Domestic minor sex trafficking and the detention-to-protection pipeline
Notable discursive changes are afoot with respect to individuals, particularly sex trade–involved youth in the United States. Where once they may have been profiled as juvenile offenders, they are now, thanks to widespread attention to human trafficking, provisionally viewed by law enforcement and their non-state allies as potential victims of domestic minor sex trafficking, replete with traumatic pasts and turbulent family histories that authorize state intervention. This article examines how anti-trafficking policies have been discursively re-imagined to expand policing and rehabilitative interventions for youth. Drawing on in-depth interviews and ethnographic observations, it tracks the discursive sites and spaces in which criminal justice and social justice agendas have coalesced to assist youth and further assesses how attention to domestic minor sex trafficking has simultaneously authorized a multiprofessional detention-to-protection pipeline.
KeywordsDomestic minor sex trafficking Policing Sex work Prostitution Critical trafficking studies Prison abolition Criminal justice Juvenile justice Anti-trafficking rescue industry Carceral studies Critical criminology
Now a cop sees a 16 year old prostituting on the street. The law says, by definition, under the Trafficking Victim’s Protection Act, that because she is under 18, she is a victim of trafficking. So the cops arrest her. They arrest her because it’s the only way we can help her.
—Arlene,1 NGO Advocate, Individual Interview, 2009
My partner says it’s really hard to believe that we arrest these girls and we put them in jail and we are the best friends that they have. I mean, we don’t take advantage of them, we don’t make them sell their bodies for money. We don’t beat them. We actually try to get them assistance. That’s really hard to believe—that we’ re actually the best friends that they have.
—Frank, Police Detective, Individual Interview, 2009
Whether arresting youth in order to “help them” or becoming “the best friends they have” by putting them in jail, both aforementioned narratives deploy an arc of inevitability; for Arlene, the police inevitably have to arrest minor girls2 involved in prostitution since it is the only way that advocates like herself can assist them. For Frank, it is surprising yet inevitable that lockup offers minors involved in prostitution a more stable—and by his partner’s assessment, more friendly environment than any other place available to them. Frank and Arlene similarly share a strong commitment to expanding social services for sex trade–involved youth and agree that the current pathway to help is paved vis-à-vis the criminal justice system.
Both excerpts underscore notable discursive changes that are afoot with respect to individuals, particularly youth under 18, engaged in the commercial sex trade. Where once they may have been profiled by police as juvenile offenders, they are now, thanks to widespread US attention to human trafficking and the passage of federal and state anti-trafficking legislation, provisionally viewed by local and federal enforcement agents as potential victims of domestic minor sex trafficking (hereafter DMST), replete with traumatic pasts and turbulent family histories that authorize state intervention (Musto 2011; Brennan 2010). Whether “the slave next door” (Bales and Soodalter 2009) or the minor sold on online classified ad sites,3 this cohort of individuals have been subjected to increased state attention as well as law enforcement coordinated, social service supported arrest and surveillance—efforts which have commenced under the auspices of providing them with greater protection (Musto 2011).
Once broadly understood as the forced movement of people between and within national boundaries for the purposes of forced labor, human trafficking now additionally connotes situations in which people are coerced and fraudulently forced to engage in labor practices irrespective of movement (Barnhart 2009). American audiences may further come to believe that human trafficking does not merely exist “over there” in other countries but rather “right here” in the United States’ own backyard. Yet, absented from mainstream US anti-trafficking campaigns are the tensions, ambiguities, and uncertainties that accompany the topic. First, human trafficking is a contested term that is mired in conceptual ambiguity and beset by insufficient and unreliable data. As a result of the definitional collapse between human trafficking, sex trafficking, voluntary sex work, irregular migration, and a host of other methodological issues,4 scholars have drawn attention to the unreliability of statistical data that is frequently, albeit uncritically cited to quantitatively describe the scope of the problem. The US State Department estimates that between 14,500 and 17,500 persons are trafficked into the United States each year, though there exists a “striking disparity” between estimated victims and the actual number identified (Kim 2006, 2; Vance 2011). With regard to domestic minor sex trafficking and commercial sexual exploitation of children (CSEC), projected numbers are similarly muddled with US Justice Department estimates ranging from one hundred thousand to three million (Curtis et al. 2008, 1). In an important study that sought to gauge the size of the CSEC population in New York City and address gaps in CSEC estimates more generally, Curtis et al. (2008) utilized respondent driven sampling (RDS) to estimate CSEC prevalence rates. Despite the rigorous and innovative methods they employed, the authors encountered only a handful of minors who were domestically sex trafficked, underscoring the persistent gap between estimated rates of trafficking and the number of cases which are officially identified. Scholars additionally suggest that though there are likely more cases of non-sexual labor exploitation than sex trafficking (Vance 2011), confusion about the differences between smuggling and trafficking coupled with stereotypic and empirically unscrutinized assumptions about victims (Brennan 2008; Curtis et al. 2008) have meant that organized anti-trafficking efforts have exacerbated heteronormative and gender essentialist expectations about women and girls’ presumed vulnerability to sex trafficking.
