This is the text of our submission (sent in October 2018) to the inquiry into modern slavery conducted by the Home Affairs Select Committee in the UK Parliament. Our submission is focused on our grave concerns about how the Modern Slavery Act 2015 frames human trafficking for the purposes of sexual exploitation and how its failure to deal effectively with the forms of human trafficking that particularly affect women and children can be viewed as sex discrimination and a failure to protect children.
Nordic Model Now! a grassroots women’s group campaigning for the Nordic Model, the equality and human rights-based approach to prostitution. The group includes survivors of prostitution and child sexual exploitation. All members are unpaid volunteers, we run on a shoestring budget and have no funding other than donations from supporters. See http://nordicmodelnow.org/ for more information.
The Modern Slavery Act fails women and children
We have grave concerns about how the Modern Slavery Act 2015 (the Act) frames human trafficking for the purposes of sexual exploitation. For convenience we refer to this form of human trafficking as sex trafficking.
It is generally recognised that sex trafficking is one of the commonest forms of human trafficking/modern slavery in Europe and that sex trafficking victims are almost entirely female, and often children. That the Act fails to handle it effectively can therefore be viewed as sex discrimination and a failure to protect children.
The Act sends out a confusing and contradictory message, and violates the requirement of the Council of Europe Convention on Action against Trafficking (CoE Trafficking Convention) that all actions or initiatives against trafficking must be “non-discriminatory, take gender equality into account as well as a child-rights approach.”
One of the stated aims of the Act was to consolidate existing offences into one Act. Although it has achieved this for other forms of human trafficking, it has not done this for sex trafficking – suggesting that sex trafficking is a lesser crime.
The sexual exploitation of women and children are inextricably linked. The UK’s recent ratification of the Lanzarote Convention provides an opportunity to review and update the law relating to sexual exploitation and to bring it into line with international obligations. We set out below specific concerns about the current laws around sex trafficking, child sexual exploitation, and other forms of profiteering from women and children’s prostitution, how they currently fail our obligations under binding human rights treaties, and how we would like to see them updated.
The UN definition of human trafficking
In the phrase “trafficking in persons,” trafficking is the gerund of the verb “to traffic,” which has one and only one meaning: “to deal or trade in something illegal.” It should not be confused with the noun “traffic” which has meanings related to vehicles and transportation.
You can only deal or trade in things that 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, whether that’s financial or material gain, or sadistic pleasure. Ownership of another human being is slavery.
The UN definition of human trafficking is in Article 3 of the Palermo Trafficking Protocol. This definition is also used in the CoE Trafficking Convention. It has four subparagraphs (a) to (d). The following infographic sums up the key elements.
Subparagraph (a) defines three elements: the ‘act’ (which can be one or more of recruitment, transportation, transfer, harbouring or receipt of persons), the ‘means’ (which can be one or more of threat or use of force, or other forms of coercion, etc. and is not necessary if the victim is under 18), and the ‘purpose’ (exploitation).
Transportation of the victim is not required to meet the definition – any one of the acts (for example, recruitment) is sufficient – and, like other human rights abuses, the consent of the victim is irrelevant.
The definition lists four types of exploitation. The first is the “exploitation of the prostitution of others or other forms of sexual exploitation.” This is clearly separated from the other types, including forced labour, which implies that prostitution cannot be considered a form of labour and that the harms are of a different nature.
The Act’s definition of human trafficking
Instead of using the UN definition, the Act separates out “slavery, servitude and forced labour” in Section 1 as separate offences from trafficking, making it possible to prosecute them as “modern slavery.” The Act then redefines “human trafficking” in Section 2 as:
“A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.” [Emphasis added]
This hollows out the sophisticated UN definition and centres trafficking on the movement of the victim, rather their continued exploitation.
The meaning of “exploitation” in Section 2 includes “slavery, servitude or forced labour” and “sexual exploitation.” The latter is defined 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, rather than the clear and unambiguous “exploitation of the prostitution of others or other forms of sexual exploitation” in the UN definition.
While it may be possible to prosecute sex trafficking under Section 1 of the Act by reference to Subsection 4 (b) or Subsection 5, this is unnecessarily complicated, obscures the fact that the exploitation of a person’s prostitution is one of the most common forms of exploitation, and contravenes the UN definition which is based on the understanding that prostitution and other forms of sexual exploitation cannot be considered labour, forced or otherwise.
Under the Act the exploitation of a person’s prostitution is not a crime – only organising their travel “with a view” to exploiting them is. However, forced labour and servitude are crimes in their own right.
