Smuggling or trafficking: the issue of consent
Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air (2000) defines human smuggling as
the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.
Definitive interpretations of international legal documents are notoriously elusive. However, a consensus amongst scholars indicates that in order for an irregular sex migrant to be identified as trafficked, it should be demonstrated that she did not willingly travel or had no reasonable alternative than to submit to recruiter’s demands because of coercion (Mattar 2006). Concurring, Obokata (2006) and Buckland (2009) argue that the coercion or deception to enter into exploitation might include migration for sex work. Conversely, the smuggled migrant consciously agrees to being transported and pays for the services of someone to transport them across borders without legal travel documentation. For McCabe (2008) and Nagle (2008), smuggling is hence better understood as a commercial agreement that concludes when the migrant is delivered to the destination. In short, ‘the underlying idea behind such a distinction is that the freedom and agency of those “trafficked” are violated (as they are “exploited”), while smuggling is simply arranging the consensual (and presumably non-exploitative), facilitated (often irregular), entry of a migrant into a chosen country’ (Askola 2007).
Seeking to determine where consent is, and is not, legitimate, Festus Okoye, executive director Human Rights Monitor Nigeria compares two scenarios,
As to whether after being trafficked, a person can give consent in a foreign country to cover conditions that were not disclosed to her before leaving Nigeria. My answer is no, they can no longer give consent because they are already held hostage or facing a situation that may lead to suffering or arrest as an illegal immigrant, deportation or death. It is impossible to give consent at that time and the consent may appear voluntary, but in the true sense of the word it cannot be voluntary consent, because the situation under which the consent was given makes it impossible to give genuine consent. Whether it is possible for a woman of her own volition to leave the shores of this country and go to a foreign country to engage in prostitution as work? My answer is yes. Despite the fact that there is poverty and unemployment, the moment you have attained the age of majority and out of your own volition you leave the country in order to go and engage in prostitution, then you cannot set up the issue of poverty and unemployment as consent-nullifying variables.
This analysis tends towards the radical feminist position, prioritising the prospective sex migrant’s agency over supposed intrinsic, and consent- nullifying, exploitation. A specific issue of Nigerian law, the proscription of foreign travel, complicates Okoye’s analysis, but his position in the overarching debate remains clear. However, the evidence amassed from those interviewed for this study, both in sum and in the detail, testifies to the physical and psychological harm and suffering caused to many migrant sex workers and the panoply of deceptions used by the recruiters, madams and pimps who persuade women to follow this route. In this context, the issue of ‘consent’ becomes both highly complex and questionable as the measure of whether the irregular crossing of borders for sex work is smuggling or trafficking.
The interviews indicate that three core factors influence the experience of the Nigerian sex work migrant in Italy: their illegal status, multiple and diverse incidences of exploitation and the insidious nature of the coercive methods used by recruiters, madams and pimps. In respect of the former, it is clear that consent does not connote legality. For liberal feminist Agustin (2005: 98), ‘their [Nigerian sex work migrants] status as “illegal” migrants, without permission to work in Europe, is, for them, the single overarching problem to solve, and their irregular status, not sex, is the heart of the issue’. However, for Nagle (2008), the key impact on Nigerian women working as prostitutes in Italy is exploitation. Indeed, Kelly (2003) argues that the position of consent in migration for sex work mis-locates the debate since the nature of the multiple instances of exploitation that the majority of migrants encounter is the most striking element of the process. According to an IOM office interviewed in Italy,
It is more complex than you think, I will try to demonstrate that. Yes, Nigerian women know. Yes, they sign a contract. Yes, they believe they are going there to make money. But, at the end of the day they don’t, and this is a violation of their rights. If we don’t protect them, no matter how much they knew, no matter their consent, they are exploited and their position of vulnerability is exploited because you cannot contract to do this. This is not two parties at the same level. The madam is at a higher level, while the trafficked woman is below. When she is in the country of destination she has no contractual power and this is a violation of human rights. She is no longer acknowledged as a person but as a thing. Consent is only relevant as far as the exploitation is concerned, not the movement and not the awareness of being involved in prostitution.
Thus, in the context of the day-to-day existence and struggles of the migrant sex worker, the debate over the position of consent becomes a legal diversion. For Ojukwu,
The things that we need to look out for in cases like this are whether there are human rights violations, such as the deprivation of liberty, torture and rape.
You may consent to be moved to Italy for prostitution but you cannot consent to a violation of human rights ... consent cannot be used to justify a human rights violation.
And yet, extracting the migrant sex worker from an exploitative situation is seriously hindered by the layered coercion that ties her to her madam or pimp through the psychological hold of rape, the fear of juju and the constant use of physical force and the threat of violence.