In the 1990s, the international community was sharply divided in its approach to the definition of trafficking in women. Until the drafting of the 2001 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, the main international legal document concerning trafficking was the 1949 United Nations Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. The 1949 Convention took an approach to trafficking and prostitution that required states parties to punish any person who "[p]rocures, entices or leads away, for the purposes of prostitution, another person, even with the consent of that person; [or] [e]xploits the prostitution of another person, even with the consent of that person." As the Special Rapporteur on Violence Against Women noted in her 2003 Report, this approach began to be challenged in the mid-1990s by advocates who argue that sex work is a legitimate commercial enterprise and who call for the decriminalization and licensing of prostitution.
In part because the 1949 Convention was weakened by the lack of monitoring and enforcement mechanisms, a new international framework for dealing with trafficking in persons was needed. This framework was provided by the 2001 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons. In defining trafficking, drafters of the Protocol had to negotiate around the differences between advocates endorsing the approach similar to that taken in the 1949 convention and advocates favoring the regulation of commercial sex work. These differences centered on the question of consent in commercial sex work.
Some advocates argued for a definition of trafficking that would include all commercial sex work, regardless of whether the woman involved had consented. These advocates took the position that prostitution is inherently exploitative because even when prostitution would appear to be consensual, the choices of the woman involved were usually the product of poverty or past abuse. Therefore, they argued that the question of "consent" should be irrelevant. In addition, including the question of consent in the definition of trafficking would help traffickers by giving them a defense against prosecution, while placing a burden on the victim of trafficking, who would then be required to show that she did not consent. For more information on this position please see the website of the Coalition Against Trafficking in Women and A Guide to the New UN Trafficking Protocol by Janice G. Raymond.
On the other side of the debate, some advocates rejected the notion that voluntary participation in prostitution could be considered trafficking, and sought to draw a clear distinction between consensual and forced prostitution. These advocates argued that women should be free to make choices about how to live their lives, including the choice to enter prostitution. In addition, she maintained that punishing all prostitution might simply drive prostitution underground, making already marginalized women further subject to exploitation. For more information on this position please see the website of the Global Rights: Partners for Justice.
The definition of trafficking adopted in the 2001 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons reflects a compromise. The language adopted allows individual states to choose how they will address prostitution. The definition states:
(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(Emphasis added.) Interpretive Note 13 of the Protocol explains that two phrases were intentionally left undefined:
The travaux préparatoires should indicate that the Protocol addresses the exploitation of prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms "exploitation of the prostitution of others" or "other forms of sexual exploitation" are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws.
By allowing domestic laws on prostitution to prevail, the Protocol allows states to regulate or ban prostitution as they choose.
Articles 3(b) and (c) of the U.N. Protocol directly address the question of consent. Article 3(b) makes consent irrelevant where "any of the means set forth in subparagraph (a)," i.e. force or coercion, "have been used." Article 3(c) makes consent irrelevant where the victim is a child. Interpretive Note 19 addresses the concern that the question of consent might be used to place the burden of proof on the victim of trafficking:
The travaux préparatoires should indicate that subparagraph (b) should not be interpreted as imposing any restriction on the right of accused persons to a full defence and to the presumption of innocence. They should also indicate that it should not be interpreted as imposing on the victim the burden of proof. As in any criminal case, the burden of proof is on the State or public prosecutor, in accordance with domestic law.
The U.N. Protocol definition of trafficking was adopted by the European Union in 2002. The EU Council Framework Decision on combating trafficking in human beings uses language that is nearly identical to that found in the U.N. Protocol. This Decision is binding on Member States, and must be implemented in domestic law before August 2004. By choosing to adopt a definition similar to that of the Protocol, the EU deferred to the national laws of its Member States, leaving the decision about whether to regulate or abolish prostitution to the individual States.
In 2003, the U.S. State Department created a Model Law to Combat Trafficking in Persons. While the basic definition adopted is similar to that of the U.N. Protocol, the Model Law defines certain terms that the Protocol leaves to the interpretation of individual states. The Model Law specifically defines "exploitation" to include "engaging in any form of commercial sexual exploitation, including but not limited to pimping, pandering, procuring, profiting from prostitution, maintaining a brothel, child pornography . . . ." Interpretive Note 16 further suggests that "[e]xploiting the prostitution of another," a term the Protocol explicitly leaves undefined, "can be defined as obtaining of a financial or other benefit from the prostitution of another person."
Global Rights: Partners for Justice has also developed suggested language for defining trafficking in domestic law. Global Rights argues that the Protocol definition is not appropriate for adoption in domestic criminal law, because it contains "descriptive and potentially confusing elements." Global Rights proposes the following definition for use in domestic criminal law: "'Trafficking in persons' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by any means, for forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs." Global Rights argues that this definition can be more easily applied in criminal codes because it "eliminates the necessity to prove that threats, coercion, fraud, etc., are used to move a person into the trafficking situation," and also removes any possibility that the burden of proof might rest on the victim. This definition shifts the focus from the "means" by which people are moved, to the "process of moving people from one place to another in order to hold them in forced, labor or slavery." Those who favor including all commercial sex work within the definition of trafficking, however, argue that the Global Rights' definition distorts the intent of the Protocol. From Global Rights Annotated Guide to the 2001 United Nationsl Protocol to Prevent, Suppress and Punish Trafficking in Persons.
Despite signs of a growing consensus on the international definition of trafficking in human beings, there remains debate over the correct approach to trafficking in domestic law. Human rights advocates and government institutions continue to discuss exactly what activities should and should not be considered trafficking. As trafficking is a complex issue, with interrelated social and economic factors, the most effective approach may be to adapt one's working definition of the problem to the specific task or project. For example, while legislation requires a precise description of prohibited behavior, outreach or rehabilitative work may be the most effective if trafficking is defined expansively.
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