Notwithstanding the lack of reliable data and other methodological concerns, human trafficking continues to wield extensive policy attention. Thirteen years after the passage of the United States’ benchmark anti-trafficking legislation—The Trafficking Victims Protection Act (TVPA)—federal and state governments have focused ever more attention and resources to identifying cases of trafficking, protecting trafficked persons, preventing human trafficking, and most recently, promoting anti-trafficking collaborations and partnerships, also known as the “4 Ps” (U.S. Department of Homeland Security 2010; U.S. Department of State 2012). The language of the TVPA encapsulates a broad range of trafficking situations that are sexual and non-sexual in nature but which contain elements of force, fraud, and coercion. However, youth under 18 need not meet the standard of “severe” trafficking since the TVPA dually defines sex trafficking as a situation “in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age” (TVPA 2000).
For some, the TVPA been lauded as “the most seminal piece of US legislation” (Small et al. 2008, 4), especially for its protection of commercially sexually exploited children. Still others have underscored the policy’s inaccuracies, ideological and moral agenda (Chuang 2010), and careless collapse of trafficking with prostitution (Marcus et al. 2012). Of particular note here is that the TVPA’s definitional attention to youth under 18, coupled with reauthorizations in 2003, 2005, and 2008, have expanded its conceptual and juridical reach (Chuang 2010) and implicitly prioritized a two-pronged ideological agenda: first, that trafficking for sex and trafficking of domestic minors is of commensurate if not greater importance than forced labor cases that are non-sexual in nature, and second, that multiprofessional anti-prostitution interventions are best equipped to guide anti-trafficking advocacy efforts (Brennan 2008; Stolz 2007). Yet, although anti-trafficking efforts focused on sex trade–involved youth have expanded in recent years, scant scholarly attention to date has been paid to the symbolic and empirical purchase of these multiprofessional interventions, even those promising to protect youth in a victim and survivor-centered manner (Musto 2010).
Critical trafficking studies
My research pivots around understanding the meaning and significance of US anti-trafficking interventions. Reading against the grain of mainstream scholarly, social service, and law enforcement treatment of the topic, this article and the larger project in which it is based assesses how and why US anti-trafficking policies have fostered increased policing and rehabilitative interventions for sex trade–involved youth. Unpacking why there now exists such a robust focus on DMST in the US proffers a dual opportunity to make feminist and critical criminological sense of a corollary trend that is underway whereby collaborative teams of law enforcement agents, social service providers, and non-governmental advocates are coming together in novel new ways to identify and protect US-born trafficked youth. Just as rescue,restore, empower, protect, and victim/survivorcentered emerged as watchwords of mainstream anti-trafficking efforts during the first decade of the twenty-first century, so have collaboration and cooperation surfaced as key terms and organizing logics undergirding current anti-trafficking efforts; trends that necessitate scholarly attention and examination.
This research is in conversation with social scientists like Bernstein (2007a, b, 2010), Vance (2011), Kempadoo and Doezema (1998), Kempadoo et al. (2005), Doezema (2010), Cheng (2010), Parreñas (2011), Andrijasevic (2010), Plambech (2011), Shih (2009), and Marcus et al. (2012) whose works form of a body of research I would call critical trafficking studies. It bears noting that this brand of critical anti–anti-trafficking research is not new per se and has its antecedents in a sizeable archive of scholarly works that emerged in the late 1990s and throughout the 2000s, research that challenged the narrow definition, ill-conceived conceptual framing, and “ideological capture” of anti-trafficking discourses and policies (Chuang 2010; Agustîn 2007; Chapkis 2003; Kempadoo and Doezema 1998; Doezema 1998, 2010; Ditmore 2005; O’Connell Davidson 2006; Chang and Kim 2007; Weitzer 2007).
Despite their varied conceptual aims, the connective thread that conjoins these scholars’ projects is a shared commitment to understanding how anti-trafficking policies and efforts promote, “the exclusion, condemnation, or acceptance of particular migrants and workers” (Chapkis 2003: 924), with additional attention to the effects of anti-trafficking efforts on individuals who are identified and offered state protection, and the larger swath of irregular migrants, voluntary sex workers, and vulnerable populations who are not, but who are nonetheless subjected to anti-trafficking interventions. This work is broadly attentive to the ways in which interlocking systems of domination—whether racial, ethnic, economic, gendered, sexual, or cultural—give rise to human trafficking, and also considers how such systems impact trafficked and other vulnerable populations’ agency. Finally, this research considers the intended and unintended consequences of anti-trafficking efforts (Lindstrom 2007) and eschews facile presumptions that all anti-trafficking efforts are inherently “good” or helpful to the populations it aims to assist. In sum, what is “critical” about critical trafficking studies is its theoretical consideration of that which is elided, concealed, and obfuscated in dominant scholarly treatment of the issue. Given the growth of anti-trafficking multiprofessional efforts in recent years (Musto 2010), exploring the issue from this critical vantage point is useful in discerning whether anti-trafficking policies and campaigns in fact yield the social justice outcomes they purport to or whether they promote interventions that may instead be “harmful to their target populations” (Chuang 2010: 1710). To grasp why US-based anti-trafficking efforts have been refocused on US sex trade–involved youth, a brief overview of the history of trafficking discourses is necessary.
