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Human trafficking in Ireland, part 2 (and about those brothel raids)

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In the comments to this post a few weeks ago, where I looked at the Irish government’s latest human trafficking report, a reader pointed me to the text of a presentation given recently by Detective Superintendent Noel Clarke of the Garda Síochána (Irish police)’s Human Trafficking Unit. I promised to give it a post of its own, which I meant to do last weekend, but something else intervened. Which turned out to be just as well, because in the meantime we’ve had the island-wide brothel raids which I referred to in this post – and what we’ve learned from those raids ties in very neatly with the contents of the presentation.

Much of Clarke’s statement is bland operational stuff but a couple points drew my attention. The first is his reference to the administrative status available to trafficked persons:

In the cases where the potential victim was not legally in the State and there were reasonable grounds to suspect that crime had occurred they were granted a Recovery and Reflection period and a subsequent Temporary Residence Permission… In 2011 only one of the 57 potential victims did not have a permission to be in the State and that individual was granted a Recovery & Reflection period and a subsequent Temporary Residence Permission.

This underscores what I said in the earlier post about the status serving as an anti-deportation measure, hence not being applied to persons who already have some kind of protection against deportation. But as you can see from the stats in that post, that status is “asylum seeker” for the majority of persons reported. And around 95% of asylum seekers in Ireland will lose their protection against deportation once their claims have been determined (that’s the approximate rejection rate). The Department of Justice gives the impression (paragraph 10) that the administrative arrangements will kick in automatically for identified trafficking victims should their other permission expire, but that’s not what actually happens: instead, failed asylum seekers who have been trafficked must ask for recognition under the arrangements, as a last-ditch effort to avoid deportation, at precisely the time when their immigration status is most precarious. Which is an awfully cruel procedural hoop to put vulnerable people through. It’s one of only several reasons why the arrangements are woefully inadequate for the people they are meant to assist, but that’s a subject for another post.

Another interesting thing in the presentation is that Clarke says:

The one significant trend emerging from the data is that in approximately two-thirds of the cases and after a detailed investigation no evidence of human trafficking has been disclosed.

Or to read it the other way around, only about one-third of the cases that are reported to the Gardaí as involving human trafficking actually do involve human trafficking. This is not too far from my interpretation of the 2011 data as showing only 14 confirmed cases out of 57 reported (that’s actually around one quarter, but the difference between a third of 57 and a quarter of 57 is only five people).

And that brings us neatly to last week’s brothel raids, which for all the hoopla seem to have been something of a damp squib as an anti-trafficking operation. To the best of my knowledge, there are no reports that any trafficking victims were found in this jurisdiction, though apparently three were found in the North (bearing in mind, however, the much broader offence of trafficking there). And according to this piece in today’s Sunday Independent,

Senior sources said that all the young women who were detained or questioned said they were working in the sex trade here voluntarily…Gardai disagree with claims by Catholic and feminist groups that there are high levels of human trafficking involved in Ireland’s sex trade.

Now, there should always be a health warning attached to statements attributed to anonymous “senior sources”. But in this case we have a named source saying pretty much the same thing. To return to that Noel Clarke presentation about the data in the Department of Justice report:

we are of the view that is it an accurate portrayal of the extent and nature of the problem in Ireland.

And if it is an accurate portrayal, then there aren’t high levels of human trafficking involved in Ireland’s sex trade because at most there were 14-19 victims last year while according to the pro-criminalisation lobby themselves there are over 1000 women in the Irish sex industry. Less than 2% is not a high level by any measure.

These kinds of figures are unreliable, of course; I’m always the first to say that. Undoubtedly there are cases that have gone undetected. But when even a police operation of last week’s scale fails to turn up evidence of a large number of victims, the burden of proof can’t keep being put on the side of the sceptics. It’s all well and good pointing out that absence of evidence isn’t evidence of absence but as justification for a potential legal change with significant consequences for people’s lives and livelihoods, it’s nowhere near good enough.

One final thing I want to address about the raids is the claim that police were not targetting the women selling sex. That is patently not true for the North, where three Polish sex workers have been prosecuted despite acknowledgement from all sides that there was no trafficking or pimping involved. There don’t seem to have been any arrests of sex workers in the South (despite the admission by Gardaí, in this piece again, that it is usually sex workers rather than pimps who face brothel-keeping charges), but look at what this article says:

An unknown number of prostitutes were spoken to by gardaí and their immigration details were checked. They will not face prosecution but may become witnesses.

All those congratulating the Gardaí for “not going after the women” seem to have missed that little detail emphasised above. If they were truly “not going after” them, why would they need to check their immigration status? What exactly do supporters of these raids think the Gardaí are going to do with the knowledge gleaned from those checks? In a country where even trafficking victims from outside the EU aren’t safe from eventual deportation, you can be damn sure that migrant sex workers won’t be; at best, they may be kept around long enough to serve as witnesses (if they don’t make themselves disappear before then). An undocumented person has more to fear from the police than prosecution alone. That’s something criminalisation advocates who think the Swedish model would turn sex workers and police into BFFs really need to get their heads around.

On RTÉ’s Prime Time last Thursday, Paul Maguire, the reporter whose February “exposé” of the online industry arguably set the stage for these raids, queried whether they’ve had any effect. He pointed out that the number of escort ads the day after the raids was actually higher than it was the day before. But why would the number go down? After all, there were as many women struggling to pay their bills the day after as the day before. There were as many migrants without employment permission the day after as the day before. And for those can truly be said to be in the business by choice – the so-called happy hookers – well, they weren’t the raids’ target anyway, were they?

None of the above means I don’t think there is exploitation in the Irish sex industry, or that it shouldn’t be investigated. But it is legitimate to query whether the outcome of this particular operation justified its considerable cost, and to ask whether more could have been achieved with less heavy-handed tactics. And if the professed concern for the women is genuine, then we need also ask about the impact of the raids on them. It simply cannot be assumed that they’d welcome such interventions with the same enthusiasm their would-be rescuers do. Particularly if, as the evidence we have suggests, such a small percentage of them actually need rescuing in the first place.

“There was no lack of buyers” – Swedish sex trafficking trial concludes

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It may have escaped your notice if you rely on what the Swedes tell other countries about their sex trafficking problem, but last week several men were convicted for what Swedish prosecutors have called one of the largest trafficking rings of its kind ever uncovered in that country. It involved Romanian women who were brought to Sweden, some of them on the pretence of working in legal industries, and forced to sell sex in various Gothenburg arenas. You can read more about it here, here and here.

I won’t cite all the tragedy porn in those links (though I have no doubt supporters of the Swedish model would, if it had happened in a country where buying sex was legal), but there are a couple things I think are worth drawing attention to. The first is the quote in the title of this post, which comes from the third link. That article goes on to report one of the women’s testimony that she had seven or eight customers on her very first night. This doesn’t say much for the supposed deterrent effect of the sex purchase ban.

