TRAFFICKING IN HUMAN BEINGS
BEYOND CONSENT, TOWARD SAFEGUARDING HUMAN RIGHTS: IMPLEMENTING
THE UN TRAFFICKING PROTOCOL
INTRODUCTION
In 2000, the UN adopted the Protocol to Prevent, Suppress and Punish Trafficing in Persons
(women and children) = The Trafficking Protocol.
- Consensus that trafficking in persons is an appropriate subject of international law.
- Division about defining and addressing the problem. Most definitions involve border
crossing and element of coercion but even those 2 features are contested.
Although the UN’ definition of trafficking uses gender neutral terms, the debate has centered
on women and children. Sex work occupies an important position in debates over trafficking,
but gender issues transcend sex work. So women, children and men become objects of
trafficking in varied contexts.
The debate over the definition of trafficking in women and sex work hinges on the issue of
consent. The aims of this article are to address the debate over consent and to broaden the
discussion to consider other economic and social factors that affect trafficking in persons and
legislation aimed to eradicate it. And will explore both sides of the consent debate and look to
other considerations in order to formulate a series of options for trafficking legislation.
THE UN TRAFFICKING PROTOCOL AND EFFORTS TO DEFINE TRAFFICKING
The U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children
The U.N. Trafficking Protocol was initially intended to apply only to women and children but
was expanded to include men. A primary point of contention during its drafting was whether
the definition of trafficking should include individuals who had consented to the process. The
final draft established a definition based on three components: the act (recruitment,
transportation, etc.), the means (threat, force, coercion, fraud, or abuse of power), and the
purpose (exploitation).
The Protocol specifies that the consent of a victim is irrelevant if any of the coercive or
deceptive "means" listed in the definition have been used. However, the text notes that terms
like "abuse of a position of vulnerability" remain vague. For children under eighteen, the
Protocol sets a lower threshold: they are considered trafficked if recruited or transported for
exploitation, regardless of the methods used.
The text distinguishes the Trafficking Protocol from the Smuggling Protocol. While trafficking
victims are viewed as "victims" requiring protection, smuggled persons are often referred to as
"migrants" or "objects" of smuggling. There is a gendered dimension to these distinctions:
trafficking is often stereotypically associated with women (portrayed as passive victims), while
smuggling is associated with men (portrayed as economic actors). This creates an artificial
divide that complicates cases—such as those involving Chinese men—who may meet the
criteria for trafficking but are categorized as "smuggled" due to their gender.
1
,Efforts To Define Trafficking
International organizations and NGOs have offered varying definitions of trafficking,
complicating international legal efforts:
- IOM: Focuses on illicit movement across borders combined with deceptive or coercive
profit-bearing activity.
- Human Rights Caucus: Does not rely on the illegality of border movement, focusing
instead on the purpose of holding a person in servitude or forced labor.
- CATW: Specifically targets all forms of sexual exploitation, including prostitution and
sex tourism.
- U.N. General Assembly (1994): Defined it as clandestine movement with the goal of
forcing women and children into oppressive situations.
The lack of consensus and the blurring of lines between smuggling and trafficking hinder
accurate data collection. An individual may start as a "smuggled" person but become a
"trafficked" person if they are later forced into exploitative labor.
Scholarly debate continues regarding the role of consent. Some researchers argue that
focusing exclusively on "worst-case" scenarios reinforces stereotypes of female purity and
dependence. They suggest that many individuals who end up in trafficking-like situations
initially consented to migrate or work in certain industries to overcome a lack of options at
home. These conflicting accounts maintain the debate over whether consent can exist within
the legal parameters of trafficking.
AUTONOMY ARGUMENTS FOR RECOGNIZING THE ABILITY TO CONSENT
Sex Work
Arguments for recognizing the capacity to consent in human trafficking legislation are rooted
in liberal theory, emphasizing free will, privacy, and freedom of contract. Liberal feminists often
view sex work as a tool for empowerment and female self-determination. They argue that
refusing to recognize prostitution as a legitimate profession is a form of sex discrimination that
denies women equal pay. Some advocates, such as Margo St. James, even view sex work as
the pinnacle of female liberation and a rejection of traditional gender stereotypes.
