Finding Peace with a Deal in a Time of Abolitionism
Reflections on Anette Sikka’s “Trafficking in Persons: How America Exploited the Narrative of Exploitation”
(55 Tex. Int’l L.J. 1)
By Elissa C. Steglich, University of Texas School of Law Clinical Professor
In early 2002, I found myself seated at a table with a small group of human rights advocates from around the world. We were charged with drafting recommendations for the implementation of the newly-minted UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. The Protocol offered the rare opportunity to advance a human rights agenda globally. Adopted by the UN General Assembly in November 2000, powerful states, including the United States, Germany, France, Russia and Saudi Arabia, quickly signed the Protocol.[1] Where other treaty projects such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families had failed to gain broad commitment of the wealthiest nations,[2] the Protocol as attached to the UN Convention Against Transnational Organized Crime, had the world’s attention. The “cool kids” were finally at the human rights party.
Through many hours of discussion, the drafting group crafted a document that represented our collective hope for where the new anti-trafficking framework would take the world. The Recommended Principles, issued by the UN High Commissioner on Human Rights Mary Robinson, leads with a reminder to States of the primacy of human rights in anti-trafficking efforts. It continues:
Anti-trafficking measures shall not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum-seekers.[3]
Through my youthful eyes, the big states’ enthusiasm for anti-trafficking work appeared genuine. Even being aware of the pre-existing ideological divide on sex work (or prostitution, depending on your position), I believed that the broader human rights framework would prove useful at the international and national levels, with room for various approaches at the local level where the impacted persons could participate.
In the United States, where the awkward alliance of Christian conservatives and women, children and immigrant rights advocates supported the passage of the Trafficking Victims Protection Act of 2000 (TVPA), it seemed possible to have it all: a more victim-centered approach from law enforcement, immediate protections against deportation for affected migrants, increased agency of formerly enslaved persons, and funding to support human rights-based training and services. It was rewarding work to offer legal services to trafficked persons and to train lawyers and social service providers, police and federal agents, prosecutors and child welfare workers. The movement was energized, and I recruited numerous partners to join in the anti-trafficking caravan.
I stepped back from the trafficking world in 2006, as the political winds were beginning to shift. Federal funding and discourse began to focus on domestic prostitution. From my vantage point, I felt some relief at having left the trafficking network when I did, knowing that the political battles necessary to keep doing the work in support of survivors would prove exhausting. Still, I felt proud of the work that had been done. We had secured protection and immigration status for a significant number of people. Civil suits against traffickers filled in where criminal investigations fell short, especially in the area of labor trafficking.
Anette Sikka’s article “Trafficking in Persons: How America Exploited the Narrative of Exploitation,” with its comprehensive and careful survey of the making of the modern trafficking world, removed the rose-colored tint in my glasses. It was a sucker-punch, making me question and even regret the trainings I provided to Department of Homeland Security (DHS) agents and foreign members of the judiciary on trafficking. Had I, in the name of human rights, contributed to the building of this international system of oppression?
Sikka’s points are well-taken: the trafficking movement is top-down; definitions do not resonate with those at the grassroots level; the movement introduced significant amounts of federal funding that corrupts state and local priorities; the media will not let go of the singular trafficking story of an innocent kidnapped into sexual slavery who after withstanding unspeakable abuses rushes into the arms of a savior praising his heroism and seamlessly returns to a life of freedom. Those of us in the movement recognized (and complained loudly about) all of these aspects.
The negative outcomes Sikka tallies are excruciating to read: migrants arrested, penalized and deported for failing to match the victim profile; police blindly following an anti-prostitution crusade furthering enforcement against racial minorities; and policymakers investing in an outsized enforcement strategy to keep women and people of color subordinate in the hierarchy of power. The news offers plenty to add to her accounting. In December, The Daily Beast reported on a joint operation between the federal DHS and local law enforcement in Mohave County, Arizona.[4] After assuming control over an investigation into sex trafficking at local massage parlors, DHS agents paid for and received sexual services at the businesses. Two years and $15,000 tax dollars later, federal agents are now refusing to testify in the county prosecutions, resulting in dropped charges. The impact of the raids on the workers is unwritten.
Even the T visa, which offered so much promise to immigrants in the United States as protection against deportation for identified victims of trafficking, has become a weapon. Refugees International surveyed recent decisions showing a bottoming out of the T visa program.[5] Denial rates are now at 46%, up from 19% in 2016. Coupled with the current administration’s pledge to refer immigrants into deportation proceedings if their applications are denied and they otherwise lack immigration status, the incentive for any undocumented migrant being trafficked to report to law enforcement or apply for protection has dissolved.
