Rescuing trafficking from ideological capture: Prostitution reform and anti-trafficking law and policy

University of Pennsylvania Law Review

Volumn 158, Issue 6, 2010, Pages 1655-1728

  Chuang, Janie A ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 77954692001     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (481)

1. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15,2000,2237 U.N.T.S. 319 [hereinafter U.N. Trafficking Protocol].
2. Trafficking Victims Protection Act of 2000 (TVPA), Pub. L. No. 106-386, div. A, 114 Stat 1466 (codified as amended in scattered sections of 8, 18, and 22 U.S.C.),
3. amended by Trafficking Victims Protection Reauthorization Act of 2003 (2003 TVPRA), Pub. L. No. 108-193, 117 Stat 2875 (codified in scattered sections of 8, 18, and 22 U.S.C.),
4. Trafficking Victims Protection Reauthorization Act of 2005 (2005 TVPRA), Pub. L. No. 109-164, 119 Stat 3558 (2006) (codified in scattered sections of 18, 22, and 42 U.S.C.),
5. and William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (2008 TVPRA), Pub. L. No. 110-457, 122 Stat. 5044 (codified in scattered sections of 6, 8,18, 22, and 42 U.S.C).
6. See TVPA § 103(8) (codified at 22 U.S.C. § 7102 (2006)); U.N. Trafficking Protocol art 3.
7. See discussion infra note 164.
8. See infra notes 99-105 and accompanying text
9. There is not universal agreement on the appropriate terminology to use in the context of the prostitution-reform debates. Though advocates seeking to abolish prostitution often refer to themselves as "abolitionists," I adopt the term "neo-abolitionists" to differentiate these advocates from the nineteenth-century antislavery reformers.
10. Elizabeth Bernstein provides a comprehensive and insightful discussion of the neo-abolitionist advocacy movement. See ELIZABETH BERNSTEIN, TEMPORARILY YOURS: INTIMACY, AUTHENTICITY, AND THE COMMERCE OF SEX 183 (2007);
11. Elizabeth Bernstein, The Sexual Politics of the "New Abolitionism, " 18 DIFFERENCES 128 (2007)
12. [hereinafter Bernstein, New Abolitionism] (focusing on the converging factors underpinning the neo-abolitionist movement);
13. Elizabeth Bernstein, Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-trafficking Campaigns, 36 SIGNS (forthcoming Autumn 2010) (manuscript on file with author)
14. [hereinafter Bernstein, Militarized Humanitarianism].
15. Saskia Sassen, Women's Burden: Counter-geographies of Globalization and the Feminization of Survival, 71 NORDIC J. INT'L L. 255, 255 (2002). Sassen analyzes the economic reasons for the proliferation of the migration and trafficking of women.
16. See MIKE KAYE, THE MIGRATION-TRAFTICKING NEXUS: COMBATING TRAFFICKING THROUGH THE PROTECTION OF MIGRANTS' HUMAN RIGHTS 11-13 (2003) (outlining the specific "push" and "pull" factors contributing to the growth in the number of migrant workers in recent years).
17. See id. at 3;
18. see also INT'L LABOUR OFFICE, A GLOBAL ALLIANCE AGAINST FORCED LABOUR 46 (2005)
19. [hereinafter ILO 2005 REPORT] ;
20. Sassen, supra note 8, at 268-69.
21. Smuggling is defined 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." Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime art 3, Nov. 15, 2000, 2241 U.N.T.S. 507. Studies are inconsistent with respect to whether constraints on smuggling will lead to increased trafficking. See Anne Gallagher, Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, 49 VA. J. INT'L L. 789, 841 & n.214 (2009) (citing several scholars whose conclusions conflict).
22. Cf. Memorandum on Steps to Combat Violence Against Women and Trafficking in Women and Girls, 1 PUB. PAPERS 358 (Mar. 11, 1998).
23. The existing criminal laws did not factor in the psychological (as opposed to physical) coercion that accounted for many trafficked persons' inability to leave exploitative working conditions. The creation of the crime of "forced labor" in 2000 filled the gap. See TVPA, Pub. L. No. 106-386, § 112(a)(2), 114 Stat 1466, 1486 (codified at 22 U.S.C. § 7109 (2006)) (providing a definition of "forced labor" broad enough to encompass psychological coercion).
24. Memorandum on Steps to Combat Violence Against Women and Trafficking in Women and Girls, supra note 12;
25. see also U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT 13,15 (2003), available at http://www.state.gov/g/tip/rls/tiprpt/2003.
26. See Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature Mar. 21, 1950, 96 U.N.T.S. 271
27. [hereinafter 1949 Convention].
28. Coverage of trafficking issues had traditionally fallen within the purview of the U.N. human rights agency-though, truth be told, the coverage was subject to other external mechanisms that produced scattershot reporting on the problem. See Gallagher, supra note 11, at 792-93. Moreover, while trafficking was explicitly prohibited in two human rights treaties, the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CE-DAW), neither treaty elaborated on the nature of states' obligations, and the treaties' respective expert committees have produced little substantive guidance.
29. See Convention on the Rights of the Child art. 35, adopted Nov. 20, 1989, 1577 U.N.T.S. 44 ("States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.");
30. id. arts. 32 & 34 (providing that children are to be protected from all forms of economic exploitation, sexual exploitation, and sexual abuse); Convention on the Elimination of All Forms of Discrimination Against Women art 6, adopted Dec. 18, 1979, 1249 U.N.T.S. 13 ("States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.");
31. Gallagher, supra note 11, at 792-93 (asserting that "[d]uring the entire twentieth century... states could not even agree on a definition [of trafficking], much less on specific legal obligations," and that "occasional, confused reports emanating from a marginal and marginalized [U.N.] body" provided little help).
32. See Ali Miller & Alison N. Stewart, Report from the Roundtable on the Meaning of "Trafficking in Persons": A Human Rights Perspective, 20 WOMEN'S RTS. L. REP. 11, 14-18 (1998) (summarizing the findings of an NGO roundtable convened by the International Human Rights Law Group in January 1998).
33. For a full list of the standards used to protect the rights of trafficked persons, see GLOBAL ALLIANCE AGAINST TRAFTIC IN WOMEN ET AL., HUMAN RIGHTS STANDARDS FOR THE TREATMENT OF TRAFFICKED PERSONS (1999), available at http://www.globalrights.org/site/DocServer/HRStandards.English.pdf?docID=204.
34. See, e.g., Gallagher, supra note 11, at 793.
35. See U.N. Special Rapporteur on Violence Against Women, Position Paper on the Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Submitted to the Ad-Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, at 4-6, U.N. Doc. A/AC.254/CRP.13 (May 20, 1999)
36. [hereinafter UNSRVAW Position Paper];
37. see also U.N. High Comm'r for Human Rights, Informal Note by the U.N. High Commissioner for Human Rights, para. 16, delivered to the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, U.N. Doc. A/AC.254/16 (June 1,1999)
38. [hereinafter UNHCHR Position Paper] (expressing concern for the lack of adequate housing and other needed support services for trafficking victims).
39. Key actors in the neo-abolitionist coalition include the feminist organizations Coalition Against Trafficking in Women (CATW) and Equality Now, as well as neoconservative Michael Horowitz of the Hudson Institute and evangelical leader Chuck Colson. See generally Bernstein, Militarized Humanitarianism, supra note 7 (arguing that neo-abolitionists are united not just by humanitarianism and conservative views of sexuality but also by "commitment to carceral paradigms of social justice and to militarized humanitarianism as the preeminent mode of engagement by the state"). Defending this odd alliance, Laura Lederer, an antipomography activist and later a Bush Administration anti-trafficking official, explained that the religious organizations brought "a fresh perspective and a biblical mandate to the women's movement" and that the alliance strengthened women's groups that "would not be getting attention internationally otherwise."
40. Anna-Louise Crago, Unholy Collaboration, RABBLE.CA, May 15, 2003, http://www.rabble.ca/news/unholy-collaboration (quoting Laura Lederer).
41. See generally ANTHONY M. DESTEFANO, THE WAR ON HUMAN TRAFFICKING: U.S. POLICY ASSESSED (2007) (providing an account of the neo-abolitionist movement between 2000 and 2006);
42. Gretchen Soderlund, Running from the Rescuers: New U.S. Crusades Against Sex Trafficking and the Rhetoric of Abolition, 17 NWSAJ. 64 (2005) (describing and critiquing the "raid and rehabilitation model" used by many neo-abolitionists to free women from brothels).
43. See, e.g., Catharine A. MacKinnon, Prostitution and Civil Rights, Speech at the Michigan Journal of Gender & Law Symposium: Prostitution: From Academia to Activism (Oct 31, 1992 )
44. (describing how sex-based discrimination in areas like employment severely inhibits women's choices), in 1 MICH. J. GENDER & L. 13, 28 (1993) .
45. See generally KATHLEEN BARRY, THE PROSTITUTION OF SEXUALITY (1995) (chronicling sexual exploitation from a feminist perspective).
46. The origin of the term "false consciousness" has been attributed to Marxist philosopher Antonio Gramsci, who used it to refer to "a phenomenon in which the oppressed come to identify with their oppressors, internalize their views, and thus appear to consent to their own subordination." Richard Delgado, Essay, Rodrigo's Sixth Chronicle: Intersections, Essences, and the Dilemma of Social Reform, 68 N.Y.U. L. REV. 639, 653 n.57 (1993)
47. (citing ANTONIO GRAMSCI, LETTERS FROM PRISON (Lynne Lawner ed. & trans., 1973);
48. SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI (Quintin Hoare & Geoffrey Nowell Smith eds. & trans., 1971)).
49. Some commentators prefer the phrase "internalized oppression" over "false consciousness," because the former term "simultaneously emphasizes the importance of internal constraints on identity and avoids the suggestion that 'true consciousness' is possible." Tracy E. Higgins, Democracy and Feminism, 110 HARV. L. REV. 1657, 1692 n.173 (1997).
50. Neo-abolitionist feminists prefer the term "prostituted women" rather than "prostitutes" or "sex workers." According to this view, some may think that using the terms "sex work" and "sex workers" destigmatizes and dignifies women in prostitution, but "in reality, what it dignifies is the sex industry. It lays the groundwork for recognizing buyers of commercial sex as legitimate 'customers' and pimps as 'third party business agents or brokers.'" JANICE G. RAYMOND, COAL. AGAINST TRAFFICKING IN WOMEN ET AL., GUIDE TO THE NEW U.N. TRAFFICKING PROTOCOL 6 (2001), available at http://action.web.ca/home/catw/attach/Guideun-protocolENG. pdf.
51. See, e.g., Michelle Madden Dempsey, Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism, 158 U. PA. L. REV. 1729, 1768-69 (2010) ("[T]he risk of harm posed to the nonconsenting prostituted women vastly outweighs the benefits realized by freely choosing prostituted women.").
52. Soderlund, supra note 21, at 81.
53. See Bernstein, New Abolitionism, supra note 7, at 140-41 & 146 n.20 (noting that some Christian humanitarian organizations teach women to serve food and drinks in Western-style cafés or to sew goods for sale);
54. Dawn Herzog Jewell, Red-Light Rescue: The "Business" of Helping the Sexually Exploited Help Themselves, CHRISTIANITY TODAY, Jan. 2007, at 28, 33 (reporting two missionaries' view that former prostitutes "'are [already] in the service industry,'" so "training for legitimate jobs in restaurants and hotels will fit with the women's gifts").
55. See, e.g., Dempsey, supra note 25 (advancing the former position);
56. Phyllis Chesler & Donna M. Hughes, Feminism in the 21st Century, WASH. POST, Feb. 22, 2004, at B7 (stating that "[t]wenty-first-century feminists need to become a force for literate, civil democracies" and "oppose dictatorships and totalitarian movements that crush the liberty and rights of people, especially women and girls").
57. For a fascinating and thorough exploration of these analogies, see Karen E. Bravo, Exploring the Analogy Between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade, 2 B.U. INT'L L.J. 207 (2007).
58. Ethan A. Nadelmann, Global Prohibition Regimes: The Evolution of Norms in International Society, 44 INT'L ORG. 479, 513 (1990). The anti-white slavery movement initially did not seek to prohibit prostitution itself but rather targeted state licensing of prostitution.
