Sex trafficking, consent and the feminist debate
Whilst sex trafficking effects people from different parts of the world in diverse ways, in Todres’ words, ‘the gross violations of human rights and human dignity are constant’ (2011: 499). Although there has been an increase in international and national legislation to address sex trafficking, there is no concrete evidence to indicate a reduction in its scale. The inadequacies of the international response to sex trafficking became a core issue for the women’s movement in the 1980s, laying the foundations for the drafting of the Trafficking Protocol (Jeffreys 2009). The Protocol defines trafficking as:
the 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.
Moreover, the Protocol explicitly states that the idea of consenting to be trafficked is irrelevant when any of these ‘means elements’ have been used. However, as ever, it is in the interpretation of the legislation that complications arise.
Whilst Jeffreys (2009) notes that the position of most feminists on the issue of sex work was broadly unanimous during the 1980s, the debate subsequently diverged with radically different positions being taken during the period leading to the adoption of the Protocol. This debate, albeit increasingly complex and fragmented, continues. The broad position taken by liberal feminism stresses the right and capacity of women, indeed all human beings, to consent to sex work (Nussbaum 1999; Kempadoo & Doezema 1998; and Doezema 2010). From this perspective, sex work is conceived as an expression of a woman’s right to self-determination. Therefore prostitution, as the core expression of sex work, should be decriminalised in conjunction with the extension and adoption of legal measures to safeguard the working conditions of women involved in it. Prostitution is held to be economically liberating and a positive assertion of a woman’s sexual autonomy. It follows that those who migrate to work as prostitutes, as long as they agree to that employment, are labour migrants rather than victims of trafficking (Agustin 2005: 2007). A vigorous opponent of those who seek to either prevent or rescue migrants from taking employment as prostitutes, Laura Agustin, contends that,
few sex workers are attracted by ‘exit strategies’ or ‘diversion programmes’. They hate being low-paid, disparaged, disrespected cleaners, nannies and maids. They don’t want to return to their countries as failed migrants. They don’t want to be poorer again. The sex act may be something they adapt to, learn to enjoy or close their eyes and endure, but if doing it provides more freedom, autonomy, flexibility or hope then it can be preferred, whether people were born in France, China, Nigeria or Brazil. The majority have consented to sell sex, somehow or other, to some degree. (Agustin 2013)
In response, the position of radical feminism is that there is no difference between forced and consensual prostitution (Jeffreys 2009; Barry 1995; MacKinnon 2011 and Leidholdt 2003) and that state legalised prostitution is equivalent to rape. Radical feminism, therefore, advocates the criminalisation of prostitution and all those involved in enabling prostitution from pimps to clients, with the exception of the prostitutes themselves (Farley 2004; Raymond 2004; Balos 2004). Weighing the right of a woman to consent to sell sex and the serious intrinsic harm involved in working as a prostitute, radical feminism argues that consent in these circumstances is a deception, critiquing the liberal feminist position as knowingly putting sex migrants ‘in harms way’ (Farley 2004; Balos 2004).
The major flaw with both these positions is the supposition that women moved across borders for sex can be regarded as either consenting or non-consenting. The feminist debate also tends to deal in absolutes, ignoring cultural and ideological diversity. In practice, there exists no universal legal response to sex trafficking. Even a mature supra-national organisation such as the European Union has no fixed legal response to sex work or trafficking. Indeed, in the context of this chapter, whilst Nigeria criminalises prostitution, and by extension migration for prostitution, Italy criminalises sex trafficking but permits prostitution.