Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Source
Documents
Additional
Readings
A
Few
Books
14. Kempadoo,
Kamala,
et
al.
Trafficking
and
Prostitution
Reconsidered:
New
Perspectives
On
Migration,
Sex
Work,
and
Human
Rights.
Boulder:
Paradigm
Pubishers,
2011.
15. Soderlund,
Grechen.
Sex
Trafficking,
Scandal,
and
the
Transformation
of
Journalism,
1885-1917.
Chicago:
University
of
Chicago
Press,
2013.
16. Kapur,
Ratna.
Migrant
Women
and
the
Legal
Politics
of
Anti-Trafficking.
Available
for
free
download
here:
http://www.academia.edu/3423199/Migrant_women_and_the_legal_politics
_of_anti-trafficking_interventions
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Gretchen Soderlund
By the end of the month, more than half of the women had escaped from
the shelter. What does it mean that so-called sex slaves often thwart
rescue attempts? Is it intellectually and ethically responsible to call every
instance of a practice slavery when many women involved demonstratively reject the process of protection and rehabilitation, and when they
escape from supposed rescuers who aim to force them out of a life of
prostitution (captivity) and into a life of factory work or employment
in the low-paying service sector (freedom)?
This article analyzes recent developments in U.S. anti-sex trafficking
rhetoric and practices. It traces how legal frameworks to combat trafficking
67
have been redeployed in the context of regime change from the Clinton
to Bush administrations. At the time of writing, the United States is
fighting two concurrent wars: one a declared war in Afghanistan against
the Taliban and the other an illegitimate occupation of Iraq committed
under false pretenses. In such a context, combating the traffic in women
has become a common denominator political issue, uniting people across
the political and religious spectrum against a seemingly indisputable act
of oppression and exploitation. It is commonly assumed that only the
most callous would criticize efforts to free the worlds sex slaves from
the clutches of organized and brutal trafficking networks. Yet I hope to
demonstrate here that those who seek a more humane and equitable world
should in fact be the first to interrogate and critique the premises underlying many claims about global sex trafficking, as well as the U.S.-based
efforts to free sex slaves justified by these claims.
This analysis focuses on one increasingly influential node within a
complex and diverse transnational movement characterized by activism
and policy creation at every level. While its scope is limited to the U.S.
context, anti-trafficking and anti-prostitution campaigns are by no means
unique to this country. Like other social movements, efforts to regulate
commercial sex possess different histories, meanings, and political agendas that are linked to the distinct national and local contexts in which
they emerged (Gerull and Halstead 1992; Kuo 2002; Outshoorn 2004;
Pearson 2002), even as current policy implementation on the national
level is often deeply informed by and becomes the object of transnational
debates and global activism (Bernstein 2005/in press; Gal 2003; Keck and
Sikkink 1998; Kempadoo and Doezema 1998).
The United Nations (UN) is the largest global regulatory institution
to declare global sex trafficking a violation of womens human rights.
However, in the last three years the United States has positioned itself
as an equally significant force in the anti-trafficking arena. Combating
sex slavery has become a key Bush administration priority and its most
championed humanitarian cause. The Department of Justice under John
Ashcroft has spent an average of 100 million dollars a year to fight trafficking domestically and internationally, a sum that overshadows any
other individual nations contributions to similar efforts.2 The current
administrations attempt to assert global moral leadership on this issue
by staging interventions in any country it deems weak on trafficking sets
it apart from other countries. In what follows I explore the genesis and
hidden political dimensions of current U.S.-based anti-sex trafficking initiatives. I trace the process through which sex trafficking came to occupy
its current position in the Bush administrations pantheon of international
causes by examining how social movements and protectionist media discourses have produced sex slavery as an object worthy of governmental
intervention.
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Gretchen Soderlund
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Gretchen Soderlund
from which women of different cultural and social contexts can speak
(Kapur 2002).
Violence against women dominated the campaign for womens rights
at such international conferences as the 1993 Vienna World Conference
on Human Rights and the 1995 Beijing Conference on Women. Within
this already narrowed focus, sex trafficking and prostitution surfaced as
the most egregious form of violence against women imaginable, and thus
trafficking emerged as the centerpiece of the campaign. However, despite
its high profile, sex trafficking proved to be a highly controversial issue
among feminists and human rights activists. If debates surrounding
pornography exposed significant political fault lines among feminists in
the 1980s, controversies over sex trafficking served that function in the
1990s. Many activists utilizing a violence-against-women framework in
their campaign for womens rights were uncomfortable about the framing
of sex slavery as the lynchpin of womens oppression. Activists who saw
campaigns against sex trafficking as a step on the path toward eradicating all forms of sexual commerce clashed with those who viewed forced
trafficking as an exploitative practice that could encompass but was
ultimately distinct from the commercial sex act itself.
As the trafficking debates raged, the two sides further developed
their positions on the issue. While the former perspective adhered to a
strict abolitionist model considering all prostitution sex slavery and
thus by definition violence against women, the latter camp could itself
be divided into those who believed forced sex trafficking was a worthy
object of political intervention and those who felt intensive campaigns
against trafficking necessarily undermined efforts to secure sex worker
rights (Doezema 1998; Kempadoo and Doezema 1998). Groups like Coalition Against Trafficking in Women (CATW) argued that trafficking was
a unique and particularly abhorrent sexual violation of mainly female
victims (CATW-Asia Pacific 1996; Barry 1979; Raymond and Hughes
2001). Other groups, particularly the Global Alliance Against Trafficking in Women (GAATW) and the Network of Sex Work Projects (NSWP)
argued that the phenomenon rested along a continuum of forced migrant
labor (Kapur 2003; Kempadoo and Doezema 1998; Saunders and Soderlund
2003; Ulcarer 1999; Wijers and Lap-Chew 1997). For some activists the
trafficking of women into the sex industry is morally wrong and exploitative because of its association with commercial sex, while for others
forced prostitution is inseparable from global inequities of capital and
labor that leave women in the global economy with few viable options
aside from sweatshop labor or the typically more lucrative sex industry
work. From this latter perspective, an obsessive focus on sex trafficking
ultimately distracts from drawing connections between gendered poverty and forced prostitution and presumes a moralistic approach that is
unlikely to consider poverty, hunger, and low wages as equally pressing
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77
this oil-rich region (Shifter 2004, A19). This case suggests that the tools
anti-trafficking laws put at the administrations disposal can be used to
further other geopolitical ends and are inseparable from the larger arena
of international politics. Indeed, in recent years the TVPA has been used
to justify both continued economic sanctions in Cuba and the continued
freeze on diplomatic relations in North Korea.
78
Gretchen Soderlund
79
campaigns: this 21st century version of slavery has not only grown in
recent years but is especially diabolicalit poisons its victims, like Srey
Mom, so that eventually chains are often redundant (2005, A15). The
false consciousness thesis, which has stalked sex workers since they
became configured as victims (as opposed to public nuisances), continues
to be evoked with equal enthusiasm today as a paradigm-saving technique, one that encourages activists to dodge potential pitfalls in their
own interventionist strategies.
80
Gretchen Soderlund
that have curtailed all funds to nonabolitionist groups that interface with
sex workers.
In 2003, as part of the Trafficking Victims Protection Act Reauthorization Act, the administration announced that the U.S. Agency for International Development (USAID) would stop funding any group perceived
as encouraging sex work. The new policy stated that groups advocating
prostitution as an employment choice or which advocate or support the
legalization of prostitution are not appropriate partners for USAID antitrafficking grants or contracts (Hill 2003). This rule meant that nonabolitionist groups doing AIDS/HIV outreach or offering other harm-reduction
services to sex workers were no longer eligible for funds from USAID.
Among the international programs partially funded by the United States
was a sex workers literacy class run by Thailands Empower, a group that
since 1985 has advocated for the rights of women in the entertainment
industry in that country.
Policies surrounding the Global Gag Rule led many activists to worry
that sex worker empowerment projects operating in conjunction with
AIDS outreach programs would be next in line to be axed. Indeed, in
2003 the Bush administration passed a Global AIDS bill that prohibits
international agencies from receiving funds unless they explicitly sign
an oath that they do not support or condone prostitution in its many
manifestations and that no funds will be going toward harm prevention
among sex workers (Saunders 2004). In a Seattle Times editorial titled
Fight AIDS, Of Course, But Also Fight Prostitution, TVPA enforcer
John Miller states
the worldwide fights against AIDS and slavery are both worthwhile, uphill
battles. However, well intentioned people seeking to limit the spread of AIDS
in at-risk populations, especially in the commercial sex industry, often ignore
a larger challenge: helping to free the slaves of that industry. (2004)
81
and assistance extend only to those sex workers who are repentant and
can be held accountable for their sins. By offering this dubious yet morally rigorous aid to sex workers, abolitionists can comfort themselves
that they were not responsible for any deleterious effects caused by their
elimination of harm-reduction programs. The abolitionist logic seems to
run: We did offer them a way out, after all.
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Gretchen Soderlund
83
criminalizes, or ignores those who are seen as complicit in their victimization. Not only are security regimes in the business of offering an illusory form of security to particular subjects, but they often engage in the
production and provocation of their own enemies to justify their actions.
This security is underwritten by a disavowal of autonomy or agency in
favor of a childlike dependency on typically masculine protectors. As
Young emphasizes, such dependent citizenship confers few privileges
other than offering shelter from a scary, threat-filled outside world.
84
Gretchen Soderlund
Acknowledgment
The author thanks Carrie Rentschler, Carol Stabile, Dan McGee, and her
anonymous reviewers for their assistance with this article.
Notes
1. Empower states that its members abhor the trafficking of any persons; forced
labor including forced sex work; and the sexual abuse of children, whether for
commercial exploitation or not yet it also lambastes groups that have little
or no experience on issues of migration, labor, sex worker or womens rights
and have been created to take advantage of the large sums of money available
to support anti-trafficking activities (1).
2. The federal government allocated 91 million dollars to the Department of
Justice to fund its anti-trafficking efforts in FY 2003, a figure that increased to
120 million dollars in FY 2004 (see its Report to Congress, May 1, 2004).
3. For a detailed account of the coalition building that went into passing this
Act, see Allen Hertzke (2004). A problem with his account, however, is that he
adopts the language and perspective of his objects of study, using their rhetoric to account for the opposition to the TVPA in the Clinton administration
and effectively writing sex worker rights proponents out of the debate. In this
sense, he contributes to the extensive retelling of the history of the trafficking
debates that is currently underway.
4. Linda Smith considers her group, Shared Hope International, the founder and
leader of the War Against Trafficking Alliance (WATA).
References
Barry, Kathleen. 1979. Female Sexual Slavery.
y New York: New York University
Press.
Benedict, Helen. 1992. Virgin or Vamp: How the Press Covers Sex Crimes. New
York: Oxford University Press.
Bernstein, Elizabeth. 2005/in press. Border Wars: Migration and the Regulation
of Sex-Work in the New Europe. In Trafficking and Its Discontents, eds. SeaLing Cheng and Carole Vance. Forthcoming.
Bunch, Charlotte. 1990. Womens Rights as Human Rights: Towards a Re-Vision
of Human Rights. Human Rights Quarterly
y 12:48698.
85
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economic exploitation of the city's wage-earning women. In their continued work with the city's female laborers, the Laidlaws
and other suffrage leaders enthusiastically supported Rose Livingston's antiprostitution work in Chinatown in the hopes of
ending the sexual exploitation of urban working women.
Despite the Laidlaws' strong commitment to social reform and suffrage, the inclusion of Rose Livingston and her
antiprostitution work posed certain challenges from the beginning. According to the press, the Laidlaws learned about
Livingston and her work after two suffragettes, Cornelia Swinnerton and Florence Irwin, happened onto Livingston as she
was trying to stop a woman from committing suicide in a Greenwich Avenue basement apartment. The two suffragettes
immediately took an interest in Livingston and introduced her to the Laidlaws, who became instant supporters of her mission.
James Laidlaw then worked with two other social reformers--Lawrence Chamberlain and Rev. Edward Sanderson in
Brooklyn--to establish a Mind to support Livingston's work. (17) However, as Livingston emerged as a spokesperson for the
suffrage cause, questions about her background, particularly around her claims to be an ex-prostitute and social reformer,
surfaced in the press and among municipal leaders.
The origins of Rose Livingston remained shrouded in mystery and controversy throughout her reform career, making her
vulnerable to critics who doubted her stories of abduction and coerced prostitution and disapproved of her confrontational
tactics. One internal memo circulating within New York's suffrage circles provided a brief sketch of Livingston with
biographical details that were often repeated during her public lectures. The memo recounted that Livingston had been
abducted and brought to New York City's Chinatown at the age often and had remained the prisoner for the next ten years of
a Chinese man who was both her jailor and her abuser. She had given birth to two children, one at the age of twelve and the
other at the age of fifteen. A local missionary worker learned of her plight and helped to facilitate her flight. After a harrowing
escape that almost cost Livingston her life, the missionary led her to the home of a minister, where she rid herself of an
entrenched drug habit and experienced a religious conversion. (18)
Her detractors, including the mayor and police commissioner of New York City following the alleged 1912 assault incident,
often challenged the validity of these details of Livingston's life and cast aspersions upon her work as a social reformer. In
response to Harriet Laidlaw's complaints over the police department's handling of the incident, for example, Mayor Gaynor
replied: "My reports concerning her are quite different. I shall not put a police guard over here. I doubt if her conduct in
Chinatown is of any service to anyone." (19) And to suffragette and historian Mary Beard, Gaynor added further that "my
police reports strongly indicate that she may not be doing quite so much good there as some suppose." (20) In her own
defense Livingston never placated her critics by proving any detail of her captivity story as a prostitute imprisoned in
Chinatown but rather spoke of her mistreatment at the hands of procurers and corrupt police officers and appealed to the
reputation of her patrons, such as the Laidlaws, as testament to her virtue and honesty.
A month after the alleged 1912 Chinatown assault, for example, the Laidlaws solicited character references from city
reformers such as Frank Moss of the Society for the Prevention of Crime and her past employers to shore up Livingston's
reputation. (21) Elizabeth Hartley of the Hope Baptist Church confirmed the stories of Livingston's dramatic religious
conversion in the fall of 1906 and recalled that she quit her opium habit the following spring through a painful detoxification
process: "We put her in my bed and there she stayed for about three months. Twice we called a Doctor but she refused to
take any medicine saying she would rather die than go back to the opium. She was delirious for three days in awful physical
agony." (22) Eleanor Keller, who had employed Livingston for two years following her conversion, commented on Livingston's
"personal habits and conduct," stating that she was always all that one could desire pure m word and thought, free from any
desire for drink or drugs, kind patient and ever anxious for others who were tempted." (23) Bertha Rembaugh, who served as
counsel for the Women's Society for the Prevention of Crime, where Livingston worked for a year under her supervision,
stated that "while Miss Livingston is not, of course, without faults and weaknesses of temperament, yet I firmly believe her
honest and reliable in every way." (24) The letters of Hartley, Keller, and Rembaugh--similar to those written by Livingston's
other supporters throughout her tussle with the mayor and police department--made no attempts to verify the details of her
Chinatown capture and sexual exploitation. Instead, they strongly testified to her social commitment, sobriety, and steadfast
moral character. In effect, they supported Livingston's claims of spiritual, moral, and social redemption without commenting
on the veracity of her story of abduction and sexual slavery
slavery.
The only writer to take up Livingston's claims of sexual slavery in Chinatown was a Chinese American interpreter by the
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name of Moy Gum. After much questioning in the Chinatown neighborhood, Moy Gum reported that Livingston was an
accomplished liar who "professes to have been detained a prisoner there to an evil life for ten years but this is contradicted
by all who have known her in the life. She is a terrible story teller contradicting her own statements wherever she goes." (25)
Moy Gum furthermore questioned her claims to be a selfless social reformer, claiming that he and other Chinese residents in
the neighborhood had recently attempted to rescue "little Chinese domestic servants (and have been successful in three
cases)" but were thwarted by Livingston herself. Lest his readers think him prejudiced against white female missionaries or
social reform workers in Chinatown, Moy Gum added that he personally knew of several such workers in the Chinatown
neighborhood, but he could in good conscience only state that Mary Banta of the Church of All Nations on Second Avenue is
"a hard and good worker." In support of his claim that Livingston was not the self sacrificing reformer the Laidlaws believed
her to be, he enclosed with his letter a photograph of "slave girls
girls" rescued by Miss Banta whom she supported "out of her
hard earned missionary salary at Drew Seminary, Carmel, N.Y." (26)
Livingston's benefactors did not take such accusations lightly and quickly investigated the letter's origins and charges against
Livingston. The letter, it was later discovered, was sent after a man by the name of James R. Garner had contacted the New
York City Chinese Extension and Mission Society at the Chinese Mission located at 291 Bowery for information on
Livingston. Moy Gum, it was said, "'was a nice young man of Christian character." (27) Not satisfied, the Laidlaws made
additional inquiries into Moy Gum's background within the Chinatown neighborhood and came upon Charles Gong, a
resident of 3 Doyers Street, who also worked as an interpreter. Gong's letter cast doubt on Moy Gum's damning claims
against Livingston, suggesting that Moy Gum was tricked into penning and signing the incriminating missive by women of
questionable character in the Chinatown neighborhood. "The Chinese man which you wish to find out who written such an
outrageous letter against Miss Livingston he must influence by those women whom they are associated with. The case like
that most of them wrote the letters and made the Chinaman signed their name for there is such foolish men do what they
want them." (28)
The Laidlaws seem not to have put their trust in either Chinese American interpreter. Instead, in an attempt to quell the many
challenges to Livingston's character the Laidlaws requested a medical examination to ascertain the extent of Livingston's
injuries as well as to confirm that she was not afflicted with syphilis. (29) Even with such unresolved questions regarding her
origins, Livingston's audiences and supporters for the most part overlooked these challenges to her past and moral
character. Instead, they, like the Laidlaws, were genuinely moved by her heart-rending story of abduction, enslavement, and
moral redemption, compelling them to take up the fight against forced prostitution in New York's Chinatown and by extension
woman suffrage.
More powerfully, the press and Livingston's descriptions of her experiences working in Chinatown won her many supporters
throughout die city and silenced her detractors. At the December 1912 Metropolitan Temple meeting, for example, she vividly
painted to her audiences her many run-ins with the police in Chinatown when she attempted to protect a girl from her cadet.
"I saw a girl running away from a cadet, and she ran almost into a policeman's arms." Livingston continued: "'Officer,' I said,
'won't you protect this poor girl from this fellow?" and, would you believe it, that policeman just knocked her back into the
cadet's arms and watched while he beat her up." She finished with another story depicting similar physical violence and
police indifference in a case where a girl had been "dragged by die hair till her scalp 'stood up' and kicked brutally in the
stomach." Exasperation with die police, Livingston informed her audience, led her to get a "warrant and serv[e] it herself."
(30)
Livingston's monthly activity reports to the Laidlaws provide brief descriptions of her consistent daily efforts to both police and
minister to Chinatown's white female population. Her work log for the month of July 1915 noted her visits to tenement
houses on Bayard and Division streets where "girls
girls are leading immoral lives" as well as her efforts to provide care and
comfort to ailing women in the Chinatown neighborhood--Eliza at 4 Doyers Street and Mamie Budd at 12 Pell Street, who
was "very ill with consumption, and also from giving up the opium." (31) Eliza's health improved after a few days of rest, but
Mamie Budd's worsened. After providing almost ten days of care, Livingston arranged for a nurse from the Henry Street
Settlement to take over visiting the very ill Budd. She returned in mid-August but found that Budd remained in extremely poor
health. A few days later Budd died with Livingston at her side. (32)
While Livingston engaged in social welfare work for several days each month, the great portion of her activities involved
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maintaining surveillance on the white female population of Chinatown. At times Livingston intervened to rescue underage
girls from working as prostitutes in die area. Yet the extent to which young teenage girls or women were actually abducted
and imprisoned in the Chinatown neighborhood remains difficult to assess, given that many of Livingston's cases suggest
more freedom of physical and social mobility and sexual experimentation than the term "white
white slavery
slavery" clearly suggests.
Popular narratives of Chinese-white
white sexual relations came couched in the language of the "white
white slavery evil" in
Chinatown and more often portrayed these young girls and women as victims of predation--whether by Chinese laborers or
procurers--rather than acknowledged their ability to make conscious choices that included refusing aid and running away.
Regardless of whether these accusations were accurate or false, these beliefs of young white women under assault by
Chinese men informed the social reform discourse that authorized the policing of white female and Chinese male mobility
and social interactions in the Chinatown neighborhood.
Livingston's notes on her surveillance of and intervention for seventeen-year-old Bessie Baker exemplify a typical case for
the Angel of Chinatown. The reformer first encountered Baker when she noticed her coming out of a residence in Chinatown.
Livingston then "watched her for several days" before discovering that Baker was working with another Chinatown prostitute,
Gypsy Gordon, to whom Baker gave "$.50 of every dollar she got." (33) Livingston eventually approached Baker and learned
from their conversation that she was under age. She then "rescued her" by removing her from the neighborhood and taking
her to Livingston's home; Baker was then taken away by another social reform worker in the hopes of finding a new "good
home." However, Baker refused their assistance and told Livingston that she preferred to return to her family, who resided at
33 Allen Street on the Lower East Side. But when Livingston returned about a month later to monitor her progress, Baker
was not residing at her parents' home. Livingston then tried to convince Baker's parents to "file a complaint against her in
order to have her sent away to the Bedford Home for she has gone back to lead an immoral life as formerly." Her parents,
who "refuse to have anything to do with her," did not comply with Livingston's instructions. Baker later became ill and was
taken to a hospital. (34) As this case suggests, despite Livingston's descriptions of her efforts toward Baker as "rescue,"
Baker's defiance and unwillingness to cooperate with reformers showed the extent to which Baker may not have viewed
Livingston's actions as "rescue" but more as an unwelcome attempt to end her free mobility.
Real or imagined, this discourse on Chinatown as a site of racialized sexual danger offered suffrage leaders a valuable
weapon in their efforts to attract and convert supporters to the cause. During her lectures on behalf of the suffrage movement
Livingston challenged her audiences to consider the potential of women's political participation to eradicate public toleration
of prostitution, arguing that only through women's influence exercised through the vote in shaping critical legislation would
the sexual exploitation of women finally end. In her talk to the Political -Equality Association, headed by the prominent
socialite and suffragette Alva Belmont, for example, Livingston began by describing her work in Chinatown and stating that
"nothing would wipe out 'white
white slavery
slavery' there until women got the vote." (35) She added: "A woman may make a mistake,
but she would never make a bigger mistake than the men who elected [Mayor] Gaynor." (36)
Furthermore, their ineligibility to vote made women lesser citizens and deprived them of equal treatment under the law. To an
audience gathered at the Central Presbyterian Church in New Castle, Pennsylvania, Livingston decried the unfair treatment
of female prostitutes and "double standards of morality" when it came to prosecuting male procurers and customers. She told
the story of a young girl whom she had rescued after the girl was viciously beaten. The man charged in her attack, however,
"got off with but a short term, as he was a voter, and election time was near." (37) Questions about municipal corruption and
political machines aside, as long as men could vote and women could not, men would continue to enjoy special privileges.
At the conclusion of these anti-white
white slavery
slavery/suffrage meetings, organizers asked for donations for Livingston's
antiprostitution work and pledges of commitment to the woman suffrage cause. In West Newton, Massachusetts, for
example, the audience was asked first to contribute financially to Livingston's work against white slavery
slavery. Then the women
in the audience were asked to join the Equal Suffrage League, while the men were "asked to sign cards, saying that they will
vote for Woman Suffrage next fall." (38) By numerous accounts, Livingston's tours around the country were highly
successful in simultaneously winning supporters for both the antiprostitution and suffrage causes. The vivid descriptions of
white female imprisonment and sexual exploitation and police corruption so passionately conveyed by Livingston in her
speeches stuck with audiences long after her appearances. Supporters such as Letta Turnbull of Cleveland, Ohio, sent in
donations and words of encouragement and outrage after first apologizing for not having made a donation when she first
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heard Livingston speak in her city. "This business of seizing girls forcibly and imprisoning them in resorts seem[s] to me so
horrible that I grow furious at the great indifferent public which tolerates it. For the public is to blame. If people were
sufficiently aroused to the enormity of this thing it could and would be prevented." (39) Likewise, Mrs. John A. Church of
Chagrin Falls, Ohio, sent Livingston a watch chain and neck chain "to be used in her work." (40) Livingston's highly
successful spring 1913 whirlwind tour of Ohio led Harriet Taylor Upton, president of the Ohio Woman Suffrage Association,
to remark in a letter to Harriet Laidlaw that the news from the Cleveland and Chagrin Falls suffragettes had been
overwhelmingly positive," all [speaking] so splendidly of Rose's work and all saying that she did an immense amount of good
for suffrage. One woman expresses it that she did more good than any other one person who has been in Cleveland for a
long, long time." (41)
So popular was Livingston's visit to Chagrin Falls that some members of the audience formed the Rose Livingston Club,
comprising school-age girls
girls, in her honor. Shortly after die club's founding the local suffrage association gave a banquet in
honor of the club and its newly elected officers, thereby cementing the link between the causes of anti-white
white slavery and
woman suffrage. Members wore special pins to identify themselves and maintained correspondences with Livingston herself
on her Chinatown work while pledging themselves to the woman suffrage cause. The intimate nature of these exchanges
allowed members to feel personally connected to Livingston and her antiprostitution crusade in Chinatown. Marian Brewster,
for example, in her letter to Livingston discussed family matters as well as club activities, ending with die message to "give
my love to all of those unfortunate girls and tell them we, our club, is going to help them all we can." (42)
THE ANTI-WHITE
WHITE SLAVERY CRUSADE AND THE WOMAN SUFFRAGE MOVEMENT
Livingston's arguments for the vote in order to fight forced prostitution mirrored contemporary popular discourses on the
topic. For example, in 1913 Laidlaw published in the national social reform magazine Survey a review of My Little Sister, a
novel by the American writer and suffragette Elizabeth Robins. Following the lead established by English social reformer
William T. Stead, whose 1885 series The Maiden Tribute of Modern Babylon first brought the problem of forced prostitution to
the British public and sparked a white slavery scare, Robins's book similarly focused on the themes of child abduction and
white slavery through the domestic fictional narrative of an English family whose younger daughter falls prey to white
slavers. Though originally published in London, the story reached American audiences through its two-part serialization in
McClure's magazine. (43)
Laidlaw praised Robins's writing for conveying the emotional turmoil suffered by families whose daughters fall victim to white
slavery
slavery. More importantly, she lauded die novel's ability to convey the urgency of woman suffrage as a critical tool for
combating sexual slavery
slavery: "How utterly ineffectual seem an individual mother's effort for the safety of her child. How evident
is it that a mother's care must have back of it power--power in council and legislative hall." (44) She sharply called into
question those mothers who continued to abide by the rule that their "place was the home" by suggesting that they were the
ones ultimately responsible for their daughters' tragic fates because "what did all her negative efforts avail in shutting the
danger away from her cherished daughters, in a nation, in a world, which holds a traffic system of such Machiavellian
adroitness, a system which can afford, so great are its profits, to reach into the inner recesses of a home." (45)
The promotion of women's involvement in worldly affairs, particularly through the cause of suffrage, directly attacked the
Victorian bourgeois separation of the social spheres of the sexes. The promoters of the white slavery
slavery/suffrage cause,
however, carefully couched its message of female social and political activism in culturally conservative language that
appealed to broad audiences, especially to those middle- and upper-class women known as die "anus" who opposed the
suffrage movement and advocated the maintenance of separate spheres and gender roles. (46) For example, the
descriptions of Livingston emphasized her religious conversion, which brought about her social redemption from her former
life as a Chinatown prostitute who engaged in commercialized sex with nonwhites. The public's response to her work echoed
these spiritual overtones of Christian salvation. A poem published in her honor by the New York Times in 1912 references
her Christian conversion to counter public criticisms of her sexual past, likening her to Mary Magdalene:
Shall we, in our smugness, pass her by
Because, perchance, [of] the dust of sin
The woman who spite of buffet and scoff
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Introductory remarks at her lectures similarly typically directed her middle-class audiences to gaze upon Livingston's body-scarred and battered by her clashes with the agents of vice and immorality--as evidence of her moral uprightness and
affirmation of her title as the Angel of Chinatown. A suggested introduction to Livingston began: "She today is fighting a great
fight and she has spent her life's blood on this battle line. Again and again in her fearless determination to rescue a girl she
has been beaten and stabbed and her life is still sought by those of the underworld whom she has foiled again and again and
whose profits she has decreased. She comes to you today sick and broken as the result of the last brutal attack made upon
her life." (48) During a 1916 campaign, press materials sent by the New York State Woman Suffrage Party described her
having a "record of 300 children saved, but it has meant being kicked down cellar stairs, thrown from a roof, stabbed in a
dark hallway, but always she has saved the child she sought." (49)
To more socially and politically conservative audiences, this narrative of Christian martyrdom used by Livingston's supporters
perhaps softened the changing contemporary image of the American woman suffrage movement. The confrontational tactics
of the New York suffragettes and the charismatic firebrand Alice Paul, who from 1913 to 1914 began to split from NAWSA to
form the independent Congressional Union for Woman Suffrage (CU), created a new media image of the suffragette as
youthful and militant. By 1916 the CU had transformed itself into the Woman
Woman's Party and then in 1917 into the National
Woman
Woman's Party (NWP) to focus solely on the passage of a constitutional amendment for woman suffrage. The NWP
distanced itself from NAWSA and its staid tactics of focusing on passing individual state-level woman suffrage amendments
and instead purposefully promoted itself as the new modern, youthful heirs to the suffrage movement with its bold vision for
national reform. Through its controversial and highly publicized strategy of direct confrontation--street marches, open-air
meetings, pickets, arrests, and hunger strikes--the NWP garnered great attention for the cause. (50)
This particular Christian-inflected narrative of Livingston's bodily sacrifice legitimized her confrontational tactics of challenging
the municipal authority of the police and mayor as necessary for the Angel of Chinatown to combat the twin immoral forces of
public graft and prostitution. This Christian narrative also worked to desexualize her image and distance her current role as a
social reformer and martyr from her past as a sexual deviant and delinquent sullied by her intimacies with Chinese men.
Physical descriptions of Livingston, whether in newspaper articles, suffrage materials, or lectures, overwhelmingly focused on
her injuries such as those following her encounter with a cadet that left her "with a splintered jaw and seven teeth gone." (51)
Press descriptions often stressed her physical frailty and diminutive size in order to liken her to David in challenging the
Goliath that is municipal corruption and forced prostitution. "She is a small woman
woman, scarcely over five feet in height," began
one account. "At her best she would weigh one hundred and ten pounds. At present, she would scarcely turn the scales at
ninety. ... Were it not for this fire in her, Rose Livingston would now be dead." (52) In her stage appearances on behalf of the
suffrage movement her body became not an object for sexual consumption but a weapon to be used for the purposes of
Christian combat against the forces of social evil and municipal corruption.
Livingston in her public role as a spokeswoman for the movement, however, was quick to challenge this image of her as a
Victorian heroine or Christian saint. She chafed at the public's attempt to associate her with this outmoded sentimental
reform tradition based on Christian salvation alone. (53) A 1912 New York Times article, for example, commented on
Livingston's speech as anything but genteel, refusing "to tone down her speech to make things easier for her audience. She
used none of the euphemisms so common in social evil discussions, but kept her talk homely and sharp with the vernacular
of the gutter." (54) She mocked the proselytizing efforts of the Victorian rescue homes, saying, "I don't go in to visit these
girls and give them a tract and say 'God bless you,' and invite them around to take tea with me. That's not my kind of work."
(55) Instead, she told her audience of her physical confrontations with angry pimps and dirty cops, even going to the lengths
of serving arrest warrants to protect and rescue prostitutes.
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Livingston's bravado in the face of personal danger earned her the admiration of many suffrage leaders outside of New York
City. Ethel R. Vorce, corresponding secretary of the Ohio Woman Suffrage Association, became one of Livingston's most
ardent supporters shortly after one of her early lecture tours through Ohio in 1913. Following Livingston's return to New York
City, Vorce wrote the Laidlaws to convey her excitement about the lecture tour's positive effect on the suffrage campaign,
"having stirred up the entire town and doing more practical good for suffrage than any one other speaker of whom I know."
(56) To Livingston she sent a special note of encouragement: "Don't forget when you get back to the girls and your rescue
work that by giving your message to the world you can save the generations yet to come, my dear you must keep up your
talking. You have converted many people to suffrage here and you can do likewise in other places." (57)
Despite Vorce's clearly high regard for Livingston's life and work against prostitution, the relationship between the two
women--as it often was between Livingston and her older and wealthier suffragette supporters--was not an equal one.
Rather, these relationships were phrased in familial terms, with the older suffragettes expecting Livingston to play the
subordinate role of a dutiful "daughter" in relation to her more maternal suffragette superiors. Vorce, for example, referred to
Livingston as "dear little Rose" in her correspondences with the Laidlaws and addressed Livingston in her letters as "my dear
little girl." Similarly, Loa Scott, a fellow suffragette in Ohio, opened her description of Livingston's activities in Ohio to Harriet
Laidlaw with "I know you want to hear how your little girl is getting along." (58) In her relationship with her benefactors
Livingston took on a similar submissive familial role. In letters she called Harriet "sweet mother" and James "Daddy" (59) In a
message to Harriet Laidlaw, Livingston expressed her fond sentiments to her benefactors: "'Tell her I love her, and can't wait
till I get back to see her and dear Daddy'--and then she goes off with the words--'May precious Daddy, the dearest Daddy,
the dearest Daddy under Heaven.'" (60) While Livingston was convalescing in New Jersey during the summer of 1913, her
care attendant, Laetitia Gordon Smith, wrote to inform James Laidlaw of Livingston's medical care and progress, nothing that
she "has difficulty in retaining her food, thus continuing the feeling of weakness." In closing Smith added that "Rose is in bed
near me asking me to tell you that she is feeling tonight lonely for her Daddy Laidlaw, but she consoles herself by having in
full view on the washstand your photograph and Mrs. Laidlaw's which we recovered from the Montclair Times office two days
ago." (61)
Framed in terms of familial affection, these infantilizing remarks also worked to contain or suppress Livingston's sexual
identity as a former prostitute as well as unmistakably denoted her status in the movement as socially subordinate to and
financially dependent on her more wealthy and older suffrage patrons. Although Livingston successfully raised funds for her
antiprostitution work during the course of her lecture tours, all money earmarked for her care was sent to the three-person
committee of Sanderson, Chamberlain, and Laidlaw to be administered as they saw fir. Throughout her association with the
Laidlaw, Livingston regularly submitted to this committee of three-person committee of Sanderson, Chamberlain, and Laidlaw
to be administered as they saw fit. Throughout her association with the Laidlaws, Livingston regularly submitted to this
committee of three, sending them reports of her daily work and requests for funds for living and medical expenses. (62) when
Livingston was hospitalized in March and April 1914, for example, the Laidalws paid for Livingston's stay at the presbyterian
Hospital in New York City.
These expressions of endearment and subordination also reflected suffrage leaders' private views of Livingston, view that
influenced their strategies for touring and showcasing the firebrand in her antiprostitution/prosuffrage lectures. A letter of
introduction by a suffrage leader who hosted Livingston's lectures at his church began by praising her abilities as a speaker
for the suffrage cause as" young woman with a fine spirit and a burning message" but then added a warning. "Miss
Livingston is little more than a mere child, in her intellectual development, and quite temperamental and therefore, should be
closely supervised if she is to be used as a speaker for suffrage. Yet, properly directed, she can be made a tremendous force
for the cause." (63) Likewise, another activist pronounced that "Rose is a temperamental child, and willful, and has to be
managed like a small impresario; but she is very lovable, and responds in a wonderful way to affection." (64) Yet this suffrage
leader worried about Livingston's future and feared that, without constant monitoring by a more experienced suffrage
spokesperson, Livingston would be easily swayed by the unscrupulous who sought to exploit her story. These descriptions of
Livingston as highly temperamental and childlike may reflect middle-class suffrage leaders' own biases in judging the
working-class Livingston as uncouth and uneducated, someone whose impassioned oratory appealed to audiences through
raw emotion rather than careful reasoning and debate. It also worked to justify the perpetuation of a mother-daughter or
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superior-inferior relationship that placed suffrage leaders in positions of authority over Livingston.
Throughout her tours suffrage leaders made efforts to pair Livingston with a more seasoned and educated suffrage
spokesperson such as Ethel Vorce. A letter from Gertrude Leonard, chairman of the executive board of the Massachusetts
Woman Suffrage Association, to the presidents of local suffrage leagues throughout the state, for example, announced the
availability of Livingston and Vorce to speak "for a month of meetings in Massachusetts beginning January 11th," 1914. In
her promotion of Livingston Leonard wrote: "The dramatic strength of her appeal can scarcely be exaggerated." The
accompanying biography of Vorce, in contrast, listed her education and career background as a news reporter and
settlement house worker who possessed a thorough knowledge of the suffrage cause from her long history of participating in
international woman suffrage conferences and organizing and directing the Woman Suffrage Party in Cuyahoga County in
Ohio. (65) While Livingston moved audiences with her riveting stories of fighting prostitution and police corruption in
Chinatown, Vorce delivered the more carefully crafted and reasoned speech connecting the causes of suffrage and
antiprostitution work. To an audience in New Castle, Pennsylvania, for example, Vorce offered the point that "while a girl
must be 18 years old before she can marry, that in some states, the age of consent is 10 years, and in others, 16 years."
With female intervention into the legislative process, Vorce suggested, "such as evil as the white slave traffic could not
exist." (66)
Livingston's insistence on employing the vernacular of the street when addressing her audience was one of the many ways
she attempted to assert control of her own voice and image on the suffrage lecturing circuit. Her graphic and ardent oratory
effectively captured her audiences, shocking their sense of bourgeois comfort and morality and allowing the "average
woman or girl who lives in a protected home to know something of the tragedy which surrounds those women whom we are
wont to refer to as 'the underworld.'" (67) Her fervor and strong-willed independence--so important in establishing her social
reformer authority and authenticity to her middle-class audiences--could be forgiven by her suffragette handlers even if it
meant an unpolished performance that "cannot be relied upon to tell a straightforward logical story" as long as the rambling
narrative continued to make the suffrage cause its priority. (68) However, as Livingston's successes on the lecture circuit
brought her more celebrity, her obedience to the authority of her suffragette supporters was sorely tested. As she
increasingly focused her lectures on her spiritual conversion, personal redemption, and the anti-white
white slavery cause, her
suffragette handlers discovered the ongoing difficulties with containing the highly charismatic Livingston and employing her
sensational story as a useful strategy for gaining the vote.
Indeed, audiences were often more easily captivated and moved by Livingston's stories of abduction, sexual imprisonment,
and clashes with the police and mayor, which eclipsed the message of woman suffrage. On 12 July 1913 members of the
Stenographers' Association of Cincinnati, after hearing Livingston's lecture in their city, adopted a resolution in support of
Livingston's work in New York City to present to Mayor Gaynor. The resolution, beginning with "whereas, Miss Rose
Livingston, Angel of Chinatown, is imperiling her life and safety in service to our country by rescuing little girls held as slaves
in Chinatown and other dives in the East, from a fate far worse than death," also spoke of a five-hundred-dollar bounty
placed on Livingston's head by her enemies and ended with a demand for better police protection. The cause of woman
suffrage did not merit a mention in this resolution. (69)
As Livingston's success on the suffrage lecture circuit rose, she increasingly asserted her own control over her stage
appearances. Her acts of independence, however, were not taken well by her handlers. Instead, her suffragette supporters
more often interpreted her efforts at self determination as acts of childish impudence or disrespect, not the legitimate and
reasoned actions of a fellow equal in the movement. In 1915, while conducting a lecture tour through Pennsylvania
sponsored by that state's suffrage association, Livingston complained of fatigue and poor health and asked to eliminate the
two meetings scheduled for Easton. Vorce, who was accompanying Livingston on the trip, questioned Livingston's claims of
illness and suggested another possible reason for calling for the cancellation. "The real truth is that Rose arrived in
Philadelphia in a very bad mood. She failed to make a good impression, as was quite natural, with the exception of the
Chester and Sunday meetings which were excellent, and is her old force. The child is suffering from consciousness of lies
over misdoings and of course has not the control or philosophy necessary to keep herself." (70) Vorce further complained
that Livingston's increased popularity as a lecturer "likened her to Billy Sunday," a popular fire-and-brimstone evangelical
preacher of the day, and "now instead of talking of her work she devotes more time to Heaven, Hell not straight suffrage."
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(71) Vorce urged the Laidlaws to remove Livingston from the suffrage campaign circuit, concluding sadly, "I doubt if ever I go
on another tour with Rose--while I had her affection, I could control and influence her but as that seems entirely to have
disappeared I believe the best interests of the cause will no longer be served by such a combination." (72)
In a confidential letter to Carrie Chapman Catt, Vorce was even more candid in pointing out Livingston's flaws as a
representative of the movement. Claiming that Livingston's "state of mind at present is actually savage," Vorce suggested
that it would be better for the movement if "her audience could always be confined to the Women's Missionary & W.C.T.U.
type." (73) More galling to Vorce was Livingston's defiance of Vorce's "wishes or advice," her bragging that she could
command crowds larger than the more prominent and established suffragettes such as Dr. Anna Howard Shaw, and her
demand to be "paid 100.00 per speech." (74) As she had with the Laidlaws, Vorce pressed for Livingston's temporary
removal from the campaign: "For the best interests of our Cause I suggest that for the present she be not asked to speak
after a time, if the inflated idea she now has of her self, subsides, she may once more bring us many converts." (75)
Livingston's brash style may have shocked her white middle-class audiences in Pennsylvania, Massachusetts, and Ohio.
Yet the prevalent fear of sexual predation of young white girls and women by Chinese men was even more immediate and
alarming. This period's mainstream press reported frequently on the participation of Chinese men in the underground world
of commercialized vice in the Chinatown neighborhood, particularly around activities such as prostitution, opium smoking,
and gambling. While non-Chinese also engaged in these activities, the link between the city's male Chinese population and
these vices was historically naturalized through popular representations such as cartoons and literary accounts. Sketches
appearing in popular publications such as Harper's Weekly and Frank Leslie's Illustrated repeated the message contained in
J. W. Alexander's American Opium Smokers--Interior of a New York Opium Den, which showed Chinese opium smoking to
be a threat to white Americans. Alexander depicts a menacing-looking Chinese proprietor bringing out the opium-smoking
paraphernalia for his white clientele (Fig. 1). (76) An 1883 illustration entitled New York City--The Opium Dens in Pell and
Mott Streets--How the Opium Habit Is Developed made the link between opium smoking and white slavery more explicit by
showing Chinese kidnapping a white female victim in the Chinatown neighborhood. Opium pipes and other smoking
accoutrements surround the central image of the abduction(Fig. 2). (77)
[FIGURE 1 OMITTED]
These popular narratives of Chinatown, which commercialized sex and sexual danger, supported the federal Chinese
exclusion laws as well as called into question the wisdom of allowing Chinese men free mobility throughout the city and
nation. The ubiquitous presence of Chinese-owned businesses such as "chop suey" restaurants and hand laundries
throughout the city' particularly alarmed whites and often became die targets of criminal investigations into prostitution,
abduction, and opium smoking. The gruesome murder of nineteen year old Elsie Sigel allegedly by her Chinese lover in
1909, for example, spurred the city's police and social reformers to police the Chinatown neighborhood and the city's
Chinese-owned establishments in an effort to curb social relations between Chinese men and white women. (78) Journalists
such as William Brown Meloney shocked New Yorkers with their exposes on the lives of Chinatown's white female
residents, like Lulu Shu, who seemed to be trapped in her second-floor tenement flat on Pell Street, "a coop with a wiremeshed window" in which she "has lived for eighteen years." (79)
This period's social reformers continued their surveillance and monitoring of Chinese-owned restaurants and laundries in the
city for evidence of illegal and immoral activities. A 1911 report on prostitution in Harlem by an investigator for the Committee
of Fourteen, an antiprostitution social reform agency, identified a "chop suey joint" on the corner of Eighth Avenue and 15th
Street as having "small rooms and much disorderly conduct is witnessed there." (80) The following year a report entitled
"Houses and Resorts of Prostitution in the City of New York," authored by investigators for the Committee of Fourteen, listed
Chinese-owned businesses such as Li He Laundry at 200 West 28th Street and a "chop suey restaurant" at 38 West 29th
Street as disorderly. (81)
The mass circulation of these popularized narratives of a sexual yellow peril led many desperate parents to consider the
possibilities of white female abduction by Chinese men when confronted with die heartbreaking tragedy of a missing
daughter. The disappearance of Jessie McCann of Brooklyn in early December 1912 led to a series of desperate searches
through the Coney Island and Sheepshead Bay sections of the borough as well as in die city of Philadelphia. According to
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the New York Times, police assigned "a squad of detectives" to follow leads furnished by Livingston, "who had said she was
confident she knew where Miss McCann could be found." (82) None of Livingston's suggestions, however, panned out. But
with Livingston's network of religious supporters, desperate parents with the assistance of their ministers sought her
assistance and advice to locate their missing daughters. In the fall of 1914 Pastor T. J. Ferguson asked Livingston to
investigate the mysterious disappearance of sixteen-year-old Mary Loudon from Mechanicsburg, Pennsylvania. Although no
evidence was present to suggest that she traveled to New York City, let alone the lower Manhattan Chinatown neighborhood,
the parents and pastor nonetheless directed their inquiry to Livingston and that neighborhood. (83)
In Livingston's white slavery lectures across the country the depictions of New York's Chinatown and the city's Chinese
male residents as sexual threats to white womanhood enabled activists to promote the suffrage cause to socially and
politically conservative audiences, particularly church-going audiences who were especially won over by her Christ-like public
persona as the Angel of Chinatown engaged in a moral crusade against forced prostitution and sexual assault. If the notion
of equal rights between the genders was too modern for these more conservative audiences, the notion of moral protection
for the young and innocent was certainly not. The image of the lascivious Chinese male laborer as a menace to urban
working girls and women fit neatly within familiar, established Victorian narratives of male seduction and female innocence.