59. See id. at 513-14 (explaining the historical context and meaning of the antiwhite slavery movement).
60. Id.
61. Id. at 515
62. (quoting A VINDICATION OF THE RIGHTS OF WHORES 12 (Gail Pheterson ed., 1989)).
63. Dianne Otto, Lost in Translation: Re-scripting the Sex Subjects of International Human Rights Law, in INTERNATIONAL LAW AND ITS OTHERS 318, 324 (Anne Orford ed., 2006);
64. see also id. (asserting that the movement against white slavery was "fuelled by racism and Victorian ideas about women's sexuality");
65. Laura Reanda, Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action, 13 HUM. RTS. Q. 202, 207-09 (1991) (noting that in the early 1900s "trafficking in women became an issue for international treaty-making, primarily because of concern over the export of prostitutes from Europe to brothels in various parts of the colonial empires" and detailing the League of Nations' concerns with the slave traffic).
66. Nadelmann, supra note 30, at 514. Indeed, some have described the "white slavery" phenomenon as a moral panic, more hype than reality, motivated by Victorian discomfort with women's sexuality and racist concerns about "the perceived links between prostitution and disfavored minorities."
67. Id. at 514-15;
68. see also Mary Ann Irwin, "White Slavery" as Metaphor: Anatomy of a Moral Panic, 5 Ex POST FACTO: J. HIST. STUDENTS AT S.F. ST. U. 1 (1996), available at http://userwww.sfsu.edu/~epf/1996/wslavery.html.
69. These early treaties included the International Agreement for the Suppression of the "White Slave Traffic," May 18, 1904, 35 Stat. 1979, 1 L.N.T.S. 83; the International Convention for the Suppression of the White Slave Traffic, May 4, 1910, Gr. Brit. T.S. No. 20 (1912), (Cd. 6326); the Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, signed at Paris, on 18 May 1904, and the International Convention for the Suppression of the White Slave Traffic, signed at Paris, on 4 May 1910, opened for signature May 4, 1949, 2 U.S.T. 1997, 30 U.N.T.S. 23; the International Convention for the Suppression of Traffic in Women and Children, opened for signature Sept 30, 1921, 9 L.N.T.S. 416; the International Convention for the Suppression of the Traffic in Women of Full Age, Oct 11, 1933,150 L.N.T.S. 431; and the Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children Concluded at Geneva on 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, Concluded at Geneva on 11 October 1933, Nov. 12, 1947, 53 U.N.T.S. 13.
70. Article 1 of the 1949 Convention requires parties to "punish any person who, to gratify the passions of another: 1. [p]rocures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; [or] 2. [e]xploits the prostitution of another person, even with the consent of that person." 1949 Convention, supra note 15, art. 1. Article 2 obligates parties to also "punish any person who: 1. [k] eeps or manages, or knowingly finances or takes part in the financing of a brothel; [or] 2.
71. [k]nowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others."
72. Id art 2.
73. Otto, supra note 33, at 324-25.
74. See Reanda, supra note 33, at 210 (detailing the weaknesses of the 1949 Convention). As Reanda explains, a supervisory follow-up mechanism-which ultimately proved ineffectual-was not established until the mid-1970s, and as of March 1988, the 1949 Convention had only fifty-nine parties.
75. See id. at 210-16. The "marginalized" and now-defunct U.N. Working Group on Contemporary Forms of Slavery, which overtook nominal responsibility for monitoring the 1949 Convention, produced "occasional, confused reports" that "did not in the end, matter very much to states ... or indeed to those whose interests it was established to promote."
76. Gallagher, supra note 11, at 792, 819 & n.130, 820. Abolitionist feminists adopted the strategy in the 1980s to mid-1990s of pushing for broader ratification of the 1949 Convention.
77. See Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J.L. & GENDER 335, 355 & n.60 (2006). Although this advocacy strategy "succeeded in making the [prostitution] issue visible," many governments "did not want to ratify the 1949 Convention because the prohibitionist stance would have required them to alter their domestic legal systems."
78. Id. at 355.
79. See SHEILA JEFFREYS, THE IDEA OF PROSTITUTION 239, 319 (1997).
80. See The Special Rapporteur on Violence Against Women, Its Causes and Consequences, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy, on Trafficking in Women, Women's Migration and Violence Against Women, Submitted in Accordance with Commission on Human Rights Resolution 1997/44, ¶21, delivered to the U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, U.N. Doc. E/CN.4/2000/68 (Feb. 29, 2000)
81. [hereinafter Report of the Special Rapporteur] (outlining the "four primary legal paradigms for addressing prostitution");
82. Halley et al., supra note 38, at 338-40 (describing the different approaches).
83. Report of the Special Rapporteur, supra note 40, ¶ 21.
84. Id.
85. Halley et al., supra note 38, at 338.
86. Report of the Special Rapporteur, supra note 40, ¶ 21;
87. Halley et al., supra note 38, at 339.
88. Report of the Special Rapporteur, supra note 40, ¶ 21.
89. I should note, however, that, according to sociologist and ethnographer Elizabeth Bernstein, some neo-abolitionist feminists favor a prohibition approach on the ground that women in prison are better positioned to access services. Personal correspondence with Elizabeth Bernstein.
90. For an insightful discussion of the relationship between stigma and the law, see Scott Burris, Stigma and the Law, 367 LANCET 529 (2006).
91. Neo-abolitionist feminists have acknowledged the existence of male prostitution but have generally understood male prostitutes as feminized stand-ins for women. See generally CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 141 (1989) ("[T] he structure of social power which stands behind and defines gender is hardly irrelevant even if it is rearranged.").
92. Neo-abolitionist advocacy efforts, however, have largely focused on criminalizing the clients rather than on decriminalizing the prostitutes. Elizabeth Bernstein, Carceral Politics as Gender Justice: The "Traffic in Women" and Neoliberal Circuits of Crime, Sex, and Rights 13-14 (n.d.) (unpublished manuscript, on file with author).
93. See, e.g., Dorchen Leidholdt, Prostitution: A Violation of Women's Human Rights, Presentation at Cardozo Law School (Nov. 17, 1992
94. ) ("[T] he pro-prostitution lobby [is] a network of sex industry enterprises and their front-people bent on legitimizing prostitution as women's work. Some ... are well intentioned. They believe that legitimizing prostitution as a profession will improve the conditions of prostitutes' lives. Many, however, have a financial or sexual stake in maintaining prostitution."), in 1 CARDOZO WOMEN'S L.J. 133, 133 (1993).
95. Many on this side of the debate prefer the term "sex work" over "prostitution" because the former captures the possibility of framing the selling of sex as a form of labor.
96. See Gabrielle Simm, Negotiating the United Nations Trafficking Protocol: Feminist Debates, 23 AUSTL. Y.B. INT'L L. 135, 137, 139-42 (2004) (describing how these different feminist theories view trafficking and prostitution).
97. See id. at 138 (describing this view of neo-abolitionist feminists).
98. See id. at 137 (explaining liberal feminism).
99. See id. at 140 (noting the "perception [of some "Third World feminists'] that women in developing countries turn to prostitution as a last resort").
100. See Halley et al., supra note 38, at 396 (explaining the view that "sex work and trafficking d[o] not disappear but rather [go] deeper underground and merely change[] form" when criminalized, such that "worse working conditions, lower pay, greater dependence on pimps, and higher health risks to sex workers" result (footnote omitted));
101. cf. Simm, supra note 51, at 160 ("Sex worker rights activists, as well as sex work feminists, have criticised the approach of sexual slavery feminists as racist and imperialist in that it denies the possibility of agency and ignores the subjectivity of women who migrate to work in the global sex industry.").
102. See, e.g, Halley et al., supra note 38, at 400 (stating that the Swedish toleration regime "is paternalistic and harmful to sex workers, exposing them to further marginalization and exploitative working conditions since the industry is pushed underground").
103. See id. at 398-405 (comparing the costs and benefits of legalization in the Netherlands and de facto decriminalization in Israel);
104. Simm, supra note 51, at 156-59 (exploring the debate over "forced" versus "voluntary" prostitution and identifying the need to consider country conditions).
105. See Simm, supra note 51, at 139 (discussing the distinction made by non-abolitionist feminists). Given a child's inability to consent as a matter of law, the forced/voluntary distinction does not apply to child prostitution, just as it does not apply to other forms of child labor.
106. Id. at 137.
107. Id.
108. See Anne Gallagher, Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 HUM. RTS. Q. 975, 1002 (2001) (explaining that the International Human Rights Network "oppos[ed] all forms of prostitution" while the Human Rights Caucus aimed to "protect and legitimize sex work");
109. Simm, supra note 51, at 146-53 (describing the debates about "the definition of trafficking, the issue of consent and the position of children");
110. Kara Abramson, Note, Beyond Consent, Toward Safeguarding Human Rights: Implementing the United Nations Trafficking Protocol, 44 HARV. INT'L L.J. 473, 483-92 (2003) (explaining "autonomy arguments for recognizing the ability to consent" and "protectionist arguments against recognizing the ability to consent").
111. Though groups could agree on the issue of rights protection while taking divergent positions on the trafficking definition, the International Human Rights Network refused the Human Rights Caucus's invitation to join forces to advocate for substantive rights protections. Divisiveness over the trafficking definition proved too great an obstacle to cooperation. See generally Melissa Ditmore & Marjan Wijers, The Negotiations on the UN Protocol on Trafficking in Persons, 4 NEMESIS 79, 80-86 (2003).
112. See, e.g., ANNE T. GALLAGHER, THE INTERNATIONAL LAW OF HUMAN TRAFFICKING (forthcoming 2010);
113. Gallagher, supra note 61, at 984-85.
114. CATW, for example, criticized the High Commissioner for Human Rights and the ILO for favoring a definition of trafficking that included the requirement of force or slavery-like conditions and for objecting to inclusion, on grounds of vagueness and imprecision in international law, of the term "sexual exploitation" in the trafficking definition. RAYMOND, supra note 24, at 6.
115. JULIA O'CONNELL DAVIDSON, PROSTITUTION, POWER AND FREEDOM 122 (1998).
116. For a discussion of the impact of this bias on the prosecution of sex workers' rape claims, see Barbara Sullivan, Rape, Prostitution and Consent, 40 AUSTL. & N.Z. J. CRIMINOLOGY 127 (2007).
117. See, e.g., Radhika Coomaraswamy, Special Rapporteur on Violence Against Women, U.N. Comm'n on Human Rights, Address to the NGO Seminar on Trafficking in Persons 3 (June 21,1999) (transcript on file with author).
118. See, e.g, Gallagher, supra note 61, at 983-84, 983 n.61.
119. Jo Doezema, Now You See Her, Now You Don't: Sex Workers at the UN Trafficking Protocol Negotiations, 14 SOC. & LEGAL STUD. 61, 76 (2005).
120. Id. at 77
121. (citing NETWORK OF SEX WORK PROJECTS, COMMENTARY ON THE DRAFT PROTOCOL TO COMBAT INTERNATIONAL TRAFFICKING IN WOMEN AND CHILDREN SUPPLEMENTARY TO THE DRAFT CONVENTION ON TRANSNATIONAL ORGANIZED CRIME (1999), available at http://www.walnet.org/csis/groups/nswp/untoc-comment.html).
122. Doezema, supra note 68, at 80;
123. see also id. (noting that the U.N. Trafficking Protocol "distinguish[es] between 'trafficking' and 'prostitution' through the qualifier of 'consent'").
124. Gallagher, supra note 61, at 984.
125. See U.N. Trafficking Protocol, supra note 1, art. 3(a).
126. Gallagher, supra note 61, at 984 Sc n.62.
127. The International Human Rights Network was organized by CATW. Id. at 1002 n.161.
128. Id. at 986.
129. Members of the Human Rights Caucus included the International Human Rights Law Group (from the United States), the Foundation Against Trafficking Women (from the Netherlands), the Global Alliance Against Traffic in Women (from Thailand), the Asian Women's Human Rights Council (from India and the Philippines), La Strada (from Poland, Ukraine, and the Czech Republic), Fundación Esperanza (from Colombia, the Netherlands, and Spain), the Foundation for Women (from Thailand), and KOK (from Germany). Simm, supra note 51, at 139.
