a Common Definition for Trafficking
The problem of trafficking in women has been addressed at the international,
regional and national levels. Before the creation of the United Nations
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, in October 2000, international treaties referred
to trafficking without defining or clarifying whether trafficking includes
all forms of sex work. For example, Article 6 of the Convention
on the Elimination of All Forms of Discrimination Against Women states "All
Parties shall take all appropriate measures, including legislation,
to suppress all forms of traffic in women and exploitation
of prostitution of women."
There was little agreement in the international community about
how trafficking should be defined. In early treaties, trafficking
was often synonymous with the trade in women for prostitution.
Later, the term "trafficking" was also used to describe
the smuggling of male and female migrants over borders for economic
gain. In the late 1990's, the Organization for Security and Cooperation
in Europe (OSCE) pointed out that
divergent definitions, there is a growing agreement that
the problem of "trafficking in human beings" involves
two key elements: recruitment/transport and forced labor
or slavery-like practices (actual or attempted) ... Moreover,
most experts agree that trafficking should be defined as
involving deception or coercion of some kind.
in Human Beings: Implications for the OSCE, ODIHR Background paper,
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children is the first modern consensus definition of the problem.
The Protocol defines "trafficking in persons" as "the
recruitment, transportation, transfer, harboring or receipt of persons,
by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position
of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a minimum,
the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery or practices similar
to slavery, servitude or the removal or organs." The Protocol also
explains that "the consent of a victim of trafficking in persons
to the intended exploitation . . . shall be irrelevant where any of
the means set forth [above] are established."
The Interpretive Notes (Travaux Préparatories) to the
Protocol clarify that a person in a "position of vulnerability"
refers to "any situation in which the person involved has
no real and acceptable alternative but to submit to the abuse
involved." The Protocol also explains that there will be
no defense of "consent" when a vulnerable person is
exploited through trafficking.
Finally, the Interpretive Notes are explicit that the Protocol deliberately
does not define the terms "'exploitation of the prostitution of
others" or "other forms of sexual exploitation," leaving
individual State Parties to define these terms according to national
law. During the drafting stage, much debate surrounded
how the Protocol would address the issue of work in the commercial sex
industry, and the language in the document represents a consensus that
enabled the Protocol to be widely ratified.
While the United Nations definition of trafficking is widely used,
there is still disagreement over the actions that constitute trafficking
in women. To be enforceable on a national level, laws must include a
clear definition of the prohibited behavior. On the other hand, NGOs
that engage in preventive and rehabilitative work with women, children
and communities do not necessarily need such a precise definition.
Amnesty International has identified several common characteristics
of trafficking, which may be useful to advocates who are working to
address the problem:
Women constitute a large proportion
of the overall number of people trafficked, that is transferred
within or across national borders from their place of habitual
The illicit movement of women
takes place at the hands of "traffickers," loosely
defined as people profiteering from organizing, carrying
out or otherwise facilitating the illicit transit of persons;
The majority of trafficked
women find themselves trapped in debt bondage, servitude
or slavery-like conditions as a result of being trafficked;
One of the reasons ultimately
driving trafficking in women is demand for their employment
- be it "voluntary" or "coerced" - in
the sex industry;
Any of the women trafficked
for work in the sex industry are subjected to human rights
abuses directly resulting from being trafficked;
There is evidence that the
fewest trafficking-related human rights abuses occur at
the women's places of habitual residence, while such abuses
often commence at transit locations, and they become more
prevalent at the final destination;
Trafficking in women reaps
huge financial profits for the traffickers and has, therefore,
seen an ever-increasing involvement on the part of international
From the PDF version, Human
rights abuses of women trafficked from countries of the former
Soviet Union into Israel's sex industry, Amnesty International,
18 May 2000, AI Index: MDE 15/17/00.
is there Debate over the Definition?
The debate over the definition of trafficking centers on the meaning
of the term "consent" in the context of commercial sex work.
The draft version of the United Nations Protocol to Prevent, Suppress
and Punish Trafficking in Persons originally contained two options for
defining "trafficking in persons." The first option defined
trafficking as an act requiring some level of force and/or coercive
action and drew a distinction between consenting victims and those who
do not consent. Under this definition, trafficking was equated with
forcible action against a woman for either "sexual exploitation"
or "forced labor." If there were no coercion, threats or physical
force used, the situation would be considered voluntary migration.
Human rights activists argued that when any form of coercion exists,
the person who has been trafficked could not possibly have consented.
Thus, human rights groups pushed strongly to have the phrase "with
or without consent" eliminated from the final version of the Protocol.
The issues of coercion and consent were especially controversial in
the context of sex work. At its core, the debate concerns whether adult
prostitution, when not coerced, should be accepted as a legitimate form
of work, as any other form of labor
On one side, a group of conservative religious and feminist organizations
argued that all forms of prostitution, in essence, exploit women. Thus,
a definition that would only outlaw "forced prostitution"
implies that some forms of prostitution are legitimate and it gives
sex traffickers a defense to prosecution if they can prove the victim
consented to become a prostitute. Other advocacy groups defend sex work
as a legitimate profession that some women chose freely.
