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BACKGROUND MATERIALS BEFORE READING THE DRAFT CHAPTER ANTI TRAFFICKING IN ISRAEL: NATIONALISM, BORDERS, MARKETS
HILA SHAMIR
Dear readers,
The chapter you are about to read is part of a book titled GOVERNANCE FEMINISM: AN
INTRODUCTION, co-authored with Janet Halley, Prabha Kotiswaran, Rachel Rebouche
and myself. Some of the background for this chapter will be provided in other
chapters of the book. To assist reading this chapter as a stand-alone, please find below
an expanded glossary of terms. The terms I explain are Governance Feminism,
Trafficking, Feminist positions on sex work, and Neo-abolitionism.
Thank you for taking the time to read the chapter!
Hila
Governance Feminism
Taken from the DRAFT introduction to: Janet Halley, Prabha Kotiswaran, Rachel
Rebouche and Hila Shamir, GOVERNANCE FEMINISM: AN INTRODUCTION (Minnesota
University Press, Forthcoming 2014/5) [ footnotes omitted].
Feminists now walk the halls of power. By no means all feminists: some forms of
feminism disqualify their proponents from inclusion in the power elite. But you can
get a job in the UN, the World Bank, the International Criminal Court, in the local
prosecutor’s office, and the child welfare bureaucracy for espousing dominant strands
of feminism. Exactly what forms of feminism “make sense” to previously entirely
male power elites, find their way into legal institutions, and change legal thought and
legal operations? Whose NGOs get funding from international aid and development
agencies and from ideologically-driven private donors? Once feminists gain a
foothold in governance, what do they do there and which particular legal forms are
they most heavily invested in? What are the distributive consequences of the partial
inclusion of some feminist projects? Where does feminism succeed in mainstreaming
its policies and does this success also bear some traceable systemic costs? Can
feminism foster a critique of its own successes?
We have dubbed our topic Governance Feminism (GF). We mean by that every
form in which feminists and feminist ideas get incorporated into state, state-like, and
state-affiliated power.
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In the first section of this Preface, we explain what we mean by governance. In
the second we explain what we mean by feminism. In the third we present a range of
attitudes feminists have adopted to the surprising experience of wielding power, and
offer a way of talking about that power that seeks to describe it accurately while
leaving plenty of room both for affirmation and critique. In the final section, we set
forth the traditions of critique which we find most useful for assessing GF.
1.
Governance Feminism
Many terms have been invented to describe particular phases of GF: state
feminism, carceral feminism, femocrats, Special Advisors on Gender Violence … the
list is long. Each of them focuses on a specific governmental form – in the list we just
gave, the state, the penal state, state bureaucracy, legally authorized experts,
respectively -- which feminists and feminism have found to be at least somewhat
hospitable. We have selected as an overarching term governance feminism in order
to embrace them all: any form of state, state-like or state-affiliated power is, we
presuppose, capable of being infiltrated by feminists and feminist ideas.
Like many other students of the contemporary legal order, we are struck by the
real-world proliferation of forms of organized power that break the bounds of the
classically imagined state., and like them we find the term governance useful to
describe the resulting expansion of institutional forms and social practices. These are
forms of power that operate immanently as well as top-down; that facilitate and
inherit state power from outside the state; that shimmer back and forth across the
private/public distinction. All of international law has this interstitial character,
however much it mimes the trappings of state power, and it has been an
extraordinarily fecund site for the invention of new modes of power: the reporting
system that most treaty bodies substitute for adjudication, for instance, has produced
an immense discursive network of text exchange in which a huge array of players can
manage and mediate treaty-based norms. But states when they appoint commissions
to examine and report on controversial problems, hire private contractors to execute
governmental functions, and incorporate –sometimes even “certifying” as
superlegitimate – so-called Non-Governmental Organizations or NGOs to do their
propaganda and fact-generating functions.
GF arose precisely when national governments and international governance
bodies were increasingly incorporating non-traditional political actors, such as NGOs
and experts of various civil society associations, in their governance structures and
decision-making processes. Internationally, feminists helped to foment this trend in a
wide array of concerted efforts ranging from the UN Conferences on Women to
intense advocacy the international criminal tribunals addressed to the Yugoslavian
and Rwandan conflicts. Domestically these efforts included, for example, concerted
pressure to institutionalize domestic violence and trafficking law reforms, to police
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deadbeat dads, to extend rights to reproductive health services, and to convert rape
from forced sex into unconsented-to sex.
