Who’s Trafficked?

Melissa Ditmore

Congress is poised to re-authorize the federal law against human trafficking with new provisions that will both increase penalties for sex workers and effectively decrease our ability to aid genuine victims of trafficking.

In my first contribution to Rewire, I tried to disentangle the subjects of trafficking and sex work.
Understanding this distinction is crucial, because Congress is poised
to re-authorize the federal law against human trafficking with new
provisions that will both increase penalties for sex workers and
effectively decrease our ability to aid genuine victims of trafficking.

The Department of Justice, which is responsible
for enforcing the bill’s provisions, is opposing these misguided
changes — and so should anyone else who is concerned about human
trafficking in its many forms.

is already sadly evident that the U.S. government’s anti-trafficking
program has devolved into a global campaign against sex work and is not
working to halt trafficking. In a 2006 report critical of the program, the Government Accountability Office found that
"the U.S. government has not developed a coordinated strategy to combat
trafficking in persons abroad…or evaluated its programs to determine
whether projects are achieving the desired outcomes."

Now comes a plan to further ratify this failure. The Trafficking Victims’ Protection Reauthorization Act addresses the crime of trafficking in persons, which is recognized in U.S law as cases that involve force, fraud or coercion, which includes threats, intimidation, and psychological abuse.
The law offers protection to workers who are most vulnerable to abuse —
immigrants, people in forced labor, and minors who exchange sex for
cash or goods. The bill currently before Congress, however, would
expand the definition of "sex trafficking" to include cases in which no
elements of force, fraud or coercion were involved.

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Specifically, the House version of the TVPRA would expand U.S. laws against prostitution by re-defining most prostitution-related activities, regardless of consent, as trafficking. Human
trafficking is a complex issue, but there is widespread agreement about
its key distinguishing features, namely the use of force, fraud or coercion. HR 3887 throws out these cornerstones and threatens to re-define all prostitution, arguably even all sex work, as trafficking. And it would require the involvement of federal law enforcement through a broad new provision that covers
actions "affecting" interstate commerce (rather than actual activities
that involve the crossing of state lines, the standard trigger for
bringing in the feds). Therefore, most prostitution-related activities defined as sex trafficking would fall under federal law even if no interstate commerce was involved.

immediate consequences of this definitional sleight-of-hand are bad
enough: the use of federal resources to prosecute state-level offenses
involving consenting adults who may not see themselves as victims of a
crime. But turning the DOJ into the prostitution police is not the
worst of it. By shifting the focus of the law from genuine cases of
trafficking to prostitution as a whole, the bill threatens to divert
resources from those most in need: the real victims of trafficking.

Department of Justice has written to members of Congress to express its
opposition to the proposed reauthorization bills, saying that the
changes would remove their focus from genuinely abusive situations that
involve force, fraud or coercion and place it instead on the over 100,000 prostitution-related arrests annually.

The DOJ’s resistance to the changes stem also from the fact that addressing each prostitution case as a potential trafficking case would significantly increase their caseload
while reducing the likelihood of convictions. Trafficking cases require
an identifiable victim. Contrary to popular mythology, most sex workers
are not in coercive situations. If they do not choose to self-identify
as victims or otherwise participate in the prosecution of their
associates, the case may collapse.

dangers of laws that are both overly general and backed by heavy
penalties should be familiar to any student of U.S. history. The 1910
White Slave Traffic Act, better known as the Mann Act, criminalized
interstate travel for "immoral acts," which at that time referred
fairly generally to (female) promiscuity and interracial sexual
activity. In practice, the application of the law was often
distinguished by racism or political bias. High-profile victims of
racist prosecutions under the Mann Act included Chuck Berry and Jack Johnson, while Charlie Chaplin and Frank Lloyd Wright, suspected of Communist sympathies, were subject to politically motivated Mann Act prosecutions.

all else, however, application of the Mann Act was sexist. The law
purported to protect women, yet the overwhelming majority of those
charged under the Act were women. Women were tried and jailed for
crossing state lines to visit men, often men that they would later
marry. It seems inconceivable to us today that simply visiting a
romantic partner in another state could be grounds for conspiracy
charges, yet this is exactly what happened.