It is hard to escape concluding that all told, anti-trafficking legislation—at the state, national and international level—has done more harm than good, especially to the persons in whose name it was passed. The compromise that had seemed so workable two decades ago backfired in all the ways Sikka deftly points out.
But hindsight is tricky. At the time the TVPA and the UN Protocol were drafted, the immigrant rights community was still reeling from the pernicious impacts of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: deportations of long-time permanent residents with family and deep community ties to the United States together with expedited removal policies, including for asylum seekers. The TVPA, with new visas for immigrant survivors of all sorts of criminal activity, was assessed as a great deal. Indeed, T and U visas have provided security to tens of thousands of immigrants.
After September 11, 2001, any stand-alone, immigrant-friendly legislation was politically impossible; not even the DREAM Act, with its strong bi-partisan support could make it through both chambers. Yet the strange bedfellows that supported the TVPA maintained their relationship to reauthorize the legislation in 2008 with the Wilber Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), which included increased protections for immigrant children. The current administration’s mission to dismantle the TVPRA is evidence enough of its advances for immigrant children’s rights and due process.
In the labor trafficking sphere, the law has given survivors a tool to seek compensation directly from their exploiters.[6] It has also been used as a platform for collective action. And lawyers are now using the TVPA to hold the private prison industry accountable for the forced labor that makes its federal contracts for immigrant detention centers profitable.[7] A lot of good has come from the law.
I cannot help thinking that Sikka’s negative assessment of the anti-trafficking movement—or perhaps more accurately my own guilt after reading her article—is made possible by the growing (and welcome) acceptance of abolitionism as policy. Open borders as a remedy to international trafficking was never on the table two decades ago. Now decriminalization of illegal entry into the United States is a subject of presidential debates. In 2000, prosecution of human rights violators was lauded. The current social justice movement toward decarceration questions the need for criminal prosecution. To be fair, legalization of sex work has long been part of the discussion and a reality in many places, but those voices were more muted in the United States.
Perhaps Sikka did not intend her article to criticize those of us who supported the TVPA and the growth of the anti-trafficking movement. Nevertheless, I welcome the refection it provoked. Lawmakers, policy makers and advocates alike should wrestle with her argument. We all have room to improve. And in this changed landscape where every feature of the immigration system seems weaponized against non-citizens and every step is being taken to consolidate white, male authority, we all need to be vigilant.
I hold out hope that the very malleability of the trafficking definition that Sikka identifies will be a source of empowerment. The diversity in the anti-trafficking movement will ensure that the tide will turn again when an administration more committed to human rights returns to the White House. In the meantime, advocates may find more room to progress at the local level and to cultivate new leadership among marginalized community members so that they can set the future agenda.
[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, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&lang=en (listing 117 signatories and 175 state parties).
[2] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Dec. 18, 1990, 2220 U.N.T.S. 3, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&clang=_en (registering only 39 signatories and 55 state parties).
[3] U.N. Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, para. 3, https://www.ohchr.org/Documents/Publications/Traffickingen.pdf.
[4] Emily Shugerman, Arizona DHS Agents Paid to Have Sex With Alleged Sex Trafficking Victims They ‘Rescued,’ Daily Beast, Dec. 24, 2019, https://www.thedailybeast.com/department-of-homeland-security-agents-paid-to-have-sex-with-alleged-sex-trafficking-victims-they-rescued?ref=scroll.
[5] Yael Schacher, Abused, Blamed, and Refused: Protection Denied to Women and Children Trafficked Over the U.S. Southern Border, Refugees International, May 21, 2019, https://www.refugeesinternational.org/reports/2019/5/21/abused-blamed-and-refused-protection-denied-to-women-and-children-trafficked-over-the-us-southern-border.
[6] See, e.g., Workers Sue Local Growers for Trafficking, Labor Violations, Texas Rio Grande Legal Aid, Jan. 15, 2019, https://www.trla.org/press-releases-1/workers-sue-local-growers-for-trafficking-labor-violations.
[7] Madison Pauly, A Judge Says Thousands of Detainees May Sue a Prison Company for Using Them as a “Captive Labor Force,” Dec. 5, 2019, https://www.motherjones.com/crime-justice/2019/12/immigration-detainee-geo-forced-labor-lawsuit/.