Another group of national governments and NGOs submitted a second
option for defining trafficking. They advocated for a definition
of trafficking that included coercion as a necessary element for
trafficking for labor purposes, but would define migration for
sex work as "trafficking," without regard to whether
the sex worker was coerced and even if she voluntarily chose this
form of work. This definition made clear that prostitution, even
with the consent of the woman, would be considered trafficking.
The burden of proof would therefore be shifted from the victim
who no longer would have to prove she was forced or coerced into
In order to establish the Protocol, a compromise was ultimately reached
in which the consent of the victim is not relevant to whether the person
was trafficked. The Protocol, however, uses the phrase "sexual
exploitation" without a precise definition, leaving national laws
on sex work, which may permit regulated prostitution, to prevail.
Despite a single international definition, human rights advocates and
government institutions continue to discuss what should and should not
be considered trafficking. As trafficking is a complex issue, with interrelated
social and economic factors, it can often be advantageous to adapt one's
working definition of the problem to the specific task or project. While
legislation requires a precise description of prohibited behavior, it
would be useful to employ a more expansive definition when carrying
out outreach or rehabilitative work.
and Commercial Sex Work
The commercial sex industry takes many forms, and the relationship
between prostitution and trafficking for sex purposes is complicated.
Some women are deceived, coerced, drugged or kidnapped before being
trafficked for commercial sex purposes. These women have never before
worked as prostitutes and generally do not know what is happening until
they find themselves being forced to take clients. Such women may be
trafficked into work at strip clubs as waitresses or as dancers, which
then leads to situations of forced prostitution. Some women are trafficked
directly to brothels, where they are held against their will, coerced
Other women who have never before worked as prostitutes may suspect
that they will work in the sex industry if they arrange their employment
with a trafficker. Women who work as prostitutes in their home countries
also willingly travel to other countries because they believe they will
earn more as sex workers abroad.
Regardless of how women become involved in trafficking and prostitution,
the terrible conditions under which they are generally forced
to work violate their fundamental human rights.
Many women and girls are at the mercy of brothel owners and pimps
because they cannot speak the language or are unfamiliar with
local customs. Women are often trapped because they do not have
the legal documents necessary to travel beyond the border. Traffickers
also use threats of harm to the victim herself or to her family,
physical and sexual assault and imprisonment to control women.
Few women successfully escape from trafficking. If they do escape,
they may be caught by the traffickers, and the resulting punishment
can include severe injury or even death.
Women and girls may be trafficked into Internet pornography. Even some
seemingly legitimate enterprises, such as matchmaking organizations
may, in fact, sell women into a form of sexual servitude though the
mail-order bride industry. Women will travel to another country, believing
that they will be married and are then forced into prostitution when
According to Vanessa von Struensee "The Internet has become
a vast resource for promoting the global trafficking and sexual
exploitation of women and children. The information superhighway
is used to actively engage in the buying and selling of women
and children. Catalogs of mail order brides, commercial sex tours,
video-conferencing bringing live strip shows to the Internet:
it is all there, and worse. Because there is still scant regulation
of the Internet, the traffickers and promoters of sexual exploitation
have virtual carte blanche." From Globalized,
Wired, Sex Trafficking In Women And Children.
Factors of both supply and demand
promote the growth of trafficking, in particular into commercial
sex work. Male demand for the services of sex workers, combined
with male perceptions about woman's societal role, lead to exploitation
of women and girls. On the "supply" side, such factors
as women's weaker economic position, lack of real employment and
educational opportunities for women and girls, increased millitarization
of specific regions after conflicts and the expansion of transnational
crime push women toward work in the commercial sex industry and
to situations where they are at risk of being trafficked.
Violates Women's Rights
Apart from international law, found
in the Protocol against trafficking and UN conventions that explicitly
prohibit trafficking, other more general human rights norms are violated
when women are trafficked.
When recruiting women, traffickers typically charge inflated prices
for securing travel and employment documentation and transportation.
Once they have arrived in a destination country, women are then held
in a form of debt bondage while they attempt to pay these debts. In
many cases, women are held in sexual servitude. They may be locked into
rooms, apartments or brothels, unable to leave or contact help. If a
woman resists being prostituted, the trafficker may withhold food, assault
and/or rape her. Research on trafficking has even revealed cases of
traffickers killing women as an example to other victims in order to
exert control through terror.
Scholars and activists have identified a number of human rights violations
that may occur in the context of trafficking. For example, in a trafficking
case, as described above, the following civil and political rights may
be violated: the right to personal liberty and autonomy, the right to
bodily integrity, the right to freedom of movement and expression, freedom
from torture or other cruel or inhuman treatment, the right to be free
from discrimination and the right to be free from forced labor and slavery.
