Submission to the Independent Review of the Modern Slavery Act

This is the text of our submission to the Independent Review of the Modern Slavery Act. It focuses on our grave concerns about how the Modern Slavery Act frames human trafficking for the purpose 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. The implications of these failings in the Act have profound implications for how society understands prostitution and how the criminal justice system deals (or fails to deal) with it. 

Although this submission overlaps with our submission to the Home Affairs Select Committee’s inquiry, we are publishing it separately because it is more complete.


About us

Nordic Model Now! is a grassroots women’s group campaigning for the Nordic Model, the equality and human rights-based approach to prostitution. All members are unpaid volunteers and the group includes survivors of prostitution and child sexual exploitation. We run on a shoestring budget and have no funding other than donations from supporters.

Introduction

We recognise that this review has a limited remit. However, we have very grave concerns about how the Modern Slavery Act (the Act) fails to meet binding obligations under human rights treaties that the UK has ratified, particularly those that aim to protect women and children, and that it is therefore discriminatory in design and effect. We hope and trust that the Independent Review will sincerely consider our reasoning, concerns and recommendations.

Human trafficking

It is generally recognised that human trafficking for the purpose of sexual exploitation (hereinafter called sex trafficking):

  • Is the most common form of human trafficking in Europe.
  • Disproportionately affects women and girls, who are the vast majority of its victims.
  • Is particularly damaging to both victim and community.
  • Is inseparable from the system of prostitution.
  • Is capable of generating colossal profits.
  • Is driven by men’s demand for prostitution.

One would therefore expect that the legislation would streamline sex trafficking offences so that they are easy to prosecute, and send out a clear message that is easy to understand and that makes it clear what preventive measures are needed. Instead the Act does the opposite.

To unpick how the Act fails to properly deal with sex trafficking, it’s first necessary to understand the meaning of ‘trafficking’ and how human trafficking is defined in the relevant human rights treaties.

Dictionary definition of ‘trafficking’

‘Trafficking’ is 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.

UN definition of human trafficking

The UN definition of human trafficking is in Article 3 of the Palermo Protocol. This definition is also used in the Council of Europe Convention on Action against Trafficking (CoE Trafficking Convention). The UK has ratified both of these and so has a binding obligation to implement their terms.

The text of the definition is:

(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.

Note that subparagraph (a) defines three elements: the ‘act’ (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 notion of abuse of power or a position of vulnerability implicitly recognises trafficking as an issue of inequality based on sex, race, class, nationality, age, and poverty, and covers what is known as ‘grooming.’

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 of exploitation, including forced labour, which implies that prostitution cannot be considered a form of labour and that the harms are of a different nature.

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

“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.”

Meaning of ‘exploitation of the prostitution of others’

There’s confusion about how to interpret “exploitation of the prostitution of others.” Amnesty International, which lobbies for pimping to be legal, has argued that because the term ‘exploitation’ isn’t defined, 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 or a situation.

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

This means that a third-party simply profiting from a woman’s prostitution meets the definition of exploitation in the UN definition of human trafficking.

Internationally acclaimed feminist legal scholar Catharine MacKinnon explains that sex trafficking:

“is transportation, transfer, harboring, or receipt of a human being for purposes of sexual exploitation: it is straight-up pimping. Movement across jurisdictional lines is not, and has not been, an element of the international definition of trafficking since at least 1949. The sine qua non of trafficking is thus neither border crossing nor severe violence. It is third-party involvement.”

Reframing the meaning of ‘exploitation of the prostitution of others’ to mean inherently exploitative practices rather than simply profiting from an individual’s prostitution would have very serious consequences. But this is what the Government has done in the guidance for officials tasked with deciding whether someone is a victim of human trafficking under the National Referral Mechanism (NRM). For example, here is an extract from page 31 of the guidance:

“There are also less straightforward cases, for example where people have been aware they would be working consensually in the sex industry in the UK but they were misled as to the conditions of the environment, particularly the degree of control (over freedom and earnings) before they arrived. Where the situation such individuals find themselves in amounts to exploitation, this could be a modern slavery case.” [Our emphasis.]

This has a very different from how ‘exploitation’ is framed in the Palermo Protocol, which only requires that a third party is profiting from the victim’s prostitution. This means that many cases that fit the Palermo Protocol definition of sex trafficking are not recognised as such by the UK authorities.