Even as New Yorkers at the dawn of the twentieth century struggled with accepting new modern modes of female sexuality
that widened the bounds of feminine respectability, expressions of mutual attraction and affection between Chinese and
whites remained difficult to accept. Interracial sexual relations--particularly between white women and Chinese men-continued to be defined in the earlier Victorian terms of masculine assaults on vulnerable white girls and women.
As argued by suffrage leaders such as Laidlaw and Vorce, woman suffrage provided the means to extend much-needed
moral and legal protections to the weaker sex or, more specifically, die perceived weaker members of die female sex--poor
and working-class girls and women--from sexual predation. (84) Regardless of how well these seasoned veterans
articulated die connections between the causes of suffrage and anti-white
white slavery
slavery, it was the magnetic and electrifying
presence of Rose Livingston--the self-proclaimed ex-Chinatown prostitute and social reformer--on die suffrage lecture circuit
that brought formerly indifferent and conservative audiences into the movement's fold. Livingston's speeches on the "white
white
slavery evil," couched in the alarmist rhetoric of a sexual Yellow Peril, made the suffrage cause take on a more immediate
urgency that jolted her audiences into action. Yet the sensationalist narratives of white slavery and Livingston herself
proved difficult for movement leaders to contain and channel consistently for the suffrage cause. Her refusal at times to play
die role of die obedient daughter to her wealthy suffrage benefactors and her frank disdain of Victorian sentimentalism tested
the movement's leaders' abilities to frame and harness her life story and work for the promotion of woman suffrage.
Livingston's relationship with her wealthy suffrage benefactors reflects the difficulties in closing the class divide within the
movement even as her supporters espoused a political platform that would address die concerns of die city's wage-earning
women. Through Livingston, die city's middle- and upper-class leaders found a means to connect with the poor, workingclass women of New York's Chinatown. Even so, the strategic mobilization of Livingston's Chinatown anti-white
white slavery
crusade by New York's suffrage leaders did more to smooth over die political differences of socially conservative and
Progressive middle-class and upper-class men and women through a commonly shared moral outrage than to carve
permanently a powerful place for former sex workers into die suffrage movement. For working-class women with
transgressive sexual pasts such as Livingston, full social acceptance and equal political participation in the movement
remained just beyond their reach.
I am immensely grateful for the thoughtful comments and suggestions offered by a number of scholars in the research and
writing of this essay and indebted to Kathy Peiss, Timothy Gilfoyle, and Chad Heap for their many insights.
(1) "How Rose Livingston Works in Chinatown," New York Times, 3 December 1912, 5. "Cadet" was the common term for
the young man responsible for seducing and entrapping a young woman to prostitute herself.
(2) Willard Travell, MD, "Physician's Report," 1 July 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence, JulyDecember 1912, Harriet Wright (Burton) Laidlaw Papers, Schlesinger Library (hereafter HWLP-SL).
(3) Police commissioner to Robert Adamson, secretary to the mayor, 21 May 1912, Box GWJ-54, Mayors' Papers, New York
City Municipal Archives (hereafter MP-NYCMA).
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(4) Mayor William J. Gaynor to Mary Beard, 11 June 1912, Box GWJ-92, MP-NYCMA.
(5) "How Rose Livingston Works in Chinatown."
(6) "Woman
Woman Criticizes Gaynor," New York Times, 10 December 1912, 7.
(7) Robert Adamson to Harriet Wells, secretary of the Woman Suffrage Party, 20 May 1912, Series IV, White Slavery
Slavery,
Folder 91 Correspondence, May-June 1912, HWLP-SL.
(8) Recent studies examining the late-nineteenth- and early-twentieth-century "white
white slavery
slavery" panic over kidnapping and
trafficking of white women include Christopher Diffee, "Sex and the City: The White Slavery Scare and Social Governance
in the Progressive Era," American Quarterly 57, no. 2 (2005): 411-37; Mara L. Keire, "The Vice Trust: A Reinterpretation of
the White Slavery Scare in the United States, 1907-1917," Journal of Social History 35, no. 1 (2001): 5-41; Frederick K.
Grittner, White Slavery
Slavery: Myth, Ideology, and American Law (New York: Garland, 1990); David J. Langum, Crossing over
the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994), 30-33; Judith Walkowitz, City
of Dreadful Delight: Narratives of Sexual Danger in Late-Victorian London (London: Virago, 1992); David Pivar, Purity
Crusade: Sexual Morality and Social Control, 1868-1900 (Westport, Conn.: Greenwood, 1973); Paul Boyer, Urban Masses
and Moral Order in America, 1820-1920 (Cambridge, Mass.: Harvard University Press, 1978), 189-219.
(9) Some of these woman suffrage-sponsored publications on white slavery include Clifford G. Roe, What Women Might
Do with the Hallot: The Abolition of the White Slave Traffic (New-York: National American Woman Suffrage Association
Headquarters, n.d.); Mrs. T. P. Curtis, The Traffic in Women (Boston: Woman Suffrage Party of Boston, n.d.); and Katharine
Houghton Hepburn, Woman Suffrage and the Social Evil (New York: National American Woman Suffrage Association,
n.d.).
(10) Luise White
White, "Prostitutes, Reformers, and Historians," Criminal Justice History 6 (1985): 202-3.
(11) George Anthony Peffer, If They Don't Bring Their Women Here: Chinese Female Immigration before Exclusion (Urbana:
University of Illinois Press, 1999).
(12) Mary Ting Yi Lui, Chinatown Trunk Mystery: Murder, Miscegenation, and Other Dangerous Encounters in Turn-of-theCentury New York City (Princeton, N.J.: Princeton University Press, 2005), 45, 81-110.
(13) NAWSA was Pounded after the 1890 reconciliation and merger of two other woman suffrage associations--the National
Woman Suffrage Association (NWSA) and the American Woman Suffrage Association (AWSA). For histories of the
woman suffrage movement see Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's
Movement in America, 1848-1869 (Ithaca, N.Y.: Cornell University Press, 1978); Aileen S. Kraditor, the Ideas of the Woman
Suffrage Movement, 1890-1920 (New York: Columbia University Press, 1965); Nancy Cott, The Grounding of Modern
Feminism (New Haven, Conn.: Yale University Press, 1987); Anne Firor Scott, One Half the People: The Fight for Woman
Suffrage (Philadelphia; Lippincott, 1975).
(14) Ellen Carol DuBois, "Working Women, Class Relations, and Suffrage Militance: Harriot Stanton Blatch and the New York
Woman Suffrage Movement, 1894-1909," in Unequal Sisters: A Multicultural Reader in U.S. Women's History, cd. Vicki L.
Ruiz and Ellen Carol DuBois (New York: Routledge, 1994), 235. For more on Blatch's remarkable life and career see Ellen
Carol DuBois, Harriot Stanton Blatch and the Winning of Woman Suffrage (New Haven, Conn.: Yale University Press,
1997).
(15) On the history of the WTUL see Nancy Schrom Dye, As Equals and as Sisters: Feminism, the Labor Movement, and the
Women's Trade Union League of New York (Columbia: University of Missouri Press, 1980); and Meredith Tax, 'The Rising of
the Women: Feminist Solidarity and Class Conflict, 1880-1917(New York: Monthly Review Press), 95-124.
(16) Harriet Laidlaw, "Organizing to Win by the Political District Plan (1914)," in Public Women, Public Words: A
Documentary History of American Feminism, ed. Dawn Keetley and John Pettegrew (Lanham, Md.: Rowan and Littletield,
2002), 179.
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(17) "The Free-Lane Soul Saver of New York's Slums," fort Wayne Journal-Gazette, 28 January 1917, 2.
(18) "Rose Livingston," n.d. Because the memo mentions the "Massachusetts campaign" 1 would date the document to
around 1914. Series IV, White Slavery
Slavery, Folder 90 Lists of expenses, hospital and doctors' statements, biographical
information, 1912-16, n.d., HWLP-SL.
(19) Mayor to H. B. Laidlaw, Esq., 28 May 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June 1912,
HWLP-SL.
(20) Mayor Gaynor to Mary Beard, 11 Juno 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June 1912,
HWLP-SL.
(21) Frank Moss to Nathan A. Smyth, 11 June 1912, Gabrielle Stewart Mulliner to Rose Livingston, 15 June 1912, and
Nathan Smyth to Harriet Laidlaw, 24 June 1912, 12, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June 1912,
HWLP-SL.
(22) Elizabeth Hartley to Nathan A. Smyth, 26 May 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June
1912, HWLP-SL.
(23) Eleanor Keller to Harriet Laidlaw, 18 June 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June
1912, HWLP-SL.
(24) Bertha Rembaugh to Nathan A. Smyth, 28 May 1912, Series IV, White Slavery
Slavery, Folder 91 Correspondence, May-June
1912, HWLP-SL.
(25) Moy Gum to Mr. Gardner, 8 November 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence, July-December
1912, HWLP-SL.
(26) Ibid.
(27) William Osgood Morgan to Harriet Laidlaw, 27 December 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence,
July-December 1912, HWLP-SL. It is unclear who Garner was, since the letter suggests that Harriet Laidlaw and Garner did
not know each other.
(28) Chas. F. Gong to Harriet Laidlaw, 29 December 1912, Series IV, White Slavery
Slavery, Folder 92 Correspondence, JulyDecember 1912, HWLP-SL.
(29) John Willard Travell m Harrier Laidlaw, 5 July 1912, and James Laidlaw to Nathan Smyth, 23 July 1912, Series IV,
White Slavery
Slavery, Folder 92 Correspondence, July December 1912, HWLP-SL.
(30) "How Rose Livingston Works in Chinatown."
(31) Rose Livingston, "Report for the Month of July," Series I, Woman
Woman's Suffrage, Part B, Box 6, Folder 103 New York,
HWLr-SL.
(32) Rose Livingston, "Report for the Month of August," Series I, Woman
Woman's Suffrage, Part B, Box 6, Folder 103 New York,
HWLP-SL.
(33) Report dated 24 March 1910, Series IV, White Slavery
Slavery, Folder 89 Hattie Rose Correspondent, HWLP-SL.
(34) Ibid.
(35) "woman
woman Criticizes Gaynor."
(36) Ibid.
(37) "Paints Horrors of Woman
Woman's Life in Underworld," New Castle News, 6 April 1915, 6.
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(38) "Reviewed Steps Taken," newspaper clipping, n.d., Series, IV, White Slavery
Slavery, Folder 92 Correspondence, JulyDecember 1912, HWLP-SL.
(39) Letta M. Turnbull to James Laidlaw, 25 March 1913, Scales IV, White Slavery
Slavery, Folder 93 Correspondence, JanuaryMarch 1913, HWLP-SL.
(40) Mrs. John A. Church to James Laidlaw, 24 March 1913, Series IV, White Slavery
Slavery, Folder 93 Correspondence,
January-March 1913, HWLP-SL.
(41) Harriet Taylor Upton, president, Ohio Woman Suffrage Association to Harriet Laidlaw, 8 March 1913, Series IV, White
Slavery
Slavery, Folder 93 Correspondence, January-March 1913, HWLP-SL.
(42) Marian H. Brewster to Rose Livingston, 26 March 1913, Series TV, White Slavery
Slavery, Folder 93 Correspondence,
January-March 1913, HWLP-SL; and James M. Gates to Rose Livingston, 2 June 1913, Series IV, White Slavery
Slavery, Folder
94 Correspondence, April-June 1913, HWLP-SL.
(43) The story was serialized in two parts in McClure's, December 1912, 121 -45, and January 1913, 253-60.
(44) Harriet Burton Laidlaw, "My Little Sister," Survey, 3 May 1913, 201.
(45) Ibid.
(46) For a good discussion of Anti-suffrage activism sec Jane Jerome Camhi, Women against Women: American AntiSuffragism, 1880-1920(Brooklyn: Carlson Publishing, 1994).
(47) Elias Lieberman, "Rose Livingston: A Reverie," New York Times, 22 December 1912,14.
(48) "Suggested Introduction of Rose Livingston," 2. This description of her bodily torment is repeated in numerous public
accounts of her work. See, for example, "The Livingston Case," n.d., in The Woman Voter Series IV, White Slavery
Slavery,
Folder 90 Lists of expenses, hospital and doctors, statements, biographical information, 1912--16, HWLP-SL.
(49) Publicity materials sent by the New York State Woman Suffrage Party, "Miss Rose Livingston," 9 October 1916, Series
IV, White Slavery
Slavery, Folder 90 Lists of expenses, hospital and doctors' statements, biographical information, 1912-16,
HWLP-SL.
(50) For more on Alice Paul and die National Woman
Woman's Party see Linda G. Ford, Iron-Jawed Angels: The Suffrage Militancy
of the National Woman
Woman's Party, 1912-1920 (Lanham, Md.: University Press of America, 1991); Nancy F. Cott, "Feminist
Politics in the 1920s: The National Woman
Woman's Party," Journal of American History 71, no. 1 (1984): 43-68; Christine A.
Lunardini, From Equal Suffrage to Equal Rights: Alice Paul and the National Woman
Woman's Party, 1910-1920 (New York: New
York University Press, 1986).
(51) "How Rose Livingston Works; in Chinatown."
(52) "The Free-Lance Soul Saver of New York's Slums."
(53) For a discussion of approaches to urban moral reform in the nineteenth and early twentieth centuries see Boyer, Urban
Masses.
(54) "How Rose Livingston Works in Chinatown."
(55) Ibid.
(56) Ethel R. Vorce to Harriet Laidlaw, 5 March 1913, Series IV, White Slavery
Slavery, Folder 96 Correspondence, January-April
1913, HWLP-SL.
(57) Ethel R. Vorce to Rose Livingston, 5 March 1913, Series IV, White Slavery
Slavery, Folder 96 Correspondence, January-April
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1913, HWLP-SL.
(58) Loa E. Scott to Harriet Laidlaw, 18 February 1913, Folder 93 Correspondence, January-March 1913, HWLP-SL.
(59) Rose Livingston to Harriet Laidlaw, n.d., Series IV, White Slavery
Slavery, Folder 96 Correspondence, June-December 1914,
HWLP-SL.
(60) Mabel C. Willard to Harriet Laidlaw, 1 March 1914, Series IV, White Slavery
Slavery, Folder 96 Correspondence, January-April
1914, HWLP-SL. She also used the term "Daddy" with other older male supporters such as James Gates, an attorney and
male suffrage activist, in Chagrin Falls, Ohio. James signed all of his letters to Livingston with "Daddy." James M. Gates to
Rose Livingston, 2 June 1913, 26 June 1913, Series IV, White Slavery
Slavery, Folder 94 Correspondence, April-June 1913,
HWLP-SL.
(61) Laetitia Gordon Smith to James Laidlaw, 3 July 1913, Series IV, White Slavery
Slavery, Folder 95 Correspondence, JulyDecember 1913, HWLP-SL.
(62) Receipts and lists of expenses, n.d., Series IV, White Slavery
Slavery, Folder 90 Lists of expenses, hospital and doctors'
statements, biographical information, 1912-16, HWLP-SL.,
(63) George Hugh Birney, n.d., Series IV, White Slavery
Slavery, Folder 93 Correspondence, January-March 1913, HWLP-SL.
(64) Gertrude Halladay Leonard to Harriet Laidlaw, 2 March 1915, Series IV, White Slavery
Slavery, Folder 98 Correspondence,
1915, HWLP-SL.
(65) Gertrude Halladay Leonard, 16 December 1914, Series IV, White Slavery
Slavery, Folder 97 Correspondence, JuneDecember 1914, HWLP-SL.
(66) "Paints Horrors of Woman
Woman's Life in Underworld."
(67) "Nellie D. Merrell to Miss Treat, Cleveland, Ohio, n.d., Series IV, White Slavery
Slavery, Folder 94 Correspondence, April-June
1913, HWLP-SL.
(68) Ibid.
(69) Laura C. Haeckl to James Laidlaw, 30 July 1913, Series IV, White Slavery
Slavery, Folder 95 Correspondence, JulyDecemeber 1913, HWLP-SL.
(70) Ethel Vorce to James Laidlaw, 27 April 1915, Series IV, White Slavery
Slavery, Folder 98 Correspondence, 1915, HWLP-SL.
(71) Ibid.
(72) Ibid.
(73) Ethel R. Vorce to Carrie Chapman Catt, n.d., Series IV, White Slavery
Slavery, Folder 94 Correspondence, April-June 1913,
HWLP-SL. Although the correspondence does not bear a date, the contents strongly indicate it was written at the conclusion
of the 1915 Pennsylvania tour.
(74) Ibid.
(75) Ibid.
(76) See, for example, J. W. Alexander, American Opium Smokers--Interior of a New York Opium Den Harper's Weekly, 8
October 1881.
(77) Frank Yeager. Mew York City--The Opium Dens in Pell and Mutt Streets--How the Opium Habit Is Developed, Frank
Leslie's Illustrated Newspaper, 19 May 1883.
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Basis of
conclusion that
defendant was
loitering for
the purpose of
prostitution
On
Wednesday,
the
Justice
for
Victims
of
Trafficking
Act
of
2015
[S.
178]
passed
through
the
Senate
by
a
unanimous
vote
of
99-to-0.
It
is
being
celebrated
as
a
heroic
example
of
bipartisan
cooperation
for
humanitarian
advancement.
However,
if
the
bill
continues
to
pass
through
the
House,
it
will
be
delivering
its
system
of
protection
over
tapped
wires,
via
an
increasingly
militarized
police
force.
Introduced
by
Senator
John
Cornyn
(R-TX),
the
majority
whip,
the
Justice
for
Victims
of
Trafficking
Act
of
2015
is
nothing
short
of
a
carceral
mandate.
Its
primary
function
is
to
allocate
funds
and
special
privileges
to
law
enforcement
and
immigration
control
and
to
legitimize
the
adoption
of
new
surveillance
technologies,
purportedly
in
order
to
combat
child
exploitation.
Democratic
opponents
delayed
the
bill
in
committee
for
six
weeks,
debating
over
whether
fines
collected
from
criminal
offenders
could
go
towards
funding
abortion
services
for
trafficking
survivors.
They
argued
that
Republican
lawmakers
were
trying
to
throw
an
anti-abortion
rider
into
the
bill,
extending
the
Hyde
Amendment
of
1976
(which
prohibited
federal
funding
of
abortion),
to
apply
to
non-taxpayer
funds.
To
break
the
stalemate,
Senate
majority
leader
Mitch
McConnell
(R-KY)
put
pressure
on
Democrats
to
pass
the
bill
by
asserting
that
until
the
legislation
has
gone
through
the
Senate,
he
would
not
schedule
the
confirmation
of
Loretta
Lynch,
the
first
black
woman
to
be
nominated
for
Attorney
General.
On
Tuesday,
given
much
pressure
on
both
sides
to
move
the
bill
along,
a
compromise
was
reached
in
which
a
separate
pool
of
money
would
be
created
for
survivor
health
services,
in
addition
to
money
collected
from
criminal
offenders
for
non-health-related
services.
The
fund
stream
for
survivor
health
services
would
already
be
covered
by
the
Hyde
Amendment,
and
thus
could
not
be
used
for
abortions
for
trafficking
survivors.
However,
the
language
of
the
bill
as
it
was
passed
ensures
that
the
Hyde
Amendments
reach
will
not
extend
further
to
private
funding.
While
Democrats
in
support
of
reproductive
justice
and
civil
liberties
have
been
vocal
on
the
legislations
language
about
abortion,
they
have
paid
less
attention
to
the
ways
in
which
this
bill
also
promotes
the
militarization
of
police,
expands
the
carceral
system,
and
funds
the
use
of
wiretapping
and
other
surveillance
technologies
by
immigration
control,
with
little
transparency
or
oversight.
The
amended
legislation
contains
some
benevolent
provisions
for
increasing
victim
compensation
and
funding
social
services
for
survivors
of
human
trafficking.
However,
in
addition
to
these
victim-centered
services,
there
is
a
clear
law-enforcement-centered
strategy
in
the
bill
for
addressing
human
trafficking,
which
prioritizes
the
expansion
of
funding
for
law
enforcement
and
immigration
control.
Several
sections
of
the
bill
demonstrate
the
way
in
which
the
bill
is
designed
to
enhance
the
militarization
of
police:
1)
Recruiting
wounded
and
retired
veterans
into
special
Hero
Corps
to
rescue
child
trafficking
victims[Sec.
302]Former
combatants,
who
have
been
trained
to
kill
on
sight
with
deadly
firearms,
and
experience
a
high
incidence
of
post-traumatic
stress
disorder,
will
now
be
exposed
to
highly
sensitive
and
complex
situations,
predominantly
in
neighborhoods
already
vulnerable
to
police
brutality.
Furthermore,
these
heroes
are
misinformed
by
Hollywood
tropes
about
pimps
and
victims,
and
egged
on
to
perform
rescue
missions
with
frustrated
fantasies
of
military
heroism.
They
will
be
patrolling
communities
that
are
not
their
own,
where
more
often
than
not
it
is
shared
economic
coercion,
not
violent
abduction,
which
links
the
pimp
or
trafficker
to
his
or
her
victim,
revealing
a
much
more
nuanced
picture
of
exploitation
than
the
one
in
which
these
heroes
may
be
prepared
to
intervene.
2)
Funding
wiretapping
initiatives
[Sec.
203]
and
a
Cyber
Crimes
Center
[Sec.
302]
specializing
in
computer
forensics
and
internet
surveillance
technologies
to
be
used
by
the
U.S.
Immigration
and
Customs
Enforcement
(ICE),
which
will
be
authorized
to
collaborate
with
the
Department
of
Defense
to
monitor
the
telecommunications
and
activities
of
immigrants,
border
residents,
and
foreign
nationals,
allegedly
in
search
of
foreign
viewers
of
U.S.
child
pornography.
According
to
the
bill,
the
Cyber
Crimes
Unit
(CCU)
also
enhances
ICEs
ability
to
combat
cyber
economic
crime,
digital
theft
of
intellectual
property,
[and]
illicit
e-commerce,
among
other
economic
crimes
on
the
internet.
The
use
of
moralizing
language
to
justify
increased
funding
for
policing
and
surveillance
is
not
a
new
phenomena
laws
banning
pornography
in
the
UK
coincide
with
increased
government
surveillance
of
the
private
lives
of
its
citizens
over
webcam.
The
many
clauses
related
to
child
pornography
in
the
JVTA
bill
also
allocate
funding
to
investigative
capacity
building
in
the
cybersecurity
units
of
whereby
the
state
legitimizes
the
expansion
of
its
police
power
in
order
to
rescue
innocent
victims
from
sadistic
criminals.
Sadly,
the
real
picture
of
underaged
survival
sex
work
is
much
more
complicated,
requiring
social
service-centered
funding
that
promotes
economic
justicejust
the
kind
of
legislation
that
failed
to
be
passed
by
amendment
in
the
current
bill.
Copyright (c) 2007 Board of Trustees of the Leland Stanford Junior University
Stanford Journal of Civil Rights & Civil Liberties
August, 2007
3 Stan. J.C.R. & C.L. 317
LENGTH: 14162 words
ARTICLE: Reconceptualizing Approaches to Human Trafficking: New Directions and Perspectives
from the Field(s)
NAME: Grace Chang* and Kathleen Kim**
SUMMARY:
... Scholars and advocates across several movements have attempted to develop approaches to
human trafficking that would best serve the needs and support the rights of all migrant workers and
survivors of trafficking. ... This Article also evaluates U.S. policies and practices across multiple
sectors that relate to human trafficking including prostitution, labor migration, and sexual and reproductive health rights. ... " A similar restriction applies to international organizations receiving
governmental funding to combat HIV/AIDS, requiring organizations, as a condition of receiving
funding, "to have a policy explicitly opposing prostitution and sex trafficking. ... The antiprostitution pledge restricting grants to anti-trafficking organizations also limits funding to domestic
and international SRH organizations focusing on HIV/AIDS prevention, women's health and family
planning. ... The Trafficking Act and the U.S. government's "s Global AIDS Act of 2003 both forbid funding to any group that does not explicitly oppose prostitution and sex trafficking. ... Such
groups include public health advocacy organizations, grassroots organizations that encourage migrant worker organizing, formal and informal unions of domestic workers, sex workers and agricultural workers, and anti-border enforcement groups that advocate for safe migration across international borders for all individuals. ... Certainly more work is needed to counter these divisions and
facilitate the critical and logical links between immigrant rights, labor rights, sex worker rights,
sexual and reproductive health, and anti-trafficking advocacy, organizing and scholarship. ...
TEXT:
[*318]
Introduction
Scholars and advocates across several movements have attempted to develop approaches to human
trafficking that would best serve the needs and support the rights of all migrant workers and survivors of trafficking. Many U.S.-based and international groups organizing for immigrant, labor, sex
worker, and sexual and reproductive health rights, understand the need for collaborations among
them. Yet, such connections have been largely obstructed by the U.S. federal government approach
to trafficking, which emphasizes sex trafficking over other forms of labor. At a number of recent
conferences, participants from across these movements have articulated the obstacles posed by the
U.S. federal approach both to their work and to these potential alliances. n1
1
These ongoing discussions reveal a growing consensus among advocates that current U.S. antitrafficking policies and practices that focus on law enforcement and anti-prostitution efforts detrimentally impact the rights of trafficked persons. Advocates increasingly witness a prosecutorial approach to trafficking narrowly focused on criminalizing prostitution as a purported means to stop
trafficking. Meanwhile, enforcement agencies largely neglect the broader phenomenon of trafficking into agriculture, domestic service, restaurants, hotels, manufacturing, and construction. Nongovernmental organizations assisting trafficked persons domestically and internationally [*319]
report that the U.S. emphasis on criminal enforcement and anti-prostitution policies curtails the
rights of trafficked persons voluntarily engaged as sex workers, and marginalizes trafficked persons
in non-sex related industries. These policies and practices inhibit a rights-based approach that respects the agency and choice of adults to decide how to organize their lives.
This Article discusses the local and global consequences of the United States government approach toward human trafficking. This Article also evaluates U.S. policies and practices across multiple sectors that relate to human trafficking including prostitution, labor migration, and sexual and
reproductive health rights. By providing an overview of current issues, problems, and concerns
within the anti-trafficking movement and within related rights-based movements, this Article seeks
to facilitate the development of a new anti-trafficking paradigm. A new anti-trafficking paradigm is
already emerging out of collaborations and discussions between anti-trafficking and human rights
advocates from diverse fields. n2 This paradigm evaluates trafficking within a broader framework
and provides the foundation for a cross-sectoral alliance to challenge mainstream approaches to
human trafficking and to create new strategies to protect the rights of trafficked persons, migrant
workers, and women against the negative impact of United States policies and practices.
Part I of this article begins with a background of current U.S. policies and procedures addressing
human trafficking. Noting the narrow conceptual focus of current U.S. anti-trafficking guidelines on
primarily anti-prostitution and criminal law enforcement efforts, Part I proposes a more expansive
reconceptualization of trafficking as it relates to multiple sectors - prostitution, labor migration and
reproductive and sexual health. In furtherance of this reconceptualization, Part II draws from the
experience of human rights advocates to analyze the impact of U.S. policies and practices on the
rights of trafficked persons within each sector. This Article finds that current U.S. policies and procedures addressing trafficking divert attention away from underlying root causes of trafficking, and
deprive certain trafficked persons of full access to immigration and labor protections. Moreover,
related U.S. policies on labor migration and reproductive and sexual health operate to restrict the
rights of not only trafficked persons, but more generally migrant [*320] workers and women. Part
III of this Article summarizes recommendations to advance the rights of trafficked persons through
a movement-based alliance of human rights advocates across multiple sectors.
I. The Conceptual Framework
A. U.S. Anti-Trafficking Policies and Practices: A Narrow Conceptual Focus
Organizations throughout the world report that U.S. anti-trafficking policies and practices operate
with a narrow conceptual focus. As a consequence, advocates and other commentators have observed the erosion of trafficked persons' rights and diminishing service provisions for trafficked persons in a variety of sectors. n3 Specifically, U.S. anti-trafficking policies have increased the criminalization of prostitution while neglecting the broader reality of trafficking into farms, homes, restaurants, and other sites. The result is the conflation of human trafficking with prostitution. This
2
conflation appears ideologically driven, arising out of new and emerging alliances between some
anti-prostitution feminists and right-wing evangelical Christians, who have recently entered
HIV/AIDS service provision, human rights, and advocacy worlds. As a result, anti-trafficking advocates and service providers, particularly those working with clients in the sex sector, report negative
consequences on their ability to serve clients, on the health and status of clients and on the rights of
women in the sex sector in the U.S. and internationally. n4
Several examples indicate an emerging conflation of human trafficking and prostitution by the
U.S. government. First, recent policy measures under the Bush Administration purport a unique
"link" between prostitution and trafficking. A recent State Department publication entitled "The
Link Between Prostitution and Sex Trafficking" suggests this perspective. n5 This document states
that trafficking is both a cause and effect of prostitution, yet makes this assertion based on reports
that are unsubstantiated by valid research methods and data. A number of scholars have contested
these assertions and challenged the research upon which the claims are based, and have called upon
the [*321] government to support more reliable research in the formulation of public policy. n6
Even a Government Accountability Office (GAO) study released in July 2006 reports that U.S.
government estimates of global human trafficking are "questionable" and "in doubt because of
methodological weaknesses, gaps in data, and numerical discrepancies." n7
The purported "link" between prostitution and trafficking damages on-going efforts to prevent
trafficking and protect the rights of trafficked persons. This unproven "link," which lends support to
the Bush Administration's focus on abolishing prostitution as the cornerstone to its anti-trafficking
approach, has diverted attention away from an assessment of structural factors that facilitate trafficking such as poverty, discrimination, and civil and political unrest of certain developing regions.
The Bush Administration has also employed this misguided policy to de-fund organizations that refuse to adopt a policy statement against prostitution.
In February of 2002, President Bush authorized National Security Presidential Directive 22
(NSPD 22), identifying trafficking as an important national security issue. n8 According to the Bush
Administration, the relationship between trafficking and organized crime poses a transnational
threat and raises terrorism concerns. n9 Though NSPD 22 is a classified document, and therefore,
unavailable to the public, a Department of Justice report on anti-trafficking efforts cites to NSPD 22
and asserts without empirical evidence that prostitution is "the driving force behind sex trafficking."
n10 The report emphasizes official presidential policy to heighten criminalization and enforcement
against prostitution as the primary method to reduce human trafficking and further states: "The
United States opposes prostitution and any related activities... as contributing to the phenomenon of
trafficking in persons. These activities are inherently harmful and dehumanizing. The United States
government's position is that these activities should not be regulated as a legitimate form of work
for any human being." n11
In 2003, the U.S. Congress amended the Trafficking Victims Protection Act of 2000 to prohibit
international non-governmental organizations (NGO) receiving governmental funding to support
their anti-trafficking work, from [*322] using the funds to "promote, support or advocate for the
legalization or practice of prostitution." n12 The funding restriction requires organizations to "state
in either a grant application, a grant agreement, or both, that it does not promote, support or advocate the legalization or practice of prostitution." n13 A similar restriction applies to international
organizations receiving governmental funding to combat HIV/AIDS, requiring organizations, as a
condition of receiving funding, "to have a policy explicitly opposing prostitution and sex trafficking." n14
Initially, the restriction applied only to foreign NGOs. In 2004, however, the Department of Justice issued an opinion letter supporting the application of these restrictions to U.S. grantees. n15
Accordingly, in 2005, Congress again amended the TVPA, expanding the restriction to domestic
NGOs. n16 The restriction, now known as the "gag rule" or "anti-prostitution pledge" by antitrafficking human rights activists, raised immediate First Amendment concerns from advocates and
lawmakers. n17 First, the "pledge" compels U.S. NGOs to affirmatively adopt a government viewpoint. Simply having "no position" on the issue is not permissible under the rule. This conflicts with
Supreme Court precedent disallowing the government from compelling speech in support of its
viewpoint as a condition of participating in a government program. n18 Second, by requiring recipients of government funding to take the "pledge" as an organization-wide policy, the "pledge" restricts the way in which the organization chooses to utilize their non-governmental and private
funding. As decided by the Supreme Court in Rust v. Sullivan, though the government may attach
conditions to the disbursement of subsidies, funding schemes must "leave the grantee unfettered in
its other activities." n19
[*323] The ambiguity of the words "promote, support or advocate" and the lack of concrete
guidance from administration officials about their meaning led concerned NGOs to change their
policies and practices. Many organizations even curtailed services and support for sex workers. n20
Other NGOs refused to comply with the "gag rule" and chose to forego U.S. funding, in recognition
of the damaging impacts that policies and public statements against prostitution have on their abilities to serve those in the sex sector. A letter addressed to President Bush in May 2005, signed by
public health, human rights, faith-based and community-based organizations, stated that such policies will "exacerbate stigma and discrimination against already marginalized groups" and make it
"difficult or impossible to provide services or assistance to those at risk ... further driving them underground and away from lifesaving services." n21 Thus, organizations in Brazil rejected $ 40 million of U.S. global AIDS funds, declaring that the restrictions would counter the very programs that
have proven effective in reducing the spread of HIV in Brazil. n22 Such programs include rightsbased and harm reduction approaches to prostitution that are designed to de-stigmatize and empower women as they move towards better health and self-sufficiency.
Two lawsuits have challenged the constitutionality of the anti-prostitution pledge: Alliance for
Open Society International, Inc. and Open Society Institute v. United States Agency for International Development, n23 filed in the U.S. District Court for the Southern District of New York, and
DKT International, Inc. v. United States Agency for International Development, n24 filed in the
U.S. District Court for the District of Columbia. Both lawsuits alleged that the pledge violates the
organizations' First Amendment right to free speech by requiring them to adopt the government's
point of view in order to receive funding. n25 The lawsuits also charged that the pledge is unconstitutionally [*324] vague, thereby permitting arbitrary enforcement. n26 Moreover, the suits pointed
to the public health danger presented by the pledge because it undermines efforts to provide preventative health information and services to sex workers who are at high risk of contracting and spreading HIV/AIDS. n27
Both courts agreed that the pledge requirement was an unconstitutional violation of free speech
rights under the First Amendment. Judge Victor Marrero of the Southern District of New York and
Judge Emmet G. Sullivan of the District Court of Washington, D.C. granted the respective plain4
tiffs' preliminary injunctions against the enforcement of the pledge in order to prevent irreparable
harm. The pledge, Judge Sullivan wrote, implied a "demand that the organization become a mouthpiece for government policy" even if using its own funds. n28 Judge Marrero of the Southern District, moreover, opined that "the Supreme Court has repeatedly found that speech, or an agreement
not to speak, cannot be compelled or coerced as a condition of participation in a government program." n29
In spite of recent court rulings, these policies have already caused significant damage. The court
rulings do not apply to foreign NGOs receiving U.S. funding for anti-trafficking work. n30 Domestically, funding has shifted to more right-wing, religious organizations who support the U.S. government's policy; resources for U.S. NGOs that do not subscribe to these policies remain scarce.
The shift in funding detrimentally impacted the work of organizations experienced in serving victims of trafficking but unable or unwilling to comply with the federal restrictions. Some progressive
advocates witnessed the removal of funding from their organizations, while more conservative,
church-based agencies, less-experienced in anti-trafficking work but willing to adopt the federal
anti-prostitution stance received new funding. Domestic and international groups that oppose current U.S. policies often face vicious attack and fear blacklisting by the U.S. government and other
sources of funding.
The conflation of human trafficking with prostitution also resulted in the narrow application of
the federal Trafficking Victims Protection Act (TVPA) to sex trafficking cases. In 2005, the Department of Justice reported that over two-thirds of ninety-one human trafficking cases were cases
of sex trafficking. n31 [*325] This information directly conflicts with empirical reports from service providers who have found that sex trafficking cases comprise only one-third of their caseload.
For example, a recent study by the Coalition to Abolish Slavery and Trafficking reports that clients
trafficked to Los Angeles are subject to exploitation in many fields, including domestic work (40
percent), factory work (17 percent), sex work (17 percent), restaurant work (13 percent), and servile
marriage (13 percent). n32 These striking numbers refute the government's assertion that most trafficking is for prostitution.
Many advocates questioned the effectiveness of the government's anti-trafficking policy and
practice in serving all human trafficking victims. These advocates note that in the period since the
passage of the TVPA in 2000 to 2004, only 616 people benefited from the law through receipt of a
T visa. n33 Notably, a 2006 Government Accountability Office study found: "There is also a considerable discrepancy between the numbers of observed and estimated victims of human trafficking." n34
Advocates speculate that trafficking victims in industries other than the sex sector could account
for this gap. Law enforcement agents who equate trafficking with prostitution often do not view
those in other industries as victims of trafficking. Furthermore, the prosecutorial focus of sex trafficking cases alienates migrant rights advocates, who fear that anti-trafficking work invites excessive prosecution in immigrant communities while ignoring the harm these communities face as exploited workers in domestic work, agricultural work, and in industrial and factory work. For example, leaders from Domestic Workers United, a collective of migrant-rights organizations supporting
domestic workers in New York, expressed alienation from the anti-trafficking movement. n35 The
focus on sex trafficking also alienates women's rights and human rights advocates, who are increasingly concerned with the stigmatizing and rights-depriving impact these anti-prostitution policies
have on women around the world. For example, Sex Workers Across Borders (SWAB), a grassroots
5
group of sex workers and allies, states a concern that anti-trafficking measures are used to police
and punish female, male, and transgender migrants and sex workers, and to restrict their freedom.
n36
[*326]
B. Reconceptualizing Human Trafficking: A Broader Framework
Reconceptualizing human trafficking within a broader framework of labor migration, human rights,
women's rights, sexual and reproductive health rights, and globalization may counteract the negative impacts of U.S. polices and advance the rights of trafficked persons.
The development of a field of understanding around the subject of human trafficking has progressed through various stages. The notion that only women were trafficked into prostitution was
expanded in the 1990s with the realization that both men and women were being trafficked into
other labor sectors. Both the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (Palermo Protocol) n37 and the Trafficking Victims Protection Act
(TVPA) n38 address the larger phenomenon of trafficking in persons. Anti-trafficking and human
rights advocates, however, agree that an effective conceptual framework to combat human trafficking, must consider trafficking as inextricably linked to globalization and trends in labor migration.
n39
Anti-trafficking and human rights advocates now consider it absolutely essential for antitrafficking service providers to expand their work beyond the "3 Ps" of prevention, prosecution and
protection. n40 While the "3 Ps" approach assisted many potential and actual lives of victims, it
does not address underlying social structures that facilitate human trafficking. These advocates recognize that governments, whose agendas conflict with the goals of advocates, support the "3 P" approach and the prevailing discourse on human trafficking. Thus, civil society must actively seek the
means to lead in developing new understandings and a new discourse on human trafficking.
This new discourse must be grounded in understandings of the processes of globalization, and
the coercive nature of most migration within this context. The new discourse supports a framework
that views trafficking as coerced migration or exploitation of migrant workers for all forms of labor,
including a broad spectrum of work often performed by migrants, such as manufacturing, agriculture, construction, service work, servile marriage and sex work. This definition of trafficking rests
upon an understanding that many migrant workers [*327] are coerced to migrate because of economic devastation caused by neoliberal policies in their home countries. While this displacement
does not imply physical force or deception, it recognizes coercion created by the destruction of subsistence economies and social service states through neoliberal policies imposed on indebted sending countries by wealthy creditor nations. n41
The new discourse encompasses an understanding of migrant workers' experiences as inclusive
of many forms of labor, either simultaneously or in sequence. In Canada, for example, women recruited and trafficked as domestic workers have often faced pressure to enter servile marriages
within their employers' households and families. In the United States, it is not uncommon for workers engaged in manufacturing to hold second and third jobs in service work. Finally, people's experiences of being trafficked may span a broad spectrum from consent to coercion. While a person
may initially participate with ostensible "knowledge and consent" to being transported for work, she
may later wish to leave the work or particular employment site, yet be held captive by an employer.
Within the new discourse, such a person would be recognized as a victim of trafficking. n42
The focus on "sex trafficking" obscures the U.S. government's responsibility for compelling
people to leave their countries. For example, structural adjustment and other neoliberal policies imposed on the Philippines has forced the mass migration of women and men. International financial
institutions such as the World Bank and International Monetary Fund impose structural adjustment
policies as preconditions for indebted nations to obtain loans. n43 The ravages of these policies
have destroyed subsistence economies and social services; as a result, over 3,100 people leave the
Philippines each day. Government agencies in sending countries such as the Philippine Overseas
Employment Administration facilitate this mass migration in such explicit, concrete ways that it is
difficult to view this movement as anything short of government-sponsored human export. In turn,
receiving countries such as the United States and Canada fashion immigration, labor, and welfare
laws in such a way that migrant workers remain super-exploitable as temporary workers, ineligible
for most rights and protections afforded to citizens in these "host" countries. n44
Through these policies, the U.S. government and many other nations promote human trafficking
and labor exploitation, while simultaneously creating the conditions of poverty through neoliberal
economic policies that [*328] compel people to migrate. The selective criminalization of "sex trafficking" ensures that the root causes of all forms of human trafficking, and state responsibility for or
complicity in these structural causes, remain unchallenged. n45
In sum, the underlying root causes for rendering human beings vulnerable to human trafficking
are complex and regionally diverse and cannot be addressed by a "one size fits all" strategy. The
development of a new discourse on trafficking, therefore, requires a critical analysis of the current
U.S. policy and its consequences that integrates multiple perspectives from varied fields of human
rights, women's rights, labor rights and health rights. An integrated and cross-disciplinary framework launches a reconceptualization of trafficking that considers root causes and the role of U.S.
policies in hampering efforts to combat trafficking.
II. A New Discourse on Trafficking
U.S. anti-trafficking policies significantly impact three distinct areas: prostitution, labor migration,
and sexual and reproductive health. A new discourse on trafficking seeks to understand the consequences of U.S. policies within each area on efforts to prevent trafficking and to protect the rights of
trafficked persons.
A. Prostitution and Sex Work
As discussed in Part I, U.S. governmental policies and practices addressing human trafficking conflate trafficking with prostitution. This characterization severely hampers the work of antitrafficking advocates and damages the rights of trafficking survivors. The negative consequences of
this conflation on anti-trafficking efforts is visible both domestically and internationally.
1. Impacts of Policies
Various policy measures contribute to the conflation of trafficking and prostitution, in definition
and in subsequent practice. In addition, administrative agencies substantively and procedurally utilize these policies to enforce the criminalization of prostitution, rather than to combat human traf-
ficking. Examples include the definition of trafficking in persons pursuant to the Trafficking Victims Protection Act (TVPA); the Trafficking in Persons annual report issued by the U.S. State Department; and the End Demand legislation.
First, a historical tension exists with regard to the relationship of trafficking to sex work. The
TVPA, the chief U.S. anti-trafficking statute, defines "human [*329] trafficking" more narrowly
than the established international definition. As discussed earlier, the TVPA focuses on sex trafficking, which conflicts with the broader definition created under international agreements such as the
2000 Palermo Protocol. The Palermo Protocol defines trafficking as follows:
(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring 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 n46 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 labour or services, slavery or
practices similar to slavery, servitude or the removal of organs; n47
The definition in the Palermo Protocol is perhaps the first international definition or reformulation of "trafficking in persons" since the 1949 UN Convention for the Suppression of the Traffic in
Persons and the Exploitation of Prostitution of Others. The 1949 Convention focused exclusively on
prostitution and considered all prostitution, whether voluntary or forced, to be trafficking. The Palermo Protocol recognizes the existence and possibilities of both voluntary and forced prostitution
and indeed leaves "prostitution" intentionally ambiguous to allow for different interpretations. Participants noted that the Palermo Protocol includes but does not define the phrase "exploitation of
prostitution of others or other forms of sexual exploitation" because delegates to the Palermo negotiations could not reach a consensus on the meaning of this phrase. While all delegates agreed that
involuntary participation in prostitution constitutes trafficking, the majority of delegates rejected the
idea that voluntary participation by adults in prostitution amounts to trafficking.
Thus, the language of the Palermo Protocol emerged from a compromise reached by the delegates to ensure the greatest number of signatories. Delegates agreed to leave the phrase undefined
but included the following explanation in interpretive note 64:
The travaux preparatoires should indicate that the Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons.
The terms "exploitation of the prostitution of others" or "other forms of sexual exploitation" are not
defined in the Protocol, which is therefore [*330] without prejudice to how States Parties address
prostitution in their respective domestic laws. n48
The strength of this language and the lack of an explicit definition of the "exploitation of prostitution of others or other forms of sexual exploitation" allows for governments to develop their own
approaches and definitions with respect to prostitution and sexual exploitation.
The Global Alliance Against Trafficking in Women (GAATW) has suggested that "if a government insists on using language such as "sexual exploitation,' we should encourage them to use
the following definition so that sexual exploitation, like any other form of labour exploitation, requires the use of force or coercion... ." For example:
"Sexual exploitation" means the participation by a person in prostitution, sexual servitude, or the
production of pornographic materials as a result of being subjected to a threat, deception, coercion,
abduction, force, abuse of authority, debt bondage or fraud. Even in the absence of any of these factors, where the person participating in prostitution, sexual servitude or the production of pornographic materials is under the age of 18, sexual exploitation shall be deemed to exist. n49
The language of the TVPA does not allow for such broad interpretation and autonomy of other
states in defining trafficking. This raises the concern that the TVPA overrides the possibilities allowed for and intended by the delegates in creating the terms of the Palermo Protocol.
Furthermore, the TVPA language supplants these more expansive definitions of trafficking
through concrete means such as international "prevention" measures mandated, monitored and enforced by the U.S. State Department's Trafficking in Persons (TIP) report. n50 The TIP report ranks
countries' performance in preventing trafficking at Tier 1, 2, or 3, based on their compliance with
U.S. approved anti-trafficking measures. The U.S. government sanctions countries with lower tier
rankings, while higher tier countries may receive funding from the U.S. to aid their anti-trafficking
efforts. The strongest determinants for rankings include a country's level of focus on prostitution,
endorsement of the prostitution/trafficking conflation and emphasis on prosecution.