Voluntary sex work versus forced sex trafficking revisited
The discursive slippage between human trafficking, sex trafficking, and prostitution is well documented. Indeed, a substantial body of legal, social science, and feminist scholarship has traced the discursive collapse of human trafficking with voluntary and forced prostitution in the United States (Bernstein 2010; Chuang 2010; Doezema 2010; Weitzer 2007; Chapkis 2005; O’Connell Davidson 2006; Kempadoo and Doezema 1998). At the fore of well-worn scholarly exchanges is contention as to whether legalized, decriminalized, or regulated sex work increases instances of human trafficking. Koken (2010) finds that the debate “revolves around the question of whether sex work constitutes a form of voluntary sexual labor or involuntary sexual objectification” (29). A concomitant response to these debates has been the rise of two distinct research and ideological frames surrounding the issue: the anti-prostitution and pro–sex work or pro-rights positions (Koken 2010: 29). Whereas the anti-prostitution, “neo-abolitionist” perspective5 foregrounds prostitution as a form of violence against women (Farley 2007) and considers those engaged in sex work as exploited victims devoid of choice and agency (Jeffreys 2009; Barry 1995; Hughes 2002), the pro-rights position views sex work as a legitimate form of labor comparable to other service work and intimate labors (Brents and Hausbeck 2010: 16; Bernstein 2007b).
It is important to point out that these debates have evolved considerably over time and that the feminist and social science literature on prostitution and commercial sex reflects far more analytic diversity and nuance than is adequately captured by shorthand references to “anti-prostitution” or “pro-rights” perspectives (Koken 2010). Moreover, a burgeoning body of feminist scholarship has sought to complicate such simplified renderings by decoupling commercial sex and prostitution from human trafficking (Agustîn 2006; Saunders and Soderlund 2003; Kempadoo and Doezema 1998) and by linking these phenomena to broader economic processes and migratory flows (Koken 2010, 62; Bernstein 2007b; Limoncelli 2009; Andrijasevic 2010). For these scholars, focusing exclusively on whether prostitution is inherently exploitative or whether legalized or decriminalized prostitution facilitates human trafficking blunts exploration of a number of other critical factors that are taking place, chiefly the increased diversification and expansion of the global sex trade (Bernstein 2007b), the proliferation of intimate forms of labor (Boris and Parreñas 2010), and the growth of the transnational anti-trafficking rescue industry (Agustîn 2007; Shih and Bernstein 2012). Sustained and singular focus on the moral reprehensibility of all forms of sex work combined with unexamined empirical expectation that young adults are more poignantly traumatized from their involvement in the sex trade than their adult counterparts (Marcus et al. 2012) thus disallows a more rigorous examination of the “multilayered conditions of confinement” (O’Connell Davidson 1998: 28) that sex work–involved individuals experience as well as the agency they exercise in negotiating structural constraints and punitive anti-trafficking/anti-prostitution policies. Moving beyond recurrent debates and narrow analyses thus necessitates the deployment of a wider-angle analytic lens that links the expansion, diversification, and demand for commercial sex to broader economic and sociolegal processes (Bernstein 2007b). Only then might scholars be better equipped to cultivate more fine-grained analyses about how and to what extent choice, coercion, and circumstance impact individuals’ experiences within the sex trade (Boyd 2012) and in determining which types of interventions are most appropriate if and when support is needed.
Yet, despite the existence of scholarly work that challenges the ideological conflation of prostitution with sex trafficking (Ditmore 2005; Weitzer 2007), and that disputes the research findings—and the flawed methodologies on which they are based—that all forms of sex work are “inherently traumatizing” (Koken 2010: 44), neo-abolitionist perspectives and anti-prostitution sentiments have been widely embraced and “gone mainstream” in the United States (Chuang 2010).6 This mainstreaming has been made possible, in part, by increased attention to DMST and the gender and age of domestically trafficked/CSEC victims more generally. Focusing on victims’ age is strategic in that it sidesteps debate about the voluntary nature of prostitution. Simplified renderings about youth’s presumed victimization also delimits examination about how they understand their relationships with market facilitators (Marcus et al. 2012, 154), oft referred to as “trafficker pimps,” and whether current anti-trafficking efforts are best equipped to meet their needs. Weitzer has analyzed the effects of neo-abolitionism in a US context, finding that through their “consultative access,” neo-abolitionists have “shaped the terms” and direction of anti-trafficking policy (Weitzer 2007, 459; Musto 2009). Yet, neo-abolitionist consultative access has also institutionalized particular sentiments about prostitution and commercial sex, ideas that have brought police, victim advocates, and a host of stakeholders together in salient new ways around the shared contention that all forms of sex work are harmful, exploitative, and traumatizing and that the criminal and juvenile justice systems offer the most efficacious tools for responding to the problem.
