This article was cross-posted from the Huffington Post.

I’m an advocate for victims of human trafficking, and I’ve witnessed a lot of pain and suffering. But I’ll never forget the day I met two teenage girls at a District Attorney’s office the day after they escaped a brothel. As the girls sat there clutching the teddy bears that are usually given to children, they told me they had been forced to have sex with multiple men without condoms. One of the girls described a painful, burning vaginal infection that became so severe that the trafficker took her to the clinic. While she was there, she and her friend made an escape plan. When they returned the following day for follow up they ran out of the building and asked for help from a passer-by, who took them to the police.

Thankfully, this girl had a treatable infection. But many sex trafficking victims are not so lucky.

That’s why New York lawmakers should ban condoms as evidence of all prostitution-related crimes, including trafficking, in the 2013 legislative session.

As a founder and coordinator of the Freedom Network, a national network of more than 30 anti-trafficking organizations, I know that it is not uncommon for traffickers to restrict or deny their victims access to condoms and basic reproductive health services as a form of manipulation and control.

However, in New York and other parts of the United States, traffickers have an additional reason to deny their victims access to condoms. Condoms found at a location where people have been coerced into the sex trade may be used by prosecutors as evidence to support felony trafficking charges. This means that traffickers may have an especially strong incentive to forbid their victims from carrying condoms, to ban them from locations where exploitation is occurring, and to make it nearly impossible to use them. The consequences for those forced into the sex trade are severe–unwanted pregnancy often followed by forced abortion, and irreparable damage to their reproductive health from HIV and sexually transmitted infections.

A bill in the New York legislature, S1379/A2736, could help change this situation. This bill should prohibit prosecutors from using possession of condoms as evidence to support prostitution-related charges, including trafficking.

Some may argue that prosecutors need every tool at their disposal to find traffickers and hold them accountable.

But allowing condoms to continue to be used as evidence in trafficking cases would be detrimental to the health of the very people we are trying to help.

Much of the media spotlight on the bill has focused on the use of condoms as evidence for street-based prostitution and loitering charges. Clearly these practices fly in the face of common sense, turning an effective public health measure to prevent HIV into contraband, and leaving New Yorkers wondering if there is a “legal limit” to the number of condoms a person may carry.

But this bill would also protect the health and the lives of trafficking victims. In situations in which women and girls, as well as men and boys, are coerced into the sex trade, ending the use of condoms as evidence could give them some ability to negotiate for their own sexual safety. In reality, a condom may be the one protection a victim of trafficking has from a trafficker’s assault on her or his human rights, autonomy, and body.

Research by Human Rights Watch in San Francisco demonstrated how trafficking enforcement efforts targeted at brothels and massage parlors made business owners reluctant to keep condoms on the premises. Even legal businesses–bars and nightclubs–refused to accept condoms from outreach workers for fear of being shut down as houses of prostitution. Those who continued to accept condoms concealed them in ways that made them useless or dangerous. An outreach worker in San Francisco, for example, reported seeing unwrapped condoms stored in an empty bleach container at a massage parlor.

Whether the evidence is two condoms found in the purse of a woman walking in Coney Island or a box of condoms recovered from a massage parlor during a raid, the public health consequences are the same. When condoms are considered evidence of intent to engage in a criminal act, those who need them most, whether they are involved in the sex trade by choice or by coercion, or merely profiled as being engaged in prostitution, will fear carrying them. Even more disturbing, they may be denied access to them by those who control their work.

As an outspoken anti-trafficking advocate for nearly two decades, I support the toughest prosecution of traffickers. But prosecutors can and should make their cases without using condoms as evidence. And policymakers shouldn’t leave trafficking victims out of the solution. Their lives depend on it.

Florrie Burke is the Chair Emeritus of the Freedom Network and serves as an expert witness in human trafficking prosecutions. In 2013, she received the inaugural Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons.

To view the original article in Hebrew, click here.

Prabha Kotiswaran, Coerced Victims or Exploited Workers? Rightswork.org (February 20, 2012)

This article originally appeared on Rightswork.org. To view the original, click here.

Mahdavi’s book Gridlock offers a fascinating report of the negative consequences in the Middle-East, specifically in the United Arab Emirates (UAE) and Dubai as a result of the impact of the UN Trafficking Protocol[i] and the U.S. anti-trafficking law[ii]. Mahdavi focuses an invisible group of the Emirates’ inhabitants, namely, its migrant workers, ranging from domestic workers, cab-drivers and male construction workers to beauticians working in malls and sex workers. She undertakes an ethnographic study of these several groups of migrant workers to offer a powerful critique of the current paradigm of international anti-trafficking law and its implementation in Dubai arguing that they hurt the very people they seek to protect. Mahdavi claims that contemporary anti-trafficking discourse has been inordinately preoccupied with the increased criminalization of sex work. She instead successfully argues for reframing trafficking as an international migration and human rights issue.

