The 2020 US election, Prostitution Laws & Human Trafficking

In many ways, Senator Joe Biden’s selection of Kamala Harris as his Vice President is historic: She is the first woman of colour on a major party ticket, as well as the first female Vice-Presidential Democratic pick in more than three decades. 

However, many on the left were not overly pleased with the decision, critical of Harris’s  regressive record when she was District Attorney of San Francisco and Attorney General of California. Among these critics were sex workers’ rights advocates, who have been vocal about Harris’s historically aggressive approach to policing the community and her perceived backflips on the decriminalisation of prostitution. 

The legal status of sex work is a domestic factor which can impact upon the incidence of sex trafficking. Under the Trump administration prostitution has remained illegal in all states (with the exception of Nevada). Alternatively, much of Europe as well as Australia and New Zealand have opted to decriminalise or legalise sex work. Eight countries have also adopted the ‘Nordic Model’ where the buying of sex is criminalised, not the seller. 

Senator Harris recently commented that a Biden Administration would be in favour of a national decriminalisation agenda. Would this legislative change work in favour of America’s fight against human trafficking or against it?

Regardless of the 2020 outcome, the current debate on how to best regulate prostitution has divided America. The core legal approaches are as follows:

Prohibition

Prohibition aims to eradicate the market for paid sex, undercutting the sex trafficking business model, by targeting both supply and demand. In practice, this approach is problematic. In the United States, law enforcement overwhelmingly targets the sellers rather than buyers of sex. Annually 70,000-80,000 people are arrested for prostitution and estimates suggest that 70% of those arrested are female prostitutes and madams, 20% are male prostitutes and pimps, while only 10% are buyers. This approach carries an unfair gender bias against females and discourages victims of sex trafficking from coming forward to authorities due to fears that they may be punished. Thus, the sex industry is driven underground making it difficult for the legal system to deliver justice to victims.

Legalisation 

Through legalisation, states opt not deter people from selling or buying sex. Proponents of this approach argue that the criminalisation of prostitution makes trafficking more attractive. They argue that permitting prostitution reduces the prevalence of sex trafficking by allowing sex businesses to recruit local women who freely choose prostitution as their occupation There is insufficient evidence to support such claims. Research suggests that rates of sex trafficking remain high in places where prostitution is legal. European adopters of the legalisation approach, such as the Netherlands and Germany, have ‘the highest numbers of trafficked women in Europe.’

Critics argue that legalisation increases the size of the sex market, encouraging traffickers to exploit women and girls in greater numbers to meet increased demand. Evaluations have also found that legalised prostitution allows traffickers to hide victims in plain sight as consenting sex workers. The Chief of the German organised crime fighting unit in Stuttgart claimed that, since legalisation, his unit was fighting organised crime with ‘one hand tied behind their back’ as legal brothels provide ‘the perfect place to launder the proceeds of other organised crime.’

Strongly supporting the experiences of the Netherlands and Germany, a 2010 quantitative analysis reported that ‘sex trafficking is most prevalent in countries where prostitution is legalised.’ A 2012 study also overwhelmingly supported these findings. Researchers investigated the effect of legalised prostitution on human trafficking inflows from 150 countries and found that on average ‘those with legalised prostitution reported a greater incidence of human trafficking inflows than countries where prostitution is prohibited.’ The study also reviewed the longitudinal effects of legalising and criminalising prostitution and found that the criminalisation of prostitution in Sweden resulted in the shrinking of the prostitution market and the decline of human trafficking inflows while the inverse was true in Germany.

Nordic Model 

The Nordic model, also known as the Demand model, criminalises the buyers of sex, but not sellers. This approach has grown in popularity as it focuses on shrinking the market for prostitution in order to reduce demand for trafficked women. This approach assumes that sex trafficking is lucrative due to the economic principles of supply and demand. ‘Traffickers choose to trade in humans due to the low start-up costs, minimal risks, high profits, and large demand.’

