A. A More Accurate and Equitable Definition of Sex Trafficking
The current definition of criminal sex trafficking found in the TVPA and most state statutes marginalizes domestic victims and has done little to help the many women and girls prostituted under violent and exploitative conditions throughout the United States. To be truly effective, Congress should align the TVPA with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, which defines sex trafficking as:
[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
This definition would increase justice for domestic victims and, in particular, American Indian victims, in several ways. First, by expanding the definition of the means used in trafficking to include “abuse of a position of vulnerability,” the TVPA would be adapted to the actual experiences of trafficking victims in the United States. Anti-trafficking efforts would be able to reach the many domestic victims who find themselves in the gray areas of trafficking, including women who were trafficked as minors and never psychologically or financially able to escape prostitution. This expanded definition would also lower the burden of proof that has been a main obstacle to trafficking prosecutions.
Most importantly, the U.N. definition shifts the focus away from the woman's consent and directs it to her exploitation, which is the ultimate concern of U.S. anti-trafficking efforts, as even the State Department has recognized. The U.N. Protocol specifically states that the woman's consent is irrelevant if any of the enumerated means of trafficking have been used. This definition would end prosecutors' practice of viewing consent to prostitution as a per se bar to justice. It would also obligate law enforcement to do away with assumptions of criminality and ask victims more probing questions. One of the main purposes of the TVPA--decriminalizing immigrant and citizen trafficking victims--would be achieved. Finally, with exploitation as the basis for the criminalization of trafficking, those women who (as in Todd) consented to prostitution but later found themselves in exploitative conditions would also be protected.
The U.N. definition is particularly strong because it does not conflate trafficking and prostitution, thus avoiding the political, ideological, and practical concerns that arose during the 2008 TVPA reauthorization, which sought to federalize anti-prostitution laws. By still requiring proof of the trafficker's exploitation of particular vulnerabilities, the definition excludes fully-informed women who have entered prostitution voluntarily. Moreover, by focusing on the exploitative conditions and not the act of prostitution, this definition empowers women voluntarily in prostitution to seek assistance if they are being exploited.
However, the success of anti-trafficking efforts will remain limited if steps are not taken at the state level to decriminalize prostituted women and, in particular, children. This is a necessary step to complete the shift from focusing on the woman's consent to the exploiter's actions. Many scholars have noted that state prostitution laws work directly at odds with trafficking laws by fostering the presumption that a prostituted woman is a criminal. States should refocus their enforcement efforts and resources on pimps through the aggressive enforcement of federal and state anti-trafficking laws.
Decriminalizing the actions of prostituted women would give trafficking victims a greater chance of receiving the health and social services they desperately need; they could no longer be denied services because of their involvement in prostitution, and law enforcement would seek to assist women instead of incarcerate them. There is a valid concern that more aggressive enforcement of trafficking laws would drive prostitution further underground, making it even harder for these victims to be identified. This risk must be met with improved law enforcement training and trafficking task force coordination. But decriminalizing prostituted women and focusing on traffickers would prevent pimps from holding women captive with the threat that they are engaging in illegal activity, and prostituted women would be able to seek help without the fear of arrest.