Obligations under CEDAW

Article 6 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which the UK has also ratified, uses similar terminology to the Palermo Protocol:

“States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

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

There is evidence that the Government either does not understand this or does not wish to understand it. For example, in its eighth periodic report to the CEDAW committee the Government says:

“UK Government is committed to tackling the harm and exploitation that can be associated with prostitution, and believes that people who want to leave prostitution should be given every opportunity to find routes out.” [Our emphasis]

This suggests the Government does not view prostitution as inherently harmful and lacks the will to tackle third parties who profit from the prostitution of women and girls and implement its binding obligations under CEDAW.

Prostitution as violence against women and violation of dignity

To understand why the Palermo Protocol and CEDAW treat the exploitation of prostitution in this way, we need to understand the true nature of prostitution. This is more important now than ever because prostitution is glamorised and trivialised within our pornified and hyper-sexualised culture, and a powerful lobby of vested interests is pushing for prostitution to be accepted as ordinary work that can be opened up to the free markets without restriction.

Prostitution is not a value-free institution. Study after study has shown that it is damaging both to those in it and to society more generally. For example, a meta-study found that violence is a prominent feature of prostitution in all settings and that it tends to entrench women’s disadvantage and social exclusion, and shore up the inequality between the sexes.

UN multi-country study found that men perpetrating rape of non-partners and violence against intimate partners are associated with prostitution-buying. Studies of punters (sex buyers) have found they are more likely to commit rape and other aggressive sexual acts. In addition, the contempt they have for women is borne out by survivor testimony and research on punter forums.

The understanding that prostitution is incompatible with the dignity and worth of the human person was formally recognised by the UN in the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. While the UK has not ratified this convention, its adoption by the General Assembly means the UN recognises prostitution per se as a human rights violation.

It is on this understanding that Nordic Model Now! bases our activism. We collate first-person accounts from women who have lived experience of prostitution. For example, this is how one of our members described her recent experiences in prostitution – which she turned to out of financial desperation:

“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. But the only thing that scared me more was being street homeless, so I saw no choice other than to put up with it until I could clear my rent arrears.”

This surely fits the definition of ‘torture’ as defined in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), or failing that, the definition of ‘cruel, inhuman or degrading treatment’ in Article 16. The Government therefore has a responsibility to ensure that prostitution is not normalised and is clearly framed as a human rights abuse, and to prevent third parties from profiting from it.

This is why CEDAW places an obligation on ratifying states to take effective steps to prevent people from profiting from a woman’s prostitution, and why the Palermo Protocol separates out the exploitation of a person’s prostitution from forced labour.

When human trafficking is for the purpose of sexual exploitation, the violation is two-fold – the human rights violation of being treated as a commodity that can be bought and sold for another person’s profit and the violation of the human right to dignity and bodily integrity in prostitution itself. This parallels the double violation in human trafficking for the purpose of organ removal.

But unlike with organ removal, many, particularly men (including those who control the great bastions of power) are unable or unwilling to see the violation inherent in prostitution. We believe this can be explained by prostitution’s role as a cornerstone of the system that maintains the male dominance on which their power and control depends, and because prostitution is not something they could ever imagine happening to themselves, and it is normalised and trivialised in our culture.

How the Modern Slavery Act defines the offences

The Act defines the offences in Part 1, sections 1 – 4.

Section 1

Section 1 defines offences of “Slavery, servitude and forced or compulsory labour.” These broadly correspond to the forms of exploitation defined in Article 3 of the Palermo Protocol with the exception of organ removal and the exploitation of the prostitution of the person or other forms of sexual exploitation.

Subsection 4 (b) provides a possibility of prosecuting the latter under Section 1. However, doing so implicitly frames the prostitution or sexual exploitation as a form of labour, which contravenes the Palermo Protocol, which is based on the understanding that prostitution and other forms of sexual exploitation cannot be considered labour, forced or otherwise.

Section 2

Section 2 defines offences of “Human trafficking.” Subsection 1 is key. We reproduce its text here:

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

Subsection 3 includes recruiting, harbouring and receiving the victim but only in respect to arranging or facilitating their travel. If there is no travel, the definition of the offence is not met.

This hollows out the sophisticated Palermo Protocol definition and centres the offence on the movement of the victim, rather their continued exploitation.

