Defining Exploitation

A. The Consent Debate and the Palermo Protocol

During the negotiation of the Palermo Protocol there was much debate concerning whether the offence of trafficking could be established irrespective of the victim’s consent.

There are two dominant feminist positions on the issue of consent. There are those who articulate that there can never be consent to prostitution.^[690] Others argue that prostitution is a legitimate activity which an individual, a woman, may opt to engage in for her own purposes.^[691] The anti-choice feminists argue that prostitution is inherently exploitative and as such cannot be consented to. This position of the radical feminist Left-lobby groups in the United States was very instrumental in the formulation of the TVPA 2000.^[692] In their estimation, all movement and migration having a nexus to paid sexual labour constitute trafficking in women.^[693] There exists no distinction between forced and voluntary movement for sex work. They say that prostitution constitutes a form of trafficking as it enforces the subordination of women by men and male dominance.^[694] The central premise of this argument is that �men create the demand; women are the supply.’^[695] As Kathy Miriam puts it, �[t]he “sex work” model of agency occludes the reality that it is men’s demand that makes prostitution intelligible and legitimate as a means of survival for women in the first place.’^[696] The conclusion is that prostitution is inherently exploitative, whether as an act of violence against women’s bodies, or as a practice which, by commercializing women’s bodies and sexuality reinforces �traditional hierarchical power structures premised on male dominance.’^[697]

The pro-choice/pro-prostitution position suggests that women should be allowed to choose to engage in prostitution for various reasons.

... a woman (or) man may opt — in the face of very limited alternatives and opportunities for economic participation — for sex work as an income-generating strategy. Prostitution may then become work that women and men consciously decide to take up. The righteous call to end the traffic of women collides with a reality that makes sex work a viable alternative for economic advancement.^[699]

The �expressivist’ approach is that a woman’s ability to consent to prostitution secures for her autonomy and an exercise of her fundamental rights and freedoms. This approach defends for women the right to self­determination, the right to work, and the right to self-expression. It equates a woman’s choice to engage in prostitution as a form of self­actualization. Pro-choice feminists advocate that the act of prostitution is not inherently exploitative as is suggested by the abolitionists. It is the general contempt of the profession that invites exploitation and abuse within the sex industry. Pro-choice advocates call on governments to regulate the sex industry and safeguard labour rights for sex workers through decriminalization and unionization of sex-work-labour.

Although there is no express condemnation or criminalization of prostitution in the anti-trafficking statutes of Belize, Guyana and Jamaica, they serve, like the traditional sexual offences provisions and minor offences regarding prostitution under vagrancy laws, to amplify the stigma attached to the practice, without complete criminalization.^[700] In Belize and Guyana, sexual offences are dealt with in omnibus criminal codes which entail provisions specifically criminalizing the procuring of females for prostitution or the frequenting of a brothel within or without these countries.^[701] This is also the position in Jamaica under the Offences Against the Person Act, as amended by the Sexual Offences Act 2009­12.^[702]4

Anti-trafficking statutes in all three jurisdictions define exploitation to include exploitation of the prostitution of another and engaging in any form of sexual exploitation.^[703] The Belize and Guyana statutes expressly provide that commercial sexual exploitation includes, but is not limited to pimping, pandering or procuring prostitution, or profiting from sexual prostitution, maintaining a brothel and engaging in child pornography.^[704] The Belize Act goes further to enumerate engaging in striptease dances where females and males dance nude or in a state of semi-nudity as a form of commercial sexual exploitation.^[705] This approach has not been adopted in the Guyana and Jamaica Acts. Discussions surrounding the introduction of the Jamaica Trafficking in Persons Act suggest that exotic dancing was not intended to be a profession falling within the statute. During the discussions, Mr Horace Dalley, then minister of health, stressed the distinction between prostitution and exotic dancing, stating that an individual who is �trained in artistic skills’ may �wish to ply their trade as a dancer.’ Persons �who have people dancing’ were not to be equated with traffickers in his estimation.^[706]

There is no enumeration of what specific activities amount to prostitution-related exploitation in the Jamaican Act but it is expected that the non-exhaustive lists produced in the Guyana and Belize statutes will influence the interpretation of the Jamaican provision.