In her groundbreaking essay, “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Antitrafficking Campaigns,” Bernstein (2010) finds that the “social justice as criminal justice” model has helped install multiple actors to the cause of human trafficking and congealed a neoliberal carceral agenda that relies on “punitive systems of control” (67). She additionally proposes that increased attention to domestic underage trafficking in the United States has “resulted in an unprecedented police crackdown on people of color who are involved in the street-based sexual economy—including pimps, clients, and sex workers alike” (Bernstein 2007a, 2010). Building on Bernstein’s work, I find that this “crackdown” on street-based prostitution not only uses traditional forms of enforcement such as incarceration, but also harnesses other modes of therapeutic and rehabilitative detention that rely on and harness neo-abolitionist perspectives (Aradau 2008: 2; Musto 2010). Whether diversion programs for “johns” (Bernstein 2007b) or the more recent introduction of specialized collaborative efforts to identify and assist victims of DMST, individuals enmeshed within the discursive anti-trafficking net in the United States—who include trafficked persons, voluntary sex workers, and the clients of sex workers—are increasingly subjected to a fascinating, though largely uninterrogated combination of law enforcement punishment combined with psychosocial efforts to rehabilitate them, a process I call “carceral protectionism” and which I have written at length about elsewhere (Musto 2010, 2011). Attention to carceral protectionist developments is useful for scholarly understanding of human trafficking in keeping track of the new and evolving variations of psychological and carceral entrapment to which vulnerable and “at risk” populations remain targets.
Methods and methodology
The in-depth interviews and ethnographic observations that anchor this article were first initiated as part of my dissertation research which comparatively investigated Dutch and US anti-trafficking efforts and the multiprofessional collaborations they have incited. While this project’s methodological orientation is decidedly empirical, it is less characteristic of ethnography in the classic, geographically bounded sense of the practice and more reflective of a hybrid, multisited, and deterritorialized variation (Merry 2006, 29). Between 2008 and 2012, I conducted thirty in-depth interviews with law enforcement agents (23), non-governmental organization (NGO) professionals (4) and social service providers (3) scattered throughout the Western and Midwestern region of the United States and whose work primarily takes place in urban environments. The analysis of interview data utilized a grounded theory approach (Glaser and Strauss 1967), and sought to identify the “cover terms” (Spradley 1979) that animate multiprofessional anti-trafficking efforts. Key themes from interviews were cross-referenced with archival materials and observational data collected between 2010 and 2012. Observations in tandem with interviews offered on the-ground opportunities for practicing what Laura Nader (1974) has described as “studying up.”
My interest in “studying up” (Nader 1974) is linked with a corresponding commitment to understanding the institutional spaces and professional practices that mediate the discursive and material terms upon which trafficked persons’ identification and protection are constructed. As a feminist scholar with a tri-part interest in human trafficking, sex worker’s rights (Shih and Bernstein 2012) and understanding carceral forms of protection, observations put into sharp focus the challenge of “studying up” and employing “scavenger” (Halberstam 1998) and “assemblage” methodologies that interweave and juxtapose (Oliviero 2013) theoretical orientations that seem at odds with one another. For example, maintaining a dual commitment to sex worker’s rights and the protection of individuals who experience labor exploitation underscored what oftentimes seemed like the incommensurability and bipolarity of mapping carceral protectionist developments while maintaining a commitment to tracing the discursive shared “alibis” (Spivak 2004) that authorize them. Yet, this is precisely what I sought to do, however methodologically cumbersome this proved to be. In the sections that follow, I offer snapshots gleaned from interviews and observations to demonstrate how these new forms of ideological, psychological, and carceral capture function and how they are deployed to assist individuals who are seen as vulnerable to domestic minor sex trafficking.
DMST on the rise
By focusing on young girls whose age and life experience render them incapable of full choice and consent, David limits his discussion to a particular group who come to stand in for the entire population of adult female, male, and transgender sex workers. Though the TVPA stipulates that minors cannot consent to prostitution and that they are victims of trafficking rather than criminals, David makes the more widespread assumption that all sex workers are similarly devoid of agency and that no one would consciously choose to work in such degrading environments lest they fall prey to false consciousness (Musto 2009) or exhibit psychological pathology. David’s comment highlight the extent to which US anti-trafficking efforts have emphasized all voluntary and forced prostitutes’ shared victimization and prioritized viewing sex trade–involved adults and youth as objects of pity rather than agents of political change (Gilmore and Marshall 2010: 667).