This raises questions about how the binding Palermo Protocol definition could have been abandoned and replaced in the Act with a definition that revolves around ‘travel.’ Was it a result of institutional sexist bias or evidence that lawmakers have fallen under the spell of the propaganda promoted by the sex industry lobbyists that prostitution is an empowering choice for women and that it is no different from service jobs like waitressing? Or was there a conscious desire to frame trafficking as primarily an immigration issue, with the implicit suggestion that perpetrators are mainly foreign born?

Regardless of how this happened, one effect is that it deflects attention from the reality that trafficking as defined by the Palermo Protocol is commonplace in the UK – as is evidenced by the cultural understanding of the British man pimping out his girlfriend.

Section 3

Section 3 defines the “Meaning of Exploitation” in relation to Section 2. This has subsections defining five different types of exploitation, one of which is “Sexual exploitation.” This is defined as the committing of an offence under Section 1(1)(a) of the Protection of Children Act 1978 or Part 1 of the Sexual Offences Act 2003.

The other four types of exploitation are:

  • “Slavery, servitude and forced or compulsory labour” as defined in Section 1.
  • “Removal of organs etc.”
  • “Securing services etc by force, threats or deception.”
  • “Securing services etc from children and vulnerable persons”

One of the stated aims of the Modern Slavery Act was to consolidate existing offences into one Act. It has done this for all of the types of human trafficking and ‘modern slavery’ except sex trafficking, which, as already noted, is the most common form in Europe, whose victims are overwhelmingly female and in which the human rights violations are particularly egregious.

Part 1 of the Sexual Offences Act 2003 covers a long list of offences, including rape and sexual assault of adults and children, paying for sexual services of a child or of an adult subject to force, and controlling prostitution for gain and controlling a child in relation to sexual exploitation.

Without doubt these are vile offences, but this sends a confused and confusing message in contrast to the Palermo Protocol definition, which clearly focuses the offence on exploiting (i.e. profiting from) a person’s prostitution or other forms of sexual exploitation (e.g. making pornography) and thus keeps the motive for sex trafficking firmly in mind – the obscene amounts of money that can be made. As Tony Talbot put it in his TED Talk:

“Human trafficking is insanely profitable. If you really think about it, you can sell a kilo of heroin once; you can sell a 13-year-old girl 20 times a night, 365 days a year.”

It is these profits that motivate the traffickers, but the way the offences are defined in the Act obscures this. And that makes it harder to see what needs to be done to stop it.

When we understand that it’s the profits that can be made from prostitution that drive the traffickers, it’s easy to see that to stop them, we need to stop men buying women in prostitution.

But when the legislation defines the offence as arranging a woman’s travel “with a view to” raping, assaulting or violating her in some other way in another location, the traffickers are implicitly framed as irrationally and uniquely evil and outside the norm – when in fact, they are ordinary people wanting to make a fast buck, particularly now that in many communities there are few legitimate opportunities for making a decent living.

This has profound implications, not only for how the criminal justice system deals with these crimes, but also for how society understands prostitution and the vast majority of human trafficking in the UK.

Additionally, it should be noted that the forms of exploitation specified in the Palermo Protocol definition of which men and boys are mostly likely to be victims (forced labour or services, slavery or practices similar to slavery, servitude) can be prosecuted simply and straight-forwardly as ‘modern slavery’ under Section 1 of the Act. But the forms of exploitation specified in the Palermo Protocol of which women and girls are most likely to be victim do not fall straight-forwardly under Section 1 – making their prosecution complicated and convoluted.

Our understanding of subsection (5) is that it is intended to cover situations where the victim is forced to perform services that fall short of ‘forced labour,’ and could include, for example, delivering drugs, begging or being used in prostitution. However, including prostitution here again incorrectly frames it as a ‘service’ (i.e. a form of labour) rather than something that someone does to the victim. Having one’s mouth, vagina or anus penetrated by a stranger’s penis can never legitimately be considered a service.

Subsection (6) expands on subsection (5) when the victim is a child or vulnerable adult and requires a direct comparison with an adult or someone without the specific vulnerability. This is deeply problematic. First because the Palermo Protocol is clear that when the victim is under 18, no such test is required. Secondly because it is much more limited than the ‘abuse of power or of a position of vulnerability’ wording in the Palermo Protocol definition and it obscures the intersecting structural and cultural power inequalities within society that make it easy for those who are in more favourable positions within those 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).