In the introduction to Gridlock, Mahdavi asserts that the dialogue about trafficking itself has been trafficked (p. 11). In particular, the term trafficking is used in definitional and policy terms to primarily connote women, often young, who have been duped or forced into sex work (p. 13) —  even though the international legal definition in the UN Protocol refers to any worker who is recruited or transported through means such as force, fraud, or coercion for purposes of exploitation.

Consequently, the exploitative conditions under which a large percentage of Dubai’s migrant non-sex worker population labors is not considered seriously. All sex workers on the other hand are considered to be trafficked (p. 62). This has been reinforced by US influence on trafficking discourse, particularly, the US TIP Report for Dubai which certainly prior to 2009 focused on sex trafficking. This is compounded by the fact that political and social actors in the UAE experience the TIP report as an instance of US imperialism and hegemony and more generally as a tool of US trade and foreign policy. Their suspicion is justifiable considering that Dubai has occupied literally every place in the TIP report rankings from Tier 1 (2003) to Tier 3 (2001, 2002) and Tier Two and the Tier Two Watch List in other years (pp. 19, 21, 25).

In the ensuing chapters, Mahdavi is keen to show that there are women in the sex industry who have not been trafficked and that there are many instances of abuse inflicted on both men and women outside the sex industry. Thus chapters 3, 4 and 5 of her books are focused on specific labor markets in Dubai.

Chapter 3 on Sex work for instance demonstrates what global research on sex work typically reveals, namely, the diversity of the sex industry. The situation is even more complicated in a state like Dubai where 92% of its population consists of migrants and where the city is divided and constructed along the lines of gender, race and citizenship. Hence, Dubai’s sex industry is segmented into the high-end group of Iranian sex workers who operate collectively and without pimps in the plush newer condo developments of South Dubai, while South East Asian and South Asian sex workers are in the city’s bars and African sex workers are on the streets of North Dubai.

Mahdavi is at pains to show how these sex workers cannot be easily characterised solely as victims or agents and that for them both force and choice co-exist (p. 63) and lie along a continuum —  so the motivations to enter sex work are several and complex. Any attempt to ignore this reality and dictate that all sex workers are ‘victims’ translates into rescue operations, which go against sex workers’ wishes. More significantly, it leads to the provision of social services to sex workers in Dubai along racial lines as street-based sex workers have greater access to services when compared to sex workers working in relatively safer indoor environments.

Related to the chapter on sex work is Chapter 5 on female migrant workers engaged in domestic work. Here Mahdavi demonstrates that women who can legally enter the formal economy of domestic work often choose to enter the informal illegal space of sex work for the relative autonomy and higher pay that it offers. They prefer sex work to the highly exploitative working conditions and the absence of labor rights they face as domestic workers. When domestic workers are deceived about their hours of work, their visa status and their pay, which is not paid for months on end, they run away from their employers – this renders their immigration status illegal. Hence moving into sex work very quickly becomes a “deliberate well-reasoned act of income generation” (p. 141). The most significant insights here for those who advocate against sex trafficking according to Mahdavi is that many women enter sex work through legal migration channels and from jobs in the formal economy.

Having thus exploded certain myths around sex work and sex trafficking, Chapters 4 and 7 of Mahdavi’s book offer a poignant account of the appalling working and living conditions of migrant laborers in other sectors in Dubai.  They arrive on fake visas and pay exorbitant fees to recruitment agencies. They are tied to their employers by the kefala system, which prevents them from changing jobs.  This system undermines their bargaining power, forces them to live in squalid living conditions and work even when seriously injured. It often results in unpaid salaries and, even when paid, wages are well below what was agreed to. These serious abuses are further compounded by high penalties for living illegally in Dubai. So for some migrants, exit to their home country becomes practically impossible as the authorities would detect their illegal status upon departure. Thus Mahdavi points to the “discrepancy between imagined ideas about trafficking and the actual realities of forced labor and migration.”

Based on Mahdavi’s account so far, one might look to the space of civil society for addressing the serious rights infractions of migrant workers in Dubai. Except that the UAE formally prohibits the formation of labor unions. As a result, organisations that have been set up to support migrant workers lead a precarious legal existence. They are hampered by the inability to raise funds, scale up their operations or vocally advocate for workers’ rights.