The second is the breakdown of ages (in the final link) of the men convicted of buying sex from these women: 36% were born in the 1960s, 21% in the 1970s and 30% in the 1980s. The other 13% aren’t accounted for except to say that the oldest was 76 and the youngest 17. So nearly a third, and perhaps slightly over that, were teenagers when the ban was introduced in 1999: further evidence (as I discussed here) that it hasn’t had the normative effect it was supposed to have on younger men.

The 17-year-old’s conviction is interesting for another reason. If Wikipedia (and all the other links I’ve found by Googling) is correct, Sweden’s age of majority is 18, which means that he is legally still a child. There’s nothing unusual about minors being convicted of crimes, of course, but the way that prostitution is conceptualised in Sweden does make this rather remarkable. The ideology underlying the sex purchase ban is that women cannot choose to sell sex; evidently, however, Swedish law considers that male children (at least of a certain age) can choose to buy it. In other words, when it comes to trading sex for money, adult women are less competent than male children. Could there be any clearer illustration of how this law infantilises women?

(It’s true that at least some of the women involved in this ring didn’t actually choose to sell sex, but the law doesn’t make a distinction between those who do and those who don’t. As far as I can tell from the various reports, the men were convicted for buying sex simpliciter, not for buying sex from trafficked persons, which does not appear to be a separate offence in Swedish law. Someone please correct me if I’m wrong.)

Nor is this an isolated incident. Last month, the same journal carried a story about another “large scale sex trafficking ring”, involving an even greater number of women, in Stockholm. In fact, the Swedish-language paper Sydsvenska, discussing the Gothenburg trial, says that “Många” (many) human trafficking cases have been reported since the law was brought in. The law’s advocates, funnily enough, seem to leave that detail out of their propaganda.

Some of the other Swedish language reports have equally interesting comments. I tracked down the source of that client age survey, this Dagens Nyheter (Daily News) article, in which I found the following information about the Gothenburg sex trade (Google Translate C&P job, but you get the gist):

The two worst pimps were convicted of trafficking and the other four for aggravated procuring. But in the street sex trade going back to normal. “Moreover, there prostitution in more arenas than we can access,” says social worker Ms Malmström…

We have also attempted to examine the major internet sites and SMS sent and email to over 300 who sell sex on the net, says Ms Malmström, so the market is actually much larger.

This article in the Gothenburg Post states that the men convicted included a municipal councillor, a Premier Division footballer, and several directors and sales managers. It also reports the County Police Commissioner as saying human trafficking is “a business with huge income and relatively low risks”. Not quite what we’ve been told about Sweden being an unattractive market for traffickers, is it?

I could go on but I think I’ve made my point. The picture that advocates of the Swedish model are painting outside of Sweden is clearly very different to the reality inside Sweden. Furthermore, the Swedes don’t seem unaware that they still have significant issues with prostitution and sex trafficking – they just don’t want the rest of the world to know about it. And so, they send their spokespersons out to lobby for the sex purchase ban in other countries, by making claims that are directly contradicted by their own officials in their own media. And credulous moralists and anti-sex work feminists swallow it wholesale, no questions asked.

What’s the Swedish for “con job”?

Human trafficking in Ireland, 2011

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The Irish Department of Justice’s Annual Report of Trafficking in Human Beings in Ireland for 2011 was published recently and I’ve now had a chance to look it over. As you’d probably expect, the coverage of it has been pretty superficial, but that’s not entirely the journalists’ fault: it’s a pretty superficial document, which leaves a lot of really important questions unanswered. That said, no one’s exactly asking them, either.

So here are my thoughts about what this report tells us – and doesn’t tell us – about human trafficking in Ireland in 2011. First, a bit of context. Trafficking is prohibited under the Criminal Law (Human Trafficking) Act 2008, which you can read here. Sections 1-4 are the parts that set out the definition of the offence, and if you don’t mind a bit of legalese it’s interesting to compare them to the international definition set out in the Palermo Protocol on trafficking, which we finally got around to ratifying two years ago. The Irish statute is much wordier, which is entirely typical of domesticised versions of international law: the latter are typically aspirational, unenforceable and constructed through compromise, so detailed definitions are usually neither necessary nor (from a state’s perspective) desirable. The former, however, are the actual law in a country and so need to be drafted with precision.

Length aside, there are three differences I want to focus on between the Irish and international definitions. These are differences in how the two texts deal with what I’ll call the “what”, “why” and “how” of trafficking. The “what” difference is really just technical: in the Irish law (Section 1), “trafficking” itself is a neutral term and is not an offence per se. If you give someone a job, or a place to live, or put them on a bus to another county, you’ve trafficked them. It becomes an offence only if you do these things in a certain way (the “how”) and for a certain purpose (i.e. exploitation, the “why”), which I’ll get to shortly.

By contrast, under Palermo “trafficking” is defined by the simultaneous presence of the “what”, “why” and “how”, so trafficking must always be a crime. I’m not sure that this difference has any practical significance (the Irish statute’s broad definition has no relevancy outside this Act), but it’s one of those things that law nerds like me get excited about.

The second difference, which is much more important, is the restriction that Irish law places on the meaning of “exploitation” (the “why”). Palermo states that

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…

The Irish law, on the other hand, spells out what “other forms of sexual exploitation” are included, and draws out (without really adding anything) the non-sexual labour provisions, crucially omitting Palermo’s “at a minimum” phrase. So whereas in international law a highly abusive practice with all the other elements of trafficking could conceivably qualify as such without fitting into any of the specified types of exploitation, in Ireland at least one of the boxes has to be ticked before the exploitation can be deemed to amount to trafficking. This isn’t a criticism of the Irish law; if it did include an “at a minimum” phrase, it could probably never be used or a person convicted under it would have a constitutional challenge for vagueness. But it helps to explain why it can be so difficult to show exploitation amounting to human trafficking, even where exploitation in the everyday sense is obvious.

The final key difference is similar; it’s the way the two texts define the “how”. In the Protocol, it’s

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

Here, too, there’s a catch-all that can potentially encompass a very broad range of circumstances. It’s the clause about “abuse of power or of a position of vulnerability”. A person with limited migration and/or employment options is almost by definition in a position of vulnerability; a person with the ability to facilitate or deny them access to those options is by definition in a position of power. What constitutes “abuse” is not defined, and is therefore open to a wide degree of interpretation (and ideological spin).

The Irish law adds a significant qualifier to its version of this clause: under Section 4(1)(c) of the 2008 Act, abuse of this type is only sufficient to bring about a trafficking charge if it

cause[d] the trafficked person to have had no real and acceptable alternative but to submit to being trafficked

So, in Ireland the abuse has to pretty much reach the level of coercion before the law is breached. This is pretty clearly an intentional narrowing of the Protocol’s definition, and gives rise to what could be an important question in adjudicating trafficking cases: who decides what is a “real and acceptable alternative”, and how?

Where children are concerned, both the Protocol and the Irish law have a similar feature in that they both disapply the “how” provisions: as long as the “what” and “why” are present, the child has been trafficked. And the Irish law adds a few things to the “what” of child trafficking. I’ll come back to this later.

