Fordham Law Groups Take On Trafficking Laws
Though sex workers’ rights have been a focus of Leitner Center’s International Human Rights Clinic for the past five years, only recently has the conversation about those rights been extended to the larger Fordham Law community. Professor Chi Mgbako, an advocate for sex workers’ rights, hosted panels in both the fall and spring semesters to address the recent trend within the anti-trafficking movement of equating sex work with sex trafficking. The panels were held in response to a conference on anti-trafficking held at Fordham in October.
“Too often, we are talking about sex workers, talking down to them,” Mgbako said. “But sex workers are capable of speaking about their own lives and diverse needs, so it was important for me to provide that platform, especially in light of recent conferences at Fordham Law School that conflate trafficking and sex work.”
On October 5, 2012, the Feerick Center for Social Justice hosted a conference focused on New York’s campaign against trafficking. In his planned opening remarks, Chief Judge of the New York Court of Appeals Jonathan Lippman called sex trafficking “a relatively new and challenging topic for us all” and praised the Feerick Center for hosting “the state’s first multi-disciplinary working conference on best practices for professionals working with sex trafficking victims.”
“The emergence of the sex trafficking problem as a focus for our attention has parallels with where we were just a few decades ago on the subject of domestic violence,” Lippman said. “Domestic violence was considered primarily a private family matter. But through the work of so many from a variety of disciplines, including government, law, medicine, psychology, and sociology, among others, domestic violence is now accepted as the violent crime that it is and as a serious social problem. We have made tremendous strides in how we respond to those cases when they reach the courts.”
According to Lippman, the Midtown Community Court in Manhattan heard 125 prostitution cases in the first half of 2012. Of the defendants in those cases, 37 percent “reported histories that meet the legal definition of trafficking under New York State and federal law,” he said.
The conference was held in response to use of New York State trafficking laws by Manhattan District Attorney Cyrus R. Vance Jr. The state’s anti-trafficking laws were passed in 2007 but made news again in May 2012 when Vance’s office charged 14 men with sex trafficking simply for soliciting prostitution.
According to Kali Peterson, a 3L student, the conference was largely anti-prostitution. But despite the focus, she felt it had a lot to offer an ongoing discussion.
“One event is never going to capture all of the perspectives. This conference focused on one part of the conversation. There are other, equally important parts, but it simply is not possible to talk about every issue at once. This conference was more practical than theoretical, which is limited, but perhaps necessarily so.”
Mgbako said that no discussion based on eliminating prostitution is productive. She said the conflation between sex trafficking and sex work completely misses the broader need for social reform within the sex industry, and smarter policing of trafficking. Sex work is not sex trafficking, she said.
“There are definitely people who are trafficked into prostitution, but pursuing laws and policies that wrongly label all people in the sex industry as trafficked has done absolutely nothing to help trafficking survivors and has led to violence and harm against sex workers. It has been a successful method for anti-prostitution advocates to pursue their ideological agenda, but it is not reflective of the diverse experiences and realities of people in the sex industry.”
Panelists at the most recent event, co-hosted on February 7, 2013 by Law Students Against Trafficking, Advocates for Sexual Health and Rights, and the Leitner Center, said that trafficking laws are over-inclusive. Sienna Baskin, co-director of the Sex Workers Project at the Urban Justice Center, said that a recent law was passed in Massachusetts that defines any person who might hire a sex worker as a trafficker if that sex worker is later found to fall under the definition of a trafficked person.The Massachusetts law mandates enforcement in the same way Vance creatively used New York State’s anti-trafficking laws.
“Even definitions that seem clear cut are contested, and they’re not always resolved,” Baskin said. “But one thing that we find to be a dangerous trend is that there is this continual push to expand this definition, to make human trafficking cover more and more and more people and activities.”
Criminalizing the solicitation of sex work, known as “end demand” laws, negatively affect sex workers by pushing sex work further underground and making it harder to screen clients, said Kate D’Adamo, community organizer with the Sex Workers Outreach Project of New York City. Decriminalization of selling sex and criminalization of buying sex does little to mitigate the problems within the industry, she said.
