National The Telegraph - Weekly (Nepal)

NATIONAL

Dr. Catrin Evans Ms. Pankaja Bhattarai

It is generally agreed that trafficking involves a two-step process: the movement of a person to a site of work, and the subsequent extraction of that person’s labor. If exploitation, coercion, deception or abuse of that person’s human rights occurs along the way, that person has been trafficked. Accordingly, the UN Special Rapporteur on Violence against Women has defined trafficking as follows (Coomaraswamy 1997):

Trafficking in persons means the recruitment, transportation, purchase, sale, transfer, harboring or receipt of persons:

by threat or use of violence, abduction, force, fraud, deception or coercion (including the abuse of authority) or debt bondage, for the purpose of:

placing or holding such person, whether for pay or not, in forced labor of slavery like practices, in a community other than the one in which such person lived at the time of the original act described.

Trafficking, as defined above, may involve a number of different processes. This is important in understanding the links between trafficking and related concepts such as legal or illegal migration and sex work.

Trafficking and Migration

Migration is commonly understood to involve the voluntary movement of persons within or across borders in search of a better means of livelihood. However, migration can become linked with trafficking in two ways. Firstly, a person may voluntarily choose to migrate but may be deceived about the kind of work they are subsequently expected to do. In this case, what started as migration has become trafficking. Secondly, a person may willingly migrate for employment but may be trafficked on from the initial employment site (e.g., a carpet factory). The initial process was not trafficking and no crime was committed until the second process of migration occurred. Hence, while trafficking normally involves migration, migration does not always involve trafficking. This distinction is significant for potential anti-trafficking interventions. Given that trafficking may occur either in a person’s original home base (often a rural community) or in a subsequent work-site (often an urban area), interventions should cover BOTH locations. Interventions should also recognize that in each site, the factors that create the need or desire to migrate and the vulnerability to being exploited in the process might be quite different.

Likewise, it is important that anti-trafficking interventions consider their direct or indirect impact on a person’s right to mobility. Anti-trafficking interventions can easily (and sometimes inadvertently) become anti-migration interventions. However, it is difficult to distinguish voluntary migration from trafficking at the departure point since the deception, if present, has not yet become apparent. It is only after arrival at an unexpected and exploitive outcome that the crime of trafficking is revealed.

Both of the major international anti-trafficking networks, the Global Alliance Against Trafficking in Women (GAATW) and the Coalition Against Trafficking in Women (CATW), agree that interventions should primarily focus on addressing the abuse of human rights occurring during migration or at the workplace rather than on hindering migration per se:

"With the traditional subsistence culture no longer a viable means of livelihood, women often migrate for their own survival. It is therefore imperative that a woman’s right to mobility not be impinged upon but rather that the human rights of those who choose to migrate be secured" (WOREC/CEDPA 1999:41).

Another distinction arises with respect to legal and illegal migration. Where legal migration across borders is not possible (e.g., because people lack the relevant documents or where the process of obtaining these is inaccessible to the poor and illiterate), people may migrate illegally. If these persons are trafficked and subsequently intercepted by state authorities, the focus is usually upon their status as illegal migrants rather than as trafficked persons and the crimes committed against them go un-redressed. As pointed out by WOREC/CEDPA (1999:41):

"a holistic approach must be taken to focus upon the social, economic and political circumstances that force a woman to migrate instead of targeting her as a criminal and blaming her for the discrimination she faces."

Trafficking and Sex Work

Trafficking in women and children is often assumed to be trafficking into prostitution. This assumption needs to be challenged. Evidence shows that women and children are also trafficked into other sectors of the informal economy, such as domestic work or factory work (Sattaur 1993). Sexual exploitation is a common experience for many trafficked (and non-trafficked) persons, but a conceptual distinction needs to be made between this kind of abuse occurring in a variety of settings and involvement in organized sex industries. Nonetheless, though accurate statistics are hard to come by, it is known that many women and children are trafficked for the purpose of prostitution.