One example of the U.S. government's bias exists in the case of Korea. Advocates reported that
in legal terms, the Korean government understands human trafficking only to mean prostitution.
This interpretation did not change with the introduction of the Palermo Protocol, and only grew
worse after introduction of the TVPA, and Korea's initial ranking as a Tier 3 country in [*331]
2001. The Korean government responded by establishing an inter-ministry task force to combat
trafficking and subsequently introduced a prostitution prevention law. Despite protests by sex
worker rights groups, Korea has instituted a sweeping anti-prostitution law, the first of its kind since
1961. The reform includes prison sentences and fines for traffickers and for women in the sex industry. The Korean government, encouraged by its subsequent ranking at Tier 1, claims it will
eliminate prostitution by 2007. This illustrates the large-scale negative impact of the antiprostitution and prosecution-oriented framework ofthe TVPA and other U.S. trafficking policy
globally. n51
2. Impacts of "End Demand" Legislation and Practices
The conflation of prostitution and trafficking has also led to the faulty idea that ending "demand"
for commercial sex will lead to a reduction in or eradication of trafficking.
This concept has been incorporated into proposed legislation such as the "Bill to End Demand
for Sex Trafficking Act" of 2005. n52 While this bill failed to pass through Congress by itself, sections of it were included in the Trafficking Victims Protection Reauthorization Act (TVPRA) of
2005. n53 The "End Demand" section of the TVPRA 2005 diverts attention and federal funds to
programs aimed at the prosecution, shaming, and "re-education" of clients of sex workers.
Specifically, the TVPRA 2005 provides funds to states and local jurisdictions for programs to
"investigate and prosecute persons who purchase commercial sex acts" n54 and to "educate persons
charged with, or convicted of, purchasing or attempting to purchase commercial sex acts." n55 The
latter is to be accomplished largely through "john schools," such as those established in 1995 in San
Francisco, where clients of street prostitutes attend courses about the purported negative effects of
prostitution on sex workers, their customers, and society. n56 Research has revealed that john
schools have not been effective in [*332] discouraging clients from continuing to purchase commercial sex and have only resulted in moving sex work from one area to another. n57
Advocates critique the underlying premises of "end demand" policies as well as their negative
impacts on both trafficked persons and sex workers. For example, the Sex Workers Project of the
Urban Justice Center and the Network of Sex Work Projects states:
"Demand" for sex work is not a predominant driving factor for trafficking, which is driven by
poverty, race, and gender inequities. The term "demand" also refers to the legitimate concerns
raised by migrants and labor rights advocates who address the issues relating to the need in the
global north for exploitable labor and services. However, this narrow focus of the term in the context of sex work represents a dangerous move towards policies that, under the guise of protecting
sex workers, is another way of undermining sex workers' autonomy and causing more harm to them.
n58
Thus, advocates criticize "end demand" as misguided and ineffective in targeting the true causes
of trafficking, i.e., the demand of states and employers in the global north for low-wage migrant labor, as well as diverting attention and services from trafficked persons while undermining the rights
of sex workers. Advocates note that the "end demand" sections of the TVPRA of 2005 provide little
funding for services and support for trafficked persons, while authorizing most of the funding for
law enforcement and "end demand" programs not yet proven to be effective. n59 Advocates also
suggest that the "end demand" focus does not serve to curtail commercial sex or trafficking, nor
help to identify those who may be vulnerable in either or both groups: "A decrease in the number of
people in the unlawful commercial sex sector, including those who are trafficked, can only be
achieved with an increase in services to vulnerable groups and victims, and in research on causes
and prevention methods." n60
Moreover, critics of the end demand focus observe that it does not serve the rights and needs of
trafficked persons, yet it severely hinders those of sex workers in a number of ways: moving sex
workers off the streets to the underground, making them more vulnerable to violence and abuses
and less likely to have access to health and outreach services, including critical [*333] HIV/AIDS
and STI education and prevention. n61 Sex workers in the United States identify not only clients as
a source of violence but law enforcement agents as abusers, commonly violating their human rights
through harassment and assault. n62 Thus, advocates such as the Urban Justice Center's Working
Group on Sex Work and Human Rights argue that "giving law enforcement more power [through
end demand policies] makes sex workers even more vulnerable." n63
3. Impacts of "Raid and Rescue" Practices
Government practices, particularly the dominant model of "raid and rescue" tactics in and outside
of the United States, negatively impact both survivors of trafficking and migrant workers voluntarily engaged in sex work.
10
A recent "raid and rescue" case in the United States, dubbed Operation Gilded Cage, n64 clearly
illustrates these concerns. The incident was reported as the largest "sex trafficking" case in the history of the United States. In July of 2005, law enforcement agents raided ten brothels in San Francisco they had identified as suspected trafficking sites and "rescued" over 120 women. Authorities
then detained the women at a military base in California; federal officials questioned the women to
determine their status as possible victims of trafficking before calling in trained service providers
twenty-four hours later. By the time advocates arrived, federal officials had already decided that the
majority of the women were not legal victims of trafficking, and placed them in immigration detention.
Advocates struggled to convince officials to interpret the law more broadly in screenings of the
remaining women, in direct conflict with the narrow federal framework. In this case and others, advocates report that when clients identify themselves as voluntary or consenting participants in their
migration or employment at any point, authorities deem them ineligible for benefits under T-visas
as legal victims of trafficking. If clients do not fit traditional conceptions of involuntary or nonconsenting victims, they may instead face deportation, like many of the women "rescued" in the
Operation Gilded Cage case. n65
Advocates also comment that often they can only secure certifications from law enforcement
agents enabling their clients to apply for T-visas if their [*334] clients cooperate exactly with law
enforcement during the investigation and prosecution process. n66 Authorities deprived one woman
"rescued" in Operation Gilded Cage of trafficking victim status, citing that she was "uncooperative," after she decided that she did not wish to cooperate with law enforcement and instead, return
to Korea. Authorities also denied her the ability to return to Korea and held her in jail as a material
witness for the case. n67
4. Conclusion
These examples raise a number of concerns and suggestions regarding the conflation of prostitution
and trafficking by US governmental anti-trafficking policies and practices:
a) The U.S. government's focus on trafficking for prostitution; its assumption that it must be involuntary in all cases; and the explicit, exclusive goal of prosecuting trafficking when equated with
prostitution denies protection to exploited laborers who are consenting adults in sex work and many
other industries. Those who migrate for work may participate voluntarily in any industry yet still
face unlawful exploitation through labor rights abuses, poor working conditions and debt bondage.
U.S. and international anti-trafficking policies and practices must recognize this exploitation consistently in the identification and treatment of all victims of trafficking.
b) Victims of trafficking face many threats to their safety and encounter numerous challenges to
their livelihoods, health, and rights not necessarily addressed or secured through cooperation with
law enforcement agents in the prosecution of trafficking. Thus, law enforcement should offer victims of trafficking autonomy, greater rights, and increased protections if they choose to cooperate
with prosecution efforts. Victims of trafficking also need greater access to benefits, regardless of
their cooperation or the form of trafficking they have survived.
B. Labor Migration
11
This section discusses the role of labor migration within the U.S. anti-trafficking framework. U.S.
policies and practices focusing on sex trafficking marginalize the rights of workers trafficked into
non-sex-related industries. The emphasis on sex trafficking and criminalization of prostitution perpetuates the widespread exploitation of migrant workers by failing to reform restrictive immigration
policies that deny migrant workers the labor protections afforded to citizen workers.
[*335]
1. Impact of policies
As a starting premise, it is important to recall the original intent of the TVPA to not only protect
victims of forced or coerced prostitution, but to also guarantee legal relief to migrant workers subjected to slave-like working conditions in factories, farms, private homes, restaurants, hotels and
any other labor industry. Several noteworthy cases prompted the passage of the Trafficking Victims
Protection Act, including the 1995 El Monte, California case involving seventy-two Thai garment
workers forced and coerced to labor in sweatshops, some for up to seventeen years. n68 A 1997
case convicted eighteen traffickers for forcing hearing-impaired Mexicans to peddle trinkets in New
York City, Los Angeles and Chicago. n69
In light of these types of forced labor cases, the TVPA recognizes in its Purposes and Findings
that: "Trafficking in persons is not limited to the sex industry. This growing transnational crime also
includes forced labor and involves significant violations of labor, public health, and human rights
standards worldwide." n70 Furthermore, the TVPA's expansion of the law's definition of forced labor protects all migrant workers coerced to endure exploitive labor conditions through physical or
non-physical means, including a trafficker's threats to deport a worker or to harm a worker's family
members. Such non-physical means also include the use of psychological and "non-violent" coercion. n71 For example, the TVPA's conference report encompasses the protection of domestic
workers compelled to work under threats that their family members may suffer "banishment, starvation, or bankruptcy." n72
The TVPA has succeeded in the prosecution of several high profile trafficking cases involving
non-sex industries. For example, United States. v. Kil Soo Lee, n73 commonly known as the Daewoosa case, involved approximately 250 Vietnamese women and men forced to work in a garment
factory in American Samoa, under threats of deportation, severe economic hardship, and constant
employer surveillance. n74 In another case, U.S. v. Ramos, farmworkers from Mexico were forced
to labor in Florida agricultural fields through threats of violence and debt bondage. n75
[*336] Despite the occurrence of these labor trafficking prosecutions, however, the Department
of Justice reports that from the years 2001-2005, it pursued a total of only twenty-three labor trafficking cases as compared with sixty-eight sex trafficking cases. The Department of Justice further
reports that the sixty-eight sex trafficking prosecutions represent an 871 percent increase from fiscal
years 1996-2000 when only seven sex trafficking cases were filed. n76 In contrast, the twenty-three
labor trafficking cases filed between 2001-2005 show only a 109 percent increase from the eleven
labor trafficking cases filed between 1996-2000. n77
These numbers are disproportionate to estimates from non-governmental organizations and academic researchers asserting that approximately one-half to two-thirds of all trafficking in the U.S.
occurs in non-sex related industries. A 2004 report from Free the Slaves and the Human Rights
Center at University of California Berkeley indicates that 46.4 percent of trafficking cases are for
12
forced prostitution while 46.2 percent of trafficking cases are for domestic service, agricultural labor, sweatshops and food service. n78 Anecdotal evidence from anti-trafficking service providers
estimate that only one-third of their cases are related to the sex industry, while the clear majority of
their trafficking cases occur in non-sex industries. n79
Service providers contend that the U.S. government's focus on sex trafficking results in the rejection of labor trafficking cases for investigation and prosecution. The Forced Labor report indicates that NGOs observe federal law enforcement "downplaying of the severity of crimes involving
forced labor." n80 The government's lack of attention to labor trafficking cases results in the denial
of law enforcement protection to trafficked workers who may fear employer retaliation for escaping
the abusive work environment and reporting the incidents to the authorities. The neglect of labor
trafficking cases has the additional consequence of condoning employer abuses in non-sex industries, thereby hindering long-term prevention efforts to deter labor exploitation in any industry.
2. Impacts of Current Policies on Labor and Immigration
Other examples of current U.S. laws, highlight the perpetuation of migrant worker vulnerability
despite the TVPA's original intent to protect these workers from exploitation. For instance, the 2002
Supreme Court case, [*337] Hoffman Plastic Compounds, Inc. v. NLRB, n81 determined that an
undocumented worker, wrongfully terminated from his job for union organizing, was not entitled to
compensation for back pay due to his status as an illegal immigrant. As a result of this decision, all
undocumented workers asserting their right to associate under the National Labor Relations Act
(NLRA), n82 were deprived of certain labor remedies for employer retaliation. Employers can fire
undocumented workers who organize without providing reinstatement or compensation for lost
work. The case has had a pervasive effect on the immigrant worker community, as employers defending labor violations attempt to use the ruling to curtail worker organizing in non-NLRA matters
such as wage and hour and employment discrimination cases. n83
Domestic workers, who, according to reports from advocates and the Department of Justice,
constitute a large percentage of trafficking cases, n84 continue to lack sufficient employment and
labor protections. The NLRA does not include domestic workers under the definition of employee
under the NLRA and therefore, provides no protection for domestic workers from employer retaliation for striking or collective bargaining. n85 Individual domestic workers working in private
homes are ineligible to assert violations of sex, race or national origin discrimination under Title
VII. n86 Live-in domestic workers are not entitled to overtime pay under the Fair Labor Standards
Act (FLSA). n87 Finally, domestic workers employed by foreign diplomats cannot hold their employers accountable for workplace violations as diplomats enjoy immunity from civil, criminal, or
administrative liability within the United States. n88 While an exception to immunity exists for
"any professional or commercial activity exercised by the diplomatic agent in the receiving State
outside his official functions," n89 the 4th Circuit ruled in Tabion v. Mufti n90 that "commercial
activity" includes only activities for personal profit, explicitly stating that domestic workers are not
"commercial activity." Thus, pursuant to Tabion, domestic workers are denied claims against their
diplomat employers in the civil justice system.
[*338] Farmworkers, comprising a sizeable percentage of known trafficking cases in the U.S.
are similarly deprived of full labor protections. n91 Under federal law, farmworkers are not entitled
to overtime pay. In some cases, special agriculture exemptions for employers who, in a single calendar quarter during a year, do not use more than 500 man days of farm labor, exclude farmworkers
13
from receiving the federal minimum wage of $ 5.15 per hour. The NLRA does not protect farmworkers for organizing activities. Finally, guestworkers under the H-2A program are excluded from
the Agricultural and Seasonal Workers Protection Act, n92 the principal federal labor law for farmworkers. Consequently, H-2A workers are not entitled to disclosure of job terms during recruitment,
transportation safety requirements, or access to federal courts.
3. Impacts of Proposed Immigration Policies
Moreover, the introduction of new policy measures designed to "reform" immigration policy in the
United States, if passed, would exacerbate the exploitation of migrant workers. Introduced by James
Sensenbrenner, HR 4437 n93 passed in the House of Representatives on December 16, 2005. This
enforcement-only bill criminalizes all undocumented immigrants, expands the definition of "alien
smuggling" to hold criminally liable those who assist undocumented immigrants, and expands employment authorization verification requirements to "recruit and refer" entities such as day labor
centers and other workers centers. The Comprehensive Immigration Reform Act of 2006, S 2611,
n94 passed in the Senate on May 25, 2006. It is designed to drastically revamp the U.S. immigration
system and proposes some positive changes, such as a path to legal status for undocumented immigrants and a reduction in immigration backlogs. However, the bill also expands border and interior
enforcement, further criminalizing immigrants, by increasing the number of Border Patrol officers,
mandating expedited removal for non-citizens detained within 100 miles of the border and within
two weeks of entry, and broadening the definition of "aggravated felony" for purposes of deportation.
4. Conclusion
In order to advance the rights of trafficked persons and effectively prevent human trafficking, it is
necessary to dismantle the existing and proposed immigration and labor policies that facilitate trafficking. Reconceptualizing [*339] trafficking as an issue of labor migration takes a step toward
this goal by understanding trafficking as a gross violation of migrants' rights to live and work where
they choose, with freedom from abusive working conditions. A migrant labor rights paradigm, recognizes that labor rights violations remain at the core of trafficking. Globalization and neoliberal
polices have led to a lack of economic opportunity that allow individuals to support themselves and
their families in their sending countries. A demand for cheap and expendable labor increases the
vulnerability of migrant workers susceptible to trafficking. The migrant labor rights approach to
trafficking encourages safe migration for workers as well as worker empowerment through organizing in order for workers to claim their own labor rights.
C. Sexual and Reproductive Health
This section discusses the role of sexual and reproductive health ("SRH") within the U.S. antitrafficking framework. As a starting premise, it is significant to note that similar ideologies of the
Christian evangelical right fuel U.S. governmental policies regulating both SRH and trafficking.
The anti-prostitution pledge restricting grants to anti-trafficking organizations also limits funding to
domestic and international SRH organizations focusing on HIV/AIDS prevention, women's health
and family planning. Such policies hinder the work of these organizations, and more importantly,
stigmatize and marginalize their clients who are predominantly poor women of color from the developing world.
14
tion has the effect of depriving sex workers of safer sex education and contraception. It also prevents the mobilization of sex workers to control the spread of HIV/AIDS by demanding condom use
by their clients.
Advocates agree that any successful effort to combat HIV/AIDS should involve sex workers.
Yet, governmental policies vilify sex workers as the source of HIV/AIDS, rather than viewing them
as people impacted by the disease, entitled to treatment, and uniquely positioned to impact
HIV/AIDS prevention and education. n99 The anti-prostitution pledge forces SRH organizations to
"take sides." By accepting funding from the government, these organizations must condemn their
clients who may choose to engage in sex work, thereby denying sex workers of their fundamental
human right to healthcare.
3. Conclusion
According to advocates, the ideologically driven policies that currently regulate SRH deny medical
services and preventive health care to populations marginalized by poverty, race, gender, sexual
orientation, and social stigma. n100 Instead, a rights-based approach to SRH promotes universal
access to health care by individuals susceptible to trafficking such as migrant women, sex workers,
and others who experience discrimination due to social, economic and political factors.
Human rights advocates also support harm reduction methodologies, recognizing that some individuals may continue to engage in risky behavior. The harm reduction approach seeks to mitigate
health risks by equipping individuals with preventative education and the tools to protect themselves while remaining non-judgmental of their independent lifestyle choices. In contrast, the ideologically driven "abstinence only" approach to SRH takes a moral stance on access to healthcare,
impeding health services to individuals who lead alternative lifestyles. Such an approach limits the
autonomy of individuals to make their own reproductive and sexual health choices.
III. A Revitalized Anti-Trafficking Movement
Based on ongoing discussions between anti-trafficking and human rights advocates from diverse
sectors, there are at least three overarching objectives of a revitalized anti-trafficking movement:
identification of guiding principles; [*342] expansion of a broad anti-trafficking coalition; and a
fundamental shift in the current anti-trafficking rhetoric. These objectives may serve to unify the
distinct subject areas of prostitution, labor migration and reproductive and sexual health. n101
A. Guiding Principles
Guiding principles provide the foundation for a consistent platform to build a cross-sectoral movement advancing trafficked persons' rights, migrant labor rights, and reproductive and sexual health
rights. At a minimum, core principles should include extending comprehensive labor protections to
all migrant and non-migrant workers in all labor sectors including commercial sex, domestic service, agriculture, construction, restaurants, hotels, factories, and any other type of work. Other core
principles may include ending law enforcement rescue raids, and replacing this tactic with community-based responses to assisting trafficked persons and preventing trafficking; developing immigration laws that protect migrant workers and account for the reality of labor migration; recognizing
the autonomy and self-determination of all individuals; protecting and promoting the freedom to
organize for migrant, labor, reproductive and sexual health rights; and actively addressing race, ethnicity, class, gender, sex, sexual orientation, and other factors affecting trafficking.
16
B. Expanded Coalitions
A new coalition committed to the above principles may include groups that have not previously
worked with anti-trafficking organizations or with each other. Such groups include public health
advocacy organizations, grassroots organizations that encourage migrant worker organizing, formal
and informal unions of domestic workers, sex workers and agricultural workers, and anti-border enforcement groups that advocate for safe migration across international borders for all individuals.
Building alliances between these seemingly disparate groups requires identifying the intersecting
issues that connect them with each other and with anti-trafficking advocacy. For example, antitrafficking groups share with domestic workers, sex workers and agricultural workers, the goal of
fair labor conditions. These groups, in turn, connect to public health advocacy by supporting the
right to safe and healthy work environments and the right to access healthcare that respects individual lifestyle choices.
Alliances between these groups should also consider potential points of fragmentation. For example, the prevailing trafficking framework has created implicit categories of trafficking victims,
giving preference and protection to victims of sexual slavery, while denying protection to trafficked
persons [*343] viewed as migrant laborers. Arbitrary determinations by officials that consider
some workers trafficked based on the egregiousness of their working conditions and others not, create "levels" of exploitation that could divide the workers' rights community. For example, the illicit
nature of prostitution may alienate sex workers from a broader migrant worker rights movement.
The migrant labor rights approach emphasizes worker organizing to enforce fair working conditions
and to advocate for increased labor protections. Because sex work is not legally recognized as a
form of labor,, sex workers' rights groups, such as the Sonagachi project in Calcutta, must organize
to not only enforce fair working conditions, but to also advocate for the decriminalization of prostitution. n102
C. A Change in Rhetoric
A cross-sectoral coalition broadening the conceptual framework of trafficking may facilitate the
rejection of the current rhetoric of trafficking. The expansive legal definitions of "trafficking" in the
Palermo Protocol and the TVPA resulted from advocacy of human rights groups to comprehensively define "trafficking," to include men, women, and children compelled to work in any labor
industry. However, the U.S. government's narrow focus on sex trafficking and cooptation of trafficking as a tool for the criminalization of prostitution distorts the meaning of "trafficking." Media
images mirror the conflation of trafficking with prostitution with sensationalized stories of sex
slaves. n103 Symbolically, "trafficking" has regressed to stereotyped images of poor, uneducated,
and helpless young women and girls, forced into prostitution, reminiscent of historical conceptions
of "white sexual slavery" at the turn of the twentieth century. These stereotypes are used to rationalize the U.S. government's criminal enforcement approach to trafficking through "raid and rescue"
practices, which operate on the presumption that brothels imprison passive sex slaves who need to
be rescued by law enforcement. Such perceptions of "trafficking" divert attention away from issues
of globalization and labor migration that drive trafficking and distort the profile of "trafficking victim" to exclude many other migrant workers.
"Trafficking," connoting only "sex," has polluted the efforts of many advocates in accessing
protection for their clients trafficked into non-sex related industries. The disposal of the term "trafficking" altogether could revitalize anti-trafficking advocacy to advance the rights of trafficked
17
workers [*344] in all industries by refocusing anti-trafficking work on reforming the underlying
migration and labor policies that perpetuate the exploitation of all migrant workers. Anti-trafficking
advocates have begun this process through public education efforts and interactions with the media.
By using alternate language to describe trafficking, such as forced or coerced migrant labor, the
reconceptualization of trafficking as a migrant labor rights issue can evolve.
Conclusion
In order to protect the rights of trafficked persons and to work toward the elimination of trafficking,
human rights advocates across multiple sectors should advance a movement based on shared goals.
Current U.S. policies and procedures addressing trafficking divert attention away from underlying
root causes and deprive certain trafficked persons of full access to immigration and labor protections. Moreover, related U.S. policies on labor migration, reproductive, and sexual health rights operate to restrict the rights of not only trafficked persons, but more generally migrant workers and
women. New understandings of trafficking as it impacts and is affected by a broad spectrum of issues connect advocates in different but related fields. This reconceptualization can serve to build an
inter-sectoral movement for the labor and reproductive and sexual health rights of all individuals,
regardless of occupation, citizenship or immigration status.
Developing new approaches to human trafficking to better serve the needs and rights of survivors of trafficking and migrant workers in all industries will entail collaborations among organizations and movements that have been largely divided against each other until recently. The very goal
of centering the needs and rights of migrant workers runs counter to the current U.S. federal agenda
of criminalizing prostitution. While compliance with this agenda has been enforced through the
anti-prostitution pledge and many other U.S. government measures that have created suspicions and
divisions among groups, perspectives from the field(s) indicate that many advocates have transcended the government's divisive tactics, and are beginning to forge effective alliances in the
broader movement against human trafficking.
Certainly more work is needed to counter these divisions and facilitate the critical and logical
links between immigrant rights, labor rights, sex worker rights, sexual and reproductive health, and
anti-trafficking advocacy, organizing and scholarship. Yet there are already several emerging models of U.S. and international organizations working against, within and around the constraints of the
U.S. federal approach towards more effective responses. These groups provide social services, support organizing, create analyses and inform policies that can better meet the needs of survivors of
trafficking, all exploited migrant workers and the victims of other harmful U.S.-sponsored "antitrafficking" activities.
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental FreedomsJudicial & Legislative RestraintsOverbreadth & VaguenessCriminal Law & ProcedureCriminal OffensesSex CrimesProstitutionElementsLabor & Employment LawEmployee PrivacyDisclosure of Employee InformationPublic Employees
18
FOOTNOTES:
n1. These gatherings include "Shaping the Future: New Voices & Strategies on Human
Trafficking," a conference sponsored by the Freedom Network, in Chicago, IL, March 2006;
"Sex Work Matters: Beyond Divides," a conference sponsored by CUNY Graduate Center
and the New School for Social Research in New York, NY, March 2006; and "Summit on
Human Trafficking,: Critiques and New Strategies," a conference sponsored by the Global
Fund for Women and the Open Society Institute in New York, NY, May 2006.
n2. Summit on Human Trafficking: Critiques and New Strategies, Open Society Institute,
New York, New York, May 2006. This two-day meeting was funded by a generous grant
from Global Fund for Women. The Summit was organized by Lin Chew, who was Activistin-Residence for the Global Fund for Women, Ann Jordan, Director of the Initiative Against
Trafficking In Persons at Global Rights, Kathleen Kim, who was Immigrants' Rights Teaching Fellow at Stanford Law School, and Alice Miller, Assistant Professor of Clinical Public
Health at Columbia University. The Summit brought together human rights advocates who
work in the interrelated fields of anti-trafficking, labor migration, sex workers' rights, and
sexual and reproductive health. Summit participants shared perspectives on current struggles
within their work posed by current U.S. policies and practices with an aim to launch an intersectoral movement to advance the rights of trafficked persons.
n3. See e.g., Edi C. M. Kinney, Appropriations for the Abolitionists: Undermining Effects
of the U.S. Mandatory Anti-Prostitution Pledge in the Fight Against Human Trafficking and
HIV/AIDS, 21 Berkeley J. Gender L. & Just. 158 (2006).
n4. See e.g., Urban Justice Ctr., Statement on Trafficking in Persons for the 51st Session
of the U.N. Commission for the Status of Women on the "Elimination of All Forms of Discrimination and Violence Against the Girl Child" (2007), available at
http://www.urbanjustice.org/pdf/publications/swp csw 51 statement.pdf; see also Urban Justice Ctr., Working Group on Sex Work and Human Rights, Toolkit (on file with author). The
Sex Workers Project at the Urban Justice Ctr. is an invaluable resource and has accomplished
tremendous advocacy on behalf of trafficked persons and sex workers.
n5. Bureau of Pub. Aff., Dep't of State, The Link Between Prostitution and Sex Trafficking, (Nov. 24, 2004), http://www.state.gov/r/pa/ei/rls/38790.htm.
n6. Letter from Ann Jordan, Director, Initiative Against Trafficking In Persons, Global
Rights, et al., to John Miller, Director, Office to Monitor and Combat Trafficking In Persons,
U.S. Dep't of State (Apr. 21, 2005) (on file with author).
n7. U.S. Gen. Acct. Office, GAO-06-825, Better Data, Strategy, and Reporting Needed to
Enhance U.S. Antitrafficking Efforts Abroad 2 (2006), available at www.gao.gov/cgibin/getrpt?GAO-06-825.
19
n8. Press Release, White House Off. of the Press Secretary, Trafficking in Persons National Security Presidential Directive (Feb. 25, 2003) (on file with author).
n9. U.S. Dep't of Just., Report on Activities to Combat Human Trafficking: Fiscal Years
2001-2005, 6 (2006), [hereinafter U.S. Dep't of Justice] available at
http://www.usdoj.gov/crt/crim/trafficking report 2006.pdf.
n10. Id. at 6.
n11. Id. at 6.
n12. 22 U.S.C. 7110(g)(1) (2006) (barring use of funds to "promote, support, or advocate the legalization or practice of prostitution").
n13. Id. (requiring organizations receiving funding to state "in either a grant application, a
grant agreement, or both, that it does not promote, support or advocate the legalization or
practice of prostitution").
n14. 22 U.S.C. 7631(e)-(f) (2003) (barring use of funds to "promote or advocate the legalization or practice of prostitution or sex trafficking" and requiring organizations receiving
funding to "have a policy explicitly opposing prostitution and sex trafficking").
n15. Letter from Daniel Levin, Acting Assistant Attorney General, U.S. Dep't of Justice,
to Alex M. Azar II, General Counsel, U.S. Dep't of Health and Human Svcs. (Sept. 20, 2004),
available at http://www.globalrights.org/site/DocServer/Update letter on funding restrictions.2005.doc?docID=4224.
n16. 22 U.S.C. 7110(g)(1) (2006).
n17. Letter from Ann Jordan, Director, Initiative Against Trafficking in Persons, Global
Rights to Friends (Jan. 7, 2004) (on file with author); Letter from Rep. Henry A. Waxman, to
Alberto Gonzales, Attorney General, U.S. Dep't. of Just. (Apr. 13, 2005) (on file with author).
n18. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (invalidating a
requirement to pledge allegiance as a condition of attending public school).
n19. Rust v. Sullivan, 500 U.S. 173, 196 (1991).
20
n20. Letter from Ctr. for Gender and Health Equality, et al., to George W. Bush, President, United States of America, (May 18, 2005) (on file with author), available at
http://www.aidsinfonyc.org/tag/activism/globalAppropriations.html (citing an interview by
Alice Miller, Columbia Univ. Law School, with Elaine Pearson, Anti-Slavery International,
Bangkok, Thailand in July 2004 that discussed NGOs in Cambodia discontinuing "plans to
provide English language training classes for people working in the commercial sex sector for
fear such programs would be interpreted as "promoting prostitution").
n21. Id.
n22. Michael M. Phillips & Matt Moffett, Brazil Refuses U.S. Aids Funds, Rejects Conditions, Wall St. J., May 2, 2005, at A3.
n23. Alliance for Open Soc'y Int'l, Inc. v. United States Agency for Int'l Dev., 430 F. Supp.
2d 222 (S.D.N.Y. 2006).
n24. DKT Int'l, Inc. v. United States Agency for Int'l Dev., 435 F. Supp. 2d 5 (D.D.C.
2006).
n25. See Complaint, DKT Int'l, Inc., 435 F.Supp. 2d 5 (Civ. No. 05-1604 (EGS)) 2005
WL 3568821, available at http://www.brennancenter.org/programs/downloads/dkt district
court complaint.pdf; see also Complaint, Alliance for Open Society International, Inc., and
Open Society Institute, 435 F. Supp 2d 222 (No. 05 Civ. 8209) , available at
http://www.brennancenter.org/dynamic/subpages/download file 8355.pdf.
n26. See supra note 25.
n27. Id.
n28. 22 U.S.C. 7110(g)(1) (2006).
n29. Letter from Daniel Levin, supra note 15.
n30. Press Release, EngenderHealth, U.S. Court Rules Antiprostitution Loyalty Oath Unconstitutional, (June 8, 2006), available at
http://www.engenderhealth.org/news/newsreleases/060607a.html.
n31. U.S. Dep't of Justice, supra note 9, at 25.
n32. Kathryn McMahon & Coalition to Abolish Slavery and Trafficking, Speaking Out:
Three Narratives of Women Trafficked to the United States (2002).
21
22
23
25
n88. Human Rights Watch, Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States 34-35 (2001).
n89. Vienna Convention on Diplomatic Relations art. 31(c), Apr. 18, 1961, 23 U.S.T.
3227.
n90. 73 F.3d 535 (4th Cir. 1996).
n91. United States v. Bradley, 390 F.3d 145 (1st Cir. 2004); United States v. Flores, No.
98-4178, 1999 WL 982041 (4th Cir. Oct. 29, 1999); United States v. Garcia, No. 02-110,
2003 WL 22938040 (W.D.N.Y. Dec. 2, 2003); United States v. Michael Lee, No. 00-14065
(S.D. Fla. 2000).
n92. 29 U.S.C. 1851 (2002).
n93. H.R. 4437, 109th Cong. (2nd Sess. 2006).
n94. S. 2611, 109th Cong. (2nd Sess. 2006).
n95. Fourth World Conference on Women, Sept. 4-15, 1995, Beijing Declaration and
Platform for Action, U.N. Doc A/CONF.177/20 (September 15, 1995).
n96. Id. at P 83(k).
n97. Eldis, Key Debates in Sexual and Reproductive Health and Rights, http://www.eldis.org/health/srhr/debates.htm (last visited June 3, 2007).
n98. Sharon Jayson, Abstinence Message Goes Beyond Teens, USA Today, (Oct. 30,
2006).
n99. Urban Justice Ctr., Working Group on Sex Work and Human Rights, Toolkit (2006)
(on file with author).
n100. Eldis Health Key Issues, Universal Access to Sexual and Reproductive Health Services (2006), available at http://www.eldis.org/health/Universal/universal access.pdf.
n101. Discussion notes from the Summit on Human Trafficking: Critiques and New
Strategies, supra note 2 (on file with author).
26
n102. Smarajit Jana et al., The Sonagachi Project: A Sustainable Community Intervention
Program, 16 AIDS Educ. & Prevention 5, 405-414 (2004).
n103. See, e.g., Peter Landesman, The Girls Next Door, N.Y. Times, January 25, 2004, at
sec. 6; Meredith May, Sex Trafficking: San Francisco Is A Major Center For International
Crime Networks That Smuggle And Enslave, S.F. Chron. Oct. 6, 2006, at A1.
27
+(,121/,1(
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APRIL 2005
NO. 3
ARTICLES
POLYGAMY, PROSTITUTION, AND THE FEDERALIZATION
OF IMMIGRATION LAW
Keny Abrams*
When Congress banned the immigration of Chinese prostitutes with the
Page Law of 1875, it was the first restrictivefederal immigration statute.
Yet most scholarship treats the passage of the Page Law as a relatively unimportant event, viewing the later Chinese Exclusion Act as the crucial
landmark in the federalization of immigration law.
This Article argues that the Page Law was not a minor statute targeting a narrow class of criminals, but rather an attempt to prevent Chinese
women in generalfrom immigrating to the United States. Most Chinese women migrating to the United States in the early 1870s were prostitutes or
second wives in polygamous marriages. Congressfeared the unorthodox Chinese practices of polygamy and prostitution,believing that these customs were
reflective of an underlying slave-like mentality that rendered the Chinese unfit for democratic self-governance. By identifying and excluding Chinese women as prostitutes, the law prevented the birth of Chinese American children
and stunted the growth of Chinese American communities.
The Page Law was an important statute not only because of its goals,
but also because of its method. America's internationaltrade objectives and
treaty obligations made outright restrictions on Chinese immigration untenable in 1875. By targetingmarginalimmigrants-women, and prostitutes at
that-Congresswas able to restrict Chinese immigration while maintaining
a veneer of inclusiveness. Thus, in passing the first restrictivefederal immigration law, Congress managed to exclude a group of people by defining
them as outside the boundaries of legal marriage.
* Acting Assistant Professor, New York University School of Law, Lawyering Program.
For their many helpful suggestions and insights, I thank Amy Adler, Barbara Allen
Babcock, the late Kim Barry, Peggy Cooper Davis, Ariela Dubler, Barry Friedman, Brandon
Garrett, Sally Gordon, Janet Halley, Kari Hong, Larry Kramer, Deborah Malamud, Hiroshi
Motomura, William Nelson, Gerald Neuman, and Todd Stevens. Reed Davis and Nancy
Rimmer provided excellent research assistance. Earlier versions of this article benefited
greatly from presentations at the New York University Legal History Colloquium and the
New York University Lawyering Program Faculty Workshop, and I thank everyone who
participated. Finally, I want to thank Zachary Tripp of the Columbia Law Review for his
thoughtful and careful editorial work. All errors are my own.
[Vol. 105:641
642
INTRODUCTION .....................................................
I.
WEST .......................................................
A. The Economic Origins of Chinese Immigration .......
B. Marriage, Morals, and the Threat of Chinese Women.
1. Chinese Marriage Customs: Polygamy and
Prostitution ......................................
2. The Link to Slavery ..............................
3. The Threat of Reproduction .....................
II.
664
668
668
671
677
678
680
681
684
687
THE PAGE
LAw .....................................................
A. Legislative History ...................................
B. The Statute ..........................................
C. Enforcem ent .........................................
V.
653
657
661
664
648
649
653
690
692
695
698
702
703
706
710
715
INTRODUCTION
2005]
643
practices of polygamy and prostitution, but also believed that these customs rendered the Chinese unfit for self-governance. Congress viewed
these institutions as reflective of an underlying "slave-like" mentality, fundamentally at odds with citizenship in a participatory democracy.
Both prostitution and polygamy were deeply entrenched practices in
Chinese immigrant culture-and were deeply antithetical to American
conceptions of marriage as a consensual "love match." Indeed, most female Chinese immigrants during this period were either prostitutes or
second wives in polygamous marriages. The Fourteenth Amendment's
command that "[a] 11 persons born or naturalized in the United States...
are citizens of the United States"1 created an additional concern: The
children of these "slave-like" Chinese immigrants would become American citizens, and these practices would thus become part of the fabric of
American democracy. To prevent this from happening, it was necessary
to prevent Chinese women-especially prostitutes and second wivesfrom entering the country.
In 1875, Congress passed the first federal restrictive immigration statute: the Page Law. 2 This law banned the immigration of women who
had entered into contracts for "lewd and immoral purposes," made it a
felony to import women into the United States for purposes of prostitution, and included enforcement mechanisms specifically targeting Chinese women. The text, legislative history, historical context, and enforcement of the Page Law indicate that one of its animating purposes was to
prevent the Chinese practices of polygamy and prostitution from gaining
a foothold in the United States. Thus, concern about preserving traditional American conceptions of marriage and family lies at the root of
our federal immigration system.
Both the federal and state governments targeted female Chinese immigrants in an effort to protect traditional marriage and sexual norms.
In the face of expanding federal power, California in particular struggled
to maintain control over its Chinese population. To avoid the charge
that it was impermissibly regulating "immigration," it crafted its exclusionary laws as regulations of public morals. While California could not
exclude Chinese women for being "Chinese," it could exclude them by
classifying them as outside the acceptable category of "wives." This
proved to be a particularly effective method of regulation because such
laws did not appear to directly target immigration.
As the power to restrict immigration shifted from the states to the
federal government, however, courts struggled to determine whether
morals legislation targeting foreign prostitutes constituted regulation of
vice properly exercised under the states' police power, or a foreign policy
question that should be determined by the federal government. Federal
courts ultimately struck down state legislation as an impermissible intru1. U.S. Const. amend. XIV, 1.
2. Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477 (repealed 1974).
[Vol. 105:641
2005]
645
[Vol. 105:641
Law as the decisive marker of a shift from state to federal control over
immigration, they do not focus on its targeting of Chinese prostitution. 9
Historians who have examined the Page Law have generally done so in
debates about the significance of the Page Law's impact on the formation
of Chinese families in the United States, 10 or in debating whether Chi271, 277 (2002) (identifying the Chinese Exclusion Act as the "first racially based
immigration restriction in United States history"); Patrick Weil, Races at the Gate: A
Century of Racial Distinctions in American Immigration Policy (1865-1965), 15 Geo.
Immigr. L.J. 625, 626 (2001) (identifying discrimination against Asians as originating from
two acts of Congress-the Naturalization Act of 1870 and the Chinese Exclusion Act of
1882-but omitting any reference to the Page Law).
9. See, e.g., Charles Gordon et al., Immigration Law and Procedure 1.03[2] [a],
2.01, 2.02[2] (rev. ed. 2004) (acknowledging that the Page Law marked an important shift,
but only mentioning in passing that it barred "convicts and prostitutes"); Hyung-chan Kim,
A Legal History of Asian Americans, 1790-1990, at 53-54 (1994) (discussing briefly the
Page Law in the context of laws excluding Chinese male laborers in the 1860s and 1870s);
Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental
Law 45, 217 n.9 (1996) (hereinafter Neuman, Strangers to the Constitution] (emphasizing
throughout book that the Page Law was the first federal immigration law, but only
acknowledging that the Page Law targeted prostitution in one footnote); Sarah H.
Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the
Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 106 &
n.727 (2002) (stating in passing that "Congress did not pass a major immigration act until
1875" and mentioning in footnote that the Page Law "prohibited the entry of convicts,
prostitutes, and involuntary 'Oriental' laborers"); Gregory Fehlings, Storm on the
Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int'l Law 63, 113 (2002)
(describing the Page Law as prohibiting the "entry of certain kinds of voluntary
immigrants"); Louis Henkin, The Constitution and United States Sovereignty: A Century
of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 855-56, 856 n.11 (1987)
(explaining that the Page Law was passed due to "unemployment, economic depression,
and growing 'nativism,' racism, and xenophobia," but mentioning only in a single footnote
that the law excluded prostitutes); Hiroshi Motomura, The Curious Evolution of
Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum.
L. Rev. 1625, 1626, 1632-33 (1992) [hereinafter Motomura, Curious Evolution]
(identifying 1875 as year of onset of federal immigration law, but not identifying the Page
Law's content). Recently, several scholars have started to fill this gap. See Cott, supra note
5, at 136-38 (explaining importance of the Page Law for Chinese immigration); Bill Ong
Hing, Making and Remaking Asian America Through Immigration Policy, 1850-1990, at
23 (1993) (noting that most historians have neglected the Page Law and offering a twoparagraph description of the Page Law's effects on immigration); Lucy E. Salyer, Laws
Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law 5
(1995) (tracing federal curtailment of state immigration regulation to 1876 and
mentioning the role of the Page Law).
10. See, e.g., George Anthony Peffer, If They Don't Bring Their Women Here:
Chinese Female Immigration Before Exclusion (1999) (arguing that the Page Law
prevented Chinese family formation in the United States); Benson Tong, Unsubmissive
Women: Chinese Prostitutes in Nineteenth-Century San Francisco 50, 57 (1994) (arguing
that enforcement of Page Law was lax); Sucheng Chan, The Exclusion of Chinese Women,
1870-1943, in Entry Denied, supra note 8, at 94, 106-09 (arguing that Page Law had
substantial effect on Chinese immigration); Lucie Cheng Hirata, Free, Indentured,
Enslaved: Chinese Prostitutes in Nineteenth-Century America, 5 Signs 3, 10 (1979)
(concluding that effect of Page Law was unclear); Adam McKeown, Transnational Chinese
Families and Chinese Exclusion, 1875-1943, 18 J. Am. Ethnic Hist. 73, 78 (1999)
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and that the real number was somewhere closer to fifty percent. 56 Even
the fifty percent figure represents a significant portion of Chinese women. Those who were not classified as prostitutes were reported to be
laundresses, miners, servants, seamstresses, cooks, or lodging house
57
operators.
Deteriorating economic conditions in China rendered families destitute, contributing to the immigration of both ordinary women and prostitutes. 5 8 The traffic in Chinese prostitutes was dominated by tongs (secret
criminal gangs), who sent representatives to China to procure girls from
their families. In an attempt to ameliorate their economic conditions,
many families sold their daughters to tong representatives, who claimed
56. Peffer, supra note 10, at 11. Peffer estimates that California census records for
1870 underreported the number of Chinese non-prostitute wives by over five hundred. If
the numbers were really as high as those reported by census takers, Peffer reasons, there
would have been a massive overabundance of prostitutes in Chinatown, yet prostitutes
remained very valuable commodities for importation, worth as much as $2,500. Id. at 7
(citing Hirata, supra note 10, at 12). Much of the inaccuracy resulted from the census
takers' ignorance of Chinese culture. In his detailed analysis of the 1870 census, for
example, Peffer found that one census taker, an Irish immigrant unfamiliar with Chinese
culture, found that ninety percent of the women in his jurisdictions were prostitutes, where
another census taker, who as head of the Chinese Protection Society had greater familiarity
with Chinese culture and marriage customs, found that approximately half of the women
in his jurisdiction were prostitutes. Id. at 90-94 & nn.17-47. Single women living in
households with men were presumed by census takers to be prostitutes, even if the men
they lived with were members of their extended family. But many Chinese residents of San
Francisco's Chinatown lived in large, mixed-gender groups, so it is likely that many
women-both single and married-who were not prostitutes lived in household groups
that included several men. Id. at 91 (stating that the average mixed-gender dwelling in San
Francisco's Chinatown contained seventeen people). Sue Fawn Chung has discovered
similar problems with the 1870 census for Virginia City, Nevada. Sue Fawn Chung, Their
Changing World: Chinese Women on the Comstock, 1860-1910, in Comstock Women:
The Making of a Mining Community 203, 208 (Ronald M. James & C. Elizabeth Raymond
eds., 1998).
57. Tong, supra note 10, at 95 tbl.2. It is unsurprising that women who were
prostitutes did not hide their profession from census takers-prostitution as a status was
not illegal, although "keeping a house of ill fame" or being an "inmate of a house of ill
fame" was. Id. at 115.
58. Ninety percent of the Chinese who immigrated to America were from Guangdong
province. Guangdong had undergone an enormous growth in population during the early
1800s. This growth, combined with a crumbling economy in the wake of the Opium Wars
and a shortage of arable land, resulted in a rice shortage and left many residents in
extreme poverty. In this weakened state, China in general-and Guangdong in
particular-became vulnerable to armed uprisings and local conflicts throughout the
1850s and 1860s. In addition, Guangdong was the site of myriad natural disasters from the
1830s to the 1870s, including droughts, floods, typhoons, crop failures, and famines. See
Hing, supra note 9, at 19-20 (noting that dramatic population increases, rice shortages,
and an unstable political situation led many Chinese to immigrate to America); see also
Tong, supra note 10, at 35-44 (describing the impact of European economic imperialism
and natural disasters). But see Chen, supra note 11, at 40 (arguing it was not poverty but
"[a] dynamic market economy that had existed there for decades" that "produced
individuals who were able to appreciate the significance of the news about California gold
and who were willing to act on their understanding of the importance of this news").
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[Vol. 105:641
the word "Chinese" was stricken from the law and all houses of prostitu68
tion were declared nuisances.
Despite the large numbers of Chinese women working as prostitutes
in San Francisco, many of the women who came to the United States as
immigrants from China came not as prostitutes but as laborers and wives.
There are several documented instances of Chinese women accompanying their husbands on the voyage to America as early as the 1850s and
1860s. 69 By 1876, at0 least several hundred recognizable families had re7
unified or formed.