I worked vice for 14 years. My own personal opinion is that prostitution is never voluntary. Even if a person says it is, they’re not. There’s no way a 9- to-10-year-old little girl is going to say, “I’m going to grow up to be a prostitute.” That doesn’t ever occur. And whether it be the economics or whatever of the situation, that’s coercing them to do it. It’s not something they want to do. If they could make money doing something else they would. Basically it’s very degrading and there’s no way a person would do what they do for money. (Individual Interview 2009)
Alex’s narrative suggests that law enforcement recognition of victimization is bound to the victims’ age and specific kinds of suffering where gender and heteronormative expectations help inform which trafficked persons are identified and offered some degree of protection.10
The district attorney is looking to find young trafficked victims chained to beds. It’s hard to convince a jury that older women can be victims [of trafficking]. So it’s the young victims the DA is after and that’s who we look for. But most of our girls aren’t perfect victims. (Individual Interview 2009)
In addition to a newfound focus on age, attention to DMST has prompted law enforcement agents to revise their perceptions about sex trade–involved youth. Where once detectives such as David may have seen youth as criminals or juvenile offenders because of their engagement in commercial sex, they now encouraged to see them as victims of sexual abuse, exploitation, and trafficking. This shift in classification has prompted law enforcement to change their perceptions and mentality, a shift made possible by heightened training on trauma and post-traumatic stress disorder (PTSD), and through their collaborative relationships with social service providers and advocates. As one detective instructed fellow officers at a DMST training: “the job of police officers and advocates is to make the invisible visible. Youth have to make themselves victims before they can access services. … When I see levels of cooperation, I can move more in that direction. I see a victim” (Musto Field Notes May 2011).
Yet, in principle, youth who may have been trafficked for sex—like victims of international sex and non-sex trafficking cases—pose a challenge to law enforcement in that they do not self-identify as victims (Brennan 2008: 54). Police and their non-state partners are therefore instructed to look for examples of exploitation “off-line” by policing geographically well-known “tracks” where street-based prostitution is known to take place, and online by frequenting online classified ad sites such as Backpage.com and tracking down victims and suspected pimps’ Facebook pages and social media accounts. Police are also encouraged to look for signs of psychological trauma, physical scarring, and tattoo branding, and to inquire about prior histories of victimization to get a sense for what may have led youth into the sex trade.
For some law enforcement, holding youth in detention for their own protection is understood as the only option they currently have to protect them. For her part, Nina, an advocate who also works with sex trade–involved youth finds,
We have to focus on arresting victims as an option because right now we don’t have other options. I don’t necessarily like putting victims in jail. I recognize that’s what we’re doing. I’m incarcerating a victim. But I’m doing it for their best interest. Give me another option and we’ll do it! Law enforcement as a whole—we don’t necessarily want to incarcerate the victim, but we have to work with the tools we have. You give me another way, we’ll look at it. There have been some legislators and grassroots organizations that are looking to decriminalize juvenile prostitution. And I’m like “fine! I’m not opposed to it. But don’t do it until you give us another tool.” Because then I have nothing. Without that, I wouldn’t have a legal reason to hold them in detention for their best interest. (Individual Interview 2011).
There’s this conversation [among advocates] and belief around the idea that you have more leverage when you use the criminal justice system. And that is true. We put them into detention to keep them safe. … The safety net is the criminal justice system and juvenile justice system. Which is just really a tragedy. My hope is that in 3–5 years, the foster care system and new knowledge, capacity, and programming will exist to recreate that safety net (Individual Interview 2011)
Lisa and Nina’s narratives highlight how law enforcement efforts merge with social service efforts through the discursive frame of rehabilitation. Youth are arrested, detained, and processed through the juvenile justice system in order to help them. While Lisa acknowledges that incarcerating victims is not ideal, she nonetheless concedes that it is one of law enforcement’s only options. In a similar vein, Nina recognizes that advocates must leverage the criminal justice system. For her, the criminal and juvenile justice systems are among the only systems and safety net currently available that offer some modicum of protection for youth. While she finds the current “arrest youth to help them” model problematic, and although she deems it a tragedy from a philosophical perspective, in her everyday work, she recognizes its utility, particularly given the lack of resources, services, and supportive systems available to the youth she works with.
Holding youth in detention for their own protection may, at first glance, seem a reasonable proposition, especially given the lack of options that frontline law enforcement officers may face. It is also consistent with historical precedent where the criminal and juvenile justice systems have been leveraged under the auspices of assisting at risk and vulnerable populations, including girls. As Chesney-Lind and Irwin (2008) point out, institutionalizing girls to protect them has a long criminal justice history. Yet, such habits of institutionalization are punctuated by a parallel track record of exposing youth to gendered forms of victimization while institutionalized (173). That current talk of protecting sex trade–involved youth vis-à-vis the juvenile and criminal justice systems has not generated a commensurate level of concern or nuanced discussion about the longitudinal effects these interventions impose upon them is noteworthy. And despite law enforcement acknowledgement that no one really wants to arrest victims, some nonetheless suggest that it is invariably the best and only way to assist them.