At first we thought that the flagship GF successes were all concentrated on sexual
violence and envisioned law as primarily punitive (what Elizabeth Bernstein calls
“carceral feminism”); and indeed this formulation describes a great deal of national
and international GF today. Indeed, the appetite of many strands of feminism for
government through prohibition and punishment is one of the most striking features of
GF today. Male sexual wrongdoing – sometimes exemplified by rape, sometimes by
prostitution – is understood to be crime and to require prosecution, conviction, and
intensely stigmatizing and painful punishment.
But the subjects of GF include women in the workplace, women seeking to have
children or end pregnancies, women in the family, women on corporate boards and
women in the public sphere, and GF seems to accommodate feminists of all stripes.
GF has thus hefted every legal tool imaginable, somewhere, sometime.
The forms in which feminists exercise power have thus tracked the vast expansion
of public/private alliances which now govern human life at every level, from the local
to the international and back. Indeed, in our account, GF and governance-throughNGOs co-constituted themselves starting in the late 1980’s. The rise of the NGOsphere and of international GF were not merely coincident in time: they fostered and
shaped each other.
GF has also been highly productive of feminism as a governmental savoir or
“power/knowledge” in the Foucaultian sense. The .most obvious and study-able form
of this is the appointment of legal officials and private advisors specifically for their
ability to produce feminism as governmental reason.
Feminism as expertise is
personified in UN Special Rapporteurs on Gender Violence, the Special Advisor to
the Prosecutor on Gender Violence at the International Criminal Court, and the
Outside Consultative Group on Gender to the World Bank. In the US, an entire
industry advises employers and universities on compliance with Title VII and Title
VIII sexual harassment law: ever since the Supreme Court gave organizations a
defense in court if they administered sexual harassment claims rationally, feminist
rationality on unwanted sexual conduct has become a necessary element of legal
compliance.
%%add NG and feminists within the NG movement, Sturm,
employment.
As these feminist govermentalities become legal, social, cultural and/or
ideological common sense, they disappear into the light of common day. Studying
them is like watching a drop of water hitting the larger pool of water below: at first
we see ripples, but soon the surface is perfectly smooth and the drop dissolves into the
whole. The specifically feminist character of the legal intervention disappears. And
many legal orders demand this neutrality in exchange for legitimacy: feminist judges,
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feminist policy makers, feminist experts must obey the rituals of rule of law,
objectivity and legal rationality to stay in power. They often don’t look feminist at all
to the genealogically innocent eye. Studying GF that has reached this stage of
incorporation can be difficult.
For instance, a vast range of jobs at the national and international level now make
feminism of one sort or other their qualifying expertise. GF functions as a full
employment act for Women’s, Gender and Sexuality Studies graduates. But as this
process unfolds, the specific feminist impulse that gave rise to these new jobs fades,
the feminist idea-set of the job gets routinized, and bureaucratic motives take over.
Joanne Sandler, a major figure in UN Women, noted in 2012 that she “ … now
meet[s] an increasing number of ‘career’ civil servants – from within the UN system
or from government or academia – who join UN Women or gender units of other UN
organisations to advance their careers.” These new GFeminists deserve the name not
because of their feminist ideology or feminist passion for justice but because of the
institutional mandate they serve.
As this process enters its third decade, GF has been, in some cases, highly
successful in changing laws, institutions and practices. None of us would have
academic jobs or the time and resources to study GF if these successes had not
buoyed us throughout our upbringing and our careers: by reducing sexual violence
through criminalization and stigma, by opening opportunities in education and the
professions, by making marriage and other forms of intimate partnerships more
equalitarian in the distribution both of work and of property, GF has made us possible.
But in our view it has also done considerable damage: many GF projects, some of
them described in detail below, strike us as terrible mistakes. And many feminist
visions of emancipation have been left at the station when the governance train took
off: what Kerry Rittich calls the “selective incorporation” of feminist ideas into
governmental power selected some real duds while leaving some diamonds in the
dust. One reason to study GF is precisely to take stock of these changes across their
full range.
