How the Modern Slavery Act fails women and girls

This is the text of Anna Fisher’s talk at the CEASE UK summit (#CEASE18) on Wednesday 14 November, 2018.

I’m here to talk about the Modern Slavery Act. There are actually several issues with it: for example, there’s too little support for victims and no mechanism for enforcing the supply chain measures. But I’m going to focus on its failure to follow international law in how it defines the offences that mainly affect women and children, and on why this matters and what kind of legislation we need to effectively address the issues.

Theresa May, the Act’s key sponsor, described it as ‘world leading.’ But there’s a disconnect between what she says and what she does. To know that, you only need to compare this quote from her first speech as Prime Minister with her party’s record on taking from the poor and giving to the rich.

Modern slavery may be a catchy phrase, but it’s not defined under international law and that’s a problem. The practices it covers fall under the UN definition of ‘human trafficking.’

So why not use the clearly defined term? … Good question.

Catharine MacKinnon, the great feminist legal scholar, suggests it’s because:

“No one defends trafficking. […]. The only issue is defining these terms so nothing anyone wants to defend is covered.”

What might the men in power want to defend? And I say ‘men’ deliberately, because let’s face it, they still control the great bastions of power. Women are a long way from having anything like an equal share. And when they do get near the top, they often have little choice but to do the men’s bidding. We urgently need to change this.

What does trafficking mean exactly? It’s the gerund of the verb ‘to traffic’, which, according to the Oxford English Dictionary, has only one meaning: ‘to deal or trade in something illegal.’

‘Human trafficking’ therefore means dealing or trading in human beings.

You can only deal or trade in things you have the power of ownership over. Therefore human trafficking is about the power of ownership over another human being, treating her as a commodity, for personal gain.

Ownership of another human being is slavery.

So how is human trafficking defined in international law? The definition is in the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,’ which is known as the Palermo Protocol for short.

The UK has ratified it, so its terms are legally binding.

Notice its focus on women and children. This is a recognition that women and children are particularly vulnerable to being trafficked, that the profits that can be made from them are colossal, and the forms of trafficking to which they’re most vulnerable are exceptionally vile.

This quote – from a US article – sums up why sex trafficking is so profitable.

“You can sell a kilo of heroin once; you can sell a 13-year-old girl 20 times a night, 365 days a year.”

This is, of course, also prostitution. And notice that in the US, they seem to understand trafficking correctly to mean trading in human beings.

So let’s just remind ourselves what prostitution is really about. Harriet, a young woman who got in touch with us, described her recent experience of prostitution. No individual pimped or trafficked her. Some people would say it was free choice prostitution. But as her only other option was to be street homeless, that is, perhaps, a moot point.

This is what she said.

“People think prostitution is about having consensual sex for money. It’s not. Those men don’t want to pay for that. They paid me and then used me however they wanted. I was beaten with objects until I bled; spat at; anally raped; gang raped; passed around at sex parties like a toy, men slipping off their condoms; I was shouted at, threatened, choked, told to look like I enjoyed it or he’d take the money back. I was scared every single second.”

Let’s keep that in mind.

Before we go back to the Palermo Protocol, consider this.

In 1949, in the aftermath of the Second World War, when people’s usual denial had been blasted apart by evidence of unimaginable horrors right in the centre of Europe, the UN General Assembly adopted a Convention that recognises prostitution as a violation of the human right to dignity. If we consider Harriet’s description, I think it’s clear why.

The UK hasn’t ratified it, but the fact it was adopted by the General Assembly means the UN recognises prostitution to be incompatible with human rights.

30 years later the UN adopted the Convention on the Elimination of Discrimination Against Women, which is known as CEDAW.

The UK has ratified this, so its provisions are legally binding. One of these is to suppress the ‘exploitation of prostitution of women.’

There’s confusion about how to interpret this. Amnesty International, which lobbies for pimping to be legal, has argued that because CEDAW doesn’t define the term ‘exploitation,’ it only applies when some form of exploitative treatment is involved.

But when a legal document doesn’t define a term, we turn to the dictionary. This gives ‘exploitation’ two meanings. The first is treating someone unfairly in order to benefit from their work. The second is to benefit from resources.

The first of these meanings would apply if the phrase was ‘exploitation of women.’ But it’s not: it’s ‘exploitation of prostitution of women,’ so the second meaning applies, the resources being the woman’s prostitution.

Therefore, the UK has a binding obligation to prohibit third parties from profiting from a woman’s prostitution, meaning that pimping and brothel keeping must be banned. This applies even when no apparent force or unfair treatment is used.

