READER SEXUAL
2024-2025
, TRAFFICKING IN HUMAN BEINGS –
LEGAL APPROACHES AND POLICIES
ABRAMSON: BEYOND CONSENT TOWARD SAFEGUARDING HUMAN
RIGHTS: IMPLEMENTING THE UN PROTOCOL
2000: the UN General Assembly adapted the Protocol to Prevent, Suppress and Punish trafficking in
Persons, especially Women and Children
- Grows out of the concern over the security issues & human right dimensions of the movement
of people across & within borders (focus on human rights in this article)
- Many different definitions permeated the drafting process of the Protocol & affected the
definition of trafficking
- The debate has centered on Women & Children
o Discourse on trafficking becomes simply another forum for pro- and anti-prostitution
debat
o Gender issues transcend sex work
The debate over the definition of trafficking in women & sex work hinges on
the issue of consent
THE UN TRAFFICKING PROTOCOL & EFFORTS TO DEFINE
THE UN PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING
IN PERSONS, ESPECIALLY WOMEN AND CHILDREN
The Trafficking Protocol initially was intended to apply only to women and children but was expanded
to cover men as well.
- Consent: the unwieldy note on consent, in effect, reinforces the main definition of trafficking
as a per se forced act, but in the end does little to answer the question of whether consent
can be accommodated within the parameters of trafficking activity.
- Children: they are explicitly held to be trafficking if they are under 18 and are recruited,
transported, held, or received for exploitation, regardless of the methods used to recruit,
transport, hold or receive them.
Although the Trafficking Protocol recognizes all people as potential victims, it places special emphasis
on the conditions of women and children, as its title suggests.
Smuggling Protocol:
- Smuggling = the procurement, in order to obtain, directly or indirectly, a financial or other
material benefit, of the illegal entry of a person into a State Party of which the person is not a
national or permanent resident no mention of consent
- the divergent roles of consent in the protocols are closely tied to the gendered stereotypes
that undergird them
o Consent is an issue in the Trafficking Protocol because it is largely seen as an
instrument to protect the stereotypical “trafficking woman”
o The stereotypical smuggled person is a male economic migrant who has weighed his
options and chosen to migrate for better economic opportunities
1
,The contrast set up by the two documents is problematic because the line between trafficking and
smuggling is often blurred, and it created an artificial distinction by gendering protocols as either male
(smuggling) or female (trafficking).
- The gendered categories of the protocols both reflect and perpetuate the debate over the role
of consent in trafficking
EFFORTS TO DEFINE TRAFFICKING
- In the years surrounding the adoption of the UN Trafficking Protocol, international
organizations, states and NGO’s offered their own definitions of trafficking. Many definitions
centered on an element of transport combined with exploitative labor.
o Despite the large collection of definitions, criminal codes in many countries have long
lacked a distinct crime of trafficking.
- Lack of consensus on what practices constitute trafficking contributes to a poor understanding
of the scope of the activity.
o Although such studies highlighted a certain degree of initial consent on the part of
women who later become trafficked, it is nonetheless difficult to determine what
practices constitute the typical case of trafficking, if there is a typical case at all.
- Upon arrival at their destination, victims are placed in conditions controlled by traffickers while
they are exploited to earn illicit revenues. Some scholars argue that this focus on the worst
forms of trafficking feeds into stereotypes about female purity and dependence:
o By portraying women as total victims
o Society need to address that some victims may have agreed to illegal border
crossings or may have chosen to work in the sex industry
AUTONOMY ARGUMENTS FOR RECOGNIZING THE ABILITY TO CONSENT
SEX WORK
Arguments advocating the recognition of the capacity to consent within trafficking legislation originate
in traditional liberal theory that emphasizes the free will of people to make choices about their lives:
Some liberal feminists build on the argument by focusing on sex work as a form of empowerment to
realize equality in the workforce and to assert female self-determination:
- The extension of this argument into the trafficking debate emphasizes that free choice to
engage in sex work should include free choice to make the informed decision to exercise
one’s right to freedom of movement and engage in sex work across borders.
o When a woman can make a full and informed choice about her body, the law should
preserve her ability to do so.
o Women overwhelmingly do make free choices to migrate within the trafficking context
- The autonomy camp promotes trafficking laws that would acknowledge female autonomy and
avoid preferencing the free will of some women over others.