130. These included the U.N. OHCHR, the U.N. High Commissioner for Refugees (UNHCR), the ILO, and the U.N. Children's Fund (UNICEF). The now-defunct U.N. Working Group on Contemporary Forms of Slavery, which nominally monitored implementation of the 1949 Convention, supported the abolitionist view but did not formally participate in the negotiation process.
131. See GLOBAL ALLIANCE AGAINST TRAFFIC IN WOMEN ET AL., supra note 17, at 4,5 n.4 (defining trafficking as "involving the use of deception, coercion (including the use or threat of force or the abuse of authority) or debt bondage" and arguing that sex workers should be afforded "the same rights and protections" as other workers);
132. UNSRVAW Position Paper, supra note 19, at 15;
133. UNHCHR Position Paper, supra note 19, para. 12 (suggesting that a "preferable and more accurate description of purposes" of trafficking would be not just for "forced labour" but also for "bonded labour and/or servitude").
134. See Gallagher, supra note 61, at 985-86.
135. U.N. Trafficking Protocol, supra note 1, art 3.
136. See Gallagher, supra note 61, at 984-85 (describing the differing opinions on a "consent" requirement).
137. See RAYMOND, supra note 24, at 5 ("[T] he exploitation of prostitution and trafficking cannot be separated. The Protocol acknowledges that much trafficking is for the purpose of prostitution and for other forms of sexual exploitation.").
138. Ad Hoc Comm. on the Elaboration of a Convention Against Transnational Organized Crime, Interpretative Notes for the Official Records (travaux préparatoires) of the Negotiation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, para. 64, U.N. Doc. A/55/383/Add.1 (Nov. 3, 2000) (emphasis added).
139. Neo-abolitionist feminists nonetheless have taken advantage of the language concerning the irrelevance of consent to support their reading of the U.N. Trafficking Protocol as supportive of the neo-abolitionist position. See, e.g, Brief of Amicus Curiae, The Coalition Against Trafficking in Women at 1, Dart v. Craigslist, Inc., No. 09-1385 (N.D. 111. Aug. 6, 2009), available at http://action.web.ca/home/catw/readingroom.shtml?x-126762.
140. U.N. Trafficking Protocol, supra note 1, art 6(1).
141. Id. art. 14(1).
142. See Gallagher, supra note 61, at 985 n.63 ("The United States initially led the move to reject the inclusion of non-coerced sex work into the trafficking definition although its support wavered occasionally, apparently in response to domestic pressures.").
143. In a series of op-eds in U.S. newspapers, these groups attacked First Lady Hillary Clinton-the titular head of the Clinton Administration's Inter-Agency Council on Women, which was responsible for coordinating U.S. anti-trafficking policy-for being "pro-prostitution," using this issue to attack the Clinton Administration in election-year political battles. See William J. Bennett & Charles W. Colson, Op-Ed., The Clintons Shrug at Sex Trafficking WALL ST. J., Jan. 10, 2000, at A26 (accusing the Clinton Administration of attempting to "lend legitimacy to prostitution and hard-core pornography");
144. Hanna Rosin & Steven Mufson, Bitter Issues in Crime Treaty Debate: What Is Prostitution?, WASH. POST, Jan. 15, 2000, at A2 (describing how " [c]onservatives and religious opponents ... focused their criticism on Hillary Clinton");
145. Philip Shenon, Feminist Coalition Protests U.S. Stance on Sex Trafficking Treaty, N.Y. TIMES, Jan. 13, 2000, at A5 (describing protests against the Clinton Administration's support for wording that limited sexual exploitation to "forced prostitution").
146. See TVPA, Pub. L. No. 106-386, div. A, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, and 22 U.S.C).
147. See Freedom from Sexual Trafficking Act of 1999, H.R. 1356, 106th Cong. (1999).
148. Jayashri Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 B.U. L. REV. 157, 170 (2007)
149. (quoting Trafficking of Women and Children in the International Sex Trade, Hearing Before the Subcomm. on International Operations and Human Rights of the H. Comm. on International Relations, 106th Cong. 56 (1999) (prepared statement of Rep. Smith)).
150. The Comprehensive Antitrafficking in Persons Act of 1999, H.R. 3154, 106th Cong. (1999), was introduced by Representative Sam Gejdenson (D-CT) in the House on October 27, 1999.
151. See id. § 3. Senator Paul Wellstone (D-MN) introduced an identical bill in the Senate on Nov. 2, 1999.
152. See Comprehensive Antitrafficking in Persons Act of 1999, S. 1842, 106th Cong. § 3 (1999).
153. See International Trafficking Act of 2000, S. 2449, 106th Cong. § 3 (2000) ;
154. Trafficking Victims Protection Act of 1999, H.R. 3244, 106th Cong. § 3 (1999).
155. TVPA § 103(8) (codified at 22 U.S.C. § 7102 (2006)).
156. Id. § 103(9) (codified at 22 U.S.C. § 7102).
157. Following President Clinton's "three Ps" framework, the TVPA enhanced the tools available to prosecute traffickers for severe forms of trafficking by increasing sentences for existing crimes and criminalizing trafficking and trafficking-related acts. Id. § 112 (codified at 22 U.S.C. § 7109).
158. It also provides protections to trafficked persons who provide "reasonable" cooperation with law enforcement, including the possibility of temporary or even permanent residency status and eligibility for federal public assistance benefits. Id. § 107(b) (codified as amended at 22 U.S.C. § 7105).
159. Id. § 112 (codified at 22 U.S.C. § 7109). The TVPA also criminalizes "[t]rafficking with respect to peonage, slavery, involuntary servitude, or forced labor."
160. Id. (codified at 22 U.S.C. § 7109). By contrast, "sex trafficking" of adults when force, fraud, and coercion are absent is not criminalized.
161. See id (codified at 22 U.S.C. § 7109).
162. For an in-depth discussion and critique of the U.S. anti-trafficking sanctions regime, see Janie Chuang, The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 MICH. J. INT'L L. 437 (2006).
163. TVPA § 110(a) (codified as amended at 22 U.S.C. § 7107).
164. National Security Presidential Directive/NSPD-22, at 2-3 (Dec. 16, 2002), available at http://www.combat-trafficking.army.mil/documents/policy/NSPD-22. pdf. President Bush publicized his Administration's war on trafficking in international fora. In his September 2003 annual Address to the United Nations, President Bush devoted the last third of his speech to global sex trafficking. Linking the issue to his broader moral agenda, President Bush singled out human trafficking, especially sex trafficking, as "a special evil in the abuse and exploitation of the most innocent and vulnerable."
165. Address to the United Nations General Assembly in New York City, 2 PUB. PAPERS 1190, 1193 (Sept 23, 2003);
166. see also DESTEFANO, supra note 21, at 103 (noting that President Bush's speech "showed that his administration had made anti-trafficking part of its moral agenda and signaled that the United States was committed to using its bully pulpit to espouse its stance");
167. cf. Soderlund, supra note 21, at 77 (describing how the speech drew on long-standing tropes).
168. Trafficking in Women and Children in East Asia and Beyond: A Review of U.S. Policy: Hearing Before the Subcomm. on East Asian and Pacific Affairs of the S. Foreign Relations Comm., 108th Cong. 23 (2003) (prepared statement of Donna M. Hughes, Professor and Carlson Endowed Chair in Women's Studies, University of Rhode Island) [hereinafter Hughes 2003 Senate Statement].
169. In 2002, the neo-abolitionists successfully campaigned to oust then-GTTP Director Nancy Ely-Raphel and replace her with former U.S. Representative John Miller (RWA). In congressional testimony, the neo-abolitionists set the stage for Ely-Raphel's ouster, criticizing GTIP's failure to consider demand for prostitution in the 2002 Trafficking in Persons Report and singling out Ely-Raphel specifically for being "extremely naive" and "gross[ly] lack[ing in] political will" for believing that "the connection between legalized prostitution ... and ... trafficking... [was] only 'anecdotal.'" Foreign Government Complicity in Human Trafficking: A Review of the State Department's 2002 Trafficking in Persons Report Before the H. Comm. on International Relations, 107th Cong. 76 (2002) (prepared statement of Donna M. Hughes) [hereinafter Hughes 2002 House Statement].
170. The TVPA provided that while the U.S. State Department would issue its country rankings in 2001 and 2002, sanctions would not attach until 2003, to allow countries a grace period to bring laws and policies into compliance with the U.S. minimum standards on trafficking. Chuang, supra note 97, at 454.
171. While abolition of prostitution was not technically one of the U.S. minimum standards under the TVPA, the sanctions regime nonetheless exerted pressure to conform to the United States' preference for such an approach to prostitution. See id. at 466-70.
172. BUREAU OF PUB. AFFAIRS, U.S. DEP'T OF STATE, THE LINK BETWEEN PROSTITUTION AND SEX TRAFFICKING (2004) (footnote omitted), available at http://2001-2009. state.gov/r/pa/ei/rls/38790.htm
173. [hereinafter 2004 FACT SHEET].
174. OFFICE TO MONITOR AND COMBAT TRAFFICKING IN PERSONS, U.S. DEP'T OF STATE, LEGAL BUILDING BLOCKS TO COMBAT TRAFFICKING IN PERSONS §§ 100, 206(a) (2004) (on file with author).
175. -2003 TVPRA, Pub. L. No. 108-193, 117 Stat. 2875 (codified in scattered sections of 8, 18, and 22 U.S.C); 2005 TVPRA, Pub. L. No. 109-164, 119 Stat. 3558 (codified in scattered sections of 18, 22, and 42 U.S.C); 2008 TVPRA, Pub. L. No. 110-457, 122 Stat 5044 (codified in scattered sections of 6, 8,18, 22, and 42 U.S.C).
176. In testimony before a subcommittee of the U.S. Senate Foreign Relations Committee in April 2003, Donna Hughes of CATW articulated the following priorities: (1) the need for HIV/AIDS outreach workers to oppose and report suspected trafficking, (2) the "need to re-link trafficking to prostitution," (3) the need to address U.S. military personnel feeding the demand for prostitution, and (4) the need to address trafficking of U.S. citizens for prostitution widthin the United States. Hughes 2003 Senate Statement, supra note 100, at 24-26.
177. For a discussion that attempts to contextualize trafficking in this broader frame, see generally Janie Chuang, Beyond a Snapshot: Preventing Human Trafficking in the Global Economy, 13 IND. J. GLOBAL LEGAL STUD. 137 (2006).
178. See, e.g., Implementation of the Trafficking Victims Protection Act: Hearing Before the H. Comm. on International Relations, 107th Cong. 8 (2001) (statement of Rep. Smith).
179. "The Bush Administration's fight against global sex trafficking conveniently dovetail[ed] with its quest to dismantle public health efforts that support[ed] women's reproductive rights and champion [ed] condom use as a viable means to control pregnancy and the spread of HIV/AIDS." Soderlund, supra note 21, at 79. Having reinstated the Mexico City Policy (the "Global Gag Rule"), which banned foreign NGOs from receiving federal funding if they performed or promoted abortions generally, see Memorandum on the Restoration of the Mexico City Policy, 66 Fed. Reg. 17, 303, 17, 309 (Mar. 29, 2001), curbing prostitution was the next logical step in the Bush Administration and its faith-based constituency's desire to police nonprocreative sex on a global level.
180. -2003 TVPRA § 7 (codified at 22 U.S.C. § 7110 (2006)).
181. According to a colloquy between TVPRA sponsors Representatives Tom Lantos and Christopher Smith, an organization that does not have a policy on prostitution can simply "state[] ... that it does not promote, support, or advocate [the legalization or practice of prostitution] since it has no policy regarding this issue." 149 CONG. REC 27,040 (2003) (colloquy between Reps. Lantos and Smith).
182. See Crossing the Border: Immigrants in Detention and Victims of Trafficking: Hearing Before the H. Subcomm. on Border, Maritime, and Global Counterterrorism of the H. Comm. on Homeland Security, 110th Cong. 82-83 (2007) (prepared statement of Ann Jordan, Program Director, Initiative Against Trafficking in Persons, Global Rights) (criticizing the anti-prostitution pledge for its restriction of valuable speech and activity in which grantees would otherwise engage).
183. United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, Pub. L. No. 108-25, 117 Stat. 711 (codified as amended in scattered sections of 22 U.S.C.)
184. [hereinafter Global AIDS Act].