So after that rather lengthy introduction (I didn’t actually think it was going to be that long when I started it, apologies) let’s move on to the actual report. We’ll begin with the statistics since that, unfortunately, is what people are usually most interested in. Page 8 has a table summarising the data on victims reported to the Department by the Irish police, An Garda Síochána:

Then on page 17, there’s a table of the victims reported to the Department by NGOs:

A couple important things here. First, the report states that the figures in the first table should be assumed to largely include the figures in the second table, although the Department’s Anti-Human Trafficking Unit didn’t collect personal data on the victims so couldn’t be entirely sure.

The second important thing is that these are all reported – not confirmed – victims. In the first table, they are persons whom the police investigated as possible trafficking victims. In the second table, they are persons whom the NGOs (according to page 6)

believed exhibited indications of having been trafficked

In a similar vein, that strange “uncategorised exploitation” category in the first chart is explained on page 3 to mean that

while at the time of reporting there were general suspicions that these persons could be victims of human trafficking there were no firm indications that either labour or sex trafficking had occurred

.

So regard must be had to the possibility that in some of these cases there actually was no human trafficking. And the figures, of course, do not take into account those cases that were never detected or reported at all. As with every other human trafficking report in every other country, it is really a record of human trafficking (and alleged human trafficking) reporting, rather than being a record of human trafficking itself.

Page 10 gives a breakdown into age category, cross-referenced with exploitation category. Unfortunately all under-18s are lumped under the heading of “minor”; it would be useful to have more information on where the 7 reported child victims of sexual exploitation and 4 child victims of labour exploitation (plus one each of “both categories” and “uncategorised”) fell on the age scale. It’s all the same legally, of course, but I think there are few people who don’t recognise some kind of difference between a 17-year-old and a 7-year-old – at the very least they would call for rather different preventive approaches.

In terms of the child sexual exploitation, recall what I said above about the broad definition of “trafficking” where children are concerned. Just this week we had this case, in which a man was charged with attempted child trafficking after pulling a girl off her bicycle with the aim of abducting and raping her. A horrific crime, to be sure, but not exactly what most people think of when they see headlines like this. Those who are tempted to see those 13 reported victims as evidence of a growing problem of child trafficking (as it is commonly understood) should bear in mind that some of them may have actually been victims of a type of abuse we’re much more familiar with in Ireland.

Page 11 gives a breakdown of region of origin, and there’s no surprise here: around two-thirds were from outside the EU, which in most cases means they had very restricted, or no, access to the legal labour market. This, as I’ve discussed repeatedly, is a major risk factor for trafficking (both for sexual and non-sexual exploitation). Six of the reported victims were Irish, and the article linked to in the last paragraph says that they were all underage although I can’t find that in the report. Nine were EU citizens, but we don’t know from where – and this is very important, because it too would affect their access to the labour market (Romanians and Bulgarians, remember, are still generally excluded).

Page 14 gives their immigration status:

Under the table is this footnote:

Please note that the reported immigration status reflects the status of persons at the time the information was provided to the AHTU and not when persons were reported to An Garda Síochána.

So with the presumed exception of the EU/Irish citizens, we have absolutely no idea what status the victims entered the country with, or what their status was at the time they were being trafficked within Ireland. That’s a shame, because it would be useful to know whether they’re coming in as asylum seekers, on work permits or bypassing border controls completely (by, for example, crossing the land border with the North). It would also be useful to know how many of them entered the asylum system after being trafficked because the possibility of refugee status offers them their only hope for remaining in Ireland.

On that note I’ll turn to the figure for “Administrative Arrangements”: this is the status for people who have been recognised by the police as victims of trafficking, and allowed to remain for a “reflection and recovery” period. At first glance it seems striking that only one person out of 57 has been granted this status. But there are a couple things worth bearing in mind. First, the main effect of the AA status is to give (limited) protection against deportation – so it doesn’t in any case apply to Irish and EU citizens, who have their own protections already. Thus it’s really one person out of 42. More significant are the figures on page 26, on the “Criminal Justice response to human trafficking”. This states that trafficking investigations are still ongoing in 32 cases (out of a total of 53 – some of these cases account for more than one of the 57 victims); in one case the claim was withdrawn; and in 6 they couldn’t find enough evidence to show that any trafficking took place. In such circumstances, the grounds for recognition really aren’t there. So now we’re down to one person given AA status out of 14 confirmed trafficking cases (that’s assuming that those 14 actually are “confirmed”, which isn’t explicitly stated on page 26 but seems to be the implication). And we don’t know how many of these 14 victims were Irish or EU citizens and so not entitled to AA status anyway. There were 15 reported Irish/EU victims in 2011, so conceivably it could be all of them. On the other hand, it could be none of them. Without better data, we don’t know – but we shouldn’t jump to knee-jerk conclusions based on one quick glance at the overall numbers.

The final thing I want to look at is the breakdown of cases reported by NGOs, by exploitation category and gender. Page 17 states that 22 of the 27 NGO cases were sexual exploitation, and one was labour + sexual. Page 19 says that all of the 27 were female.

It would be easy to cynically assume from this that Irish NGOs just aren’t interested in labour exploitation or in male victims. And, in fact, two of the four reporting NGOs do only deal with sexual exploitation, and one of these only works with women. But the Migrant Rights Centre Ireland, for whom I have huge regard, focuses pretty much exclusively on labour exploitation and takes a gender-neutral approach. And in fact, only a day or two after this report appeared, the MRCI were quoted on the evening news as saying they’d found something like 167 cases of forced labour in the past few years (I can’t find a link to this news broadcast, so you’ll have to take my word for it). So why did they only report 4 cases of labour trafficking last year?

I don’t have a definitive answer to that question, but I can think of a possible explanation. Quite simply, the Migrant Rights Centre exists to promote migrant rights. And human trafficking is not a rights-based concept. It should be, ideally, but trafficking law as conceived at both national and international levels is fundamentally a criminal justice instrument, aimed more at punishing perpetrators than protecting victims.

From this perspective, the Administrative Arrangements would be problematic even if they were liberally applied. Their main purpose (as you can read here) is to facilitate trafficked persons in assisting police with their inquiries. If and only if the person agrees to do so, they will be given temporary residence permission, but it’s clearly envisaged that eventually (i.e., when the investigation is complete) they’ll be repatriated.

That’s great if you’re one of the (very small percentage of) trafficking victims who was forcibly removed from your home country, and you want to return. It’s great if you left home voluntarily but have since decided that you want to return. It’s great if you harbour such (justifiable) ill will toward your traffickers that your paramount concern is to see them punished for their crimes. But if you just want to get on with your life and achieve the goals that you came to Ireland for in the first place? Not so much.

