Under U.S. law, sex trafficking is defined as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act." (1) To be punishable, the offense must involve a "severe form" of trafficking involving (1) a person under age eighteen who has been induced to perform a commercial sex act or (2) an adult who has been so induced by the use of "force, fraud, or coercion." (2) Adults who sell sex willingly, with some kind of assistance, are not considered trafficking victims under U.S. law. (3) Trafficking that involves underage persons or adults subjected to force, fraud, or coercion is a serious violation of human rights, and the growing international awareness of the problem and efforts to punish perpetrators and assist victims are welcome developments.
But there is also a parallel story--a robust mythology of trafficking. While no one would claim that sex trafficking is fictional, many of the claims made about it are wholly unsubstantiated. This Article offers a critique of the paradigm responsible for this mythology, a perspective that has become increasingly popular over the past decade. This oppression paradigm depicts all types of sexual commerce as institutionalized subordination of women, regardless of the conditions under which it occurs. (4) The perspective does not present domination and exploitation as variables but instead considers them core ontological features of sexual commerce. (5) I will contrast this monolithic paradigm with an alternative--one that is evidence-based and recognizes the existence of substantial variation in sex work. This polymorphous paradigm holds that there is a broad constellation of work arrangements, power relations, and personal experiences among participants in sexual commerce. Polymorphism is sensitive to complexities and to the structural conditions shaping the uneven distribution of workers' agency and subordination. Victimization, exploitation, choice, job satisfaction, self-esteem, and other factors differ between types of sex work, geographical locations, and other structural conditions. Commercial sexual exchange and erotic entertainment are not homogeneous phenomena. (6)
A growing number of researchers have challenged the oppression model's claims, yet their criticisms have yet to gain serious attention from American lawmakers. This Article (1) analyzes the claims made by those who embrace the oppression model, (2) identifies some legal and policy implications of this paradigm, and (3) offers an evidence-based alternative. (7) The analysis pertains to both sex trafficking and to sexual commerce more generally.
THE OPPRESSION PARADIGM
Many of the leading proponents of the oppression paradigm are affiliated with organizations committed to eradicating the entire sex industry, such as Prostitution Research and Education, Standing Against Global Exploitation (SAGE), Stop Pom Culture, and the Coalition Against Trafficking in Women (CATW). (8) What unites them is their staunch advocacy of the oppression paradigm and political commitment to prohibition of all sexual commerce and adult entertainment.
Oppression writers have been roundly criticized for violating standard canons of social science inquiry and for viewing sex work through a monochromatic lens. (9) Despite this criticism, proponents rigidly adhere to the central tenets of their paradigm, even when confronted with compelling counter-evidence. (10) Moreover, most oppression writers restrict their citations to writings of like-minded authors and ignore research findings that contradict the pillars of their paradigm. (11) Such inconvenient findings are plentiful. (12) Scientific advancement depends on researchers' due diligence in weighing findings and arguments that challenge their own: It is standard practice to situate a study within the related scholarly literature. Oppression writers' neglect of relevant research is a radical departure from conventional scholarly writings. And on those rare occasions when contrasting work is cited, the findings have sometimes been distorted or even inverted by the author. (13)
The oppression model is grounded in a particular branch of feminist thinking: radical feminism. It differs from the religious right's objections to commercial sex, which center on the threat it poses to marriage, the family, and society's moral fiber. (14) The oppression paradigm's central tenet is that sexual commerce rests on structural inequalities between men and women and that male domination is intrinsic to sexual commerce. (15) Women would not be compelled to sell sexual or erotic services if they had the same socioeconomic opportunities as men. Moreover, the very existence of prostitution suggests that men have, according to Carole Pateman, a "patriarchal right of access to women's bodies," thus perpetuating women's subordination to men. (16) Another writer declares that prostitution "dehumanizes, commodities and fetishizes women.... In prostitution, there is always a power imbalance, where the john has the social and economic power to hire her/him to act like a sexualized puppet. Prostitution excludes any mutuality of privilege or pleasure...." (17) Oppression theorists argue that these fundamental harms will endure no matter how prostitution, pornography, or stripping are governed; legalizing these practices (where currently illegal) in order to reduce harms will not lessen the gender inequality that is intrinsic to sexual commerce. Domination will persist simply by virtue of men's paid access to women's bodies. (18)