In the context of trafficking, autonomy advocates argue that individuals should have the free
choice to engage in sex work across borders, provided the decision is informed. While they
acknowledge that consent is impossible in cases of drugging or deception, they maintain that
the law should preserve a woman’s ability to commodify her own body if she chooses to do so.
Furthermore, scholars like Nora Demleitner and Ratna Kapur suggest that many women
migrate voluntarily for better economic prospects. They critique Western feminist perspectives
for often portraying non-Western women as "passive victims" or "suffering subjects," which
they argue is a paternalistic double standard that does not apply to Western women.
NGOs like the GAATW and the Human Rights Caucus have pushed for trafficking measures
that are not "paternalistically overprotective." They suggest replacing the word "victim" with
"trafficked person" and argue against definitions that automatically deem consent irrelevant.
Their concern is that such provisions subordinate women by depriving them of the ability to
work in any aspect of the sex industry. Finally, some scholars note that participation in sex
work can be influenced by cultural values, such as filial piety or specific traditional practices.
2
,Beyond Sex Work
The autonomy argument extends to all forms of labor, emphasizing that individuals make
choices to improve their quality of life. Migration, even when risky or categorized as smuggling,
can significantly raise the socio-economic level of families and communities. Decisions to
migrate are influenced by "push factors" like poverty, political oppression, and environmental
factors, but are seen by autonomy advocates as intelligent decisions to seek a better livelihood.
This perspective also highlights contradictions in labor regulation. Historically, protectionist
laws restricted female labor to maintain gender roles, contrasting with the "freedom of contract"
granted to men. Modern debates over immigrant labor show a similar pattern: some scholars
advocate for greater regulation of "blue-collar" domestic work while assuming "white-collar"
professionals are capable of making their own decisions. Autonomy advocates argue this is
unfair paternalism, noting that domestic workers are often just as informed about their work
conditions as legal professionals.
In conclusion, groups like the GAATW promote policy proposals that recognize a general
capability to consent to various forms of labor. They distinguish between fully informed adults
who freely choose to travel for work—even if that work is under abusive or exploitative
conditions—and those whose consent is voided by deception, coercion, or debt bondage.
Under this view, the right to consent to sex work is just one part of a broader right to choose
one's own labor. However, even if a person consents, the employer or trafficker remains liable
for any unlawful or exploitative conditions.
PROTECTIONIST ARGUMENTS AGAINST RECOGNIZING THE ABILITY TO CONSENT
Sex Work
The protectionist camp argues that consent should be considered meaningless in trafficking
law, drawing heavily from anti-prostitution discourse. This viewpoint posits that prostitution is
not an individual choice but an institution of male dominance and global exploitation.
- Subordination: Proponents like Catharine MacKinnon argue that prostitution
subordinates women and that "meaningful choice" is absent when women are driven
by economic survival or a history of abuse.
- Inherent Exploitation: Scholars such as Susan Tiefenbrun define sex trafficking as a
variant of slavery. From this perspective, women are viewed as "expendable
commodities," and because one cannot legally consent to slavery, they cannot consent
to trafficking.
- Vulnerability: Protectionists highlight that traffickers often control travel documents,
leaving women vulnerable to deportation or punishment if they seek help, thereby
stripping them of any remaining autonomy.
Beyond Sex Work
The text notes that it is often easier for the public to recognize the right to consent to difficult
labor conditions than to sex work. However, protectionists argue that the same economic and
social factors—poverty, illiteracy, and crises—render consent meaningless in non-sexual labor
as well.
3
, - Coercion Variants: Kelly Hyland identifies several ways women are exploited, including
false promises of legitimate jobs (nannies, waitresses) and being sold by family
members.
