Friday, June 15, 2007

Definitions

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I want to go deeper into the discussion about what is exactly “voluntary” prostitution, and what is “forced” prostitution. Until now I have thought a lot about this issue but never could clearly write down how I should define these issues. It is very important because obviously if you as a client want to separate the “forced” from the “voluntary” prostitutes it is important to know what exactly is “forced” and “voluntary”! And it is also important for a researcher who want to map the forced prostitution problem that he/she uses the proper definition.

The great problem is that after a lot of philosophizing it turns out that a strict separation is not possible, and that is my final conclusion.

Okay, let’s first attempt to define “voluntary” prostitution. A very obvious definition of voluntary prostitution what you will often find on the internet is something like this: it is voluntary when all participants consent into doing the paid sexual activity, and when no violence or the threat of violence is used. And then we can speak of forced prostitution when one or all of these conditions are violated. The British prostitutes’ rights activist Hilary Kinnell uses such a definition in "Why feminists should rethink on sex workers’ right" (1999)
I suggest that the proposals for defining absence of consent contained in the recent Command Paper, Protecting the Public (2002) are appropriate in the context of sex work, i.e. where the victim
•was subject to force or the fear of force
•was subject to threats or fear of serious harm or serious detriment to themselves or another person
•was abducted or unlawfully detained
•was unconscious
•was unable to communicate by reason of physical disability
•had agreement given for them by a third party.
It is a simple straightforward definition which sounds very obvious and for a very long time I basically had nothing against it… until you know more and when you find out that often things are not that simple.

For instance, at first when I heard about forced prostitution the only image I had was of an innocent victim who didn’t know what was awaiting her, who didn’t know she would be doing prostitution and who was violently forced to do this work. Slowly you begin to realize that actually most who are “forced” into prostitution actually knew what kind of work they would be doing, up to the point of where some even might argue if they are forced into prostitution in the first place, they consented didn’t they? And the second thing of all is that evidence also suggests that not all human traffickers use violence (see the fourth report of the Dutch National rapporteur" [2005] on page 17).

Clearly the definition is not so straightforward as it may seem. Also the definition of violence is not so straightforward; what is exactly violence? Is limiting someone’s movements violence?

And what if the human trafficker uses the duty the victim feels to pay off large debts by working in prostitution? And what if the third person threatens to spread nude pictures of the victim? Or what if the third person threatens to reveal the victim works in prostitution?

And, you could quite easily create a gradual scale from “voluntary” to “forced”. In that case it is also impossible to count victims of forced prostitution in case you want to. In that case it is also very difficult to decide as a client who is the voluntary prostitute.

It’s also interesting that Hilary Kinnell comes up with additional “tests”:
I argue that absence of “choice”, like absence of consent, could be defined by certain tests, such as whether she
•was deceived about the nature of the work
•was subject to violence or threats of violence against herself or her family
•was drugged
•was abducted or imprisoned
•had personal documentation removed (e.g. passport)
•was unable to refuse certain customers or sexual activities
The last two tests are funny because those are not covered by the original definition. What if the prostitute “consents” in not refusing certain customers and sexual activities? What if she “consents” in having her personal documentation removed?

You might also wonder if force by circumstances could be included. But in that case basically every person that performs labour is force, because if you don’t work you don’t make money so you can’t make a living. That’s also what Hilary Kinnell puts forward:
Everyone can only choose their occupations and way of life within highly constraining circumstances: the economic and social conditions of ones family, community and country, as well as individual abilities and psychology. Few people in any occupation can claim completely free choice in how they earn their living, and sex workers may be more constrained than others in the level of choice they exercise. Because “choice” is not a fixed concept, it is easy to argue that any sex worker did not make a “free choice” to be involved in the business, that she was “forced” by poverty, by psychological factors, by societal expectations, etc.
That’s true, but what if the third person indirectly uses poverty or circumstances to force somebody into prostitution?

And what if a person absolutely hates the work and gets emotionally traumatized by it? Isn’t that a form a sexual abuse if you would use the sexual services of this person?

And what about drug addicted prostitutes? Is it okay as a client to use the services of these women? If you would use the extra tests of Hilary Kinnell then the answer would mean NO, in case the person uses the drugs at the moment of performing the sexual service. That’s interesting because there are some reports that some clients together with the prostitute use drugs (see the Dutch “escort in Amsterdam” report [1999] or the book “Callgirl” [2005] by Jeannette Angell).

Some very difficult questions altogether. The matter is obviously trivial when direct violence is used, but beyond that things are not that simple. There’s no solution.

For the record, some additional definitions of human trafficking:
See “third report of the national rapporteur on human trafficking”, page 153. She translates (in 30 January 2001) article 250a of the Dutch penal code:
Section 1
Any person who:
1. by force or some other physical act, by threats of violence or of any other physical act, by misuse of authority arising from the actual state of affairs or by deception, induces another person to make him/herself available for the performance of sexual acts with a third party for remuneration or, under the said circumstances, takes any action which he or she knows or may reasonably be expected to know will result in that other person's making him/herself available for performing those acts;
2. recruits, takes with him or her or abducts a person with a view to inducing that person to make him/herself available for performing sexual acts with a third party for remuneration in another country;
3. induces another person to make him/herself available for performing sexual acts with a third party for remuneration or takes any action which he or she knows or may reasonably be expected to know will result in that other person making him/herself available for performing those acts when the other person is a minor;
4. wilfully profits from sexual acts of another person with a third party for remuneration, while he or she knows or must reasonably assume that that other person is making him/herself available for performing those acts under the circumstances referred to in paragraph 1;
5. wilfully profits from sexual acts of another person with a third party for a remuneration, if the other person is a minor;
6. forces another person by violence or some other physical act or threat of violence or other physical act or by misuse of authority arising from the actual state of affairs or by deception to benefit him or her from the proceeds of his or her sexual acts with a third party. shall be guilty of trafficking in persons and as such liable to a term of imprisonment not exceeding six years and a fifth category fine, or either of these penalties.

Section 2
The following offences shall be punishable with a term of imprisonment not exceeding eight years and a fifth category fine or either of these penalties:
1. trafficking in persons by two or more persons acting in concert;
2. trafficking in persons in respect of a person who is under the age of sixteen;
3. trafficking in persons if force or some other physical act as referred to in paragraph 1 results in serious physical injury.

Section 3
Trafficking in persons by two or more persons acting in concert under the circumstances referred to in section 2, paragraph 2 or 3, shall be punishable by a term of imprisonment not exceeding ten years and a fifth category fine or either of these penalties.
From the PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (2000)
Article 3
Use of terms
For the purposes of this Protocol:
(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;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
These definitions are quite extensive aren’t they? That also emphasizes that this issue is not that simple.

But..... you could discuss about the definition of forced prostitutes; from the viewpoint of clients things are simpler. In my opinion every single violation of a person's physical integrity, however small, is rape. So even a "light" case of a brothel owner who subtly forces a prostitute to have sex with a client - like giving her fines for not entering the brothel on time or for refusing clients - I view as "coercion". So in that case it would be better as a client to avoid using the sexual services of such a prostitute, even if she is not a "victim of human trafficking" according to a certain definition.

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