The Swedish law aims to combat human trafficking by acknowledging the connection between prostitution and trafficking. Approximately 400- 600 people are trafficked into Sweden each year. Since Sweden’s adoption of the Nordic model, this number has remained constant, with no significant increase in the number of recorded victims. Two years following the passage of the law, a Swedish taskforce reported a 50% decrease in the number of women prostituting and a 75% decrease in the number of men who bought sex. Thus, while the number of people trafficked into Sweden is believed to have remained level, there have been reported decreases in the number of people selling and buying sex which has reduced the attractiveness of the Swedish sex market for human traffickers. Critics claim that since the Swedish law passed, prostitution has not decreased, but rather been forced underground. While it is difficult to assess these arguments empirically, Sweden is no longer an attractive market within Europe for human traffickers. Swedish police have confirmed this view that the Nordic model has resulted in deterring traffickers from Sweden and pushed them into other countries.

The normative objectives and results of the Nordic model also cannot be underestimated. When Sweden introduced the legislation, it had merely 30% community support. Today the figure is close to 80%. The legislation has had the effect of changing Swedish culture. It is no longer socially acceptable to pay a woman for sex. This, alongside harsher penalties for buyers, has led to Sweden having a much smaller human-trafficking problem compared to other European nations. 

Recommendation

The fight against global sex trafficking is counterproductive if countries have conflicting approaches to regulating domestic prostitution. Having reviewed the various legislative approaches, it is evident that targeting demand is an integral part of any legal solution. Though imperfect, the Nordic model has a proven track record of reducing the demand for prostitution which minimises the incentives for human traffickers to conduct their businesses. 

According to the most recent polling, the Biden Harris ticket will be victorious in November. As the decriminalisation model has proven unsuccessful in reducing human trafficking, Biden and Harris should re-calibrate their official stance on regulation to reflect the Nordic Model. This will shrink the demand for prostitution in the US, thus making the American sex market less attractive to human traffickers. 

How human trafficking is enabled

We often associate human trafficking with a visceral image of young girls being exploited and sold for sex at the hands of ruthless pimps. Google an image of human trafficking and results of this description will be found. While this depiction reflects much of the human trafficking which is reported to authorities, it is an incomplete image of a much broader issue. Less attention is typically devoted to the trafficking of people into exploitative agricultural work, construction work, domestic work, or other non- sexual labor.

Acknowledging one form of human trafficking while remaining ignorant to all others, only addresses a fraction of what is a highly prevalent transnational crime. Society’s lack of understanding of the complexity of human trafficking is largely to blame for our crippling inability to protect victims and prosecute perpetrators.

The United States of America v Farrell illustrates the vulnerability of migrant workers and lack of public awareness of human trafficking warning signs.

Human trafficking - Crime Stoppers Australia
Resource derived from Crime Stoppers Australia, https://crimestoppers.com.au/resource/human-trafficking/.

United States of America v Farrell

In 2005, Robert and Angelita Farrell, owners of a Comfort Inn hotel in South Dakota arranged for nine Filipino workers to obtain visas to work in their hotel. 

The Farrells took care of all visa fees and drafted employment contracts for each worker. They told workers that they would not be reimbursed for travel to the US and that their visas would be denied if they revealed this to the consular authorities. Despite beginning the employment relationship financially indebted to the Farrells, the workers anticipated that their wages would enable them to promptly repay their debts.     

When the workers arrived, the couple confiscated their passports and other immigration documents. The Farrells took advantage of the workers making them work 12-16 hour days and paying them half the wages initially promised. The defendants also charged the victims for previously undisclosed fees such as unwanted food and transportation to and from work. Recognising that the workers would never be able to repay their increasing debts, the Farrells demanded that the workers obtain outside employment. 

Each worker initially expected to have two trips sponsored by the Farrells to work at the hotel. However, the Farrells’ informed their workers that no one was going to be brought back to the US for a second trip unless he or she submitted a letter requesting re-employment. The workers complied and returned to South Dakota, facing the same enslaved conditions as last time.

One evening, the Farrell’s contacted the chief of police to intimidate the workers after two had expressed a desire to leave. Sensing something was amiss after visiting the hotel, the officer removed the victims from the couple’s possession and the Farrells were subsequently arrested on the charge of conspiracy to commit peonage.

