Nordic Model Now! welcomes the commitment that the UK Prime Minister, Theresa May, made to tackling human trafficking and modern slavery in her statement on the occasion of World Day against Trafficking in Persons 2016.
However, we believe that the Modern Slavery Act 2015 does not meet all the UK’s binding obligations under the Palermo Protocol and we call on her to address this. Moreover we are extremely concerned about the Home Affairs Select Committee’s inquiry into prostitution and its failure to understand that in practice prostitution and sex trafficking cannot be separated. We therefore call on her to address this and other inadequacies in that inquiry as part of her ongoing commitment to tackling human trafficking. As women and girls are the majority of victims of sex trafficking, failing to address the issue of sex trafficking as rigorously as labour trafficking, is a failure under the UK’s binding obligations under CEDAW.
The government’s 2015 National Referral Mechanism (NRM) statistics (which are generally recognised to under-represent the actual figures) show that similar numbers of people are trafficked in the UK for the purpose of sexual exploitation as for forced labour.
When we look at the breakdown by sex we see that similar numbers of males and females are trafficked, but that women and girls are more likely to be trafficked for sexual exploitation (sex trafficking) and domestic servitude.
The explanatory notes to the Modern Slavery Act 2015 says, “Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain.” When the form of slavery is forced labour, the person is forced to work – on a farm or in a nail boutique, for example.
When the form of slavery is the exploitation of prostitution, the victim is treated as an object that ordinary men in the community pay to sodomise or otherwise penetrate for their own sexual and narcissistic benefit. Profits are huge because millions of ordinary men in the UK are prepared to pay to do this. It is the easy and excessive profits that drives sex trafficking.
All slavery and forced labour is abhorrent. However, we believe it is important to recognise that the harms, both physical and psychological, of sex trafficking are of a different order from forced labour. Sex trafficking typically involves being forced to endure unwanted sexual contact, including penetration of the anus, vagina and mouth, multiple times a day. This is sexual assault and rape – for another person’s profit. Under English law, rape is recognised as a uniquely abhorrent and damaging offence and carries a maximum sentence of life imprisonment. Profiting from commercialised rape must therefore be recognised as a uniquely heinous crime.
Definition of human trafficking
The internationally agreed definition of human trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (known as the Palermo Protocol). It defines human trafficking as a form of slavery and a human rights abuse, as follows:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, 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, for the purpose of exploitation. 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;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
Key points to note are:
- The key element is its exploitative nature rather than the movement of the person.
- The movement of the person is not a requisite for trafficking. For example, recruitment or harbouring for the purposes and using the means specified is enough to meet the definition.
- The notion of abuse of power or a position of vulnerability implicitly recognises trafficking as an issue of structural inequality based on age, sex, race, caste, nationality and economic class, and covers situations where the person has no real alternative but to submit to the abuse involved.
- The definition acknowledges that much trafficking is for the purpose of the exploitation of prostitution and that the exploitation of prostitution and trafficking cannot be separated.
- The definition separates out the exploitation of prostitution from forced labour because the harms are of a different nature.
- The definition makes it clear that consent is not relevant.
- The age of consent for prostitution is 18.
So the Palermo Protocol definition makes the essential feature of sex trafficking third-party involvement in the exploitation of another’s prostitution – which, as Catharine MacKinnon says, is “straight-up pimping”.
Most women and girls in prostitution worldwide have a pimp. So we should not be surprised that Sigma Huda, UN Special Rapporteur on Trafficking 2004–2008, said (quoted by Catharine MacKinnon):
“Prostitution as actually practised in the world usually does satisfy the elements of trafficking.”
The UK ratified the Palermo Protocol in 2006, which means that the UK has agreed to be legally bound by its terms and to ensure our legislation is coherent with it. It places an obligation on the UK to tackle sex trafficking, the demand that fuels it, and the poverty and inequality that make people vulnerable to being trafficked.
Modern Slavery Act 2015
The Modern Slavery Act 2015 does not use the Palermo Protocol definition of human trafficking. Instead it separates out slavery (and servitude and forced labour) from trafficking, and redefines trafficking as “travel”. It defines sexual exploitation as something that involves an offence under Section 1(1)a of the Protection of Children Act 1978 or Part 1 of the Sexual Offences Act 2003.
It seems to us that to secure a conviction of sex trafficking therefore requires proving offences under two acts, which is not necessary to secure a conviction of forced labour. Moreover, it obfuscates the fact that the most common form of sex trafficking is essentially indistinguishable from the vast majority of pimping.
Moreover, the Modern Slavery Act replaces the exquisitely simple “the abuse of power or of a position of vulnerability” in the Palermo Protocol definition with a much more limited clause about securing services from children and vulnerable persons that requires a direct comparison with someone without the specific vulnerability. We believe that this obscures the structural and cultural power inequalities within society that make it possible for those who are in more favourable positions within those structural and cultural hierarchies (for example, adult males) to take advantage of those in less favourable positions (for example, poor young females and poor young females of colour), thus making it harder to get convictions and for the government to recognise the true extent and nature of the problem.
We applaud Part 6 of the Act, which requires bigger businesses to provide a slavery and human trafficking audit of their business and supply chains. However, we deplore the lack of any mention that men’s demand for prostitution acts as a driver of sex trafficking and of the role that entrenched poverty and inequality has in making girls and young women, in particular, vulnerable to it, nor of our binding obligation to tackles these underlying causes. We call on Theresa May to address these oversights.
Home Affairs Select Committee’s Inquiry into Prostitution
We have set out our serious concerns about the Home Affairs Select Committee’s interim report into its inquiry into prostitution separately. We believe that the interim report shows evidence of such serious bias and sloppy research that it should be withdrawn.
As prostitution cannot practically be separated from sex trafficking, we urge the Prime Minister to bring any inquiry into prostitution under the umbrella of the task force on modern slavery and that it centres the UK’s binding obligations under the Palermo Protocol and CEDAW.
Prostitution and sex trafficking are inextricably linked and so should not be considered separately. Similarly prostitution and sex trafficking should not be considered separately from other forms of male violence against women and children, or without considering their impact on inequality between the sexes.
We encourage everyone in the UK who is concerned about this issue to contact their MP, the Prime Minister and the Home Secretary to express their concern about the inadequacies in the Modern Slavery Act regarding sex trafficking, and the inadequacies in the Home Affairs Select Committee’s interim report. Please feel free to copy and paste from this page or to download the entire document and send that.