- Labor Exploitation: The text cites cases in the garment industry where workers endure
"slave-like" conditions. Protectionists argue that the pressures of debt and illegal status
make true consent impossible in these sectors, just as in sex work.
BEYOND CONSENT, TOWARD SAFEGUARDING HUMAN RIGHTS: OPTIONS FOR IMPLEMENTING
THE TRAFFICKING PROTOCOL
Critique and Ramifications of Autonomy and Protectionist Viewpoints
1. Autonomy Arguments
The autonomy perspective criticizes protectionism for being paternalistic and rooted in cultural
imperialism. However, the text notes several complications:
Class Disparity: There is a significant difference between well-educated advocates who view
sex work as liberation and poor women who enter it for food and survival.
Policy Risks: A legal focus on the "capability to consent" might be used by states to withhold
protection from real victims by claiming they entered the process willingly.
2. Protectionist Arguments
Conversely, the protectionist camp faces its own challenges:
- Victimization Narratives: Rigidly portraying all non-Western actors as "pure victims" can
deny women’s agency and promote "savior" metaphors.
- Restrictive Laws: Over-emphasizing protection can lead to harmful state policies, such
as those in Nepal or Iran, where women’s freedom of movement is restricted by
requiring a male guardian's permission.
- Double Standards: US law is cited as having a double standard where sex work is
automatically "severe" trafficking if any force is involved, while non-sexual labor must
reach the level of "near slavery" to receive similar protections.
Options for Addressing Traffic in Persons
1. Defining the Challenge
The fundamental challenge is recognizing women as both potential victims of trafficking and
autonomous actors. The U.N. Trafficking Protocol is criticized for leaving the "consent
question" open-ended, which allows states to mold the application of the protocol to their own
political objectives.
While the Protocol's ambiguity offers flexibility, the text suggests it lacks the clear standards
necessary to prevent uneven domestic applications. The goal for future legislation should be
to protect trafficked people without requiring a formal pronouncement on their abstract ability
to consent.
2. Alternative Visions
4
BEYOND CONSENT, TOWARD SAFEGUARDING HUMAN RIGHTS: IMPLEMENTING
THE UN TRAFFICKING PROTOCOL
INTRODUCTION
In 2000, the UN adopted the Protocol to Prevent, Suppress and Punish Trafficing in Persons
(women and children) = The Trafficking Protocol.
- Consensus that trafficking in persons is an appropriate subject of international law.
- Division about defining and addressing the problem. Most definitions involve border
crossing and element of coercion but even those 2 features are contested.
Although the UN’ definition of trafficking uses gender neutral terms, the debate has centered
on women and children. Sex work occupies an important position in debates over trafficking,
but gender issues transcend sex work. So women, children and men become objects of
trafficking in varied contexts.
The debate over the definition of trafficking in women and sex work hinges on the issue of
consent. The aims of this article are to address the debate over consent and to broaden the
discussion to consider other economic and social factors that affect trafficking in persons and
legislation aimed to eradicate it. And will explore both sides of the consent debate and look to
other considerations in order to formulate a series of options for trafficking legislation.
THE UN TRAFFICKING PROTOCOL AND EFFORTS TO DEFINE TRAFFICKING
The U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children
The U.N. Trafficking Protocol was initially intended to apply only to women and children but
was expanded to include men. A primary point of contention during its drafting was whether
the definition of trafficking should include individuals who had consented to the process. The
final draft established a definition based on three components: the act (recruitment,
transportation, etc.), the means (threat, force, coercion, fraud, or abuse of power), and the
purpose (exploitation).
The Protocol specifies that the consent of a victim is irrelevant if any of the coercive or
deceptive "means" listed in the definition have been used. However, the text notes that terms
like "abuse of a position of vulnerability" remain vague. For children under eighteen, the
Protocol sets a lower threshold: they are considered trafficked if recruited or transported for
exploitation, regardless of the methods used.