OK so back to the Palermo Protocol definition of human trafficking.

The definition has three elements: act, means and purpose – the purpose always being some form of exploitation.

And because this is a human rights violation, it’s not relevant whether the person consented.

The acts can be recruitment, transportation, transfer, harbouring or receipt of persons. Any one of these acts is sufficient to meet the definition.

The means can be any one of the threat or use of force, coercion, deception, fraud, abduction, or the abuse of power or a position of vulnerability.

If the victim is under 18, there’s no need to prove any of these means have been used.

The purpose, as mentioned, is always exploitation but four distinct types are defined.

  1. The exploitation of the prostitution of others or other forms of sexual exploitation.
  2. Forced labour or services.
  3. Slavery or practices similar to slavery and servitude.
  4. The removal of organs.

For convenience I use the term sex trafficking when the purpose is the first type of exploitation.

Notice that it’s defined using the same phrase as CEDAW, the ‘exploitation of prostitution’ which as we saw includes simply profiting from a person’s prostitution. And sex trafficking is clearly separated from forced labour, because the harms are of a different nature, and, as we saw earlier, prostitution is recognised as incompatible with human dignity, meaning it must never be officially sanctioned as a form of ordinary work.

Catharine MacKinnon sums up the essential feature of sex trafficking as ‘third-party involvement’ in a woman’s prostitution – or to cut to the chase, ‘straight up pimping.’

Sigma Huda, who was the UN Special Rapporteur on Trafficking for four years observed:

“For the most part, prostitution as actually practised in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty. Put simply, the road to prostitution and life within ‘the life’ is rarely one marked by empowerment or adequate options.”

So that’s the understanding we signed up to when we ratified the Palermo Protocol.

So now we get to the Modern Slavery Act. It separates out ‘slavery, servitude and forced labour’ as separate offences that can be prosecuted as ‘modern slavery.’

And it defines human trafficking separately like this:

“A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.”

Travel! TRAVEL? WTAF!

How was it possible for the UK government to redefine both the legally binding UN definition and the one in the dictionary? And what does ‘with a view to’ mean anyway?

The meaning of ‘exploitation’ in Section 3 includes ‘slavery, servitude and forced labour’ and ‘sexual exploitation.’ The latter is defined as something that involves specific offences in the Protection of Children Act 1978 and the Sexual Offences Act 2003, rather than the clear UN definition.

So while the Modern Slavery Act consolidates all the other offences into the one Act, it doesn’t do that for the most common form of human trafficking. The only one whose victims are almost always female and who are exploited in an institution that’s a cornerstone of the interlocking mechanisms that keep women subordinated to men.

This means that under the Act, forced labour on a farm (for example) is a crime and a form of ‘modern slavery’ but pimping women in prostitution is not. Even though, as we’ve seen, pimping nearly always meets the definition of human trafficking, and prostitution is recognised to be incompatible with human rights – unlike farming.

It’s possible to prosecute sex trafficking as ‘slavery, servitude or forced labour,’ but it’s complicated and frames prostitution as labour, which falls right into the arms of the powerful lobby who want to open up the sex trade and unleash its dizzying profits.

To illustrate some of the disastrous consequences of the failure to use the UN definition, here’s a direct quote from a case study in the CPS’s own report:

“Three defendants forced a group of Hungarian women to work as prostitutes. The women were trafficked to the UK with the promise of legitimate jobs. Their identity documents were taken and they were forced into sex work.”

The women were young and vulnerable. They were in a foreign country and spoke little or no English. The defendants received and harboured them, exploited their vulnerability and used deception, coercion and force to profit from their prostitution.

This meets the UN definition of sex trafficking. But only one of the defendants was convicted as such.

One of the others was convicted of ‘controlling prostitution for gain.’ But he only got three years for it, which suggests it’s a trivial offence, comparable to shoplifting, and not a very serious human rights violation.

By framing ‘travel’ as the central feature of human trafficking, the more serious and damaging crime – in both human and social terms – of the ongoing pimping of these young women, is reduced to a side issue. And prostitution itself is framed as ‘work’ or ‘sex work’ – as if being raped by multiple men every day is equivalent to working as a waitress.

This has profound implications for how society understands prostitution and how the criminal justice system deals with it.

So in a sleight of hand, in the Modern Slavery Act, the UK has torn up the internationally accepted and legally binding definition of sex trafficking and replaced it with a travesty.

This is the pimps’ wet dream.