Therefore the Act sends out the message that exploiting someone’s forced labour on a farm (for example) is a crime but exploiting a woman’s prostitution is not. This is particularly egregious given that unlike farming, prostitution is recognised by the UN to be incompatible with human dignity. By focusing on labour exploitation and not using the UN definition, the Act reinforces the idea that prostitution can be considered a form of labour. This trivialises the damage that prostitution poses to both individuals and the community.
This case study appears on page 16 of the CPS VAWG Report 2016-17. It illustrates some of the disastrous consequences of the failure to use the UN definition of sex trafficking in the Act:
“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. Two of the women had up to ten customers every day, while a third was ordered to have sex with men at car washes. The victims, who were aged between 19 and 24, came from poor backgrounds and spoke little or no English. One of the defendants convinced two of the women that he was in a romantic relationship with them in order to manipulate them. The defendants were convicted – one was sentenced to over 13 years’ imprisonment; the second to over eight years for human trafficking and forcing prostitution and the third was sentenced to over three years for controlling of prostitution for gain.” [Our emphasis.]
Let’s look at the case through the lens of the UN definition. The women are young and vulnerable. They are in a foreign country and speak little or no English. The defendants receive and harbour them, possibly transport them, exploit their vulnerability and use deception (the promise of legitimate jobs, pretence of a romantic relationship), coercion (stealing of documents) and force – all for the purpose of exploiting their prostitution. Clearly this meets the UN definition of sex trafficking but apparently only one (or two – the text is unclear) of the defendants were convicted as such.
By framing “travel” as the central feature of human trafficking, the more serious and damaging crime – in human and social terms – of the ongoing exploitation of the prostitution of these young women, is reduced to secondary status, in contravention of the binding obligation to implement the terms of the Palermo Trafficking Protocol and the CoE Trafficking Convention. Moreover prostitution itself is reframed as “work” or “sex work” – as if being penetrated (i.e. 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.
Exploitation of another person’s prostitution
Just as officials and legislators misunderstand the definition of “trafficking” they also misunderstand the definition of “exploitation” in the phrase “exploitation of the prostitution of others.”
According to the Oxford Dictionary, “exploitation” in this phrase means making use of, benefiting from, or taking unfair advantage of the prostitution of another person. This implicitly includes profiting from a woman’s prostitution, through brothel keeping, pimping, “living off the earnings,” etc. regardless whether force or coercion, etc. were used.
The third defendant in the case study above was “sentenced to over three years for controlling of prostitution for gain.”
Looking at this through the three elements of the UN definition – act, means and purpose – we can see the defendant exploited the victim’s prostitution, which meets the ‘purpose’ element. That he controlled her, implies that he used some form of force or coercion, or abuse of her vulnerability, meeting the ‘means’ element. That he was in a position to do this, implies that he’d recruited, harboured or received her, which meets the ‘act’ element. The third defendant’s crime therefore meets the UN definition of sex trafficking. But he was only sentenced to around three years for “controlling prostitution for gain,” sending out the message it was a relatively trivial offence, comparable in seriousness to shoplifting.
This example illustrates that most pimping fits the international definition of sex trafficking. As feminist legal scholar, Catharine MacKinnon, memorably put it, “sex trafficking is straight-up pimping.”
The maximum sentence for “controlling prostitution for gain” (Section 53 of the Sexual Offences Act 2003) is only seven years – even though, as we have shown, all or most cases fit the UN definition of sex trafficking.
Article 6 of the Convention on the Elimination of Discrimination Against Women (CEDAW) states:
“States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” [Our emphasis]
This means that the UK government has a binding obligation to suppress third parties from profiting from the prostitution of women, regardless whether “control” is involved. Currently this obligation is not being met. The CPS guidance states that “An individual who profits from the activities of a prostitute but who does not control any of those activities will fall outside of the scope of this offence: R v Massey.”
This urgently needs to be addressed in the criminal law by the introduction (or where relevant, updating) of offences of profiting from another person’s prostitution with penalties that act as a real deterrent, covering ‘living off the earnings,’ brothel keeping, and businesses, like AdultWork and VivaStreet, that profit from prostitution adverts or room lettings. Framing the offences as intentional would protect exploiters’ children and others who inadvertently or indirectly benefit financially.
When the person being exploited is a child or the profiteer uses control or coercion or takes advantage of vulnerability, etc. the offence must be reframed as sex trafficking and the penalties increased accordingly.
Sexual exploitation of children
While we appreciate the intentions of those who pushed for all references to “child prostitution” to be expunged from the criminal law and replaced with “child sexual exploitation” (CSE), it has had unintended consequences.
The word “prostitution” is well understood to mean that a person (almost always a man) pays for sexual access to another person (usually a woman or a child) and that all or much of the payment often goes into the pocket of a third party (the pimp). All of this is conveyed in the word “prostitution.”
