A need for greater legislative clarity, implementation and enforcement by Member States to tackle sexual exploitation

June 12, 2017

 

    (Photo cred : University of Hull)

 

Introduction

 

This article discusses the UN Special Rapporteur on Contemporary Forms of Slavery on country visits, critiquing the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women, and children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol). 

 

Furthermore, it will address the implementation of International policy objectives within National Legal Frameworks of Ghana, and Mauritania as country visits of the UN Special Rapporteur set out to combat contemporary forms of slavery, due to a specific focus on sexual exploitation; albeit the fact there are other forms of exploitation.

 

It will also address the formation of law based on patriarchal conceptions and entrenched with pre-existing theological understandings that perpetuate gender inequality and contribute to greater vulnerability to sexual exploitation. The analysis will also evaluate the key vulnerabilities of discriminatory norms as found in reports of the UN Special Rapporteur; including the gender impact and religious subordination, albeit the fact there is also slavery and poverty and slavery and discrimination. In rebuttal, my argument will also address the critique held as to a lack of sufficient protection for male vulnerability and furthermore for Key Vulnerable Populations including Men who have sex with Men (MSM) and transgender individuals.

 

Furthermore, addressing the rebuttal discourse held by Yvonne Zimmerman & Melissa Ditmore, comments on the contestation of a lack of focus on impoverishment and lack of access to education as highly contributory drivers of human trafficking, whereby gender inequality is no longer the sole cause. In this way, advocating for gender inequality as a significant cause and consequence of sex trafficking, however, raising the argument that is not the sole cause of situations of modern slavery. The impact of gender inequality, albeit has significant aftermath and consequences faced by victims of sex trafficking, who face stigma and discrimination on the basis of violating religious, cultural and societal norms.

 

Legislation

 

The gendered perception of Human Trafficking has been historically rooted in the public concern over ‘unsupervised' women who ‘bring to the fore a myriad of concerns, primarily focused on morality and chastity' (Ditmore, 2012). The conception acts as a form of immobilising women's economic independence and autonomy in order to preserve the sanctity of religious and societal norms that has become an inherent form of gender inequality. The discriminatory norms that formulate the position of women and their ‘use' (pleasure and procreation), is central to the method and rhetoric used in the formation of legislation on Anti-Trafficking (Ditmore, 2012), as evident from the United Nations Convention 1949 (exclusively dealing with prostitution). The impact of religious norms, especially in terms of ‘corrupting public morality' within society has a significant impact on international policy objectives, with a lack of recognition of either domestic work or of sex work within the provisions of the International Labour Organisation (ILO). In such ways, I contest the discourse held by Siddharth Kara, on the basis that validate ‘male sexual demand’ (Kara, 2010) and focus solely on trafficking measures on the economic supply-side, re- enforcing patriarchal conceptions regarding the use and role of women. The definition used for Human Trafficking (Trafficking in Persons) in Article 3(a) of the Palermo Protocol is held as the ‘recruitment, transportation, transfer, harbouring or receipt of persons, by threat or use of force or other forms of coercion, of abduction, of fraud, of deception....Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation...’. The endless debate regarding sex work and its impact on human trafficking, poses the questions of ‘Is all participation in the sex industry (including, particularly, prostitution) trafficking?’ (Ditmore, 2012), ‘is such participation a violation of human rights?’ (Ditmore, 2012). However, the equating of sex work and trafficking leads to an ‘overly simple analysis that neglects the core issue of trafficking, namely migration, while refocusing the discussion on other problems’ (Ditmore, 2012, p. 107). Likewise, the UN Special Rapporteur is primarily concerned with issues of sexual exploitation, as opposed to the trafficking process as a whole (acquisition, transportation/movement, exploitation) (Kara, 2010) or other forms of exploitation and torture endured in this process. As such, the artificially narrow focus is ‘doubly perilous: abolitionist approaches to sex work have led to the imposition of limitations on women’s mobility in the name of protecting them against the twin ‘evils’ of prostitution and trafficking’ (Ditmore, 2012).