The NRM definition

The National Crime Agency describes the NRM as “a framework for identifying victims of human trafficking or modern slavery and ensuring they receive the appropriate support. The NRM is also the mechanism through which the Modern Slavery Human Trafficking Unit (MSHTU) collect data about victims.”

The NRM guidance uses a different definition of human trafficking from the Modern Slavery Act. For example on page 30 of the guidance mentioned earlier says:

“To be a victim of human trafficking, the person needs to be subjected to the act of either [sic]:

  • recruitment
  • transportation
  • transfer
  • harbouring
  • receipt”

This conforms to the relevant part of the Palermo Protocol definition. However, a table earlier in the page introduces a requirement of an “element of movement” which is not required by the Palermo Protocol:

“Action: recruitment, transportation, transfer, harbouring or receipt, of child which includes an element of movement whether national or cross-border” [Our emphasis]

These and similar anomalies show that the Government must be aware that the definition of human trafficking in the Modern Slavery Act does not meet obligations under the Palermo Protocol and the CoE Trafficking Convention. This is of profound concern.

How the sex trafficking legislation works in practice

We will use a case study from the CPS VAWG Report 2016-17 to illustrate 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.]

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 binding obligations 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. And those rapists are defined as ‘customers.’

The third defendant was “sentenced to over three years for controlling prostitution for gain.” That he controlled her, implies that he used some form of force or coercion, or abuse of his power or 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. That he was gaining from her prostitution by definition meets the ‘purpose’ element. The third defendant’s crime therefore meets the Palermo Protocol 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 – and not a most serious human rights violation.

Press reports of other cases, suggest that people whose crimes meet the Palermo Protocol definition of sex trafficking are routinely being convicted of ‘controlling prostitution for gain’ and sentenced to relative short prison terms, and a trafficking conviction is only secured for those who can be proved to have organised the victim’s travel. This means that the extent of sex trafficking in England and Wales is vastly underestimated and most victims go unrecognised.

Controlling Prostitution for Gain

The offence of ‘controlling prostitution for gain’ is defined in Section 53 of the Sexual Offences Act 2003. It has a maximum offence of 7 years on indictment and 6 months or a fine on summary conviction. By way of comparison, the offence of ‘theft,’ defined in the Theft Act 1968, has a maximum sentence of seven years and the summary option is available only for theft of goods worth less than £200. This suggests that ‘controlling prostitution for gain’ is less serious than a relatively minor act of stealing someone else’s property without any form of physical violence.

But as we have shown in our analysis of the CPS case study, many, probably most, cases of ‘controlling prostitution for gain’ meet the elements of the definition of the human rights violation of sex trafficking in the Palermo Protocol.

Furthermore all cases of ‘controlling prostitution for gain’ meet the definition of ‘exploitation of prostitution of women’ defined in CEDAW Article 6. 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 means that the offence does not cover cases where ‘control’ is not involved – even though CEDAW does not require any element of control.

This means that the UK is failing to meet its obligations under both CEDAW and the Palermo Protocol for effective legislative measures against third parties exploiting the prostitution of others (who we know to be overwhelmingly female) – including when these offences clearly meet the Palermo Protocol definition of human trafficking. As the human trafficking offences that males are more likely to be victims of are effectively covered under Section 1 of the Modern Slavery Act, this suggests sex discrimination and a failure to abide by the instruction in the CoE Trafficking Convention to “take gender equality into account as well as a child-rights approach.” The Government must urgently address this.

Sexual exploitation of children

Until 2015 the equivalent offence to ‘controlling prostitution for gain’ when the victim was a child was ‘controlling a child prostitute or a child involved in pornography.’ However, in 2015 all references to child prostitution were removed from the English criminal law and replaced with the term ‘child sexual exploitation’ (CSE) and the offence is now ‘controlling a child in relation to sexual exploitation.’

Those who pushed for this change in terminology were reacting to the 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. While we appreciate the intentions of those who pushed for this, it has had unintended consequences.

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, through the involvement of one or more third parties, or under the coercion of extreme poverty.

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/trafficker). 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 invariably 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.’

We have shown earlier that controlling a woman in prostitution does, in the vast majority of cases, meet the Palermo Protocol definition of sex trafficking. When the victim is a child, no form of control, coercion or abuse of power is required – a third party simply profiting from their prostitution is, by definition, sex trafficking.

