Congress is poised to re-authorize the federal law against human trafficking with new provisions that will both increase penalties for sex workers and effectively decrease our ability to aid genuine victims of trafficking.

In my first contribution to Rewire, I tried to disentangle the subjects of trafficking and sex work.

Understanding this distinction is crucial, because Congress is poised

to re-authorize the federal law against human trafficking with new

provisions that will both increase penalties for sex workers and

effectively decrease our ability to aid genuine victims of trafficking.

The Department of Justice, which is responsible

for enforcing the bill’s provisions, is opposing these misguided

changes — and so should anyone else who is concerned about human

trafficking in its many forms.

It

is already sadly evident that the U.S. government’s anti-trafficking

program has devolved into a global campaign against sex work and is not

working to halt trafficking. In a 2006 report critical of the program, the Government Accountability Office found that

"the U.S. government has not developed a coordinated strategy to combat

trafficking in persons abroad…or evaluated its programs to determine

whether projects are achieving the desired outcomes."

Now comes a plan to further ratify this failure. The Trafficking Victims’ Protection Reauthorization Act addresses the crime of trafficking in persons, which is recognized in U.S law as cases that involve force, fraud or coercion, which includes threats, intimidation, and psychological abuse.

The law offers protection to workers who are most vulnerable to abuse —

immigrants, people in forced labor, and minors who exchange sex for

cash or goods. The bill currently before Congress, however, would

expand the definition of "sex trafficking" to include cases in which no

elements of force, fraud or coercion were involved.

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Specifically, the House version of the TVPRA would expand U.S. laws against prostitution by re-defining most prostitution-related activities, regardless of consent, as trafficking. Human

trafficking is a complex issue, but there is widespread agreement about

its key distinguishing features, namely the use of force, fraud or coercion. HR 3887 throws out these cornerstones and threatens to re-define all prostitution, arguably even all sex work, as trafficking. And it would require the involvement of federal law enforcement through a broad new provision that covers

actions "affecting" interstate commerce (rather than actual activities

that involve the crossing of state lines, the standard trigger for

bringing in the feds). Therefore, most prostitution-related activities defined as sex trafficking would fall under federal law even if no interstate commerce was involved.

The

immediate consequences of this definitional sleight-of-hand are bad

enough: the use of federal resources to prosecute state-level offenses

involving consenting adults who may not see themselves as victims of a

crime. But turning the DOJ into the prostitution police is not the

worst of it. By shifting the focus of the law from genuine cases of

trafficking to prostitution as a whole, the bill threatens to divert

resources from those most in need: the real victims of trafficking.

The

Department of Justice has written to members of Congress to express its

opposition to the proposed reauthorization bills, saying that the

changes would remove their focus from genuinely abusive situations that

involve force, fraud or coercion and place it instead on the over 100,000 prostitution-related arrests annually.

The DOJ’s resistance to the changes stem also from the fact that addressing each prostitution case as a potential trafficking case would significantly increase their caseload

while reducing the likelihood of convictions. Trafficking cases require

an identifiable victim. Contrary to popular mythology, most sex workers

are not in coercive situations. If they do not choose to self-identify

as victims or otherwise participate in the prosecution of their

associates, the case may collapse.

The

dangers of laws that are both overly general and backed by heavy

penalties should be familiar to any student of U.S. history. The 1910

White Slave Traffic Act, better known as the Mann Act, criminalized

interstate travel for "immoral acts," which at that time referred

fairly generally to (female) promiscuity and interracial sexual

activity. In practice, the application of the law was often

distinguished by racism or political bias. High-profile victims of

racist prosecutions under the Mann Act included Chuck Berry and Jack Johnson, while Charlie Chaplin and Frank Lloyd Wright, suspected of Communist sympathies, were subject to politically motivated Mann Act prosecutions.

Above

all else, however, application of the Mann Act was sexist. The law

purported to protect women, yet the overwhelming majority of those

charged under the Act were women. Women were tried and jailed for

crossing state lines to visit men, often men that they would later

marry. It seems inconceivable to us today that simply visiting a

romantic partner in another state could be grounds for conspiracy

charges, yet this is exactly what happened.

In

1986, the scope of the Mann Act was amended to cover only acts that

were crimes in the location where they were committed. When the Act was

conceived in 1909, prostitution was not a crime in any state of the

Union. But within twenty years, every state had passed

laws criminalizing prostitution. Today, almost a hundred years from its

conception, the Mann Act remains on the books as a law enforcement tool

targeting prostitution. This little-known law got its

moment in the spotlight recently when four people involved with the

Emperors Club VIP, whose best-known client was New York governor Eliot Spitzer, were charged with Mann Act offenses.

Just

as the Mann Act, ostensibly created to protect women, was used largely

to prosecute them, the targets of the re-authorized TVPRA will not be

international traffickers. They are more likely to be prostitutes

(including, once again, many women), charged with trafficking offenses

that exist only on paper.

If

no "victims" or "traffickers" can be found, some will have to be

created. The threat of additional charges or the promise of immunity

can be used to persuade some of those charged to testify against their

colleagues. During

the initial period of the TVPRA, despite lavish spending on raids and on

services for victims of trafficking, there was an embarrassing lack of

migrants coming forward to take advantage of the protection offered by

the law and to cooperate in the prosecution of their traffickers. The

expanded definition of trafficking provided by HR 3887

should make up the shortfall in trafficking victims, but only by

spuriously applying trafficking charges to cases that do not involve

force, fraud or coercion.

There is something deeply

wrong with our government when the answer to the desperate problem of

human trafficking is to change the definition of the crime so we can

claim we’re doing something about it. It’s a tactic that is misguided

at best and at worst, downright cynical.

Equating

prostitution and trafficking simultaneously denies the agency of sex

workers and trivializes the experiences of people in genuinely abusive

situations. Enshrining this wrongheaded equation in law delivers a

double whammy. On the one hand, it undercuts the ability of government

agencies to provide services to those who desperately need them. On the

other it opens the door to the same kind of abuses seen with the Mann

Act, creating "victims" where none exist and bringing the full force of

anti-trafficking law to bear on a group that is already stigmatized and

marginalized by society. By any standards, this would be a gross

miscarriage of justice.

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