“exploitation of the prostitution of a person” means the deriving by one person of monetary or other benefit through the provision of sexual services for money or other benefit by another person.^[707]

Defining �exploitation’ to include these prostitution-related activities clearly indicates a belief that these activities are inherently exploitative. Additionally, the Belize and Guyana anti-trafficking statutes create a separate criminal offence relating to the transportation of any person for the purpose of exploiting that person’s prostitution.^[708] The wording of these provisions suggests that the legislatures of these Caribbean territories favour the position adopted by the anti-prostitution feminists. This articulation, however, is not supported by the sexual offences legislation in these countries, which adopt a partial criminalization regime, a policy which has not changed in over a hundred years since the introduction of prostitution-related offences.

Anti-choice feminists, honourable as their intentions might be, present a fundamentally flawed argument as to the best solution to the international human rights issue of trafficking — that trafficking is to include all forms of recruitment and transportation for prostitution regardless of consent. Such a position fails to acknowledge that prostitution is, and has always been, a viable economic resort for both men and women in various societies. Caribbean societies, which hold respect for the fundamental rights and freedoms of all human beings, should consider the more progressive position of the pro-choice activists which encourages an address of the social and economic factors which may prompt persons to engage in prostitution without obliterating the practice as a viable alternative for economic advancement as well as an avenue for self-expression and determination.

During the preparatory stages of the Palermo Protocol states and non-governmental organizations (NGOs) were divided on the question of whether a person could properly consent to the process of trafficking as well as to prostitution and sex work as the purposes of their recruitment. No resolution could be achieved. Consequently, the Protocol itself reflects an �ambiguous compromise’ between both sides of the debate, a cause for the debate to continue.^[709] This is in stark contrast to the Convention of 1949 which explicitly provided that consent was of no bearing in establishing the offence of trafficking.^[710] The final draft of the 2000 Protocol adopted neither of the two extremes, expressly rejecting the notion that the offence of trafficking included all acts taking place irrespective of consent, yet providing that consent becomes irrelevant where any of the exploitative means listed in Article 3(a) have been employed.^[711]

This precise formulation has been adopted in the anti-trafficking statutes of Belize and Guyana.^[712] The Guyana Act for instance, provides that in a prosecution for trafficking �the alleged consent of a person to the intended or realized exploitation is irrelevant once any of the means or circumstances set forth in section 2(k) is established.’ Consent then, becomes irrelevant only in certain circumstances. These �certain circumstances,’ however, are far from certainly defined in the Protocol. The means described in Article 3(a) of the Protocol, as well as in the anti­trafficking statutes of Belize and Guyana, are:

a. the threat or use of force or other forms of coercion;

b. abduction;

c. fraud;

d. deception;

e. the abuse of power or of a position of vulnerability; and

f. the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.

The consent provision in the Jamaican Act is more akin to the 1949 Convention formulation.

The immateriality of consent under the Jamaican Act does not form part of the definition of trafficking as it does in the 1949 Convention. In order for trafficking to be established under the Jamaican Act, precisely the same conditions as exist in Belize and Guyana must be satisfied. The effect of section 4(4) under the Act is that once these conditions have been met, the offence of trafficking is established and consent may not be raised as a defence. The consent provisions of Belize and Guyana, although differently phrased, have the exact effect. It could be discerned with sufficient certainty when there has been a threat or use of force, abduction, fraud, deception or even the bribery of a person having control of another. In such circumstances, consent becomes immaterial.

However, uncertainty lies with the exact scope of �the abuse of power or of a position of vulnerability’ mechanism. This particular category could encompass a wide range of activities and is open to varied interpretation. The limits are further obscured when one regards the travaux preparatoires to the Protocol which states that this reference is understood as encompassing any situation in which the supposed victim has no real option rather than to submit to the abuse involved.^[714]As with the Protocol, the travaux preparatoires fail to enumerate what may amount to such a situation.

The anti-trafficking legislations of Belize and Guyana attempt to clarify this ambiguity by providing a definition for the term �abuse of a position of vulnerability.’^[715] No such attempt has been made in the Jamaican statute. These provisions reveal very little as they adopt the formless definition embodied in the travaux preparatoires to the Protocol. However, they do provide a non-exhaustive list of what actions may satisfy the category. For example, the Belize Trafficking in Persons Prohibition Act includes:

...taking advantage of the vulnerabilities of the abused person resulting from his having entered Belize illegally or without proper immigration documents, or resulting from the abused person's pregnancy, diseased condition (physical or mental) or disability of the person, or the addiction of the person to alcohol or any illegal drugs, or reduced capacity to form judgements by virtue of being a child....^[716]

The Belizean and Guyanese legislators failed to effectively utilize the opportunity afforded to them to clarify the circumstances in which the offence of trafficking is established. The provisions in these statutes, consequently, reflect an unsatisfactory state of the law. The Jamaican legislator completely failed to address this issue.

