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Domestic sex trafficking and the punitive side of anti-trafficking protection

Despite efforts to automatically label teen and youth sex workers as ‘victims’ of trafficking, and thereby prevent their prosecution, their often extensive interactions with the legal system continue to leave lasting marks.

English sex workers protest being targeted by 'anti-social behaviour' laws in 2013. See Li/Demotix. All Rights Reserved.

Domestic sex trafficking is a decidedly American invention. Legally codified in federal and several other state laws, sex trafficking in general and domestic minor sex trafficking (DMST) in particular rebrands an old trend—underage children and teens’ forced involvement with commercial sex—and reframes it as a form of modern day slavery. While prostitution facilitated by pimps or other third party actors isn’t new per se, what is novel is the viewpoint that sex trafficking, which includes but isn’t limited to American youth and teen girls, is a localised manifestation of a global forced labour problem. Equally recent is the idea that anti-sex trafficking initiatives have the capacity to produce more ‘victim centred’ results than criminal justice interventions of the past.

Over the course of the last six years, I have researched the evolution of domestic sex trafficking in the United States and tracked different state and non-state collaborative interventions authorised in its name. What has emerged is that youth deemed ‘at risk’ of domestic sex trafficking may be arrested, charged or placed in detention in order to be protected by law enforcement. Relatedly, many adults are only recognised as victims of sex trafficking after they have been processed as criminal defendants, a problem acknowledged by the existence of special court initiatives to identify “defendants who have been trafficked.” These are initiatives pitched as alternatives to more typical criminal justice responses like arrest, detention, and prosecution, yet they still situate the criminal justice system as the main conduit through which victims of domestic sex trafficking gain access to services, programmes and some modicum of protection.

There is growing recognition among anti-trafficking actors, particularly with respect to youth, that calling kids victims in name but continuing to treat them like juvenile offenders is deeply flawed. One response has been for many states—28 so far—to implement some version of Safe Harbor laws. ‘Safe Harbor’ refers to laws that recognise youth as victims and aim to bring state laws “into line” with the federal Victims of Trafficking Victim Protection Act. Another response has to do with language, and one recent effort has sought to change how we talk about sex trafficking situations involving youth. In January 2015, selected advocacy groups in the United States along with members of Congress launched the “No Such Thing” campaign, an effort that seeks to change the treatment of victims of child sex trafficking by calling for the eradication of “the term ‘child prostitute’”. The campaign links a shift in language to changes in how youth are legally treated, implicitly suggesting that referring to girls as ‘trafficked’ rather than ‘child prostitutes’ will set the stage for their treatment as victims rather than offenders.

I welcome a change in how we talk about youths’ experiences with exploitation, no matter its form. I also wholly agree that a departure from the current paradigm, in which youth in some jurisdictions may be subject to some version of a detention-to-protection pipeline, is desperately needed. Yet whether passing more laws or striking ‘child prostitute’ from the vernacular will substantively change to how youth are treated remains to be seen, especially if such efforts aren’t accompanied by a critical evaluation of the ‘trafficking’ part of the equation and the interventions it has produced.

Indeed, for all of the recent claims that terms like ‘sex work’ and ‘child prostitute’ mask conditions of exploitation assumed to undergird all commercial, transactional, and survival sexual arrangements, it is striking that a commensurate degree of public outcry has not been lodged against the fraught term ‘trafficking.’ Equally troubling is that collective concerns haven’t been raised about anti-sex trafficking campaigns’ attachment to carceral feminist sensibilities, or about the uneven and sometimes punitive effects that anti-sex trafficking efforts have on migrants, voluntary sex workers, and now domestic youth and adults in the United States.

If there is a language change I’m calling for it is for students of forced labour and exploitation to become more fluent in speaking the language of collateral consequences. Criminologists and sex workers’ rights groups use the term collateral to frame the effects of the carceral state and anti-sex trafficking initiativesMany scholars of the U.S. carceral state have focused on the collateral consequences of mass incarceration on individuals and communities, particularly communities of colour. Similarly, sex workers’ rights groups have pointed to the collateral impact of anti-trafficking efforts on migrants who have endured ‘rescue’ raids, shelter-detention, and, more generally, born the punitive brunt of anti-trafficking laws. People now seen as at-risk of domestic sex trafficking in the United States must similarly contend with the collateral consequences of the criminal justice system, criminal convictions, and the anti-trafficking interventions designed to help them.

For example, youth may be referred to anti-sex trafficking initiatives through an arrest, which introduces them into the system and opens up access to services or specialised programming. Even though this may not lead to a prosecution per se, it may still produce a criminal record that cannot be expunged, to use a legal postconviction term, without extensive effort. As an August 2014 Congressional Research Report on domestic sex trafficking explains:

These [diversion] programs generally defer prosecution on the condition of successful completion of a treatment program. At that point, charges may be reduced or dismissed. This may or may not involve records being expunged” (emphasis mine).

Though new anti-trafficking programmes appear, on the surface, to depart from more punitive juvenile justice interventions of the past, the devil is in the details. Even when youths are recognised as victims of domestic sex trafficking, their protracted involvement in the justice system may still result in criminal records. Their status as victims may not protect them from the consequences of this, including limits on “future education, employment, housing, financial, and other life opportunities.”

I agree that it is time to move beyond trafficking and to address its structural roots.  In the interim, attention to domestic sex trafficking in the United States presents a timely opportunity to take stock of the collateral consequences the current framing has had on those migrants and domestic populations most directly affected, and to cultivate less punitive ways of interacting with them. This is crucial, as at the end of the day the purpose of anti-trafficking is to ameliorate systems that make people vulnerable to exploitation. This includes challenging the laws, systems, language and state-sponsored interventions that fail to adequately protect people in the first place.

This article draws upon insights from a previously published article “Domestic Sex Trafficking and the Detention-to-Protection Pipeline,” Dialectical Anthropology, 37.2 (2013): 257-276, and a forthcoming book by Jennifer Musto, To Control and Protect, under contract with the University of California Press for release in 2016 

About the author

Jennifer Musto is an assistant professor of Women's and Gender Studies at Wellesley College. She is the author of the forthcoming book To Control and Protect from University of California Press. Learn more about Jennifer from her website or follow her on Twitter @jlynnemusto.


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