Two different issues have tended to frame the trafficking and prostitution debate. The first concerns the distinction between women and children entering prostitution. This issue emerges as an important point within the trafficking debate more generally and will be discussed separately in Section 3.3. The second issue refers to a debate about whether or not it is possible for women to enter the sex trade ‘voluntarily’ and, even if they do, whether sex work per se is an abuse of women’s rights. Within this latter debate, three main positions can be identified.

The first position is represented globally by the Coalition Against Trafficking in Women (CATW), and finds expression among activist groups or networks in many countries, including Nepal. This position proposes that prostitution is inherently degrading to women and that, ideally, sex work should be abolished. Both trafficking and prostitution per se are seen as an abrogation of women’s rights and a violation of their dignity. However, more recent declarations by CATW are framed within a human rights paradigm and recognize the difficulties of eliminating prostitution altogether. Hence, while eliminating prostitution remains a long-term goal, CATW also strongly stresses the need to:

"provide rights and protections for women in conditions of sex trafficking and prostitution" (CATW 1999:1).

The second position is represented by the Global Alliance Against Trafficking in Women (GAATW) and allied groups and takes the view that adult women have the right to choose to engage in sex work:

"it is not prostitution that the anti-trafficking framework opposes but the violation of rights that may occur while involved in that work. Although a woman may enter into prostitution by choice, she does not choose the exploitative conditions she is forced to endure. It is therefore the exploitative conditions and not the sex work itself that need to be targeted" (WOREC/CEDPA 1999:24).

Though these positions appear to be at odds, they do both agree on the need to address the exploitative conditions inherent in many sex trades and to protect the rights of women involved in sex work.

The result of the debate between the CATW and GAATW positions is that both organizations use the term trafficking to refer only to forced prostitution. In recent years, however, a third position has crystallized. This position challenges the dichotomy between forced and voluntary prostitution, and questions the usefulness of the trafficking discourse with respect to sex work. Advocates of sex workers’ rights organizations who point out that focusing upon forced prostitution may in fact set up and reinforce the traditional ‘Madonna/whore’ dichotomy within the category ‘prostitute’ (Kempadoo and Doezema 1998). The Madonna is the innocent ‘victim’ of trafficking whereas the whore is the guilty so-called voluntary prostitute. Hence, while various international conventions now acknowledge the need to protect the rights of trafficked prostitutes, not a single convention promotes the rights of all women involved in sex work. Indeed, many states place the distinction between guilty and innocent women at the heart of their legislation on prostitution and trafficking. In Germany for example, the penalty for trafficking is reduced in cases where the person knew she was going to be a prostitute. Likewise, in countries such as Colombia, Uganda, Brazil, Canada, and Japan, legislation exists whereby the use of violence to force a person into prostitution is only prohibited in cases where the woman concerned is of ‘undisputed virtue’ (Doezema 1998:45).

As Frederick (1998) points out, the process of entry into sex work is often a complex one, where, in reality, the distinction between trafficking and consensual entry may be extremely blurred. It may be the same set of social, familial and economic circumstances that lead women to choose to enter sex work, or to choose to migrate (and perhaps end up trafficked). Even where women enter sex work by ‘choice’ they may not know beforehand exactly what this work entails and may be unprepared for its exploitative nature. Once involved, however, they may become embroiled in the same processes of slavery-like conditions or debt-bondage as trafficked women and are as unable to escape as the latter. Conversely, women who are originally trafficked into sex work, may, after some time, conclude that this represents a profitable livelihood strategy and may not necessarily wish to be ‘rescued.’

Within a human rights framework, it is morally impossible to distinguish between women who ‘deserve’ protection and those who do not. Abuse is abuse. Anti-trafficking interventions should respect the wishes and human rights of women in prostitution (however they got there), and any exclusive focus upon ‘trafficked women’ should not inadvertently worsen the situation for others.

Excerpts from a paper presented by the authors at a workshop held recently in Kathmandu-Chief editor