CHICAGO III. LEGAL AND POLICY DEVELOPMENTS IN CHICAGO AND ILLINOIS CONCLUSION INTRODUCTION

In 1992, the Michigan Journal of Gender and Law hosted a symposium entitled Prostitution: From Academia to Activism at the University of Michigan Law School. As the title suggests, the goal of the organizers was to support not just thinking about prostitution but doing something about it. I have long assumed that this commitment was relevant to Andrea Dworkin's decision to participate in the event, given that one of her contributions to the event was a speech in which she said,

The assumptions of academia can barely begin to imagine the reality of life for women in prostitution. Academic life is premised on the notion that there is a tomorrow and a next day and a next day; or that someone can come inside from the cold for time to study; or that there is some kind of discourse of ideas and a year of freedom in which you can have disagreements that will not cost you your life. These are premises that those who are students here or who teach here act on every day. They are antithetical to the lives of women who are in prostitution or who have been in prostitution. If you have been in prostitution, you do not have tomorrow in your mind, because tomorrow is a very long time away. You cannot assume that you will live from minute to minute. You cannot and you do not. If you do, then you are stupid, and to be stupid in the world of prostitution is to be hurt, is to be dead. No woman who is prostituted can afford to be that stupid, such that she would actually believe that tomorrow will come. (1) Ms. Dworkin went on to say that the premises of the prostituted woman were her premises, and she challenged as unacceptable--even unbelievable-what she saw as the premises of academic feminists who appeared to her to be content to treat prostitution as a subject worthy of thought and debate rather than action, opposition, and eradication. (2)

Ms. Dworkin's speech was a clarion call to eradicate prostitution. Her arguments put into words the truth lived by girls and women bought and sold for sex: prostitution and equality for women cannot exist simultaneously. For me, a law student at the time and now a lawyer for more than ten years, Ms. Dworkin's speech reads as a specific challenge to lawyers and academics seeking to use words and law to improve reality for women. While privilege, material comfort, and safety have always been the defining premises of my life, the premises underlying Ms. Dworkin's exposition of what prostitution is-confirmed time and again by other survivors from around the world-have been my adopted political premises. These premises compel me to seek ways to use words and law to end the abusive selling and buying of girls' and women's bodies for men's sexual pleasure, rather than to seek ways to improve prostitution or protect men's access to it.

Sadly, since 1993, "debates" about prostitution have raged with particular passion inside the ivory towers of academia and with sporadic and superficial attention in the mainstream media. More sadly still, the premises and conclusions of those who do not see prostitution as violence against women frequently have had a disproportionate influence on the development of U.S. law and policy. (3) On the other hand, those activists (survivors, academics, and lawyers included) who seek to make the premises of prostituted girls and women their own--and always to end abuse rather than to make it more palatable--have made critical headway in exposing and opposing prostitution. Specifically, in 2000, the United Nations and most of its member countries adopted a definition of sex trafficking that covers virtually all third-party involvement in prostitution. (4) And despite national domestic trends to the contrary, survivors, activists, and academics in Illinois are working together to eradicate prostitution--a practice rarely distinguishable from sex trafficking--by ending the demand for it. Recognizing the irony of participating in a debate on which I believe the conclusive words were uttered more than a decade ago, and with inexpressible gratitude for the survivors whose words and spirits echo in my ears and propel me forward, I aim to expose and argue in support of these related developments.

