The ‘Independent’ Review of the Modern Slavery Act (MSA) has published initial reports on their recommendations. In this article we respond to the report on the MSA’s legal application. We show that the ‘independent’ review abjectly failed to consider the full implications of the MSA’s incorrect definition of human trafficking on women and girls, and instead justified it by clutching at straws that would be laughable were the consequences for the most vulnerable women and girls not so grave.
For convenience and simplicity, we use the term sex trafficking in this article to mean human trafficking for the purpose of the exploitation of the prostitution of the person or other forms of sexual exploitation.
Catharine MacKinnon, the great feminist legal scholar, memorably said that, although nobody defends human trafficking, many people try to redefine the term so it doesn’t cover anything they personally want to defend.
For an excellent example of this, you need look no further than the Modern Slavery Act 2015 (MSA). Billed as a “ground-breaking piece of legislation,” it streamlines the offences that males are likely to fall victim to, while mangling the definition of the forms of human trafficking that are almost exclusively targeted at females until, like a pantomime villain, they bear no resemblance to the actual reality.
There are no prizes for guessing what our law makers want to defend. Do they personally benefit from labour trafficking? Or organ trafficking? Probably not. But trafficking to exploit a woman’s prostitution? Yes.
All men benefit from prostitution, whether they personally frequent a brothel or not, because it is the cornerstone of the patriarchal system on which their unfair advantages rest. Whether they use it or not, prostitution is always an option when their ego needs boosting or they need someone to take their frustration out on. It defines men as subjects whose needs are paramount and women as objects whose purpose is to serve men. It defines male as first class, female as second, third – or even fourth – class; males as human beings, females as not quite human.
It has long been recognised that women and girls are the main targets of traffickers in Western Europe – because of the vast amounts of money that can be made through the exploitation of their prostitution, €1,000 per day according to the latest UNODC report. So it is of grave concern that the MSA fails to follow the international definition of human trafficking, which was designed with the specific aim of protecting women and children.
Last year the UK Government commissioned an ‘independent’ review of the MSA. We submitted a lengthy and detailed explanation of our grave concerns about the way sex trafficking is defined and the implications of this, including that the MSA fails to meet binding legal obligations, is profoundly sexist, discriminates against women and girls, and implicitly normalises and trivialises prostitution and positions it as a form of work.
Four interim reports from the review have now been published, each one looking at a different aspect of the MSA. The fourth interim report relates to its legal application. This article looks at what that report says about sections 1-3 of the MSA, which define the offences and are where our key concerns lie – although we agree with many criticisms of its other aspects.
Definition of Human Trafficking (Section 2)
Under the heading, ‘Definition of Human Trafficking (Section 2)’ the fourth interim report says that “stakeholders and expert advisers” noted that the definition of human trafficking focuses on the travel of the victim and does not conform to the international definition in the Palermo Protocol and the EU Directive on Human Trafficking. The report fails to mention, however, that the UK has a binding legal obligation to implement their terms.
The report explicitly recognises that the international definition does not mention ‘travel’ but then finds three key ways to justify the MSA centring it in its definition of human trafficking.
The first justification is that the Government’s position during the passage of the bill was that the international definition implicitly recognises ‘movement’. But this is clearly incorrect. The main part of the international definition is 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…”
Recruitment, harbouring and receipt do not imply movement of the victim and any one of these is sufficient to meet the definition when the other elements are also met.
The second justification is that Section 2(3) of the MSA recognises other acts (such as recruitment). But this is disingenuous, because these are only relevant in relation to the victim’s travel and are not relevant when travel cannot be proven.
The third justification is that the CPS claims to take a “broad interpretation of what is meant by ‘travel’, including movement over a very small space.” This would be laughable if the consequences for the most vulnerable women and girls were not so grave.
So to summarise, the so-called ‘independent’ review acknowledges that the MSA incorrectly centres its definition of human trafficking on something (‘travel’) not mentioned in the international definition, while excluding several other key things that are mentioned. It then justifies this parlous situation by clutching at straws.
