After much gossip, hand-ringing, internecine scuffles and turf kick-up, the White House has announced that Luis de Baca will be appointed to head up the State Department’s Trafficking In Persons (TIP) Office.  The TIP Office coordinates policy out of the State Department on the Traffic in Persons and, perhaps most importantly, must issue an annual Report in which it assesses the efforts that foreign governments are making to combat severe forms of trafficking, and in which countries are ranked in tiers based upon the TIP Office’s assessment of their commitment to and success in combating human trafficking.   The Bush Administration had used the TIP Office and the annual TIP Report to advance a highly contested policy of forcing foreign governments and NGOs  to adopt laws criminalizing sex work on the flawed hypothesis that prostitution “causes” sex trafficking.  See previous post discussing this problem.

de Baca’s appointment is very good news.  Mr. de Baca, a lawyer who has worked as legislative counsel for the House Judiciary Committee and in the Justice Department as chief counsel of Civil Rights Division’s Human Trafficking Prosecution Unit is a smart, experienced and effective choice for the job.   He has worked for years on this issue and is very-well respected in criminal justice and advocates’ circles alike for his approach to this difficult problem.  He was one of the lead DOJ attorneys who successfully prosecuted Kil Soo Lee, the former owner of an American Samoa garment factory, who was sentenced to 40 years in prison for his role in illegally confining and using as forced labor over 200 Vietnamese and Chinese garment workers.

de Baca, as evidenced by this presentation available on the web, takes a complex and nuanced view of the injustice of trafficking.  He is not liable to over-determine the work of the TIP office with trafficking that is sexual in nature, recognizing that the trafficking of persons into sex work is a part, albeit an important part, but a part of the vast range of work-sectors into which people are illegally trafficked – including agricultural, domestic (meaning work in homes as nannies, maids and servants), factory, restaurant and other work that is exploitive but not necessarily sexual in nature.  So too, de Baca has acknowledged a need for law enforcement officials to work closely with NGOs to create support and exit for trafficked persons that does not over-rely on raids as the principal means by which people who have been trafficked can be “rescued” by law enforcement officials, or worse, get swept up in raids that result in their datainment and deportation along with other undocumented people.  We’ve blogged about this previously.

Perhaps most importantly, de Baca appreciates the importance of a harm reduction approach to the problem of trafficking that prioritizes the needs, risks, complexities of the trafficked person rather than that of law enforcement or anti-sex evangelists.

- Katherine Franke

On Friday, the Gender and Sexuality Law Program held its inaugural symposium, this year honoring  the work of Professor Martha Nussbaum.  Nine scholars submitted papers providing insights on  Professor Nussbaum’s scholarship, points of departure for her theories, and novel applications of her  theories to many different contexts.  Dean Schizer introduced Professor Nussbaum before her keynote  speech at the end of the day, and Professor Nussbaum gave a summary of her scholarship and ideas, and thoughtfully responded to each paper.

The diversity and creativity of scholarship and thought that came out of the symposium was really remarkable.  We covered everything from Nussbaum’s capabilities approach as applied to women’s movements (Amrita Basu), the possibility of a collective capabilities approach to women’s empowerment in Africa (Aili Tripp), and the relationship of the state to the capabilities approach (Tracy Higgins), to the application of Nussbaum’s work to the same-sex marriage debate, the LGBT community, and its relationship with science (Nancy Levit), and whether the state should be in the business of regulating marriage in the first place (Janet Jakobsen).  Nussbaum’s capabilities approach was applied to global economic systems (Saskia Sassen) and stretched from its universality to its flexibility in encouraging people of opposite viewpoints to sympathize with one another (Carlos Ball).  We learned of a historian’s perspective on Nussbaum’s reliance on the history of relationships to support her arguments about same-sex marriage (Alice Kessler-Harris), and tough questions were asked of how far the law should go in the forcing of certain types of relationships, and what emotions, aside from disgust and shame – and anger for that matter – might be appropriate for opponents of same-sex marriage (Mary Anne Case).  I fully admit, that’s not nearly the half of it; you can read all the papers in the Columbia Journal of Gender and Law’s forthcoming publication of them.

On a personal note: law school does not all too often provide the opportunity to stop learning about the law per se and actually examine its parameters and characteristics.  That the emotions of shame and disgust might problematically inform how the law is shaped, or the notion that all human beings are entitled to a range of fundamental capabilities, are concepts that add a huge depth to legal study.  This conference was a great moment to pause and consider, and I hope everyone at the end of the day felt similarly enriched.

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

I blogged recently about the concerns I had when I read the statements Hilary Clinton made in her Senate confirmation testimony related to the issue of sex trafficking.  I heard little sign in her testimony of a desire to change policy from the crusade undertaken by the Bush Administration that overdetermined the problem of human trafficking in sexual terms (thereby ignoring the enormous problem of other forms of forced labor), driven largely by an evangelistic judgment about sex work more generally.

