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Centring the state in our critiques of trafficking

Prevailing accounts of a division between sex work and ‘trafficking’ obscure the routine fact of economic compulsion and exploitation, and their basis in the law. We must centre immigration law as part of more ambitious political enquiries and actions.

Sex workers protest for their rights in London. Camille Gazeau/Demotix. All Rights Reserved.

The relationship between ‘trafficking’ and prostitution is far from clear. The definitions found in international law (the 2000 UN Trafficking Protocol) and UK law (the Sexual Offences Act 2003) are broad enough to encompass the radical feminist view that prostitution is trafficking. However, the more dominant approach is narrower. According to this view, migrating or being smuggled to a destination to work in the sex industry is different to ‘sex trafficking’, and the exploitation and unfreedom experienced by ‘sex slaves’ is different to that facing sex workers. Coerced movement that includes violence or its threat, plus severe economic exploitation, draw the line between unfree and free sex work. While it is acknowledged that making these distinctions is ‘tricky’, I am told that it remains crucial to do so. As research conducted by Julia O’Connell Davidson and others indicate, this is also the approach of those tasked with enforcing anti-trafficking law in the UK.  

Others are more critical of anti-trafficking law and policy but nevertheless affirm it. Largely in response to radical feminism, those supportive of sex workers’ rights insist there is a distinction to be made between ‘victims’ and ‘non-victims.’ Nick Mai argues that 87% of the migrant sex workers in his 2009 study were free workers, and that a similar ratio exists in the sex industry in general. Based on interviewee responses, Mai argues that only 13% experienced sexual and economic exploitation, in conditions that ranged from no consent through to relatively consensual arrangements. With due respect for Mai’s desire to challenge the pull of radical feminist orthodoxy, the conclusion that 87% of migrant sex workers are ‘free’ is as obfuscating as the suggestion that 100% of prostitutes are victims of male sexual violence.

Binary Thinking, Coercive Realities

The ‘acts’ listed in the UN Trafficking Protocol include movement, transportation, and recruitment. It is therefore not the ‘act’ of trafficking that allows a distinction to be made between trafficking and smuggling. Rather, the ‘means’ and ‘purpose’ of the movement, recruitment, etc. should draw the line. In short, for a sex worker to be viewed as trafficked rather than smuggled, it must be proven that s/he did not choose to move or be recruited, but was induced with force, deception, or the abuse of vulnerability. It must also be proven that s/he has been exploited, is working in unfree conditions, and that his/her treatment is connected to those who facilitated her travel. This means that those who would employ the idea of ‘trafficking’ must not only decide what constitutes force in both the transit and labour stages. They must also accept that the distinctions they make will delineate victims deserving of (paltry) protection from non-victims undeserving of protection (who will be deported or removed if they do not have legal status).

Any person facing labour compulsion (the compulsion to access a wage to subsist) can be described as coerced by the alternative, or to have freely chosen the lesser evil. Some ‘forced choices’ will be far harsher than others, but as Robert Steinfeld argues ‘there are no logical grounds for saying that the performance of labor in one case is coerced and in the other it is voluntary’. In fact, how society draws the line between free and unfree (sex) work depends on what kind of coercive pressures are regarded as legitimate or illegitimate. Many argue that trafficking law and policy should, on the one hand, address extreme forms of forced, physical movement. On the other, it should cover labour extracted under the threat of severe, physical and psychological violence, or the deprivation of wages. But surely a much wider array of pressures—including economic compulsion, appalling wages, and stated-based violence or its threat—are also unacceptable.

Borders and Immigration Law

It is well documented that ‘trafficking’ emerged as part of a concern with irregular migration and organized crime. This is why governments prioritize border control and the creation of criminal laws when tackling ‘it’. Although attention has been drawn to how border controls facilitate trafficking (and the exploitation of migrant workers in general), the hegemonic view is that borders are a vital source of humanitarian protection for trafficked victims (and migrant workers). The development of international human rights protections provides another example of the prioritisation of border control. International protections are increasingly being drawn upon to extend protection to migrant workers, who are often unprotected by national labour laws. However, Article 4 of the European Convention of Human Rights, which prohibits slavery, servitude and forced labour, is being interpreted as putting a ‘positive obligation’ upon member states to strengthen borders to challenge trafficking.

We need to shift our focus from trafficking to immigration law, which, as a structural coercive pressure, regulates categories of entrant, impacts upon relations with ‘managers’, and affects treatment in the workplace. It also governs access to public funds, as well as the removal and deportation migrants who fail to economically integrate or whose presence is otherwise found to be non-conducive. In short, these restrictions limit the alternatives available to both irregular and legal migrant sex workers, and thereby increase the risk and extent of exploitative working conditions, and both violent and economic compulsion.

Immigration law puts many sex workers migrating from outside the European Economic Area (EEA) in a highly precarious position. At the same time, workers from inside the EEA find their labour market options limited to ‘low skilled’, nominally self-employed, poorly protected sectors, such as sex work. Only recently have the restrictions been lifted on A8 and A2 nationals, but they will remain imposed on Croatian nationals for the next seven years. And any EEA national that is unable to prove that s/he is ‘economically active’ (which could include, for example, not registering as self-employed, or being homeless) in the UK can be removed, according to the 2006 EEA Immigration Regulations. Between 2006 and 2012, 1565 removals were recorded, largely of ‘inactive’ Romanian nationals. As part of a Freedom of Information request I asked what percentage of those served with notice or removed were involved in prostitution. This was rejected on the basis that it would be too costly to gather the information.

Bringing the State back in (and anti-trafficking law and policy?)

‘Trafficking’ relies on binaries that do not exist in reality, and is bound up with border control and criminalisation. Even if it could be wrested from this agenda, the concept of trafficking covers too broad a range of experiences to be useful for mapping and responding to the forms of exploitation and unfreedom faced by migrant sex workers.

We need ask: What ‘forced choices’ are acceptable and unacceptable in sex work? This can only be answered by asking many other structural and political questions. What constitutes exploitative and alienating sex work? How do we understand the economic compulsion faced by sex workers under contemporary capitalist social relations, and what is the role of debt? What is the extent of physical and psychological compulsion in the workplace? How do patriarchy and racism intersect with economic compulsion and violence? How does immigration law (re)produce these conditions? What protective role may labour law, or social security and welfare protections play, bearing in mind their historical weakness and current austerity measures? Might campaigns for No Borders and a universal basic income be more useful than campaigns against ‘trafficking’? As we begin to answer these questions it will undoubtedly become clear that (migrant) sex workers are subject to many of the same troubling processes and relations. Differences will be in degree rather than kind. Far from being a neutral ally, the state will appear as a culpable force. Our political responses will necessitate that collectively self-organised sex workers, who are already challenging these conditions, take centre stage.

About the author

Katie Cruz is a Lecturer in Law at Keele University. Her research engages with sex worker rights activists’ demands for rights, as well as criticisms of the purportedly human rights-based strategy of anti-trafficking. She has published research on the possibilities and limitations of labour and social security rights for sex workers and erotic dancers in the UK.

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