In other words, GF has produced immense changes, most of them positive, in the
lives of women, who enjoy more equality, more autonomy, and a greater share of the
world’s wealth because of feminism in power. But there are costs. Women benefit
differentially; some are harmed; and conflicts among feminists about what worlds to
imagine are prematurely settled. Merging into the mainstream can efface the feminist
fingerprints on important governance projects and preclude intra-feminist politics
about them. It can consolidate a particularistic, identity-based project, sometimes at
the expense of alternative affiliations that ignore the siren call of victimization and
identity as prerequisites for legal intelligibility. Some of the best things within and
about feminism get left out. For all these reasons, recovering the specifically feminist
ideas that animate GF strikes us as an urgent project – but one which, we think,
should be approached with scholarly care and political vision.
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2. Governance Feminism
Feminist ideas and feminists travel. The remarkable success of GFeminists in
international organizations like the UN and the World Bank, in the Rome Statute
establishing the International Criminal Court, and in treaty commitments ranging
from the Convention on the Elimination of Discrimination against Women and the
Palermo Protocol against Human Trafficking, means that law itself is a transmission
vehicle for GF and thus for feminism. Also the NGO-sphere, powered by government
grants, deep-pocketed private donors and internet activism, move feminist norms and
practices around the world, from many centers of feminist production to innumerable
local sites of feminist engagement. And in locales across the world, local feminisms
thrive and welcome, grudgingly accommodate and resist these feminisms coming
from “outside.” The study of GF is necessarily a comparative project, tracing
genealogies of transmission – of production and reception – from the international to
the local and back again, from center to periphery and back again, from the ivory
tower to the street and back again. And because feminism now takes governance
forms, the struggle over production, transmission and reception of feminist people,
ideas and practices is achieved not only through their intrinsic charisma: sometimes it
happens at the end of a gun.
This book is structured to give examples of the ways feminist ideas travel.
[SET OUT THE CHAPTERS]
For all that we emphasize local sites of feminist production all over the world,
the ascendency of the US in the post-Soviet era means that, within GF,
Unitedstatesean feminisms have a salience and transportability that feminisms
emerging elsewhere don’t enjoy. Indeed, Unitedstatesean feminism, like US citizens,
has a passport that can travel almost everywhere without applying for an entry visa:
this very salience and transportability have made Unitedstatesean feminism a little
deaf to its own limits and to the intense resistance it has provoked among some nonUS-based feminists. What we are about to describe is thus both a Model and an AntiModel. Still, we think it worthwhile, right at the outset, to sketch the tools available
within Unitedstatesean feminism pretty starkly. At certain points, this examination
necessarily tracks alliances between Unitedstatesean feminists and those from
elsewhere.
Unitedstatesean feminism is a sustained disagreement about sex, sexuality,
gender and the family among people who share a central, sometimes pivotal or
indispensable, commitment to the emancipation of things F – women, femininity,
female or feminine genders, mothers, daughters … the list is long. But patterns are
discernible. Feminisms that accentuate power hierarchies differ from those that see
cultural values as the key; and feminisms that discern inequality rather than
domination speak very differently about injustice and emancipation from each other
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and from feminisms that attend to maldistribution. Each of these emphases comes in
various radical and mild forms. Feminisms that see men, male domination or
masculinist values as the problem differ from those that see everyone’s gender as the
problem. Feminisms that emphasize sex and sexuality as the problem read different
traditions and identify different realities than those emphasizing reproduction and the
family. Finally, feminsms that can take on board that there are other problems in the
world than m/f, gender, or their variants -- that are just as committed to working on
race or colonialism or global warming – are very different from those whose basic
thought rule is that all “intersecting” power or cultural bad-things must ultimately be
understood as part of the problem and of the solution proposed by feminism. To
make it even more complicated, American feminists often carry all these ideas in their
consciousness as ambivalences and contradictions that they see no need to resolve
into logical purity. And finally, feminist internal critique flourishes – in some zones
more than in others – and we value it so highly that we give special attention in this
Introduction to its forms, methods, and special capacities.