Census takers may have underestimated the number of wives living
in Chinatown because they failed to distinguish among second wives, concubines, and prostitutes. The household structure in prerevolutionary
China was significantly different than in most American homes. Three
generations lived together, and while the husband was the patriarchal
head of the family, the husband's mother ruled within the realm of the
household. 7 1 If a man could afford to, he would take on more than one
wife. 72 Men also took concubines to produce heirs if their wives were
childless. 73 The "primary wife"-usually the first wife-enjoyed a higher
status than the secondary wives and was responsible for the care of the
family residence in China and the children. 7 4 Because the first wife
tended to remain with the husband's family in China, many Chinese women in the United States were "secondary wives." 75 Furthermore, the distinction between "wife" and "prostitute" was not static: Many women
brought to the United States as prostitutes later escaped prostitution by
76
becoming the wives of Chinese laborers.
Some historians have also argued that there may have been groups
of Chinese women living together in San Francisco who were neither
68. Act of Feb. 7, 1874, ch. 76, 1874 Cal. Stat. 84.
69. See Takaki, A Different Mirror, supra note 25, at 210-11.
70. Id. at 211.
71. Yung, Unbound Feet, supra note 17, at 45-46.
72. Id. at 19, 320 n.89; Adam McKeown, Conceptualizing Chinese Diasporas, 1842 to
1949, 58J. Asian Stud. 306, 318 (1999); see also Record at 37-38, Chy Lung v. Freeman, 92
U.S. 275 (1876) (No. 478) (testimony of Chung Fing).
73. Peggy Pascoe, Gender Systems in Conflict: The Marriages of Mission-Educated
Chinese American Women, 1874-1939, in Unequal Sisters 139, 141 (Vicki L. Ruiz & Ellen
Carol DuBois eds., 2d ed. 1994).
74. Chang-tu Hu, China: Its People Its Society Its Culture 170 (1960) ("A concubine,
unlike a mistress, had legal rights, but these were inferior to those of the first wife .... It
was easier to divorce a concubine, who was socially inferior to the wife.").
75. See McKeown, Transnational Chinese Families, supra note 10, at 98-99.
76. See Yung, Unbound Feet, supra note 17, at 41. Lucie Cheng Hirata has noted
that Chinese working people did not attach a stigma to prostitution because prostitutes in
China were not seen as "fallen women" but as daughters who obeyed the wishes of their
families. Women in China who left prostitution were therefore usually accepted in
working-class society. This cultural difference, together with a shortage of women in San
Francisco, resulted in Chinese men being willing to take former prostitutes as wives.
2005]
657
wives nor prostitutes. In the Pearl River Delta area (the area in the
Guangdong Province from which most San Franciscan Chinese emigrated), there was a longstanding tradition of unmarried women who
lived in "girls' houses. '77 These women were called zishu nu, or "selfcombed women," because they underwent a ceremony in which they
combed their hair in a certain way and declared their intention to live
without husbands. 78 Groups of "self-combed women" would live together
as "sworn sisters," sometimes even adopting children. The sworn sisters
and their adopted children functioned as financially independent family
units. 79 They performed valuable labor, such as rearing silkworms, tending mulberry trees, spinning silk threads, and weaving, that gave them
financial independence.8 0 Some of them may have been lesbians.,
Chen speculates that census takers may have overreported the number of
brothels in San Francisco because they were unaware of the tradition of
"self-combed women" and therefore assumed that any house consisting
only of women must by definition be a brothel.8 2 It is difficult to ascertain from census figures, however, whether "self-combed women" mi8 3
grated to San Francisco.
In short, most Chinese women who migrated to California during
the 1860s and 1870s were second wives, concubines in polygamous marriages, or prostitutes. Americans were right to conclude that the Chinese
were more tolerant of prostitution and that they practiced polygamy, but
were certainly wrong to believe that all female Chinese immigrants
worked as prostitutes. Ultimately, however, the technical truth of
whether a particular woman worked as a prostitute was not what mattered: Polygamy and prostitution were taken as evidence that Chinese
culture embodied a slave-like mentality.
2. The Link to Slavery. - Moral opprobrium of prostitution and polygamy had particular resonance following the Civil War. The public debate over emancipation and the ultimate abolition of slavery brought new
focus to the evils of coercion, not only in labor, but also in marriage and
sexual relations. Prostitution, which had been prevalent throughout the
developing West, began to be viewed through this lens. Prostitution was
77. Chen, supra note 11, at 82-83;Janice E. Stockard, Daughters of the Canton Delta:
Marriage Patterns and Economic Strategies in South China, 1860-1930, at 31-41 (1989).
78. Stockard, supra note 77, at 70 (Stockard transliterates the term as 'jihso neuih").
79. Chen, supra note 11, at 83.
80. Yung, Unbound Feet, supra note 17, at 20.
81. Id; see also McKeown, Transnational Chinese Families, supra note 10, at 99-100
(noting that many female silk laborers practiced "delayed transfer marriage" in which they
did not move into their husbands' homes until years after marriage, if ever, and sometimes
purchased a secondary wife for him as compensation, and that others joined "spinster
houses" or married the ghosts of dead men to avoid marriage).
82. Chen, supra note 11, at 83.
83. See McKeown, Transnational Chinese Families, supra note 10, at 100 (arguing
that delayed transfer marriage was restricted to localized areas where silk production
offered an independent source of income for women).
[Vol. 105:641
from the taint of commerce. Or, in the words of the historian Nancy
Cott, "Prostitution and marriage were opposites: where marriage implied
mutual love and consent, legality and formality, willing bonds for a good
bargain, prostitution signified sordid monetary exchange and despera88
tion or coercion on the part of the woman involved."
The links between marriage and consent and between prostitution
and coercion may explain the widespread belief that all Chinese women
were prostitutes and that all or nearly all of them were kidnapped or
duped into migrating.89 Nancy Cott has attributed this thinking to the
"Victorian presumption that women felt only minimal sexual desire, and
would engage in sex willingly only for love or the prospect of maternity."9 0 Unfortunately for Chinese female immigrants, the purported involuntariness of their participation in prostitution did not make them
more sympathetic as immigrants. The problem was their slavish character: White women "so much better understood" their rights that they
were less likely to be duped into indentured servitude and were therefore
less of a moral threat. 9 1
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[Vol. 105:641
Freedman's Bureau should protect Mormon plural wives, since they were
indistinguishable from slaves. 9 9
Even where it existed independently from the nation's history of
chattel slavery, as with the practice of polygamy by members of the Mormon church, polygamy appeared to be synonymous with slavery. The
Mormon practice of polygamy outraged lawmakers, not only because it
appeared to promote lasciviousness, but also because it created a form of
despotism that extended beyond the family into the political realm:
As to polygamy, I admit, nay, I charge it to be a crying evil; sapping not only the physical constitutions of the people practicing
it, dwarfing their physical proportions and emasculating their
energies, but at the same time perverting the social virtues, and
vitiating the morals of its victims.... It is often an adjunct to
political despotism; and invariably begets among the people
who practice it the extremes of brutal blood-thirstiness or timid
and mean prevarication. 0 0
The antipolygamist movement inspired unprecedented federal action against the Mormon church. In 1862, Congress passed the Morrill
Act for the Suppression of Polygamy. 10 1 The Act was designed to attack
the Mormon-controlled legal system in Utah by, among other things, outlawing polygamy in the territories. 10 2 The Morrill Act, like the Page Law
after it, represented a dramatic and unprecedented exercise of federal
power. 10 3 The argument that polygamy was so threatening that it mandated the exercise of federal power to eradicate it resurfaced again the
1880s, with the proposal of a "United States marriage law" that would
have implemented uniform divorce laws and prevented rogue states like
Indiana and Utah (where polygamous marriages in particular led to high
0 4
rates of divorce) from "sapping the nation's moral strength."1
The Supreme Court itself endorsed the theory that polygamy led to
political despotism in its opinion in Reynolds v. United States,10 5 in which it
upheld the provisions of the Morrill Act that made polygamy a crime.
Citing the political scientist Francis Lieber, the Court classified polygamy
as a type of slavery, one that "leads to the patriarchal principle, and
99. Cott, supra note 5, at 113.
100. Cong. Globe, 36th Cong., 1st Sess. 1514 (1860) (statement of Rep. McClernand).
101. Act of July 1, 1862 (Anti-Polygamy Act), ch. 126, 12 Stat. 501 (repealed 1910).
102. Id. 1. The Act also annulled the Utah territorial legislature's incorporation of
the Church of Jesus Christ of Latter-day Saints and prohibited any religious organization
from owning real estate valued at more than $50,000. Id. 2-3.
103. As Professor Gordon has argued:
The federal government had never before assumed such supervisory power over
structures of private authority. The Morrill Act was unprecedented, especially in
light of the majority opinion in the Dred Scott case, which only five years before
had invalidated attempts to ban slavery in the territories .... [F]ederal legislation
on marriage was a prelude to action against slavery.
Gordon, supra note 96, at 81-82.
104. See id. at 177.
105. 98 U.S. 145 (1878).
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661
which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with
monogamy."1 0 6 This understanding of polygamy as a form of slavery created such pressure on the Mormon church that it officially repudiated
the practice in 1890.107 When Utah was finally admitted to the Union as
a state in 1894, it was admitted on the condition that "polygamous or
10 8
plural marriages are forever prohibited."
The Reynolds court traced the origins of polygamy to, among others,
the Chinese, explaining that " [p] olygamy has always been odious among
the northern and western nations of Europe, and, until the establishment
of the Mormon Church, was almost exclusively a feature of the life of
Asiatic and of African people."10 9 The same understanding of polygamy
influenced the debate over Chinese female immigrants. Even those who
were sympathetic to the Chinese commented on their practice of
polygamy:
Aside from prejudice, which proceeds from ignorance, there is
nothing in the habits or customs of the Chinese calculated to
injure the morals or business of any intelligent American community.... They are as religious, in their way, as the majority of
the inhabitants of this city, and their system of marriage, if not
in accord with our notions, is not worse than Mormonism and
Free Love. 110
Others were more vituperative in their identification of polygamy as
an innate Chinese trait. The "yellow race; the Mongol race" were a "people to whom polygamy is as natural as monogamy is with us," stated one
senator.1 1 1 The tendency to engage in polygamy was, like prostitution,
considered a racial trait, and its presence on the West Coast presented a
challenge to Christian, monogamous marriage. 112 Lawmakers needed to
find a way to keep Chinese women-the harbingers of disease and "moral
death" 1 1 3-out of the United States.
3. The Threat of Reproduction. - A slave-like nature in itself would
have been bad enough, but Chinese women posed an additional threat
not shared by men: the threat of reproduction. As long as Chinese men
migrated alone, the argument went, they would eventually return home
106. Id. at 166.
107. Cott, supra note 5, at 120.
108. Act of July 16, 1894, ch. 138, 3, 28 Stat. 107, 108.
109. Reynolds, 98 U.S. at 164.
110. H.C. Bennett, The Chinese in California: Their Numbers and Influence,
Sacramento Daily Union, Nov. 27, 1869, at 8 (on file with the Columbia Law Review).
111. Cong. Globe, 39th Cong., 1st Sess. 2891 (1866) (statement of Sen. Cowan).
112. Francis Lieber, in an unsigned article in Putnam'sMonthly, identified monogamy
as "one of the elementary distinctions-historical and actual-between European and
Asiatic humanity" and claimed that destroying monogamy would "destroy our very being;
and when we say our, we mean our race." The Mormons: Shall Utah Be Admitted into the
Union? 5 Putnam's Monthly 225, 234 (1855).
113. Cole Interview, supra note 92; see also infra text accompanying note 126.
[Vol. 105:641
to China to be with their families or die in the United States." l 4 If Chinese women migrated, however, a second generation of Chinese would
be born.
Unlike their parents, the second generation would not be immigrants but citizens. Chinese immigrants could not be naturalized: When
Congress amended the Naturalization Act of 1790, which had limited naturalization to whites,' '5 it deliberately denied the Chinese the right to
naturalize, extending that right only to African Americans.' 1 6 But after
the Fourteenth Amendment was ratified in 1868, "all persons born or
naturalized in the United States" were citizens of the United States and
the state in which they resided.' 17 American-born Chinese were therefore American citizens.' 18 While Chinese men were undesirable in that
they provided competition for white labor, the addition of Chinese women provided an entirely new threat-a challenge to California's future
as a white, Christian state.' 19
The threat of reproduction was not only a literal threat that children
recognizable as racially Chinese would populate the West Coast, but also
that a second generation would make possible the reproduction of Chinese culture. The Pacific coast, Congress announced in 1876, "must in
time become either American or Mongolian. ' 120 Chinese immigrants
must be denied citizenship, the argument went, because the "Mongolian
race seems to have no desire for progress, and to have no conception of
representative and free institutions." 121 Denying the ballot to this "servile
22
class" was "a necessary means to public safety."'
Chinese women also posed a threat of miscegenation that would result in a weak, hybrid race. Nineteenth-century theories of race posited
several distinct races, each with innate characteristics, and held that mix23
ing these races would result in the degeneration of the superior race.'
114. See Committee Report, supra note 89, at 103 (statement of Frank M. Pixley, esq.,
representing the City of San Francisco) (stating that Chinese laborers come to the United
States "to earn a certain sum of money and return").
115. Act of Mar. 26, 1790 (Naturalization Act), ch. 3, 1, 1 Stat. 103, 103 (repealed
1795).
116. Act ofJuly 14, 1870 (Naturalization Act), ch. 254, 7, 16 Stat. 254, 256 (repealed
1952).
117. U.S. Const. amend. XIV, 1.
118. The right of American-born persons of Chinese descent to American citizenship
under the Fourteenth Amendment was ultimately confirmed in United States v. Wong Kim
Ark, 169 U.S. 649 (1898).
119. See Cott, supra note 5, at 135-38.
120. Committee Report, supra note 89, at v; see also id. at vii ("[T]heir number in
California at the present time is so great that they could control any election if the ballot
was put into their hands.").
121. Id. at v.
122. Id.
123. Cott, supra note 5, at 134-35 ("[W]hen 'lower' races intermingled with 'higher'
ones, the tendency of the whole was to 'degenerate' to the lower type."); see also Megumi
Dick Osumi, Asians and California's Anti-Miscegenation Laws, in Asian and Pacific
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2005]
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[Vol. 105:641
the world or from the state next door. 1 4 2 Gerald Neuman has demonstrated that these state laws functioned as immigration laws, refuting the
long-held belief that, prior to 1875, the United States essentially had
143
open borders.
Unlike the current federal immigration scheme, these laws did not
focus on regulating numbers of immigrants by nationality; rather, they
44
were intended to protect states from undesirable classes of immigrants.
The laws most commonly enacted by states to control immigration were
laws regulating the migration of paupers and convicts. State regulation of
paupers stemmed from the English poor laws, which required local communities to provide relief to poor people who settled in them. 1 45 The
corollary to this obligation to provide relief was the power to exclude.
For example, a 1794 Massachusetts poor law imposed a penalty on any
person who knowingly brought a pauper or indigent person into any
town in the Commonwealth and left him there and required removal of
the pauper "to any other State, or to any place beyond sea, where he
belongs. 1 46 Other laws required vessel owners to post bond for migrants
arriving by sea if they were likely to become public charges or return
them to their port of embarkation. 14 7 Following the Revolutionary War,
several states instituted prohibitions on the importation of convicts in an
attempt to prevent England from resuming its colonial practice of banishing convicts and sending them to America. 1 48 While restrictions on
paupers and convicts were the most widespread state immigration regulations, there were several other important categories as well. Immigrants
arriving by vessel were subject to state quarantine laws. 149 Some states
prohibited the importation of slaves; and many slave states notoriously
15 0
prohibited the migration of free blacks.
State laws regulating immigration did not go unchallenged. In 1837,
the Supreme Court reviewed a state law burdening the importation of
15 1
paupers and criminals in the famous case of Mayor of New York v. Miln.
In Miln, the Court upheld a New York law that required the master of any
142. Id. at 19-43; cf. Motomura, Curious Evolution, supra note 9, at 1626 (stating that
"[i] mmigration law," if defined as "the federal law governing the admission and expulsion
of aliens," did not exist until 1875).
143. Neuman, Strangers to the Constitution, supra note 9, at 20.
144. Id.
145. Id. at 23.
146. Gerald L. Neuman, The Lost Century of American Immigration Law
(1776-1875), 93 Colum. L. Rev. 1833, 1848-49 (citing Act of Feb. 11, 1794, ch. 8, 10,
13, 15, 1794 Mass. Acts 347).
147. Neuman, Strangers to the Constitution, supra note 9, at 25, 27. For a detailed
analysis of Massachusetts's use of poor laws to discriminate against aliens, see Kunal M.
Parker, State, Citizenship, and Territory: The Legal Construction of Immigrants in
Antebellum Massachusetts, 19 Law & Hist. Rev. 583 (2001).
148. Neuman, Strangers to the Constitution, supra note 9, at 21.
149. Id.
150. Id. at 34-40.
151. 36 U.S. (11 Pet.) 102 (1837).
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667
[Vol. 105:641
albeit statutes that were struck down as encroaching on Congress's commerce power-and the federal government failed to occupy the field.
Thus, while the Supreme Court expressed the idea that control over immigration was exclusively federal prior to its holding in Chy Lung, it was
not until the events surrounding the Page Law that the principle became
unequivocal. States, accustomed to passing laws that were de facto immigration laws, continued to pass them throughout the pre-1875 period,
sometimes successfully. The laws attempting to exclude the Chinese from
California and the West during this period were passed by states, not by
the federal government. And when these statutes were persistently struck
down by the California Supreme Court, the California legislature turned
to the strategy of regulating the migration of Chinese women.
B. Laws Affecting Chinese Immigration Before the Page Law
1. Congress's Limited Involvement in Immigration. - Even though the
Supreme Court announced a federal power over immigration in the Passenger Cases, Congress did not restrict immigration until it passed the Page
Law nearly twenty-five years later. Federal involvement in immigration
did begin to grow, however, during these years. Two acts of Congress
were particularly important. The first statute, an 1862 act regulating the
Chinese coolie trade to Cuba,1 63 was not an immigration restriction, but
nevertheless affected immigration to the United States. The second, "An
Act to encourage Immigration," passed in 1864, began to put into place
the system that would become a vast immigration bureaucracy in much
164
later years.
The first law, entitled "An Act to prohibit the 'Coolie Trade' by
American Citizens in American Vessels," has received scant attention
from legal scholars, and those who do mention it usually describe it inac1 65
curately as a law restricting Chinese immigration to the United States.
163. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 12 Stat. 340
(repealed 1974).
164. Act of July 4, 1864 (Immigration Act of 1864), ch. 246, 13 Stat. 385.
165. Most scholars overlook the Act altogether. See, e.g., Chen, supra note 11; Cott,
supra note 5; Hing, supra note 9; Peffer, supra note 10; Salyer, supra note 9; Chan, supra
note 10; Hirata, supra note 10; Motomura, Immigration Law, supra note 8; Schuck, supra
note 8. Kim gives the Act brief treatment in his book. Kim, supra note 9, at 49-50. Several
scholars briefly mention the Act, often in a footnote, and misdescribe it as an immigration
law. See Gabriel J. Chin, Regulating Race: Asian Exclusion and the Administrative State,
37 Harv. C.R.-C.L. L. Rev. 1, 10 (2002) (describing Act as "intended to prevent the
importation of 'Coolies'"); Cleveland, supra note 9, at 114 (describing the Act as a
prohibition on "involuntary Asian immigration" and as a manifestation of "[a]nti-Chinese
sentiment" at the "national level"); Fehlings, supra note 9, at 112 (describing the Act as
"prohibiting the importation of indentured labor from China"); Henkin, supra note 9, at
856 n.12 (describing Act as "legislated to ensure that immigration from China and other
'Oriental' countries was voluntary on the part of immigrants"); Charles J. McClain, The
Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase,
1850-1870, 72 Cal. L. Rev. 529, 537 n.38 (1984) (describing the Act as "prohibiting the
importation of coolie labor"). It is clear from the legislative history of the Act that it was
2005]
669
On the contrary, the Act was passed to prohibit Americans from dealing
in the slave trade between China and Cuba. Although the trade was illegal under British law, Congress believed that laws of foreign countries
would do little to deter Americans from participating in the trade. "Keep
the fact secret," warned Representative Eliot in presenting the bill before
the House, "let nobody know of it, and there will be found plenty of
American men who will be willing to run all kinds of risks of confiscation
and seizure under foreign laws so long as their own Government takes no
notice of the trade."1 66 Tolerating American involvement in the trade
was unacceptable, for it looked far too reminiscent of the African slave
trade, the legacy of which was still haunting the Union.' 6 7 The statute
rectified this problem, making it illegal for Americans to participate in
the Chinese coolie trade and allowing the United States government to
168
seize any ships involved in the trade.
The Coolie Trade Prohibition Act was passed at the height of the
Civil War, and Congress's concern about the evils of slavery is evident
from its legislative history. In its initial draft, the bill clearly covered only
involuntary servitude, not voluntary indentured servitude, defining the
"coolie trade" as transportation of Chinese "against their will and without
their consent."1 6 9 Once the bill was passed by the House, however, it was
presented to the Senate, and the Senate proposed an amendment that
1 70
erased the distinction between voluntary and involuntary servitude.
The Senate's amendment to the bill struck the language in the bill's first
section defining the "coolie trade" as transportation of Chinese "against
their will and without their consent."1 7 1 All coolie trade should be abolished, the Senate Commerce Committee reasoned, not only involuntary
trade, because it was difficult to distinguish between slavery and indentured servitude. "[P]ersons of this description," explained Senator Ten
Eyck, "being, as is well known, an inferior race," should not be "transported from their homes and sold, under any circumstances.' ' 172 Just as
no "negro should be brought from the coast of Africa to be sold with or
without his consent," neither should a Chinese person. 1 73 The problem
was that consent was impossible to determine, as immigrants could be
aimed not at prohibiting importation of Chinese slaves to the United States but at banning
American involvement in the trade of slaves between China and Cuba. See Cong. Globe,
37th Cong., 2d Sess. 350-52 (1862).
166. Cong. Globe, 37th Cong., 2d Sess. 350.
167. Representative Eliot's presentation to the House of Representatives gave detailed
descriptions of conditions on Chinese slave ships, the means by which Chinese laborers
were duped into migrating, and the prices paid for them upon arrival in Cuba, all in an
effort to demonstrate that the coolie trade, "this most iniquitous slave trade of the
nineteenth century," was a new permutation of the African slave trade. See id. at 350-52.
168. Id. at 350.
169. Id. at 555 (statement of Sen. Ten Eyck).
170. Id.
171. Id.
172. Id.
173. Id. at 556.
[Vol. 105:641
175
The law as it was finally passed outlawed all coolie labor-both slavery and indentured servitude, involuntary and voluntary.1 7 6 Only "free
and voluntary emigration"-emigration that did not involve any indenture-was allowed.' 77 Even though it was not an act restricting immigration, the Coolie Trade Prohibition Act did have legal consequences for
Chinese immigrants. Because the Act held American shipowners liable
for transporting any involuntary Chinese on their vessels, they were required to obtain a consular certificate before leaving Hong Kong, attesting that the emigrants were not under a service of contract. 178 In addition, the Hong Kong consul himself certified that each of the passengers
was a "free and voluntary emigrant[] "79 And section 4 of the Act, articulating the exception for "free and voluntary migration" from China, was
later interpreted as a congressional mandate to encourage Chinese immi80
gration to the United States.'
The requirement that Chinese migrants be "free and voluntary"
might have been understood as banning the "credit-ticket" system that
most Chinese laborers used to travel to the United States. Under the
credit-ticket system, Chinese laborers were not technically indentured servants. Rather than accepting a fixed term of years of indentured servitude, they were at least in theory paying back the cost of their transportation to the United States out of their wages.' 8 1 This practice, however,
could be abused, and the Chinese coming to America might have appeared indistinguishable from voluntary coolies migrating to places such
as Hawai'i or Cuba. Indeed, in California and elsewhere, Chinese immigrants were commonly referred to as "coolies," even though their migra82
tion was voluntary.'
174. Id.
175. See discussion infra Parts II.B.2, III.A.
176. The House approved the amendment on February 14, 1862, and President
Lincoln signed it into law on February 20. Journal of the House of Representatives, 37th
Cong., 2d Sess. 312, 330 (1861).
177. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 4, 12 Stat. 340, 341
(repealed 1974).
178. Record at 61, Chy Lung v. Freeman, 92 U.S. 275 (1876) (No. 478).
179. Id. at 61-62. The Certificate expressly states that it is "done in conformity with
the provisions of the act of Congress, entitled 'An act to prohibit the coolie trade by
American citizens in American vessels,' approved February 19th, 1862." Id.
180. See, e.g., Lin Sing v. Washburn, 20 Cal. 534, 546 (1862). There, appellant Lin
Sing challenged an 1862 California Chinese Police Tax on the theory that section 4 of the
federal Act signified "direct authorization and invitation to all subjects of the Chinese
Empire, who see fit of their free will to come to the United States, to do so." Id.
181. See discussion supra Part I.A.
182. See discussion supra Part I.A.
2005]
671
If there was any question that Chinese migrating voluntarily to California under the credit-ticket system did not flout the Coolie Trade Prohibition Act, Congress made it clear in the Immigration Act of 1864 and
in its ratification of the 1868 Burlingame Treaty that it planned to do
nothing to discourage Chinese immigration. In the Immigration Act of
1864, Congress officially approved the credit-ticket system. 1 83 Section 2
of the law approved contract labor immigration where immigrants entered into wage contracts of up to one year to pay back their transportation costs, and expressly distinguished this practice from "slavery or servitude." 184 So while it was illegal for Americans to participate in the
"Coolie Trade," it was legal, even encouraged, for Chinese to immigrate
to the United States using the credit-ticket system. The 1864 Act also put
into place the basic regulatory apparatus, creating the office of Commissioner of Immigration, and also establishing an office in New York known
as the United States Emigrant Office, run by a Superintendent of
18 5
Immigration.
In addition to passing these two statutes, in 1868 Congress ratified
the Burlingame Treaty, recognizing the "inherent and inalienable right
of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects
..from the one country to the other, for purposes of curiosity, of trade,
or as permanent residents." 18 6 Under the treaty, the Chinese were to
have the same "privileges, immunities, or exemptions in respect to travel
or residence as may ...be enjoyed by the citizens or subjects of the most
favored nation."18 7 The treaty was ratified during a period when the
United States sought to play a greater role in international trade 88 and
to encourage cheap immigrant labor.1 89 Thus, while Congress did nothing in the years between the Passenger Cases and the passage of the Page
Law to directly restrict immigration-and indeed it passed laws encouraging it-Congress did set forth some boundaries of acceptable Chinese
immigration. Immigration under the credit-ticket system was acceptable;
indentured servitude, whether voluntary or involuntary, was not, and the
Chinese, like all people, had an "inherent and inalienable right" to
migrate.
2. California'sAnti-Chinese Statutes. - The anti-Chinese forces in California during the pre-Page Law years of Chinese immigration were in an
183. Act of July 4, 1864 (Immigration Act of 1864), ch. 246, 2, 13 Stat. 385, 386
(repealed 1868).
184. Id. 2.
185. Id. 1, 4.
186. Burlingame Treaty, supra note 4, art. V, 16 Stat. at 740.
187. Id. art. VI, 16 Stat. at 740.
188. Committee Report, supra note 89, at 35-36 (statement of F.A. Bee, esq.,
representing the Chinese Six Companies) (explaining that the purpose of the Burlingame
Treaty was to open up the Far East to direct trade rather than trading through English
merchants).
189. LaFeber, supra note 33, at 150.
[Vol. 105:641
2005]
673
[Vol. 105:641
2005]
675
same character, The People of the State of California, represented in Senate and Assembly, do enact as follows .... 21The California legislature was ostensibly protecting through its police power at least two classes of people: the general citizenry, who were
subjected to "scandal and injury," and the prostitutes themselves, who
were "kidnapped ... without their consent and against their will."
While the law was couched as an exercise of the police power, however, its text made it clear that it was exercising this power through the
regulation of immigration. Section 1 required any Asian woman seeking
to land in California to obtain a license confirming her voluntary desire
to migrate and that she was a "good person of correct habits and good
character":
It shall not be lawful.., to bring or land from any ship, boat or
vessel into this State, any Mongolian, Chinese, or Japanese females... without first presenting to the Commissioner of Immigration evidence satisfactory to him that such female desires voluntarily to come into this State, and is a good person of correct
habits and good character, and thereupon obtaining from such
Commissioner of Immigration a license or permit particularly
describing such
female and authorizing her importation or
2 14
immigration.
The aspiring immigrant, then, had to demonstrate two conditions to
obtain a license from the Commissioner if she was an Asian female. First,
she had to be immigrating voluntarily, and second, she had to be a "good
person of correct habits and good character." This two-prong test got at
the difficult problem of kidnapping and forced prostitution: It was highly
possible that women of "correct habits and good character" were nevertheless being duped into migrating for purposes of prostitution. One way
to check for this, theoretically, would be to restrict immigration to women who were migrating voluntarily. Anticipating the language of the
federal Page Law five years later, the 1870 law used the categorization of
Chinese women as presumptive prostitutes to achieve its aim. The burden was on the immigrant to convince the Commissioner of Immigration
"to his satisfaction" that she was of good character-otherwise she could
2 15
be turned away.
On the same day, the California legislature also passed a companion
act targeting male coolie labor. This statute, entitled "An Act to prevent
the importation of Chinese criminals and to prevent the establishment of
Coolie slavery," appears to have been an attempt by California to impose
stiffer immigration standards on Chinese laborers than those imposed by
Congress. 2 16 The federal Coolie Trade Prohibition Act required only
that Chinese migrants traveling on American ships convince the Ameri213.
214.
215.
216.
Id.
Id. 1.
Id.
Act of Mar. 18, 1870, ch. 231, 1870 Cal. Stat. 332.
[Vol. 105:641
can consul in Hong Kong that they were doing so voluntarily. 217 The new
California statute required that Chinese laborers must demonstrate to the
California Commissioner of Immigration upon arrival not only that they
were voluntarily immigrants, but also that they were "persons of correct
2 18
habits and good character."
Like the Anti-Kidnapping Act, the Anti-Coolie Act justified itself as
an exercise of the state police power, but it is clear from the language of
the statute that the underlying concern was the competition presented by
Chinese labor. "Criminals and malefactors," the preamble stated, "are
being constantly imported from Chinese seaports" and these criminals'
"depredations upon property entail burdensome expense upon the administration of criminal justice in this State. '219 The importation of these
"criminals" was not only harming the property of citizens, it was also establishing "a species of slavery ...which is degrading to the laborers and
at war with the spirit of the age." 220 The "crime" committed by these
immigrants appears to have been the deflation of wages.
Both the 1870 Anti-Kidnapping Act and the 1870 Anti-Coolie Act
made participation in the importation of Chinese criminals, coolies, or
immoral women a misdemeanor, punishable by a fine of $1,000-$5,000
or a prison term of two to twelve months. 2 21 It appears that the AntiKidnapping Act at least began to be enforced against Chinese women
almost immediately: One newspaper account reports that twenty-nine female passengers were turned away from the Port of San Francisco on
June 14, 1870.222
The 1870 Anti-Kidnapping Act was amended at least twice 223 and
eventually became part of California's general immigration law.2 24 This
law enumerated a list of certain classes of immigrants who had to be reported to the state immigration commissioner by ship captains arriving in
California and required ship captains or vessel owners to post $500 bonds
for the "relief, support, medical care, or any expense whatever, resulting
from the infirmities or vices" of each such passenger. 225 Before 1874, the
classes of passengers requiring such a bond included passengers who
were
lunatic, idiotic, deaf, dumb, blind, crippled or infirm, and ...
not accompanied by relatives who [we]re able and willing to
support him, or [were] likely to become permanently a public
217. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 4,12 Stat. 340, 340
(repealed 1974).
218. Act of Mar. 18, 1870, ch. 230, 1.
219. Id.
220. Id.
221. Id. 2; Act of Mar. 18, 1870, ch. 231, 2.
222. See Peffer, supra note 10, at 33 (citing Arrival of the Great Republic, Alta Cal.,
Jun 15, 1870, at 1).
223. Chan, supra note 10, at 98-99.
224. 1873-1874 Acts Amendatory of the Codes of California 70, at 39.
225. Id.
2005]
677
. or
STRATEGY TESTED:
CHINESE WOMEN"
California's 1874 immigration law became the subject of a constitutional challenge. At first it appeared that the California legislature's strategy of targeting women was working: When the Chinese challenged the
1874 law in state court, the law was upheld under the state police
power. 231 But the law was struck down by Justice Field, riding circuit, in
226. Id.
227. Id.
228. Id.
229. See In re Ah Fong, 1 F. Cas. 213 (C.C.D. Cal. 1874) (No. 102). Also in 1874,
California amended the 1866 Act for the Suppression of Chinese Houses of IIl Fame to
strike the word "Chinese." Consequently, there appears to have been rising concern either
about prostitution in general or about disguising the racial basis of antiprostitution laws.
See Act of Feb. 7, 1874, ch. 65, 1, 1873 Cal. Stat. 84, 84.
230. In re Ah Fong, 1 F. Cas. at 216.
231. Ex parte Ah Fook, 49 Cal. 402 (1874), rev'd sub nom. Chy Lung v. Freeman, 92
U.S. 275 (1876).
[Vol. 105:641
the federal court decision In re Ah Fong,23 2 and then again by the United
233
States Supreme Court in the landmark decision in Chy Lung v. Freeman,
in which the Court firmly articulated the federal power over immigration
through the Commerce Clause.
A. Detention Under the 1874 Law
In August 1874, the steamer Japan, sailing from Hong Kong, arrived
in the port of San Francisco with five hundred passengers, eighty-nine of
whom were women. 2 34 The immigration commissioner for the State of
California was Rudolph Norwin Piotrowski, a Polish immigrant who first
came to California in 1849.235 When the Japan arrived in San Francisco,
Piotrowski and his agents boarded the ship and examined each of the
women, questioning them through an interpreter. 236 Finding the testimony of twenty-two of the women to be "perfectly not satisfactory," 237 he
2005]
679
The detained women, through their lawyer, Leander Quint, petitioned the state district court for a writ of habeas corpus. The court issued the writ and transferred the case to the Fourth District Court in San
Francisco. 243 The lengthy transcript of the hearing is an important piece
of the story of the shift from state to federal immigration, but it has been
ignored by historians and legal scholars. 2 44 The transcript reads like a
precursor to the congressional hearings on the Page Law, and indeed,
some of the witnesses were repeat players: Dr. Otis Gibson, a missionary,
gave expert testimony at the California hearing and also provided remarkably similar testimony before Congress, as did another missionary,
Ira Condit. 245 Thus, the transcript of the California hearing reveals the
earlier stages of a strategy to target Chinese women, a strategy that was
later expanded on a national scale in Horace Page's presentation to Congress several months later.
The transcript is also important because it shows us how California's
strategy of state enforcement of immigration worked in practice. California immigration officials were primarily concerned with separating Chinese women into two categories: prostitutes and proper wives. California
used two forms of evidence to make its case. First, through cross-examination of the women, its lawyers attempted to elicit testimony that would
call into question the women's marital status.24 6 The women were not
questioned about whether they were prostitutes or, more generally,
whether they were "lewd or debauched." Rather, they were questioned
about their marriages, and if their answers failed to satisfy the court, they
were deemed "lewd or debauched." Second, lawyers for the state brought
in witnesses to identify, through an analysis of the women's clothing and
demeanor, whether the women were wives or prostitutes. 2 4 7 The assumption was that there was a strict dichotomy between wives and prostitutesa dichotomy at variance with the more nuanced reality of Chinese culwould be returned to China. 1873-1874 Acts Amendatory of the Codes of California 70,
at 39.
243. In re Ah Fong, 1 F. Cas. at 214.
244. Although several historians detail the plight of these Chinese women in books or
articles on the history of Chinese immigration, none discuss the transcript of the hearing.
See, e.g., McClain, In Search of Equality, supra note 8, at 54-63; Chan, supra note 10, at
99-105.
245. Record at 17-23, Chy Lung (testimony of Dr. Otis Gibson); id. at 23-24
(testimony of Ira M. Condit).
246. See, e.g., id. at 9-10 (testimony of Lon Ying); id. at 12-13 (testimony of Ah Lin);
id. at 13-14 (testimony of Di He); id. at 14-15 (testimony of Ah Fung); id. at 15-17
(testimony of Ah Oy); id. at 29-30 (testimony of Ah Fook); id. at 30-31 (testimony of Yunn
Hee); id. at 31 (testimony of Sie May).
247. Id. at 17-23 (testimony of Dr. Otis Gibson); id. at 23-24 (testimony of Ira M.
Condit); id. at 24-29 (testimony of Gaylos Woodruff); id. at 34-35 (testimony of Ah Yek);
id. at 40 (testimony of Chung Fing); id. at 42-45 (testimony of Fang Hoy); id. at 45-46
(testimony of Fung Pak); id. at 46-47 (testimony of Chu Pou); id. at 47-48 (testimony of
Ah Lak); id. at 48-49 (testimony of Ah Pay), id. at 49-50 (testimony of Yok).
[Vol. 105:641
ture. 248 Proper wives dressed, looked, and behaved in one way, "lewd"
women in another, and these were the only options.
B. The Women's Testimony
The first strategy was to examine the women (through an interpreter) to determine their marital identity. The examination of Di He
was typical:
Q: Mr. Quint: What is your age?
A: 17.
Q: Are you married or single?
A: Married.
Q: Where is your husband living?
A: In this San Francisco.
Q: How long have you been married?
A: Since last year.
Q: Did you ever live in San Francisco before?
A: Only come this time.
Q: Then you never lived here before?
A: No, sir.
Q: Did you come here to meet your husband?
A: She came to find the husband, but had not seen him ....
249
[S]he has lived in your prison.
Even Long Ying, a woman who claimed to be single, was asked primarily about her pending engagement. If the engagement was of questionable validity, she would be assumed to be a prostitute:
Q: Are you a married woman?
A: She is not.
Q: For what purpose did you return to California?
A: She came here to marry a husband. She is engaged to be
married.
Q: Ask her where this love of hers is that she came here to
marry?
A: She says he is at a place called San Tey.
Q: Did he write to her to come here?
A: She says her mother told her to come here to Cal.
Q: Did she give her any directions where she was to find him?
A: She said that her mother was the one that found the husband
for her. It was not with her own consent. In Chinese style the
250
mother finds the husband.
248. See supra Part I.B.
249. Record at 13, Chy Lung (testimony of Di He); see also id. at 12 (testimony of Ah
Lin); id. at 14-15 (testimony ofAh Fung); id. at 15-17 (testimony ofAh Oy); id. at 29-30
(testimony of Ah Fook); id. at 30-31 (testimony ofYunn Hee); id. at 31-34 (testimony of
Sie May).
250. Id. at 9-10 (testimony of Lon Ying). The answers are in the third person because
an interpreter was answering for the witness.
2005]
681
Just as any woman who had children had been permitted by Commissioner Piotrowski to land, any woman who had a "husband" claim hereither on the ship, or later in court-was released. 25 1 Conversely, women
who were not claimed by "husbands" could not leave. Many of these
"husbands" may have been tong representatives who came to claim newly
arrived prostitutes. 25 2 Indeed, the proceedings may have been manipulated by the powerful tongs: In several instances, it appears from the transcript that the witness changed his testimony once he was on the witness
2 53
stand, perhaps out of fear of tong retribution.
One detainee, Ah Sin, had a "husband" arrive to claim her, but she
could not identify him. At some point during the hearing, a man arrived
claiming to be her husband. The Court asked for her to be called in.
According to the transcript, she "fail[ed] to recognize the party who
claim[ed] to be her husband." 25 4 The San Francisco Chronicle's description of what was probably the same incident was more descriptive than
the transcript's. According to the Chronicle, Mr. Ryan, the District Attorney, suggested that the man claiming to be a husband be placed in a lineup to see if his alleged wife could pick him out. Quint objected, but the
judge overruled the objection. The Chronicle described the line-up:
A fat, jolly-looking Chinaman was . .. placed in a row with five
others, and the woman he claimed as his wife brought into the
Courtroom and told by the Chinese interpreter to pick her husband out. She scanned the row, the fat Chinaman rolling his
head and endeavoring to catch her eye, and finally he nodded
255
his head at her.
The female detainees were never asked directly whether they were
involved in prostitution. That topic was reserved for the other, male witnesses-Protestant missionaries and Chinese immigrants-who were
asked whether the women were identifiable as prostitutes.
C. The Expert Testimony
Although much contradictory testimony was elicited during the daylong hearing on a variety of topics, three general themes emerged. Most
of the witnesses either supported (or refuted) the view that Chinese women who traveled without their husbands or a male relative chosen by
their husbands were likely to be prostitutes, or supported (or refuted) the
view that a Chinese prostitute was identifiable through her clothing, hair,
and general demeanor. Finally, there was a surprising amount of testimony regarding the Chinese practice of polygamy, given that California's
law did not, on its face target polygamy.
251.
252.
253.
254.
255.
Review).
[Vol. 105:641
Christian missionaries who had spent time in China tended to believe that a Chinese woman would never travel without her husband. Dr.
Otis Gibson, for example, testified that "[i] t is not the custom at all for
the wives to go away without their husbands."2 56 Similarly, Ira M. Condit
stated that in China, "respectable women travel very little. They are occupied at home. They have their o'n [sic] private apartments, & they leave
them but very little. There is not much traveling of women; very little. I
have seen but very little of it."2 57 Some Chinese witnesses testified that
respectable wives would only travel to the United States if they were accompanied by their husbands, or in rare circumstances, by a close friend
258
or relative.
As for identifying a woman as a prostitute based on her dress, the
missionaries once again provided testimony helpful to the state. Dr. Gibson stated that Chinese prostitutes usually wore bright-colored silk clothing underneath their dark outer clothing, "probably yellow or pink or
red, & some figures on it of some kind." 259 The "figured flowered garments," he said, "are not generally worn by wives." 260 Ira Condit testified
that prostitutes generally wear "a gayer style of dress, a dress with yellow
in it, & brighter colors." 26 ' Fang Hoy, a resident of San Francisco's Chinatown, gave more specific testimony about differences in dress:
There is a distinction between whore & Chinese good woman
.... Chinese high class we call mandarin or rich folks. They
dress in silk garments; common people dress in cotton or
woolen. But the whore or prostitute, they have dresses just like
rich folks . . .Wide sleeves, & have what we call a fancy border
262
on the dress.
In its coverage of the hearing, the San Francisco Chronicle dubbed
Fang Hoy's description of prostitutes' apparel "the badge of the scarlet
26 3
sisterhood."
Several other Chinese men, however, testified that they could not tell
the difference between a prostitute and a married woman by the way she
dressed. 264 Fun Pak explained:
256. Record at 18, Chy Lung (testimony of Dr. Otis Gibson).
257. Id. at 24 (testimony of Ira M. Condit).
258. See id. at 45 (testimony of Fung Pak) (respectable wife travels accompanied by
husband, or in rare circumstances, a friend of the husband); id. at 48 (testimony of Ah
Lak) (wives accompanied by girls or servants, husband, brother, or some other relative); id.
at 44 (testimony of Fang Hoy) ("[I]f she is a private woman either with her cousin or her
husband coming to this country; prostitutes come here all in a raft.").
259. Id. at 18 (testimony of Dr. Otis Gibson).
260. Id.
261. Id. at 23 (testimony of Ira M. Condit).
262. Id. at 42 (testimony of Fang Hoy).
263. A Cargo of Infamy, supra note 255. The Chroniclereported the speaker's name as
"Fong Noi."
264. See Record at 45, Chy Lung (testimony of Fung Pak); id. at 46 (testimony of Chu
Pou); id. at 48 (testimony of Ah Lak); id. (testimony of Ah Pay); id. at 49 (testimony of
Yok).
2005]
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684
[Vol. 105:641
At the hearings, Dr. Gibson distinguished between proper, monogamous wives, and wives in polygamous marriages. When questioned about
the number of Chinese in San Francisco who were married, Dr. Gibson
volunteered that even those women who were married were not really
proper wives:
Q: What proportion of the Chinese women coming to this country are married? Could you say from you [sic] own knowledge of
the Chinese here?
A: I don't suppose there are in this city to-day perhaps 100 married women ....
There may be that I don't know of, but I don't
I think
think think [sic] there are 20 first wives in this city ....
not, unless you call it married where they have second wives.
They, some of them, take this class of women for a second wife,
& leave them with the270family when they leave here, & somebody
else take' [sic] them.
Indeed, one witness had accompanied his second wife to San Francisco aboard the Japan. While his wife's status as a second wife was legally
irrelevant, he was nevertheless questioned at length about the details of
his marriage customs:
Q: Are you a married or a single man?
A: He has a wife.
Q: Where is your wife living?
A: He says, my wife is living at home in China, & the other wife,
or the other concubine or second wife is here.
Q: Then you have two wifes [sic], one living here and the other
in China, have you?
A: Yes, sir; the
older or principal wife is in China, & this secured
27 1
wife is here.
This series of questions was an early example of what would become
a common theme in courts and legislatures in the decades to come: the
scandalous practice of polygamy as practiced by the Chinese. Although it
does not appear that second wives were excluded through enforcement
of these early California statutes, once immigration law became federal2 72
ized, polygamy became grounds for exclusion.
D. The Court's Ruling, and Ah Fook's Appeal
Although the California law was a blunt instrument against Chinese
immigration, the state court accepted that the exclusion of "lewd or debauched" women fit within the police power. On the next day, August
270. Record at 21, Chy Lung (testimony of Dr. Otis Gibson). This testimony is
remarkably similar to the statement he presented in support of the Page Law. See infra
text accompanying note 326.
271. Record at 37, Chy Lung (testimony of Chung Fing).
272. See Act of Mar. 3, 1891 (Immigration Act of 1891), ch. 551, 1, 26 Stat. 1084,
1084.
2005]
685
29, the court ruled against the women without written opinion and or2 73
dered them back to the custody of the steamship master.