Champions of the oppression paradigm frequently make extravagant claims about commercial sex as an institution, the participants in paid sex transactions, the nature of sex trafficking, and the effects of different kinds of laws. To drive home the seriousness of the problem, advocates often link prostitution to a host of violent crimes--calling it "domestic violence," (19) "torture," (20) and paid rape (21)--and demonizing customers as violent misogynists:
* "Sexual exploitation includes sexual harassment, rape, incest, battering, pornography and prostitution." (22)
* "This naming [as sex predators] is important since it places men who buy sex in the same category as rapists, pedophiles, and other social undesirables." (23)
* "The difference between pimps who terrorize women on the street and pimps in business suits who terrorize women in gentlemen's clubs is a difference in class only, not a difference in woman hating." (24)
Some advocates of the oppression paradigm simply make pronouncements, like the above, without offering any empirical evidence. (25) Other oppression writers, however, try to support their claims with some kind of evidence. Both approaches are present in the oppression-based literature on sex trafficking.
THE POLITICS OF TRAFFICKING
In order to further discredit the practice of prostitution and delegitimize systems where prostitution is legal and regulated by the government, oppression writers have fused prostitution with sex trafficking. (26) Donna Hughes claims that "most 'sex workers' are or originally started out as trafficked women and girls." (27) She then calls for "re-linking trafficking and prostitution, and combating the commercial sex trade as a whole." (28) There is no evidence that "most" or even the majority of prostitutes have been trafficked. It is important to recognize that as recently as fifteen years ago, trafficking was not a routine part of the discourse regarding prostitution. (29) Today, several analysts argue that prostitution has been socially constructed in a particular way through the trafficking prism and that there is no objective equivalence between the two. (30) Prostitution involves a commercial transaction and trafficking is a process whereby a third party facilitates an individual's involvement in sexual commerce. There is plenty of prostitution by independent operators that does not involve trafficking. (31) And such independent enterprises may be growing with the help of internet-facilitated connections between sex workers and clients.
Some oppression writers are quite candid about their political reasons for linking trafficking with prostitution. Melissa Farley declares, "A false distinction between prostitution and trafficking has hindered efforts to abolish prostitution.... Since prostitution creates the demand for trafficking, the sex industry in its totality must be confronted." (32) The first sentence reveals that the ultimate goal is not the elimination of trafficking but rather the elimination of prostitution. Regarding the second sentence--asserting that "prostitution creates the demand for trafficking"--there is no compelling reason why prostitution would necessarily "demand" trafficked participants (if trafficking is defined as involving deception or force) or even willing migrants, and why it could not draw from a local pool of workers instead. In some places the local pool may be shallow and require migrants to meet demand, but this would not be sufficient to justify Farley's claim regarding prostitution in general.
Despite the problematic way in which oppression writers have constructed trafficking, they have been remarkably successful in rebranding trafficking in a way that implicates all sex work. As one analyst wrote, the prohibitionists have "successfully transformed the 'anti-trafficking' movement into a modern, worldwide moral crusade against prostitution." (33) The prostitution-trafficking connection was fully embraced by the Bush administration, illustrated by the State Department's webpage The Link Between Prostitution and Sex Trafficking, which claimed, inter alia, that prostitution "fuels trafficking in persons" and "fuel[s] the growth of modern-day slavery." (34) The prohibitionist portrayal of trafficking clashes with an alternative, socioeconomic model that views trafficking as "a complex...
Sex trafficking and the sex industry: the need for evidence-based theory and legislation.
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