In the rest of this section we name and describe some of those contestant
theories. We leave out many important forms of contemporary feminism that work
in the media of culture: fashion, internet and social media, art, literary
criticism;religion, food politics, wellness and healing, pedagogy … the list could go
on and on. We mention here only those that have a noticeable will to power in a
governmental form and therefore can be expected to show up as new forms of
governance feminism. These include liberal feminism; dominance feminism in its two
forms, cultural feminism and power feminism; critical-race, intersectionality and
postcolonial
feminism;
gender-transitivity
feminism;
and
Marxist/socialist/materialist/labor feminism. Of these, the three that have made it
deepest into governance today are liberal feminism and dominance feminism in its
two forms, cultural and power feminisms. We follow our thumbnail synopsis of
them, therefore, with a section on the alliances they have formed with each other as
they seek to meet the conditions required for admittance to the power table.
What is Human Trafficking under International Law?
Taken from: Hila Shamir, A Labor Paradigm for Human Trafficking, 60 UCLA LAW
REVIEW 76, 84-91 (2012) [footnotes omitted]).
Human trafficking has garnered significant national and international attention in the
last decade. Yet the legal interest in trafficking is by no means a new trend. In 1904,
an international treaty on trafficking was adopted, followed by conventions signed in
1910, 1921, 1933, and 1950. This first generation of anti- trafficking conventions
reflected an understanding of trafficking that differs from the term’s contemporary
application. Albeit refraining from an explicit definition of human trafficking, these
instruments sought to address what was known at the time as the “white slave trade”
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the movement of women and girls across borders for the purpose of prostitution. The
second, contemporary wave of anti-trafficking instruments began in the 1990s,
culminating in the introduction of the Trafficking Protocol under the aegis of the
UNODC in 2000. The protocol adopted a comprehensive and broad definition of
trafficking, covering the experiences of both men and women in forced labor,
servitude, slavery or slavery-like practices, and organ removal, within or beyond the
borders of their countries of origin.
Under article 3 of the protocol, trafficking comprises three components: (1) a
particular action—“the recruitment, transportation, transfer, harbouring or receipt of
persons”; (2) certain means for carrying out the action—“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”; and (3) the end
purpose of exploitation. The protocol defines exploitation sweepingly to 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.” This broad definition is considered one of the
protocol’s most significant achievements in that it is gender neutral and extends
beyond sex trafficking to include various types of labor market exploitation, even
when within the borders of the victim’s own country.
Although the protocol’s trafficking definition attempts to clarify the forms trafficking
can take, there is still some ambiguity regarding the purpose and means components
of the definition. To begin with, the term “exploitation” is not defined in the protocol,
creating uncertainty as to the conditions under which exploitation amounts to
trafficking. Likewise, the elements listed under the means component are not defined,
raising the question of the level of coercion and abuse of power required to satisfy this
factor of the definition. It is quite clear, of course, that not all detrimental employment
practices should be identified as trafficking, and that a certain “seriousness” threshold,
accepted by the majority of activists and scholars, must be met for a practice to be
considered trafficking. Yet the precise contours of this threshold are unclear, and so
uncertainty remains as to what exactly constitutes trafficking.
Despite this definitional vagueness, the national and international experience with
applying the international definition has given content to the means element of the
definition. For example, it is now quite clear that physical coercion is not required for
a practice to constitute trafficking and that relatively subtler forms of intimidation
suffice. Indeed, the practices of withholding wages or identification papers,
continually threatening to expose a worker’s undocumented status to authorities, and
using indebted labor (bonded labor or indentured labor) are all understood to satisfy
the means element. Moreover, abduction or deception regarding the type and nature of
work (for example, a false promise that upon arrival the woman will work as a
waitress when actually she is forced into prostitution) are not the only behaviors that
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may lead to human trafficking. In fact, many migrant workers who were trafficked
appear to have voluntarily embarked on their journeys, seeking paid employment in a
line of work they had agreed to join in advance. Trafficking is often recognized in
circumstances of exploitation and manipulation that relate not only to the type of
work one is made to engage in but to the working conditions in an agreed upon type
of work. This includes situations in which a worker agrees to do a certain job, yet
does not consent to some of the working conditions, such as restrictions on freedom
of movement, long working hours, excessive wage deductions, delayed payment, and
low wages. Human trafficking emerges, therefore, as a combination of labor rights
violations, where each one alone might not amount to trafficking.