Since the MRCI deals only with victims of labour exploitation, it’s likely that a lot of them would have arrived in Ireland on a work permit. Although a work permit is valid in respect of one employer only, the stated Department of Jobs, Innovation and Enterprise policy is to allow a change of employer in cases of exploitation. (It’s questionable how well this policy is actually adhered to, but at least it’s an option on paper.) Unlike the Administrative Arrangements, a work permit offers a path to long-term residency and citizenship. Why, then, would a person who was subjected to forced labour – at least one who had a work permit to start with – want to pursue it as a trafficking case? There seems to be very little in it for them.

I could be entirely off base here, but even if this isn’t MRCI’s reason for not reporting forced labour cases as trafficking, it’s still a valid concern. The trafficking laws have little or no benefit for trafficking victims who entered the country on work permits – and by the same token, the DJIE policies which do benefit those victims (when they’re actually applied) are not an option for most people trafficked for sexual exploitation. Some researchers lament that victims of forced labour are much less likely to be considered “trafficked”, but it seems in Ireland they might be better off that way.

I said earlier that this is a report about reporting, so perhaps it’s fitting that one of the only things it strongly suggests is that Irish law discourages certain reporting. It’s hard to draw many other conclusions from the report. Trafficking itself is unmeasurable, but the very limited data provision here really doesn’t help us much in understanding what’s going on. Researchers and activists in this field should demand better information, rather than simply seizing on largely meaningless numbers which make easy headlines while actually telling us nothing.

Sex trafficking in the Netherlands: should we believe the hype?

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At some point in any debate over the legal status of sex work, supporters of prohibitory laws will invariably claim that sex trafficking has skyrocketed in the Netherlands since prostitution was legalised there, that this is a known fact not even disputed by the Dutch authorities and that this proves that legalisation and decriminalisation lead to an increase in sex trafficking.

It’s an argument that has always annoyed me, first because of its obvious cause-and-effect fallacy and second because the Dutch model is not one that is supported by any sex workers’ right advocate that I know of. It’s not unlike invoking the USSR to argue against socialism – in fact, it’s just another logical fallacy, the straw man.

Nonetheless, it’s something that comes up so often I thought it really couldn’t be ignored, so I had a look at the most recent (2010) Report of the Dutch National Rapporteur on Trafficking in Human Beings. The Rapporteur’s role is described on this page:


The Rapporteur’s main task is to report on the nature and extent of human trafficking in the Netherlands, and on the effects of the anti-trafficking policy pursued…

The Dutch Rapporteur works independently and reports to the Dutch government…

The Bureau of the Dutch Rapporteur of Trafficking in Human Beings keeps in contact with and gathers information from individuals, organisations and authorities involved in the prevention and combating of human trafficking and in giving assistance to trafficking victims.

For their information, the Rapporteur and her staff have access to crimnial [sic] files held by police and judicial authorities. Because human trafficking often occurs across borders, the Bureau also has many contacts abroad and co-operates with international organisations.

This, I think, is as close to an “authoritative” source as we’re going to get. The usual caveats about measuring hidden/illegal economies obviously apply.

So let’s go straight to the statistics, which are maintained by a body called CoMensha. As sex work opponents claim, these do show a significant increase since the law reform of 2000. Here’s the chart on page 92:

So, case closed? Well, hardly. The Rapporteur herself states that:

The likely explanation for the increase is the intensification of investigations by the police and the public prosecution service, as well as the growing attention to human trafficking. It is also possible that there is greater awareness (and in more agencies) of the need to report victims of human trafficking to CoMensha.

[internal references omitted]

In other words, the numbers aren’t actually increasing, we’re just finding more of them. The Rapporteur could of course be entirely wrong about this; perhaps the recorded increase does reflect a real increase as well. I quote her here only to point out that what sex work opponents portray as an undisputed fact actually isn’t.

But even if you take her words with a grain of salt (she may be independent of the government, but she’s still appointed by them), there are a number of problems with these figures. The first becomes apparent after a moment’s glance at the chart: the number of detected victims actually remained fairly steady for a few years after the law reform, and in fact was significantly lower in 2003 than it was in 2000. Bear in mind, these are only detected victims, and the actual number could have varied in either direction. But on the face of it the numbers don’t seem to support the claim that legalisation itself is behind the increase. You might expect there to be some lag in the law’s effects, but a sharp increase after an initial slump strongly suggests there’s something else going on there.

The real spike in the numbers occurred after 2005, and it should be apparent from the shape of the curve that something significant happened at that point. Sure enough: in 2005 the Dutch law on trafficking was amended, to cover non-sexual labour and the trade in organs as well (previously it had only applied to sex trafficking). So, a certain amount of that increase has nothing to do with the sex industry. How much of it? Well, on pages 174-175 the total number of victims specifically linked to the sex sector in the years 2007, 2008 and 2009 is given as 338, 473 and 419 respectively. So here is that chart again, with the number of reported sex trafficking victims for those years noted in red:

In fairness that probably understates the case a bit, since in each of those years there were upwards of 200 reported victims whose sector of exploitation was unknown. I’ll come back to this in a minute, but for the time being we can reasonably assume that some of these were in the sex sector. Even taking that into account, though, it must be clear that the expansion of the trafficking law beyond the sex industry has a lot to do with the impression of a recent trafficking explosion.

Another interesting point is made on page 91. While the usual reaction to statistics like this is to assume that they underrepresent the real numbers – because so many victims go undetected (something I certainly acknowledge) – there is also the possibility that they overstate the case as well. The Rapporteur explains:

it is possible that the persons reported to CoMensha are not all actually victims, so the number of registered victims could also be higher than the actual number of known victims in the Netherlands. This is because there is no formal assessment based on specific criteria by which the registered person’s status as a victim can be verified.

The broad categories of “notifiers” (persons and groups reporting victims to CoMensha) are charted on page 99:

This looks to me as though basically anyone can report a “trafficking victim” to CoMensha, and CoMensha will include that person in its data without ensuring they truly qualify. That must call into question whether the numbers have been inflated through misrepresentation of their actual victim status. A footnote on page 91 says that “very vague reports” will not be registered, but also that CoMensha “has no firm criteria for defining a ‘vague report’”. Also worth pointing out is this bit on page 111:

For almost a third of the victims reported to CoMensha since 2007, it is not known whether they had already been exploited or, if they had been exploited, in which sector.

There are two separate issues here. First, what exactly are the criteria for identifying someone as a trafficking victim if they have not “already been exploited”? I don’t think that identification would be unjustified if, say, they were intercepted en route to a brothel when they thought they were being taken to work in a restaurant, but it’s not at all clear whether that level of certainty is being applied. (I’m reminded of the often-cited statistic of 100,000-300,000 children trafficked in the US every year, which actually refers to children who are simply deemed to be “at risk” of sexual exploitation because of their personal circumstances, such as runaways, and may never actually face exploitation at all.) There’s clearly potential here for erroneous inflation of numbers – and certainly for the statistics to include people who might not be included in the statistics of other countries which only count the “already exploited”.