The question then arises as to whether consent provisions have a place in the anti-trafficking legislations of the region at all. Presently, the consent provisions included in Caribbean anti-trafficking statutes serve only to declare something already understood — that once there has been the use of fraud, force or other similar mechanism there cannot be genuine consent. The inclusion of consent provisions in the Acts of Belize, Guyana and Jamaica, however, cloud these statutes with the consent debate which is a foreign element in the region. This debate is primarily one that occurs on the political stage of the United States between varying feminist groups and lobbyists. The emergence of Governance Feminism has impacted the shaping of the US anti-trafficking policy as well as the international standard regarding combating human trafficking. The phenomenon has been described as an important element of governance involving the �installation of feminists and feminist ideas in the actual legal-institutional power.'^[717] Thomas defined the concept as �feminism that seeks not only to analyze and critique the problem, but to devise, pursue and achieve reform to address the problem in the real world.’^[718]

There existed a general discontent with the state of the law both in the United States and globally as it related to human trafficking and in particular the sex trafficking of women and being true to the essence of Governance Feminism, feminist groups sought not only to critique but to provide solutions and to influence the reform process. The TVPA had its genesis in an anti-trafficking bill drafted by Congressman Chris Smith who was lobbied by a coalition of Evangelical Christians and abolitionist feminists. The draft was focused entirely on sex trafficking and prostitution, being expanded subsequently to address all forms of forced labour within the scope of human trafficking.^[719] This coalition also had an impact on the structure of the United States Department of State Office to Monitor and Combat Trafficking in Persons. Caribbean legislatures have readily conformed to a regime without evaluating the underpinnings and making an assessment of the Caribbean reality. Feminist discourse on the area in the region is scant; Kempadoo is perhaps one of the very few who articulates what she believes the Caribbean response should be. Her approach is in stark contrast to the US approach and would have been a proper starting point for moulding the Caribbean anti-trafficking legal order.

Kara Abramson highlighted an important submission of the Human Rights Caucus in her article.^[720] The organization suggested that the best approach to safeguard the ability to consent would be to eliminate it as an issue in anti-trafficking discourse. It is argued that if trafficking is to be unequivocally defined as an exploitative activity, then no trafficked person could be deemed to have �consented to their plight’ and consequently there would no longer be a need to include a provision in anti-trafficking instruments heralding the immateriality of consent.^[721] If this approach is to be adopted, the inclusion of a consent provision in anti-trafficking legislation would become redundant, as it perhaps already is under the statutes of Belize, Guyana and Jamaica.

The adoption of the GAATW distinction between the offences of recruitment and subjecting a person to forced-labour/slavery-like conditions may prove a valid solution for anti-trafficking in the region.^[722] It would be very useful in providing a more effective framework for identifying the elements of the offence of trafficking and therefore, where there is a lack of genuine consent in a particular situation. Coercion, deception and abuse may exist at both or any one of these planes in any given case. An individual may have consented to being recruited and transported for the purpose of prostitution without an intention to be subjected to the forced labour/slavery-like conditions she is compelled to endure. Current definitions of trafficking collapse the two dimensions into one making it very difficult to determine whether consent was given at all. As Janice Chuang pointed out, a woman might deliberately and without any form of coercion, deception or abuse, choose to use a trafficker as her avenue for migration.^[723]

There also persists a less politically and morally charged debate as to whether there may be consent to trafficking itself, that is, the recruitment and transportation processes.^[724] Those who contend that trafficking itself may be established irrespective of consent fail to justify why the person who consents to being trafficked should be offered the protection of a state while the undocumented migrant is to be abhorred and punished; the two are, after all, the same individual in different disguises. In such a situation, the GAATW approach provides an effective framework for protecting as wide a cross-section of �real’ victims as possible, as the person who consents to being trafficked would not be categorized as a victim in that regard but may still be afforded protection should he/she in fact become subjected to forced labour to which no consent was given, as would the illegal migrant who suffers a similar fate.

The normative debate concerning whether women should be allowed to consent to prostitution has proved to be more of a distraction in the efforts to combat human trafficking than an aid in their advancement. As Chuang correctly points out, treating consent as an immaterial consideration and deeming it impossible creates the risk of dismissing the fact that some women actually do choose to engage in trafficking and prostitution but do not assent to the exploitative conditions that sometime accompany their course of work.^[725] Efforts should be centralized on creating a system for combating human trafficking in the region that provides recourse for as many victims as possible.

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