There is a great diversity of human trafficking contexts. Indeed, various labor sectors,
such as construction, agriculture, domestic work, and sex work, have been identified
in the last decade as tending to include trafficked labor. Trafficking can be found in
private homes in the United Kingdom in the abuse of Filipina domestic workers
employed through special guest worker visas. It includes the situations of workers in
traditional debt bondage systems in South Asia, in which repayment of the debts
incurred by previous generations is part of the workers’ terms of employment.
Children forced to beg in the streets of Senegal and the age-old practice of enslaving
men, women, and children in Mauritania are also manifestations of human trafficking.
Other trafficked persons are the male Thai workers on pineapple farms in the state of
Washington, who are forced to live in inhumane conditions and are effectively
imprisoned, and South Asian migrant construction workers in Bahrain, whose wages
are often withheld and passports confiscated and who are exposed to unsafe housing
and physical abuse. Trafficking can be found in the French sex industry, in which
Eastern European women are held in debt bondage, as well as on Thai fishing boats,
where Cambodian workers are subjected to violence, intimidation, imprisonment, and
precarious working conditions. Yet despite this breadth of contexts and the
multifaceted manifestations of trafficking, global attention and enforcement efforts
remain focused to a large extent on the movement of women and girls across borders
into the sex industry. Indeed, the term “trafficking” is often conflated with
prostitution.
The Trafficking Protocol’s provisions, including its definition of trafficking itself,
were the product of deliberations between states, intergovernmental organizations,
nongovernmental organizations (NGOs), and a coalition of various UN agencies that
took place in Vienna during the meetings of an ad hoc committee (under the auspices
of the UNODC) known as the Vienna Process. The most well-documented struggle in
the Vienna Process was waged among different feminist NGOs over the protocol’s
view of consent in relation to prostitution. The battle over the nature of prostitution—
whether it is work like any other work or violence against women—completely
engaged the feminist bloc and diverted NGO attention away from other critical
aspects of the protocol being negotiated— in particular, issues of human rights and
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labor rights. The NGOs’ preoccupation with prostitution distracted their lobbying
efforts away from other issues and enabled the states’ security interest in curbing
illegal migration to determine most elements of the protocol.
The protocol sets three main categories of state obligations, commonly referred to as
the “3 Ps”: prevention of trafficking, protection of victims from trafficking, and
prosecution of traffickers. The protocol’s strongest obligatory language refers to the
criminalization of trafficking, the protection of borders, and the collaboration between
state parties on victim repatriation. With regard to victim protection, the protocol uses
mostly nonbinding formulations. Its emphasis on a transnational crime framework
greatly influenced state behavior and led to the proliferation of laws criminalizing
trafficking and, possibly, to the strengthening of border control. In fact, the
criminalization of trafficking was the most common measure undertaken by states
after ratifying the protocol. This reflects the fact that states were chiefly concerned
with transnational crime and illegal migration and not human rights or workers’
rights. Accordingly, the protocol’s most impactful component ended up being the
transnational crime framework it established, which focuses on the challenge faced by
states in dealing with criminal networks that cross national borders.
Alongside this transnational crime framework, however, the protocol also promoted a
human rights framework to anti-trafficking, particularly in its implementation
dynamics. As explained above, its language allowed for a broad definition of
trafficking that encompasses many, if not most, contemporary forms of labor
exploitation. Moreover, during the Vienna Process, a coalition of NGOs and UN
agencies managed to ensure that the protocol set standards regarding the protection
and support of trafficking victims. In contrast to the strong obligatory language
relating to criminalization and border control, however, the victim protection and
assistance clauses are formulated in mostly discretionary language. Government
delegates from destination countries (countries to which persons are trafficked)
rejected proposed mandatory obligations to safeguard the human rights of
nonnationals, preferring instead to leave such protections to states’ discretion. And
indeed, the central victim protection and assistance clauses in the protocol (articles 6,
7, and 9) use discretionary, nonbinding language.