On November 2007, a federal jury found Robert and Angelita Farrell guilty of peonage, document servitude, visa fraud and making false statements. Robert Farrell was sentenced to a term of 4 years and 2 months in federal prison and his wife, Angelita, a 3-year sentence. The defendants were individually fined US$15,000 and subject to three years of supervised release following their respective prison terms.

The Farrell case stresses the underreporting of human trafficking in the US. This couple managed to forge immigration documents twice and illegally administer second jobs for their workers, while enslaving them in horrendous living conditions for some time, without triggering immigration officials, police or members of the public. 

Partially to blame for this is the inaccurate, widely held public perception of human trafficking and the culture of law enforcement.

Failing Public Perceptions of Human Trafficking

A key issue in this case was whether the victims worked voluntarily for the Farrells. While it would have been a simpler case if police had found victims chained in the Farrell’s basement, the reality is that many human trafficking cases occur within the context of a voluntary working relationship. Thus, the degree to which the victims’ work was involuntary was difficult to prove.  

Akin to many human trafficking cases, the victims initially worked voluntarily for the Farrells, testifying that they wanted to better their livelihoods in the US. The Farrells possessed strong evidence in favour of a finding that the employees were in a voluntary working relationship. For instance, the Farrells’ presented the signed contracts and the fact that the workers agreed to begin their working relationship indebted to the Farrells. Additionally , the Farrells had letters written by the workers, each requesting a second trip to the US to work at the hotel.   

In this trial, the testimony of human trafficking expert Joy Zarembka enabled jurors to better understand the behaviour of victims and assess the truthfulness of their allegations. Zarembka provided a testimony of the various warning signs in employer-employee relationships that may indicate the employee is not labouring voluntarily but rather in a climate of fear. In her opinion, there was a climate of fear in the Farrells’ relationships with their workers. 

In this way, the role of expert witnesses in human trafficking cases can be paramount to ensuring victims receive a fair trial. Experts should also play a more substantial role in public education to alleviate widely held misconceptions of human trafficking. This will equip people with knowledge of warning signs to look out for that may be indicative of human trafficking.

The culture and framework of Law enforcement

Police rely on community members to report crimes by calling 911. Their work is reactionary rather than investigatory. This is problematic for victims of human trafficking as the crime usually occurs behind closed doors or without community awareness. If the public fail to report on instances of human trafficking, the framework of law enforcement is such that police cannot protect victims or charge perpetrators.

For these reasons, Police in the US focus on the prevention of sex trafficking of U.S. female minor victims, whom they perceive to be the most vulnerable, publicly supported victims. We know from the Farrell case that human trafficking can seamlessly occur outside of the sex-slavery paradigm, however more often than not it seems that cases like these are falling through the cracks of our justice system. Human trafficking does not discriminate against gender, age or culture, it impacts girls, boys, men and women alike. The double standard of US law enforcement efforts to address the sexual slavery of US female minors, while remaining legally blind to other forms of modern slavery that exist is a true failing of the justice system.

Though the institutional weaknesses of law enforcement and lack of public awareness for human trafficking are grim, greater understanding of the problem among ordinary people like you and I will lead to increased reporting of the crime. If we acknowledge that human trafficking is happening in our communities and educate ourselves on its many variations, this will inevitably lead to a world where more perpetrators are held legally accountable for their actions.


The Australia-UK FTA could become a blueprint for socially conscious trade

What should the Australia-UK FTA include?

1)   A Freedom of Movement Agreement (FOMA) for British and Australian citizens which could be modelled after the Trans-Tasman Travel Arrangement (TTTA) between Australia and New Zealand

2) Prior to the signing of the FTA, Australia should insist that the UK adopt the following amendments to its Modern Slavery Act 2015 to bring it in line with Australia’s Modern Slavery Act 2018:

2.1) to establish a publicly accessible register of all modern slavery statements submitted by businesses to promote greater accountability for non-compliance;

2.2) to mandate reporting requirements for the British public sector to ensure that supply chains utilised for tendered government activities do not facilitate modern slavery;

3) Australia should propose that existing visas granted by the Australian and UK governments with tied conditions be stripped of employer reporting obligations to strengthen the protection of migrant workers against labour exploitation;

Australia and the UK have began the initial stages of negotiating an FTA. This agreement presents an opportunity to remove unnecessary barriers that have restricted trade and travel between our countries. Sharing a rich historical and cultural affinity with one another, the FTA provides the UK and Australia with the chance to deliver an ambitious FTA that not only boosts economic growth and prosperity but also seeks to address the risks of modern slavery that arise through global trade.