The court's ruling may have been partially impacted by the behavior
of the women in the courtroom and the press's coverage of the hearing.
One woman, Ah Fook, lost her temper when she was repeatedly questioned under cross-examination, and this led to the clearing of the courtroom by the judge. Ah Fook claimed to have lived in California previously, returned to China where she married her husband, and was now
returning to California to be with him. After persistent questioning
about the exact location of her previous San Francisco home and the
identity of other occupants there, she appears to have had an outburst:
She says now you are foolish; she says she has been here several
months, and she could not remember who kept the baker store;
she said if you were doing right you would not ask her so many
questions; that she went home with a good intention, and she
brought her sister here with a good intention.
(Here the proceedings of the court were interrupted by the
274
noisy demonstrations of the Chinese.)
In the Alta California's coverage of the incident, Ah Fook was described as "very obstinate and saucy. ' 275 The Chronicle, which referred to
her as "Miss Ah Poke," said that she "became excited under a rigid cross276
examination."
Both newspapers documented the "noisy demonstrations of the Chinese" mentioned in the transcript. According to the Alta California, "[a] t
this point one of the women jumped to her feet and let out a most unearthly yell. Immediately the whole lot were jabbering and screaming at
the top of their voices, and it was found impossible to quiet them until
they were hustled from the Court-room." 2 77 The Chronicle also mentioned the woman who gave an "awful screech" and reported that "the
rest of them ...put their handkerchiefs to their faces and bellowed at the
top of their lungs." 2 7 8 The Chinese interpreter told the Chronicle reporter that the women were "expostulating against being kept in prison,
saying that they had not killed anybody, stolen anything, or set fire to
anything."2 79 The judge "stuffed his fingers in his ears and retired to his
chambers, and Court was suspended fifteen minutes before order could
280
be restored."
The same day that the judge ruled against them, the women applied
for another habeas writ, with the "obstinate and saucy" Ah Fook as lead
plaintiff, this time alleging that they were about to be deported to China
273.
274.
275.
276.
277.
278.
279.
280.
[Vol. 105:641
and asking for a state supreme court ruling. A week later, the Supreme
Court of California rendered its decision in Ex parte Ah Fook.28 1 In this
decision, it appeared that the strategy of targeting Chinese women was
working: The court found the statute well within the state's police power.
Ah Fook's first challenge to the law was that it violated a federal
treaty. Article VI of the Burlingame Treaty between the United States
and China provided that "Chinese subjects visiting or residing in the
United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as there may be enjoyed by the
citizens or subjects of the most favored nation." 28 2 The court dismissed
this argument. Because the law was one of general application-applying, at least in theory, to all passengers arriving by ship-and did not
28 3
single out the Chinese for discrimination, it did not violate the treaty.
Nor, found the court, did the law violate the Due Process Clause of
the Fourteenth Amendment. It was "obvious," the court opined, that a
statute intended to "carry[ ] into operation [the] quarantine or health
laws" of the state "must be prompt and summary. ' 28 4 The power to exclude lewd women, the court explained, is akin to the power "which isolates those ill of contagious diseases, or those who have been in contact
with such." 285 The court did not discuss whether the detention might
violate the Equal Protection Clause of the Fourteenth Amendment.
In finding that the statute did not violate the Burlingame Treaty or
the Due Process Clause, the court emphasized the breadth of the state's
police power. If the law were found impermissible under the treaty, the
court stated, the state would be "prohibited from excluding criminals or
paupers-a power recognized by all the writers as existing in every independent State." 28 6 The court described the power as one of self-protection: The state employed the power, "not to punish for offenses committed without our borders" but instead "to prevent the entrance of
elements dangerous to the health and moral well-being of the community." 28 7 This holding was in stark contrast with the court's previous decisions in Ling Sing v. Washburn288 and People v. Downer,289 in which the
California Supreme Court struck down the Chinese Police Tax and the
1855 Act taxing vessels arriving from China, respectively. 2 90 It appeared
that, by targeting women and classifying them as outside the institution of
monogamous marriage, California had found a way to exclude a significant number of Chinese immigrants.
281.
282.
283.
284.
285.
286.
287.
288.
289.
290.
49 Cal. 402 (1874), rev'd sub nom. Chy Lung v. Freeman, 92 U.S. 275 (1876).
Burlingame Treaty, supra note 4, art. VI, 16 Stat. at 740.
49 Cal. at 405.
Id. at 406 (Cooley, J., concurring).
Id. at 406-07
Id. at 405.
Id. at 407.
20 Cal. 534 (1862).
7 Cal. 169 (1857).
See supra notes 194-211 and accompanying text.
2005]
687
[Vol. 105:641
298.
299.
300.
301.
Id.
Id.
Id.
Id.
at
at
at
at
216.
217.
216.
217.
2005]
689
country."30 4 The California statute did not impose a tax on the Chinese
women, but it did, Field explained, impose a "charge," defined as "any
onerous condition." 30 5 Making the right of an immigrant to land dependent on the willingness of a ship captain to pay a bond was "as onerous as
30 6
any charge which can well be imposed."
The Act's imposition of this "charge" violated the principle of equal
protection neither because it was based on race (the statute did not single
out Chinese immigrants for special treatment, although they were certainly its targets), nor because it was based on gender (lewd or debauched
men were not covered by the statute) but because it applied only to immigrants who arrived by vessel, leaving those who travel "by land from the
British possessions or Mexico, or over the plains by railway, exempt from
30 7
any charge.
Field expressed his own ambivalence toward the Chinese and reluctance to articulate a race-based theory of equal protection in a series of
contradictory statements. On one hand, Field was disturbed that the California law was enforced in a racist manner against Chinese women (many
of whom were kidnapped or duped into prostitution) but not against
other women who chose to enter the profession. Explained Field, "I have
little respect for that discriminating virtue which is shocked when a frail
child of China is landed on our shores, and yet allows the bedizened and
painted harlot of other countries to parade our streets and open her hells
in broad day, without molestation and without censure." 30 8 Yet in the
same paragraph, Field expresses sympathy with the anti-Chinese forces in
California, tempered by concern that they be treated evenhandedly:
I am aware of the very general feeling prevailing in this state
against the Chinese, and in opposition to the extension of any
encouragement to their immigration hither. It is felt that the
dissimilarity in physical characteristics, in language, in manners,
religion and habits, will always prevent any possible assimilation
of them with our people. Admitting that there is ground for this
feeling, it does not justify any legislation for their exclusion,
which might not be adopted against the inhabitants of the most
30 9
favored nations of the Caucasian race, and of Christian faith.
This animosity was consonant with Field's general beliefs concerning
the Chinese. In 1882, he wrote to a friend in favor of the Exclusion Act,
explaining that the "manners, habits, mode of living, and everything connected with the Chinese prevent the possibility of their ever assimilating
304. Act of May 31, 1870 (Civil Rights Act of 1870), ch. 114, 16, 16 Stat. 140, 144
(current version at 42 U.S.C. 1971 (2000)).
305. In re Ah Fong, 1 F. Cas. at 218.
306. Id.
307. Id. The Court did not hold that race-based claims not involving blacks fell within
equal protection until Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886). And there was no
equal protection theory of gender until Reed v. Reed, 404 U.S. 71, 76-77 (1971).
308. In re Ah Fong, I F. Cas. at 217.
309. Id.
[Vol. 105:641
with our people. They are a different race, and, even if they could assimilate, assimilation would not be desirable."3 1 0 Field later penned the decision in Chae Chan Ping v. United States, upholding the constitutionality of
the Chinese Exclusion Act in 1889.311
The solution for Field in Ah Fong was to let Congress deal with the
problem. The Equal Protection Clause applied only to the states; 3 12 what
the states could not do without violating the 1870 Act, Congress could.
Thus, wrote Field, if the further immigration of the Chinese "is to be
stopped, recourse must be had to the federal government, where the
whole power over this subject lies."3 1 3 In March of 1875, only months
after Field's decision, Congress complied by passing the Page Law.
IV.
The Page Law, like the California statutes after which it was modeled,
harnessed deep cultural anxieties about Chinese marriage practices in
order to regulate immigration when direct restrictions on immigration
were otherwise impermissible. Like California, Congress drafted a law
based on the presumption that the sexual practices of Chinese women
were aberrant. This had the effect of broadly restricting Chinese female
immigration when the Burlingame Treaty prevented outright racial
exclusion.
The author of the Page Law was Horace F. Page, a congressman from
California. A Republican, Page exemplified his party's stance toward the
Chinese in the mid-1870s. Immediately after the Civil War, the Republican Party was unquestionably dominant. But the depression in the 1870s
resulted in a strong Democratic showing in 1874, with the Democrats winning the House of Representatives by a decisive majority and narrowing
the Republican's majority in the Senate.3 1 4 A desire to maintain or
regain supremacy may explain the Republicans' willingness to take such a
strong anti-Chinese stance. This stance was not without controversy, however: In 1876, when the Republican Party included in its national platform a plank opposing the "immigration and importation of
Mongolians," one delegate from Massachusetts noted that this was the
first time the party had included "a discrimination of race" in its
platform. 315
Regardless of whether his party truly believed in Chinese exclusion,
Page himself made a career out of drafting and advocating anti-Chinese
310. Charles W. McCurdy, Stephen J. Field and the American Judicial Tradition, in
The Fields and the Law 5, 17 (Philip J. Bergan et al. eds., 1986).
311. 130 U.S. 581 (1889).
312. The Supreme Court did not apply the Equal Protection Clause to the federal
government until the 1950s in Bolling v. Sharpe, 347 U.S. 497, 500 (1954).
313. In re Ah Fong, 1 F. Cas. at 217.
314. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877,
at 523 (1988) (discussing "reversal of partisan alignments" in the 1874 election).
315. Id. at 567.
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691
legislation. His success in getting the Page Law passed occurred after he
had already sponsored several other failed attempts to exclude the Chinese: From 1873 until the passage of the Page Law, Page sponsored four
anti-Chinese bills and three House resolutions, all aimed at restricting
immigration of Chinese laborers and renegotiating the Burlingame
Treaty so that restrictive laws would be permissible. 31 6 The House Committee on Foreign Affairs rejected Page's exclusion proposals and refused
to consider renegotiating the treaty. 317 The Page Law, by excluding Chinese women to protect the moral integrity of the Western states, enabled
Page to at least partially achieve his goals in a way that circumvented the
express terms of the treaty. Page later sponsored the Chinese Exclusion
Act of 1882, which dramatically curtailed the immigration of Chinese
men by prohibiting the entry of Chinese laborers into the United
31 8
States.
In December of 1874, President Grant sent his annual message to
Congress. 3 19 In his message, Grant encouraged the "protection" of Chinese immigrants through the prohibition of coolie labor and prostitution. According to Grant, coolies and prostitutes were different permutations of the same phenomenon-involuntary workers forced to emigrate:
[T]he great proportion of the Chinese immigrants who come to
our shores do not come voluntarily, to make their homes with us
and their labor productive of general prosperity, but come
under contracts with head-men, who own them almost absolutely. In a worse form does this apply to Chinese women.
Hardly a perceptible percentage of them perform any honorable labor, but they are brought for shameful purposes, to the
disgrace of the communities where settled and to the great demoralization of the youth of these localities. If this evil practice
can be legislated against, it will be my pleasure as well as duty to
320
enforce any regulation to secure so desirable an end.
Page responded to Grant's request with the bill that became the
Page Law. Instead of attempting to exclude all Chinese immigrants, Page
316. For a detailed discussion of Page's anti-Chinese activities in Congress, see Peffer,
supra note 10, at 33-36.
317. See id. at 34-35. Congress's main consideration in refusing to renegotiate the
treaty appears to have been a desire for free trade with China. In 1870, Senator Cornelius
Cole of California was asked by a San Francisco Chronicle reporter why the United States
should abide by the treaty. He responded,
And lose the trade of China? San Francisco commerce is languishing, you tell
me, and yet you suggest a means to lop off our growing commerce with the very
Power upon which we rely for wealth. The trade of China has been sought for,
prayed for, fought for, for years and years .... I would not consent to any such
proceeding.
Cole Interview, supra note 92.
318. Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 1, 22 Stat. 58 (repealed
1943).
319. 3 Cong. Rec. 3 (1874).
320. Id. at 3-4.
[Vol. 105:641
took Grant's suggestion to target two groups in particular, just as California had in 1870: coolies and women.
A. Legislative History
Congressional testimony on the Page Law illuminates the cultural
anxieties that contributed to its passage. When he presented the law on
February 10, 1875, Page gave a lengthy speech, interspersed with readings
of various statements by "experts" on the Chinese, predominantly Protestant missionaries. The theme of Page's speech was that Chinese women
coming to the United States were almost always prostitutes, and even
those who were not were almost certainly not wives in the monogamous,
Christian sense. Chinese prostitutes-like "coolies"-were no more than
3 21
slaves, and as such, antithetical to the American system of free labor.
Dr. Otis Gibson, the Methodist Episcopal Clergyman who had testified in the hearings over Ah Fook and her companions, 322 also gave a
statement to Congress, basing his opinions on his work both in China and
with the Chinese population in San Francisco. According to Dr. Gibson,
there were approximately 2,500 Chinese women and girls living in San
Francisco, and "a very large proportion of these females are enslaved
prostitutes." 323 Another missionary estimated that at "least nine-tenths of
all female Chinese now in California are of that class of persons, brought
here for that purpose, and treated as slaves." 324 While many Chinese women in San Francisco were prostitutes, the proportion was nowhere near
3 25
ninety percent.
Just as the California court hearing over the detention of Ah Fook
and her companions turned to the subject of polygamy in a case that
ostensibly concerned prostitution, so did the congressional hearings on
the Page Law. Once again, Dr. Gibson testified that Chinese women,
even if not prostitutes, were not wives in the legitimate, monogamous
sense:
[O]f all the Chinese females in San Francisco there are not
more than three hundred who are really claimed as wives by the
Chinese themselves, and nearly all of these are only secondary
wives or concubines, in accordance with the custom of China.
Of really first wives I do not think there are fifty in all the Chi3 26
nese population of this city.
Polygamy provided further evidence that the Chinese were incapable
of understanding the freedom of contract so important to American de321.
322.
323.
324.
325.
326.
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[Vol. 105:641
2005]
695
B. The Statute
Horace Page carefully crafted the Page Law to exclude Chinese immigrants without violating the Burlingame Treaty. By officially prohibiting the importation of only coolies and prostitutes, the law did not restrict the "free migration and emigration" of Chinese citizens that was
protected by the Treaty. 33 6 The law's title was strategically worded to disguise its drastic nature: Entitled "An Act Supplementary to the Acts in
Relation to Immigration," the Page Law was styled as an aid to already
existing immigration policies and treaty relations, even though none of
these existing policies was as restrictive. 3 37 Indeed, in order to pass the
Chinese Exclusion Act, excluding all Chinese laborers, in 1882, the
United States did have to renegotiate the Burlingame Treaty. 338 The new
treaty allowed the United States to "regulate, limit, or suspend" but not
"absolutely prohibit" the immigration of Chinese laborers. 3 39 Regulation
was arguably permissible when laborers would threaten the country's "in340
terests" or "good order."
The Page Law was divided into five sections. These sections worked
together to create a system that criminalized the importation of prostitutes and coolies, 34 1 required Asian women to obtain certificates of immigration demonstrating that they were not emigrating for "lewd or immoral purposes,"3 4 2 and banned certain classes-felons and prostitutesfrom immigrating to the United States. 343 A brief explanation of each
section follows.
Section 1 was the only section that explicitly targeted Chinese women. This section made it the duty of the consul-general or consul of the
United States residing at ports of embarkation in "China, Japan, or any
Oriental country" to "ascertain whether such immigrant has entered into
a contract or agreement for a term of service ... for lewd and immoral
purposes" and to refuse to grant any such immigrants the required immigration certificate. 344 In other words, American consuls in foreign
ports3 45 had an obligation to screen Chinese and Japanese women before
336. Compare Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477 (repealed 1974),
with Burlingame Treaty, supra note 4, art. V, 16 Stat. at 740.
337. See Peffer, supra note 10, at 37 (noting that the Page Law's inclusion of penalties
for import of Chinese prostitutes made it "the most severe anti-Chinese legislation" to
date).
338. Treaty Between the United States and China, Concerning Immigration, Nov. 17,
1880, U.S.-China, 22 Stat. 826 [hereinafter Renegotiated Burlingame Treaty].
339. Id. art. I.
340. Id.
341. Page Law 2-3.
342. Id. 1.
343. Id. 5.
344. Id. 1.
345. In practice, this provision meant that the American consul in Hong Kong had to
routinely interrogate women, as most Chinese emigrating to the United States were from
Canton and left China through Hong Kong. See Committee Report, supra note 89, at 21
[Vol. 105:641
they even left their home countries, and refuse to grant them an immigration certificate if they suspected them of prostitution, a hurdle not
346
imposed on immigrants from other ports, such as those in Europe.
This section was carefully crafted to appear as an elaboration of the earlier Coolie Trade Prohibition Act,3 4 7 and therefore consonant with the
Burlingame Treaty; the certificates were to be given to Chinese women
"in determining whether the [ir] immigration... is free and voluntary, as
provided by [the Coolie Trade Prohibition Act] .-348
Sections 2 and 4 purported to crack down on the importation of
coolie laborers, imposing heightened criminal sanctions for behavior already prohibited under the Coolie Trade Prohibition Act. 349 Section 2 of
the law made it a crime for a citizen or resident of the United States to
transport a "subject of China, Japan, or any Oriental country" to the
United States "without their free and voluntary consent, for the purpose
of holding them to a term of service," and voided any contracts for such
labor. 350 Similarly, section 4 made it a felony to contract or attempt to
contract to supply the "labor of any coolly [sic]" in violation of laws
"prohibiting the cooly [sic] trade," including the earlier 1862 Act. 35 1 Because Chinese immigration under the credit-ticket system had been approved by Congress in the 1864 Immigration Act, and forced immigration of Chinese laborers to the United States was virtually nonexistent,
stiffening penalties against forced immigration served little or no purpose.3 5 2 These provisions did, however, serve a rhetorical purpose: If
prostitutes were female coolies, and coolies were already prohibited in
earlier legislation without abrogating the Burlingame Treaty, then a ban
on the importation of prostitutes must also be consistent with the terms
of the treaty.
Section 3 made it a crime to import a woman into the United States
for purposes of prostitution. In this respect, the Page Law could be
viewed as targeting involuntary labor generally. A closer look at the crim(statement of Frank M. Pixley, esq., representing the City of San Francisco) ("[T] he great
majority of them come from the city of Canton, the port of which is Hong-Kong, the
English sailing port."); id. at 174 (statement of Ezekiel B. Vreeland, Deputy Commissioner
of Immigration) ("They all come from Hong-Kong. They come from different portions of
China and take ship at Hong-Kong.").
346. As a practical matter, Japanese women did not represent a significant number of
female immigrants at this time. They did not begin arriving in large numbers until
decades later. See Hing, supra note 9,at 54 & tbl.4. There appears, however, to have been
enough awareness on the part of American lawmakers of the potential for widespread
Japanese immigration that they included women from "China, Japan, or any Oriental
country" in the language of the Page Law. Page Law 1.
347. Act of Feb. 19, 1862 (Coolie Trade Prohibition Act), ch. 27, 12 Stat. 340
(repealed 1974).
348. Page Law 1.
349. Id. 2, 4.
350. Id. 2.
351. Id. 4.
352. See supra Part II.B.1.
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697
inal provisions, however, indicates that the Page Law singled out prostitutes for the harshest penalties. While section 2 mandated a penalty of
up to one year in prison and a fine of $2,000, and section 4 mandated a
penalty of up to one year and a fine of $500; section 3, the section
criminalizing importation of women for purposes of prostitution, provided for up to five years in prison and a fine of $5,000. 3 5 3 Trafficking in
354
prostitutes was clearly far worse than trafficking in other kinds of labor.
The fifth and final section of the law was the one that most clearly
regulated immigration. Section 5 made it unlawful for certain "classes [of
aliens] to immigrate into the United States." There were only two such
classes: "persons who are undergoing a sentence for conviction in their
own country of felonious crimes" and "women imported for the purposes
of prostitution." 35 5 This section most closely mimicked the California
statutes, once again tying the prohibition against prostitutes to the more
conventional prohibition against convicts. 3 56 But this marked an important shift toward the federalization of immigration, as the exclusion of
convicts had historically been performed by the states pursuant to the
35 7
police power.
Like section 1, section 5 contained an enforcement mechanism.
Whereas section 1 required Asian women to obtain certificates declaring
that they were not emigrating for "lewd or immoral" purposes at the port
of departure, section 5 authorized the collector at the port of arrival to
inspect the vessel and certify that the occupants were not felons or women "imported for the purposes of prostitution."3 5 8 Any individuals not
certified had to be detained on the vessel pending ajudicial challenge to
the port collector's decision, unless the vessel master was willing to post
3 59
bond of $500 for each such "obnoxious person" or forfeit his vessel.
The purpose of the bond or forfeiture was to provide funds with which to
return the felon or purported prostitute to his or her home country. Although in theory section 5 applied to all immigrants, its enforcement was
likely to affect Chinese women differently than other immigrants, as they
were required under section 1 to have obtained a certificate attesting to
their virtue before setting sail. Other women, for whom a pre-departure
certificate was not required, were similarly spared scrutiny upon arrival.
Asian women, then, were subjected to two additional hurdles: Even if
353. Page Law 2-4.
354. For an exploration of how current antitrafficking law parallels this distinction
between sexual and non-sexual trafficking, see Chantal Thomas, International Law Against
Sex Trafficking, in Perspective 22-42, available at http://prod.law.wisc.edu/mini/wL (last
visited Jan. 23, 2005) (unpublished manuscript, on file with the Columbia Law Review).
355. Page Law 5 (internal quotation marks omitted). Political prisoners were
explicitly exempted from the class of excluded felons. Id.
356. See supra Part III.
357. The convict portion of the Page Law does not appear to have been effectively
enforced. See infra Part I.C.
358. Page Law 5.
359. Id.
[Vol. 105:641
they managed to pass the first one by convincing the American consul in
Hong Kong that they had not entered into contracts "for lewd and immoral purposes," they could still be excluded upon arrival in the United
States if the port commissioner determined that they had been "imported
360
for the purposes of prostitution."
C. Enforcement
While the Page Law clearly targeted prostitutes, the result of the enforcement of this newly federalized immigration system was not just a reduction in prostitutes, but the virtually complete exclusion of Chinese
women from the United States. 36 1 Government officials who enforced
anti-Chinese legislation "demonstrated a consistent unwillingness, or inability, to recognize women who were not prostitutes among all but
wealthy applicants for immigration." 362 Women who wished to emigrate
from China to California now faced a multi-step process designed to weed
out suspected prostitutes.
The process began in China, with an interrogation by the Hong
363
Kong consul's office as mandated by section 1 of the Page Law:
Have you entered into any contract or agreement with any person or persons whomsoever, for a term of service within the
United States for lewd and immoral purposes?
Do you wish of your own free and voluntary will to go to the
United States?
Do you go to the United States for the purpose of prostitution?
Are you married or single?
What are you going to the United States for?
What is to be your occupation there?
Have you lived in a house of prostitution in Hong Kong, Macao,
or China?
Have you engaged in prostitution in either of the above places?
Are you a virtuous woman?
Do you intend to live a virtuous life in the United States?
Do you know that you are at liberty now to go to the United
States, or remain at home in your own country,
and that you
3 64
cannot be forced to go away from your home?
360. Id.
361. Records indicate that the number of Chinese women in San Francisco showed
little increase between 1870 and 1880. Chan, supra note 10, at 105-07 (suggesting further
that "a police crackdown in the mid 1870s made the traffic in women unprofitable, thereby
reducing, at least temporarily, the incentive to smuggle them into the country").
362. Peffer, supra note 10, at 9. Sucheng Chan has noted that press treatment of
Chinese prostitution also indicates that it decreased significantly following the passage of
the Page Law. Chan found numerous "lurid stories" about Chinese prostitution between
1854 and 1874, but found almost no mention of them from 1874 until the mid-1890s, with
the advent of the scare over "white slavery." Chan, supra note 10, at 107-08.
363. Page Law 1.
364. Despatch No. 301 from David H. Bailey, Consul, toJohn L. Cadwalader, Assistant
Secretary of State (Aug. 21, 1876), microformed on U.S. Dep't of State, Despatches from
2005]
699
The State Department did not require the Hong Kong consul to
meet any particular evidentiary standard in determining whether a
would-be migrant was actually a prostitute. If the consul "ascertained"
that a woman had entered into a contract for "lewd or immoral purposes," he could deny her the certificate. 365 It is unlikely that most women-even those who were going to be prostitutes upon their arrival in
California, and knew it-would answer "yes" to questions such as "have
you lived in a house of prostitution," or "no" to questions such as "are you
a virtuous woman?" The key questions were those whose answers might
arouse the consul's suspicions but provide no actual proof of prostitution;
questions such as "Are you married or single" and "What is to be your
occupation in the United States?" If a woman answered "single" or if her
aspired occupation seemed improbable, the consul could conclude that
she was a likely prostitute. Indeed, the records made available to Congress during later hearings indicate that women who successfully immigrated after the passage of the Page Law were women who traveled with
men who they claimed were their husbands. 366 Most women (at least,
those who did not fail the initial interrogation) were subjected to this line
of questioning three times: once by the consul himself, once by the harbor-master of the British colonial government, and yet again on board
the ship by the consul. 367 The humiliation of these interrogations (as
well as the expense of retaining legal counsel to appeal adverse decisions)
368
prevented many women from even attempting to emigrate.
Officials at the Port of San Francisco verified the efficacy of the Page
Law. Testifying before the Joint Committee to Investigate Chinese Immigration just over a year after the passage of the Page Law, the deputy
commissioner of immigration in San Francisco explained, in reference to
prostitutes, that "this class of Chinese women have been stopped from
coming here. '3 69 Another San Francisco official provided statistics demonstrating that the Hong Kong consul's enforcement of the Page Law
had drastically reduced the number of Chinese women arriving in San
the United States Consuls in Hong Kong, 1844-1906, reel 10 (Nat'l Archives 1947)
[hereinafter Bailey Despatch].
365. Page Law 1; see also Peffer, supra note 10, at 47 (noting that the State
Department did not require the Consul "to establish conclusively that a prospective female
emigrant was a prostitute but permitted him to reject any woman he suspected of
immigrating for 'lewd and immoral purposes'").
366. See Committee Report, supra note 89, at 388-89 (statement of Giles H. Gray,
surveyor of the Port of San Francisco) (introducing immigration certificate of Wong Lau
Si, which states that she is traveling with her husband with the object of being with him in
San Francisco).
367. Bailey Despatch, supra note 364.
368. Peffer, supra note 10, at 56 ("[I1n addition to turning away applicants, consular
efforts to enforce the Page Law likely convinced many Chinese wives and daughters not to
attempt emigration at all."); Takaki, Strangers, supra note 41, at 40 ("The Page Law
intimidated all women considering emigration.").
369. Committee Report, supra note 89, at 175 (statement of Ezekiel B. Vreeland,
Deputy Commissioner of Immigration).
[Vol. 105:641
2005]
701
man emigrating with her husband that notes that a second wife was denied permission to emigrate after her Page interrogation in Hong Kong.
What follows is the text of the immigration certificate, signed by the
Hong Kong counsel, David Bailey:
Sir: I inclose [sic] the declaration and photograph of a Chinese
woman who is emigrating to the United States with her husband
on the steamship Belgic. The man has two wives, but I have declined to grant a certificate to the second wife. The one allowed
to come has an asterisk marked over her head in the margins of
the photograph. It is my opinion that she is not going to the
United States for lewd and immoral purposes.
378
Very respectfully yours, D. H. Bailey, Consul
Thus, even though the law appeared to target only prostitution, the
Hong Kong consul was apparently interpreting "contracts for lewd and
immoral purposes" to cover a broader area than just prostitution per se.
Gray's testimony before the committee also highlights how much
more important the antiprostitution provisions of the Page Law were in
practice than the antifelon portions. Each woman arriving from China
had to have her own certificate and photograph. 3 79 In contrast, the men
on board a steamer were given one document for the entire group, certifying that none of the men were contract-laborers or criminals. 38 0 Furthermore, while the port commissioners and surveyors checked the women's individual certificates and identified them using the photographs,
their only method of checking the men was to make sure that the num38 1
ber of men arriving was the same number appearing on the certificate.
If, therefore, the Hong Kong consul gave certificates to "a thousand laborers or respectable people in China, and a thousand others who were
criminals should get on board, either in harbor or at high sea," the San
38 2
Francisco officials would never know.
The effectiveness of the law in preventing the emigration of Chinese
women generally is evident from the marked decrease from 1876 to 1882
in the percentage of Chinese immigrants who were female. In 1882
alone, during the few months between the enactment of the Chinese Exclusion Act and the onset of its enforcement, 39,579 Chinese entered the
United States, only 136 of whom were women. 383 The result was that the
Chinese were unable to create families within the United States.3 84 This
phenomenon was noted by Justice Field in his majority decision in Chae
Chan Ping v. United States, upholding the constitutionality of one of the
later Chinese exclusion laws.3 8 5 Justice Field traced animosity toward
378.
379.
380.
381.
382.
[Vol. 105:641
Chinese laborers to their failure to bring women with them to form families, never mentioning the extraordinary lengths both state and federal
government had undergone to prevent Chinese women from migrating:
"Not being accompanied by families, except in rare instances, their expenses were small .... The competition between them and our people
was for this reason altogether in their favor. '38 6 In 1890, Chinese men
still outnumbered Chinese women in America by 27 to 1. The gender
imbalance was not rectified until after World War II: Women made up
almost ninety percent of Chinese immigrants from 1946 to 1952.387 And
because the Page Law effectively prevented the immigration of Chinese
women and kept the male-female ratio in San Francisco's Chinatown
skewed, it paradoxically encouraged the very vice it purported to be fight388
ing: prostitution.
V.
2005]
703
ing the Chinese Exclusion Act. This Part explores each of these effects in
turn.
A. The Erasure of Equal Protectionfor Immigration: Chy Lung
Nearly a year after the enactment of the Page Law, the Supreme
Court put the final nail into the coffin of state-based immigration legislation in Chy Lung v. Freeman.390 In Chy Lung, the Court affirmed Justice
Field's decision in Ah Fong, conclusively determining that California's
statutes targeting "lewd or debauched" women were constitutionally impermissible. The decision makes no reference to the Page Law and appears on its face to reject the idea of excluding women as prostitutes, as it
strikes down a California statute that did just that.
Scholars have accordingly read Chy Lung to be "highly sympathetic to
the immigrant plaintiff,"39 1 striking down a "ludicrous" law.3 9 2 But compared to the Page Law, the California statutes were mild. The 1874 California statute required a five hundred dollar bond from anyone importing "lewd or debauched" women into the state; the 1870 statute was a bit
harsher, making it a misdemeanor to do so. 3 93 In contrast, the Page Law
banned prostitutes from immigrating outright, made the importation of a
prostitute a felony, and set forth a multi-step, rigorous interrogation process that targeted Chinese women at both the port of departure and the
3 94
port of arrival.
Read in light of the existence of the Page Law, it is clear that Chy
Lung did not mandate equality for the Chinese in California. Instead,
Chy Lung, in combination with the Page Law, offered a solution to the
thorny problem of the application of the newly adopted Fourteenth
Amendment to the Chinese. If states could not discriminate against immigrants arriving by boat, as Justice Field had held in Ah Fong, California
could be overrun with Chinese. Yet the Equal Protection Clause mandated just that.39 5 Consciously or not, the solution provided by Chy Lung
was to make immigration federal, thus allowing the federal government
to do itself what the states could not.
Chy Lung was brought on a writ of error to the Supreme Court as a
3 96
constitutional challenge by one of the female passengers on the Japan.
Unlike Justice Field's opinion in Ah Fong,Justice Miller's opinion in Chy
Lung did not address equal protection. At this point, the development of
an equal protection jurisprudence for immigration was hardly necessary-the Page Law had gone far beyond where any state had gone, and,
390. 92 U.S. 275 (1876).
391. Cleveland, supra note 9, at 109.
392. Chan, supra note 10, at 104 (arguing that in Chy Lung, "the ludicrousness of the
state law was ... exposed for public ridicule").
393. See supra text accompanying notes 210-228.
394. See supra Part IV.B.
395. In re Ah Fong, 1 F. Cas. 213, 213-14 (C.C.D. Cal. 1874) (No. 102).
396. 92 U.S. 275, 276-77 (1876).
[Vol. 105:641
399. Id.
400. Id. at 279.
401. Id. at 280.
402. Id. at 281. Enforcement of the Page Law eventually led to the same result.
Consul David H. Bailey, the American consul in Hong Kong immediately following the
enactment of the law, charged each woman he certified to make the trip to the United
States ten to fifteen dollars for the privilege. Hirata, supra note 10, at 11; see also Peffer,
supra note 10, at 45-49 (discussing Consul Bailey's role as champion and implementer of
the Page Law).
403. Brief for Plaintiff in Error at 10-11, Chy Lung.
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705
[Vol. 105:641
most of these laws under the Fourteenth Amendment, 410 once Congress
passed the federal Chinese Exclusion Act, these laws were simply preempted, and this avenue of redress disappeared.
At this pivotal moment, immigration law could have developed along
a completely different path. Following Justice Field's lead in Ah Fong, the
Supreme Court could have allowed the states to continue to regulate immigration, holding them to a standard of equal protection in doing so.
That is, states could have continued to use a broad understanding of "police power" to restrict immigrants they considered undesirable, as long as
these restrictions did not violate equal protection norms. Early on, these
norms would have been limited, but over time they would have expanded
along with equal protection jurisprudence generally. If that had happened, today we would have a much different set of assumptions about
the purposes of immigration, which level of government should control
it, and what kinds of restrictions are permissible. 4 1' But that is not what
happened. After 1875, federal immigration law burgeoned into a vast
system, with regulation of race and nationality at its heart.
B. Paving the Way for the Chinese Exclusion Act
The Page Law provided a foothold for the anti-Chinese forces in California. As the first piece of federal legislation restricting immigration, it
marked a turning of the tide for California-its Chinese problem was finally recognized as a national crisis. But the law, standing alone, was not
seen as sufficient to deter Chinese immigration. Over the next seven
years, the anti-Chinese forces grew and continued to devise methods of
restricting the Chinese. These forces were to a great extent motivated by
fear of competition from Chinese laborers, who accepted lower wages
than whites. But a reading of post-Page Law congressional testimony also
reveals that the fear of Chinese family structure-and the despotic, antidemocratic "nature" that this system signified-also continued to be an
4 12
important motivation behind exclusionary anti-Chinese legislation.
In 1876, Congress appointed a Joint Special Committee to Investigate Chinese Immigration. The Committee's report is an astonishing
410. Id. at 13.
411. For an argument supporting a return to state-based regulation of immigration,
see Spiro, supra note 12. But see Michael Wishnie, Laboratories of Bigotry? Devolution of
the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493 (2001)
(arguing that Congress cannot devolve its immigration power to the states, and thus that
state-based regulations of immigration must be subject to strict scrutiny) .
412. George Peffer has argued that the Page Law paved the way for the Chinese
Exclusion Act by giving the exclusion movement "time to gain momentum and add labor
advocacy to its moral emphasis." Peffer, supra note 10, at 42. While I agree that the Page
Law functioned as "a valuable stopgap measure," id., I would argue that both antilabor and
morals were issues throughout the development of the anti-Chinese movement, and that
the Page Law was passed first not because a moral justification against Chinese
immigration developed before a labor justification, but because the labor justification was
impossible to invoke due to the Burlingame Treaty as it existed in 1875.
2005]
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[Vol. 105:641
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[Vol. 105:641
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711
have been referred to as a "habeas corpus mill. '440 Even though none of
the statutes passed after the Page Law singled out women as a category of
immigrants, courts continued to use Western marriage norms when applying these laws to women.
The federal government expanded its control over immigration by
passing general immigration laws that did not specifically target the Chinese. In 1891, Congress passed an act of general application that regulated the immigration of many of the classes of persons previously regulated by state laws, including criminals, paupers, the insane, and people
with "contagious diseases." This law went a step beyond the state law classifications, making polygamists excludable. 44 1 In addition, it set up the
Bureau of Immigration and permitted the federal government to deport
aliens within one year of their arrival if they were discovered to be excludable for any reason. 44 2 In 1892, the Geary Act not only extended the
Chinese Exclusion Act for ten more years, but also created the beginnings of a federal passport system. 4 43 Congress continued to maintain
the system of Chinese exclusion until 1943, and as nativist sentiment
spread, expanded the system of national targeting to include other immi44 4
grants, including those from Japan and Southern and Eastern Europe.
The use of marriage to regulate immigration runs like a thread
through these statutes and the cases interpreting them. The Chinese Exclusion Act and the Geary Act, for example, led to numerous cases concerning women excluded under the Acts by immigration officials. Courts
determined that a wife should be treated under the acts as taking on her
husband's status. This principle led to somewhat perverse decisions. In
The Case of the Chinese Wife, for example, Ah Moy, the wife of a laborer,
was found to take on his laborer status, even though she herself was not a
440. Christian G. Fritz, A Nineteenth Century "Habeas Corpus Mill": The Chinese
Before the Federal Courts in California, 32 Am. J. Legal Hist. 347, 347-48 (1988).
441. Act of Mar. 3, 1891 (Immigration Act of 1891), ch. 551, 1, 26 Stat. 1084, 1084.
442. Id. For a more detailed discussion of the Immigration Act of 1891 and its effect
on Chinese immigration, see Salyer, supra note 9, at 26-28.
443. Act of May 5, 1892 (Geary Act), ch. 60, 1, 6-8, 27 Stat. 25, 25-26 (repealed
1943). Numerous other acts were passed during this time that further restricted Chinese
immigration. See Act ofJuly 5, 1884, ch. 220, 23 Star. 115 (repealed 1943) (amending and
tightening restrictions in the Chinese Exclusion Act); Act of Oct. 1, 1888 (Chinese
Exclusion Act), ch. 1064, 25 Stat. 504 (repealed 1943) (same); Act of Nov. 3, 1893
(McCreary Act), ch. 14, 1-2, 28 Stat. 7, 7-8 (repealed 1943) (requiring certification of
residency for Chinese laborers, and defining "laborer" to include skilled and unskilled
immigrants); Act of Aug. 18, 1894, ch. 301, 28 Stat. 372, 390 (granting customs officers
final authority to exclude Chinese "unless reversed on appeal by the Secretary of the
Treasury").
444. See Act of Feb. 5, 1917 (Immigration Act of 1917), ch. 29, 2, 29 Stat. 874, 876
(repealed 1952) (restricting Asian immigration); Act of May 19, 1921 (Quota Act (Three
Per Cent Act)), ch. 8, 2, 42 Stat. 5, 5 (repealed 1952) (establishing the three percent
immigration quota limit); Act of May 26, 1924 (Immigration Act of 1924), ch. 190, 11, 43
Stat. 153, 159 (repealed 1952) (reducing the quota to two percent); see also Salyer, supra
note 9, at 121-38 (discussing the influence of nativism on American immigration policy).
[Vol. 105:641
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713
(incorrectly) that "Chinese customs frown upon the marriage of old men
4 54
with young girls."
Some judges probed more deeply into Chinese marriage customs in
an attempt to ascertain whether a marriage was valid. In In re Lum Lin
Ying, for example, the court wrestled with the dilemma of deciding
whether a marriage between a husband and wife who did not meet each
other before marriage was valid. 45 5 Lum Lin Ying had been betrothed to
her husband since the age of two, and their marriage was solemnized
according to the laws of China while she still resided there but her husband was in the United States. After researching Chinese marriage customs, the court determined that the marriage was valid. 4 5 6 Significantly,
the validity of the marriage rested on a finding that there was no evidence
that Lum Lin Ying was a prostitute. According to the court, "whispered
suggestions made on the authority of some of her countrymen" that she
was a prostitute did not constitute evidence, and thus "her rejection
would be a cruel injustice." 45 7 While this logic worked in Lum Lin Ying's
favor, the implication was clear: A woman who worked as a prostitute
could not be protected under the law as a wife.
Indeed, the strict dichotomy between wife and prostitute underlying
the Page Law continued to operate in federal immigration policy
throughout the era of Chinese exclusion. In 1907, the passage of a new
immigration act added another weapon to the federal government's arsenal by creating a means for deporting female immigrants who were
"found an inmate of a house of prostitution or practicing prostitution, at
any time within three years after she shall have entered the United
States. ' 4 5 s This law was frequently applied to women who obtained entry
45 9
to the United States as wives and were later arrested for prostitution.
454. Chew Hoy Quong v. White, 244 F. 749, 750 (9th Cir. 1918). Sucheng Chan has
noted with regard to this case that "many Chinese immigrants married late in life because
it took them years to save up enough money to do so." Chan, supra note 10, at 118.
455. 59 F. 682, 682 (D. Or. 1894).
456. Id. at 682-83.
457. Id. at 683-84.
458. Act of Feb. 20, 1907 (Immigration Act of 1907), ch. 1134, 3, 34 Stat. 898, 900.
Even before the 1907 Act, courts upheld the deportation of prostitutes under the theory
that they were "laborers" under the exclusion acts. See, e.g., Wong Ah Quie v. United
States, 118 F. 1020, 1020 (9th Cir. 1902); Lee Ah Yin v. United States, 116 F. 614, 616-17
(9th Cir. 1902). The 1907 Act was also notable because it was the first time that criminal
conduct within the United States was identified as a basis for deportation. See Jennifer
Welch, Comment, Defending Against Deportation: Equipping Public Defenders to
Represent Noncitizens Effectively, 92 Cal. L. Rev. 541, 547 (2004).
459. See, e.g., Quock So Mui v. Nagle, 11 F.2d 492, 493 (9th Cir. 1926) (upholding
deportation of women found in bed with a man not her husband even where there was no
proof that she was a prostitute); Hoo Choy v. North, 183 F. 92, 93 (9th Cir. 1910)
(upholding deportation of woman who entered San Francisco with her citizen husband
and lived with him until her arrest for prostitution); Haw Moy v. North, 183 F. 89, 91-92
(9th Cir. 1910) (upholding deportation of woman admitted as native-born citizen but
arrested for prostitution); Looe Shee v. North, 170 F. 566, 568-72 (9th Cir. 1909)
(upholding deportation of widow found working as a prostitute).
[Vol. 105:641
In 1910, the antiprostitution fever burst beyond the boundaries of immigration law in the form of the Mann Act, which not only broadened the
1907 law as applied to immigrants but also made it a crime to transport a
woman for purposes of prostitution across state lines. 460 In upholding
the deportation of women suspected of prostitution, the courts found
that by becoming a prostitute, a woman lost the legal protection of marriage. One woman, Li A. Sim, who was the wife of an American citizen of
Chinese ancestry, was ordered deported after she was found in a house of
prostitution. 46 1 By engaging in prostitution, the Court found, Li A. Sim
had lost her status as a wife:
This situation was one of her own making, and, conceding her
right to come into the United States and dwell with her husband
because of his American citizenship, it is obvious that such right
could have been retained by proper conduct on her part and
462
was only lost upon her violation of the statute.
Prostitutes were not the only immigrants outside the protections of
monogamous marriage. Polygamists, concubines, and women in arranged marriages were also targeted. Polygamists were first excluded as
one of the many classes of excludable immigrants in the 1891 Immigration Act. 463 In 1907, the exclusion was extended from polygamists to
"persons who admit their belief in the practice of polygamy." 464 This
change resulted in diplomatic problems with the Ottoman Empire, which
believed that the United States was discriminating against Muslims because of their religious belief in polygamy. 465 Both the 1907 and 1910
Acts added transporting a woman for any "other immoral purpose" to the
list of liability-creating acts, stretching the laws to cover many situations
other than clear-cut prostitution. 46 6 This change in language was intended to cover "complex situations" involving women who were neither
clearly wives in the monogamous, Christian sense nor prostitutes-concubines, mistresses, or women entering into arranged marriages. 4 67 It was
the "other immoral purposes" language of the 1907 law that resulted in
the indictment of John Bitty for attempting to bring his mistress from
England to live with him. 468 The Court held:
The prostitute may, in the popular sense, be more degraded in
character than the concubine, but the latter none the less must
be held to lead an immoral life, if any regard whatever be had to
460.
(codified
461.
462.
463.
464.
465.
466.
amended
467.
468.
White-Slave Traffic (Mann) Act, ch. 395, 2, 6, 36 Stat. 825, 825-27 (1910)
as amended at 18 U.S.C. 2421-2424 (2000)).
Low Wah Suey v. Backus, 225 U.S. 460, 466 (1912).
Id. at 476.
Act of Mar. 3, 1891 (Immigration Act of 1891), ch. 551, 1, 26 Stat. 1084, 1084.
Act of Feb. 20, 1907 (Immigration Act of 1907), ch. 1134, 2, 34 Stat. 898, 899.
Cott, supra note 5, at 139.
White-Slave Traffic (Mann) Act, ch. 395, 2, 36 Stat. 825 (1910) (codified as
at 18 U.S.C. 2421-2424); Immigration Act of 1907 2.
Haag, supra note 5, at 99-100.
United States v. Bitty, 208 U.S. 393, 398-99 (1908).
2005]
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[Vol. 105:641
Abstract
This paper highlights the impact of raid, rescue, and rehabilitation
schemes on HIV programmes. It uses a case study of Veshya Anyay
Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to
explore the impact of anti-trafficking efforts on HIV prevention
programmes. The paper begins with an overview of the anti-trafficking
movement emerging out of the United States. This U.S. based antitrafficking movement works in partnership with domestic Indian antitrafficking organisations to raid brothels to rescue and rehabilitate
sex workers. Contrary to the purported goal of assisting women, the
anti-trafficking projects that employ a raid, rescue, and rehabilitate
model often undermine HIV projects at the local level, in turn causing
harm to women and girls. We examine the experience of one peer
educator in Sangli to demonstrate and highlight some of the negative
consequences of these anti-trafficking efforts on HIV prevention
programmes.