The second issue is the part about it not being known which sector the victims were exploited in. As mentioned above, these unknowns have accounted for more than 200 trafficking cases per year. What exactly does it mean for a sector to be unknown? That the notifier didn’t know the sector, or that they knew it but didn’t report it? I can certainly accept, given the nature of human trafficking and the trauma its victims can suffer, that it may be possible in some cases to recognise that a person has been trafficked without being able to ascertain the sector. But 200+ per year strikes me as an awfully high number of indeterminate-sector cases, and I would have to question whether some of these reports can really be taken as evidence that trafficking occurred at all. If on the other hand the notifier simply didn’t include the sector in their report to CoMensha, that question doesn’t arise – but you would wonder why CoMensha wouldn’t go back to the notifier and ask for clarification, since it’s a pretty important variable.

Another interesting thing I noticed was in the tables indicating the nationality of victims (pages 160-167). These also include the ranking of the top five nationalities – and the number one nationality of reported victims, since 2004, is Dutch. In fact, Dutch victims have accounted for at least a quarter of all reported victims since 2006, and for nearly two-fifths in 2007-2008. I found that extraordinary. It is true that trafficking can occur within state borders, but it’s fairly unusual for a state to recognise its own nationals as trafficking victims, at least on such a wide scale.

It’s difficult to explain this anomaly without more information, such as a breakdown of the sectors in which the Dutch victims were exploited. The only hint is in the fact that the proportion of these victims who were underage has averaged to 30% since 2006, suggesting that the “loverboy” phenomenon may be implicated. But that doesn’t account for the majority of cases. One possibility could lie in the Dutch definition of trafficking, which to my reading is extraordinarily broad. The UN definition is often said to boil down to “movement, control and exploitation”; however, the Dutch law allows for convictions without any “movement” element at all, within or across state borders. Note Article 1.1.6, which defines a trafficker as anyone who “wilfully profits from the exploitation of another person”. I would suggest that applies to more bosses than it excludes.

If the Dutch authorities are applying this broad a definition of trafficking, is it any wonder the numbers are as high as they are?

In fact, when you take all these qualifications into account it’s quite possible the Dutch figures aren’t excessively high at all (by “excessively high” I mean in comparison with other countries; even one case is too many, of course). Let’s go back to that 2009 figure of 419 sex trafficking victims. Seems a lot higher than Sweden’s 2009 number of 34 (see page 35), doesn’t it?

But first of all, they don’t seem to be comparing like with like. Pages 10-13 of that Swedish report discuss the nationality of the victims and from what I can tell they are all foreign; the report refers specifically to people being trafficked into Sweden. Now this could mean that Dutch people are being trafficked in the Netherlands while Swedish people are not being trafficked in Sweden, but more likely is that Sweden simply uses different terminology for its own nationals who experience “trafficking” within Sweden. So, what we need to compare the Swedish number to is not the total number of reported sex trafficking cases in the Netherlands, but the total number of sex trafficking cases of non-Dutch citizens in the Netherlands. We don’t have that exact number, but the Dutch report states that in 2009, 26% of all trafficking victims were Dutch nationals; if we apply that percentage to the sex trafficking victims we get a rounded figure of 109. Subtract that from 419 and we can estimate now that in 2009, 310 people were reported as sex trafficked into the Netherlands.

Next thing we have to look at is who is doing the reporting. The Dutch figures reflect reports from all sources; the Swedish figures reflect only police reports. In 2009 the Dutch police reported 61% of all Netherlands cases. Applying that figure to the 310, we can estimate that the Dutch police reported 189 cases of sex trafficking into the Netherlands. This is still significantly higher than the 34 cases of sex trafficking into Sweden reported by the Swedish police, but you see how the difference narrows when you take greater care to ensure you’re comparing the same things.

We’re left with figures that suggest a sex trafficking rate in the Netherlands around 5.5 times greater than the rate in Sweden. According to Googled World Bank statistics, the Netherlands’ population is around 1.75 times greater than Sweden’s, making the Dutch rate disproportionate by a factor of 3.75 – you’d expect the Dutch police to report 127.5 cases of sex trafficking rather than 189. So that’s 61.5 cases in 2009 that can’t be accounted for by the population difference alone. I can think of several possible reasons for this extra 61.5 that have nothing to do with the legal status of prostitution (other things that make the Netherlands a more attractive destination country, like its location and climate; or the much broader definition of “trafficker” in Dutch law; or operational differences in Dutch and Swedish police approaches to trafficking), but we really are in the realm of pure speculation at this point.

Of course, we’d need a more detailed set of statistics to really compare the two countries anyway. It’s quite possible that there is actually a wide disparity between sex and non-sex trafficking behind the percentages applying to overall trafficking which I used to arrive at that 189 figure. But that disparity could go either way, so it can’t be assumed that I’m underestimating the real difference between reported cases in Sweden and reported cases in the Netherlands. I could, in fact, be overestimating it and the actual figures could be much closer together. The point of this exercise is not to make any claims about the actual rate of sex trafficking in the Netherlands, but simply to show that there is a wide variety of factors behind the reported rates – and that you can’t simply compare sets of figures from two different countries without considering how all these factors could influence the results.

Another relevant question is how the Dutch numbers after law reform compare to the numbers before it. The most recent Rapporteur report doesn’t give figures from before legalisation, but I was able to find them (in somewhat different format) in the First Report, on page 49:

So clearly the problem was growing in the Netherlands even before legalisation, and perhaps the law change was entirely irrelevant to a trend that was developing anyway. However, even if the law itself had an effect, the report suggests this may be due (at least in part) to a reason that is very different to the one put forward by the anti-sex work movement – and it’s a reason that echoes a point I’ve made over and over again on this blog.

To put it in context: In the latest report, the Rapporteur states (page 26) that the purpose of the 2000 law reform was to

legalise a situation that was already tolerated.

The first report had gone into this in much greater detail, saying on page 11 that prior to 2000

in practice a distinction was made between voluntary and involuntary prostitution and the government in principle limited its concern for prostitution to regulating the exploitation of voluntary prostitution and combating involuntary prostitution. Because the ban on brothels…was still in the Penal Code, this policy in practice meant that the exploitation of voluntary prostitution in the Netherlands was in fact tolerated. This toleration developed in the course of time from a passive tolerance to an active tolerance (Venicz c.s., 2000). Passive tolerance meant permitting the establishment of prostitution businesses, as long as they did not cause any inadmissible nuisance or other articles of the law were not infringed. Active tolerance, on the other hand, meant the government taking controlling action so as to guide developments in a particular direction by various measures. A classic example of this is the system of tolerance orders or licences for brothels and other sex establishments used in many municipalities at the end of the 20th century, by which requirements and stipulations were laid down for their establishment and operation. And so in the 20th century the government did take virtually no action against brothels, except in those cases involving manifest abuses, exploitation of involuntary prostitution or disturbance of public order, peace and safety. In spite of an earlier attempt to amend article 250bis Penal Code in the Eighties, the ban on brothels was finally only abolished from the Penal Code on 1 October 2000.