And we’re supposed to accept this when we’re talking about a most heinous human rights abuse of large numbers of women and girls?
The report goes on to say:
“While the definition of human trafficking has not yet proved an issue, the magnitude of the debate surrounding it suggests it is not as clear as it could be, carrying the risk that a future challenge results in an overly narrow interpretation. Some of our expert advisers have recommended that section 2 should be amended now to clarify the position. We are concerned that the Act does not mirror the Palermo Protocol and the EU Directive in its structure, however, it is too early to determine if this is causing issues in securing prosecutions. We therefore recommend the Independent Anti-Slavery Commissioner should monitor and review the outcomes of prosecutions and appeals to ensure the Courts are not taking an overly narrow interpretation of what constitutes trafficking under section 2. The Commissioner should report her findings in her annual report, and Government should be prepared to bring forward amendments to the legislation if the Commissioner identifies an issue with the interpretation of section 2.” [Emphasis in the original]
But it’s not too early to determine that the definition is causing issues. We showed in our submission that it is already doing this and many cases that fit the international definition of sex trafficking are being prosecuted for ‘controlling prostitution’ which is considered a much lesser crime, has lower potential sentencing than shoplifting, and has no recognition that the victim has been subject to a human rights abuse.
The forms of trafficking that males are more likely to fall victim to can be prosecuted straight-forwardly under Section 1 as ‘modern slavery’ without the need to prove travel. Sex trafficking can potentially be prosecuted under Section 1, but this generally requires the prostitution to be framed as a form of labour that is forced. This contravenes the Palermo Protocol, which explicitly separates out the exploitation of prostitution and other forms of sexual exploitation from forced labour, because under international law prostitution is considered a violation of human rights and so should never be framed as work – forced or otherwise.
The focus of the ‘independent’ review was the impact of the legislation on gaining prosecutions. But that’s not the only purpose of legislation. Legislation also defines norms and the boundaries between what is acceptable and what isn’t. It frames how people see the world. So when the legislation against human rights abuses is muddled and does not follow the clear international guidelines, it risks obscuring the boundaries rather than clarifying them.
We argued in our submission that the MSA is profoundly sexist and discriminates against women and girls, who are the vast majority of victims of sex trafficking and who are the majority of those who are prostituted. The ‘independent’ review did not mention this in their report – even though there’s an obligation under both the EU Directive and the Council of Europe Convention on Action against Trafficking for all measures against trafficking to be non-discriminatory and to take a gender equality approach, and the EU Directive requires the most severe penalties to apply when the victims are most vulnerable and the crimes include the worst forms of psychological, physical and sexual violence, such as when women and girls are exploited in prostitution. In addition, the Palermo Protocol calls for the prevention and combatting of trafficking in persons to pay especial attention to women and children.
Nowhere in the fourth interim report is there any consideration of the particular impact of the MSA on women and girls. This is extraordinary. It suggests that the reviewers were not independent and were unable to step outside the paradigm that the MSA has already created and look at it dispassionately, including through a gender mainstreaming lens – as required by international law.
Subparagraph (b) of the international definition covers the consent of the victim as follows:
“(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;
This implies that it is the exploitation of the victim that is the core of the human rights abuse of human trafficking and, like all human rights abuses, whether the person consented is not relevant.
It is of real concern therefore that Section 2(2) of the MSA spells out that the consent of the victim is only irrelevant in regards to their “travel.” The interim report mentions this, but does not elaborate on the implications – especially that it opens the way for defendants to claim that the victim consented to the prostitution that they are exploiting. Under the international definition, whether the victim consented to the prostitution is irrelevant and it’s only necessary to show that there was an element of threat, force, coercion, or abuse of power, etc. and that he was profiting from her prostitution.
Subparagraphs (c) and (d) of the Palermo Protocol definition relate to children:
“(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.”
It is deeply concerning that paragraph 2.4.1 of the report explains the irrelevance of the ‘means’ element when the victim is a child with the assertion that it’s because “a child cannot consent to being exploited.” But as we have shown, the Palermo Protocol makes it clear that consent is never relevant regardless of the age of the individual.