Caucus maintained that the best way to promote the ability to consent would be to eliminate it as an
issue in the Trafficking Protocol:
- If trafficking were defined as a per se exploitative activity, then no trafficked person could
have consented to her plight and thus there would be no need to include a provision deeming
consent irrelevant
2
, Some activists who focus on sex work argue that choice of participate in trafficking must be preserved
out of respect for cultural practices that involve the sale or movements of females (such a tradition in
southeaster, Ghana of using young girls to serve as “slaves of gods” to perform labor and sex acts for
priests)
BEYOND SEX WORK
The autonomy argument with respect to broader forms of labor (sex work and non-sex work) and
subjects (M/F) relies on individual choice to underscore the capability of people to make decisions that
improve the quality of their lives:
- In some cases, smuggling or trafficking may directly lead to improve one’s circumstance
- Migrating for greater economic and political freedoms in fact forms the core of the classic
immigrant success story
The autonomy argument also works to expose the contradictions that play into the regulation of labor:
- An immigrant who works as a maid of farmer may have chosen such work due to a host of
pressures that do not bear on the typical lawyer
Autonomy advocates concerned with trafficking promote policy proposals that recognize a general
capability to consent to various forms of labor:
- Thus, the right to consent to sex work is seen as only one component of a broader right to
consent to a range of work
Whether due to economic or other factors, even when a person freely consents, the coalition noted
that the trafficker or employer nonetheless remains liable for abuse, exploitative, or other unlawful
conditions
PROTECTIONIST ARGUMENTS AGAINST RECOGNIZING THE ABILITY TO CONSENT
SEX WORK
Protectionist = groups that favor including (voorstander) provisions that deem consent meaningless
in trafficking law strives to shatter the theories that equate prostitution with autonomy (prostitution =
institution of male dominance)
- Anti-prostitution advocates dismiss the notion that woman can make a meaningful choice
engage in prostitution
Tiefenbrun’s focus on sew work as the typical example of trafficking carries a predictable stance on
consent: it is arguable that consent is not a probative issue in the definition of sex trafficking because
on cannot legally consent to slavery, and sex trafficking is clearly a variant of slavery
From a protectionist perspective:
- The problems of prostitution are magnified in the context of trafficking
- Once a person enters the trafficking process, he or she is much more vulnerable to
exploitation because the trafficker typically has control over the travel documents and routes
of movement
- a trafficked woman may be stripped of certain levels of autonomy in a way that a non-
trafficked woman in the sex industry is not
3
2024-2025
, TRAFFICKING IN HUMAN BEINGS –
LEGAL APPROACHES AND POLICIES
ABRAMSON: BEYOND CONSENT TOWARD SAFEGUARDING HUMAN
RIGHTS: IMPLEMENTING THE UN PROTOCOL
2000: the UN General Assembly adapted the Protocol to Prevent, Suppress and Punish trafficking in
Persons, especially Women and Children
- Grows out of the concern over the security issues & human right dimensions of the movement
of people across & within borders (focus on human rights in this article)
- Many different definitions permeated the drafting process of the Protocol & affected the
definition of trafficking
- The debate has centered on Women & Children
o Discourse on trafficking becomes simply another forum for pro- and anti-prostitution
debat
o Gender issues transcend sex work
The debate over the definition of trafficking in women & sex work hinges on
the issue of consent
THE UN TRAFFICKING PROTOCOL & EFFORTS TO DEFINE
THE UN PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING
IN PERSONS, ESPECIALLY WOMEN AND CHILDREN
The Trafficking Protocol initially was intended to apply only to women and children but was expanded
to cover men as well.
- Consent: the unwieldy note on consent, in effect, reinforces the main definition of trafficking
as a per se forced act, but in the end does little to answer the question of whether consent
can be accommodated within the parameters of trafficking activity.
- Children: they are explicitly held to be trafficking if they are under 18 and are recruited,
transported, held, or received for exploitation, regardless of the methods used to recruit,
transport, hold or receive them.
Although the Trafficking Protocol recognizes all people as potential victims, it places special emphasis
on the conditions of women and children, as its title suggests.
Smuggling Protocol:
- Smuggling = the procurement, in order to obtain, directly or indirectly, a financial or other
material benefit, of the illegal entry of a person into a State Party of which the person is not a
national or permanent resident no mention of consent
- the divergent roles of consent in the protocols are closely tied to the gendered stereotypes
that undergird them
o Consent is an issue in the Trafficking Protocol because it is largely seen as an
instrument to protect the stereotypical “trafficking woman”
o The stereotypical smuggled person is a male economic migrant who has weighed his
options and chosen to migrate for better economic opportunities
1
,The contrast set up by the two documents is problematic because the line between trafficking and
smuggling is often blurred, and it created an artificial distinction by gendering protocols as either male
(smuggling) or female (trafficking).