185. Id §301
186. (codified as amended in scattered sections of 22 U.S.C). Notably, because there was no pre-enactment hearing on the restrictions, Congress did not consider evidence of the rationales that the government subsequently proffered for the pledge requirement See H.R. REP. No. 108-60, at 27 (2003), reprinted in 2003 U.S.C.C.A.N. 712, 717.
187. See, e.g., PEPFAR Reauthorization: From Emergency to Sustainability, Hearing Before the H. Comm. on Foreign Affairs, 110th Cong. 65-66 (2007) (statement of Rep. Smith).
188. Following the D.C. Circuit decision in the DKT litigation, infra note 118, the U.S. Agency for International Development (USAID) clarified that a recipient of HIV/AIDS funding can "maintain an affiliation with separate organizations that do not have a[n] [anti-prostitution] policy, provided that" the affiliate maintains "adequate separation" so as not to "threaten the integrity of the Government's programs and its message opposing prostitution and sex trafficking." U.S. AGENCY FOR INT'L DEV., ACQUISITION & ASSISTANCE POUCY DIRECTIVE (AAPD), AAPD 05-04 amend. 1 (July 23, 2007). Adequate separation requires, among other factors, both physical and financial separation between recipient and affiliate. Id.
189. Although the funding restrictions originally were applied only to foreign NGOs, a controversial legal opinion issued by the Department of Justice's Office of Legal Counsel in September 2004 supported their application even to U.S.-based NGOs working abroad. See Letter from Daniel Levin, Acting Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Alex M. Azar, II, Gen. Counsel, U.S. Dep't of Health & Human Servs. (Sept. 20, 2004), available at http:// www.genderhealth.org/pubs/DOJtoHHS.pdf (withdrawing the Department's earlier advice that the provisions of the 2003 TVPRA and Global AIDS Act were limited to "foreign organizations acting overseas"). The decision spawned two lawsuits by NGOs claiming that the funding restrictions violated First Amendment prohibitions against compelled speech, viewpoint discrimination, and the imposition of "unconstitutional conditions" on grantees' privately funded speech.
190. Compare DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 764 (D.C Cir. 2007) (holding that the funding restrictions are constitutional),
191. with Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 570 F. Supp. 2d 533, 550 (S.D.N.Y. 2008) (issuing a preliminary injunction preventing the government from enforcing the funding restrictions). Neo-abolitionist feminists filed memoranda of law as amici curiae for e U.S. government in these cases.
192. See, e.g., Memorandum of Law of Apne Aap and Eighteen Other Organizations as Amici Curiae, Alliance for Open Soc'y Int'l v. U.S. Agency for Int'l Dev., 430 F. Supp. 2d 222 (S.D.N.Y. 2006) (No. 05-8209).
193. For example, the Brazilian government returned $40 million in grants on the ground that the restrictions would curtail its highly successful HIV/AIDS prevention program by undermining its ability to conduct effective outreach and programs with sex workers if its NGO partners were forced to state their explicit opposition to prostitution. See Michael M. Phillips & Matt Moffett Brazil Refuses U.S. AIDS Funds, Rejects Conditions, WALL ST. J., May 2, 2005, at A3.
194. See BRENNAN CTR. FOR JUSTICE, ALLIANCE FOR OPEN SOCIETY INTERNATIONAL V. USAID: QUESTIONS AND ANSWERS ABOUT THE AUGUST 8,2008 RULING GRANTING INTERACTION AND GLOBAL HEALTH COUNCIL A PRELIMINARY INJUNCTION 4 (2008), available at http://www.brennancenter.org/page/-/Justice/ Pledge%20Decision%202008%20Q%20and%20A.Final.pdf
195. See CTRS. FOR DISEASE CONTROL & PREVENTION, HIV PREVENTION STRATEGIC PLAN THROUGH 2005, at 22-23 (2001) (warning that stigmatization of vulnerable groups "profoundly affect[s] prevention efforts" because "people [who] may be shunned and physically harmed" may avoid seeking HIV/AIDS testing, information, and other related services);
196. CAROL JENKINS, UNAIDS, FEMALE SEX WORKER HIV PREVENTION PROJECTS.- LESSONS LEARNT FROM PAPUA NEW GUINEA, INDIA AND BANGLADESH 52 (2000) (concluding that "[t]raining to diminish moralistic and judgmental attitudes among staff proved to be successful" and that "the development of meaningful relationships with target groups is a key issue, requiring time and empathy" (emphasis omitted)).
197. Hughes 2003 Senate Statement, supra note 100, at 24. This sentiment was shared by John Miller, Director of GTIP, who wrote in an opinion piece that "well-intentioned people seeking to limit the spread of AIDS in at-risk populations, especially in the commercial sex industry, often ignore a larger challenge-helping to free the slaves of that industry." John R. Miller, Fight AIDS, of Course, but also Fight Prostitution, SEATTLE TIMES, May 20, 2004, http://community.seatdetimes.nwsource.com/archive/?date=20040520&slug= johnmiller20.
198. See World Health Org., HIV/AIDS Sex Work Toolkit: Key Principles, http.// http://www.who.int/hiv/topics/vct/sw-toolkit/context/en/index4.html (last visited Apr. 15, 2010) (listing "adopting a non-judgemental attitude" as a "key principle" of best practices in "sex work interventions").
199. Memorandum of Law of Apne Aap and Eighteen Other Organizations as Amid Curiae at 1, Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 430 F. Supp. 2d 222 (S.D.N.Y. 2006)
200. (No. 05-8209). Amici were comprised of anti-prostitution organizations, none of which appears to specialize in public health services. Compare id. (identifying the interests of these organizations, "mostly led by survivors of prostitution," which "view prostitution as an abuse of human rights"), with Amicus Brief on Behalf of AIDS Action and 25 Other Public Health Organizations and Public Health Experts in Support of Plaintiffs-Appellees at 2, Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 254 Fed. App'x 843 (2d Cir. 2007) (No. 06-4035) ("Amici's shared mission in combating HIV/AIDS is seriously threatened by the condition attached to funding provided by [the U.S. government] for international AIDS programs that NGOs-including U.S.-based organizations entitled to freedom of speech under the First Amendment of the Constitution-must adopt a policy explicitly opposing prostitution.").
201. See The U.N. and the Sex Slave Trade in Bosnia: Isolated Case or Larger Problem in the U.N. System?: Hearing Before the Subcomm. on International Operations and Human Rights of the H. Comm. on International Relations, 107th Cong. (2002) (considering allegations of U.N. police involvement in trafficking);
202. OFFICE OF THE INSPECTOR GEN., DEP'T OF DEFENSE, ASSESSMENT OF DOD EFFORTS TO COMBAT TRAFFICKING IN PERSONS, PHASE I-UNITED STATES FORCES KOREA (2003) (reporting on the Defense Department's investigation of "public allegations that U.S. military personnel, particularly those stationed in South Korea, are engaged in activities that promote and facilitate the trafficking and exploitation of women" (internal quotation marks omitted));
203. HUMAN RIGHTS WATCH, HOPES BETRAYED: TRAFFICKING OF WOMEN AND GIRLS TO POST-CONFLICT BOSNIA AND HERZEGOVINA FOR FORCED PROSTITUTION 6 (2002) (reporting that Human Rights Watch investigators found evidence that civilian contractors in Bosnia and Herzegovina, including some employed by the U.S. military, "engaged in trafficking-related activities");
204. Sealing Cheng, Muckraking and Stories Untold: Ethnography Meets Journalism on Trafficked Women and the US Military, SEXUALITY RESEARCH & SOC. POL'Y, Dec. 2008, at 6 (recounting the media attention that prompted the U.S. government to investigate the military's involvement in trafficking in South Korea).
205. See Martina Vandenberg, Out of Bondage: Defense Department Should Focus Attack on Global Trafficking in People, LEGAL TIMES, Feb. 14, 2005, at 53-54.
206. See, e.g., Cam Simpson, Pipeline to Peril: Desperate for Work, Lured into Danger, CHI. TRIB., Oct 9, 2005, at 1 (describing the trafficking in Nepalese men to work for army contractors in Iraq).
207. Military Extraterritorial Jurisdiction Act of 2000, Pub. L. No. 106-523, 114 Stat. 2488 (codified at 18 U.S.C. § 3261 (2006));
208. see also Vandenberg, supra note 126, at 52-53 (summarizing MEJA and criticizing the Defense Department for waiting four years before issuing implementing regulations).
209. See Vandenberg, supra note 126, at 53.
210. See id. at 52 ("[T] he Pentagon has actually adopted a zero tolerance policy merely on prostitution. What we have seen in the field is not zero tolerance for trafficking, but zero tolerance for whisdeblowers who report trafficking and zero prosecutions of traffickers.").
211. Enforcing U.S. Policies Against Trafficking in Persons: How Is the U.S. Military Doing?: Issue Forum Jointly Convened by the Comm'n on Security and Cooperation in Europe and the H. Armed Servs. Comm., 108th Cong. (2004), available at http:// www.csce.gov/index.cfm?FuseAction=UserGroups. Home&ContentRecord-id=287&ContentType=B&UserGroup-id=69.
212. See Vandenberg, supra note 126, at 52.
213. Exec. Order No. 13,387, 70 Fed. Reg. 60,697, 60,701 (Oct 18, 2005).
214. -2003 TVPRA § 3(b), Pub. L. No. 108-193, 117 Stat 2875, 2876-77 (codified as amended at 22 U.S.C. § 7104(g) (2006)). An earlier interim rule implementing this provision prohibited contractors, subcontractors, or contractor employees from "any activities ... that support or promote" the acts prohibited in the final rule.
215. See Federal Acquisition Regulation;
216. FAR Case 2005-012, Combating Trafficking in Persons, 71 Fed. Reg. 20,301, 20,302 (Apr. 19, 2006) (interim rule). This provision was ultimately removed at the behest of academic and research institutions, however, who commented that the restriction would interfere with scholarly social and behavioral research on such topics as the prevalence of sexually transmitted diseases among those in the sex industry.
217. See, e.g., Letter from Anthony P. DeCrappeo, President Council on Governmental Relations, to Gloria Sochon, Gen. Servs. Admin. (June 16,2006) (on file with author).
218. See Federal Acquisition Regulation;
219. FAR Case 2005-012, Combating Trafficking in Persons, 72 Fed. Reg. 46,335, 46,342 (Aug. 17, 2007) (revised interim rule). This rule was finalized in January 2009.
220. See Federal Acquisition Regulation, FAR Case 2005012;
221. Combating Trafficking in Persons, 74 Fed. Reg. 2741 (Jan. 15, 2009) (codified at 48 C.F.R. pts. 12, 22, and 52 (2009)).
222. Martina E. Vandenberg & Damien Specht, It's Not Just About Prostitution: FAR Compliance and Human Trafficking]. INT'L PEACE OPERATIONS, May-June 2009, at 17.
223. See, e.g. Letter from Patricia A, Meagher, ABA Section of Pub. Contract Law, to Laurieann Duarte, Regulatory Secretariat (VIR), Gen. Servs. Admin., at 10 (Oct 16, 2007) (noting that no federal law "criminalizes commercial sex acts" and arguing that "[t]he Revised Interim Rule would therefore penalize contractors for activities beyond illegal human trafficking");
224. Letter from Dr. Sarah E. Mendelson, Ctr. for Strategic & Int'l Stuthes, to Laurieanne [sic] Duarte, Regulatory Secretariat (VIR), Gen. Servs. Admin., at 5 (Oct 16, 2007) [hereinafter CSIS Letter] (observing that "[t]rafficking in persons and the procurement of a commercial sex act fall into two distinct legal categories" and that "procurement of a commercial sex act is not covered by federal law").