1. THE PALERMO PROTOCOL

   Since 2000, "trafficking" has had a very precise definition when applied to people. The definition is found in a document generally referred to as the "Palermo Protocol." (5) The Protocol's definition is widely regarded as the world's standard trafficking definition, and many believe that U.S. law and policy follow the understandings of prostitution and trafficking embodied therein. (6) U.S. law, at both the state and the federal levels, ought to manifest the definition of trafficking adopted at Palermo, particularly because the United States is a party to the Protocol and to the Convention the Protocol supplements. (7) Unfortunately, most U.S. federal and state sex trafficking laws seem to be written or applied to directly contravene what lies at the heart of the Palermo Protocol: opposition to the exploitation, particularly sexual exploitation, of vulnerable human beings, even when the trafficked person has willfully participated in or "consented" to the forms of exploitation proscribed under the Protocol. (8)

   The Palermo Protocol's adoption in 2000 followed a multiyear struggle within the United Nations that was largely characterized by a battle between "supply side" countries (countries where poverty and desperation serve to "push" girls and women into emigration streams and the sex industry) and "demand side" countries (developed countries where financial profit encourages pimps and traffickers to "pull" impoverished foreign-born girls and women into their sex industries). (9) On the "supply side" were most of the United Nations' members, including the majority of the world's underdeveloped or impoverished countries, which double as the countries of origin of most internationally trafficked girls and women. These countries--in collaboration with feminist abolitionists from within their countries and elsewhere--sought a definition of trafficking that would proscribe most pimping activities and that would not be limited to criminalizing those actors who use "force, fraud, or coercion" to obtain and keep people in prostitution. (10) The opposition was a much smaller, but very powerful group, of mostly "demand side" countries--including the United States, the Netherlands, and Germany--which formed alliances with nongovernmental organizations (NGOs) to promote the idea that antitrafficking laws should only be concerned with prostitution where pimps and other facilitators use force or fraud to stock and maintain their brothels. Most of these NGOs and countries--including representatives of U.S.-based NGOs and the U.S. government--fundamentally promoted the view that "nonforced" prostitution should be treated as a type of labor, rather than as a symptom and practice of abuse and inequality. (11) Ultimately, the "supply side" countries, in collaboration with feminist abolitionists, prevailed, making the Palermo Protocol the modern-day high-water mark of global efforts to internationally criminalize pimping and to shift attention from the "choices" of the prostituted to the actions of those who profit from the sexual consumption of girls and women. (12)

   According to the Palermo Protocol, "[t]rafficking in [p]ersons" is the "recruitment, transportation, transfer, harbouring or receipt of persons ... for the purpose of exploitation," by certain specified means. (13) "Exploitation" includes not only forced labor, slavery, and servitude but also "the exploitation of the prostitution of others or other forms of sexual exploitation." (14) The prohibited "means" include threat or use of force, fraud, and "the abuse of power or of a position of vulnerability." (15) The Protocol says that the consent of a victim to the intended exploitation is irrelevant to the question of whether or not trafficking occurred. (16) The Protocol also gives critical substance to what is meant by "vulnerability," by specifying that "States Parties shall take or strengthen measures ... to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment, and lack of equal opportunity." (17)

   This bears repeating: the Protocol, which nowhere demands that jurisdictional lines be crossed to traffic, says trafficking occurs when people abuse "power" or "position[s] of vulnerability" to recruit, transport, transfer, harbor, or maintain others in ways that exploit their prostitution or for the purpose of exploiting them through prostitution. (18) Further, it says that poverty itself constitutes a vulnerability to trafficking. (19) In language that is quite plain--particularly by United Nations standards--the Protocol says that even if or when people "choose" to engage in prostitution, those profiteers who take advantage of desperation and inequality to recruit, transport, transfer, harbor, or maintain girls and women into and in prostitution for their own benefit are traffickers and should be treated as criminals. (20) The Protocol intentionally shifts the focus of antitrafficking laws from the willingness of those whose bodies are sold for sex to the actions of those people who profit from the prostitution of others and who take advantage of poverty and other vulnerabilities to keep the sex industry staffed. Fundamentally, the Protocol is written to prevent pimps from having access to the "she wanted it" defense--a defense that has an all-too-familiar power to anyone who is attentive to the prosecution (or lack thereof) of crimes against women generally. Through this definition, which captures virtually all third-party involvement in prostitution, the Protocol...