Now, you might read this thinking that the 2000 law didn’t actually change a thing, and that what we should be talking about here is not what happens when prostitution is legalised but when it is tolerated. But there is an important difference between the two, and it’s one that has been noted in the context of Australian law reform as well:

Police, of course, under a legal system which officially legitimises certain forms of prostitution or certain places, are obliged by the government to enforce laws on other prostitution in order to justify the “legalisation”.

So what are the “other forms of prostitution” which were tolerated in the Netherlands until 2000 and are now enforced against? Well, one of them is prostitution by non-EU migrant workers (or those from EU countries excluded from the Dutch labour market). The legality of sex work notwithstanding, it usually isn’t an option for them unless they have residency on some other ground; it is impossible to get a work permit for the Dutch sex sector and very difficult to get recognition as a self-employed sex worker. And thus, as the sex workers’ rights group De Rode Draad told the Norwegian Ministry of Justice in 2004,

The situation for immigrant women has become much more difficult. Formerly these women’s work was tolerated in the same way as other sex workers’. With the legalisation of one group of women, the work of another group of women now becomes illegal. (page 34)

The Rapporteur’s current report doesn’t really go into this, but it does quote from an earlier report (the third) which addressed it in some detail, noting on page 22 that:

A number of NGOs have repeatedly argued that where aliens cannot work legally in the sex industry in the Netherlands but are still interested in doing so, a ban on or obstacle to doing this legally means a considerable risk of becoming dependent on third parties, with exploitation as a potential and harmful consequence. They therefore regard the ban on issuing work permits for prostitution work in salaried employment and the conditions that are or may be imposed on subjects of Association countries who want to come and work in the Netherlands as self-employed prostitutes as encouraging [trafficking].

So in other words, if it is the case that trafficking has increased as a result of legalisation, it’s because of changes in the government’s approach to migrant sex work, not to sex work generally. It’s an issue of immigration law rather than prostitution law. This, I think, is absolutely critical to a proper understanding of sex trafficking in the Netherlands – whether the actual rate is going up, down or sideways.

What about the claims of exploitation in the legal sector? I’ve seen all sorts of statistics thrown around about this, used to justify the argument that you can’t protect sex workers by legalising the industry. The Rapporteur doesn’t cite any data on this topic, but does accept the existence of these abuses and the failure of Dutch policy to adequately address them. On page 140 she states,

the view that entering the profession was an individual’s free choice that should be respected…may have obscured the sight of forced prostitution, especially since establishing a licensing system for the prostitution sector was expected to make licensed prostitution more manageable, and hence lead to eradication of abuses in the sector. Over the last decade, the emphasis in attitudes towards the prostitution sector seems to have shifted to the vulnerability of the sector to human trafficking. Several notorious cases that have shown that widespread exploitation can also take place in the licensed prostitution sector have undoubtedly been a factor in this.

Well, if Dutch lawmakers assumed that licensing on its own would sort out coercion in the sector then it’s hardly any wonder they’ve had problems. If that was all that was needed, there would be no abuse in any legal and regulated sector, and clearly that is not the case. Here, the report shows the risks not of legal prostitution per se, but of a poorly thought-out scheme which lazily equates “legal” with “non-exploitative”. I suspect that if Dutch lawmakers had taken more input from Dutch sex workers when drawing up their law, this might have been pointed out to them.

Since people frequently seem to have trouble grasping this point, I’ll close by reiterating that these reports cannot be assumed to reflect the actual amount of sex trafficking in the countries they relate to. No really accurate, reliable measure is possible – and the true numbers could be either higher or lower. But if one legal model is going to be advocated over another on the basis of the trafficking rates under those models, those doing the advocating have to find some basis to show that a model has the effect they ascribe to it. This requires showing that, as best as can be determined, not only is there more trafficking under one model than under another but also that there is a causal link between the model and the trafficking rate. The Dutch Rapporteur’s report could support the anti-sex work argument on the first count, but the statistics are not sufficiently disaggregated to say for sure: we don’t know enough about them to pull out all the things that the Swedish authorities aren’t counting and make a like-for-like comparison of the numbers.

The report actually does more to support the claim of a causal link, in the sense that it acknowledges risk factors connected directly or indirectly to legalisation (the laissez-faire approach to the licensed sector and the restrictions on some foreign workers). But the crucial thing here is that these are causal links to the Dutch model of legalisation, not to legal prostitution per se. They could just as easily be used to support arguments for the establishment of a proper inspection scheme, or for allowing non-EU migrants to work in the industry – two things that can only happen in the context of legalisation, decriminalisation or de facto tolerance.

So to answer the question in the title of this post: no, but we shouldn’t discount it entirely either. It may be impossible to say for sure whether the Netherlands actually has more trafficking than other countries, but it definitely has a legal regime which in some ways seems to facilitate it. The reasons it does so may not be the ones put forward by the anti-sex work movement – but that doesn’t make the need for change any less compelling.

UNAIDS Advisory Group condemns Swedish sex purchase ban

Last month saw the publication of the long-awaited Report of the UNAIDS Advisory Group on HIV and Sex Work. The Advisory Group was established in 2009 by the Executive Director of UNAIDS, the Joint United Nations Programme on HIV/AIDS, to provide clarification and advice around certain matters addressed in the most recent (2009) UNAIDS Guidance Note on HIV and Sex Work.

I finally had a chance to read the document this week, and there’s a lot of really good stuff in it. One of its most significant aspects is that it pulls no punches on the question of criminalising clients – not merely subsuming this issue, as many previous UN-associated statements have done, under a general opposition to laws against consensual commercial sex, but addressing it head-on and in some detail. On pages 5-6, it includes the Swedish sex-purchase ban in a section called “Laws, enforcement and policies that impede effective HIV responses for sex workers: Criminal prohibitions against sex work or aspects of it” and says:

The approach of criminalising the client has been shown to backfire on sex workers. In Sweden, sex workers who were unable to work indoors were left on the street with the most dangerous clients and little choice but to accept them.

In its “Conclusion and recommendations” on legal regimes, on page 8, it says:

States can take many actions to establish legal and policy environments that are conducive to universal access to HIV services for sex workers. Among these are the following: States should move away from criminalising sex work or activities associated with it. Decriminalisation of sex work should include removing criminal penalties for purchase and sale of sex…

Also significant is its criticism of the “end demand” strategy in general. In the introduction, on page 4, it says:

Policies and programmes to reduce the demand for sex work, designed ignoring the voices of sex workers, often result in unintended harms including increased HIV risk and vulnerability
for sex workers and their clients

On page 6, it points out:

There is very little evidence to suggest that any criminal laws related to sex work reduce demand for sex or the number of sex workers. Rather, all of them create an environment of fear and marginalisation for sex workers, who often have to work in remote and unsafe locations to avoid arrest of themselves or their clients. These laws can undermine sex workers’ ability to work together to identify potentially violent clients and their capacity to demand condom use of clients.