It is a disaster. Not just for women in the UK, but everywhere, because we’re busy exporting it – so far only to Australia and India, but no doubt other countries won’t be far behind.

How did such an appalling piece of legislation get passed when it so spectacularly fails to meet binding  obligations? And how did it fly under the radar of most of the feminist campaigners?

Was it a conspiracy? Probably not consciously. More I think it’s a reflection of a political system dominated by men, most of whom are consciously or unconsciously motivated to maintain their privileged position. This affects who they choose as advisors and who they listen to.

Last month, Dame Laura Cox reported on her investigation into bullying and sexual harassment in Parliament. She found sexual harassment to be rampant and tolerated in a culture, cascading down from the top, of deference, subservience and silence.

This is the culture our lawmakers swim in.

There’s a striking parallel between women’s accounts of sexual harassment in Parliament and other workplaces and the system of prostitution. Men use their systemic advantages to coerce young women into allowing them to sexually use them.

For the women, it’s a double bind. If she refuses, she loses the chance to advance her career, and if she accepts, she gets blamed for it. Just like with prostitution.

The ideas inherent to prostitution are a kind of get out of jail free card for all men.

Those ideas deem women to be unworthy of economic resources without providing men with sexual access, and that underpins male dominance. And that is why the denial must be so strong. If we can deny the agony that Harriet went through in prostitution to keep a roof over her head, it’s easy peasy to deny the pain of the young researcher who faces losing her job unless she sleeps with her revolting boss.

If we open ourselves to this everyday pain, we are confronted with the awful reality of how commonplace it is for men to buy young women to do the things that Harriet describes.

One of the most successful approaches of obscuring this reality is to insist that prostitution is a job not much different from waitressing, and that a woman’s right to choose it must be respected above all else.

No matter that we don’t justify any other exploitative practice by the choices of those who have no other choice.

So as Catharine MacKinnon observed, the imperative is to divide women who ‘choose’ it from those who are trafficked; to make the trafficked group as small as possible and the ‘free choice’ one as large as possible; and to split the adults from the children.

In fact the British Government has gone one step further in the Modern Slavery Act and de facto redefined the trafficked group as ‘forced sex work’ which sounds much less awful.

What unites the women who are trafficked or forced and those who are making a so-called free choice, and the adult and the child, is the sex buyers – or punters as we call them.

Testimony from women who’ve been in brothels is that punters invariably want the youngest girl. Reviews on punter forums make it clear they don’t give a fig whether the woman was forced or not.

He only cares about himself. Because, let’s face it, if he cared about her, he wouldn’t be there.

That there’s only one pool of punters, shows what nonsense it is to divide the women and girls as if they are completely separate. They aren’t. Many, perhaps most, adult women involved in prostitution were groomed into it as children and nothing significant changed on their 18th birthday.

In 2015 all references to child prostitution were removed from the English criminal law and replaced with the term ‘child sexual exploitation’ or CSE for short.

There’s been a shameful history of blaming girls who were being pimped, and writing them off as child prostitutes – which was seen as a ‘lifestyle choice.’ To counter this, campaigners used the catch phrase ‘no such thing as a child prostitute’ and the law change was the result.

But the corollary to ‘there’s no such thing as a child prostitute’ is that there is such a thing as an adult prostitute and that’s absolutely fine because it’s her lifestyle choice. I personally have an issue with that. Because, does it not feed right into the arms of the pimps?

The word ‘prostitution’ is well understood to mean that a succession of faceless men pay for sexual access usually to a woman or child, and that all or much of the payment goes into the pocket of a third party (the pimp).

All of this information is conveyed in the word ‘prostitution.’

‘Sexual exploitation’ on the other hand is not clearly understood and it conveniently (for some) obscures the role and presence of the punters and pimps, leaving the focus on the victim. The term is now often used for any and every type of sexual abuse.

Jessica Eaton has written about the confusion between CSE and child sexual abuse (CSA) among practitioners in children’s services. Now the term ‘prostitution’ has been expunged, the difference hinges on the giving of money or gifts as payment for the child’s ‘sexual services.’ But the grooming of children for sexual abuse invariably includes some form of emotional or material bribe, so the difference is confused. And the practical effect is that child victims are often subtly blamed for accepting the payment.

I know from talking to young women who were victims of CSE that many are vehemently opposed to the term prostitution being used for what happened to them because of its connotations of blame and shame. But if we don’t clearly name it, it gets hidden and it feeds into the illusion that the prostitution of children, if it is deemed to exist at all, is a totally separate phenomenon from that of adults.

