Sex Trafficking and the Sex Industry: The Need for Evidence-Based Theory and Legislation

Article excerpt

I. INTRODUCTION

Under U.S. law, sex trafficking is defined as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act." (1) To be punishable, the offense must involve a "severe form" of trafficking involving (1) a person under age eighteen who has been induced to perform a commercial sex act or (2) an adult who has been so induced by the use of "force, fraud, or coercion." (2) Adults who sell sex willingly, with some kind of assistance, are not considered trafficking victims under U.S. law. (3) Trafficking that involves underage persons or adults subjected to force, fraud, or coercion is a serious violation of human rights, and the growing international awareness of the problem and efforts to punish perpetrators and assist victims are welcome developments.

But there is also a parallel story--a robust mythology of trafficking. While no one would claim that sex trafficking is fictional, many of the claims made about it are wholly unsubstantiated. This Article offers a critique of the paradigm responsible for this mythology, a perspective that has become increasingly popular over the past decade. This oppression paradigm depicts all types of sexual commerce as institutionalized subordination of women, regardless of the conditions under which it occurs. (4) The perspective does not present domination and exploitation as variables but instead considers them core ontological features of sexual commerce. (5) I will contrast this monolithic paradigm with an alternative--one that is evidence-based and recognizes the existence of substantial variation in sex work. This polymorphous paradigm holds that there is a broad constellation of work arrangements, power relations, and personal experiences among participants in sexual commerce. Polymorphism is sensitive to complexities and to the structural conditions shaping the uneven distribution of workers' agency and subordination. Victimization, exploitation, choice, job satisfaction, self-esteem, and other factors differ between types of sex work, geographical locations, and other structural conditions. Commercial sexual exchange and erotic entertainment are not homogeneous phenomena. (6)

A growing number of researchers have challenged the oppression model's claims, yet their criticisms have yet to gain serious attention from American lawmakers. This Article (1) analyzes the claims made by those who embrace the oppression model, (2) identifies some legal and policy implications of this paradigm, and (3) offers an evidence-based alternative. (7) The analysis pertains to both sex trafficking and to sexual commerce more generally.

II. THE OPPRESSION PARADIGM

Many of the leading proponents of the oppression paradigm are affiliated with organizations committed to eradicating the entire sex industry, such as Prostitution Research and Education, Standing Against Global Exploitation (SAGE), Stop Pom Culture, and the Coalition Against Trafficking in Women (CATW). (8) What unites them is their staunch advocacy of the oppression paradigm and political commitment to prohibition of all sexual commerce and adult entertainment.

Oppression writers have been roundly criticized for violating standard canons of social science inquiry and for viewing sex work through a monochromatic lens. (9) Despite this criticism, proponents rigidly adhere to the central tenets of their paradigm, even when confronted with compelling counter-evidence. (10) Moreover, most oppression writers restrict their citations to writings of like-minded authors and ignore research findings that contradict the pillars of their paradigm. (11) Such inconvenient findings are plentiful. (12) Scientific advancement depends on researchers' due diligence in weighing findings and arguments that challenge their own: It is standard practice to situate a study within the related scholarly literature. Oppression writers' neglect of relevant research is a radical departure from conventional scholarly writings. …