Although the protocol’s human rights victim–centered framework contains important
preventive and protective measures directed at both the pretrafficking and
posttrafficking stages, it fails to address in any meaningful way the working
conditions in the labor sectors in which people are trafficked or the structural labor
market components that enable trafficking. Indeed, in the negotiations over the
Trafficking Protocol, there was almost no representation of a labor approach to
trafficking, which is thus similarly almost completely absent in its implementation.
Feminist Positions on the Regulation of Sex Work and Sex Trafficking
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Taken from Janet Halley, Prabha Kotiswaran, Hila Shamir & Chantal Thomas, From
the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex
Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism,
29(2) HARVARD JOURNAL OF LAW & GENDER 335, 338-339 (2006) [footnotes
omitted]
There is a wide range of regulatory modes specific to sex work and sex trafficking
regimes, differently affecting the players we see as the key “stakeholders” in the
regime: the sex worker, the pimp, the john, the brothel-keeper, and the landlord.
Thus we will distinguish four “ideal types” of regulation:
A complete criminalization regime criminalizes all aspects of sex work, so that
both the sale and purchase of sex by the sex worker and the john, and all third party
involvement (of the pimp, the brothel-keeper, and the landlord) can be prosecuted and
punished criminally.
An abolitionist or partial decriminalization regime decriminalizes the
activities of sex workers alone, but criminalizes involvement of other actors in the sex
industry, including customers. As we understand it, the term “abolition” is adopted to
claim an analogy with 19th century American antislavery abolitionism.
Decriminalizing sex worker involvement in sex work is motivated, in this
formulation, by the assumption that sex workers are vulnerable victims of systematic
patriarchal exploitation, and that at minimum the state should protect them by not
criminalizing their sex work activity.
Complete, as opposed to partial, decriminalization involves the repeal of any
special criminal legislation dealing with sex work. Various activities involved in sex
work can still be prosecuted as criminal offenses under generally applicable laws.
Legalization involves complete decriminalization coupled with positive legal
provisions regulating one or more aspect of sex work businesses. The typical options
include labor law, employment law, zoning of sex businesses, compulsory medical
check-ups, licensing of sex workers, etc.
As far as we know, there is no GF project in sex trafficking/prostitution to
promote complete criminalization; but feminists have differed sharply over the other
four models. One striking agreement that emerged early in our conversations was that
Gfeminists -- though they differ intensely, often bitterly -- all imagine their favored
criminal law reform to operate by eliminating precisely and only the conduct it
outlaws. This observation holds whether the method prefered is abolition or
decriminalization: both are imagined to be directly liberatory for women. In our view
however, all of these regimes can be given enhanced/intensified enforcement, on one
hand, or weakened/partial enforcement, on the other; and different degrees of
intensity can be exhibited even at the same moment by various administrative,
judicial, and executive authorities. The complexity of the resulting bargaining
endowments is considerable. We also take it as given that it would be rare to find any
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of the “ideal typical” sex work regimes operating in its pure form. Rather we look for
complex law-in-action/law-in-the-books contingency. The result is, we think, an
exciting new research paradigm for feminists and non-feminists alike. We offer some
thoughts on that in the conclusion.
The Neo-Abolitionist Position on Sex Work in the US
Taken from: Janie Chuang, Rescuing Trafficking from Ideological Capture:
Prostitution Reform and Anti-Trafficking Law and Policy, 157 UNIVERSITY OF
PENNSYLVANIA LAW REVIEW 1655, 1664-1669 [footnotes omitted].
Representing one main faction in the prostitution-reform debates are the neoabolitionists, an unusual alliance of feminists, neoconservatives, and evangelical
Christians. The neo-abolitionists believe that prostitution is exploitative and degrading
to women, a form of violence against women that should be abolished. Leading
feminist thinkers in this camp include U.S.-based feminists identified with Catharine
MacKinnon and sometimes referred to as “radical feminists,” including Kathleen
Barry and Sheila Jeffreys. These feminists recognize no distinction between “forced”
and “voluntary” prostitution. In their view, choice and consent are not possible
because prostitution is an institution of male dominance and results from the absence
of meaningful choices. Women who (believe they) choose prostitution suffer from a
“false consciousness,” the inability to recognize their own oppression; whether or not
these “prostituted women” seemingly consent, prostitution involves a violation of a
human being. While some feminist neo-abolitionists very recently have begun to
move away from this position by conceding the possibility of voluntary prostitution,
they nonetheless support abolition on the ground that voluntary prostitutes represent
only a small minority of “prostituted women.”