It is this fragile space of civil society according to Mahdavi that has suffered the most from the politicisation of the trafficking issue and the mandate of the 2009 TIP report to the UAE to step up law enforcement efforts against trafficking, increase raids and arrests against sex trafficking and tighten borders (p. 213). These TIP recommendations according to Mahdavi led Dubai to import law enforcement personnel and dramatically increased the surveillance of female migrant workers. Further by reiterating the received US notion that countries in the Middle-East have no civil society, the efforts of existing groups amongst migrant workers were rendered invisible. Worse, of the four migrant workers’ organisations that Mahdavi chronicles, two were shut down by the government for harbouring illegal migrant women and ‘running a brothel’ while one other group decided to direct its efforts towards male migrants.

In conclusion, Mahdavi deploys her ethnography of migrant labor markets in Dubai to powerfully situate trafficking at the crossroads of complex macro-social forces operational in both sending and receiving countries – the structural realities of the migration process (such as the kefala system, the lack of the recognition of domestic work and sex work as forms of labor) and the powerful grip of the anti-trafficking discourse which renders abuse in non-sex work sectors invisible, while ‘fetishizing victimisation’ in the sex industry.

Despite the global moral panic that animates contemporary efforts against trafficking, Mahdavi is confident that the trafficking framework could potentially be used as a catalyst to improve migrant workers’ human rights. But for this to occur, the selective focus on sex work will need to be broadened to include all forms of labor and a greater emphasis will need to be placed on conditions that exist at the end of the migratory process rather than solely on consent to entry into a labor market. A systemic reform of the kefala system to allow for worker rights will be essential as well as better training of police personnel, an increase in the numbers of labor inspectors and the recognition of the legal status of NGOs supporting workers. Thus, it is by only by understanding trafficking as migration gone wrong (p. 12), can we address the ‘gridlock’ of contemporary anti-trafficking policy.

Prabha Kotiswaran, The Hindu (March 27, 2012)

This  article originally appeared in The Hindu. To read the original article, click here.

Human trafficking is in the news these days. Many of these reports follow the predictable storyline of women enslaved in developing countries. India often features prominently in these narratives. For instance, Nicholas Kristof, the New York Times columnist and author of more than 46 op-eds on the subject of sex trafficking, recently conducted undercover raids in Sonagachi, Kolkata’s largest red-light district, along with the US abolitionist organisation, the International Justice Mission. There, he claims to have “transformed” the lives of five girls who were hours away from a series of rapes.

Journalists like Kristof frequently summon Western moral outrage against what they call “modern-day slavery” in the developing countries managing, in the process, to conflate trafficking with sex trafficking. While Kristof’s intervention is paradigmatic of contemporary debates around trafficking, it is important to ask how India might respond to the problem of human trafficking, given that 92 per cent of its working population is in the informal economy, many of whom are migrants working under precarious conditions.

UN PROTOCOL

In June 2011, India ratified an international legal instrument targeting trafficking, namely, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplemented the 2000 UN Convention Against Transnational Organised Crime. Signatory countries to the Protocol are required to criminalise all forms of trafficking defined in terms of recruitment, harbouring, or transportation by means of force, fraud, coercion, or abuse of position of vulnerability for purposes of exploitation. Exploitation, although undefined under the Protocol, includes, at a minimum, forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs. In other words, the Protocol is meant to target trafficking in labour sectors as well.

Yet, in the lapsed decade between when India signed the Protocol in 2002 and ratified it, its legal response to the problem of trafficking has been inordinately influenced by some other states’ use of the Protocol for achieving the twin ideological goals of eradicating sexual exploitation and enforcing border control.

The 2000 US law, the Victims of Trafficking and Violence Protection Act (VTVPA) and various policies of the erstwhile Bush administration have been particularly influential in this respect. Since 2001, the US Department of State has, under the VTVPA, ranked national governments receiving US aid on their performance in preventing trafficking, prosecuting traffickers, and protecting victims of trafficking. Countries that perform poorly so as to fall within Tier Three of the annual Trafficking in Persons (TIP) Report risk the withholding of non-humanitarian, non-trade-related foreign assistance. Until 2009, the TIP Report focused unduly on sex trafficking.

TIP RANKINGS

India’s response to the problem of trafficking has been considerably influenced by its TIP Report rankings. Between 2001 and 2003, India figured in Tier Two of the TIP Report before being demoted to the Tier Two Watch List. It was only in May 2011 when India ratified the UN Protocol that it made its way once again into the Tier Two List. India’s response to the trafficking problem in terms of abolishing trafficking isn’t unique in the sub-continent. Indeed, the 2002 SAARC Convention on Preventing and Combating Trafficking in Women and Children defines trafficking as sex trafficking following a 1949 UN Convention, rather than the 2000 UN Protocol.