But the State Department through the policy set by its Secretary is not where we can find the front line of the federal government’s efforts to combat human trafficking.  That job falls to the Department of “Homeland” Security (I hate that term), particularly to ICE (Immigration & Customs Enforcement) which conducts raids of brothels and other workplaces where it suspects undocumented and/or trafficked persons may be working.   Indeed, ICE raids have been the U.S. government’s principal means of identifying victims of trafficking according to a recent GAO report.

So, was Janet Napolitano asked about her views on human trafficking in general, or sex trafficking in particular, when she came before the Senate Committee on Homeland Security and Governmental Affairs for confirmation?  Nope.

Did she volunteer anything about this issue, as did Clinton in her confirmation hearings?  Nope.

Surely Secretary Napolitano has views on this issue, but we don’t know them yet.  When you go to the “Homeland” Security website the 2008-2013 Strategic Plan, developed by the old Secretary Chertoff but still on the website, does not even mention trafficking.  Yet if you go to ICE’s “What We’ve Done Lately On Human Trafficking and Smuggling” Webpage they highlight all manner of good things they’ve been up to, but few of them are trafficking-related.  Lots of smuggling work (and trafficking is legally and socially a different thing from smuggling), and a bunch of arrests of “illegal aliens.” The two most recent trafficking cases involve raids of brothels in Seattle and  South Florida, both last November.

It’s too early to know what kind of policy will be set by Secretary Napolitano with respect to domestic enforcement of the Trafficking Victims Protection Act.  But she and her policy team are without question important players in setting a new agenda when it comes to the problem of relying too heavily on raids to deal with the protection of trafficked persons and the prosecution of traffickers.  (More about this below.)  For the moment however, we have some reason to be concerned.

Timothy Keefer remains as Napolitano’s Chief Counsel for Civil Rights and Civil Liberties at ICE.  Keefer, a graduate of William and Mary Law School worked for Covington and Burling after clerking a couple years.  In late 2000, after three months at the firm, he was sent to Florida to work on George W. Bush’s legal team seeking to secure him a win in the contested presidential election.  He was rewarded for that service by the new administration with an appointment as special assistant to the U.S. Department of Labor’s Acting Solicitor Eugene Scalia (Antonin’s son).  He could be a good guy, but …  So far, none of Napolitano’s senior appointments have much of a track record in dealing with gender issues.

(Keefer’s ongoing employment at ICE may signal a much larger problem for the Obama Administration – the presence of Bush loyalists deep into every crevice of the federal government, as both political and career employees.  It’s not obvious that the new administration has the will or the capacity to clear out the thousands of neo-cons who were given government jobs for ideological reasons.  The scandal of politically motivated appointments at the Justice Department is just the tip of the iceberg.)

As for ICE’s overreliace on raids to protect the victims of trafficking, the Sex Workers Project in New York has just issued a report, Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons, in which it documents how in the name of “rescue” these raids often result in the arrest, detention and deportation of trafficked persons because they are undertaken by ICE, together with local law enforcement officers, who are poorly trained or ill-equipped in identifying victims of trafficking, and who are, after all, focused on arresting criminals, people who pose potential terror threats, are dealing drugs and/or are sans papiers, that is, found without necessary paperwork demonstrating legal presence in the U.S.

I urge all who are concerned about this issue to read the Sex Workers Project report and to monitor the new team and policy being developed at Janet Napolitano’s “Homeland” Security and ICE.

- Katherine Franke

Columbia’s Sexuality and Gender Law Clinic recently filed a brief in the European Court of Human Rights involving the right of victims of sex trafficking to a remedy under various European and International Laws.  My recent article in the European Lawyer magazine, which takes a somewhat different view from Professor Franke’s post, elaborates the trafficking/slavery linkage.  Here’s an excerpt (you can link to the full article here ):

The UK officially abolished the trans-Atlantic slave trade more than 250 years ago, but it turns out that the practice is far from dead.
A case recently filed in the European Court of Human Rights (ECtHR), M. v the United Kingdom, shows just how vigorous and heinous the slave trade continues to be. But the trade’s character has changed, with £5 billion generated each year largely from traffickers’ control of women and children, making trafficking in persons the second largest criminal activity in the world.
With clearer attention to the facts and more developed identification systems, the international community has begun to see these women and children for what they are – victims of severe human rights abuses.  M v the United Kingdom thus offers an important opportunity, during a crucial moment, for the ECtHR to clarify the obligations of Council of Europe member states to trafficking victims. A ruling in M’s favour would reinforce that sex trafficking is a modern form of slavery and should be treated with as much seriousness as we treat the trans-Atlantic slave trade of the past. It would also clarify and underscore states’ responsibilities to victims in their territories who have suffered human rights abuses, including the duty not to act in ways that expose victims to further harm.

In her confirmation hearing last week Hilary Clinton was asked by Barbara Boxer to talk about how she plans to use the office of the Secretary of State to better the “status of women in the world.” She was particularly interested in the problems of violence against women and sex trafficking, making explicit reference to the series of op-eds that Nicholas Kristof has published on these issues.