Paragraph 2.4.2 calls for the Section 1(5) and Section 2(2) of the MSA to be amended to “reflect more clearly that a child is not able to consent to any element of their trafficking.” This implies that an adult can consent to their exploitation and so if this recommendation is implemented, the MSA will move even further from the international definition than it already is.
The interim report also glosses over the fact (which we drew attention to in our submission) that Section 3 Subsection (6) of the MSA directly contravenes the requirement in the international definition that it is not necessary to show that any threat, force, coercion, or abuse of power, etc. was involved when the victim is a child.
Meaning of Exploitation (Section 3)
Examining the definition of exploitation in Section 3 of the MSA was one of the key aims of the ‘independent’ review. The interim report recommends that it is not amended, because, they say, it is “sufficiently flexible.” Instead they recommend that the Government provides additional guidance on interpreting the MSA and does further work on the Home Office’s ‘Typology of Modern Slavery.’
The Home Office typology reveals the very serious consequences of not following the international definition – prostitution is reformulated as ‘sex work’ – even when the victim is a child. Here is the summary of the typologies that relate to sexual exploitation:
“7 Child sexual exploitation – group exploitation: Children are sexually exploited by groups of offenders. This is usually for personal gratification, but sometimes the exploitation involves forced sex work in fixed or changing locations and will include characteristics of types 9 and 10. Offenders frequently transport victims to different locations to abuse them.
8 Child sexual exploitation – single exploiter: Similar to type 7, often involves the grooming of children and transporting them for the purposes of sexual exploitation, although the offending is carried out by one individual.
9 Forced sex work in fixed location: Victims are trafficked and exploited in established locations set up specifically for sex work. This can include brothels or rooms in legitimate business premises (e.g. massage parlour).
10 Forced sex work in changing location: Victims are forced into sex work where the location of exploitation frequently changes. Locations include streets, clients’ residence, hotels or ‘pop‑up’ brothels in short‑term rented property. Victims are frequently advertised online.
11 Trafficking for personal gratification: Victims are trafficked to residential sites controlled by offenders and sexually exploited for the offenders’ own gratification. Some victims may be confined to the site for a long period of time.” [Red added for emphasis.]
The terms ‘sex work’ and ‘sex worker’ were coined by promoters of the sex industry with the aims of legitimizing prostitution as a form of regular work and of concealing the harms that prostitution causes to those caught up in it and to society as a whole. Neither term is clearly defined. Many activities that do not involve intimate bodily contact (such as phone line work and web-camming) are covered by the term ‘sex work’ and many people who have never actually engaged with prostitution per se call themselves ‘sex workers’ – including some brothel keepers and other profiteers.
International human rights law recognises prostitution as a violation of human rights and specifically prohibits the exploitation of the prostitution of others, including pimping, procuring and the running of a brothel.
It is therefore of grave concern that a Home Office reference document not only uses the term ‘sex work’ but appears to not understand international law. The worst example is that the definition of child sexual exploitation includes the phrase ‘forced sex work’ when the Palermo Protocol makes it clear that any third party involvement in the prostitution of a child meets the definition of sex trafficking regardless whether there was any force or coercion, etc.
The terms ‘sex work’ and ‘forced sex work’ should never be used in relation to human trafficking and ‘modern slavery,’ because these terms trivialise and normalise prostitution. The international definition is clear that a third party simply profiting from another person’s prostitution meets the definition of exploitation. Use of the term ‘sex work’ obfuscates this.
This is exactly what we feared: that the Modern Slavery Act implicitly frames prostitution as a form of labour. Moreover, it obscures the UK’s binding obligation under international treaties to prohibit third parties profiting from the prostitution of women and children regardless whether any force, coercion or abuse of power etc. has been used. This means that the vast majority of victims are unrecognised and unsupported, the vast majority of the perpetrators have complete impunity, and the scale of the problem is vastly underestimated.