The conceptual displacement of trafficking to sex trafficking is perplexing, however, given that the sub-continent is home to millions of bonded labourers, forced labourers, child labourers, and migrant workers who are routinely recruited and often transported under false promises to distant places regionally for purposes of work-related exploitation. These workers include men, women, and children who work in India’s brick kilns, rice mills, farms, embroidery factories, mines, stone quarries, and as domestic workers, beggars, agricultural workers, and carpet weavers. Indeed, 90 per cent of trafficking in India is said to be internal. These labourers could well be considered trafficked using the general definition of the Protocol.

BONDED LABOUR

To address these very social realities of bonded labour, forced migration, and deplorable working conditions of contract labourers and inter-state migrant labourers, the post-colonial Indian state passed several laws in the 1970s. The Indian Supreme Court during the heyday of public interest litigation in the 1980s progressively interpreted them. Despite the pathetic enforcement of these domestic laws in the following decades, they offer a useful alternative model to contemporary anti-trafficking law.

For one, judicial analyses of these statutes construed coerced entry into labour to include background conditions such as poverty (rather than mainly deceit), emphasising instead the redressal of exploitative working conditions.

Further, in contrast to contemporary anti-trafficking law, which uses the criminal justice system to rescue and offer weak rehabilitation schemes to victims of trafficking, that too, on the condition of assisting prosecutorial efforts, statutes dealing with contract labour and migrant labour were designed to be enforced by labour inspectors and imposed responsibility on intermediaries, such as recruiters and contractors, for providing appropriate pay and working conditions with a backstop to the primary employer.

If India is politically committed to addressing the problem of trafficking, understood in the most basic terms as coerced migration for exploitation, then it must revisit and strengthen its own domestic labour laws aimed both at internal migration and outward emigration. The International Labour Organisation (ILO) has, indeed, recently noted the increasingly significant role of the labour machinery in implementing anti-trafficking laws.

India can thus assume a leadership role amongst developing countries in countering hegemonic international notions of trafficking. It can, instead, creatively use the momentum generated by the Protocol as an opportunity for meaningful labour law reform.

Where developing countries were unable to counter the selective agendas of Western states in using the Protocol to achieve ideological ends (such as the abolition of trafficking) or political ends (such as border control against illegal migration), India has a renewed opportunity to reframe trafficking as it starts amending domestic law in light of its recent ratification of the Protocol.

(The author is Senior Lecturer in Law, School of Oriental and African Studies,University of London.)

This article is by special arrangement with the Centre for the Advanced Study of India, University of Pennsylvania

Aziza Ahmed, The Guardian (March 26, 2012).

This article originally appeared on The Guardian’s website. Click here to read the original article.

First, anti-sex trafficking activism has an extremely negative impact on HIV programs. Sex workers are highly vulnerable to contracting HIV. A key victory for anti-sex trafficking organizations was the insertion of the anti-prostitution loyalty oath (APLO) into the US Leadership Act for HIV/Aids, TB, and malaria. This provision requires that organizations agree to oppose prostitution and sex trafficking. The APLO has the effect of disempowering sex worker organizations who refuse to sign on, shutting health services for sex workers, and alienating sex workers from public health programs.

Further, implementation of the APLO alongside raids and “rescues” disrupts HIV projects that have sex workers as peer-educators and leaders. Attempts to provide necessary health services to sex workers may lead to accusations of aiding in trafficking. Despite these negative outcomes, anti-sex-trafficking organizations, including women’s rights groups, support the US government in their effort to implement the APLO to the detriment of women’s health.

Second, when women and girls are “rescued” by the anti-trafficking organizations, they may be taken to state-run rehabilitation homes that have jail-like conditions. Human rights and sex worker organizations have long documented what rehabilitation might mean for a sex worker: overcrowded conditions, a lack of healthcare, and violence at the hands of the police and guards. The rehabilitation activities of some organizations are also often suspect – the staff of a rehabilitation home in Maharashtra, India that I visited last year told me that one of their rehabilitation activities includes getting the rescued women married.

Finally, the ongoing attempt to shut down safe places where sex workers can advertise services, like the Village Voice and Craig’s List, drives sex work underground and makes sex workers less capable of screening clients. The cast of characters that feature in Kristof’s blogs and Twitter feed, who call for the closure of “adult advertising”, and who advocate for provisions like the anti-prostitution loyalty oath are often one and the same. Not being able to do business in the open means that sex workers are driven to dark and hidden places to conduct business. This makes sex work unsafe.

We must interrogate when advocacy puts lives at risk and shuts down HIV services for the most marginalized. Kristof has become the pied piper of anti-sex trafficking efforts for many well-meaning people and organizations in North America and beyond. To follow without question is dangerous.