Joining these feminists in their neo-abolitionist advocacy efforts are conservatives
and evangelical Christians. Unlike their feminist allies, conservatives and Christian
neo-abolitionists believe the wrong of prostitution lies in its departure from traditional
social values rooted in heterosexual, patriarchal marriage and family, with sexuality
expressed only within those confines. For conservatives and some Christian activists,
women’s place is in the home rather than in the market; hence prostitution is “an issue
of conscience and morality rather than of income possibilities and labor.” In contrast,
liberal or moderate Christians may embrace women’s participation in the market— so
long as the domestic sphere retains symbolic, if not actual, male headship—and apply
a pro-business model of bringing women out of prostitution and into the (legitimate)
service market. The varying perspectives underlying the feminist-conservativereligious coalition thus diverge over why prostitution should be abolished—to
challenge patriarchal structural inequality or to sustain it.
The neo-abolitionists are united, however, in strategically embracing the label
“abolitionist” in a conscious effort to invoke an analogy to the nineteenth-century
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campaigns to abolish the transatlantic slave trade. The “abolitionist” reference also
revives early-twentieth-century feminists’ efforts to eradicate “white slavery,” which
initially referred to the “system of licensed prostitution in existence throughout much
of Europe and parts of the United States.” Perceiving prostitution as an international
problem, these early feminists focused their attention and rhetoric on the international
“traffic” of women and girls. The “white slavery abolitionists,” of whom Josephine
Butler is most renowned, felt that “government-licensed prostitution institutionalized
the oppression and corruption of women and was not successful in stemming the
spread of venereal disease.” But “white slavery” soon became synonymous with all
prostitution, licensed and unlicensed, and what began as a feminist movement against
state regulation and licensing of prostitution ultimately became a broader “social
purity crusade to abolish prostitution” writ large. Fueled by conservative attitudes
toward women’s sexuality and concerns over a link between prostitution and
disfavored racial minorities, the movement targeted the “export” or “‘trafficking’ of
‘white’ women from Europe and North America for the purposes of prostitution” by
foreign or immigrant men in the colonial nether regions of Asia, Africa, and South
America. Though the “white slavery” phenomenon “eventually proved to be far
smaller and [less] []significant than popularly depicted,” the movement yielded a
series of international laws on “white slavery” and “trafficking” beginning in 1904
and culminating in the 1949 Convention for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution of Others (1949 Convention). As Diane
Otto explains, “[b]y constructing the ‘problem’ as one of slavery rather than
prostitution, these instruments projected the idea that European women could not
conceivably ‘consent’ to sex work, especially not with foreign clients.” Although the
rhetoric equating prostitution with trafficking and slavery made it into international
law, the 1949 Convention had little impact on the behavior of states, including on
their interactions with each other on the issue. Few states were signatories, and the
treaty lacked an effective monitoring mechanism to ensure state compliance.
Modern-day anti-prostitution feminists and their conservative and religious allies have
resurrected the abolitionist rhetoric, targeting prostitution on a global level. As
Jeffreys explains, prostitution is unequivocally damaging to all women, in that if one
woman is a prostitute, all women can be treated as prostitutes. Because “voluntary”
prostitution is almost certainly an ontological impossibility, the failure of states to
prohibit prostitution violates women’s right to sexual autonomy. […]
Neo-abolitionists embrace the power of criminal law to combat prostitution and
generally favor the toleration approach. They believe in the expressive role of
criminal law to stigmatize the buyers of sex as socially or morally tainted: in their
opinion, pimps, brothel owners and managers, clients, and any third parties who assist
women to travel and work in the sex industry should be prosecuted for rape,
trafficking, or both. Meanwhile, whether because they are victims of male patriarchy
or because they are victims of social deviance, women prostitutes should not be
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penalized themselves but instead should be the target of rescue and rehabilitation
efforts. Because prostitution is
(almost always) coerced or forced, anti-trafficking laws are a legitimate vehicle for
pursuing abolition of prostitution. The definition of trafficking should eliminate any
distinction between forced and voluntary prostitution, thus enabling its application to
prostitution writ large.