On pages 10-11, it notes that

well-meaning but ill-informed service and healthcare providers and policy actors from community-based organisations, nongovernmental organisations, donors, international organisations and government agencies believe that they are helping sex workers by calling for criminalisation of clients. However, there is no evidence that these “end demand” initiatives reduce sex work or HIV transmission, or improve the quality of life for sex workers…These laws do not reduce the scale of sex work, but they do make sex workers more vulnerable.

It calls instead for a shift of emphasis to ending demand for unprotected paid sex – and states on page 11:

Empowering sex workers to have greater control over their working conditions, rather than “end demand” approaches, should be the focus of HIV prevention efforts…When sex workers can successfully ensure that their customers use condoms, sex workers are less likely to become infected by HIV.

Of course, since it’s (usually) the clients who have to wear the condoms, convincing them that it’s in their interest to do so would go a long way toward reducing the demand for unprotected paid sex. The report describes working with clients in this way as the more effective strategy for HIV prevention, noting on page 14 that

demonising and marginalising clients are approaches that create major barriers to effective HIV programming with sex workers

On page 13 it gives a real-life example, from China, of how greater condom use has been achieved through a programme that treats clients not as irredeemable villains but rather as partners in the battle against HIV and other STIs:

Men working in industrial sectors that require them to work away from their families often engage in risky behaviours such as unprotected paid and casual sex…To address this, the International Labour Organization is working with large and medium-scale mining companies in southern China to promote responsible sexual behaviours among mine workers, including proper treatment of STIs, consistent condom use and elimination of violence against women, including sex workers. Preliminary results, assessed through qualitative and quantitative surveys, show significant increases in condom use and health-seeking behaviours, and increased reported condom use in paid and casual sex.

The report goes on to address the issue of trafficking. Here, I have a small difficulty with it, as it divides the sex industry into two distinct categories of voluntary/not trafficked and involuntary/trafficked:

A woman deciding to sell sexual services in order to support herself or her family is not a trafficked person. (page 17)

This is not strictly accurate as a matter of law, as the international definition of “trafficking” is broad enough to encompass some forms of “voluntary” sexual labour, such as debt bondage. It also ignores the fact that for most working people, not just sex workers, consent and coercion exist along a continuum, rather than being a binary.

Nonetheless, it’s absolutely true that sex work abolitionists tend to draw the line on that continuum in such a way as to strip the agency from most sex workers, especially migrants – and the Advisory Group is correct to highlight the problems this causes for HIV programmes. On page 18 it states:

Anti-trafficking measures often concentrate on getting people out of sex work, without considering whether they are trafficked, or whether the efforts will disrupt the access sex workers have to services that safeguard their health and well-being, and that create opportunities for them to share information and seek assistance for individuals they are concerned may have been trafficked. Many projects that focus on rescuing trafficked persons interrupt and undermine efforts to provide sex workers with access to HIV prevention, treatment, care and support.

The next page continues:

Forced rescue and rehabilitation practices lower sex workers’ control over where and under what conditions they sell sexual services and to whom, exposing them to greater violence and exploitation.

It goes on to say that when sex workers’ livelihoods are disrupted in this way,

this leads to social disintegration and a loss of solidarity and cohesion (social capital) among sex workers, including reducing their ability to access health care, legal and social services. Low social capital is known to increase vulnerability to sexually transmitted infections among sex workers and therefore has a detrimental impact on HIV prevention efforts.

Not surprisingly, therefore, it states on page 7 that

From the perspective of universal access to HIV services, undermining sex worker organisations is one of the most important negative effects of law enforcement practices.

Furthermore – and this is incredibly important for the migrant sex workers whom abolitionists are always fretting about:

The conflation of sex work and trafficking directly limits the ability of migrant sex workers to protect themselves from HIV, since they are often assumed to be trafficked. Migrant sex workers often live with the constant threat of being reported, arrested and deported which creates a real barrier to accessing health and welfare services.(page 19)

Of course, this is an immigration issue which would exist even if there was no question of trafficking. But the moral panic around trafficking has unquestionably created a greater impetus for raids on sex industry venues, which frequently lead to deportations of the people alleged to have been “trafficked”. (I think perhaps the report could have made this clearer.)

As with the battle against HIV, the battle against trafficking also needs sex workers’ participation if it is to have any real effect. On page 18, the report notes that

anti-trafficking efforts typically ignore the possibility of engaging sex workers as partners in identifying, preventing and resolving situations that do involve trafficked people. Sex workers themselves are often best placed to know who is being trafficked into commercial sex and by whom, and are particularly motivated to work to stop such odious practices.

To this end, it promotes the establishment of sex worker organisations, saying on page 20:

Organised groups of sex workers are also best placed to establish safe working norms within the sex industry, and influence other actors in the industry to ensure that trafficked adults and children are not retained in sex work…self-regulatory mechanisms, which are established, implemented and overseen by sex workers’ organisations can limit trafficking into the sex industry as well as the sexual exploitation of children. They also form a platform for addressing labour exploitation of sex workers.

The last major issue addressed in the report is the need for sex workers to be economically empowered. The main point here is that such programmes shouldn’t seek only to remove people from sex work, or be made conditional on their willingness/ability to leave the industry, but should aim to also improve the economic circumstances of those who remain in it:

By increasing economic options, sex workers can achieve greater financial security, which makes it easier for them to make important decisions that affect their lives…Improving economic options also helps sex workers to reduce the likelihood of having to accept clients’ requests for unprotected sex or that they will be put in situations that inhibit their ability to negotiate with clients and reduce the risk of violence or abuse. (pages 22-23)

Some interesting examples are provided of successful programmes around the world, such as one in Andhra Pradesh, India, where

Among the 803 sex workers interviewed, involvement in economic independence programmes was positively associated with control over both the type and cost of sexual services provided and with consistent condom use. (page 24)

I can predict a couple criticisms of the report. The make-up of the Advisory Group will probably discredit it in some eyes, since it includes affiliates of the Global Network of Sex Work Projects (along with “independent experts from academia and civil society organisations, representatives of UNAIDS Co-Sponsors and the [UNAIDS] Secretariat”). My response to that is to ask whether it would be reasonable for a UNAIDS Advisory Group on HIV and Men Who Have Sex With Men to not include any organisations comprising or working with MSMs. Of course it would not. They would rightly be seen as experts on the subject, and any “advisory group” without them would be seen as lacking in credibility.

It may also be argued that this is merely a report of the Advisory Group and not a UNAIDS policy document as such. This is true. However, its conclusions are entirely consistent with things UNAIDS has been saying all along, even if takes them a bit further. It justifies its positions by reference to earlier UNAIDS publications, such as on page 5 where it says:

The UNAIDS Strategy 2011-2015: Getting to Zero identifies as one of its 10 goals that the number of “countries with punitive laws and practices around HIV transmission, sex work, drug use or homosexuality will be reduced by half”

and on page 9 where it states that the 2006 International Guidelines on HIV/AIDS and Human Rights by the Office of the High Commissioner on Human Rights/UNAIDS note that

states have a responsibility to ensure that criminal law is reviewed with the aim of removing criminal sanctions on sex work and ensuring that any non-criminal regulations support safe sex in sex work and ready access of sex workers to comprehensive HIV services.