If you’ve been following, you’ll know that ‘controlling a child in relation to sexual exploitation’ meets the definition of sex trafficking. In fact no element of control is required to meet the definition – simply profiting from the child’s prostitution is sufficient.

But the maximum penalty for this is lower than both human trafficking and paying for a child’s ‘sexual services.’

This urgently needs to be addressed.

So does the fact that if the child is older than 12, the prosecution must prove the defendant didn’t reasonably believe her to be 18 or over. Which is yet another get out of jail free card for men.

This year the UK ratified a Council of Europe treaty known as the Lanzarote Convention. This requires legislation against profiting from a child’s prostitution, which our current law doesn’t adequately cover.

This provides an opportunity to review all the law in this area and bring it together using the correct definitions.

The definition of human trafficking and sexual exploitation in the Modern Slavery Act must be redrafted to match the UN definition.

This could then replace the confusing offences of child sexual exploitation, which would have the advantage it would clarify that this is a human rights abuse done to the child and it’s not the child’s fault, while reframing it as pimping which would keep the punters clearly in focus. This is what they do in the United States.

We also need to close the loopholes that allow men to say ‘I thought she was 18 your Honour. Honest.’ by making these offences against children under 18 into strict liability ones.

Before I finish, I just want to touch on prevention. Article 9 of the Palermo Protocol imposes obligations to take prevention measures – (a) to reduce the poverty and inequality that make people, especially women and children, vulnerable and easy to exploit. And (b) to reduce men’s demand for prostitution that drives the whole system.

The Government has spectacularly failed to address these obligations.

Not only has it not taken measures to address women and children’s poverty but it has made countless changes that have worsened the inequality between the sexes and driven many women into destitution.

We’re hearing stories of women turning to prostitution under the coercion of extreme poverty caused by benefit changes and sanctions, Universal Credit delays and errors, zero-hour contracts and so on. We’re even hearing of women in their 60s turning to prostitution for the first time because of the pension changes.

As for measures to reduce demand for prostitution: Not only does the Modern Slavery Act not include any measures to discourage demand, it actually feeds the damaging narrative, beloved by sex industry lobbyists, that prostitution should be renamed ‘sex work’ and considered a form of labour. This legitimises it, and hence sanctions the demand, in direct contravention of Article 9.

There are two pieces of legislation in England and Wales that can currently be used to arrest punters. One, Section 53A of the Sexual Offences Act 2003, is barely used. And policing and CPS guidance discourage the use of the other (the kerb crawling legislation).

Similarly guidance discourages enforcement of the brothel keeping laws, unless there’s evidence of ‘organised crime’ or the neighbours complain. In most parts of the country most brothels are allowed to operate in plain sight.

So the Government is abjectly failing to meet its obligations to seriously address the underlying causes of this heinous system.

Artwork by Suzzan Blac, survivor of prostitution and sex trafficking. http://www.suzzanb.com/

Because the policing of the sex trade is now mainly focused on what is considered to be ‘organised crime,’ the plight of women who have turned to prostitution out of naivety, financial desperation, or coercion from ‘boyfriends,’ is largely ignored. Most services that exist to help them are focused on ‘harm reduction’ and provide little, if any, substantive help to exit – meaning countless women are trapped in a situation of unimaginable horror.

Together, all of this suggests that the Government very clearly understands that prostitution is serving as a last line of defence against destitution for women, and it wants to institutionalise that. Just as they want to buy off British men by giving them unlimited possibilities to indulge their cruel fetishes.

Finally, here is a message from Arinze Orakwue, who is a director at the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) in Nigeria. He is absolutely clear that while men in Europe are free to buy sex, all attempts to stem the tide of victims of human trafficking from sub-Saharan Africa will fail. He calls for us to adopt and effectively implement the Nordic Model.

He is clear that our legislation, and how (or even whether) we enforce it, has profound implications for some of the most marginalised women on this planet.

Law and policy on prostitution and sex trafficking in England and Wales are a disgrace. We need to hear the suffering of women and girls and take urgent measures to bring the law into line with our binding obligations, and to hold men to account for the havoc they cause.

The time is now. There is no time to waste. Along with the outlined changes to the Modern Slavery Act and measures to address poverty and inequality, we need the Nordic Model – which makes buying sex per se a criminal offence and provides genuine routes out for the women – and we need it now!

Download

Download the PowerPoint presentation. Download PDF slides.

Further reading

Submission to the Home Affairs Committee’s inquiry into modern slavery from Nordic Model Now!

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