225. In defense, the U.S. government asserted that private-contractor employees' actions "reflect upon the Government's integrity and ethics" and that employee violations of this nature are "more likely to occur after working hours." Federal Acquisition Regulation;
226. FAR Case 2005-012, Combating Trafficking in Persons, 74 Fed. Reg. at 2742.
227. The government also refused to limit the requirement to "illegal" or "unlawful" commercial sex acts, arguing that "[c]ommercial sex venues are one of the prime areas in which trafficking victims are exploited, and customers are very often unable to tell the thfference between an inthvidual who has been trafficked and one who has not." Federal Acquisition Regulation;
228. FAR Case 2005-012, Combating Trafficking in Persons, 72 Fed. Reg. at 46,337.
229. Vandenberg & Specht, supra note 136, at 17.
230. See Cam Simpson & Aamer Madhani, Pipeline to Peril- U.S. Cash Fuels Human Trade, CHI. TRIB., at 15, Oct 9, 2005 (reporting that "[s]ome U.S. subcontractors in Iraq ... employ practices condemned by the U.S. elsewhere, incluthng fraud, coercion and seizure of workers' passports");
231. Fragmentary Order by General George Casey No. 06-188, Prevention of Trafficking in Persons in MNF-I (Apr. 4, 2006) (outhning policies aimed at preventing, among other problems, "illegal confiscation of worker... passports" and "deceptive hiring practices");
232. Memorandum from Robert K Boyles, Colonel, USAF, Principal Assistant Responsible for Contracting-Forces, Joint Contracting Command-Iraq/Afghanistan, on Withholthng of Passports, Trafficking in Persons, to All Contractors (Apr. 19, 2006) (threcting contractors to cease the practice of withholding employee passports and ordering them to return the passports by May 1, 2006).
233. See CSIS Letter, supra note 137, at 2-4 (arguing that the rule lacks explicit requirements for contractors and a clear definition of "forced labor"). The rule "stop[s] short of authorizing audits-which undoubtedly would prompt Contractors into compliance-or even of requiring a company to certify compliance with the prohibition against human trafficking."
234. Tenley A. Carp, The FAR and DEARS Ban on Human Trafficking-Heavy on Rhetoric, Light on Enforcement, GOV'T CONTRACTOR, Jan. 17, 2007,1 12, at 1. The final rule significantly softened the employers' obligation articulated in an earlier interim rule that would have required contractors to establish policies and procedures to combat human trafficking, to develop a human trafficking awareness program for employees, and to obtain written agreement from employees indicating they would abide by said policies and procedures.
235. See Federal Acquisition Regulation;
236. FAR Case 2005-012, Combating Trafficking in Persons, 71 Fed. Reg. 20,301, 20,303 (Apr. 19, 2006) (interim rule). Moreover, whereas a former rule required trafficking allega-tions be reported to the combatant commander,
237. see Defense Federal Acquisition Regulation Supplement;
238. Combating Trafficking in Persons, 71 Fed. Reg. 62,560, 62,561 (Oct 26, 2006) (interim rule), the final rule requires only reporting to the contracting officer, Federal Acquisition Regulation;
239. FAR Case 2005-012, Combating Trafficking in Persons, 74 Fed. Reg. at 2742. Unlike a combatant commander, the contracting officer might not wield sufficient power to ensure accountability for violations. Indeed, a whistleblower lawsuit recendy filed against ArmorGroup reveals the difficulty of achieving contractor compliance with the government-contract clauses and the ensuing impunity for noncompliance.
240. See Complaint for Declaratory, Injunctive, and Monetary Relief and Jury Demand, paras. 1, 3,
241. Gordon v. ArmorGroup North America, Inc., No. 09-01717 (D.D.C Sept 9, 2009) (alleging that the plaintiff was retaliated against after he reported serious violations, including violations of the TVPA, to the State Department).
242. See, e.g., Janice G. Raymond, Prostitution on Demand: Legalizing the Buyers as Sexual Consumers, 10 VIOLENCE AGAINST WOMEN 1156, 1157 (2004) (arguing that "male demand is a primary factor in the expansion of the sex industry worldwide").
243. See, e.g., Donna M. Hughes, Enslaved in the U.S.A.: American Victims Need Our Help, NAT'L REV. ONUNE, July 30, 2007, http://article.nationalreview.com/ 322852/enslaved-in-the-usa/donna-m-hughes (criticizing the lack of federally funded services for U.S. citizens who are victims of sex trafficking in the United States).
244. The U.S. government assessed this claim of discrimination by surveying its agencies' programs and practices and soliciting input from NGOs, but it found the services provided to American, as opposed to foreign, victims to be generally comparable.
245. See SUBCOMM. ON DOMESTIC TRAFFICKING, SENIOR POLV OPERATING GROUP ON TRAFFICKING IN PERSONS, FINAL REPORT AND RECOMMENDATIONS 8-12 (2007) (asserting that statutory differences in services available to domestic and international victims are based on the unique needs of certain international populations (for example, their ineligibility for cash and medical assistance available to U.S.-citizen victims of crime) and that "no empirical data were provided or gathered to support or refute" NGOs' claims that domestic victims are "less likely to have access to intensive case management services that many international victims have").
246. -2005 TVPRA, Pub. L. No. 109-164, § 201(a), 119 Stat 3558, 3567-68 (codified at 42 U.S.C. § 14044 (2006)).
247. Id § 204,119 Stat at 3571 (codified as amended at 42 U.S.C. § 14044c).
248. Id. § 202,119 Stat, at 3569-70 (codified at 42 U.S.C. § 14044a).
249. -2008 TVPRA § 106, 122 Stat 5044, 5049 (codified at 22 U.S.C. § 7106(b)(11) (Supp. 2008)).
250. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2007, H.R. 3887,110th Cong. sec. 221, § 2430 (2007).
251. Jessica Neuwirth, President, Equality Now, Statement to the New York City Council (June 11, 2008), available at http://www.equalitynow.org/english/ pressroom/press-releases/presidentstatement-20080613-en.html;
252. see also Donna M. Hughes, Wilberforce Can Free Again: Protecting Trafficking Victims, NAT'L REV. ONLINE, Mar. 12, 2008, http://article. nationalreview.com/351239/wilberforce-can-free-again/donna-m-hughes("[T] he Wilberforce Act will change the older Mann Act statute by eliminating its transportation-of-victims requirement.... When transportation across state lines is not provable, prosecutors will no longer need to show brutality or acts of fraud, force, or coercion....").
253. U.S. DEP'T OF JUSTICE, H.R. 3887: THE WILLIAM WILBERFORCE TRAFFICKING IN PERSONS REAUTHORIZATION ACT OF 2007, COMMENTS REFLECTING MANAGERS' AMENDMENT 1-2 (n.d.) (on file with author);
254. see also Letter from Chuck Canterbury, Nat'l President Fraternal Order of Police, to
255. Patrick J. Leahy, Chairman, Senate Comm. on the Juthciary, and Arlen Specter, Ranking Member, Senate Comm. on the Judiciary (Dec. 6, 2007) (voicing concern that the Act would "involve... the Federal government" in "simple prostitution cases ... unrelated to human trafficking"); Letter from Alexandria House et al., to Patrick J. Leahy, Chairman, Senate Comm. on the Judiciary, et al. 2 (Jan. 23, 2008) (criticizing as "unnecessary, confusing and resource draining" the Act's provision to "federalize[] all prostitution-related crimes as 'sex trafficking'").
256. See Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney Gen., U.S. Dep't of Justice, Office of Legislative Affairs, to
257. John Conyers.Jr., Chairman, House Comm. on the Judiciary 8-9 (Nov. 9, 2007) (arguing that the federal government "lacks the necessary resources and capacity to prosecute these [additional] offenses").
258. Brian W. Walsh & Andrew M. Grossman, Human Trafficking Reauthorization Would Undermine Existing Anti-trafficking Efforts and Constitutional Federalism, LEGAL MEMORANDUM (Heritage Found., Washington, D.C.), Feb. 14, 2008, at 1.
259. See, e.g, MD. CODE ANN., CRIM. LAW § 11-303 (LexisNexis 2002) (amended 2007, 2009) (criminalizing, among other tilings, "tak[ing] or caus[ing] another to be taken to any place for prostitution").
260. See Jacqueline Berman, (Un)popular Strangers and Crises (Un)Bounded: Discourses on Sex-Trafficking the European Political Community and the Panicked State of the Modern State, 9 EUR. J. INT'L REL. 37, 47 (2003) ("[Discourse is not separate from nor against power but is, in fact, a way of exercising it").
261. Id.
262. Wendy Chapkis, Soft Glove, Punishing Fist: The Trafficking Victims Protection Act of 2000 (quoting Representative Christopher Smith), in REGULATING SEX: THE POLITICS OF INTIMACY AND IDENTTIYSI, 53 (Elizabeth Bernstein & Laurie Schaffner eds., 2005).
263. See U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT, supra note 14, at 7 (reporting a figure of 18,000 to 20,000 men, women, and children trafficked into the United States for forced labor and sexual exploitation).
264. Chapkis, supra note 156, at 54.
265. Bernstein, Militarized Humanitarianism, supra note 7, at 8 (citing comments by Jessica Neuwirth of Equality Now).
266. Id.
267. See Srikantiah, supra note 90, at 170 nn.70-71, 171 (recounting the explicit stories of brutality).
268. Chapkis, supra note 156, at 60 (citation omitted).
269. See Bernstein, New Abolitionism, supra note 7, at 132-33 (noting "the extent to which the tropes that animated the moral panic around White Slavery in the last century have been recycled in campaigns against 'modern-day slavery'");
270. William F. McDonald, Traffic Counts, Symbols & Agendas: A Critique of the Campaign Against Trafficking of Human Beings, 11 INT'L REV. VICTIMOLOGY 143, 165 (2004) (asserting similarities in discourse between the current campaign and the historical "white slavery" campaign).
271. The ILO estimates that 2.45 million people are "in forced labour at a given time as a result of trafficking," broken down as follows: 43% for "commercial sexual exploitation," 32% for "economic exploitation," and 25% for "mixed" or "undetermined" forms. ILO 2005 REPORT, supra note 10, at 14 & fig.1.4. At the same time, the ILO estimates that there are 12.3 million people in forced labor, with 7.8 million in "economic exploitation" and 1.39 million in "commercial sexual exploitation." Id at 12 & fig. 1.2. The ILO thus identifies only 20% of all forced-labor cases as trafficking cases. Id. at 14. How the ILO distinguishes trafficking from forced labor remains unclear, however, and the breadth of the trafficking definition suggests that most-if not all-forced-labor cases would also qualify as trafficking cases. The 7:1 ratio of non-sex-sector to sex-sector forced-labor cases thus suggests at least the possibility that the number of non-sex-sector trafficking cases actually exceeds the number of sex-sector trafficking cases.
272. Bernstein, New Abolitionism, supra note 7, at 130.
273. See U.S. DEP'T OF JUSTICE, REPORT ON ACTIVITIES TO COMBAT HUMAN TRAFFICKING, FISCAL YEARS 2001-2005, at 25, 27 (2006) (reporting an increase from seven sex trafficking cases to sixty-eight sex trafficking cases and from eleven labor trafficking cases to twenty-three labor trafficking cases).
274. See Debbie Nathan, Oversexed: Antitrafficking Efforts Too Often Neglect Other Forms of Forced Labor, NATION, Aug. 29-Sept 5, 2005, at 27 (explaining that faith-based groups, feminists, the government, and the media focus on sex crimes).
275. See Nicholas D. Kristof, Back to the Brothel, N.Y. TIMES, Jan. 22, 2005, at A15;
276. Nicholas D. Kristof, Girls for Sale, N.Y. TIMES, Jan. 17, 2004, at A15;
277. Nicholas D. Kristof, The Good Daughter, in a Brothel, N.Y. TIMES, Dec. 17, 2006, at C13;
278. Nicholas D. Kristof, Op.-Ed., A Heroine from the Brothels, N.Y. TIMES, Sept 25, 2008, at A29;
279. Nicholas D. Kristof, If This Isn't Slavery, What Is?, N.Y. TIMES, Jan. 4,2009, at WK8. A constant refrain in Kristof s articles is that sex trafficking is the twenty-first century's version of slavery and that "the main difference is that the modern [victims] are dead of AIDS by their late 20s."
280. Kristof, The Good Daughter, in a Brothel, supra.
281. See, e.g, Nicholas D. Kristof, Slavery in Our Time, N.Y. TIMES, Jan. 22, 2006, at C17;
282. Nicholas D. Kristof, Op.-Ed., The 21st-century Slave Trade, N.Y. TIMES, Apr. 22, 2007, at WKS.
283. Peter Landesman, The Girls Next Door, N.Y. TIMES MAG., Jan. 25, 2004, at 30.
284. See, e.g., Children: The World Affairs Blog Network, Human Trafficking and Slavery Related Movies and Documentaries, http://www.children. foreignpolicyblogs.com/human-trafficking-and-slavery-related-movies-and- documentaries (last visited Apr. 15, 2010) (cataloguing such movies and documentaries). Popular offerings include TRADE Sex Slaves, and Luya 4-ever.