The fact of the matter is that UNAIDS, and many other global health and human rights organisations, have been saying for a long time that criminalisation of sex work is a barrier to effective HIV prevention and treatment. They have focused on criminalisation of the seller because that is how criminalisation manifests itself in most of the world; the Nordic model may look pretty significant from where I’m sitting in the north west corner of Europe but globally, it’s little more than a footnote. So the fact that it hasn’t specifically been addressed by UNAIDS (or the other international health and human rights groups who oppose criminalisation generally) should in no way be taken to indicate that they approve of it. Given all that we’re learning about how it actually works in practice, in fact, it’s pretty inconceivable that they would.

Of course, abolitionists won’t care what UNAIDS thinks about it anyway, since their view is that sex work would be bad and wrong even if it cured HIV. But most people are not abolitionists, and I think they would appreciate the significance of UNAIDS publishing this document. It is a valuable addition to the growing catalogue of material showing the health and human rights failures of criminalisation of sex workers’ clients, anti-trafficking policy and the fixation on ending demand.

On labour law, human trafficking and the strange silence of advocates

Last week, a couple Tweeters I follow linked to a blog post from 2010 titled The anti-trafficking industry is the biggest threat to migrants. The post made a lot of the same points I’ve made on this blog, such as here, and it’s unfortunate that it was accompanied by such a ludicrously hyperbolic title (which I suspect was likely to lead many people to simply dismiss its contents entirely). The anti-trafficking industry doesn’t make policy, states do, and the biggest threat to migrants is the state policy of increasingly tightening borders to keep them out – irrespective of the consequences for their human rights and even their lives. This policy predates the growth of the anti-trafficking movement, and would undoubtedly continue if the movement disappeared tomorrow.

Of course, I agree that the movement’s advocacy often serves as an effective justification of border policies. It does this harm both by commission (encouraging crackdowns on migration in order to “rescue” people whom it assumes, not always correctly, to be unwilling victims) and by omission (failing to challenge these noxious policies where they occur). We saw another example of this recently in Ireland, where the government decision to maintain labour market access restrictions on Romanian and Bulgarian nationals was met with a resounding thud of silence by the big guns in Irish anti-trafficking.

A little bit of background first. Free movement of workers is, as we all know, supposed to be one of the principles underpinning the European Union’s existence. But as the EU has grown larger and larger – and, let’s face it, as its population has become more ethnically and culturally diverse – member states have developed colder and colder feet about opening up their labour markets. It is now a feature of accession treaties that states can opt to deny the right to work to new member state nationals for a specified period of time; Ireland as well as many other EU countries took that option when Bulgaria and Romania joined. As that last link reports, the Irish government has now also taken up the option to extend this exclusion until the end of 2013.

It’s important to understand that denial of labour market access is not the same thing as denial of entry. All EU citizens (well, apart from those with individual exclusion orders but that’s not really relevant here) have freedom to travel within the EU, and to enter other EU countries even if they cannot remain and work in them. The Irish government justified its original decision to ban Romanians and Bulgarians from the labour market on the basis that it might upset our Common Travel Area with Britain (which had already decided not to open its labour market to them), but that was a load of hooey – any Romanians/Bulgarians who want to enter Britain are perfectly free to fly directly into Heathrow, flash their passports at UKBA staff and walk on out onto the streets of London, labour market ban or no labour market ban. Allowing them to work in Ireland would not have made an iota of difference in that respect – that was simply an excuse that the Irish government used to avoid admitting that it wasn’t about to take on a “burden” that the Brits had already declined to share. The point of all this is that while Romanians and Bulgarians are still generally excluded from working in Ireland, their EU citizenship nonetheless entitles them to enter the country freely and without being subject to the border controls faced by citizens of countries outside the EU/EEA.

And that is a double-edged sword where the issue of trafficking is concerned. Because, although fortified borders are for the most part A Very Bad Thing Indeed, in that they force many migrants to turn to smugglers and traffickers just to get into their destination country, they have the (very small) potential to (occasionally) also prevent the worst abuses that occur in human trafficking. I don’t want to overstate this, because it is almost certainly the case that the number of migrants whose lives are worsened by their inability to get into countries where they can make a living far exceeds the number whose lives would be improved by intervention at the border (and for whom that needed intervention actually occurs). But it is theoretically possible, and I’m sure it does happen the (very) odd time, that an alert border agent susses out someone in genuine need of rescue from the fate that would await them if they were allowed to enter with no questions asked.

So in some respects, what we have here is a worst-of-both-worlds situation – Romanians and Bulgarians can get in (or be brought in) but once they are here, they can’t legally work (and under EU law, they have no right of residence without a means to support themselves). I am not arguing that they would be better off not to be allowed in at all, but I don’t think it’s difficult to see how a policy that eliminates the need to forge someone’s entry documents while simultaneously ensuring their financial (and hence residential) dependence on you is a trafficker’s wet dream. It’s a virtual invitation to those who want to exploit migrants from the two poorest EU countries.

And it’s clear, at least in the case of Romanians, that many are being exploited in Ireland – badly. The largest trafficking ring yet uncovered in Ireland, for forced agricultural labour in Wexford, involved Romanian migrants. I won’t link to any Romanian sex trafficking stories because I don’t trust the Irish media on the subject, but even my sex worker sources agree that it’s a real issue here. (It’s usually women working in the sex industry voluntarily but under deeply exploitative conditions, but that qualifies as “trafficking” too.) And, in all these cases, one of the most important factors that facilitates their exploitation is that they have no alternative source of income in Ireland – because they are excluded from the labour market. Even if they are physically capable of escaping their abusive employer, and many of them are, they have nowhere to go but back to Romania because Ireland does not allow them to work.

I was out of the country when the continuation of this shameful policy was announced, but I’ve gone back and looked over both the websites and the Twitter accounts of all the main anti-trafficking organisations in Ireland and I don’t see a single reference to it anywhere. If I managed to read about it while I was on holiday across the ocean, I can’t imagine it escaped their notice – yet apparently not one of them considered it important enough to issue a statement or even Tweet about. (Around the same time, though, several of them commented favourably on the arrests of men trying to buy sex in Limerick.) Has it actually not occurred to any of these groups that this policy decision will have negative consequences for people vulnerable to human trafficking? Have any of them even made the connection between trafficking and restrictive migrant labour laws? I really wonder.

Note that I am not holding this policy single-handedly responsible for that Wexford trafficking ring, or for the exploitation of Romanian women in Irish brothels. I do not believe that the things encompassed within the term “human trafficking” can be boiled down to any one simple explanation. But the trafficker-friendly environment it creates is so blindingly obvious as to be pretty much a no-brainer, and there is no legitimate excuse for anyone genuinely concerned about trafficking to ignore it.

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