Once prostitution is accepted as regular work, poor women are inevitably expected to turn to it to support themselves and their children – and the welfare system is exonerated from making the systematic provision for them that is required by international law. This in turn increases the inequality between men and women. We are concerned that this process is already underway in the UK.
Meaning of sexual exploitation
The definition of “sexual exploitation” in Section 3 of the MSA is as follows:
(3) Something is done to or in respect of the person—
(a) which involves the commission of an offence under—
(i) section 1(1)(a) of the Protection of Children Act 1978 (indecent photographs of children), or
(ii) Part 1 of the Sexual Offences Act 2003 (sexual offences), as it has effect in England and Wales, or
(b) which would involve the commission of such an offence if it were done in England and Wales.
We explained in our submission that, while the offences listed in these two Acts are vile, this definition sends a confused and confusing message in contrast to the Palermo Protocol definition, which focuses the offence on exploiting (i.e. profiting from) a person’s prostitution and other forms of sexual exploitation (e.g. making pornography) and which underlines that the motive for sex trafficking is the obscene amounts of money that can be made. The MSA therefore obscures the driving force behind sex trafficking and that to stop it, we need to stop men buying women in prostitution for sexual use and abuse. The fourth interim report does not mention this.
Any proper consideration of Section 3 requires a consideration of the offences that are defined in the other Acts, and how they interact with the MSA in practice. Again we raised a number of very serious issues in our submission, including that people accused of crimes involving the sexual exploitation of children who are 13-17 years old can use as a defence the claim that they did not know the child was under 18. All of these concerns were ignored.
While the ‘independent’ review was preparing its report, the CEDAW Committee was meeting in Geneva to examine the UK’s progress on implementing the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
In its Concluding Observations, the CEDAW Committee stressed that the UK Government “putting women’s rights at the heart of its deliberations and ensuring that women’s rights are strengthened will result in creating a stronger and more resilient society.” They recommended that all public bodies undertake gender equality impact assessments as already required by the Public Sector Equality Duty. The ‘independent’ review of the Modern Slavery Act failed to do this – as now appears to be the norm.
The Committee specifically recommended that the definition of human trafficking in the Modern Slavery Act should be brought into line with the Palermo Protocol definition and that the UK adopt a “comprehensive national strategy to combat trafficking in women and girls.”
The Committee made a number of other recommendations for measures to ensure that women are not driven into prostitution by poverty and lack of alternatives, and that once in prostitution, there are services to help them leave, along with genuine alternatives, and for measures to reduce men’s demand for prostitution. These recommendations are directly relevant to the MSA because they are required for compliance with Article 9 of the Palermo Protocol.
The Committee’s Concluding Observations were released on 8th March 2019, some weeks before the ‘independent’ review into the Modern Slavery Act published its fourth interim report. We would have expected the Home Office to have passed the CEDAW Committee’s Concluding Observations to the ‘independent’ review team and to have asked them to review their own findings in their light. It seems unlikely that this happened because the report does not mention CEDAW at all.
So there you have it. The MSA which is the human trafficking legislation for England and Wales mangles the definition of the forms of human trafficking that women and girls are most likely to be victims of, and implicitly frames prostitution as a form of regular labour in contravention of multiple human rights treaties.
Which brings us back to where we started – that the Government appears to have little interest in doing anything more than lip service to address the terrifying epidemic of human rights violations of women and girls that we are currently witnessing. This should not surprise us given that, even though we currently have a female prime minister, women are outnumbered by men in the cabinet by more than three to one.
As it is, the UK is behaving like a rogue state. It ratifies treaties and then fails to implement their terms. This must change. Women and girls are human beings and it is time for their human rights to be prioritised.
To bring about real change for women and girls, the UK Government must mainstream sex equality – just as the CEDAW Committee recommends.
The UK Government must urgently amend the Modern Slavery Act to bring it into line with CEDAW, the Palermo Protocol, the EU Directive and the Council of Europe Convention, and must update all of the associated official guidance, ‘typologies,’ training etc. accordingly.