The text distinguishes the Trafficking Protocol from the Smuggling Protocol. While trafficking
victims are viewed as "victims" requiring protection, smuggled persons are often referred to as
"migrants" or "objects" of smuggling. There is a gendered dimension to these distinctions:
trafficking is often stereotypically associated with women (portrayed as passive victims), while
smuggling is associated with men (portrayed as economic actors). This creates an artificial
divide that complicates cases—such as those involving Chinese men—who may meet the
criteria for trafficking but are categorized as "smuggled" due to their gender.
1
,Efforts To Define Trafficking
International organizations and NGOs have offered varying definitions of trafficking,
complicating international legal efforts:
- IOM: Focuses on illicit movement across borders combined with deceptive or coercive
profit-bearing activity.
- Human Rights Caucus: Does not rely on the illegality of border movement, focusing
instead on the purpose of holding a person in servitude or forced labor.
- CATW: Specifically targets all forms of sexual exploitation, including prostitution and
sex tourism.
- U.N. General Assembly (1994): Defined it as clandestine movement with the goal of
forcing women and children into oppressive situations.
The lack of consensus and the blurring of lines between smuggling and trafficking hinder
accurate data collection. An individual may start as a "smuggled" person but become a
"trafficked" person if they are later forced into exploitative labor.
Scholarly debate continues regarding the role of consent. Some researchers argue that
focusing exclusively on "worst-case" scenarios reinforces stereotypes of female purity and
dependence. They suggest that many individuals who end up in trafficking-like situations
initially consented to migrate or work in certain industries to overcome a lack of options at
home. These conflicting accounts maintain the debate over whether consent can exist within
the legal parameters of trafficking.
AUTONOMY ARGUMENTS FOR RECOGNIZING THE ABILITY TO CONSENT
Sex Work
Arguments for recognizing the capacity to consent in human trafficking legislation are rooted
in liberal theory, emphasizing free will, privacy, and freedom of contract. Liberal feminists often
view sex work as a tool for empowerment and female self-determination. They argue that
refusing to recognize prostitution as a legitimate profession is a form of sex discrimination that
denies women equal pay. Some advocates, such as Margo St. James, even view sex work as
the pinnacle of female liberation and a rejection of traditional gender stereotypes.
In the context of trafficking, autonomy advocates argue that individuals should have the free
choice to engage in sex work across borders, provided the decision is informed. While they
acknowledge that consent is impossible in cases of drugging or deception, they maintain that
the law should preserve a woman’s ability to commodify her own body if she chooses to do so.
Furthermore, scholars like Nora Demleitner and Ratna Kapur suggest that many women
migrate voluntarily for better economic prospects. They critique Western feminist perspectives
for often portraying non-Western women as "passive victims" or "suffering subjects," which
they argue is a paternalistic double standard that does not apply to Western women.
NGOs like the GAATW and the Human Rights Caucus have pushed for trafficking measures
that are not "paternalistically overprotective." They suggest replacing the word "victim" with
"trafficked person" and argue against definitions that automatically deem consent irrelevant.
Their concern is that such provisions subordinate women by depriving them of the ability to
work in any aspect of the sex industry. Finally, some scholars note that participation in sex
work can be influenced by cultural values, such as filial piety or specific traditional practices.
2
,Beyond Sex Work
The autonomy argument extends to all forms of labor, emphasizing that individuals make
choices to improve their quality of life. Migration, even when risky or categorized as smuggling,
can significantly raise the socio-economic level of families and communities. Decisions to
migrate are influenced by "push factors" like poverty, political oppression, and environmental
factors, but are seen by autonomy advocates as intelligent decisions to seek a better livelihood.
This perspective also highlights contradictions in labor regulation. Historically, protectionist
laws restricted female labor to maintain gender roles, contrasting with the "freedom of contract"
granted to men. Modern debates over immigrant labor show a similar pattern: some scholars
advocate for greater regulation of "blue-collar" domestic work while assuming "white-collar"
professionals are capable of making their own decisions. Autonomy advocates argue this is
unfair paternalism, noting that domestic workers are often just as informed about their work
conditions as legal professionals.