 

The concept of ‘vulnerability’ as held in the definition of Human Trafficking within the Palermo Protocol, is at the heart of this notion, seemingly due to the ideals of a specific need for protection of women for issues of ‘honour’ and ‘chastity’. In such ways, the concept takes away freedoms from women and hence normalises the notion that prostitution is a form of VAW, as this could never be a choice but one caused by need, poverty or situations of vulnerability. The conception of human trafficking defined by the Palermo Protocol is based upon notions of consent, however, the World Bank proposals for the role/approach that they might take in the fight against human trafficking is defined by categories of non-consensual and consensual exploitation and a means that is preventative (Koettl, 2009). The significance of this approach as opposed to the definitions found in the ‘first world’ (e.g. the United Kingdom) remains ineffective to the protection of vulnerable people. It is problematic because it does not recognise smuggled persons as ‘vulnerable’ but amounts to colluding in the crime, therefore the State cannot offer protections under the Modern Slavery Act 2015. Therefore, the movement stage of the ‘trafficking’ process (acquisition, movement, exploitation) (Kara, 2010) is conceptually vague and inadequate for protection. The World Bank, however, recognises that exploitation may be consensual due to the severity of economic difficulty due to situations of poverty and need (Koettl, 2009). In this way, there is a need to implement greater policies targeting poverty and the lack of access to education that is prevalent in situations of economic exploitation (Koettl, 2009). The International Labour Organization (ILO) notes the debate as to whether trafficking must involve some movement of the trafficked victims either within or across national borders together with the process of recruitment, or whether the focus should be only on the exploitation that occurs at the end (International Labour Organization, 2009). Therefore, there should be a greater focus on the points of criminal behaviour that should each be addressed individually, rather than as a whole. In such ways, the socio-economic factors and lack of access to education are highly contributory to vulnerability to trafficking for the purpose of sexual exploitation.

 

 

There is significant evidence found by country visits of the UN Special Rapporteur on Contemporary Forms of Slavery (including Ghana, Niger, and Mauritania) based on the significant impact of gender discrimination confining existing marginalized groups, into situations of increased vulnerability. The nature of human trafficking can be seen to have a particular preference to women (although there are cases of male exploitation) and to young children (The World Bank, 2009). The concept is evident in policy by the provision held in Article 2(a) ‘Statement of Purpose’ (Palermo Protocol) ‘to prevent and combat trafficking in persons, paying particular attention to women and children’. However, the rebuttal held by Yvonne Zimmerman – on the contrary, critiques the assumption that human trafficking is caused by ‘femaleness’ (Zimmerman, 2013) and having significantly greater impact on women and children (when men are equally at risk). The confines of which exaggerates the interactions of gender inequality and modern slavery (exploitation).

 

Catherine MacKinnon, in contrast, as a radical feminist, emphasises the debate that ‘all sex is rape’ and as such defines all forms of sexual intercourse as a form of violence against women, the perception, albeit extreme reinforces the ‘dominant/submissive’ (MacKinnon, 2007) discourse that confines the notions and concepts used to envisage international and national law on the vulnerability of women. The inherent institution of patriarchy and gender discrimination inevitably confines women to objects for sexual usage (MacKinnon, 2007) for the pleasure of men, which is central to this discourse. Most technical definitions of human trafficking are neither gender nor labour specific. E.g. in the definition of human trafficking provided by the Palermo Protocol mentioned earlier, there is no necessary link between human trafficking and either woman, sexual exploitation, or sex work. Neither being female, nor exploitative sex nor exchanging sex for money is a necessary element of a bona fide trafficking crime according to this definition. The term of ‘human trafficking’– is therefore actually an umbrella category that encompasses a wide range of actions and outcomes and is applicable to many different scenarios. The meaning of this assertion varies depending on how much emphasis a reader places on ‘innocent’, one implication is the femaleness itself is a ‘cause’ of trafficking as if human trafficking is a problem predicted on the mere existence of women and children, or too many women and children. Furthermore, are the policy objectives of CEDAW, that forbids all forms of discrimination against women and calls on ‘states parties to identify and eliminate any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women of their human rights and fundamental freedoms’. In essence, it enjoins states parties to take appropriate measures against all forms of trafficking in and exploitation of women through prostitution.

 

Thus, a necessity of greater implementation of the Palermo Protocol within legislation, as well as enforcement in national criminal justice systems is essential to combating sexual exploitation. The critique by the United Nations Office for Drugs and Crime (UNODC) Report states that countries who have not implemented this cannot be expected to see convictions, while other related overlaps should be assessed (UNODC Global Report on Trafficking in Persons (February 2009) and furthermore small variations in statutory language and legal traditions that made comparisons difficult (UNODC Global Report on Trafficking in Persons (February 2009)). Although, there is still a need for a greater focus as to the changes in legal regime or the resources dedicated to combating trafficking also can aid in interpreting trends within countries.

 

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