But the maximum penalty for ‘controlling a child in relation to sexual exploitation’ is lower than for both human trafficking and paying for a child’s ‘sexual services.’ In other words, profiting from and controlling the systematic rape of a child carries a lower sentence than a single act of raping the 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 therefore carry at least the same maximum penalty.

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. This more or less gives impunity for men to pimp 13 to 17-year olds and to buy sexual access to them in prostitution. This must change. If a man is not clear that a girl is 18 or over, he should keep well away and the law should provide no excuses.

Earlier this year the UK ratified the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (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.

We believe that the best solution would be to frame the exploitation of the prostitution (and other forms of sexual exploitation) of children as sex trafficking. This 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.

Conclusion

The Modern Slavery Act 2015 is the human trafficking legislation for England and Wales. We have shown that it fails to meet binding obligations under the Palermo Protocol, the CoE Trafficking Convention, CEDAW and the Lanzarote Convention and that these failures are mainly related to the forms of human trafficking that women and girls are most likely to fall victim to.

We are reminded of something said by Professor Philip Alston, UN Special Rapporteur on extreme poverty and human rights, after his visit to the UK. Commenting on the impact of the Government’s austerity measures on women, he said that Britain’s welfare system is so sexist, it may as well have been compiled by a “group of misogynists in a room.”

This surely also applies to the Modern Slavery Act 2015, which streamlines the forms  of human trafficking that males are more likely to fall victim to, while obscuring and obfuscating, those forms of which females are primarily the victims.

The Modern Slavery Act is not only profoundly sexist, it also implicitly normalises and trivialises prostitution, and positions it as a form of work. When the state sanctions prostitution as work, it institutionalises male domination and female suffering.

Women are turning to prostitution in increasing numbers out of financial desperation due to the Government’s austerity measures. When the state sanctions that, prostitution is institutionalised as welfare, and motivation to address women’s poverty and fix the broken benefits system is lost. When the state sanctions prostitution, it implicitly frames it as harmless, which gives the green light to men to buy women and girls for sexual access, and funding for exit services inevitably dries up.

The UK has binding obligations under the Palermo Protocol to address men’s demand, crack down on traffickers and profiteers, and to address the poverty and inequality that makes women and girls in particular vulnerable to being trafficked. The Government is abjectly failing to honour these binding obligations. We do not believe that it is possible for the Government to rectify these failings without addressing the shortcomings of the Modern Slavery Act.

The UN has recognised prostitution and sex trafficking as grave human rights abuses that are primarily inflicted on females for the benefit of males – meaning that these are offences of sex discrimination. It is well documented that prostitution and sex trafficking cause severe pain and suffering, mental and physical. The failure to adopt the Palermo Protocol’s definition of human trafficking in the Modern Slavery Act, and to fulfil obligations to clamp down on those who profit from women and children’s prostitution, on men’s demand for prostitution, and to address women’s poverty and inequality can therefore be seen as Government acquiescence in the trivialisation and institutionalisation of a form of torture of women and girls, in contravention of the Convention against Torture. It is imperative that the Government addresses this as a matter of urgency.

Recommendations

  1. Redraft Section 2 (Human Trafficking) of the Modern Slavery Act so that it matches the Palermo Protocol definition.
  2. Redraft Section 3 (Meaning of Exploitation) so that the definition of sexual exploitation explicitly includes the “exploitation of the prostitution of another person and other forms of sexual exploitation.” The commonest other forms of sexual exploitation should be specified, such as making pornography, lap dancing, stripping, live streaming sex acts, and similar.
  3. Remove Section 3 subsection (6) (“Securing services etc from children and vulnerable persons”) because this should be covered in Section 2 and be drafted in such a way that it conforms to the Palermo Protocol definition.
  4. Ensure all offences involving the trafficking and/or sexual exploitation of a child under 18 years of age (including paying for “sexual services”) are strict liability offences.
  5. Increase the maximum penalties of any 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.
  6. Redraft the NRM rules and guidance so that the definitions of human trafficking of adults and children align fully with the Palermo Protocol definition.
  7. Comprehensive training and guidance for all relevant professionals (including police, CPS, social workers, etc.) on the use of the updated legislation.
  8. Measures to address men’s demand for prostitution through the introduction of a Nordic Model style approach.
  9. Urgent measures to address women’s poverty and inequality to reduce their vulnerability to being trafficked.

December 2018

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