285. See id. Of particular note is the miniseries Human Trafficking developed by Lifetime Television-with the substantive input of feminist organization Equality Now and the faith-based International Justice Mission-and starring Mira Sorvino as an immigration agent who breaks up a sex trafficking ring.
286. See generally Kate Aurthur, Lifetime's Place Is in the House (and Senate): How Did Women's Television Turn into a Political Lobby?, N.Y. TIMES, Oct 16, 2005, at Al (discussing the movie). Lifetime encouraged its viewers to get involved in support of ending the demand for prostitution.
287. See Press Release, Lifetime, Mira Sorvino, Donald Sutherland and Robert Carlyle Star in the Lifetime Original Miniseries "Human Trafficking," a Chilling Portrayal of Today's Global Sex Trade and the Desperate Fight to Save Its Goundess Victims, available at http://www.feministcampus.org/HUMAN- TRAFFICKING-press-release.pdf (last visited Apr. 15, 2010) (announcing Lifetime's intent to use the miniseries as a platform to raise awareness and work with Congress to support the End Demand for Sex Trafficking Act of 2005). Ironically, it did so while widely publicizing the miniseries with "unabashedly seductive" ads depicting sexy young women, blindfolded and in bondage.
288. Sarah Karnasiewicz, Sex Sells: Is the Coverage of Sex Slavery About More than Human Dignity?, SALON.COM BROADSHEET, Oct 26, 2005, story/mwt/broadsheet/ 2005/10/26/sexslaves/print.html.
289. Cam Simpson, Desperate for Work, Lured into Danger, CHI. TRIB., Oct. 9, 2005, at 1;
290. Cam Simpson, Into a War Zone, On a Deadly Road, CHI. TRIB., Oct. 10, 2005, at 1.
291. See HUMAN RIGHTS WATCH, HIDDEN IN THE HOME: ABUSE OF DOMESTIC WORKERS WITH SPECIAL VISAS IN THE UNITED STATES 20-21 (2001).
292. See, e.g., Diplomatic Abuse of Servants Hard to Prosecute (NPR radio broadcast Mar. 1, 2007), transcript available at http://www.npr.org/templates/ transcript/transcript.php?storyId=7672967 (reporting on various individuals accused of domestic slavery);
293. Servants: Diplomat Held Us as Suburban 'Slaves,' (NPR radio broadcast Mar. 1, 2007), transcript available at http://www.npr.org/templates/transcript/ transcriptphp?storyId=7626754 (reporting on a Kuwaiti diplomat accused of holding three former workers as slaves).
294. In United States v. Lubis, for instance, the defendant was convicted of harboring twenty women for over eight years and farming them out to local households for domestic work during the week, threatening to kill their families if they fled, and sexually abusing two of them.
295. Freeman Klopou, Federal Judge Slams Feds for Not Charging Illegal Immigrants' Employers, WASH. EXAMINER, Aug. 14, 2009, http:// www.washingtonexaminer.com/local/Federal-judge-slams-feds-for-not-charging- illegal-immigrants-employers-8103073. The federal judge sentenced the defendant to only three years of probation and $2000 restitution, noting that he was "troubled" that he was being asked to send the defendant to prison when the employees had spent five days a week with their employers and only weekends with him.
296. Id. See generally United States v. Lubis, No. 09-00091 (E.D. Va. Feb. 11, 2009).
297. See, e.g., Jennifer Block, Sex Trafficking: Why the Faith Trade Is Interested in the Sex Trade, CONSCIENCE, Summer-Autumn 2004, at 32, 33 (explaining that "what's enthralled the media, the Christian right and the Bush administration is not the demanding, multi-layered narrative of migrants, but the damsels in distress, the innocents lured across borders" for prostitution);
298. Karnasiewicz, supra note 171 (criticizing the sexual nature of Lifetime's Human Trafficking miniseries and the media's focus on the sex trade instead of the labor trade).
299. See Jacqueline Berman, The Left, the Right, and the Prostitute: The Making of U.S. Antitrafficking in Persons Policy, 14 TUL. J. INT'L & COMP. L. 269, 281 (2006) ("At its most incendiary, abolitionists insist that '[w]omen became goods and services in an industry without national borders. The sex industry treats women as moveable property....' In the wake of such language, panic over the exploitation of (our white) women... can exponentially amplify." (footnote omitted)). Kidnapping is an oft-used trope in trafficking narratives, despite the fact that such occurrences are rare in actual trafficking.
300. See id. at 277 ("[T] he reduction of human trafficking to sexual slavery obfuscates the complexities that surround this practice ....").
301. Barbara Sullivan, Trafficking in Women: Feminism and New International Law, 5 INT'L FEMINISTJ. POL. 67, 76 (2003);
302. see also id at 75-77 (explaining and criticizing this view held by neo-abolitionist feminists while arguing that members of the sex trade are able to practice freedom and consent);
303. Noah D. Zatz, Sex Work/Sex Act: Law, Labor, and Desire in Constructions of Prostitution, 22 SIGNS 277, 280-81 (1997) (recognizing prostitutes' varying reactions to their experiences).
304. Ratna Kapur, Post-colonial Economies of Desire: Legal Representations of the Sexual Subaltem, 78 DEN. V. U. L. REV. 855, 866 (2001) (emphasis omitted).
305. Id. at 869. Some commentators argue that "poverty is a context but not the specific cause," of trafficking and "urge[] that '[a]cademics and policymakers move beyond 'poverty' and 'lack of education' to recognize the subdeties of the challenges and frustrations confronting people living in the less developed parts of our ... world.'"
306. Mike Dottridge, Responses to Trafficking in Persons: International Norms Translated into Action at the National and Regional Levels (citation and footnote omitted), in U.N. OFFICE ON DRUGS & CRIME, AN INTRODUCTION TO HUMAN TRAFFICKING: VULNERABILITY, IMPACT AND ACTION 103, 114 (2008).
307. See Kamala Kempadoo, Introduction: Globalizing Sex Worker's Rights, in GLOBAL SEX WORKERS: RIGHTS, RESISTANCE, AND REDEFINITION 1,11-14 (Kamala Kempadoo & Jo Doezema eds., 1998).
308. See Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the "Native" Subject in Intemational/Post-colonial Feminist Legal Politics, 15 HARV. HUM. RTS. J. 1, 18 (2002) (describing the image of a Third World woman as "truncated,... sexually constrained, tradition-bound, incarcerated in the home, illiterate, and poor").
309. Sullivan, supra note 179, at 76.
310. Laura Agustín, Migrants in the Mistress's House: Other Voices in the "Trafficking" Debate, 12 SOC. POL. 96, 110 (2005).
311. Id.
312. Id. at 98.
313. See infra text accompanying notes 268-70 (discussing the impact of legalization on migrant sex workers in the Netherlands). 189 Sullivan, supra note 179, at 79.
314. Zatz, supra note 179, at 291.
315. Margaret Jane Radin & Madhavi Sunder, Introduction: The Subject and Object of Commodification, in RETHINKING COMMODIFICATION: CASES AND READINGS IN LAWAND CULTURE 8, 14 (Martha M. Ertman & Joan C Williams eds., 2005) [hereinafter RETHINKING COMMODIFICATION]. Context is critical. Illustrating this point, Ann Lucas asks if, assuming bodily integrity is essential to personhood, a rape survivor is "less human" than others.
316. Ann Lucas, Prostitution, Law, and Commodification, in RETHINKING COMMODIFICATION, supra, at 248, 257. If, in an ideal world, "every adult would experience sexuality as communion and interpersonal sharing," then are the "voluntarily celibate" lower on the scale of "human flourishing"? Id.
317. O'CONNELL DAVIDSON, supra note 65, at 122.
318. Radin & Sunder, supra note 191, at 11.
319. Id at 12.
320. For further discussion of the commodification of sex, see generally Lucas, supra note 191, at 248.
321. Berman, supra note 154, at 58.
322. Bernstein, New Abolitionism, supra note 7, at 144.
323. Id. at 133.
324. Id. at 137.
325. See td. (arguing that this approach relies on "the beneficence of the privileged rather than the empowerment of the oppressed" and uses "criminal justice interventions" to effect social change).
326. Id. at 139;
327. see also Samantha Power, The Enforcer, NEW YORKER, Jan. 19, 2009, at 52, 57-60 (reporting on the experiences of IJM members involved in "rescues" at brothels).
328. See Soderlund, supra note 21, at 65-66 (noting the high degree of frequency with which "rescued" sex slaves escape from safe houses);
329. Maggie Jones, Thailand's Brothel Busters, MOTHER JONES, Dec. 2003, at 19 (describing similar occurrences, including ones in which the women bribed their rescuers to let them stay in the brothel);
330. Noy Thrupkaew, Beyond Rescue, NATION, Oct. 26, 2009, at 21 (reporting on the IJM's "rescue" work, including its successes and failures);
331. Noy Thrupkaew, The Crusade Against Sex Trafficking: Do Brothel Raids Help or Hurt the "Rescued"?, NATION, Oct 5, 2009, at 11
332. [hereinafter Thrupkaew, The Crusade Against Sex Trafficking] (same).
333. Landesman, supra note 170, at 36-37 (quoting Gary Haugen, IJM President).
334. Press Release, Concerned Women for America, Human Trafficking Now Tied for World's #2 Crime Second to Drug Dealing as Largest and Fastest-Growing (Dec. 6, 2005) (quoting Dr. Janice Shaw Crouse, Senior Fellow, Beverly LaHaye Institute, Concerned Women for America), available at http://www.newsbull.com/ forum/topic.asp?TOPIC-ID=28652;
335. see also Hughes 2002 House Statement, supra note 101, at 75 ("The trafficking process begins with the demand for victims to be used in prostitution and other commercial sex acts.").
336. Bernstein, New Abolitionism, supra note 7, at 144.
337. Thrupkaew, The Crusade Against Sex Trafficking supra note 202, at 11.
338. Aya Gruber, The Feminist Warm Crime, 92 IOWA L. REV. 741, 809 (2007).
339. Id. at 812 (quoting ELIABETH M. SCHNEIDER, BATTERED WOMEN & FEMINIST LAWMAKING 183 (2000)).
340. Id. at 809.
341. See supra discussion accompanying notes 15-17.
342. See Chuang, supra note 97, at 481 (arguing that a review of the Trafficking in Persons reports confirms that more credit is given to governments that make an effort to combat sex trafficking than to those that focus on trafficking for nonsexual purposes). The 2007, 2008, and 2009 Trafficking in Persons reports have made a much more concerted effort, however, to highlight the problem of labor trafficking and take countries to task for not addressing this problem.
343. See, e.g., U.S. STATE DEP'T, TRAFFICKING IN PERSONS REPORT 14-19 (2009)
344. See U.S. GOV'T ACCOUNTABILITY OFFICE, GAO 06-825, HUMAN TRAFFICKING: BETTER DATA, STRATEGY, AND REPORTING NEEDED TO ENHANCE U.S. ANTTTRAFFICKING EFFORTS ABROAD 2-3 (2006)
345. [hereinafter GAO, BETTER DATA] (concluding that the "accuracy of [trafficking] estimates is in doubt because of methodological weaknesses, gaps in data, and numerical discrepancies");
346. David A. Feingold, Trafficking in Numbers: The Social Construction of Human Trafficking Data (criticizing the mediods by which trafficking data are calculated and presented), in SEX, DRUGS, AND BODY COUNTS: THE POLITICS OF NUMBERS IN GLOBAL CRIME AND CONFLICT (Peter Andreas & Kelly Greenhill eds., forthcoming 2010). As the GAO notes, the "availability," "reliability," and "comparability" of the underlying data are "limited by several factors."