Such views point to another trend—a theme reiterated by other law enforcement agents—which is that future anti-trafficking and anti-prostitution efforts require retooled criminal justice solutions rather than an end to enforcement-centered anti-trafficking interventions altogether. Put another way, although law enforcement may recognize that they cannot “arrest their way out of the problem,” and although law enforcement and their social service partners may acknowledge that detention may not be ideal, few suggested an end to this model altogether despite some scholarly and judicial concern that it might not actually work. Instead, most sought to reconfigure and augment the criminal and juvenile justice systems to include more rehabilitative social services.
Hybrid criminal and social justice rehabilitation efforts
Feminist criminologists like Chesney-Lind and Irwin (2008) have previously called for “gender-specific” criminal justice programs attentive to women’s and girls’ specific backgrounds and needs (162). Tyler’s reflection thus aligns with broader efforts to render criminal and juvenile justice facilities more gender sensitive, particularly for female cisgender offenders.
This kid needs to be in a locked facility. She needs help. If we put her in a locked facility where she is free to leave, it doesn’t help her. It can be a soft lockdown. You can have a secure facility that doesn’t feel like detention. You can have it look nice and have it involve counseling with security guards at the door (Individual Interview 2012, emphasis mine).
Yet, the softened and ostensibly more feminized procedures used by front-line police officers and their social service and NGO allies obfuscates the nascent incorporation of essentialist and essentializing gendered logics for expressly criminal justice purposes.
Though the inclusion of advocates is seen as encouraging a victim-centered and survivor-centered response to DMST, such moves remain decidedly enforcement centric since the ultimate goal of their presence is to promote the prosecution of trafficker pimps. Fleeting attention is paid to whether a victim’s cooperation in prosecutions may itself prove to be a traumatizing experience. Just as adult and international victims of trafficking may be too afraid and traumatized to testify against their traffickers because of threats made against themselves and/or their families, so might youth experience similar trepidation, though more in-depth research on youth’s participation in criminal prosecutions is needed. Of additional concern are advocates’ close collaboration with law enforcement and how this may perpetuate victims’ feelings of distrust. Since sex trade–involved youth may be channeled through multiple systems before they are identified by law enforcement, they may already be extremely distrustful of adults and not see cooperation with law enforcement or participation in trials as empowering or the pinnacle of justice. Instead, some victims’ previous exploitation and lack of protection by the same agencies now interested in offering them assistance may perpetuate distrust. Nina summarized the fraught relationship between youth and law enforcement thusly:
They have to sit before a jury. That’s where advocates come into play. You got these traumatized people. These are young girls, young women, for 2 years held against their will, beaten, raped, raped by trafficker, forced to have sex with all these men. How could they possibly sit there and tell their story? It’s only with those relationships with the victim advocate and the special agents that [trafficked victims] are able to sit there and come to court… that’s what makes it possible for them to testify. The main thing the NGOs do is keep that victim whole, so that that person can go and sit in court and look at their trafficker and say this is what this person did to me. (Individual Interview 2009)
Yet, Nina goes on to suggest that the way to lessen youth’s distrust of law enforcement is to bring in more advocates:
We can have an absolute epiphany as a criminal justice system and it’s still not going to undo the fact that the kids think a cop isn’t anything but a trick….so if you have a cop or law enforcement, it doesn’t matter how gentle or victim-centered or survivor-centered they’re trying to be. (Individual Interview 2010)
If you bring in an advocate to the police station, and get them inside, not in a uniform, not in an interrogation room, do all the same work we learned in the domestic violence and sexual assault community and really use it. Law enforcement, even the nicest ones and the ones with the best intentions, are not the ones that are the best to facilitate that healing; you have another choice…if you recover a young person who is in a prostitution situation, you treat it the same way you treat a child abuse or sexual assault investigation…And they’re in a setting that’s not about being bad or criminal or shamed. And then bring in advocates. (Individual Interview 2010)
Throughout the United States, ever more victim advocates and service providers have been brought into the fold of these anti-trafficking rescue operations. This trend has, for the most part, been widely embraced by police and advocates alike (Bernstein 2007a: 143) and is promoted as way to effectively practice a victim-centered and survivor-centered anti-trafficking approach. In the United States, it is not unprecedented for advocates to assist victims of other forms of gender-based violence such as sexual assault in negotiating the criminal justice system. Nevertheless, because sex trade–involved youth’s relationship to the juvenile justice system remains overwhelmingly punitive, and because the provision of services is largely contingent upon their level of cooperation with law enforcement, this creates particular challenges for advocates closely allied to it. Williams (2009) finds that whether offered services are or not, “once captured by the system, many youth may feel distrustful toward the adults protecting them… and that the use of threats of prosecution against them to encourage them to provide evidence … against trafficker pimps” can backfire (300).