- The gendered categories of the protocols both reflect and perpetuate the debate over the role
of consent in trafficking
EFFORTS TO DEFINE TRAFFICKING
- In the years surrounding the adoption of the UN Trafficking Protocol, international
organizations, states and NGO’s offered their own definitions of trafficking. Many definitions
centered on an element of transport combined with exploitative labor.
o Despite the large collection of definitions, criminal codes in many countries have long
lacked a distinct crime of trafficking.
- Lack of consensus on what practices constitute trafficking contributes to a poor understanding
of the scope of the activity.
o Although such studies highlighted a certain degree of initial consent on the part of
women who later become trafficked, it is nonetheless difficult to determine what
practices constitute the typical case of trafficking, if there is a typical case at all.
- Upon arrival at their destination, victims are placed in conditions controlled by traffickers while
they are exploited to earn illicit revenues. Some scholars argue that this focus on the worst
forms of trafficking feeds into stereotypes about female purity and dependence:
o By portraying women as total victims
o Society need to address that some victims may have agreed to illegal border
crossings or may have chosen to work in the sex industry
AUTONOMY ARGUMENTS FOR RECOGNIZING THE ABILITY TO CONSENT
SEX WORK
Arguments advocating the recognition of the capacity to consent within trafficking legislation originate
in traditional liberal theory that emphasizes the free will of people to make choices about their lives:
Some liberal feminists build on the argument by focusing on sex work as a form of empowerment to
realize equality in the workforce and to assert female self-determination:
- The extension of this argument into the trafficking debate emphasizes that free choice to
engage in sex work should include free choice to make the informed decision to exercise
one’s right to freedom of movement and engage in sex work across borders.
o When a woman can make a full and informed choice about her body, the law should
preserve her ability to do so.
o Women overwhelmingly do make free choices to migrate within the trafficking context
- The autonomy camp promotes trafficking laws that would acknowledge female autonomy and
avoid preferencing the free will of some women over others.
Caucus maintained that the best way to promote the ability to consent would be to eliminate it as an
issue in the Trafficking Protocol:
- If trafficking were defined as a per se exploitative activity, then no trafficked person could
have consented to her plight and thus there would be no need to include a provision deeming
consent irrelevant
2
, Some activists who focus on sex work argue that choice of participate in trafficking must be preserved
out of respect for cultural practices that involve the sale or movements of females (such a tradition in
southeaster, Ghana of using young girls to serve as “slaves of gods” to perform labor and sex acts for
priests)
BEYOND SEX WORK
The autonomy argument with respect to broader forms of labor (sex work and non-sex work) and
subjects (M/F) relies on individual choice to underscore the capability of people to make decisions that
improve the quality of their lives:
- In some cases, smuggling or trafficking may directly lead to improve one’s circumstance
- Migrating for greater economic and political freedoms in fact forms the core of the classic
immigrant success story
The autonomy argument also works to expose the contradictions that play into the regulation of labor:
- An immigrant who works as a maid of farmer may have chosen such work due to a host of
pressures that do not bear on the typical lawyer
Autonomy advocates concerned with trafficking promote policy proposals that recognize a general
capability to consent to various forms of labor:
- Thus, the right to consent to sex work is seen as only one component of a broader right to
consent to a range of work
Whether due to economic or other factors, even when a person freely consents, the coalition noted
that the trafficker or employer nonetheless remains liable for abuse, exploitative, or other unlawful
conditions
PROTECTIONIST ARGUMENTS AGAINST RECOGNIZING THE ABILITY TO CONSENT
SEX WORK
Protectionist = groups that favor including (voorstander) provisions that deem consent meaningless
in trafficking law strives to shatter the theories that equate prostitution with autonomy (prostitution =
institution of male dominance)
- Anti-prostitution advocates dismiss the notion that woman can make a meaningful choice
engage in prostitution
Tiefenbrun’s focus on sew work as the typical example of trafficking carries a predictable stance on
consent: it is arguable that consent is not a probative issue in the definition of sex trafficking because
on cannot legally consent to slavery, and sex trafficking is clearly a variant of slavery
From a protectionist perspective:
- The problems of prostitution are magnified in the context of trafficking
- Once a person enters the trafficking process, he or she is much more vulnerable to
exploitation because the trafficker typically has control over the travel documents and routes
of movement
- a trafficked woman may be stripped of certain levels of autonomy in a way that a non-
trafficked woman in the sex industry is not
3