347. GAO, BETTER DATA, supra, at 15-16.
348. For instance, some countries "do not systematically collect data on victims," and those that do often focus on women and children trafficked for sexual exploitation, leaving other forms of trafficking underreported. Id. at 15. Moreover, the "capacity for data collection and analysis in countries of origin is often inadequate," and in countries of destination estimates are extrapolated from nonrandom, potentially nonrepresentative samples of reported victims. Id. at 15-16. The U.S. government for example, "essentially averages the various aggregate estimates of reported and unreported trafficking victims published by NGOs, governments, and international organizations, estimates that themselves are not reliable or comparable due to different definitions, methodologies, data sources, and data validation procedures." Id. at 13.
349. See GAO, BETTER DATA, supra note 212, at 16 ("The incompatibility of definitions for data collection is exacerbated by the intermingling of trafficking, smuggling, and illegal migration in official statistics.").
350. -214 International Convention to Suppress the Slave Trade and Slavery art 1, Sept 25, 1926, 46 Stat 2183, 60 L.N.T.S. 253 [hereinafter 1926 Convention].
351. The 1956 Supplementary Convention extends the 1926 Convention's application to "institutions or practices similar to slavery," a category that includes four servile statuses: debt bondage, serfdom, specific types of servile marriage, and child exploitation. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery art. 1, Sept 7, 1956, 18 U.S.T. 3201, 266 U.N.T.S. 3.
352. Sociologist and activist Kevin Bales popularized an expanded notion of slavery as including any form of dealing with human beings leading to the forced exploitation of their labor.
353. See KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY 6 (2004)
354. (defining slavery as "the total control of one person by another for the purpose of economic exploitation"). In so doing, Bales conflates forced labor and servitude with slavery. Forced labor is defined under international labor law as encompassing "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." Convention Concerning Forced or Compulsory Labour art 2(1), adopted June 28, 1930, 39 U.N.T.S. 55 (as modified by the Final Articles Revision, 1946). Though not defined in treaty law, the term "servitude" refers to the concept of "servile status" found in the Supplementary Convention and would thus include, for example, debt bondage, servile marriage, and trafficking in children. See Gallagher, supra note 11, at 802-03 & 803 n.49. Regrettably, some international law scholars have accepted Bales's expansionist interpretation, despite its inaccuracy as a matter of international law.
355. See, e.g., James G. Hathaway, The Human Rights Quagmire of "Human Trafficking " 49 VA. J. INT'L L. 1, 9 (2008) (defining slavery as any form of forced exploitation of one's labor).
356. For a comprehensive and cogent analysis of the international definition of slavery, see Gallagher, supra note 11, at 799-810.
357. Id. at 803. Indeed, as Gallagher notes, the drafters of the International Covenant on Civil and Political Rights (ICCPR) were "explicit... that the [instrument's] reference to the slave trade ... was not meant to encompass trafficking in women." Id.
358. -1926 Convention, supra note 214, art. 1.
359. Gallagher, supra note 11, at 798 & n.23.
360. Id. at 799 (alteration in original) (citation omitted).
361. Inconsistent statistics, combined with a general skepticism that such human rights violations can occur within U.S. borders, have caused mainstream media to latch onto numerical disparities. For example, a New York Times Magazine cover story describing in lurid detail the trafficking of girls into the United States for forced prostitution, Landesman, supra note 170, generated much skepticism about the presence of trafficking within our borders.
362. See, e.g, Jack Shafer, Sex Slaves of West 43rd Street, SLATE, Jan. 26, 2004, http://www.slate.com/id/2094414 (questioning Landesman's claim that tens of thousands of women and girls are held in forced prostitution in the United States);
363. see also Jack Shafer, Doubting Landesman, SLATE, Jan. 27, 2004, http://www.slate.com/id/2094502 (recounting the skeptical reactions of reporters from the Los Angeles Times and the Nation to the story);
364. Jack Shafer, Enslaved by His Sources, SLATE, Feb. 3, 2004, http://www.slate.com/id/2094896 (questioning the credibility of Landesman's sources);
365. Jack Shafer, How Not to Handle Press Critics, SLATE, Jan. 29, 2004, http://www.slate.com/id/2094648 (describing Landesman's angry response to Daniel Radosh's blog criticizing Landesman's article);
366. Jack Shafer, The Times Magazine Strikes Back, SLATE, Jan. 28, 2004, http://www.slate.com/id/2094580 (renewing criticism of the article after a New York Times Magazine editor defended it).
367. There is, indeed, a considerable gap between the estimated and the reported numbers of trafficked persons in the United States (tens of thousands per year and approximately two diousand since the year 2000, respectively).
368. See Jerry Markon, Human Trafficking Evokes Outrage, Little Evidence, WASH. POST, Sept 23, 2007, at Al (reporting the varying figures).
369. This disparity has raised concerns about the advisability of allocating federal dollars to a problem that may not exist to nearly the degree some statistics claim. The fact that the United States government paid a public relations firm nearly $12 million to find victims of trafficking as part of the government's outreach program, id., adds fuel to the fire.
370. See also Jerry Markon, In D.C. Area, Most Cases Involve Prostitution, WASH. POST, Sept 23, 2007, at A8 (noting the relatively low number of trafficking prosecutions in the D.C. area and stating that, even when such cases are prosecuted, they are similar to ordinary prostitution charges).
371. Just because this clandestine victim population is difficult to locate does not mean it does not exist
372. See, e.g., GAO, BETTER DATA, supra note 212, at 15 (acknowledging that "[t]rafficking victims are a hidden population," unlikely to come forward because of traffickers' threats or a distrust of law enforcement).
373. Rebecca Surtees, Trafficked Men as Unwilling Victims, 4 ST. ANTONY'S INT'L REV. 16, 25 (2008).
374. Zd. at 20.
375. Zd. at 23.
376. Id. at 28. An international study of shelter practices confirmed that women and girls comprise the "overwhelming majority of trafficked persons detained in shelters."
377. Anne Gallagher Sc Elaine Pearson, The High Cost of Freedom: A Legal and Policy Analysis of Shelter Detention for Victims of Trafficking 32 HUM. RTS. Q. 73, 95 (2010).
378. The researchers attributed this to the fact that "[w]omen and girls are more likely to be identified through official channels as trafficked" than are men and boys, though "this does not necessarily support a claim that females are trafficked at a greater rate than males." Id
379. Surtees, supra note 222, at 23, 26.
380. See U.N. Econ. & Soc. Council [ESOSOC], Comm'n on Human Rights, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women, paras. 4748, U.N. Doc. E/CN.4/2000/68 (Feb. 29, 2000) (reporting emigration restrictions affecting women in Nepal and Romania);
381. GALLAGHER, supra note 63, at § 3.2.1; N
382. ANA OISHI, WOMEN IN MOTION: GLOBAUZATION, STATE POUCffiS, AND LABOR MIGRATION IN ASIA 5961,60 tbl.3.2 (2005)
383. (detailing emigration restrictions on female migration in Asia).
384. OISHI, supra note 227, at 60 tbl.3.2.
385. See Declaration of Dr. Carol Jenkins, para. 15, Memorandum of Law in Support of DKT International's Motion for a Preliminary Injunction Ex. 3, DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 435 F. Supp. 2d 5 (D.D.C 2006) (No. 05-01604).
386. See id. para. 14; see also sources cited supra note 121.
387. Declaration of Dr. Carol Jenkins, paras. 11, 13, DKT Int% 435 F. Supp. 2d 5 (No. 05-01604). Dr. Jenkins notes that "despite an HIV prevalence of 75 percent among the sex workers of Addis Ababa, no agency funded by USAID (the largest single funder) can provide proper prevention services." Id para 13. Moreover, in Papua New Guinea, agencies formerly funded by USAID were "forced to secure [alternate] funding to cover literacy and other empowerment activities for sex workers."
388. Id; see also Letter from Human Rights Watch et al. to President George W. Bush (May 18, 2005), available at http://www.hrw.org/en/news/2005/05/17/us- restrictive-policies-undermine-anti-aids-efforts
389. www.hrw.org en news/2005/05/17/us-restrictive-policiesundermine-anti- aids-efforts (detailing, in a letter signed by over 150 civil-society organizations, the harms of the anti-prostitution gag rule).
390. Nicole Franck Masenior Sc Chris Beyrer, The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities, 4 PLOS MED. 1158, 1160 (2007).
391. See infra subsection III.B.3.
392. See Thrupkaew, The Crusade Against Sex Trafficking, supra note 202, at 18 (reporting that, after raids in Cambodia, "pimps believed that local HIV-education and social work NGOs had aided IJM and the police, and [there]after... cut off the groups' access to the women and barred them from providing care").
393. Masenior & Beyrer, supra note 232, at 1159.
394. Proponents of the Sonagachi Project's work include Holly Burkhalter, formerly with Physicians for Human Rights and currendy Vice President of Government Relations for IJM.
395. See Holly Burkhalter, Better Health, Better Lives for Sex Workers, WASH. POST, Dec. 8, 2003, at A25
396. (encouraging "U.S. funding of local nongovernmental groups that have records of excellence in promoting empowerment and organization" of sex workers and citing the Sonagachi sex-worker union as a model). The potential negative effects of the pledge are not, however, limited to the fields of HIV/AIDS prevention, prostitution, and trafficking. As many feminists and public health advocates noted, the application of the anti-prostitution pledge could open the door to expansion of the Mexico City antiabortion gag rule-traditionally imposed only on foreign NGOs-to U.S.-based recipients of overseas family-planning funds.
397. See, e.g., Susan A. Cohen, Ominous Convergence: Sex Trafficking Prostitution and International Family Planning GUTTMACHER REP. ON PUB. POL'Y, Feb. 2005, at 12, 14, available at http://www.guttmacher.Org/pubs/tgr/08/l/ gr080112.pdf Editorial,
398. Taking the Prostitution Pledge, N.Y. TIMES, July 2, 2005, http://www.nytimes.com/2005/07/02/opinion/02sat3.html.
399. The Mexico City global gag rule on abortion prohibited the U.S. Agency for International Development (USAID) from providing funds to organizations overseas that use non-USAID funds to provide abortion counseling or services or to engage in abortion-rights advocacy. See Memorandum on Mexico City Policy and Assistance for Voluntary Population Planning, 74 Fed. Reg. 4903 (Jan. 23, 2009). President Reagan instituted the rule in 1984; it was rescinded by President Clinton in 1993 but reinstated by President George W. Bush in 2001. Id. Concerns over the possible extension of the Mexico City rule have been alleviated by the fact that President Obama lifted the gag rule shortly after assuming office. See id. President Obama has not, however, reversed the anti-prostitution pledge. Though the Department of Justice initially dropped the Bush Administration's appeal of an injunction against application of the anti-prostitution pledge issued in the Alliance for Open Society International litigation, it recently sought to reinstate the appeal.
400. See Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., No. 084917 (2d Qr. Jan. 14, 2010) (reinstating appeal).
401. See Thrupkaew, The Crusade Against Sex Trafficking supra note 202, at 13.
402. Though IJM has refined its techniques, its "early raids resulted in [the group] being branded vigilante 'cowboys' and 'cops for Christ'" that swooped into Cambodia and Thailand to conduct raids without consulting local NGOs or having a viable plan for the aftercare of those rescued, leaving the local NGOs to deal with the fallout. Id. at 14; see also Jones, supra note 202 (describing how many of those rescued ultimately
403. fled the shelters to return to prostitution);
404. Tara McKelvey, Of Human Bondage, AM. PROSPECT, Nov. 2004, at 17, 19 (reporting that those rescued by IJM are often unable to safely return to their home countries).
405. See, e.g., Thrupkaew, The Crusade Against Sex Trafficking, supra note 202, at 13
406. (describing IJM's "symbolic quest to provide individual rescue" to "the one"-"[t]he one girl deceived[,] [t]he one girl kidnapped[,] [t]he one girl raped[,] [t]he one girl infected with AIDS" (internal quotation marks omitted) (quoting Sharon Cohn Wu, Senior Vice President of Justice Operations, IJM)). Soderlund, supra note 21, at 79.
407. See ELAINE PEARSON, ANTI-SLAVERY INT'L, HUMAN TRAFFIC, HUMAN RIGHTS: REDEnNlNGVlCTIM PROTECTION 33 (2002) ("For many trafficked persons, they are not 'rescued' from their situation, but are captured by the audiorities.").
408. For some, the choice amounts to either "be[ing] raped for free in Burma or paid to do commercial sex work." Thrupkaew, The Crusade Against Sex Trafficking, supra note 202, at 16 (internal quotation marks omitted).