For Williams (2009), threats of prosecution are not only ineffective, but may actually heighten victims’ reliance on sex-trade market facilitators since they may perceive them to be “the one person who can protect her from the system, incarceration” (300). Even programs designed to empower youth and provide them with a continuum of comprehensive and wraparound services are typically offered only after they are brought into the juvenile justice system. The close alliances between law enforcement agents, victim advocates, and social service providers may therefore perpetuate youth’s distrust in the system and encourage their reliance on market facilitators, though this is another area where more extensive research is needed.
Twin tales of abolition: what anti-trafficking neo-abolitionism can learn from prison abolition
Just as broader criminal justice trends to protect girls using “arrest, detainment, and commitment, and to funnel girls into services as a way of protecting them from victimization” (Chesney-Lind and Irwin 2008, 177) have proven ill-equipped to meet their specific needs—much less offer them adequate longitudinal protection—so too is arresting and detaining sex trade–involved youth in order to help them ineffectual. In the absence of research on youth’s perspectives of these anti-trafficking rescue and rehabilitative tactics and in light of research with adult sex workers suggesting that after years of criminal justice and rehabilitative interventions, many are not interested in being saved by the criminal justice system or “saved from the saviors” themselves (Seshu and Bandhopadhyay 2009: 13), questions abound about these interventions’ ability to offer comprehensive support and whether such protective efforts are not yet another variation of the softened, albeit still penalizing and punishing anti-trafficking fist (Chapkis 2005).
Critical trafficking scholars have consistently challenged law enforcement’s centrality, concentrated power, and broad discretion in leading anti-trafficking efforts. They have additionally illustrated how historic legacies of police violence, incarceration, and harassment of voluntary sex workers (Bernstein 2007b) have undermined anti-trafficking efforts, and how anti-trafficking “rescue raids” have been harmfully deployed against voluntary and forced prostitutes alike (Ditmore and Project Urban Justice Center 2009). From a different register, feminist anti-violence research has documented the limitations of the criminal justice system in stopping gender-based violence (Ptacek 2010: 10; Stemple 2009). Despite thirty plus years of feminist reform efforts, this research questions the mainstream feminist anti-violence movement’s overreliance on the criminal justice system to redress gendered violence, and emphasizes the countless ways in which women of color and immigrant women have been disproportionately exposed to state-sponsored violence committed by individuals who make up the carceral and law apparatus (Bernstein 2007a, 143), including “police, correction officials, and immigration officers” (Ptacek 2010: 6; Merry 2009).
Attention to domestic minor sex trafficking in the United States invites consideration of the advancement of twin, albeit contrasting visions of justice to address the issue. It is fascinating that the term “abolition” tracks so differently in the anti-trafficking and prison abolition movements. Both conjure up new imaginaries and visions of justice yet with decidedly different goals. For anti-trafficking advocates, neo-abolitionist interventions are mounted to reform an unresponsive state oblivious to the exploitative forced labor practices taking place in its own backyard. Yet, rather than focus on the intersecting racial, economic, and gendered root causes of the problem or the devastating effects wrought by neoliberal economic policies, this brand of abolitionism strives to bring the state back; namely by underwriting carceral expansion and expanding the reach of the criminal and juvenile justice systems through what Kantola and Squires (2012) describe as a form of “roll-out neoliberalism,” a process where state authority, control, and power are delegated to non-state anti-trafficking actors such as NGO advocates and social service providers. As illuminated by some of my research findings, advocacy and social service efforts have been leveraged to expand the anti-trafficking law enforcement apparatus and to affirm its underlying goals such as arrest, incarceration, and prosecution of traffickers.
Proponents of prison abolition offer a different vision of justice. Highlighting the ways in which criminal justice-oriented “tough law-and-order” efforts to address violence have helped fuel the growth of the prison industrial complex (Sudbury 2002: 71), prison abolitionists resist neoliberal carceral expansionism and underscore the short sightedness of utilizing punitive systems of control to undo intersecting systems and structures of domination (Sudbury 2002, 2010; Gilmore 2007; Davis 2003). As trafficking has taken an increasingly inward and domestic turn, it is not solely migrants who are the targets of anti-trafficking enforcement regimes, though threats of immigration detention and deportation continue to loom large for these populations (Kempadoo et al. 2005). Rather, sex trade–involved individuals in general and US-born youth in particular emerge as the most recent target groups to be dually caught within the anti-trafficking net and the ever expansive prison industrial complex (Sudbury 2002: 71). What is dismissed in mainstream discussions about domestic minor sex trafficking is the fact that sex trade–involved youth contribute the most recent group fueling carceral expansion (Sudbury 2002: 71).