Keywords: HIV/AIDS, sex work, trafficking, prostitution, health, India,
anti-trafficking
149
Part I. Introduction
This paper highlights the impact of raid, rescue, and rehabilitation
schemes on HIV programmes. It uses a case study of Veshya Anyay
Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to
explore the impact of anti-trafficking efforts on HIV prevention
programmes. The paper begins with an overview of the anti-trafficking
movement emerging out of the United States. This US anti-trafficking
movement works in partnership with domestic Indian anti-trafficking
organisations to raid brothels to rescue and rehabilitate sex workers.
Contrary to the purported goal of assisting women, the anti-trafficking
projects that employ a raid, rescue, and rehabilitate model often
undermine HIV projects at the local level, in turn causing harm to
women and girls. We examine the experience of one peer educator in
Sangli to demonstrate and highlight some of the negative consequences
of these anti-trafficking efforts on HIV prevention programmes.
Methodology
This paper is the result of a human rights fact-finding.1 A human
rights fact-finding is a methodology used within the human rights
community for the purposes of documentation and advocacy. The
methodology employs interviews and focus group discussions, often in
partnership with communities affected by the human rights violations
being investigated. In this case, the documented rights violations
were products of the raid and rescue industry that is active in Sangli,
Maharastra.
Meena Seshu, the co-founder of Sangram, conceptualised this factfinding in an effort to document the impact of raids and rescues on
the sex workers collective and on HIV programmes for sex workers.
Aziza Ahmed contributed legal expertise and conducted secondary
research on the raid and rescue industry. In the course of the human
rights fact-finding, the authors worked with members of the collective
to investigate and interview key informants, including police officers,
lawyers, and members of the collective. All information contained in
this paper is available in the public record and in secondary academic
research. KB, whose story is documented below, is a leader in the
D F Orentlicher, Bearing Witness: The art and science of human rights factfinding Harvard Human Rights Journal, vol. 3, 1990, pp. 83136.
150
Theoretical framing
This paper uses several frameworks developed by legal scholars to
understand the impact of anti-trafficking programmes and the related
conflation of sex work and trafficking on HIV projects. In the analysis
section of the paper, we also turn to public health literature to explain
the impact of the raid, rescue, and rehabilitation methodology on sex
workers.
Professor Janie Chuang has documented the rise of neo-abolitionism,
a US based movement of feminist abolitionists, conservatives, and
evangelical Christians to end trafficking globally.2 Despite common
knowledge that trafficking can occur in many labour sectors, the
majority of attention by neo-abolitionists is given to trafficking in the
sex sector. The motivations of these various anti-trafficking submovements differ considerably. Professor Janet Halley and her coauthors examine the rise of abolitionist feminism in particular,
highlighting its growing influence in the context of international legal
regimes.3 Feminist abolitionists are often driven by the dominance
feminist perspective that all sex work is trafficking and is thereby
coerced. This idea is premised on a larger notion of womens lack of
agency in sex.4 The work of sociologist Elizabeth Bernstein places the
anti-trafficking movement inside in the context of carceral feminism
151
E Bernstein, The Sexual Politics of the New Abolitionism Differences, vol. 18,
no. 3, 2007, pp. 128151.
J Doezema, Sex Slaves and Discourse Masters: The construction of trafficking,
Zed Books, New York, 2010.
Consulate General of the United States, Kolkata, U.S. Grants $600,000 to
Anti-Trafficking Initiatives in Eastern India, retrieved 9 November 2011,
http://kolkata.usconsulate.gov/wwwhipr040706.html; See also Apne Aap,
retrieved 9 November 2011, http://apneaap.org/index.php.
152
9
10
153
11
12
13
14
154
The raid and rescue is the first part of the process. Heavily reliant on
local police, raids are often violent not only for those accused of being
traffickers but also for the sex workers themselves. This has been
documented in numerous contexts including Southern Africa,15 Eastern
Europe,16 and India.17 The insistence on using the police in the context
of raids and rescues has been pushed by neo-abolitionists despite
evidence of police violence against sex workers. The level of violence
experienced by sex workers in the context of raids (both for the purposes
of arrest and rehabilitation) was noted by the World Health Organization
and the Global Coalition on Women and AIDS in 2005 Informational
Bulletin on violence against women:
However, both trafficking and violence against trafficked
women need to be understood more broadly in the context of
migration, and examined separately from sex work. At the
same time, it is important to note that in several countries,
certain activities such as rescue raids of sex establishments
have exacerbated violence against sex workers and
compromised their safety. For example, research from
Indonesia and India has indicated that sex workers who are
rounded up during police raids are beaten, coerced into having
sex by corrupt police officials in exchange for their release or
placed in institutions where they are sexually exploited or
physically abused. The raids also drive sex workers onto the
streets, where they are more vulnerable to violence.18
15
16
17
18
J Arnott, A L Crago, Rights Not Rescue: A report on female, male, and trans
sex workers human rights in Botswana, Namibia, and South Africa, Open
Society Institute, 2009.
Sex Workers Advocacy Network, Arrest the Violence: Human rights abuses
against sex workers in Central and Eastern Europe and Central Asia, 2009.
World Health Organization, Violence Against Women and HIV/AIDS: Critical
intersections. Information Bulletin Series, 2005.
Ibid.
155
19
20
21
156
inspiration for the movement came from the impact of HIV on the sex
work community.22 The programme distributes around 470,000 condoms
a month.23
A central component of the work of VAMP revolves around delivering
HIV information, care and support, and ensuring that sex workers are
able to access treatment services. VAMP staff and leaders are the
recipient of numerous accolades and awards for a demonstrated impact
on the lives of individuals in Sangli living with and at risk for HIV
including by the US government.24 Despite the public acknowledgment
of their success as an HIV programme Sangram and VAMP are subject
to the swinging political pendulum of US foreign assistance. The rise
in influence of the neo-abolitionists and the existence of the APLO,
for example, brought VAMP under the scrutiny of the US government
for providing sex worker services.25 Despite the simultaneous accolades,
Sangram was publicly accused of trafficking women and girls. VAMP
also became the target of a locally operated and internationally funded
raid and rescue industry set out to quell the political mobilisation of
sex workers in Sangli.26 This confluence of forces, the targeting of
Sangram by neo-abolitionists and the increasing focus on the
organisation by local and international anti-trafficking organisations
exemplifies of the negative consequences of how un-interrogated antitrafficking initiatives can cause serious harm to a successful HIV
programme.
22
23
24
25
26
157
27
28
aim is two fold: to silence and quell the political mobilisation of these women
and eradicate the customary practise of the devadasi. The raids do not
distinguish between those who do sell sex and those who do not. Since they
are planned and executed under the auspices of rescuing minors, any young
woman who is found in the house of a sex worker is presumed to have been
trafficked. In these raids these women are arrested despite most being above
the age of legal consent.)
Real names have not been used to protect the confidentiality of the individual.
Sex work and trafficking in India is governed by several legislative and
constitutional frameworks including Article 23 of the Indian Constitution that
prohibits traffic in human beings, the Immoral Traffic in Persons Prevention
Act of 1986 (ITPA), and the Indian Penal Code 1860 which contains provisions
against the trafficking and slavery of women and children. ITPA, the primary
legislation addressing sex work and trafficking, is the more recent
manifestation of the Suppression of Immoral Traffic in Women and Girls Act of
1956 passed shortly after India became a signatory to the United Nations
International Convention for the Traffic in Persons and of the Exploitation of
Women in 1950. Interpretations of the impact of the ITPA have varied from an
understanding that it tolerates prostitution by not criminalising the sexual
intercourse itself but criminalising all other aspects of sex work including
seducing for the purposes of prostitution, keeping a brothel, detaining a
woman for the sake of prostitution, or living off the earnings of a prostitute.
Sex worker organisations contend that the language of the ITPA conflates sex
work and trafficking as the ITPA has actually resulted in the arrest of many
sex workers, particularly prior to the amendment change in 2009 that removed
solicitation of sex work as a crime.
158
29
30
P Kotiswaran, Preparing for Civil Disobedience: Indian sex workers and the
law BC Third World LJ, vol. 21, 2001, pp. 161241.
Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others, 21 March 1950.
159
31
See twitter profile of Freedom Firm, 26 August 2011 and 8 August 2011; See
Rescue Foundation website, retrieved at 3 October 2011, http://
www.rescuefoundation.net/newsletter.html.
160
organisation that facilitated the raid resulting in KBs arrest and RAs
detainment:
Efforts made by Indian Rescue Mission (IRM), a Christian
organisation, helped Indian police track an International Sex
Racket being run by Indian pimps with tentacles in major Indian
metros and with audacious plans to expand it internationally
This comes within a week of police action upon the tip off
received by IRM in rescuing a minor girl forced into prostitution
in a red light area in Sangli district Karnataka State on
December 11, 2010.32
32
33
34
J Philip, Indian Rescue Missions Recent Rescue of a Minor Girl, Helps Indian
Police Uncover an International Trafficking Racket, Indian Rescue Mission, 3
January 2011.
Ibid.
Interview with Lawyer, Aziza Ahmed, 29 March 2011.
161
35
36
37
162
and support infrastructure necessary for women living with HIV. The
raids and rescues disrupt the support systems often based on
interpersonal relationships and trust. During the raid and during KBs
time in state custody, any HIV prevention activities that KB was involved
in came to a halt.
Third, the arrest and detainment of sex workers in jails, remand
homes, and rehabilitation centres often disrupt HIV care and expose
individuals with HIV to tuberculosis and other diseases often rampant
in closed confined settings. This is of extreme concern given the high
numbers living with HIV. The remand homes, rehabilitation centres
and jails are not equipped to address the treatment and health needs
of sex workers living with HIV. Even where the settings are not violent,
the programmes are often problematic. The home in which RA was
held, for example, arranges marriages for the girls as a rehabilitative
exercise.38 Often when VAMP knows that a sex worker living with HIV
has been taken to a remand home, rehabilitation site, or arrested,
they attempt to locate her to ensure she is getting HIV medication. In
many cases, attempts to locate sex workers to ensure that HIV care is
continued fail because women and girls who are rescued flee rescue
homes or because VAMP staff is not allowed to meet and inquire about
her well-being.
Fourth, violence against sex workers at the hands of the state during
raids, rescues, arrests, in remand homes and rehabilitation centres is
well-documented.39 Despite this, organisations employing a raid, rescue,
and rehabilitate scheme rely heavily on the police. This has two primary
impacts: first, it subjects the sex workers to violence at the time of
the raid as well as in state custody; second, where organisations like
VAMP have effectively altered their relationship with the police to be
able to call on them for support, these anti-trafficking efforts
undermine this new and often delicate engagement.
Finally, the conflation of sex work and trafficking undermines the
innovative and effective anti-trafficking efforts by sex workers who
see the difference between sex work and trafficking. A recent study
38
39
163
of over 3000 female and 1300 male sex workers in India found that the
majority of females entering sex work did so independently.40 VAMP
sex workers effectively identify underage girls in brothels because
they are the first to encounter them. After identification, they work
to get them into safer living conditions. This has proven to be an
effective process because the underage girls first point of contact
may be other sex workers. Working directly with sex workers is an
effective alternative to the raid and rescue model.
40
R Sahni and V Shankar, The First PanIndia Survey of Sex Workers: A summary
of preliminary findings, retrieved 1 March 2012, http://sangram.orgDownload/
Pan-India-Survey-of-Sex-workers.pdf.
164
165
Contributors
Aziza Ahmed is Assistant Professor of Law at Northeastern University,
School of Law. Email: az.ahmed@neu.edu
Holly Burkhalter currently serves as Vice President for Government
Relations at International Justice Mission. She formerly served as the
U.S. Policy Director of Physicians for Human Rights and as the Advocacy
Director of Human Rights Watch. Email: contact@ijm.org
Fiona David is an independent consultant, specialising in the law and
research on migrant smuggling and trafficking in persons. Fiona has
worked on these issues since 1999, with clients including the United
Nations Office on Drugs and Crime, the International Organization for
Migration and the Australian Institute of Criminology. She has provided
expert evidence in a number of trafficking in person cases in Australia.
Email: davidf@law.anu.edu.au
Melissa Ditmore, PhD, is an independent consultant specialising in
issues of gender, development, health and human rights, particularly
as they relate to marginalised populations such as sex workers,
migrants and people who use drugs.
Email: mhd-gaatw@taumail.com
Anne Gallagher AO, is Technical Director of the Asia Regional Trafficking
in Persons project and an independent scholar and legal adviser.
Email: anne.therese.gallagher@gmail.com
Neil Howard is a doctoral student at the University of Oxford. He has
been researching and working on human trafficking since 2005.
Email: neil.howard@qeh.ox.ac.uk
Kari Lerum (PhD Sociology) is Associate Professor of Interdisciplinary
Arts & Sciences & Cultural Studies at University of Washington, Bothell,
and Adjunct Professor in Gender, Women, and Sexuality Studies at
University of Washington, Seattle. Her research and teaching focus on
institutions, sexuality, sex work, social institutions, and social justice.
Her articles have appeared in a number of sociology and sexuality
related journals and edited volumes. Email: klerum@uwb.edu
166
167
168
Table of Contents
Introduction ...................................................................................... 336
Part One: Describing Governance Feminism .................................... 340
Janet Halley ................................................................................ 340
Chantal Thomas .......................................................................... 347
I. Governance Feminism and Sex Trafcking........................... 349
II. Governance Feminism and Sex Trafcking in the
United Nations and United States Contexts ........................ 352
A. The International Stage ................................................ 352
B. The United States Stage ................................................ 356
C. The Outcomes and the Aftermath .................................. 358
Hila Shamir................................................................................... 360
Janet Halley is Royall Professor of Law at Harvard Law School. Prabha Kotiswaran
received her S.J.D. from Harvard Law School. Hila Shamir is an S.J.D. candidate at Harvard Law School. Chantal Thomas is professor of law at Fordham University School of
Law and visiting professor of law at the University of Minnesota Law School.
We want to thank Duncan Kennedy for reading the manuscript, Karen Engle for comments on Halleys contributions, Mary Lou Fellows for comments on Thomass contributions, and Nomi Levenkron for comments on Shamirs contributions. Janet Halley acknowledges particular debt to Engle's articles Feminism and its (Dis)contents: Criminalizing
Wartime Rape in Bosnia and Herzegovina, 99 Am. J. Int'l L. 778 (2005) [hereinafter
Engle, Feminism and its (Dis)contents] and Liberal Internationalism, Feminism, and the
Suppression of Critique: Contemporary Approaches to Global Order in the United States,
46 Harv. Intl L. J. 427 (2005). We also thank all the participants in the Governance Feminism Seminar sponsored by the Harvard Law School Program on Law and Social Thought in
March 2006. Last-minute research assistance from Elizabeth Lambert, Naomi Ronen, and
Janet C. Katz saved us. All errors of fact and judgment are ours.
336
[Vol. 29
2006]
337
tribution to this conversation. Janet Halley is working on new rules governing wartime sexual violence in international humanitarian law, specically the place of rape and sexual slavery in the decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Chantal Thomas
has published widely on the law of trade;1 one of her papers examines the
feminist debate over the 2001 U.N. Trafcking Protocol.2 Hila Shamir and
Prabha Kotiswaran have studied emergent national regimes addressing the
connection between local prostitution markets and international sex
trafcking in Holland, Sweden, and Israel (Shamir) and in India (Kotiswaran). Shamir compares legal regimes for governing sex trafcking and
the related prostitution industry within national borders; Kotiswaran studies
the highly local negotiations between stakeholders in the sex industry in
India through eld work in Tirupati and Kolkata. Shamir and Koti-swaran
take special note of the striking but very different impact of the 2001 Protocol and the United States Victims of Trafcking and Violence Protection
Act (the VTVPA)3 in Israel and India.
Halley introduces our concept of GF in Part One below, providing some
examples from her study of feminist achievements in International Humanitarian Law (IHL). The rest of Part One presents Thomass, Shamirs,
and Kotiswarans understanding of GF in the evolving sex trafcking regime. Part Two presents some thoughts by all four of us on the methodological implications of thinking about legal feminism in this way.
Before getting underway, a few terminological and methodological matters need a moments attention. First, it hardly seems coincidental that the
legal regimes we examine center on criminal prohibition.
We take it as a given, for a distributively focused legal analysis, that
punishing conduct as a crime does not stop or end it, as governance
feminists (GFeminists) sometimes seem to imagine. Rather, it enables
a wide range of specic institutional actors to do a wide range of things.
Prosecutors can indict actual violations as well as perfectly legal conduct;
courts can convict defendants who are guilty as well as those who are perfectly innocent; the criminal system will almost always leave some actual
violations unsanctionedproducing what Duncan Kennedy helpfully terms
the tolerated residuum of abuse.4 In sex work settings, police and landlords can extract bribes from legally guilty and legally innocent actors; prohibited conduct can go underground and become regulated by
means that are not specically legal. In addition, we assume that the objects
1
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differ intensely, often bitterlyall imagine their favored criminal law reform
to operate simply by actually eliminating precisely and only the conduct it
outlaws. This observation holds whether the method prefered is abolition
or decriminalization: both are imagined to be directly liberatory for women.
In our view, however, all of these regimes can be given enhanced/intensied
enforcement, on one hand, or weakened/partial enforcement, on the other;
and different degrees of intensity can be exhibited even at the same moment by various administrative, judicial, and executive authorities. The
complexity of the resulting bargaining endowments is considerable. We also
take it as given that it would be rare to nd any of the ideal typical sex
work regimes operating in its pure form, and inconceivable that IHL will
ever operate as a pure sovereigntist command. Rather we look for complex law-in-action/law-in-the-books contingency. The result is, we think,
an exciting new research paradigm for feminists and non-feminists alike.
We offer some thoughts on that in the conclusion.
Part One: Describing Governance Feminism
Janet Halley
Ill rst reect on Governance Feminism generally, and then provide
some examples of its activity in recent reforms in international humanitarian law (IHL). GF is, I think, an underrecognized but important fact
of governance more generally in the early twenty-rst century. I mean the
term to refer to the incremental but by now quite noticeable installation of
feminists and feminist ideas in actual legal-institutional power. It takes
many forms, and some parts of feminism participate more effectively than
others; some are not players at all. Feminists by no means have won everything they wantfar from itbut neither are they helpless outsiders. Rather,
as feminist legal activism comes of age, it accedes to a newly mature engagement with power.
Just think of the range of feminist achievements visible all around us.
Inside the United States we can see it in elaborate sexual harassment programs in corporate and educational settings, in the tracking of female prosecutors into sex crimes units, in the elaboration of feminist expertise about
gender policy ranging from home economics to reproductive policy to
educational reform, and in the formation of non-governmental organizations (NGOs) and special ofces designated to the production and consumption of this expertise in policy and law settings across our legal landscape.
Many of the most breathtaking advances have been made in the rapidly evolving world of international law. One wonders, indeed, whether it
can be a coincidence that GF and the new governance have grown up
together. GF seen as an assemblage of strategies is thus quite complex. It
is not a monolithic top-down power. Rather, it piggybacks on existing forms
by power, intervening in them and participating in them in many, simul-
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humanity.18 And I wont go into detail, but the record strongly suggests that
GF nally achieved this change by adapting to a legislative process the
very same techniques they deployed in the ICTY: NGO monitoring, pressure, and rule-drafting of a very intense and sustained kind.19
In addition to these civil society strategies, GF has also worked hard
to get its people hired by governments where they participate in the bureaucracy of power. Here we encounter feminism as an expertise. Special
advisors on gender-related violence constitute one strategy. Prosecutor Goldstone created a Legal Advisor for Gender-related Crimes and appointed
Patricia Viseur Sellers to the post in 1999.20 The domain is literally scattered with Special Rapporteurs on sexual violence. And international feminist activism has been recognized as a qualication for sitting on the
bench in the ICTY. Heres how it happened. In one important ICTY prosecution, the accused, Anton Furundija, moved to disqualify Judge Florence Ndepele Mwachande Mumba (Zambia) on the ground that her participation in the Trial Chamber proceedings created an appearance of bias.
She had been a member of the U.N. Commission on the Status of Women
during the Yugoslav war and had participated in its work on allegations
that mass rapes were occurring there. Moreover, the Prosecutor in Furundija and three amicus authors in the case had participated in the U.N.
Fourth World Conference on Women in Beijing,21 where the U.N. Commission had participated in efforts to secure legal declarations that rape is
be a war crime. The Appeals Chamber dismissed the idea that these feminist decision makers introduced bias.22 Its reasoning, according to Mappie
Veldt: Judge Mumbas membership of the UNCSW and her general experience in the eld were, by their very nature, an integral part of her qualications for nomination as judge of the ICTY.23 Feminism as neutrality.
This is going to be hard to study.
There seems to be nothing intrinsically international about this style
of participating in lawmaking. The same methods appear in the work of
Orit Kamir, a prominent Israeli feminist who studied with Catharine A. Mac18 Rome Statute of the International Criminal Court, Art. 8(2)(b)(xxii), U.N. Doc. A/
CONF.183/9 (July 1, 2002).
19 Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93
Am. J. Intl L. 22, 23 (1999). Feminist NGO involvement in the subsequent negotiations
to establish the elements of crimes to guide interpretation of the statute was similarly
intense. See William Pace & Jennifer Schense, The Coalition for the International Criminal Court, in The International Criminal Court: Elements of Crimes and Rules of
Procedure and Evidence 705, 71823 (Roy S. Lee ed., 2001).
20 Engle, Feminism and its (Dis)contents, supra note , at n.16.
21 Report of the Fourth World Conference on Women, Beijing, Sept. 415,
1995, U.N. Doc. A/CONF.177/23/Add.1 (Oct. 27, 1995).
22 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgment, 192215 (July
21, 2000).
23 Mappie Veldt, Commentary, in Annotated Leading Cases of International
Criminal Tribunals, Vol. III: The International Criminal Tribunal for the Former Yugoslavia 19971999 357, 358 (Andr Klip & Gran Sluiter eds., 1999) (emphasis
added).
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Kinnon in the United States and then returned to Israel to teach and to
work for feminist legal reform. Kamir writes quite engagingly about how
to adapt MacKinnons theoretical and law reform ideas to Israeli social and
legal culture: radical feminism becomes the source of ideas for law reform in a process of translation, in which the right to be free of sex discrimination becomes the right to human dignity, and the source of law
shifts from litigation/adjudication to legislation.24 Kamir sounds almost
uncannily like Askin when she describes the process leading to the Knessets 1998 codication of a sex harassment statute: The new law was the
product of a unique cooperation among women Knesset members, feminist activists, pro-feminist jurists at the Ministry of Justice, and feminist
legal academics.25 The GF question to ask now would be: will the resulting statute be understood, within Israeli society, to represent feminists
punctuated but distinctive capture of one tiny bit of the state, or as a guarantee, a certicate, of the pervasive civility of male/female gender across
Israeli national life?
Similar questions will come up if governance feminists (GFeminists)
succeed in their oft-professed aim to download their international law reforms into domestic legal regimes. Feminist IHL advocacy explicitly espouses the goal of affecting national legal regimes. ICTY/ICTR Justice
Louise Arbour sees feminist IHL activism as a legal vanguard for national law:
If you look at the denitions of sexual offenses that were provided in the Akayesu, Kovac, Furundzija and Foca cases, you can
see that they were forming a denition of the actus reus and mens
rea, bringing the international forum to the cutting edge of what
is being done in most domestic departments.26
MacKinnon advocates international policing of sexual violence under IHL
in part because, [p]resumably, once they knew intervention was a real
possibility, states would take steps to avoid it by moving to correct the
problem.27 Indeed, feminists sometimes make strategic decisions about
what to seek in IHL precisely with an eye to national incorporation. When
some feminists argued that there should be no consent defense to rape under
24 Orit Kamir, Dignity, Respect and Equality in Israels Sexual Harassment Law, in
Catharine A. MacKinnon & Reva B. Siegel, Directions in Sexual Harassment Law,
56181 (2004).
25 Id. at 562.
26 Louise Arbour, Crimes Against Women Under International Law, 21 Berk. J. Intl
L. 196, 204 (2003). The more reportorial IHL literature also predicts such transmission.
See Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal
for the Former Yugoslavia, 93 Am. J. Intl L. 1, 95 (1999) (the decisions of the ICTY
will affect the future work of the ICTY, the ICTR, the permanent international criminal
court, and national courts and tribunals when deciding cases in this area.).
27 Catharine A. MacKinnon, Womens September 11th: Rethinking the International
Law of Conict, 47 Harv. Intl L.J. 1, 31 (2006).
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IHL, for instance, others responded that a very narrow defense of consent
should be retained because the resulting rule would be more relevant as a
precedentto other armed conict situations and to peacetime.28 By the
time any such rules are adopted domestically, nding feminist ngerprints
on them will be difcult. Indeed, calling them feminist will probably seem
(depending on where you stand) hubristic or paranoid. A new conception of
feminism in power seems necessary if we are to be able to make these
possibilities politically intelligible.
Chantal Thomas
Any account of Governance Feminism (GF) rst and foremost requires, to my mind, celebration of a social movement. Against very steep
odds of governmental indifference and patriarchal hostility, feminism is
succeeding in achieving recognition of and response to social justice claims
on behalf of women everywhere. The feminist movement has proven truly
international, and as such stands as an exemplar of the potential for global
governance. Global governance describes contemporary lawmaking as
the product of deep and sustained interaction between states, international
organizations, and non-governmental associations. Lawmaking in this
mode is characterized by substantial communication in networked form
across national borders: networks among governmental sub-units, and networks among NGOs. Global governance is also characterized by ongoing
communication between ofcial actors (states and international organizations) and NGOs, in which the latter act as sources of information, guides
for agenda-setting, and levers of political pressure.
My discussion of GF as global governance proceeds as follows:
rst, I will describe the theoretical and policy perspectives of feminists in
the sex trafcking context. Feminist interventions in this discourse roughly
divide into opposing approaches to the relationship between prostitution
and trafcking: structuralist or radical approaches that endorse an abolitionist approach to prostitution, conceptualizing all prostitution as a form
of modern-day slavery and therefore as the consequence of trafcking;
and individualist or liberal/libertarian approaches that contemplate the
possibility that some prostitution is consensual and therefore not slavery
and not the result of trafcking, and consequently that are amenable to
greater decriminalization or legalization.
Second, I will describe GF as it has operated in anti-trafcking law
in the United Nations and in the United States, with particular attention
to the denitional question of the meaning of sex trafcking and the doctrinal relationship between trafcking and prostitution. I will describe the
processes that led to the establishment of laws against sex trafcking in
28 Jennifer Green, et al., Affecting the Rules for the Prosecution of Rape, 5 Hastings
L.J. 171, 219 (1994).
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international law and U.S. law: The 2000 United Nations Trafcking
Protocol29 and the 2000 U.S. Victims of Trafcking and Violence Protection Act (VTVPA).30 These were parallel efforts, driven by actors who
shared similar concerns.31 Both the international and U.S. regimes exercise inuence in other national context in a variety of ways, as the Sections below by Shamir and Kotiswaran indicate.
I. Governance Feminism and Sex Trafcking
Feminist involvement in the law and policy against sex trafcking importantly reects the ascendance of what Halley calls GF: that is, feminism that seeks not only to analyze and critique the problem, but to devise,
pursue and achieve reform to address the problem in the real world. Both
domestically and internationally, many feminist organizations have devoted extraordinary effort toward shaping the text and the enforcement of
29 The United Nations Protocol to Prevent, Suppress and Punish Trafcking Against
Persons denes trafcking in the following way:
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32 Chantal Thomas, International Law Against Sex-Trafcking, In Perspective, Presentation at the Wisconsin-Harvard Workshop on International Economic Law and Transnational Regulation 53 (2004) (manuscript on le with author).
33 See Catharine A. MacKinnon, Feminism, Marxism, Method and the State: Toward
Feminist Jurisprudence, 8 Signs 635, 635 (1983) (Male and female are created through
the erotization of dominance and submission.).
34 See, e.g., Andrea Dworkin, Pornography: Men Possessing Women (1989); Andrea Dworkin, Intercourse (1991).
35 See, e.g., Kathleen Barry, Female Sexual Slavery (1979); Kathleen Barry,
The Prostitution of Sexuality (1995).
36 MacKinnon, Prostitution and Civil Rights, supra note 7, at 1314.
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In her 1979 book Female Sexual Slavery, Kathleen Barry did much
to carry this view to the international plane, to raise international awareness of the harmful effects of prostitution, and to revive the conception of
it, popular in earlier eras, as a form of slavery. Barry documented physical and psychological abuse, domination and deception of prostituted women
and girls in a series of countries in Latin America and Africa, showing how
many of these situations t the most rudimentary denition of slavery.37
Barry, like many others working in this area, saw her task as naming and
exposing the pervasive and fundamental nature of female domination,
and thereby striking the rst blow toward freedom.
Individualist NGOs were unied by a concern that the approach to
trafcking preserve the visibility of the person as an individual. An emphasis on the primacy and importance of the individual translated into a
call for an establishment of a framework of individual rights of trafcked
persons. Accordingly, human rights organizations formed a central voice
in the individualist camp. The Human Rights Caucus, a coalition of rights
organizations, became a steady and important player in the negotiation of
the Protocol. The International Human Rights Law Group, or IHRLG (now
known as Global Rights), formed one of the anchors of the Human Rights
Caucus. For the IHRLG, a primary concern was to ensure that the Protocol recognize the importance of protecting the human rights of the
trafcked persons.38 Thus, the IHRLG, the Global Alliance Against Trafc
in Women (GAATW), and other participants in the Human Rights Caucus
called for language in the Protocol explicitly endorsing the protection of
the human rights of trafcked persons.39
In addition to calling for recognition of human rights, the individualist camp strongly opposed a denition of trafcking that failed to recognize
the possibility of individual choice. To fail to recognize choice would be
to obscure the primacy of the individual behind larger, structural concerns
an untenable position from the human rights perspective. The individualist NGOs were able to form coalitions with the participating governments
that did not, within their own territories, aim for complete criminalization or
abolition of prostitution.
37
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40 See also infra the analyses by Hila Shamir and Prabha Kotiswaran of similar movements in specic national contexts.
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Barry documented the widespread abuses that occurred in prostitution in Latin America and Africa. In a 1981 article entitled Female Sexual Slavery: Understanding the International Dimensions of Womens
Oppression, she described the burgeoning efforts of the feminist movement, and particularly of radical feminists who viewed prostitution through
a structural theoretical lens. Barrys account of feminist mobilizing is a
compelling account of activist determination:
At the 1980 conference in Copenhagen, in the nongovernmental
forum, hundreds of feminists from around the world met to discuss this issue which some ofcial delegates began the work of trying to bring forth a resolution to include the issue in the World
Plan of Action. The move for a resolution was reinforced by
women from the forum lobbying their ofcial delegates. This effort resulted in ofcial adoption of a resolution which asks the Secretary-General of the United Nations to report to the next session
of the General Assembly on the trafc of women and to take action against international networks of trafckers and procurers.
This international attention to female sexual slavery will now enable channels to be opened which will provide an opportunity for
women to report crimes and seek remedies.43
Gradually, the issue began to be incorporated in conferences on
womens issues and preparatory sessions.44 Kathryn Zoglin points out that
this effort largely originated in the global North and largely focused on
the global South.45 This pattern arose probably not because of any conscious imperialist bias46Barry was as outraged by prostitution in Paris
as in Nairobi47but because the South, accessible through the language
of international human rights law, presented a theater of opportunity at a
time when the radical feminist project in the North was embattled by opposition from the status quo as well as liberal and libertarian feminists.48
43 Kathleen Barry, Female Sexual Slavery: Understanding the International Dimensions of Womens Oppression, 3 Hum. Rts. Q. 44, 4445 (1981); see also generally Cynthia Enloe, Bananas, Beaches and BasesMaking Feminist Sense of International Politics (1990).
44 See Kathryn Zoglin, United Nations Action Against Slavery: A Critical Evaluation,
8 Hum. Rts. Q. 306 (1986).
45 Id. at 315 (The signicant impetus provided by the NGOs has come from largely
Western organizations. In contrast, the majority of topics under consideration has focused
on slavery-like practices in the Third World.).
46 There is, of course, a strong tradition of postcolonial critique of latent imperialist
bias within international human rights law. See, e.g., Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the Native Subject in International/Post-Colonial Feminist
Legal Politics, 15 Harv. Hum. Rts. J. 1 (2002); Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. IntL L.J. 201 (2001).
47 Barry, supra note 43, at 44.
48 In addition to the resistance on behalf of the status quo, the U.S.-based structuralist
movement met with opposition not only from traditional liberal groups but also from the
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In the international frame, this kind of opposition was initially much less
forthcoming. In part, this may have been because the issue was so marginal. The womens human rights movement was as yet inchoate, and no
internal frontier of opposition had formed. Moreover, the U.N. body charged
with responsibility for eradicating slaverythe Working Group on Slaverywas at the bottom of the UN human rights hierarchy and likely
fairly unthreatening to the status quo.49
Thus, relatively early on, radical feminists were able to achieve victory in terms of bare recognition and framing of the issuea 1981 U.N.
Conference in Nice released the statement that all prostitution is forced
prostitution.50 The initial wave of information and argumentation was not
followed by any immediate impact on U.N. or state behavior. Thus, Barry
lamented, it is not that international authorities do not know about these
practices which violate the human rights of women, but that they refuse
to act against those violations or expose them.51
However, the groups were buttressed by an important source of international lawthe 1949 U.N. Convention for the Suppression of the Trafc in Persons and the Exploitation of the Prostitution of Others. Article 1
of the 1949 Convention requires member states to punish any person
who, to gratify the passions of another: (1) procures, entices or leads away,
for purposes of prostitution, another person, even with the consent of that
person or (2) exploits the prostitution of another person, even with the
consent of that person.52 The language of the 1949 Convention harkens
back to another era, the turn from the nineteenth to the twentieth century
during which social panic about the white slave trade53 ran high and the
seduction of women was a crime in and of itself.54 These features of the
1949 Convention would seem to contradict the self-conception of radical
feminists. Nevertheless, although it might have used questionable language, the 1949 Convention reached the right conclusion: it made prostitution illegal regardless of any showing of consent by the prostituted person.
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In addition to the 1949 Convention, the U.N. also provided an organizational opportunity to mobilize and to press their causethe U.N. Working Group on Slavery. Accounts of the U.N. Working Group agree that it
was uniquely open to NGO input during this period. To begin with, the
Working Group was a forum for action on womens rights issues at a time
when most other U.N. bodies were indifferent to the idea. The mandate
of the Working Group was noticeably open-ended, creating the opportunity for creative interpretation.55 The Working Group also featured an
unusual level of procedural exibility: any NGO with consultative status
could submit written materials to it and could appear before it.56 CATW
and many other abolitionist NGOs, together with Anti-Slavery International, consistently attended the Working Group sessions throughout the
1980s and 1990s.57 Thus, NGOs exerted in the Working Group stronger
inuence than [in] almost any other comparable human rights body.58
The U.N. Working Group requested an annual report by the Secretary-General on the number of ratications of the 1949 Convention and
sought to establish a Special Rapporteur.59 Thus, the movement had succeeded in making the issue visible and putting it on the agenda of ofcial
actors.60 It was stalled, however, by the fact that many governments did
not want to ratify the 1949 Convention because the prohibitionist stance
would have required them to alter their domestic legal systems.61
55 Zoglin, supra note 44, at 317 (the mandate, to review developments in the eld of
slavery, is neither narrow nor excessively well-dened. Thus the Working Group has
always enjoyed considerable scope for action.).
56 Id. at 319.
57 Among the many other groups participating were the International Abolitionist Federation and the International Federation of Women Lawyers. See, e.g., Report of the Working Group on Slavery on the Meeting of its Eighth Session, U.N. Doc. E/CN.4/Sub.2/1982/21
(1982).
58 Zoglin, supra note 44, at 321. There were some critiques of this openness. For instance, because direct testimony was rare and indirect information of a kind rejected by
other human rights fact-nding bodies was routinely submitted, some said the data received was imprecise. Id. at 321, 327.
59 E.g., The Secretary-General, Inquiry on the Status of Combating of the Trafc in
Persons and of the Exploitation of the Prostitution of Others, U.N. Doc. E/CN.4/Sub.2/AC.2/
1982/13 (1982); Note by Mr. Asbjorn Eide, Special Rapporteur of the UN Economic and
Social Council, U.N. Doc. E/CN.4/Sub.2/AC.2/1988/5 (1988).
60 In 1995 these efforts culminated in the establishment of a Programme of Action. Report of the Working Group on Contemporary Forms of Slavery on its Twentieth Session: Draft
Programme of Action on the Trafc in Persons and the Exploitation of the Prostitution of
Others, U.N. Doc. E/CN.4/Sub.2/1995/28/Add.1 (June 13, 1995). NGOs communications
to the Working Group made clear that they were concerned not only about the low number
of ratications of the 1949 Convention, but also about the fact that the Convention did not
include any mechanism for monitoring and implementation. Various NGOs proposed the
development of such mechanisms to strengthen the 1949 Convention. See, e.g., Report of
the Working Group on Contemporary Forms of Slavery on its Twenty-Second Session, U.N.
Doc. E/CN.4/Sub.2/1997/13, 21, 22 (July 11, 1997).
61 See, e.g., Remarks of the United Kingdom, Report of the Working Group on Contemporary Forms of Slavery on its Twenty-First Session, U.N. Doc. E/CN.4/Sub.2/1996/24
(July 19, 1996).
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It was not until intergovernmental talks began to establish a Convention on Transnational Organized Crime that trafcking would be made more
central to international crime-ghting efforts of ofcial actors.62
B. The United States Stage
The original impetus to establish a Convention on Transnational Organized Crime came out of a joint effort by the U.S. and European governments when they were cooperating on other fronts to combat moneylaundering and drug trafcking. The Clinton Administration made transnational organized crime a priority.63 Within that, combating illegal immigration was a big objective. The issue of sex trafcking appears to have
been incorporated into these intergovernmental efforts after Hillary Clinton attended the Beijing Womens Conference and met with NGOs such
as the Global Survival Network.64 Coupled with the awareness of trafcking
that had already developed among White House staff during the 1990s,
Hillary Clintons involvement led to the establishment of the Presidents
Interagency Council on Women (PICW) with Secretary of State Madeleine
Albright as its chair and Hillary Clinton herself as honorary co-chair.65 The
PICW mobilized to place trafcking on the agenda of the emerging intergovernmental initiative to establish an international convention to strengthen
efforts to combat crime and illegal migration.
The Clinton Administrations perspective was decidedly liberal.66 As
weve seen, this view conceptualized prostitution and trafcking as distinct;
envisioned the possibility of noncoerced prostitution; it also emphasized
the centrality of human rights. Conceptually, these positions were of a
piece. The idea of human rights privileged the classical liberal individual,
and this necessitated the idea of the right to choose. It also necessitated the
possibility of a defense for the defendant under liberal conceptions of criminal justice. Within this framework, punishment of trafcking would proceed according to a familiar process of balancing competing rights in a
liberal-legal frame.
In setting this agenda, PICW faced opposition from feminist groups
that wanted prostitution to be made illegal. National Organization for
Women (NOW) and the Planned Parenthood Federation of America both
protested the Clinton Administrations effort to weaken international laws
62 U.N. G.A. Res. 53/111, U.N. Doc. A/RES/53/111 (Dec. 9, 1998) and G.A. Res. 53/114,
U.N. Doc. A/RES/53/114 (Dec. 9, 1998). The move for implementation machinery in the
Working Group may have been in anticipation of this event.
63 The Threat to US Trade and Finance from Drug Trafcking and International Organized Crime: Hearings Before the Senate Caucus on International Narcotics Control,
Senate Finance Committee Subcommittee on Trade, 104th Congress (1996) (testimony of
Deputy Assistant Secretary Winer).
64 Stolz, supra note 31, at 413.
65 Id. at 413.
66 Id. at 415.
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Id. at 418.
Id.
69 Id. (Religious conservatives Richard Land, Ethics and Religious Liberty Commission; Bill Bright, Campus Crusade for Christ; Mary Ann Glendon, Harvard University law
professor; Kay Cole James, Heritage Foundation; and Diane Knippers, Institute on Religion and Democracy sent a letter articulating their concerns about the protocol and prostitution to Hillary Clinton, as co-chair of PICW.).
70 Brian Blomquist, Hooker Panel Puts First Lady on the Spot, N.Y. Post, Jan. 8, 2000.
71 William J. Bennett & Charles W. Colson, The Clintons Shrug at Sex Trafcking, Wall
St. J., Jan. 10, 2000.
72 Radhika Coomaraswamy, Integration of the Human Rights of Women and the Gender
Perspective: Report Of The Special Rapporteur On Violence Against Women, Its Causes
And Consequences, 1217, U.N. Doc. E/CN.4/2000/68 (Feb. 29, 2000).
73 Report of the Working Group on Contemporary Forms of Slavery on its Twenty-Fifth
Session, 84, 85, U.N. Doc. E/CN.4/Sub.2/2000/23 (July 21, 2000) (Speakers . . . expressed their anxiety at the content of the report submitted by the Special Rapporteur on violence against women to the fty-sixth session of the Commission on Human Rights. They
claimed that the report dealt only with trafcking based solely on coercion, that it criticized the 1949 Convention for the Suppression of the Trafc in Persons and of the Exploitation of the Prostitution of Others and that it assimilated prostitution to work. Above all,
the attention of the Working Group was drawn to the fact that the report placed consent at
the heart of the denition of trafc.).
68
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(B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.75
The inuence of the abolitionist position at the international level can be
deduced by contrasting the U.N. and the U.S. denitions. First, the U.N.
denition is broader, criminalizing not only those acts named in the U.S.
law, but also the abuse of power or of a position of vulnerability or of giving or receiving of payments or benets to achieve the consent of a person having control over another person.76 This addition afrms the structuralist belief that womens personal relationships and other circumstances
may give rise to fully coercive dynamics. Second, the U.N. denition includes a subparagraph which establishes that consent of a victim of trafcking in persons to the intended exploitation set forth in subparagraph
(a) of this article shall be irrelevant.77 Here, a central structuralist feminist tenet is written into law.
The sub-paragraph on consent should not, however, be confused with
the all-encompassing position of the 1949 U.N. Convention. The Protocols travaux prparatoires make clear that the Protocol was without prejudice to national legal systems on prostitution.78 Liberal NGOs have made
this clear as well. For example, in 2002 IHRLG (now Global Rights) published an Annotated Guide to the Protocol explaining that this provision merely restated the logic that once the elements of the crime of
trafcking are proven, any allegation that the trafcked persons consented is irrelevant.79 The Annotated Guide carefully distinguished between the Protocols denition and the Conventions, pointing out that under
the Protocols denition prostitution could occur without being a form of
trafcking: For example, a woman can consent to migrate to work in prostitution in a particular city, at a particular brothel, for a certain sum of
money. However, if the defendant intended actually to hold the woman in
forced or coerced sex work, then there is no consent because everything
the defendant trafcker told the woman is a lie.80
Though the abolitionist movement conceded major denitional territory in 2000, their point of view would soon become ascendant. The Administration of George W. Bush, who succeeded Clinton, has taken the pro(C) the abuse or threatened abuse of the legal process.
75
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81 Elizabeth Bumiller, Evangelicals Sway White House on Human Rights Issues Abroad,
N.Y. Times, Oct. 26, 2003, at A1.
82 See TVPA Reauthorization Act of 2003, H.R. 2620, 108th Cong. 7 (2003) (providing that no funds authorized for anti-trafcking purposes can be used to promote, support or advocate the legalization or practice of prostitution; and requiring organizations that
apply for anti-trafcking funding to state in their grant documentation that they do not promote, support, or advocate same).
83 See Letter from the AIDS Law Project, Centre for Applied Legal Studies, Wits University et al., to George W. Bush, President, United States of America (May 18, 2005), available at http://www.iwhc.org/document.cfm?documentID=231.
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nist power, and I am pleased to see feminists among the elites making
feminist decisions.
But this mapping is also unsettling. Through my research I came to
realize that the current form of GF tends to deny its own power, and consequently systematically overlooks the shifts in bargaining power, distributive consequences, and production of winners and losers yielded by
feminist legislative reforms. This internal critique of feminism draws on
insights from new legal realism. The legal realist tools are helpful in mapping the distributive consequences (losses and gains) of proposed and implemented policies and in developing more consequence-conscious feminist
reforms.
In this Part, I will focus on how feminists operate in governance mode,
and how they came to inhabit this mode, by providing a snapshot of their
institutional operation in the regulation of sex work and sex trafcking in
national contextsmainly that of Israel. In my answer to the second question, I will focus on what feminists are doing with this gained power in
Israel, the Netherlands, and Sweden.
Feminism has proved to be a powerful actor in regulating sex work
and combating trafcking in human beings for the purpose of sex work.
This is true, as Thomas suggests above, on an international level, but is
also the case in many national contexts. My research looks at the feminist
legal regimes of sex work and trafcking that developed in the Netherlands, Sweden, and Israel, where the phenomenon of trafcking increased at
the end of the Cold War, changing the sex industries of these countries
dramatically, and leading to reforms in their regulation.
The end of the Cold War opened new routes of trade and migration
between the former Soviet Union and the west.84 The struggling economies of the former Soviet Union and the promise of the rich west led to
increased trade and migration, thereby creating new prospects gainful
employment in unskilled labor upon migration. The established formal
routes of trade and migration were accompanied by the development of
informal shadow markets of cross border trade in goods and labor. This
included the development of a market in illegal migration for the purpose
of sex work and sex trafcking. For example, it is estimated that 10,000
women were trafcked or migrated from countries of the former Soviet Union (namely Moldova, Russia, Ukraine) to work in Israels sex industry in
the early 1990s, when transnational crime networks took advantage of the
85
increased migration of soviet Jews to Israel. The legal migration from
the former Soviet Union into Israel created a transnational link between
84 Trade between the east and the west existed during the period of the Cold War despite the (American-led) sanctions but it was limited, disrupted and distorted. See generally East-West Trade and the Cold War (Jari Eloranta & Jari Ojala eds., 2005).