1986, the scope of the Mann Act was amended to cover only acts that
were crimes in the location where they were committed. When the Act was
conceived in 1909, prostitution was not a crime in any state of the
Union. But within twenty years, every state had passed
laws criminalizing prostitution. Today, almost a hundred years from its
conception, the Mann Act remains on the books as a law enforcement tool
targeting prostitution. This little-known law got its
moment in the spotlight recently when four people involved with the
Emperors Club VIP, whose best-known client was New York governor Eliot Spitzer, were charged with Mann Act offenses.

as the Mann Act, ostensibly created to protect women, was used largely
to prosecute them, the targets of the re-authorized TVPRA will not be
international traffickers. They are more likely to be prostitutes
(including, once again, many women), charged with trafficking offenses
that exist only on paper.

no "victims" or "traffickers" can be found, some will have to be
created. The threat of additional charges or the promise of immunity
can be used to persuade some of those charged to testify against their
colleagues. During
the initial period of the TVPRA, despite lavish spending on raids and on
services for victims of trafficking, there was an embarrassing lack of
migrants coming forward to take advantage of the protection offered by
the law and to cooperate in the prosecution of their traffickers. The
expanded definition of trafficking provided by HR 3887
should make up the shortfall in trafficking victims, but only by
spuriously applying trafficking charges to cases that do not involve
force, fraud or coercion.

There is something deeply
wrong with our government when the answer to the desperate problem of
human trafficking is to change the definition of the crime so we can
claim we’re doing something about it. It’s a tactic that is misguided
at best and at worst, downright cynical.

prostitution and trafficking simultaneously denies the agency of sex
workers and trivializes the experiences of people in genuinely abusive
situations. Enshrining this wrongheaded equation in law delivers a
double whammy. On the one hand, it undercuts the ability of government
agencies to provide services to those who desperately need them. On the
other it opens the door to the same kind of abuses seen with the Mann
Act, creating "victims" where none exist and bringing the full force of
anti-trafficking law to bear on a group that is already stigmatized and
marginalized by society. By any standards, this would be a gross
miscarriage of justice.

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State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

News Law and Policy

Court Blocks North Carolina’s ‘Discriminatory’ Voter ID Law

Imani Gandy

“[T]he new provisions target African Americans with almost surgical precision," Circuit Judge Diana Gribbon Motz wrote for the court, describing the North Carolina GOP's voter ID law.

A unanimous panel of the Fourth Circuit Court of Appeals struck down North Carolina’s elections law, holding that the Republican-held legislature had enacted the law with discriminatory intent to burden Black voters and that it therefore violated the Voting Rights Act of 1965.

The ruling marks the latest defeat of voter ID laws passed by GOP-majority legislatures across the country.

“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Circuit Judge Diana Gribbon Motz wrote for the court.

HB 589 required in-person voters to show certain types of photo ID beginning in 2016, and either curtailed or reduced registration and voting access tools that Black voters disproportionately used, including an early voting period. Black voters also disproportionately lack photo IDs.

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Republicans claimed that the law was intended to protect against voter fraud, which has proven exceedingly rare in Republican-led investigations. But voting rights advocates argue that the law was intended to disenfranchise Black and Latino voters.

The ruling marks a dramatic reversal of fortune for the U.S. Justice Department, the North Carolina chapter of the NAACP, and the League of Women Voters, which had asked the Fourth Circuit to review a lower court ruling against them.

U.S. District Court Judge Thomas Schroeder in April ruled that plaintiffs had failed to demonstrate that the law hindered Black voters’ ability to exercise political power.

The Fourth Circuit disagreed.

“In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees,” Motz wrote. “This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

The Fourth Circuit noted that the Republican-dominated legislature passed the law in 2013, immediately following the U.S. Supreme Court’s ruling in Shelby v. Holder, which struck a key provision in Section 4 of the Voting Rights Act.

Section 4 is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia before making any changes to election laws.

The day after the Supreme Court issued its ruling in Shelby, the Republican chairman of the Senate Rules Committee announced the North Carolina legislature’s intention to enact an “omnibus” election law, the appeals court noted. Before enacting the law, however, the Republican-dominated legislature requested data on the use, by race, of a number of voting practices.

After receipt of the race data, the North Carolina General Assembly enacted legislation that restricted voting and registration, all of which disproportionately burdened Black voters.

“In response to claims that intentional racial discrimination animated its actions, the State offered only meager justifications,” Motz continued. “[T]he new provisions target African Americans with almost surgical precision.”

The ruling comes a day after the Rev. Dr. William J. Barber II, president of the North Carolina chapter of the NAACP and one of the primary organizers of Moral Mondays, gave a rousing speech at the Democratic National Convention that brought convention goers to their feet.

During a protest on the first day of the trial, Barber told a crowd of about 3,500 people, “this is our Selma.”