Wednesday, August 17, 2011

New bill shines a light on how the law looks at sex trafficking

A graphic showing global human trafficking patterns, with specific focus on women and children. Julietta Hua discusses a new anti-trafficking law and its implications for mainstream assumptions. Image from Creative Commons.

Assistant professor of women and gender studies at San Francisco State University

With the implementation of Senate Bill 1037 beginning in January, Illinois will add to its existing anti-trafficking laws to extend protections to victims. The bill will give persons arrested for prostitution an opportunity to vacate the charge if they can prove they are victims of trafficking. In many ways an outcome of victims-rights advocacy that has called for better attention to the ways prostitution charges often unfairly criminalize individuals who are better served by measures that are not solely punitive, the Illinois bill demonstrates the ways human trafficking discourses have shifted the lenses through which law enforcement approaches sex work, prostitution, and labor exploitation.

On the other hand, many scholars have extensively researched the ways anti-trafficking discourses also continue to perpetuate what UCLA's Jennifer Musto calls a “carceral framework,” which further criminalizes sex work by so narrowly defining sexual trafficking that most persons whose conditions might otherwise be exploitative and abusive are not recognized by law enforcement officials as victims. In fact, even with the addition and amendment of laws designed to open up the possibility of seeing trafficking victims where before such persons were only seen as criminals, the fundamental assumption of what Wendy Chapkis outlines as the worthy and innocent victim versus the criminal prostitute is still at work in framing the conversation.

Thus efforts like the Illinois bill designed to extend protections to potential victims of trafficking provide an opportunity to consider the ways the law works to establish social definitions of “the criminal” and criminality. Additionally, it is an opportunity to consider the law as both shaping and shaped by the social and cultural context within which laws are instituted.

Laws do more than describe criminal behavior. They help define criminality—what and who constitutes the criminal. We should be attentive to how laws reflect and shape social and cultural assumptions about acceptable (and normative) behaviors as well as how the enforcement of laws can link such assumptions with specific geographies, cultures, and physiologies. For example, at immigration entry points in the late 19th century, anti-prostitution laws worked to help define deviant sexual behaviors and explain and justify such behaviors by linking them to measurements of the body, other visual cues and beliefs about cultural differences. As immigration scholars like Ethnie Luibheid have explained, late 19th century immigration officials on the west coast, who believed there was a Chinese custom to bind wealthy women’s feet, would use their beliefs to sort Chinese female immigrants into legitimate wives (who had bound feet) or prostitutes.

The fact that a woman had legal proof of marriage was not a guarantee that the woman would be accepted as a wife. Wide-held social and cultural attitudes in the late-19th century United States that understood Chinese-ness as tied to immoral sexual behaviors (like holding multiple wives) meant that enforcement of anti-prostitution laws at US borders also helped shape and were shaped by parallel and overlapping projects in “science” and medicine, where deviant sexualities were linked to physical features (like measurements of sexual organs). Criminality in this context was tied to the visible and embodied difference of Chinese-ness as well as class assumptions, and the various practices that developed around enforcement of the law created, even as they catalogued, definitions of criminal versus normative behaviors and physiologies.

As such, we should invite opportunities to examine the law not just for how well it “works,” but for what it says about our assumptions, investments, beliefs and values.

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