It is at this critical juncture of anti–anti-trafficking studies where we can draw insight from critical trafficking, women of color, and prison abolition scholarship in imagining alternative paradigms of justice that do not rely on carceral logics or punitive anti-trafficking regimes (INCITE! Women of Color Against Violence 2006; Kempadoo et al. 2005). My research underscores the limitations of neo-abolitionist models of justice for DMST youth: one where arresting to assist and carcerally entrapping to empower is situated as the most legible paradigm for the achievement of justice itself. A close examination of neo-abolitionist anti-trafficking efforts further reveals that youth’s identification and protection as victims of trafficking would not be possible without first processing them through the criminal and juvenile justice systems. Moving forward, scholars and activists ought to cultivate new models of justice that do not rely on a detention-to-protection paradigm and which do not require sex trade–involved individuals to gain protection and obtain services by interfacing with the state and its allies in its most punitive form.
I have changed the names and institutional affiliations of the individuals who are cited throughout this article.
Though cisgender and transgender populations are involved in the sex trade, anti-trafficking efforts have overwhelming focused on cisgender girls under the age of 18. This article therefore focuses on anti-trafficking efforts targeted at cisgender girls and women. I draw upon Schilt and Westbrook’s (2009) definition of cisgender to “refer to individuals who have a match between the gender they were assigned at birth, their bodies, and their personal identity” (461). While this article focuses on cisgender trafficked girls, more research is needed to understand transgender and LGBTQ youth and adult’s experiences with commercial sex and treatment within the juvenile and criminal justice systems, respectively.
Backpage and Craigslist predating it have drawn the ire of some anti-trafficking groups for contributing to DMST and the commercial sexual exploitation of youth. At the time of this writing, some anti-trafficking groups and a collection of US attorneys general have accused Backpage of promoting sex trafficking and the commercial sexual exploitation of women and children through its adult services section. While touted as an important milestone in curbing the commercial sexual exploitation of youth, various commentators have suggested that shutting down Backpage will merely send traffic to other Internet and social networking sites that are off-shore and therefore more difficult for law enforcement to access. The push to shut down Backpage and other US-based adult services websites may therefore increase sex trade–involved individuals’ vulnerability by potentially making it more difficult for them to screen clients, though more empirical research is needed (New York Anti-Trafficking Network 2012).
Collecting data on trafficking is additionally challenging because trafficked persons and the individuals involved in facilitating their forced movement and/or involuntary labor comprise a hidden population (Musto 2009). Since trafficked persons seldom self-identify as victims, the number of individuals involved in trafficking is unknown, making representative sampling frames difficult. Of equal significance is the fact that trafficked persons closely resemble and are often confused with irregular migrants and voluntary sex workers. Since these groups are typically involved with other “stigmatized” and illegal behaviors, members of these groups may be unwilling to trust or talk to researchers about their experiences (Brennan 2008).
Neo-abolitionists view women’s participation in commercial sex as inherently and transhistorically exploitative (Outshoorn 2005; Jeffreys 2009; Hughes 2001; Pateman 1988; Barry 1979), and argue that all forms of prostitution are involuntary and a form of sex trafficking regardless of whether those who participate in the sex trade see their labor as voluntary (Alexander 1996; Kempadoo and Doezema 1998).
The mainstreaming of neo-abolitionist politics is illustrated by the New York Times’ Nicholas Kristof’s regular features on sex trafficking and the bevy of print and online commentators who now roundly spotlight stories of trafficked victims’ exploitation in the sex trade with regular aplomb. This mainstreaming has been possible thanks to increased focus on trafficked persons’ age.
Law enforcement commonly referred to youth involved in prostitution as “throwaway” kids. Throwaway kids connote youth whose parents are unable or unwilling to care for them. Such youth are also thought to have been channeled through various governmental systems, whether foster care, children and family services, or dependency courts. Future research on DMST should map youths’ trajectories though various systems to see how their experiences within them shape their vulnerability to trafficking and exploitation more generally. See also Linda M. Williams (2009).
Discussions of DMST were at times inflected with an inverted NIMBY drive to “help our own,” which underscores how discourses of trafficking have coalesced with nascent anti-immigrant sentiments. It further demonstrates how attention to DMST has exacerbated tensions surrounding domestic and international forms of trafficking. Some law enforcement further noted that more resources are needed to assist domestic victims and that international cases divert attention and resources away from situations involving US-born youth (Musto 2011).
My law enforcement interviewees’ reflections on adult prostitution provided some of the most illustrative examples of their own contradictory views about the issue. While many asserted that all forms of prostitution are unequivocally exploitative, others noted that sex workers employed in “higher end” sectors like brothels, massage parlors, and sex clubs demonstrate agency and can earn substantial money in these businesses. Yet despite their broad recognition of the varied cultural, socioeconomic, gender, and racial dynamics of the sex trade, most concluded that all individuals, whether children or adults, are victims.
His observation also accentuates the closed feedback loop that exists between police and prosecutors where particular expectations of age and vulnerability correlate not only with the identification of particular trafficked persons—in this case young girls trafficked for sex—but also which cases are given law enforcement priority, time, and resources for investigation and prosecution. Although some law enforcement agents and advocates interviewed for this study insisted it is critical to focus on prostituted youth “to save them” before it is too late, their identification efforts were tethered to forecasting which trafficking cases had a successful chance of being filed.
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