“Sexual exploitation” on the other hand, although defined by the United Nations, is not clearly understood by the general public or even professionals. Jessica Eaton has written about the confusion between CSE and “child sexual abuse” (CSA) among practitioners in social work and children’s services. Now the term “prostitution” has been removed, the difference in the legislation hinges on giving money or gifts as payment for the child’s “sexual services.” But the grooming of children for sexual abuse usually includes some form of emotional or material bribe or “reward,” so the difference is confused and the practical effect is that child victims are often subtly blamed for accepting the “payment.”
Furthermore the penalty for “controlling a child in relation to sexual exploitation” is lower than the penalty for paying for the child’s “sexual services.” In other words, profiting from and controlling the systematic rape of a child carries a lower sentence than raping a child. This sends out a confused and confusing message. While both of these crimes are heinous, the former crime will inevitably lead to more incidents of the latter and should not carry a lower penalty.
However, if we refer back to the Palermo Trafficking Protocol definition, it is clear that “controlling a child in relation to sexual exploitation” meets the definition of sex trafficking a child. In fact no element of control is required – simply profiting from the child’s prostitution is sufficient. The maximum sentence for “controlling a child in relation to sexual exploitation” is not only less than for raping a child, but also less than for sex trafficking an adult. This urgently needs to be addressed.
Another issue we have with the CSE legislation (Sections 47 – 50 of the Sexual Offences Act 2003) is that if the child is older than 12 years, the burden of proof is on the prosecution to prove the accused did not reasonably believe the child to be 18 or over.
The Lanzarote Convention places an obligation on the UK to legislate against profiting from, or otherwise exploiting, a child’s prostitution.
Using different terminology for prostitution when it relates to children implies that adult prostitution is acceptable, even though we know that a significant proportion of adult women in prostitution started before their 18th birthday and/or through the involvement of one or more third parties. Prostitution is always exploitative and was recognised by the United Nations in 1949 as a violation of the inalienable right to dignity enshrined in the Universal Declaration of Human Rights.
Framing the exploitation of the prostitution of children as sex trafficking would clearly position responsibility and culpability on the exploiters and buyers, while making it clear that any third-party involvement in the prostitution of a child is a very serious human rights abuse.
Recommendations for bringing the Act into line with international obligations
- Redraft the human trafficking section of the Act so that it matches the UN definition.
- Introduce a new section of the Act that defines an offence of exploitation of the prostitution of another person and other forms of sexual exploitation.
- Ensure all offences involving the sexual exploitation of a child under 18 years of age (including paying for “sexual services”) are strict liability offences.
- Increase the maximum penalties of relevant offences that remain in the Sexual Offences Act 2003 (e.g. all offences relating to the sexual exploitation of a child or controlling or inciting the prostitution of an adult) to align with those for modern slavery/trafficking.
- Comprehensive training for all relevant professionals (including police, CPS, social workers, etc.) on the use of the updated legislation.
Article 9 of the Palermo Trafficking Protocol places an obligation on ratifying states to take comprehensive measures to prevent human trafficking and the re-victimisation of victims, particularly women and children.
The provisions for transparency in supply chains in the Act go some way towards prevention – but they apply to forced labour and related forms of exploitation, which affect men and boys as well as women and girls, and not to the exploitation of prostitution and other forms of sexual exploitation, which mostly affect women and girls.
There are no specific measures in the Act to address the underlying causes of sex trafficking, even though paragraph 4 of Article 9 states that measures should “alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity” and paragraph 5 states that measures must be taken to “discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”
Not only does the Act not include any measures to discourage the demand for prostitution that drives sex trafficking, it does not challenge the damaging narrative, introduced by sex industry lobbyists, that prostitution should be renamed “sex work” and considered a form of labour. This normalises and legitimises prostitution, 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 discourage demand. One, Section 53A of the Sexual Offences Act 2003, is barely used, and the CPS guidance discourages the use of the other (the kerb crawling legislation).
The Government has overseen a huge increase in gender inequality and women and children’s poverty since 2010. We set out many examples in our response to the Women & Equalities Committee’s inquiry on the implementation of SDG5. The situation has worsened since then.
The Act and the wider measures taken by the Government are therefore not compliant with Article 9. Similarly they are in contravention of Articles 5 and 6 of the CoE Trafficking Convention, which require states to use a gender mainstreaming and child-sensitive approach and to take measures to discourage the “demand that fosters all forms of exploitation of persons, especially women.”
Recommendations for prevention of sex trafficking
- The full implementation of the Nordic Model.
- Urgent measures to address women’s poverty and inequality.
- Implementation of a gender mainstreaming approach throughout Government and agencies in order to ensure that no policies, laws or measures will again be implemented that will worsen sex inequality or the safety of children.
How the Modern Slavery Act fails women and girls