“For adults that work in the sex industry, end demand laws are incredibly problematic because they make screening that much harder,” she said. “When your client base is terrified that every single person is going to be a police officer they’re that much less likely to give you legal names, to give employment information, to allow you to verify that they have a connection to the community. . . . The implications are very clear and that is that people in the sex trade end up in significantly more violent, more dangerous, and more precarious situations.”
Trafficking laws don’t just negatively impact sex workers, but also endanger homeless youth in New York City, said Johannah Westmacott, Coordinator for Trafficked Minors at the Safe Horizon Streetwork Project. According to Westmacott, the lack of shelters in the city (there are 200 to 250 shelter beds for an estimated 4,000 homeless youth) leads many underage youth to resort to survival sex, “trading” sex for shelter, food, or money.
The law presumes that underage youth are either engaged in prostitution or are being trafficked—even when the “trafficked” person doesn’t consider him or herself to be in such a situation, she said. Westmacott said the reality of trafficking involves a very small population, but the numbers being used cover a much broader demographic for whom the response is not going to be the same.
“If something is defined as a crime, like trafficking is, that means there is a criminal perpetrating it. When you have a crime, you arrest the person, have a trial, lock up the criminal, and that means the problem is solved because they’re no longer going to be victimizing anybody,” Westmacott said.
She added that putting somebody in jail because they provided shelter or support to an underage youth and had consensual sex doesn’t actually address the needs of homeless youth. Oftentimes such arrests leave the “victims” on the streets without any form of support. These laws also disproportionately affect racial minorities, and LGBT youth. “We have a lot of young people in this situation who are not being served by a response that only addresses [trafficking],” she said.
Westmacott said that the trafficking laws fail to address the needs of homeless youth in the city, and cited a recent report that the majority of harassment homeless youth actually encounter is from police and hospital workers.
While the laws being used are relatively new, D’Adamo has been working on the underlying issues for more than a decade. D’Adamo has participated in both sex-workers rights panels hosted at Fordham Law this academic year. On Feb 7, she said that as the current anti-sex trafficking discussion developed, she realized the terminology and framework used fit the community organizing work she had already been doing with farm laborers.
Some advocates, like D’Adamo, say they want the anti-trafficking movement to stop criminalizing sex work and focus on people who are actually trafficked.
“We talk about sex trafficking and it’s this thing that’s removed from labor trafficking, like it’s totally different and they have nothing to do with each other,” she said. “They’re in the same bill, and they have two different definitions and if you don’t accept that premise, then trafficking can look very, very differently. If we look at other labor movements, and ask ‘well how do you deal with exploitation of farm labor?’ the answer isn’t ‘well clearly we shouldn’t have farms.’”
D’Adamo said that a human rights centered approach is far more likely to address the needs of those that the law currently defines as trafficked, as in the case with domestic workers. In 2010, the New York legislature passed the Domestic Workers Bill of Rights, which was aimed at ending trafficking-style abuses in the domestic labor industry.
“Right now you have this criminal justice dichotomy where you have trafficking on one side and sex work on the other . . . but it’s not a dichotomy. Sex work is an industry, sex work is a form of labor, and trafficking happens sometimes within that form of labor,” D’Adamo said.
Mgbako said the failure of the current trafficking movement is that it focuses all of its efforts on criminalization rather than the human rights that sex workers say they are being denied.
“If you’re concerned with abuses of people in the sex industry, then fight for sex workers’ increased access to de-stigmatized health services, fight against rampant police abuse of sex workers, fight for sex workers’ increased access to justice when they’re the victims of crime, fight for their labor rights, and fight against laws and policies that only further entrench their vulnerability,” she said. “If you’re concerned with young people trading sex for survival, then fight for the things they need so they are not in that position, for instance access to voluntary housing and job training for homeless youth.”
–David James Harvey, editor in chief