In 2011, The Cameron government introduced immigration reforms aimed at reducing non-EU migration which significantly restricted Australians’ ability to work in the UK. These measures have led to a 49% decline in the number of working visas granted to Australians annually: down from 37,375 in 2005 to 19,134 in 2017.

A freedom of movement agreement (FOMA) between our countries would ease current visa barriers and grant Australians and Britons reciprocal rights to live and work abroad. The economic benefits of immigration are clear—free trade leads to a more efficient labour market and allocation of resources. This results in higher average incomes and lower prices for consumer goods. People are also freer to choose between lifestyles, jobs, political jurisdictions and environments.

This arrangement could be modelled after the Trans-Tasman Travel Arrangement (TTTA) between Australia and New Zealand which forms part of our Closer Economic Relations (CER) partnership. The TTTA allows citizens of both countries who meet minimum health and character requirements to travel between, live and work in both countries.

Any reluctance to accept a FOMA based on migration issues arising from the UK’s experience in the EU can be easily addressed as the proposed relationship is not analogous to EU membership. Australia and the UK are sovereign states, committed to the rule of law and able to apply strict border controls. Similarly to the TTTA, the UK and Australia would retain sovereign control over immigration and could exercise the power to reject entrants based on public safety, national security or public health considerations. 

Australia and the UK also have similar GDP per capita, meaning that pull factors that motivated citizens of poorer EU member countries such as Bulgaria (where GDP per capita is 9,272.63 USD)  to migrate to the UK in search of higher paying employment will not be a concern in an Australia-UK FOMA. Australia and New Zealand’s TTTA provides a proven framework for promoting sustainable migration between comparable developed countries that share a head of state, the rule of law and equivalent standards of living.

Despite the economic and social advantages of an Australia-UK FOMA, such an ambitious proposal is unlikely to be adopted in the short-term. A preferential visa system akin to the American E-3 visa could be established in the interim. This system would grant Britons and Australians reciprocal working rights upon receiving relevant job offers. The E-3 visa, an integral part of the Australia-US FTA, permits an annual quota of Australians to enter the US, requires minimal paperwork, and is one tenth of the cost of a comparable visa.

Alternatively, were the UK and Australian visa systems to remain unchanged under the proposed FTA, at the very least, the vulnerability of migrant workers could be addressed by abolishing tied visas such as the 417 Working Holiday Visa in Australia and the Domestic Overseas Worker Visa in the UK. Many Australians and Britons travel between our countries on working holidays, often utilising tied visas. These visas require employers to sign off on the visa conditions of migrant workers, exposing our citizens to risks of exploitation and modern slavery. For these reasons, at minimum this FTA should address the vulnerabilities of migrant workers under the tied visa system.   

Increases in the movement of goods, services and people due to the Australia-UK FTA will heighten modern slavery risks. As our countries have both enacted Modern Slavery Acts and share a commitment to combatting human trafficking, the FTA presents a natural opportunity to encourage a ‘race to the top’ on modern slavery social policy.

Under the Australian act, the Australian Public Service is required to report modern slavery statements and a central repository containing modern slavery statements is publically available. Unlike Australia, the UK public sector is not required to report modern slavery statements and modern slavery statements from the private sector are not publically accessible. Given these inconsistent standards, Australia could request that prior to signing the FTA, the UK align its laws with Australian legislation to increase accountability and awareness of links to modern slavery in British supply chains.

If the Australia-UK FTA manages to liberalise unnecessary visa barriers while improving migrant-worker protections and supply chain oversight, it will become a blueprint for socially conscious trade.