Not surprisingly, secretary-designate Clinton offered a strong response with respect to her agenda on women’s rights. She told the Senate panel:

I have also read closely Nick Kristof’s articles over the last many months, but in particular the last weeks, on the young women that he has both rescued from prostitution and met who have been enslaved and abused, tortured in every way: physically, emotionally, morally.

And I take very seriously the function of the State Department to lead our government through the Office on Human Trafficking to do all that we can to end this modern form of slavery. We have sex slavery, we have wage slavery, and it is primarily a slavery of girls and women.

So we’re going to have a very active women’s office, a very active office on trafficking. We’re going to be speaking out consistently and strongly against discrimination and oppression of women and slavery in particular, because I think that is in keeping not only with American values, as we all recognize, but American national security interests as well.

While these comments from now-Secretary of State Clinton gained applause from some precincts of the women’s and human rights community, they made some of us sit up in alarm. Not only was Mrs. Clinton misstating frequently repeated “facts” about sex trafficking, her answer to Senator Boxer signaled the continuation of the misguided Bush policies on this issue – policies heavily influenced by a particular camp in the women’s rights community that sees sex in general, and prostitution in particular, as the root of all evil for women. This ideology – one that has been shown all over the world to more often harm rather than help women in precarious situations – threatens to become the official policy of the Obama Administration if we aren’t careful.

No one denies that the traffic in persons, women and girls, but boys and men as well, for the purpose of sex or sexual enslavement is a terrible thing and should be stopped. Yet the Bush administration made the combatting of sex trafficking their premier human rights objective more as a moral crusade than as a way to address the real life oppression of the people involved. As Ronald Weitzer writes in The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade

Moral crusades advance claims about both the gravity and incidence of a particular problem. They typically rely on horror stories and “atrocity tales” about victims in which the most shocking exemplars of victimization are described and typified. Casting the problem in highly dramatic terms by recounting the plight of highly traumatized victims is intended to alarm the public and policy makers and justify draconian solutions. At the same time, inflated claims are made about the magnitude of the problem. A key feature of many moral crusades is that the imputed scale of a problem (e.g., the number of victims) far exceeds what is warranted by the available evidence. Moreover, crusade leaders consider the problem unambiguous: they are not inclined to acknowledge gray areas and are adamant that a particular evil exists precisely as they depict it.

All these things were present in the old Administration’s policies. In a letter to the director of the State Department’s Office to Monitor and Combat Trafficking in Persons, a group of researchers and policy advocates who were experts in the human rights of trafficked persons systematically showed how the State Department had misstated the prevalence of persons being trafficked for sex, cherry-picked data that substantiated their crusade linking sex trafficking to prostitution, and was otherwise “potentially damaging to on-going efforts globally to prevent trafficking and protect the rights of trafficked persons.” Other human rights organizations, such as Global Rights, have testified before Congress on the dangers and distortions of the Bush Administration’s trafficking crusade.

Unfortunately, nothing in Hilary Clinton’s testimony reassures us that the State Department under her leadership will improve upon the policies of the prior administration. What’s more, the voices from within the advocacy world who favored and pushed hard for the crusade linking sex trafficking to prostitution, such as Equality Now and their leadership Jessica Newirth and Catharine MacKinnon, have recently gained prominent appointments in the United Nations. In November MacKinnon was appointed as Special Gender Adviser to the Prosecutor of the International Criminal Court in the Hague, and Jessica Newirth, the Director of Equality Now, has been appointed to head the New York office for the UN High Commissioner for Human Rights.

Senators Barbara Boxer and Carolyn Maloney have introduced legislation called The International Women’s Freedom Act of 2009 that would create a U.S. Commission on International Women’s Rights. The commission, modeled on the U.S. Commission on International Religious Freedom, would report to Congress and the President on the status of women worldwide. The bill would also establish an Office on International Women’s Rights headed by an Ambassador at large for International Women’s Rights and it would direct the President to conduct an annual review of the status of women’s rights in each foreign country, and subsequently designate ‘Countries of Particular Concern’ that have severe human rights violations.

The UN’s “women’s rights” and anti-trafficking work has been captured by the anti-prostitution crusaders, but Secretary Clinton has not yet filled out her staff on this issue. Let’s hope that she and the Obama Administration more generally are better able to appreciate the complexity of this problem than did their predecessor, and that their policies flow less from politicized research and more from reliable data that situates sex trafficking in a larger context of forced labor and migration. The advice of the authors of the letter to the Director of the Bush Office to Monitor and Combat Trafficking in Persons remains valid: “the single-issue focus on prostitution, rather than on the exploitation that operates in all of the different sectors in which trafficking occurs (e.g., in agricultural work, domestic work, factory work and prostitution), seems to be moving the U.S. government away from the crime of trafficking and from responding to the needs of all trafficked persons.”