85 Donna M. Hughes, The Natasha Trade: The Transnational Shadow Market of
Trafcking in Women, 53 J. Intl Aff. 625, 632 (2000).
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Id. at 629.
Apparently this is not unique to Israel. See Saskia Sassen, Is This the Way to Go?
Handling Immigration in a Global Era, 4 Stan. Agora (2003), http://agora.stanford.edu/
agora/volume4 (According to the International Organization for Migration data, the number of migrant women prostitutes in many EU countries is far higher then that for nationals: 75% in Germany, 80% in the case of Milan in Italy, etc.).
88 Bureau NRM, The Hague, Trafcking in Human Beings: Third Report of the Dutch
National Rapporteur 13 (2005).
89 The reforms were done through the cooperation of feminists in power positions in
the state (public ofcials, legislators, and ministers) with feminist NGOs. See Gunilla Ekberg, The Swedish Law that Prohibits the Purchase of Sexual Services, 10 Violence Against
Women, 1187, 119192 (2004); see also Trafcking in Human Beings: Third Report of the
Dutch National Rapporteur, supra note 88, at 12.
90 Penal Code 203A-D (amendment no. 56), 57602000, 1746 S.H. 226 (2000) (Isr.).
One of the signs for the legislative rush to pass the amendment is the fact that during the
legislative process the issue of sex trafcking was hardly researched and was not put in
broader context. Rather, in a knee jerk reaction, trafcking was dened narrowly to include
only trafcking for the purpose of prostitution, leaving wide practices of trafcking in
persons for other purposes legally un-attended.
91 Martina Vandenberg, Israels Womens Network (Shdulat Hanashim), Trafcking of Women into Israel and Forced Prostitution (1997).
87
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92 The main landmarks in this process are the following: In 2000 the Israeli legislature
criminalized trafcking in women by amending the Penal Code and adding section 203A-D
(Penal Code 203A-D, supra note 90). Since 2000 the situation of victims of trafcking
who agree to testify as prosecution witnesses has improved and when caught, they were no
longer immediately deported, but were given the option to testify against their trafckers.
Further, several court rulings in 2000 held that prosecution witnesses should not be detained while waiting to testify, and that the police should ensure that the womens basic needs
for food and accommodation are fullled. Following these rulings, the police stopped holding victims of trafcking in prisons and began providing accommodation for witnesses in
hostels, paid by the police. In 2004 a secured shelter for victims of trafcking was established by the Ministry of Welfare. The shelter provides both health care and mental care
for the victims. Since 2004 the Ministry of Interior Affairs provides victims of trafcking
with visas and working permits in exchange for their testimony against the trafckers. See
Entry into Israel Order, Exemption from Need of Approval to Permits for a Foreign Worker (2004) (Isr.). In July 2004 the Minister of Interior participated in a meeting
of the Parliamentary Committee on Trafcking in Women, in which he declared his willingness to extend work permits and visas for one more year after the woman gave her testimony. The protocol of the meeting is available at http://www.knesset.gov.il/protocols/data/
html/sachar/2004-07-06.html (last visited Apr. 25, 2006).
93 Israel signed and ratied the U.N. Convention for the Suppression of Trafcking in
Persons and the Exploitation of the Prostitution of Others, 1949, and the Convention on the
Elimination of all Forms of Discrimination Against Women, 1979; Israel also signed but
did not ratify the most recent and up-to-date international counter-trafcking instrument,
the 2001 U.N. Trafcking Protocol.
94 The VTVPA also had great effect on legislation and policy in sending countries
categorized as tier three in the U.S. State Department Trafcking in Persons Report. See
Alexandra V. Orlova, From Social Dislocation to Human Trafcking, 51(6) Problems of
Post-Communism 14, 2122 (2004); see also Counter Trafcking in Eastern Europe
and Central Asia, IOM research report 8 (2003).
95 Victims of Trafcking and Violence Protection Act, supra note 3, 110.
96 Ofce of the Under Secy for Global Affairs, U.S. Dept of State, Trafcking in Persons Report, at 88 (2001), available at http://www.state.gov/documents/
organization/10815.pdf.
97 Ofce of the Under Secy for Global Affairs, U.S. Dept of State, Trafcking in Persons Report, at 63 (2002), available at http://www.state.gov/documents/
organization/4107.pdf.
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But since the Hotline is mainly concerned with the rights of victims of
sex trafcking, and not with general concerns of the harms of prostitution
(that is, it focused its effort around developing protection programs for
victims of trafcking and lobbying for increased prosecution of trafckers),
it often shares the same rhetoric and stances of the structural feminists
from the abolitionist organizations. Accordingly, all the participating NGOs
often appear relatively unied when expressing their opinions and demands
in the committee.
It is primarily in this zonein which direct and unmediated interactions between civil society organizations and the state takes placethat
Israeli feminists shaped their governance mode of operation and engaged
in the regulation of sex work and sex trafcking in Israel.
Beyond operation in governance mode, feminists also used traditional,
non-governance channels of operation; namely, they turned to the courts.
Through litigation, feminists successfully pleaded to interpret generously
the consideration requirement in the trafcking section of the penal code
by lowering the evidentiary level for the proof of consideration to require
circumstantial evidence alone.102 And they successfully petitioned to establish rights for out-of-prison accommodation and police protection for
victims of trafcking who agreed to serve as prosecution witnesses (in the
latter case feminists and NGOs working with migrant workers led amicus
briefs).103 Although petitions to courts played an important strategy in
voicing the feminist perspective, this, I believe, is not a form of GF. While
GF is about feminists joining formal political power apparatuses
cooperating with them and operating within themthe courts serve as a
venue for those who lost the political game or did not have meaningful
access to political processes in the rst place. Moreover, the adjudication
procedure leaves the power in the hands of traditional decision makers
judgeswhere feminists are relatively passive actors.
The involvement of non-state organizations in legislative processes
and policy formation is not exclusive to the issue of trafcking in persons,
though in Israel this might be one of the clearest manifestations of this
growing trend. Furthermore, though feminists became meaningful actors,
it is not clear how much power feminist and other civil society organizathe Swedish regime that criminalizes clients, because of its possible adverse effects on sex
workers).
102 CrimA 1609/03 Borisov v. State of Israel, [2003] 58(1) P.D. 55. Section 203A(a) of
the penal code says: Selling or purchasing of a person in order to engage him in prostitution or serving as a middleman in the selling or purchasing of a person for this purpose is
punishable by a term of imprisonment of 16 years; for the purposes of this paragraph, selling or purchasing includes consideration in the form of money, value, services or any
other interests. Informal translation by attorney Rachel Gershony, legal advisor in the Ministry of Justice, as quoted in Nomi Levenkron et al., National NGOs Report to the
Annual UN Commission on Human Rights: Evaluation of National Authorities
Activities and Actual Facts on the Trafcking in Persons for the Purpose of
Prostitution in Israel 9 (2003).
103 HCJ 1119/01 Zaritskaya v. The Ministry of Interior (unpublished).
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it was not used once in the four months following its passage.109 As far as
the NGOs are informed, it has been used only once in the year following
its enactment (and then only partially). It therefore seems that feminist
and other NGOs turned into powerful political actors in this new form of
politics, and as such, like all other stakeholders in these struggles, they
win some and they lose some.
One such possible triumph might be the proposal of the Act for The
Prohibition of Trafcking in Persons that passed its rst legislative stage
in November 2005.110 The Parliamentary Committee on Trafcking in
Women and the Constitution Law and Justice Committee jointly drafted
the bill, and feminist organizations commented on it extensively during
its drafting. At least at its current preliminary stage, the proposal looks
like a (structuralist) feminist victory.111 However, the proposed act also
reects an attempt of Israeli authorities to comply with the 2001 Protocol,
which, as Thomas and others112 suggest, is often understood as an international feminist achievement. Israel signed the 2001 Protocol but cannot
ratify it113 until its national legislation is in line with the requirements
laid down by the Protocol. The proposed bill complies with the Protocols requirement of enacting a trafcking prohibition that would include
a broader range of circumstances besides prostitution, namely situations
of forced labor and organ removal. Sweden and the Netherlands both went
through similar processes of widening statutory denitions of trafcking
to comply with the international standard and ratied the Protocol promptly
after passage of new legislation (in July 2004 and July 2005, respectively).
For these three countriesand probably for many othersthe 2001 Protocol did not serve a feminist purpose per se, but a general purpose of recognizing more types of harms (and less gender specic harms) as warranting
national sanction. It seems then that it is mostly the VTVPA, with the power
it endowed certain groups of Israeli feminists, that shaped the measures
taken by the Israeli government against sex trafcking.
I depicted here in detail a specic aspect of the operation of GF at the
national level hoping to exemplify the complexity and indeterminacy of
its operation in this context. Here feminism often works its way into power
through interaction with state actors in a complex and nuanced way and with
109 Protocol of the War Against the Trade in Human Beings Committee (July 13, 2005)
(regarding the implementation of the Limitation of Use of Property for the Prevention of
Crime Act: Meeting of the War Against the Trade in Human Being Comm.).
110 Act for the Prohibition of Trafcking in Persons, Proposal P/1291 (as passed in rst
vote out of three, Nov. 15, 2005).
111 In the denition of trafcking the proposal emphasizes that the victims consent, no
matter when it is received, is irrelevant to a trafcking crime. This was the case at the 2000
penal code amendment as well, but the language and rhetoric of the proposed legislation is
much stronger.
112 Beverly Balos, The Wrong Way to Equality: Privileging Consent in the Trafcking
of Women for Sexual Exploitation, 27 Harv. Womens L.J. 137, 14174 (2004).
113 Ratication might be crucial to ascend another tier in the U.S. State Department Victims of Trafcking Report.
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114 The Contagious Diseases Act of 1868 called for the compulsory registration of all
sex workers and the compulsory examination and treatment of sex workers in lock hospitals set up by the colonial government. Failure to comply with these requirements invited
criminal sanctions including the payment of nes and imprisonment.
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As Bushnell and Andrew relate their own conversations with sex workers, the sex workers reported on their earlier encounter with another Western
woman in the following way:
Then the lady went home to England and talked to the Queen. She
spoke with wonderful power on behalf of the poor women of India.
She said to the Queen that she (the Queen) was a woman, and
these in India were women, and their shame was the Queens
shame, and for them to be outraged as though she (the Queen) was
outraged, that it was a shame for women to be treated so when a
woman was Queen. Then the Queen ordered it to be stopped. But
the ofcers still carry it on . . . . They [the sex workers] blessed
and thanked us over and over. We told them, We are your sisters; they replied, We are your slaves.115
Were Bushnell and Andrew governance feminists (GFeminists)? Is
Governance Feminism (GF), as Halley suggests, an underrecognized but
important fact of governance more generally in the early twenty-rst century? To be sure, there are signicant differences between the current
ascendance of GF in the international legal domain, outlined by Halley and
Thomas, and the feminist interventions that I describe from more than a
century ago. Feminist NGOs in the late nineteenth century were probably
only beginning to intervene in policy-making at the domestic and international levels. Unlike the present-day GF that Halley discusses, their installation in actual legal-institutional power was improbable, as was
the likelihood of their being hired by bureaucracies. They certainly had
no favorable body of international law to draw on, or institutional spaces
in processes of international law-making, or political opportunities of the
sort that Thomas lists as contributing to the success of GF in drafting the
U.N. Protocol. Yet the prohibitionist impulse of feminism, manifested in
a strictly legal project in the international realm and informed by an
imagined global sisterhood thought to overshadow the larger politics of
colonial rule, bears an uncanny resemblance to present-day GF. Interesting also is the fact that the international social purity movement in the
1920s and 1930s later found its most enthusiastic constituents amongst
elite nationalist men and women eager to use limited self-rule to pass
anti-trafcking legislation.116 This was, after all, the nationalist resolution
of the womens question,117 whereby Indians who could not challenge British rule in the public, material sphere, sought to challenge it in the spiritual, private sphere by fashioning an ideal femininity for the Indian woman
115
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this has the real potential for irreversibly shifting the balance of power at
the national level, where on the one hand, sex worker organizations are being starved of their already limited funds, while domestic organizations towing an abolitionist feminist line and international outposts of U.S. churchbased organizations are ush with funds to ostensibly counter sex trafcking
and rescue sex workers from sex work.
With a slightly longer presence in India than the prohibitionist agenda,
international efforts to prevent the spread of HIV/AIDS have led to the
increased circulation of services and capital and to the establishment of a
nation-state/foreign donor/civil society complex. This complex is remarkable for its innovation of public-private partnerships, so that there is a
blurring of boundaries between the state and civil society. Note the difference from the prohibitionist agenda, which seeks to increase police powers exclusively wielded by the state. Informed by the liberal attitudes of
the medical profession, the sensibility of this complex is one of tolerance
for varied sexual practices, including sex work. However, its support of
sexually marginalized groups is related to a different mode of bureaucratic
rationality, namely, a utilitarian calculus that allows room for interventions amongst groups like sex workers and their consequent mobilization.
But even this happens only to the extent necessary to prevent the spread
of HIV to the general population, really, innocent wives and children in
heterosexual marital families. As such, this complex has no legal agenda
of its own. So, on the one hand, while the exigencies of pandemic control
would be a slippery slope on which to base a campaign for the decriminalization or legalization of sex work, it counteracts the prohibitionist project, which altogether refuses to countenance the existence of sex work or
sex workers.122 Ironically then, the public discourse surrounding HIV/AIDS
offers the most valuable space for discussions around sex work in India
today. This is indeed the point of departure for my analysis of the ascendance of GF in relation to antisex work laws.
Soon after the discovery of the HIV virus in a sex worker in the city
of Chennai in 1986, the Indian government proposed to pass the AIDS
Prevention Bill, 1989,123 which provided health authorities with invasive
policing powers in the form of forcible testing, isolation of members of
high-risk groups (including sex workers) and coercive tracing. It was only
after a sustained campaign against this patently unconstitutional law by
civil society organizations that the government withdrew it. This was replaced by a more considered process of policy formulation.
visited Apr. 25, 2006) for further details.
122 This is not unlike the role of the medical profession in the case of abortion, where
much of the public and major organization support for the repeal of restrictive abortion
laws came from elite professionals, particularly doctors. See Gerald N. Rosenberg, The
Hollow Hope: Can Courts Bring About Social Change? 26162 (1991).
123 See Siddhartha Gautam, The AIDS Prevention Bill, 1989: Protection or Prosecution?, Lawyers, Oct. 1989, at 7 (providing details of the Bill) (on le with author).
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373
129 SAARC Convention on Preventing and Combating Trafcking in Women and Children for Prostitution, http://www.december18.net/trafckingconventionsSAARC2002.pdf
(last visited Apr. 25, 2006).
130 Jyotsna Chatterji, Introduction to Madhu D. Joshi, Women and Children in Prostitution: Human Rights Perspectives (Report of the National Workshop) i, vii
(1997) [hereinafter Women and Children in Prostitution].
131 Jean DCunha, The Legalization of Prostitution: A Sociological Inquiry
into the Laws Relating to Prostitution in India and the West 42 (1991).
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world women and children in sex work as sex slaves, forced as they were
(presumably unlike Western women) into sex work via coercion, poverty,
and abuse.
In terms of law reform therefore, the NCW reproduced concrete policy proposals for partial decriminalization suggested by a prominent radical feminist at the 1997 workshop132 over that of complete decriminalization made by a sex radical feminist present at the workshop, but which the
NCW understood as equivalent to legalization.133 More specically, this
meant the criminalization of customers and changes to, but not the repeal
of, those sections which were used the most against female sex workers,
such as Sections 7(1) (prostitution in a public place), 8 (soliciting), and
20 (removal by Magistrate of prostitute from any place within his jurisdiction in the general interest of the public).134 Thus, despite the general
and self-admitted indifference of the Indian womens movement and feminist NGOs to the issue of sex work and to sex workers as a constituency,135
when sex work did become a live policy issue for feminist debate, notwithstanding the presence of countervailing feminist voices, a certain version
of feminist politics rose to governance mode when it found a foothold in
an inuential state body.
The NCW had set the tone for the federal government in several of its
subsequent policy statements, replicating within them notions of the power
of patriarchy, false consciousness, and the irreparable harms of sex work,
collapsing all sex work into sexual servitude and slavery, assuming the impossibility of any sex worker consent, however circumscribed, given Indian
womens poverty, and a refusal to distinguish between child prostitution
and adult prostitution and between sex work and trafcking.
132 Women and Children in Prostitution, supra note 130, at 114. However, the exact nature of the changes was not elaborated on, although the radical feminist whose recommendations the NCW relied on proposed the deletion of Sections 7(1) and 8(b) and the
removal of the discretionary powers of the Magistrate under Section 20 at the workshop.
Id. at 47.
133 For details of the workshop proceedings, see Kotiswaran, supra note 124, at 194.
134 Section 7(1) penalizes both any individual who carries on prostitution, as well as
the person with whom prostitution is carried on, in the vicinity of public places. Section
8(b) punishes anyone who solicits for the purpose of prostitution. Section 20(1) is a vaguely
worded provision which allows a Magistrate to order the removal of a prostitute from any
place within his jurisdiction, if he deems it necessary to the general interest of the public.
The text of these sections can be found in G. B. Reddy, supra note 119, at 49 (section
7(1)), 56 (section 8(b)) and 88 (section 20(1)).
135 Ctr. for Women and Dev. Studies (New Delhi) & Humanistic Inst. for Cooperation with Developing Countries (Bangalore), Women in India: Reecting
on Our History Shaping Our Future, 2223 (Jamuna Ramakrishna ed., 1993) (proceedings of a Consultation on Gender and Development jointly organized by the Center for
Women and Development Studies, New Delhi and the Humanistic Institute for Co-operation
with Developing Countries, Bangalore) (on le with author). Of course, not all feminists
agree; some feminists argue that it is the contemporary feminist movement alone that is
claiming political rights and security at work for sex workers. Janaki Nair & Mary E. John,
Introduction to A Question of Silence? The Sexual Economies of Modern India 1,
15 (Janaki Nair & Mary E. John eds., 1998).
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As a result, by the mid- to late 1990s, with the NCWs inuence on the
very terms of the debates surrounding sex work, the range of regulatory
options up for discussion became drastically limited, and, in response, the
state typically oscillated between the status quo and partial decriminalization. In 1998, for instance, during the rule of the Hindu nationalist party,
the federal Department of Women and Child Welfare formulated the Plan
of Action to Combat Trafcking and Commercial Sexual Exploitation of
Women and Children136 (the Plan of Action), which recommended that
the ITPA be reviewed to ensure that sex workers were not re-victimized by
the law, but that customers, trafckers, pimps, brothel-keepers, parents/
guardians, and others who colluded with them be made liable. The Plan of
Action, however, stopped short of calling for the partial decriminalization
of sex work, namely calling for the repeal of sections of the ITPA used the
most against sex workers. Instead, using the powerful image of Indian sex
workers as victims provided by Indian GF, the state expressed an unarticulated distinction between victims of commercial sexual exploitation
who were willing to be rehabilitated, and therefore deserving of state help,
and those victims who were notthus reinforcing the conservative codes
for female sexuality that GF were targeting to begin with. This victimization also became the basis for other egregious violations of sex worker rights
proposed in the Plan of Action, such as the forced institutionalization of
child victims and children of sex workers and the isolation of HIV-positive
sex workers in the terminal stages of AIDS in separate shelter homes.137
In another instance, an amendment to the ITPA was posted on the
website of the Ministry of Human Resource Development in 2003138 proposing the deletion of Section 8, in addition to expanding the denition
of trafcking to track word for word the denition in the U.N. Protocol,
while increasing penalties against brothel-keepers and trafckers. Also, a
2004 study conducted by the National Human Rights Commission and
supported by UNIFEM recommended that Section 8 of the ITPA should
not be used to re-victimize victims but did not call for its deletion.139 The
most recent proposal, The Immoral Trafc (Prevention) Amendment Bill,
2005, reportedly approved by the Indian cabinet and set to be presented
at the current session of the Indian parliament proposes the deletion of
Sections 8 and 20 of the ITPA, substantially conforms the denition of
trafcking to that in the U.N. Protocol, and criminalizes customers.140 The
amendment is rumored to be aimed at elevating India out of the Tier 2 watch
136 Dept of Women and Child Dev., Ministry of Human Res. Dev., Govt of India, Plan of Action to Combat Trafcking and Commercial Sexual Exploitation
of Women and Children (1998) (published by Sanlaap, Kolkata as a pocket edition).
137 Id. at 37.
138 Amendment Proposed in Immoral Trafc (Prevention) Act, 1956, http://wcd.nic.in/
proamendment.htm (last visited Apr. 25, 2006).
139 NHRC Report, supra note 128, at 9 of the Executive Summary.
140 The Immoral Trafc (Prevention) Amendment Bill (2005) (on le with author).
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list of the U.S. Department of State where it has been for the second year
in a row.141 Thus, it is clear that unlike the early 1990s, with the advent of
the NCW and the strands of feminism that it propelled into governance
mode from the mid-1990s onwards, the options for legal reform on the table
have become rather limited culminating in a proposal that now reconnects
with the international and U.S. legal regime that American GFeminists have
had so much to do with.
In this Section, I complicate the analysis of GF on two primary fronts.
First, I problematize the claim of newness of GFs international projects
in light of the colonial legal history of Indian laws on sex work. Second,
I chart out a brief history of legislative debates in India over the regulation of sex work in the past twenty years, arguing that while the changes
in the international political and legal realm have hastened the impulse
for domestic legislative reform and shaped the nal form of the proposed
2005 amendment, the claim of a causal link between them requires considerable qualication. Qualication is warranted on at least three fronts
the rst is by highlighting the coexistence of at least two international
regulatory projects, namely that of pandemic control, which is in deep tension with the other international regulatory project of GF.
The second qualication is that the receptivity of the Indian state to
international law achieved through the efforts of American GF was enhanced by the rise in the domestic context of Indian GF. In other words,
while acknowledging the importance of the international for the national,
its power must not be overstated. Hence, while the international effects
an enormous shift in the bargaining power of stakeholders at the national
level, at some point, international mandates and international law become
ensnared in a web of multiple legal regimes operative at the national and
local levels that effectively lead the international to become just one
more tool in the hands of the most powerful player in that context, typically the nation-state backed by Indian GF. The international is thus not
determinative in any sense and, in its constant interactions with the national, alternates between the foreground and background.
The third qualication is that, in highlighting the role of Indian GF
in this interplay, I do not want to overstate the political power that either
the NCW, or the GFeminists that they heed, wield. This is because the
NCW is, ultimately, an advisory body, and there are instances where their
moral authority as spokespersons of womens interests is just that. For
instance, despite a prolonged ongoing litigation and directions from the
National Human Rights Commission, the Goa State Commission for
Women, and the National Commission for Women to protect the rights of
commercial sex victims, in the Baina beach red-light area of Goa, the provincial government in Goa razed 800 to 1200 cubicles and shacks there, 400
141 See U.S. Dept of State, Trafcking in Persons Report, supra note 30, available at http://www.state.gov/g/tip/rls/tiprpt/2005/46610. htm.
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of which were being used for sex work.142 Further, although new governance is usually associated with open deliberative modes of lawmaking, the
political culture of the Indian state fosters little accountability and transparency. For example, despite the far-reaching effects of The Immoral Trafc
(Prevention) Amendment Bill, 2005, a text of the amendment is not publicly
available for debate, unlike earlier proposals to amend the ITPA. Instead,
it was only after sex worker organizations read a news report wherein government ofcials claimed that sex worker groups had endorsed proposed
amendments to the ITPA, that the groups could bring pressure on the
concerned department to divulge the text of the amendment. Under such
circumstances, GF cannot be said to be literally inuentialbut then perhaps they do not need to be. After years of shaping the hearts and minds
of policy-makers, GFeminists could sit back to allow international and foreign laws to do their work.143
Part Two: Developing Methods for Studying
Governance Feminism
Janet Halley
As we have seen, participants in the ICTY process included governance feminists (GFeminists) eager to claim credit for achieving change
in the law, and ofcial participants eager to acknowledge feminist
inuence. A deep archive, marshalled and analyzed by Karen Engle,
shows how a long-running debate about rape within feminism arrived at
the ICTY and reached a temporary resolution there. Is wartime rape a specially gruesome feature of male domination, or is it paradigmatic of
womens subordination generally? Tracking this division, some feminist
activists saw rape in the Yugoslav war not only as genocide, but as Serbian genocide, and indeed saw Serbian genocide as primarily rape (a
war against women); while others saw rape on all sides of the Yugoslav
conict, some indeed seeing it as genocidal on all sides, as a heightened, intensied instance of everyday rape and male domination generally (and thus, again, as a war against women).144 Engle has carefully
mapped out the ways in which the ICTY statute, rules of evidence, charging practices, indictments and prosecutions, and Trial Chamber and Appeals Chamber decisions did and did not register an acceptance of feminist inuence generally; she shows that feminist rule preferences sometimes made it into the new regime, and that, where they did not, it is often fair to see the ICTY as mediating between the two feminist camps in
142 Ravi Sharma, Crackdown on a Beach, Frontline, July 1730, 2004, available at
http://www.hinduonnet.com/ine/2115/stories/20040730005511300.htm.
143 For Halleys discussion of such normative achievements of GF, see infra Conclusion.
144 Engle, Feminism and its (Dis)conentsm, supra note , at 787.
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its decisions. In my own work on the ICTY rules about rape and sexual
violence, I draw gratefully from Engles analysis and from our discussions.
My own contribution is an attempt to articulate a consequentialist reading of the new ICTY rules. To get there, I have paid particular attention
to an interesting paradox in the feminist victories: many new rules that
can be attributed at least in part to GFeminist legal activism increase the
sovereigntist character of the rule structure, while others are patently managerial. Thus we see feminists taking victories in the form of strong, almost
irrebutable presumptions, per se inferences, and satisfaction of the prosecutors burden of proof on one essential element of a crime by her proof of
another; but also in the form of rules that require searching trials of the
facts, elaborate display of circumstances, and judicial consideration of
many uncertainly decisive factors before liability can be attributed.
I am interested in these outcomes because they are part of the legal
instrumentality of rape in humanitarian law now and because they may
well have very different effects in the world than anticipated, I think, by
the feminists who promoted them.
I am trying to get away from the view of IHL as a set of high-level
announcements of the proper norms for warriors to obey. This model of
prohibition presumes that it brings moral force as well as deterrent suasion to bear on the world and thus effectively reduces the incidence of the
prohibited conductand does not do much else. Instead I assume that we
will have, at least sometimes, some of the following: Holmes rule-abiding
bad man; chronic and empirically uncorrectable overenforcement (falsepositive convictions and unintended deterrences) and underenforcement
(the tolerated residuum of abuse); permissions springing into existence
wherever prohibitions run out; thus legitimation of conduct falling outside the scope of prohibition; and moral denunciation of innocent (or least
detrimental) conduct falling within it.145 I assume also that we are faced
with a legal regime that is anxious to the point of paranoia about its legitimacy, cut off from any actual instruments of police-style enforcement,
145 Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 61, 457 (1897) (asking
us to understand as law, the law as it would be seen by a bad man . . . who cares nothing
for an ethical rule which is believed and practiced by his neighbors [but] is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail
if he can); Kennedy, supra note 4, at 14047 (analyzing the actual distributive effects of
rules governing sexual abuse by taking into account The Cost of Precautions Versus the
Burden of Excess Enforcement, including Costs to Women and Benets to Men, and
assessing them all in light of the Bargaining [of men and women] in the Shadow of Sexual Abuse Law; see Ian Halley, Queer Theory by Men, 11 Duke J. Gender L. & Poly 7,
3638 (2004) for my argument that Kennedys analysis falls short to the extent that it underplays the importance of benets to women and costs to men); Hohfeld, Fundamental Legal
Concepts as Applied in Judicial Reasoning, 23 Yale L.J. 16, 3044 (19131914) (mapping
the jural opposites in which, for instance, rights produce no-rightsthat is, one
mans right produces anothers no-right and one mans privilege generates anothers
dutyand jural correlatives in which one mans immunity generates anothers disability); and Thomas, Legimation Critique, infra.
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and doomed to operate ex post, long after the violence it would govern
has ceased, and always in the wake of ideological shifts produced in part
by that very violence.146 How might the particular arrangement of sovereigntist and managerial feminist rule victories actually play out in a world
envisioned to include these dynamics?
Here is a highly encapsulated version of the problematics Id like to
expose. Lets imagine that the sovereigntist legal imaginaire, within feminism, wanted to make rape easier to prove and to mandate the conclusion
that, where it occurs between a combatant on one side and a civilian on the
other in armed conict, it violates existing humanitarian law. We all know
that criminal systems heavily dependent on per se rules (in this they resemble civil strict liability regimes) provide a spectacular conversion between positive law and moral denunciation, facilitating moral judgment
at the moment of rule announcement; they also make it easier to convict
whoever is accused. But the resulting codication can be technical, chilly,
and managerial: precisely not the hot moral message the sovereigntist imaginaire sought. Plus, its easier to get false positive convictions, and thus for
ideologically motivated players to challenge the legitimacy of the process. Paradoxically, then, expertization and the political opportunities
offered by the actuality or danger of false-positive convictions can be deployed to sap normative energy from the rule. The moral clarity of sovereigntist rules comes at a price.
But the same can be said of managerial rules requiring lavish displays
of all the facts, careful balancing of all the circumstances, and painstaking assignment of just the right liability to just the right defendant. Systems like that require highly individualized and particular assignments of
liability for spectacular harm and fault and apply intense moral judgment
when conviction is achieved. But in the meantime they also make it harder
to convict people. Trials take longer, there will be fewer of them, and they
will be ideologically more salient. The focus on individual guilt permits
the actual defendants (not just ideologically motivated bystanders) to
challenge the legitimacy of the forum. If they are convicted, they may look
like scapegoats; if they are not, the due-process legitimacy of the forum
scores a gain at the expense of the feminist norm. Feminism operating in
this managerial mode can expect to propagate its power, again, only through
the noisy paradoxicalities of the legal system it is using.
With an eye to opening analysis up to the possible unintended consequences of GFeminist rule victories in the ICTY, I am going to look
briey at a the trilogy of GF victories, elebii, Furundija and Kunarac
(often designated the Foa case because the crimes all occurred in that
146 For an elegant statement of these constitutive contradictions within and between
IHL procedure and IHL normativity, see Martti Koskenniemi, Between Impunity and Show
Trials, in Max Planck Yearbook of United Nations Law, Volume 6, at 135 (J. A.
Frowien & R. Wolfrum eds., 2002).
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What might this mean in action? Lets consider the possible effects
of making rape per se the cause of intense suffering. This rule means
that women need not testify to their intense suffering. It is possible to
have trials, and convictions, without this testimony. This is a huge victory
for some feministsa full-bore legitimation of the idea that rape always
causes intense sufferingat the expense of others, once quite numerous
but now very hard to nd, who think that this is not right.158
It also means that the actual women who suffered need not be consulted about what caused their suffering. Engle emphasizes the political
gravity of this preclusion, and rightly so, I think. The risk that they might
say that what caused them to suffer was not primarily their rapes but the
death and disappearance of their lovers, husbands, fathers, brothers, sons,
and friends; the destruction of their worlds; the emergence of a series of racist cultural orders coterminous with legitimated statesthis risk need not
be run. Feminism speaks for women on the ground.
At the same time, the per se rule could increase the value of rape as a
weapon of war. If humanitarian law raties the idea that rape intrinsically
causes intense suffering, it may lend legitimacy to the intense suffering
that it causes. Even if it does not, the ideological game of war now has
another way of punishing, intimidating, and coercing civilian populations:
rape the women. We could get more rapes.
But wait! Remember that it is a legal rule and its per se form could also
work the other way. The historical fact of intense suffering becomes legally
true now through an act of bureaucratic management. This truth is produced not in an I/Thou encounter, but by a clerk in a back ofce staring
into the bright blue screen of his computer. The centrality and urgency of
the idea that rape causes intense suffering may be eroded, not fortied,
by its installation in a per se rule.
And both of those effects could register in distinct locations: the urgency with which rape is understood to cause intense suffering could relax
in Geneva, the Hague, the Security Council; while combatants far away
come to see rape as a more valuable tool against their enemies, not only because they can exploit any rapes that happen to their women to demonize their enemies and consolidate their control over their own side, but
also because the rape, far from being disabled, has instead been weaponized.
Finally, lets look back over the rule structure generally, and consider
the cascade of sovereigntist rules making it easier to convict combatant
men of torture for the sex they have with civilian women on the other side
of the conict. It is a little surprising, but seems right: if the judge is willing
to infer a lack of consent from the circumstances of armed conict, and if
evidence of penetration is available, we could see convictions for rape as
158 Pamela Haag, Putting your Body on the Line: The Question of Violence, Victims,
and the Legacy of Second-Wave Feminism, 8 Differences 23 (1996).
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torture on nothing more than intended sexual intercourse involving a civilian on one side of an armed conict and a man who is an armed combatant on the other. Imagine that, now, in a case like that of the Yugoslav
ethnic conict: the rules contemplate convictions for rape as torture based
on sex between male combatants and women in ethnically opposed groups.
Recall that this nationalist conict involved ethnic cleansing of what
had been a cosmopolitan population, one characterized by a high degree
of ethnic intermarriage and ethnic mixing; the poignancy of the example
is sharp. The rule could end up ostensibly requiring cosmopolitan populations being swamped into nationalist wars which they oppose to ethnically
cleanse themselves.
It is an astonishing convergence of the sovereigntist feminist prohibition impulse merging fully with nationalism. It bears a striking resemblance, if only coincidental, to the border-control-ratication effect of structuralist feminist success in international trafcking law apparent in Thomass contribution below. As Engle shows, however, the rules I have been
describing were advocated not only by the wartime rape feminists but
by the everyday rape feminists too.159 Feminist advocacy across the board
sought the most intense sovereigntist prohibition they could get. The possibility that they were ratifying ethnic differentiation, and providing a legal
means to intensify it, does not seem to have occurred to them.
Nor did they evince concern that their sovereigntist rules could end
up circulating in IHL not as an avenging sword, but as cool, technocratic
managementas Foucaultian governance. Wars fought in full compliance with the new rape ruleswars without rapemight nevertheless be
utterly violent. As Engle puts it, In Omarska, . . . women were raped, but
the lives of most were spared. Men were killed.160 Feminist ratication of
the special status of women in war could easily be assimilated into a
women and children rst civility that remands men to intensied violenceor, just perhaps, could fully integrate women into that violence.
Enslavement. I am currently working on an equally intense focus of
GFeminist activism in the ICTY and the Rome Statute negotiations: the
effort to establish sexual slavery as a violation of the IHL. Here, it is striking
that feminists persistently sought a multifactorial standard that would, in
actual litigation, require lavish, detailed testimony about and adjudication
of complex circumstances. This was precisely the opposite strategy to the
one they adopted in rape and rape-as-torture, where they usually sought
to establish conclusive rules. Clearly GFeminism makes no fetish of rules
or standards. But it is clear that the maximum sovereigntist prohibition
motivated GFeminists both times. And the debates as I understand them
so far are just as indifferent as the rape effort to the multiple and complex
ways in which the enslavement standard might operate in an IHL regime
159
160
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understood in legal realist terms. The possibility that sexual liaisons that
women actually wanted will be held to be slavery leads to the possibility
that IHL, having prohibited sexual enslavement in armed conict, will
through its sheer ineffectivenessintensify or rechannel the violence of
war.
Chantal Thomas
In this Section, I will introduce some concerns relating to initiatives
in global feminism as global governance. Here, I note the tremendous gains that non-state actors have made, and at the same time, I note
the concerns expressed by some commentators that non-state participants
in governance remain insufciently self-aware with respect to the potential problems arising out of their lack of accountability and their disproportionate inuence over less inuential local actors. This lack of selfawareness could be viewed a form of the insufcient acknowledgement of
actual power and of the will to power that Halley describes.
I. Governance Feminism as Global Governance
As Halley notes, the participation of the feminist movement in establishing war crime tribunals and combating sex trafcking marks feminism as
a major participant in the phenomenon of new governance. A host of
scholars have observed the rise of new governance as an important trend
away from top-down regulation in which the state is the only player and
toward a more uid interaction between state actors and non-state actors
in the formulation and enforcement of norms.
Global governance literature, like new governance literature, highlights the participation of non-state actors in formulating laws and policies.161 Non-governmental organizations have achieved sweeping increases
in both formal and substantive contributions to international law. The
United Nations, for example, has formally recognized the right of NGOs
to participate in a variety of lawmaking and administrative contexts.162
The U.N. has also explicitly identied NGO participation as an important
criterion of decision making under its auspices.163 Other international bodies, such as the World Trade Organization, have proven less welcoming
161 See, e.g., Steve Charnovitz, Two Centuries of Participation: NGOs and International
Governance, 18 Mich. J. Intl L. 183 (1997); Julie Mertus, From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society, 14 Am.
U. Intl L. Rev. 1335 (1999).
162 See Charnovitz, supra note 161, at 26667 (describing processes for establishing consultation status of NGOs to U.N. bodies).
163 See Indep. Working Group on the Future of the United Nations, The United
Nations in its Second Half-Century 36 (1995), available at http://www.library.yale.edu/
un/un1e3co.htm.
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of NGOs, but still grant at least limited access to negotiations and dispute
resolution.164
In addition to recording this fundamental shift in regulatory style,
governance literature is also quite often normative. Social theorists Jurgen
Habermas and Richard Held have argued that participation by non-state
actors in international lawmaking contributes importantly to preserving
democratic politics from the corrosion of globalization.165 James Rosenau, a
founder of the global governance perspective, has denoted glocalizationthe fragmentation and recombination of political movements and
alliancesas presenting crucial opportunities for the enhancement of democratic participation in the increasingly turbulent plane of international
affairs.166
There is much to support the argument that increased participation
of NGOs has in fact improved the accountability, efcacy, and justice of
international law and policy. In public health, for example, NGOs have
been instrumental in transmitting crucial information and in lobbying for
important changes in policy such as access to patented pharmaceuticals.
In international nance, NGOs have played an important role in pressing
for the forgiveness of debt owed by developing countries. The international
human rights and environmental movements arguably would not exist without NGOs.
Feminists have acquired a central role in the operation of NGOs. They
have succeeded in bringing issues to the table that likely would never
have obtained a hearing otherwise. These changes are desirable. As a part
of global governance, GF has played an important and often, in my view,
benecial role.
Amidst all of the enthusiasm for the governance model, however,
some commentators have called for a reexamination of the role of nonstate actors in global regulation. Against the view that NGO participation
enhances democratic accountability in international law, these commentators question the democratic accountability of NGOs. NGO activity, the
argument goes, can have the effect of skewing international debates toward the concerns of afuent, Western groups that can absorb the costs of
effective organization at the international level.167 This skewing effect arises
164 The WTO has allowed NGOs to submit amicus briefs to dispute resolution processes (although this process is strictly limited in practice); and also grants limited access to
NGOs to observe plenary negotiations.
165 Jrgen Habermas, Legitimation Crisis (1973); Jrgen Habermas, Between
Facts and Norms: Contributions to a Discourse Theory of Law and Democracy
(1998); David Held, Democracy and the Global Order: From the Modern State
to Cosmopolitan Governance (1995).
166 E.g., James N. Rosenau, Along the Domestic-Foreign Frontier: Explaining
Governance in a Turbulent World (1997); James N. Rosenau, Governance in the TwentyFirst Century, 1 Global Governance 13 (1995).
167 William F. Fisher, Doing Good? The Politics and Antipolitics of NGO Practices, 26
Ann. Rev. Anthropology 439 (1997).
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Clifford Bob, Merchants of Morality, 129 Foreign Poly 36, 3738 (Mar.Apr.
2002):
In a context where marketing trumps justice, local challengerswhether environmental groups, labor rights activists, or independence-minded separatistsface
long odds. Not only do they jostle for attention among dozens of equally worthy
competitors, but they also confront the pervasive indifference of international audiences. In addition, they contend against well-heeled opponents (including repressive governments, multinational corporations, and international nancial institutions) backed by the worlds top public relations machines. Under pressure to sell
their causes to the rest of the world, local leaders may end up undermining their
original goals or alienating the domestic constituencies they ostensibly represent.
Moreover, the most democratic and participatory local movements may garner the
least assistance, since Western NGOs are less likely to support groups showing internal strife and more inclined to help a group led by a strong, charismatic leader.
Perhaps most troubling of all, the perpetuation of the myth of an equitable and
benecent global civil society breeds apathy and self-satisfaction among the industrialized nations, resulting in the neglect of worthy causes around the globe.
169 Robert Cox, Structural Issues of Global Governance, in Approaches to World
Order 237 (1996).
170 John Boli & George Thomas, Constructing World Culture: International
Non-Governmental Organizations Since 1875 (1999).
171 Max Weber, Politics as a Vocation, in The Vocation Lectures, 32, 83 (David Owen
& Tracy B. Strong eds., Rodney Livingstone trans., 2004):
[A]ll ethically oriented action can be guided by either of two fundamentally different . . . maxims: . . . an ethics of conviction or an ethics of responsibility. . . .
In the former case, this means, to put it in religious terms, A Christian does what
is right and leaves the outcome to God, while in the latter you must answer for
the (foreseeable) consequences of your actions. (internal citation omitted).
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172 Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (2006).
173 2001 Trafcking Protocol, supra note 2, Art. 8(1) (The State Party of which a victim of trafcking in persons is a national or in which the person had the right of permanent
residence at the time of entry into the territory of the receiving State Party shall facilitate
and accept, with due regard for the safety of that person, the return of that person without
undue or unreasonable delay.).
174 Id. Art. 7(3) (Each State Party shall consider implementing measures to provide
for the physical, psychological and social recovery of victims of trafcking in persons.).
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Within the United States, the VTVPA repatriates victims unless they
qualify for nonimmigrant legal residence under the VTVPAs T visa
provision.175 The VTVPA, however, only provides for 5000 such visas.176
If 50,000 or more are trafcked, as the VTVPA itself estimates,177 this does
not seem to be a proportional response. Moreover, the provision of the T
visa is contingent on the victims obtaining a certication of cooperation
with law enforcement178 to prosecute the trafcker. Congress itself has
explicitly recognized that victims were having difculty attaining even
those T visas that have been authorized.179
The U.S. governments oft-voiced concern about trafcking victims
suffering is belied by the indifference that those victims face on the ground.
The paltry response to helping victims of trafcking could be viewed as
indirect evidence that victim assistance does not, in fact, take priority from
the governments perspective. The energetic response to prosecution of
trafckers who bring these victims into the United States, coupled with
the repatriation of the victims themselves, indicates that border control
vastly trumped victim assistance as a policy priority.
In the process of participating in the formulation of U.S. and international anti-trafcking law, GFeminists might not have fully anticipated the
importance of border control measures for victims of trafcking. It is possible that a relative inattention to the background conditions of displacement
and migration generated a concomitant relative inattention to the status of
these women as migrants. Here is how I reconstruct the story. The battle
among GFeminist groups over consent probably not only distracted signi175 Victims of Trafcking and Violence Protection Act, supra note 3, 107. Section
107 allows for nonimmigrant status on T visa or continued presence grounds, which
can be adjusted to permanent residence status if the victim is adjudged to be likely to suffer severe harm on removal from the United States.
176 Id.
177 Id. 102(b)(1) (Findings stating that approximately 50,000 women and children
are trafcked into the United States each year).
178 Id. 107 (conditioning protection and assistance of trafcking victims, inter alia,
on certication by the Secretary of Health and Human Services after consultation with the
Attorney General and the Secretary of Homeland Security, that they have shown themselves to
be willing to assist in every reasonable way in the investigation and prosecution of trafcking, and dening investigation and prosecution to include assisting in the identication,
location, apprehension of trafckers and testimony against them).
179 TVPA Reauthorization Act of 2003, H.R. 2620, 108th Cong. 2 (2003) (Findings
stating that victims of trafcking have faced unintended obstacles in the process of securing needed assistance provided for under the TVPA); id. 4 (authorizing immigration authorities to consider statements from local and state for certication requirement); id. 6
(requiring the attorney general to submit to Congress regular reports on the number of trafcking provisions who have received visas and related assistance authorized by the TVPA).
On June 3, 2005, the U.S. State Departments Ofce to Monitor and Combat Trafcking
in Persons reported that, in scal year 2004, the Department of Homeland Securitys Vermont Service Center received 520 applications for T non-immigrant status, approved 136,
denied 292, and held over 92 for further consideration. See http://www.state.gov/g/tip/rls/
tiprpt/2005/46618.htm (last visited Apr. 25, 2006). Assuming the Vermont Service Center is
where all this processing is concentrated (the report does not indicate any other processing
center), T visas were clearly not reaching their target population.
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Border Control /
Repatriation
Voluntary Adult
Sexual Labor
Sovereigntist
Strong Yes
Unclear
Structuralist
Weak No
Strong No
Individualist
Weak No
Strong Yes
Result
Yes
Unclear
In this rather grim account, the NGOs involved in reform of the Protocol and in the drafting of the VTVPA were so busy ghting over discursive
control of womens bodies that they forgot or did not see that one of the
primary effects of these instruments will be to increase the control of the
state over the location of those bodies.
Legitimation Critique. By focusing on sex trafcking, the anti-trafcking discourse runs the risk of legitimating by implication other practices.
For example, non-sexual trafcking, although denitionally contemplated,
remains out of focus in many of the implementation efforts under antitrafcking law.180 The U.S. State Department has explained that this imbalance stems in part from the greater difculty in tracking non-sexual
trafcking.181 However, there are numerous international organizations and
non-governmental organizations whose purpose is to do precisely that,182
and their greater involvement could help to minimize this difculty in measuring this vast set of additional phenomena.
In addition to non-sex trafcking, non-trafcking migrant labor may
too often escape the attention of governments and advocates.183 The U.S.
180 U.S. Dept of State, Trafcking in Persons Report, supra note 30, at 243
(noting that in scal year 2004, the Department of Justice initiated prosecutions against
fty-nine trafckers, and all of those cases involved sexual exploitation).