409. Routine detention of actual or suspected victims of trafficking potentially violates a number of fundamental principles of international law. For a comprehensive analysis of the legality of detention practices, see Gallagher & Pearson, supra note 225, at 83-103, which reviews the international legal framework governing victim detention and concludes that detention may violate the right to freedom of movement, thus constituting an unlawful deprivation of liberty, and discriminate on the basis of gender.
410. Id. at 107. Some victims have gone to great lengdis to escape the shelters-for example, one tried to climb out a window, only to fall and be hospitalized for severe injuries. See Jones, supra note 202, at 20;
411. Thrupkaew, The Crusade Against Sex Trafficking supra note 202, at 14.
412. Jones, supra note 202, at 19 (internal quotation marks omitted).
413. See Thrupkaew, The Crusade Against Sex Trafficking supra note 202, at 16.
414. Id. at 18.
415. Id. Another example of amplified harms resulting from the law-and-order approach IJM heralds is the aftermath of a nearly $1 million grant IJM received to instruct the Cambodian police in countertrafficking. Human rights organizations had strongly criticized IJM's decision to partner with the Cambodian police, given the history of police involvement in trafficking, through extortion of brothel owners, and in assaults and rapes of sex workers. Id. It came as litde surprise, therefore, when the Cambodian government conducted "indiscriminate sweeps of streets and brothels" that resulted in three detainees being beaten to death by prison guards and five detainees committing suicide. Id. at 19. Though IJM was not involved in the sweeps, the Cambodian NGO community nonetheless blamed IJM for blindly "engaging] with law enforcement while failing to heed the voices of those they ostensibly protect" Id.
416. Id. at 18. 251 Lag om förbud mot kõp av sexuella tjänster (Svensk författningssamling [SFS] 1998:408) (Swed.) [Act on Prohibiting the Purchase of Sexual Services].
417. SeeStb. 1999, 464 (Nedi.).
418. Gunilla Ekberg, a former Swedish government advisor and anti-prostitution activist wrote an article that has provided the basis of knowledge upon which neoabolitionist strategies and approaches have been constructed.
419. See Gunilla Ekberg, The Swedish Law That Prohibits the Purchase of Sexual Services, 10 VIOLENCE AGAINST WOMEN 1187 (2004).
420. In the article, Ekberg situates herself firmly in the neo-abolitionist camp, characterizing prostitution as a form of sexual violence regardless of the circumstances and as inseparable from the issue of sex trafficking. Id. at 1189-90.
421. See WORKING GROUP ON THE LEGAL REGULATION OF THE PURCHASE OF SEXUAL SERVS., MINISTRY OF JUSTICE & THE POUCE, PURCHASING SEXUAL SERVICES IN SWEDEN AND THE NETHERLANDS: LEGAL REGULATION AND EXPERIENCES 9 (2004) (Nor.) [hereinafter NORWEGIAN STUDY] (noting a total of 2500 prostitutes in Sweden at the time the law was enacted, 650 of whom worked on the streets);
422. Don Kulick, Sex in the New Europe: The Criminalization of Clients and Swedish Fear of Penetration, 3 ANTHROPOLOGICAL THEORY 199, 200 (2003)
423. (noting that "the total number of street prostitutes in all of Sweden has never numbered more than about 1000").
424. See BERNSTEIN, supra note 7, at 153 (reporting Swedish sex workers' insistence that the law has only driven prostitution underground).
425. Id.; see also NORWEGIAN STUDY, supra note 254, at 11 (reporting a 41% decrease in the number of street prostitutes in Sweden between 1998 and 2003); Kulick, supra note 254, at 204 (describing the drop-but also return-in the number of street prostitutes in Sweden).
426. NORWEGIAN STUDY, supra note 254, at 52.
427. Kulick, supra note 254, at 203-04.
428. Id. at 204; see also NORWEGIAN STUDY, supra note 254, at 53.
429. See NORWEGIAN STUDY, supra note 254, at 13 (explaining that the women have less time to judge a client's character and conduct before deciding to be alone with him).
430. See id. at 13, 19;
431. Kulick, supra note 254, at 204.
432. NORWEGIAN STUDY, supra note 254, at 53;
433. Kulick, supra note 254, at 204. 263 BERNSTEIN, supra note 7, at 146.
434. Id. at 149-51; Kulick, supra note 254, at 200.
435. BERNSTEIN, supra note 7, at 150.
436. Id. at 151 (quoting Swedish Prostitution Commission member Sven Azei Mänsson).
437. Id. at 159.
438. Id. at 157.
439. See id at 163.
440. Id.
441. Ronald Weitzer, The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade, 35 POL. Sc SOCV447, 448 (2007).
442. -2004 FACT SHEET, supra note 104, at 1.
443. A cursory comparison between the claims made on the Fact Sheet against the handful of sources cited is revealing. The Fact Sheet broadly asserts that "89 percent of women in prostitution want to escape," id., but the source cited in support-and there was in fact only one source, as the two sources listed in the footnote were reprints of each other-only examined prostitution in nine countries. See id. at 2 n.l
444. (citing Melissa Farley et al., Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, in PROSTITUTION, TRAFFICKING, AND TRAUMATIC STRESS (Melissa Farley ed., 2003)).
445. The Fact Sheet claimed that "where prostitution has been legalized or tolerated, there is an increase in the demand for sex slaves." Id. at 2 (emphasis omitted). However, the Fact Sheet relies on a journalistic account see id. at 2 n.7
446. (citing VICTOR MALAREK, THE NATASHAS: INSH)E THE NEW GLOBAL SEX TRADE (Arcade Publishing, Inc., 2004)
447. -(2003)), that has been criticized for "proving little" despite "all [its] anger and bluster."
448. Mark Athitakis, From Russia Without Love: Sex Slaves; Muckraking Canadian Journalist Pens Angry Report on an International Scandal, CHI. SUN-TIMES, Oct. 17, 2004, at 12, available at 2004
449. WLNR 15530276 (reviewing the Malarek book and noting the need for "a careful, considered, and thorough piece of reporting, an exposé with more rigor and less rant").
450. Ronald Weitzer, Flawed Theory and Method in Stuthes of Prostitution, 11 VIOLENCE AGAINST WOMEN 934, 934 (2005) (emphasis omitted).
451. In Flawed Theory, Weitzer examines articles published by Raymond and Farley. See id at 940-41.
452. Farley, whose work is cited in the 2004 FACT SHEET, is director of the staunch anti-prostitution organization, Prostitution Research & Education. See Prostitution Research Sc Education, About Prostitution Research Sc Education, http:/www.prostitutionresearch.com/abou.thtml (last visited Apr. 15, 2010). Raymond is coexecutive director of CATW.
453. See Coal. Against Trafficking in Women, Biography of Janice Raymond, http://www.catwinternational.org/bio-JaniceRaymond.php (last visited Apr. 15, 2010).
454. A major objective of one of the Raymond stuthes was to create a profile of "prostitute users" and to gather information on "men's attitudes and treatment of women in prostitution." Raymond, supra note 141, at 1167. As Weitzer points out however, Raymond "did not interview even one customer" and "citefd] not one academic study published in a scholarly journal" in support of her findings, "despite the fact that there is a growing body of academic research on customers." Weitzer, supra note 274, at 940. Raymond thus opted not to follow the "canon of academic research diat audiors situate their findings in the related scholarly literature to highlight similarities and differences in findings and build on prior work." Id. 276 Weitzer, supra note 274, at 940-41. 277 Id. at 942.
455. Id. at 940.
456. Zd. As Weitzer states, "[b]iased procedures beget foregone conclusions." Id. Sampling biases include selecting as interview subjects street prostitutes approached in the street (as opposed to including women working in indoor venues), prostitutes who had contacted service agencies (and thus were likely in distress), or prostitutes interviewed in jail. Id. at 938. In one study, interviews were conducted by former prostitutes who had been victims of assault and thus could believe that prostitution itself is a form of violence against women. See id. The introduction to the 2003 Farley study cited in the Fact Sheet reveals the bias of the researchers, stating that "[prostitution dehumanizes, commodifies and fetishizes women.....In prostitution, there is always a power imbalance.... Prostitution excludes any mutuality of privilege or pleasure." Farley, supra note 273, at 34. In its "Mediods" section, the study reveals that the countries selected for the study "were included in the study because investigators in those states shared a commitment to documenting the experiences of women in prostitution, and in some instances to providing alternatives to prostitution." Id. at 37 (emphasis added). The fact that the interviews were conducted by the study's authors raises the question whether the interview questions-which were not fully disclosed-were neutrally phrased and presented. See generally id. at 41-42, 51 tbl.8.
457. See Letter from Ann Jordan, Initiative Against Trafficking in Persons, Global Rights, et al., to Ambassador John Miller, Dir., Office to Monitor and Combat Trafficking in Persons, U.S. Dep't of State (Apr. 21, 2005) (on file with author).
458. E-mail from Ambassador John Miller, Dir., Office to Monitor and Combat Trafficking in Persons, U.S. Dep't of State, to Ann Jordan et al. (May 27, 2005, 16:57) (on file with audior).
459. See, e.g, U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT, supra note 211, at 49-50 (reporting that these countries are fully compliant with the requirements of the TVPA).
460. See GAO, BETTER DATA, supra note 212, at 37 ("The United States has provided about $375 million in antitrafficking assistance since 2001....");
461. Frank Laczko, Introduction, 43 (1/2)
462. INT'L MIGRATION (Special Issue) 5, 6 (2005)
463. ("[I]n 2003 the US Government alone supported 190 anti-trafficking programmes in 92 countries, totaling US$ 72 million....").
464. Cf. GAO, BETTER DATA, supra note 212, at 37; Laczko, supra note 283, at 6.
465. See BRIDGET ANDERSON & JULIA O'CONNELL DAVIDSON, INT'L ORG. FOR MIGRATION RESEARCH SERIES NO. 15, Is TRAFFICKING IN HUMAN BEINGS DEMAND DRIVEN? A MULTI-COUNTRY PILOT STUDY 43 (2003) ("Clamping down on demand for street prostitution does nothing to address-and may even strengthen-demand in other segments of the market...");
466. see also BERNSTEIN, supra note 7, at 144 ("[W]hile streetbased sex workers and their clients were driven off the streets ..., new kinds of commodified intimate relations were being fostered behind closed doors.");
467. Vidyamali Samarasinghe, Confronting Globalization in Anti-trafficking Strategies in Asia, 10 BROWN J. WORLD AFF. 91, 102 (2003) (noting that while the Swedish decriminalization law reduced demand for prostitutes in Sweden, demand increased in neighboring countries because the male clients went abroad to satisfy their desires).
468. ANDERSON & O'CONNELL DAVTDSON, supra note 285, at 44.
469. Tellingly, treaties designed to protect migrant workers' rights have abysmal ratification rates. Not a single major destination country has signed the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. See United Nations Treaty Collection, Status of Treaties, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
470. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsg no=rV-13&chapter=4&lang=en (last visited Apr. 15, 2010).
471. Margaret Jane Radin, Contested Commodities, in RETHINKING COMMODIFICATION, supra note 191, at 81, 85.
472. See generally High-Level Dialogue on International Migration and Development, United Nations General Assembly, 14-15 September 2006, http://www.un.org/ migration (last visited Apr. 15,2010).
473. SEE CHRISTINA BOSWELL & JEFF CRISP, U.N. UNTV. WORLD INST. FOR DEV. ECON. RESEARCH, POL"Y BRIEF NO. 8, POVERTY, INTERNATIONAL MIGRATION AND ASYLUM 1820 (2004) (discussing the political aspect of immigration restrictions in "receiving countries").
474. KAYE, supra note 9, at 13.
475. Indeed, studies suggest that only a proportion of migration flows can be absorbed by expanded legal migration schemes. Moreover, migrant networks "can make migration flows self-perpetuating, implying that a small expansion of legal routes could in fact increase the demand for illegal migration." BOSWELL Sc CRISP, supra note 290, at 28.
476. See, e.g., Agustín, supra note 185.
477. See supra note 139 and accompanying text
478. See ANDERSON & O'CONNELL DAVTDSON, supra note 285, at 31-32.
479. Id. at 30.
480. Zd. at 32.
481. Id. at 46-47.