Trafficking may also violate a woman's social, cultural and economic
rights, such as health, free access to education and information, and
favorable working conditions, including just compensation and reasonable
Due to its transnational nature, at some level trafficking impacts
virtually every country. Organizations that study migration patterns
and trafficking classify countries as either "source,"
"transit" or "destination." In simple terms,
the country of origin of a trafficking victim, the country where
traffickers recruit women and girls, is known as a source country.
Traffickers frequently move women through intermediary countries,
often for extended periods when the women may be forced to work.
These countries are known as transit countries. Traffickers chose
transit countries based on their geographical location (near a
border or a port), their weak border controls, corruption of immigration
officials or their affiliation with the organized crime groups
that are involved in trafficking. Transit countries generally
have access to the destination country. Destination countries
are those that receive trafficking victims. Destination countries
are generally economically prosperous because they must be able
to support the commercial sex industry.
A report by the British Home Office explains the relationship between
source, transit and destination countries in this way: "Women are
trafficked into countries that have existing sex industries which can
absorb them, and are often trafficked from countries where there is
an indigenous sex industry. They are possibly trafficked through one
or more intervening 'transit' countries." From Stopping
Traffic: Exploring the extent of, and responses to, trafficking in women
for sexual exploitation in the UK, 2000, Liz Kelly and Linda Regan.
The classifications become complicated because many countries fit more
than one category; they may serve as transit counties along a trafficking
route and may also receive trafficking victims as a destination. The
Project, a legal human rights research institute based at the Johns
Hopkins University School of Advanced International Studies in the U.S.,
has created a number of maps of trafficking routes that illustrate the
trafficking patterns between source, transit and destination countries
around the world.
It is vital that source, transit and destination countries cooperate
and develop joint strategies to combat trafficking. According to the
U.S. Department of State Trafficking
in Persons Report for 2002, "Destination countries must work
with transit and source countries to stem the flow of trafficking; source
countries must work not only to prevent trafficking, but to help with
the reintegration of trafficking victims back into their home societies."
Trafficking violates international human rights standards and may
also violate national immigration laws.
Trafficking in women, forced migration, and alien smuggling are
offenses, but all constitute illegal immigration. In destination
and transit countries, it is the police and the immigration service
are most likely to come into contact with trafficking victims.
Indeed, when cases of trafficking enter national legal systems,
it if more often
the case that the victim is charged with a violation of immigration
law than for the trafficker to be criminally prosecuted.
Victims of trafficking, as well as other forms of illegal migration,
are in vulnerable and insecure situations and are at risk for further
exploitation. Immigration legislation should distinguish between
victims and other migrants as well as provide for prosecution of
individuals who aid and facilitate the trafficking of women. The
and Refugee Protection Act of 2001, for example, recognizes trafficking
in persons as a criminal offense and provides for a maximum penalty
of $1,000,000 and life imprisonment. Immigration officials, including
border guards, customs officials and adjudicators, also require specific training on the dynamics of
Because of their illegal immigration status, most victims fear reporting
any abuse to the authorities. The fear of deportation
is very real. Trafficking victims often do not want to risk being returned
to their home country, where they may face continued economic hardship
as well as social stigmatization. Victims may also fear retaliation
by the traffickers, either against themselves their families. Traffickers
will frequently use threats of retaliation to control women who have
This situation not only represents a serious danger for the victim
but also impedes the ability of law enforcement to address the problem.
When victims are hidden or deported when the authorities learn of their
illegal status, they are unable to cooperate in the prosecution of the
criminals involved in the trafficking. The European Union, as well at
national governments, have recognized the need to grant victims of trafficking
special protection because of their crucial role in the investigation
and prosecution of trafficking cases.
Belgium, Italy, the Netherlands and Spain have all amended their domestic
legislation to aid the reintegration of trafficking victims and
to enable victims to cooperate with authorities. The victims are
granted residency permits as well as housing and medical assistance.
The European Union issued a proposed Council Directive in February
2002 that would create a temporary residency permit for trafficking
victims in any of the EU member states. The victim would be eligible
for aid (housing, medical and psychological case and social welfare)
and protection from deportation.
In the United States, the Victims
of Trafficking and Violence Protection Act of 2000, creates
two new visa categories which do not confer immigrant status but
allow victims of trafficking to remain in the U.S. during criminal
prosecution and to receive certain benefits and services. The
T and U visas are discussed in more detail in the Trafficking:
Law and Policy section.
Victims' advocates agree that in order to combat trafficking in women,
victims must cooperate as witnesses in criminal processes. Women's rights
activists, however, also stress that effective witness
and victim protection is crucial and should not be superseded by
the desire to prosecute. As in the case of other forms of violence against
women, such as domestic violence, a victim's personal interests may
be at odds with the interest of the state prosecutor. Women victims
of violence must be allowed to make personal decisions about their own
safety. Victims who are unwilling to cooperate in legal proceedings,
for any reason, may be ineligible for protection and services in some
countries. Much needed economic, housing and medical services for victims
should not be predicated on a women's agreement to participate in investigation
and prosecution of traffickers.