181 Id. at 6 (noting that labor exploitation within territories can be hard to track).
182 E.g., the International Labor Organization.
183 Although the United Nations established a Protocol on Migrant Smuggling, for example, much less appears to be devoted toward the institutionalization of that protocol and
the development of surrounding discourse. For example, the U.N. Ofce on Drugs and Crime
(UNDOC) has established a Global Programme Against Trafcking in Human Beings in
furtherance of the Trafcking Protocol; a Global Programme Against Corruption in furtherance of the U.N. Convention Against Corruption; and a Global Programme Against Transnational Organized Crime for the Convention Against Transnational Organized Crime. No
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tem that makes prostitutes vulnerable without the need for explicit threats
by trafckers. This passive coercion, in which many different players but
especially employers take advantage of the coercion inherent in the background rules, resembles and extends the exploitation of vulnerable workers more generally as discussed in the preceding Section.197
III. By Way of Conclusion
The discursive and practical formulation in much of GF too readily associates the incidence of coercion with commercial sexwhether to endorse (as with structuralists) or to oppose (as with individualists) that association. As the foregoing has tried to demonstrate, coercion in commercial life affects women in many varied and subtle ways, many of which are
simply not captured in the existing discourse. The defense of specialization, here, seems insufcient: if we are carrying a brief for F, attention to
the impact of background conditions, distributional effects and unintended
consequences of the contemporary anti-trafcking legal framework should
ensue. GF analytically precludes itself from noticing many unintended
consequences of its favored reforms.
How to redress the rules to minimize these unintended consequences?
One way would be to insist on the discursive formulation of trade by
women as a legitimate category of commercial sex. It might actually help if
we insisted on maintaining conceptual space for the possibility of voluntary commercial sex. While this space is created in the most recent legal
denitions, it has been effectively expunged in much of the practical administration of anti-trafcking initiatives.198 Legalizing prostitution is repugnant to manysome because they believe in the inherent degradation
of it (on either old patriarchal or new feminist grounds); others because they believe that the distributional consequences will actually be
worse for women under legalized prostitution. But if prostitution is not to
be legalized, then anti-trafcking initiatives must address the background
rules and conditions much more than they are doing already, to ensure
that the intention of reducing trafcked prostitution and of protecting vulnerable workers bears out in practice.
The background rules and conditions could also be redressed in another way, which is to pay more attention to non-sex trafcking and to nontrafcking labor abuses. If there is too much overlap between commercial sex and sex trafcking, there is not enough with respect to trafcking and non-sex employment abuses. Here, the critical move might be
to shift directions again, this time away from conceptual dichotomy back
to conceptual overlap. Non-sexual commerce can be coercive, and it can be
coercive in ways that are not necessarily contemplated in GFeminist deni197
198
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tions of coercion. For those concerned with combating actual harms, this
is a problem that has to be addressed.
These recommendations are both moot and a tall order. They are moot
because the current legal denitions actually recognize both of these points.
But they are a tall order because the practical application of those denitions
often ignores them, and because actually getting the practical application
to do so will require a signicant broadening of effort and a real rethinking of possibilities.
Hila Shamir
I have been studying the cases of regulation of sex work and sex trafcking in three national contexts: the Netherlands, Sweden, and Israel. My
research proposes that each of the two feminist legislative approaches to
sex work that were at work in these national casesabolitionism on the one
hand and legalization on the otherlead to some gains to some groups, but
also to harmful unintended consequences to other stakeholders. The close
look at these very different legal regimes in these national contexts suggests that Governance Feminism (GF)well-intentioned as it may beis
pre-loaded with a strong tendency to overlook or underplay the costs it
might cause to some and to x its gaze on the benets gained by others.
An analysis of the feminist positions leads me to argue not that feminism
inevitably or inherently ignores these costs, but that overlooking these costs
has played an important part in traditions of feminist discourse.
In my research, I argue for the tremendous value of an inclusive distributional analysis to policy formation, one that encompasses the variety
of affected interests and explores costs as well as benets to all stakeholders. Yet, naturally, one cannot presume to foresee all the unintended
consequences of a certain legal regimereality often proves to be more
complex than imagined, and many results are extremely hard to predict.
But I would argue that some consequences are foreseeable and that it is thus
crucial to invest energy in predicting and anticipating the distributive effects of a particular regime as much as we can. Instead of focusing on the
benets of a suggested policy to one group, we should attempt to engage
in a wider analysis of a policys effectsnegative and positiveon various
groups and allow these pragmatic insights to inuence our policy proposal.
Accordingly, my research is, methodologically, a distributional analysis
of the three aforementioned national regimes of sex work. In such an analysis I map out the various stakeholders who are impacted by the legal regime: not only local and migrant sex workers, but also women who stopped
working as sex workers due to a changing legal regime, men who buy sex
services and men who do not, the women who live with the men who buy
sex services and those who do not, and the ripple effects caused by women
entering or exiting the sex industry on other labor markets. I sketch the
effect of a certain legal regime on the interests of various stakeholders in-
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199
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397
The Swedish regime is seen by structuralists as an ideal feminist regime and the legal solution to the problems of prostitution and trafcking,
208
assuming that it will manage to eliminate both phenomena. But prostitution and trafcking have not disappeared, and it is not certain that the
Swedish policy will eventually lead to their successful elimination. It might
be true that the sex market shrank as a result of the new regime and that
some women left the sex industry. There is not enough available data about
the fate of ex-sex workers (local and migrant), their new social status, economic position, and working conditions to determine the full positive or
negative effects of the legal regime on their well-being. Even under the assumption that their situations have greatly improved, for the time being it
is clear that the reform made the life of the remaining sex workers (local
and migrant) much harder.209
Moreover, Swedens approach to prostitution overlooks the special
needs of trafcked women. Sweden has low rates of convictions in trafcking210 and takes very little responsibility for the well-being, rehabilitation, and reintegration of victims of trafcking. The U.S. Trafcking in
Persons Report points to an improvement in Swedens victim assistance
between 2004 and 2005. However, this report also notes that while in 2004
ten to fteen victims of sex trafcking received shelter and assistance, in
2005 there was an incredibly small increase in the number of women assisteda total of twenty women received government assistance.211 This
208 Raymond, supra note 201, at 327; Marie De Santis, Swedens Prostitution Solution:
Why Hasnt Anyone Tried it Before?, Womens Justice Center, http://www.justicewomen.
com/cj_sweden.html (last visited Apr. 25, 2006).
209 An administrative report from 2001 about prostitution in the city of Malmo (Sweden) says Those prostitutes who are still working in street prostitution experience a tougher
existence . . . prostitutes lower their prices, are prepared to take more clients, and are prepared to give the service without protection. The health authorities express a fear of a dramatic development in a negative direction for the health of the prostitutes and the spread of
venereal disease. This report, and others that conrm this assessment, are quoted in Ministry of Justice and the Police (Norway), supra note 204, at 1314.
210 Swedens low conviction rate in crimes of trafcking illustrates that a discrepancy
between the law in the books and the law in action can be found in the Swedish regime as
well. Although the regime is motivated by a structuralist feminist position, according to which
there can be no meaningful consent to prostitution, judges often view a womans consent
to sex work as canceling the improper means requirement that must be proven to achieve
a trafcking conviction. See U.S. Dept of state, Trafcking in Persons Report, supra note 30, at 205 (Although initial consent would appear to be irrelevant under the antitrafcking law, in practice, judicial interpretation of the improper means criteria makes it
difcult to obtain convictions under the law.).
This is yet another example that pure abolitionist regimes are rare, and that even the
purest of intention leads to unintended consequence when the feminist regime is implemented and interpreted by various state agencies following agendas that might be disharmonious with the feminist one.
211 Id. at 206. The low numbers of assisted women cannot be explained solely by low
numbers of migrant sex workers in Sweden. Though the numbers are signicantly lower than
in the Netherlands, in 2000 Swedish police gave a moderate estimate of 400 foreign women in
prostitution in Sweden, while some sex workers organizations estimate that the real number is several times higher.
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approach might change under a new national action program that is underway.212 Until then, Sweden can be characterized as promoting a sovereigntist
213
agenda: tightening border control and enhancing police activity. The strict
abolitionist regime protects some women but exposes others to the harms
that accompany illegality, including marginalization and stigmatization.
B. LegalizationThe Dutch Model
In 2000, the general ban on brothels was lifted in the Netherlands so
that operating a commercial organization of (voluntary) adult prostitution
was decriminalized.214 As a result, in the legalized segment of the sex industry, sex workers have access to pension schemes, social security benets,
and state organized health care. Sex workers also gained the right to sue
in courts for violations of their employment or service contracts. The legality of sex work also introduced various interventionist obligations on sex
workers, such as the duty to carry identication documents that until 2005
did not apply to the population at large.215
The Dutch sex work regime takes a decentralized administrative approach, based on municipal licensing of sex establishments. In virtually
all municipalities, sex work is allowed only in licensed businesses. Regulation of sex establishments is achieved through various local authorities
in addition to the police, such as the re department, the building control
department, municipal medical and health services, and the tax and customs administration.216 Licensing requirements impose various restrictions
on the operation of sex establishments by regulating the location and hours
of operation, determining who can be employed, prohibiting abuse and coercion, and so on. Violation of these restrictions can lead to various penalties, ranging from nes to withdrawal of the business license. Among other
restrictions, sex work employers are not allowed to employ non-EU nationals.217 If a migrant sex worker is thought to be a victim of trafcking,
212 The national action program aims to formulate proposals for further measures to combat prostitution and trafcking, proposals to increase protection and aid to victims of prostitution and trafcking, to conduct a survey of penal measures and of the relevant developments within the justice system, police and social services, and propose special measures
to counteract the demand for sex work. For a description of the program, see http://www.
sweden.gov.se/sb/d/4096/a/26488 (last visited Apr. 25, 2006).
213 For a discussion of the sovereigntist agenda, see Thomas, supra note 32, at 5758.
214 See Trafcking in Human Beings: Third Report of the Dutch National Rapporteur,
supra note 88, at 13.
215 See Compulsory Identication, http://minbuza.nl/default.asp?CMS_ITEM=29564267
E75D4C2588CEDCD140433EA9X3X48030X2 (describing the Dutch Compulsory Identication (Extended Scope) Act, which began being enforced on January 1, 2005) (last visited
Apr. 25, 2006). Since the passage of this act, the duty to carry identication documents applies
to the population at large.
216 See Trafcking in Human Beings: Third Report of the Dutch National Rapporteur,
supra note 88, at 13.
217 It should be noted that EU citizens may work in the Netherlands (in any type of work)
without a special work permit. However, there is no recognized way for a non-EU citizen
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224 Some might argue that pushing the regime underground might not necessarily be
harmful to all sex workers, and that some might benet from it, due to, for example, higher
prices for their services. While it is possible that some sex workers nd benets in this situation, research tends to show otherwise: when pushed underground, the industry tends to be
dominated by criminal networks; more intermediaries are involved and sex workers tend to
receive less of the prots; there seems to be an adverse selection toward more violent
clients; working conditions tend to worsen due to constant change of locations and the increased use of less convenient or comfortable locations; and nally, some research suggests that the social stigma attached to prostitution intensies.
225 For some of the problems posed by micro-regulation, see Ministry of Justice and
the Police (Norway), supra note 204, at 3032. For a general discussion of hyper-regulation
of individualist permissive approaches, see Nathaniel Bermans contribution to Subversive
Legacies: Learning From History/Constructing The Future: Round Table Discussion: Subversive Legal Moments?, 12 Tex. J. Women & L. 197, 21617 (2003).
226 See U.S. Dept of State, Trafcking in Persons Report, supra note 30, at 164
65, 20506.
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tutional divergences can lead to intensication or relaxation of restrictions on the sex industry, and, consequently, to different costs and benets to
relevant stakeholders.232
From the point of view of GF, the Israeli regime embodies discursive
and material ambiguity. On the symbolic level the state acknowledges the
harms of prostitution and calls for its abolition. On the material level state
institutions attempt to ensure minimum employment law protections and
other welfare protections for workers of this illegal industry. Structuralists
see this situation as deeply hypocriticalthe state fails women by not
following its promise to protect them from the violence of prostitution
through abolition. Individualists see this regime as problematic since it marginalizes sex workers and prevents their full inclusion under social legislation.
In my research elsewhere, I articulate and assess the costs and benets of the Israeli regime with regard to four groups of stakeholdersmen,
women who do not engage in sex work, local sex workers, and migrant
sex workers. Here, to exemplify how such an analysis might be elaborated, I
will briey perform this thought experiment, only this time regarding the
interests of migrant sex workers alone. To do this, one rst must assume
that migrant sex work involves not only costs, but also, at times, benets
to the women involved. Beyond the well-documented and disturbing costs
induced by migrant and trafcked womens vulnerability upon migration
and the widespread occurrences of exploitation and violence in such cases,
some individualist researchers have suggested that migrant sex workers
can reap benets from this experience in terms of assets (social, cultural,
nancial) they acquire as migrants that enables them to affect change
through both personal and community empowerment.233 The question a
cost-benet analysis will present is therefore not only what role the regu232 One example of the potential such institutionalized toleration has for both harmful
and benecial consequences for sex workers can be found in the attorney generals directive. The fact police (and prosecutors) are directed not to investigate and prosecute sex
establishments in the absence of aggravating circumstances leads, in Israel, to a generally
non-interventionist status-quo under which the red-light areas thrive. This can be seen as a
benet to sex workers since the sex industry is above ground and thus safer. But it can also
be seen to produce costs, such as tolerated violence of clients toward sex workers, or instances when police use their discretionary power of investigation to extort pimps and sex
workers (either demanding bribes or sexual favors), thus making use of the bargaining chip
a de jure abolitionist regime endows them with. Particularly vulnerable to such extortions
are migrant sex workers and trafcked women and their employers (because of their illegal
status), as well as those who work on the streets (who are often drug addicts). Yet it should
be noted that in the Israeli case, since the whole system shifted in the direction of non-enforcementthat is, non-enforcement is generally not negotiated the level of the individual corrupt policeman, but is rather mandated by explicit prosecution policythis happens mainly in
the margins, and particularly when the police is in touch with vulnerable groups such as
street prostitutes and workers who are illegal residents. For discussion of such police corruption in relation to trafcked women, see Nomi Levenkron & Yosi Dahan, Trafcking
in Women in IsraelNGO Report 4042 (2003).
233 Agustin, supra note 100, at 111 (quoting Katherine Gibson et al., Beyond Heroes
and Victims, 3(3) Intl Feminist J. Pol. 36586 (2001)).
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403
lative regime plays in enabling or preventing the costs, but also what role
it plays in enabling or preventing migrant sex workers from obtaining
benets. I believe a cost-benet analysis is a particularly useful tool in such
a policy analysis because it allows recognition of the harms caused by various social practices and regulatory regimes while portraying women as
strategic agents rather than as helpless vicitims.234
When treating sex work migration as part of the wider phenomenon
of worker migration, and under the assumption that most trafcked
women in Israel knew that they were to work as sex workers (even if they
often were not aware of the exploitative working conditions),235 the Israeli
legal regime might seem relatively benecial for migrant sex workers, in
comparison to the purer feminist regimes explored above in the contexts
of Sweden and the Netherlands. While migrant sex workers are vulnerable
to deportation since they are illegal residents, due to weak enforcement,
the actual risk of deportation is relatively low. The women are not eligible
for health insurance since they are not residents, but they can receive social security benets in case of work-related injury since that entitlement
does not depend on a persons residential status. Migrant sex workers are
also theoretically protected by existing workers rights due to their universal
application.236
Since neither the penal code nor the courts view consent as a factor in
the anti-trafcking provision, a migrant sex worker is presumed to be a victim when picked up by police. This has the potential cost, mentioned above
by Halley, of precluding women from the process of dening their experiences, their harms (if there are any), and the causes of those harms.
But at the moment of confrontation with the Israeli authorities, this can
be a strategic benet. As a victim of trafcking, a woman is eligible for shelter, counseling, health insurance, and a small allowance, benets that other
undocumented workers, even those who have been severely exploited, do
not have. When women do not agree to testify, their situation more strongly
resembles that of other undocumented migrantsi.e., they will be promptly
deportedyet it is still somewhat improved due to the a priori assumption of victimhood, the relatively wide awareness of their possible exploitation, and an improved institutional reaction to their migratory situation.
However, migrant sex workers are still a highly disempowered group
in Israel. As illegal migrants, working in a stigmatized industry, they often have a low sense of entitlement and few resources to mobilize as a
234 The merits of such a methodological approach will be further developed in the next
Section.
235 Israeli NGOs estimate that 70% of women trafcked into Israel know they are being
recruited for sex work. Nomi Levenkron et al., supra note 102, at 6.
236 CA (BS) DM 1040/01 Eric Tomsanga v. Ambassador Hotel, [2001] IsrDC 46 (unpublished). See also workers rights pamphlet distributed by Kav Laoved, an Israeli NGO
that provides legal aid to migrant workers, available at http://www.kavlaoved.org.il/word/
zchuton060904.html (last visited Apr. 25, 2006).
404
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2006]
405
406
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But it is not immediately clear that more or better information is actually attainable. The contradictory descriptions of the realities of sex
work and trafckingas inherently harmful and victimizing or as possibly empowering and liberatingare evidently not purely information
driven; rather they are inuenced by ideology and morality. In these debates it often seems that facts do not necessitate one position or another,
but are produced by these positions. If this is the case, the positional gap
will not likely be bridged by more information. The data collected and
interpreted is no more than a discursive tool in the debate and should accordingly be understood rst and foremost as political, ideological, symbolic, and strategic. All this is not to suggest that further research is not
needed or that current research is dispensable. Policy reforms should draw
on data about the practices of sex work and sex trafcking. Nonetheless
the biases inherent in the existing data should be taken into consideration. Thus, the debate must be informed by research, but is unlikely to be
resolved by it.
It is at this point that I nd the cost-benet analysis methodologically helpful. Cost-benet analysis manages to dodge the empirical trap
by providing an analysis that is based on speculative modeling. The distributive outcomes of the regime are mapped through the elaboration of
possible scenarios that derive from empirical data, but do not rely on data
alone. Such models take into account not only what really happens (as
it is described according to certain empirical research), but also what might
possibly happen: the realities that researchers, all or some, might be unable or unwilling to detect. Cost-benet modeling therefore presents a way
to stay close to what we (empirically) know, but allow for the possibility
that what might not be widely empirically proven (because of the impediments suggested above) could still inuence and enrich policy formation.
B. Assessing Legal ReformsBeyond the Prohibitive/ Permissive Vision
of Law of Governance Feminism
Using a cost-benet analysis can be problematic in this sensitive
context because it attempts to nd benets in situations that many see as
inherently harmful and costs in what is seen as possibly redemptive. Accordingly GFeminists can argue against this method, saying that even if,
for example, migrants sex work leads to some limited benets to the
women involved, these should be disregarded as illegitimate or negligible
or strategically harmful even to mention. I disagree. I believe that lookSex: Beyond Decriminalization, 73 S. Cal. L. Rev. 523, 534 (2000). In the sex trafcking
debate see International Organization for Migration, Counter-Trafcking in
Eastern Europe and Central Asia 7 (2003); Distortions and Difculties in Data For
Trafcking, 363 Lancet 556, 556 (2004); Therese Blanchet, Beyond Boundaries: A
Critical Look at Women Labour Migration and the Trafcking Within (2002),
available at http://www.walnet.org/csis/papers/BEYOND.DOC.
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408
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ises of feminismcan itself be challenged, although elaborating this critique is beyond the scope of this piece.243
A new set of revealing questions emerges when we assume that the
legal system distributes and redistributes bargaining chips among actors.
In such an analysis we might ask: under a certain regime what tactics do
local sex workers have vis--vis exploitative johns and customers? And
what possibilities do migrant sex workers have against the same exploitation? How does the regime affect the operation of the sex industry and
how does that in turn affect the working conditions of the women involved? What moves do migrant workers exploited in other unskilled
gendered sectors, such as domestic work, have against their employers, and
how do these workers fare in relation to exploited local domestic workers, migrant sex workers, and trafcked women? How does the existence
of an accessible (or alternatively underground) sex industry affect women
who are not sex workers? And how does it affect men? Such questions,
partly de-legitimated by the current mode of GF, are an essential part of a
distributive analysis. These questions create room to examine the conict
of interests between men and women and between different groups of
women, conicts that greatly affect the operation of legal regimes, and yet
244
are often overlooked or denied by the language of horror so frequently
used in discussing commercial sex, migrant sex work, and trafcking.
As the set of questions above illustrates, through a distributive analysis
one can see the strategic moves available to women within the system
and assess how various women fare under different legal regimes. Acknowledging that power (albeit in different degrees) resides in all actors
and that potential strategies of resistance are always already available,
the researcher can evaluate how a regulative regime limits, eliminates, or
perpetuates acts of resistance and compliance. This distributive analytical
lenslooking at winners and losers, costs and benets of various stakeholdersallows not only a more realist description of the operation of actors in markets and in the shadow of legal regimes, but also enables what
might be a more deeply transformative view of the operation of gender as
a system of power. These richer assessments of womens experiences will
then, hopefully, be able to nd their expression in novel forms of feminist legal regimes that will be focused on distribution, aware of their con243 For a critical engagement with feminist suspicion of law and economics and the
concept of efciency, see Janet Halley, The Politics of Injury, 1 Unbound 65 (2005),
available at http://www.law.harvard.edu/students/orgs/unbound/articles/1UNB065-Halley.pdf
(reviewing Robin West, Caring for Justice (1997)); Philomila Tsoukala, Gary Becker,
Legal Feminism and the Costs of Moralizing Care (unpublished working paper) (copy on
le with author) (mapping the feminist debate over the issue of womens unpaid work as
homemakers, with a focus on the relationship of legal feminists to economic thought, and
critiquing the feminist rejection of the standard of rationality and the use of the language
of costs and benets, in an attempt to rehabilitate the idea of economic methodology as a
legitimate and necessary feminist endeavor for feminist projects within the legal eld).
244 Kennedy, supra note 4, 12930.
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409
245 See Christine Overall, Whats Wrong with Prostitution? Evaluating Sex Work, 17 Signs
705, 707 (1992) (explaining the divide between individualist feminists and structuralist
feminists on the issues of sex work and trafcking).
246 See generally Margaret Jane Radin, Contested Commodities (1996).
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a structuralist or individualist persuasion. I call these feminists middleground feminists, not only because they occupy the space of the continuum, but also because they often explicitly or implicitly are invested in the
project of making peace247 between the feminists who occupy the two extreme ends of the continuum; this is typically reected in the feminist impulse to hybridize and could play out along several axes of analysis, including the empirical, regulatory, and normative, as well as in terms of scale. For
example, Sunder Rajan explains the intense disagreement amongst feminists on sex work as lying in the fact that it is as description that the
discourse of prostitution often functions248 fueled by different disciplinary frames and methodological imperatives that structure feminist meaning-making around sex work. She however also argues that, in addition to
conicting empirical accounts of sex work, feminists also differ in their
political positions toward sex work; abolitionists read prostitution as structure or system, decriminalization advocates as practice (sex work).249 Reconciliation between these two positions she notes is becoming increasingly
popular amongst feminists who embrace the contradiction of abolishing
the system while empowering the practice, indeed to achieve the rst by
means of the latter.250 As for a project of law reform, the goal will be to
achieve a national law that either decriminalizes sex workers or consciously
legalizes toward empowerment while opposing the institution of prostitution at the international level.251 Middle-ground feminism in this sense
involves a mode of argumentation which mediates the existing oppositions between structuralist feminists and individualist feminists in the
following way: it supports the rights of sex workers but not the right to
sex work;252 it supports empowering practices of individual sex workers
247 Ann Lucas calls on feminists to acknowledge the facts of prostitution, namely
that prostitution could be a site of resistance but is no guarantor of it; in her words, recognizing this fact of prostitution might also help activists and scholars bridge the gulf
that now divides them into pro-prostitution and anti-prostitution camps. Ann M. Lucas,
The Dis(-)ease of Being a Woman: Rethinking Prostitution and Subordination 432 (1998)
(unpublished Ph.D. dissertation, University of California, Berkeley) (on le with author).
See also Rajeswari Sunder Rajan, The Scandal of the State: Women, Law and
Citizenship in Postcolonial India 117, 142 (2003); Marjolein van der Veen, Rethinking
Commodication and Prostitution: An Effort at Peacemaking in the Battles over Prostitution, 13 Rethinking Marxism 30 (2001).
248 Sunder Rajan, supra note 247, at 142 (emphasis in original).
249 Id. at 144.
250 Id. at 146.
251 Id. at 146.
252 Overall, supra note 245, at 72324 (responding to sex worker activists claims that
women should have the right to do sex work: it should at least be said that the claim of a
right to be a prostitute can be turned against women by those who merely want to preserve
mens entitlement to buy womens bodies.). Another feminist notes her dilemma when she
draws the following distinction: Another important issue is whether or not we make a
distinction between the rights of women in prostitution and the right to prostitution and
how this translates ideologically and practically. Jean DCunha, Prostitution: The Contemporary Feminist Discourse, in Embodiment: Essays on Gender and Identity 230,
252 (Meenakshi Thapan ed., 1997).
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within the sex industry but is against the institution of prostitution itself;253 and it acknowledges the agency of sex workers but interrogates
why sex work should be viewed as work.254
These mediations by middle-ground feminists signify a politics of
deferral. Typically, it is in the realm of policy that one can witness this most
spectacularly, for middle-ground feminists will often support decriminalization as the most appropriate solution in the short term.255 After all, all
feminists are in agreement that sex workers should not be penalized for
doing sex work.
I. From Injury to Redistribution: The Blind Spots of
Governance Feminism
Middle-ground feminism warrants closer attention for two reasons.
First, middle-ground feminisms peace-making tends to result in regulatory reform projects like partial decriminalization which are both politically non-controversial and expedient for national governments under increasing U.S. pressure to assess their prostitution law regimes. This is already borne out in the Indian example and the popularity of the Swedish
regulatory model conrms this trend. This suggests then that middle-ground
feminism has a better chance of being propelled into governance mode.256
Second, although middle-ground feminism is more a feminist mode of
thinking about sex work than a particular school of feminist theory, its limited vocabulary is almost entirely inuenced by the terms of the debate
253 Overall, supra note 245, at 723 (It therefore makes sense to defend prostitutes entitlement to do their work but not to defend prostitution itself as a practice under patriarchy.) This is a concern of feminists the world over; see Barbara Sullivan, The Politics of Sex: Prostitution and Pornography in Australia Since 1945, at 165 (1997).
See also Sunder Rajan, supra note 247, at 146 (endorsing Lynn Sharon Chancers argument that feminists should support prostitutes while opposing prostitution).
254 Sunder Rajan, supra note 247, at 13840.
255 Lucas argues that once we have made peace between the anti and pro-prostitution
camps, we can build broader support for decriminalization, which she then demonstrates
will help both sex workers and non-sex workers. Lucas, supra note 247, at 43335. Accord
Debra Satz, Markets in Womens Sexual Labor, 106 Ethics 63, 64 (1995). But see Laurie
Shrage, Should Feminists Oppose Prostitution, 99 Ethics 347, 361 (1989) (supporting
decriminalization but arguing that feminists have legitimate reasons to oppose prostitution
politically); Overall, supra note 245, at 708, 722 (supporting sex workers rights but arguing that prostitution is bad because it is an unequal practice taking place against the background of capitalist patriarchy); Chancer, Prostitution, Feminist Theory, and Ambivalence:
Notes from the Sociological Underground, 37 Soc. Text 143, 166 (1993), quoted in Sunder Rajan, supra note 247, at 146. Indian feminists also voice this view; There is the need
to concretely and actively address in practice the concerns of individual women in prostitution, especially those who continue to operate within the sex service sector, without legitimizing the institution of prostitution and third-party managements. DCunha, supra note
252, at 252.
256 Ratna Kapur, Erotic Justice Law and the New Politics of Postcolonialism
74 (2005) (Overall, the recommendations of the NCW sought to address the real concerns
of sex workers, without condoning sex-work itself. It was for the rights of sex-workers,
without being in favor of sex-work.).
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set by radical feminism. This is evident in the fact that when confronted
by sex workers demands for workers rights, middle-ground feminists are
persistently able to respond only in the language of harm and injury and
reject proposals for workers rights for sex workers because sex work causes
harm with a capital H257 to both sex workers and non-sex workers. This
is despite the fact that these harms (even with a capital H) are not unique
to sex work, so while they cannot be ignored, invoking them does not
constitute a compelling argument for not conceptualizing sex work as a
form of labor or legitimate work or for abolishing sex work. Similarly, middle-ground feminism calls upon sex workers who demand workers rights
to explain to feminism the nature of the labor involved in sex work and
why it should be recognized as such despite the fact that, all around us,
we nd markets for sex work. My own analysis is that this is because
middle-ground feminism does not have a normative theory of sex and is
unwilling to address explicitly the question of whether women can or should
sell sex for money.
Another example of how radical feminism animates middle-ground
feminism is the latters focus on the question of sex worker agency in reaction to the radical feminist denial of sex worker agency.258 This is perplexing because agency is a poor analytical tool (not unlike choice in
an earlier era of feminist theorizing on sex work) with which to understand the status of sex workers given the multi-dimensional and multi-directional ows of power within any given sex industry, thus severely detracting from examining questions of distribution. My point of departure from
middle-ground feminism in its governance mode makes the move from a
politics of harm and injury to one of redistribution by pursuing questions
of internal and external redistribution; by external redistribution, I mean
the need to explore the relationship between sex workers and workers outside the sex industry, such as wives. In other words, how does making rule
257 This harm with a capital H can be further broken down into four harms; the rst
most obvious harm being the physical, emotional, and mental harm and exploitation resulting directly from sex work itself; the second harm being the harm arising from the objectication and commodication of women in sex work, see generally Margaret Jane
Radin, supra note 246; the third harm being its gendered reality and its consequent feminization; and the fourth harm being the harm done to all women because sex work reinforces
stereotypes of female availability, exacerbates gender inequality and is a form of sex discrimination. Satz, supra note 255. See also Shrage, supra note 255, at 347, 349, 352;
Overall, supra note 245, at 721; Linda R. Hirshman & Jane E. Larson, Hard Bargains:
The Politics of Sex 291 (1998). All four harms are elaborated in a number of radical
feminist texts. See Kate Millett, The Prostitution Papers (1971); Kathleen Barry,
Female Sexual Slavery (1979); Kathleen Barry, The Prostitution of Sexuality
(1995); Sheila Jeffreys, The Idea of Prostitution (1997). But see Martha Nussbaum, Sex and Social Justice 28897 (1999) (offering a detailed response to these harmbased arguments).
258 There are exceptions however. Sunder Rajan for instance calls upon middle-ground
feminists of an individualist persuasion to give pause to their valorization of sex worker
agency and to identify the precise agential role of sex workers in their demands for workers rights. Sunder Rajan, supra note 247, at 140.
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changes for sex workers affect wives and vice versa? For this, I ask how
feminists most engaged with questions of redistribution, namely, socialist
feminists, theorized sex work. By exploring debates internal to a school
of feminism, which is explicitly not in a governance mode, and does not
treat sex work as exceptional, but as deeply related to marriage, I suggest
that it is possible to address questions of redistribution that are external
to the sex industry. For internal redistribution, I propose exploring the
prospects for redistribution amongst sex workers who work in highly differentiated sex markets, regulated by criminal law. For this, I draw on the
insights of legal realism and the considerable scholarship on illegal economies, legal pluralism, and private ordering in the shadow of the law.
Socialist feminist analyses of sex work have been overshadowed and
even mischaracterized as supporting sex work as a form of legitimate
work259 in the feminist debates on sex work. On the contrary, even in the
labor republic sex work was viewed as the very antithesis of work.260 Despite the abolitionist politics which socialist feminism shares with radical
feminism, their modes of argumentation could not set them further apart.
The most signicant difference in this respect is the socialist feminist
understandings of the relationship between sex work and marriage. While
classic socialist feminist texts provocatively asked if there was any difference between sex work and bourgeois marriage, later socialist feminist
analyses of sex work have argued that sex work and marriage form two
ends of the continuum along which women exchange sex for consideration. In other words, patriarchy is a unitary system that collectively appropriates the labor of women in both marriage (sexual and social labor)
and sex work (sexual labor) and maximizes this appropriation by reinforcing the divide between marriage and sex work, both materially and
ideologically. This approach furthers a redistributive feminist understanding of sex work, as it holds both sex work and marriage in continuous conversation with each other by highlighting their differential institutional
coordinates for providing sexual labor without collapsing them into each
other or articulating a hidden preference for one over the other. In contrast, GF informed by the radical feminist analytic of sex work privileges
marital sex over non-marital sex by calling for the criminalization of sex
work, even if directed at the customer, and by viewing sex work as nothing but sexual violence, while ignoring the exploitation inherent in marriage unless it assumes the form of domestic violence.
However, the radical potential of socialist feminist insights on sex work
is severely handicapped because socialist feminism shares with radical
feminism the latters top-down totalitarian theory of power that has little
259 Margaret Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law
Reform, 5 Yale J.L. & Feminism 47, 102 (1992).
260 See generally Alexandra Kollontai, Sexual Relations and the Class Struggle, in
Selected Writings of Alexandra Kollontai 237 (Alix Holt trans., 1977).
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261 This is already evident in the work of some feminists; see Jane Larson & Berta
Esperanza Hernandez-Truyol, Both Work and Violence Prostitution and Human Rights, in
Moral Imperialism: A Critical Anthology 18586 (Berta Esperanza Hernandez-Truyol
ed., 2002). See also Hirshman & Larson, supra note 257, at 289.
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that the state is in agreement with the structural bias thesis.262 The structural bias thesis presents the story of the cumulative effect of myriad biases leading to the selective and discriminatory enforcement of the antisex
work laws always to the detriment of sex workers interests. In particular,
both the antisex work law and the criminal justice system suffer from biases that systematically and routinely converge: a substantive bias in the law
that explicitly scapegoats the victims of commercial sexual exploitation,
namely, sex workers, but does not criminalize customers; a bad faith bias
of collusion between the law enforcement machinery and the owners and
operators of sex businesses leading to chronic under-enforcement of the law;
a procedural bias built into the criminal justice system; and an operational gender bias evident in the day-to-day implementation of the law.
Even when the benevolent provisions of the law relating to rehabilitation
are invoked, it leads to perverse results for sex workers. In light of this
analysis, middle-ground feminists of a structuralist persuasion will call
for partial decriminalization, that is, to redirect the force of the criminal law
against stakeholders in the sex industry other than sex workers. Middleground feminists of a more individualist persuasion will call for complete
decriminalization, that is, decriminalization of all stakeholders in the sex
industry. I will begin by problematizing the proposal for partial decriminalization in light of the structural bias thesis and go on to problematize the
proposal for complete decriminalization in light of the blind spots of the
structural bias thesis.
There is much to be said for the accuracy of the structural bias thesis. Its validity is borne out in several different contexts. I will highlight
only three of them; the rst relating to the trial process under the ITPA,
the second to the use of the ITPA in a non-sex work context, and the third
in a non-law enforcement context. In the rst instance, the procedural
bias of the criminal justice is patently directed against sex workers. For
example, the organization that I worked with in Tirupati called WINS applied for bail in the district court for two street-based sex workers arrested under the ITPA; there we found a stunning range of actors and dispositions stacked against sex workers. For example, the court was a highly
gendered space where we, as a group of women, quickly became a spectacle. A criminal defense lawyer obtained the signatures of the sex workers on blank paper when they were produced in court. There was legal ambiguity, even in what might be considered straightforward procedural law,
about whether an NGO could post cash surety instead of having to nd a
personal surety; there was in any case a thriving market in local personal
sureties. Finally, a high-caste criminal defense lawyer who offered to take
on the case pro bono taunted the NGOs sex worker peer educators for
262 Plan of Action, supra note 136, at 44 (stating that the present legal framework to
combat commercial sexual exploitation results in re-victimisation of the victims of exploitation while the exploiters go scot free.).
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263 I borrow this term from Marc Galanters classic article, Why the Haves Come out
Ahead: Speculations on the Limits of Legal Change, 9 L. & Socy Rev. 95160 (1974).
Galanter suggests that these cases take the form of stereotyped mass processing with little
of the individuated attention of full-dress adjudication. Id. at 109.
264 For instance in Sonagachi, due to the mobilization of sex workers by the Durbar
Mahila Samanwaya Committee, a sex worker organization, the local police raid brothels under
the ITPA only under three circumstances, when a minor has been trafcked, when the police suspect the presence of men accused of serious crimes in the red-light area and when
non-residential street-based sex workers visiting the red-light area along with their customers, commit what in their view constitutes public nuisance.
265 Duncan Kennedy, The Stakes of Law, or Hale and Foucault, in Sexy Dressing
Etc.: Essays on the Power and Politics of Cultural Identity 83, 87 (1993).
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are several modes and sub-modes of organization of sex work where sex
workers exert vastly varied control over their conditions of sex work; that
sex work takes place in varied institutional settings and within sex businesses of different scales and where they engage with different sets of stakeholders. Based on this a highly fragmented view of the actors in any given
sex industry, I argue that their interests do not always overlap. My method
opens up the possibility that any nexus between the landlord, brothelkeeper, and pimp might be turned to the sex-workers advantage on some
dimension of social value; that the system is not necessarily and always
directed against the interests of sex workers. Consequently, we nd varying bargaining powers of the stakeholders and a differential impact of the
rule network on these stakeholders. Once we approach the various stakeholders in sex industries as highly fragmented and differentiated, and
block the a priori assumption that law enforcement always reduces harm,
we can assess the sometimes counter-intuitive and, in some cases, even
counter-productive results of apparently progressive legal solutions. For example, complete decriminalization might make sex work far more lucrative for sex workers. It would result in an inux of sex workers into the
sex industry where, except for the highest category of sex workers working
in large brothels, all other sex workers compete with each other, depressing wages and inciting a race to the bottom, which in turn undermines their
bargaining power with non-sex worker stakeholders in the sex industry.
Finally, the structural bias thesis fails to recognize the uidity of
norms and practices within the sex industry induced both by economic
changes in the sex industry, the impact of sex worker organization, and the
changing relations between the various stakeholders in the sex industry
both inter se and between them and sex workers. As long as GFeminists
view brothel-based sex workers as victims who experience brief and unsustainable ashes of agency in negotiating their work and personal lives,
an understanding of the dynamics of living cheek-by-jowl with several
other sex workers in a red-light area and the possibilities this offers for
collective action will be lost to GF. Even in sex industries like Tirupati
that are spatially and institutionally dispersed and where the collective
power of sex workers is minimal, negotiations between sex workers and
powerful stakeholders like the police, even if sporadic and eeting in
signicance, can take place. GFeminists need to be more attuned to these
dramatic, if short-lived, changes in the power structure.
In conclusion, I suggest that focusing on a politics of redistribution
rather than of harm and injury furthers a legal project of redistribution
for sex workers in three ways. First, radically expanding the legal playing
eld of the criminal law in sex industries allows us to understand the
prolic nature of the criminal law and identies the sets of legal rules, social
norms, and market structures with which it interacts to achieve its several
effects, anticipated as well as unanticipated. Second, having a more adequate understanding of the differential relation that sex workers in differ-
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ent modes and sub-modes of organization of sex work and institutional settings bear to the rule network leads us to acknowledge that the effects of
the rule network cannot be determined a priori and that in fact, in certain
circumstances the rule network may divide sex workers in ways we cannot foresee. Finally, it will allow us to account for uidity within the sex
industry by acknowledging how stakeholders are constantly reorienting their
bargaining positions vis--vis each other in light of internal and external
change. This will at the very least alert us to the limitations of decriminalization while hugely expanding our repertoire for more nuanced law
reform projects.
Conclusion
Generally, these are, we think, the most interesting points of consensus among us:
First, we think the international legal order is increasingly receiving
feminists into its power elites and that feminist law reform is emerging
there as a formidable new source of legal ideas. However questionable that
assertion might be elsewhere, we think it has real bite in recent changes
in positive international law governing sexual violence and commercial sex.
In the domain of sex trafcking, moreover, these reforms at the international level are having profound consequences in some national and local
contexts; sometimes some kinds of legal power shifts to some local feminists, and sometimes local feminists are signicantly sidelined by the reform. We are all nding it helpful to think of this engagement of feminism with legal regime as Governance Feminism (GF).266
To be sure, governance feminists (GFeminists) do not experience
themselves as wielding consolidated top-down power. This is probably right:
the kinds of power they have are the more fragmented, mobile, contingent,
and regulatory ones we associate with governance rather than domination. When domination is the name of the game, feminists have sought to
have it through the state. Indeed, we nd in international GF relating to
rape and prostitution a heavy bias in favor of fragmented modes of participating in power, coinciding with an equally heavy preference for outcomes
that ban, criminalize, or prohibit the conduct of men in order to protect
women who would be their victims.
Still, GFeminists frequently complain that they have no power at all.
We think this is a profound error, one whichif GF continues to grow
will lead GFeminists not only to wield power in bad faith, but to make profound miscalculations about what to seek by way of law reform. The denial will mask the many moments in which some feminisms win over other
feminisms as they jostle for legal and political priority. And the compari266 For an initial exploration of this chapter in the history of feminism, see supra text
accompanying note 143.
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son offered here between the effects of the U.N. Protocol and the VTVPA
in Israel and India suggests that local differences profoundly condition
the actual distributive effects of international GF achievements. Specically,
we nd that American and European feminists, making seemingly symbolic victories in the U.S. Congress, the United Nations, the ICTY, or the
Rome Statute negotiations, can put in motion chains of legal causation
thatby the time they reach Tel Aviv, Kolkata, or Chicagocan be exceedingly acute, and not always feminist in any intelligible sense. Finally,
GF operating in the international sphere sometimes explicitly strategizes to
bring international achievements back home to domestic law, often in
the GFeminists own hometown. Whether they will produce equally dramatic effects there remains to be seen. In short, GF has distributive consequences. Denying that GF exists is one way for GFeminists to avoid
thinking distributively about its own effects in the world.
Finally, we share the sense that GF operating in these reform projects has foreshortened the relationship between social theory and legal
advocacy. We share a sense of puzzlement about the attitude toward law
adopted in the parts of GF that have participated most signicantly in
international reform targeting rape in war and prostitution in international
labor migration. Often these projects sound like fairly simple socialcontrol projects. Method: dene a wrong happening to women; then either
criminalize it with the goal of eliminating it, or decriminalize womens
participation in the underlying exchange with the goal of liberating them
in it. The highly contingent and complex relationship between law in the
books and law in actionand the multitudinous ways in which the legal
system can be designed to shape but cannot control this relationship
seem to fall outside the scope of feminist concern.
Feminist advocacy that imagines prohibition to involve stopping
or ending sexual violence and/or commercial exploitation of sex workers brackets all the social contingency our legal realist and critical analysis would bring into focus. For example, the possible bad and unintended
consequences of the resulting rules seem to fall outside the scope of feminist
concern. As Thomas and Halley conclude, not much attention gets paid to
the possibility that intensication of the humanitarian punishment of wartime rape might (as well as deterring some rapes) increase the value of
rape as a weapon of war (thus also producing some rapes) or that the prohibition of prostitution and sex trafcking will produce black markets that
are not wild but rather highly regulated social spaces.
In two quite different ways GF has turned down its hearing aid to issues of national location. Thomas and Halley both note that GF reforms
sometimes end up ratifying national(ist) arrangements without paying much
attention to the possible downsides of doing so: feminist indifference to
the repatriation of trafcked women to their proper location on the globe
and the collaboration of feminists with ever-intensifying border-control
politics is not a pretty sight; nor is feminist indifference to possible eth-
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of some feminisms over others. How can we study this criticallythat is,
without taking sides before we have even detected the stakes?
Second, as GF accedes to governance, it becomes detached from its
intentional coreits specic basis in feminist advocacyand disappears
into legal technologies that we recognize under other rubrics (universalism, American hegemony, technocratic best practices, etc.), and even into
bien pensant legal common sense. It is like watching a drop of water hit
the surface of a pond and merge into the mass. How can we study this?
We do not at all mean to repeat the tedious charge that, by participating
in universal discourses like human rights or by forging legal tools that
can be used by Bushite social conservatives, feminism collaborates with
or is co-opted by existing non-feminist forms of power. These accusations carry with them assumptions that feminism should thwart its own
will to power or stay its hand until it can act in a politically puried world
assumptions that seem completely unreal to us, and for those of us who
are feminists, completely at odds with our politics. But we do feel the
need for new tools to study the specically feminist genealogy of the
much larger technologies of power into which GF inserts itself.
Third, we are interested in the complex outcomes that become possible as GF emanates from western feminism, moves globally via international legal regimes of various kinds, and arrives in locales in which
Western power is feared and resented and in which it is, we think, doing
much harm. If international law is imagined not as a restraint on Empire,
but as one of its many media, what will be the place of imperial feminism
in the local reception of global power? Catharine A. MacKinnon notes
that The post-September 11th paradigm shift, permitting potent response to
massive nonstate violence against civilians . . . shows what they can do
when they want to.269 She urges feminists to mimic the Bush war against
terrorism by pulling every available lever in international law to exert an
equally concerted, equally diffuse resistance to Womens September
11th.270 Happily, from our point of view, we are unlikely to see that happen. But if GF is indeed becoming integrated in international legal regimes that manage and sustain U.S. hegemony, is it time to ask after the
kinds of power that are mediated when white women seek to save brown
women from brown men?271 If feminism does not have the tools to describe them, what social theories should we turn to instead?
Finally, we think it is time to get past the prohibitionist imaginaire that
animates so much feminist legal thinking, and to think even feminisms most
important engagements with international criminal regimes as forms of management, as governmentality in a largely Foucaultian sense. The United
269 Catharine A. MacKinnon, Womens September 11th: Rethinking the International
Law of Conict, 47 Harv. Intl L.J. 1, 1 (2006).
270 Id.
271 Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and the Interpretation of Culture 287 (Cary Nelson & Lawrence Grossberg eds., 1988).
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Racial targeting in
neighborhoods already
facing discriminatory
policing practices.