In conclusion, groups like the GAATW promote policy proposals that recognize a general
capability to consent to various forms of labor. They distinguish between fully informed adults
who freely choose to travel for work—even if that work is under abusive or exploitative
conditions—and those whose consent is voided by deception, coercion, or debt bondage.
Under this view, the right to consent to sex work is just one part of a broader right to choose
one's own labor. However, even if a person consents, the employer or trafficker remains liable
for any unlawful or exploitative conditions.
PROTECTIONIST ARGUMENTS AGAINST RECOGNIZING THE ABILITY TO CONSENT
Sex Work
The protectionist camp argues that consent should be considered meaningless in trafficking
law, drawing heavily from anti-prostitution discourse. This viewpoint posits that prostitution is
not an individual choice but an institution of male dominance and global exploitation.
- Subordination: Proponents like Catharine MacKinnon argue that prostitution
subordinates women and that "meaningful choice" is absent when women are driven
by economic survival or a history of abuse.
- Inherent Exploitation: Scholars such as Susan Tiefenbrun define sex trafficking as a
variant of slavery. From this perspective, women are viewed as "expendable
commodities," and because one cannot legally consent to slavery, they cannot consent
to trafficking.
- Vulnerability: Protectionists highlight that traffickers often control travel documents,
leaving women vulnerable to deportation or punishment if they seek help, thereby
stripping them of any remaining autonomy.
Beyond Sex Work
The text notes that it is often easier for the public to recognize the right to consent to difficult
labor conditions than to sex work. However, protectionists argue that the same economic and
social factors—poverty, illiteracy, and crises—render consent meaningless in non-sexual labor
as well.
3
, - Coercion Variants: Kelly Hyland identifies several ways women are exploited, including
false promises of legitimate jobs (nannies, waitresses) and being sold by family
members.
- Labor Exploitation: The text cites cases in the garment industry where workers endure
"slave-like" conditions. Protectionists argue that the pressures of debt and illegal status
make true consent impossible in these sectors, just as in sex work.
BEYOND CONSENT, TOWARD SAFEGUARDING HUMAN RIGHTS: OPTIONS FOR IMPLEMENTING
THE TRAFFICKING PROTOCOL
Critique and Ramifications of Autonomy and Protectionist Viewpoints
1. Autonomy Arguments
The autonomy perspective criticizes protectionism for being paternalistic and rooted in cultural
imperialism. However, the text notes several complications:
Class Disparity: There is a significant difference between well-educated advocates who view
sex work as liberation and poor women who enter it for food and survival.
Policy Risks: A legal focus on the "capability to consent" might be used by states to withhold
protection from real victims by claiming they entered the process willingly.
2. Protectionist Arguments
Conversely, the protectionist camp faces its own challenges:
- Victimization Narratives: Rigidly portraying all non-Western actors as "pure victims" can
deny women’s agency and promote "savior" metaphors.
- Restrictive Laws: Over-emphasizing protection can lead to harmful state policies, such
as those in Nepal or Iran, where women’s freedom of movement is restricted by
requiring a male guardian's permission.
- Double Standards: US law is cited as having a double standard where sex work is
automatically "severe" trafficking if any force is involved, while non-sexual labor must
reach the level of "near slavery" to receive similar protections.
Options for Addressing Traffic in Persons
1. Defining the Challenge
The fundamental challenge is recognizing women as both potential victims of trafficking and
autonomous actors. The U.N. Trafficking Protocol is criticized for leaving the "consent
question" open-ended, which allows states to mold the application of the protocol to their own
political objectives.
While the Protocol's ambiguity offers flexibility, the text suggests it lacks the clear standards
necessary to prevent uneven domestic applications. The goal for future legislation should be
to protect trafficked people without requiring a formal pronouncement on their abstract ability
to consent.
2. Alternative Visions
4
